[May 12th.

agreed to, and the motion to reconsider was placed in the Orders of the Day for to-morrow.

Time of Meeting of the Committees. Mr. WILSON, of Natick. At the request of several gentlemen who have been appointed upon more than one of the committees, I ask leave to offer the following order, the object of which is to modify the order of yesterday :

Ordered, That the order of the 10th instant, instructing the several committees of the Convention to hold ily meetings at stated time, be so far modified as to allow them to arrange their hours of meeting.

The order was then considered, by unanimous consent, and adopted.

Resignation of Henry B. Rogers, of Boston.

Mr. APPLETON, of Boston, presented the resignation of Henry B. Rogers, of Boston, who had been compelled to sail for Europe in consequence of ill health, and in pursuance of the advice of his physicians, which was received and referred to the Committee on Elections.

no desire that the town of Walpole shall not be represented. I suppose if this motion to recommit be adopted, and the Committee report that there is a vacancy, this Convention will notify the town of Walpole, and they can then send a delegate here. But do not let us establish the precedent proposed by the Committee. Much has been said about precedent. We ought to be exceedingly cautious how we set precedents by which future conventions shall be governed. I know it was said here the other day that we are not amenable to law, but I trust no one believes we were sent here to over-ride the law, but rather to establish a form of government that shall be the basis of future laws.

Mr. BROWN, of Dracut. This is an important question as to whether a town shall or shall not be represented here. As the chairman of the Committee (Mr. Abbott) is absent in Lowell in consequence of illness in his family, I desire that the further consideration of this subject be postponed until to-morrow, when he will undoubtedly be present to state his reasons for submitting this Report.

Mr. BRADFORD, of Essex. I do not see how any gentleman can be in doubt in regard to this case. These inhabitants of Dedham had been set off in April, 1852, to the town of Walpole and at the time of the election of delegates to this Convention had been inhabitants of Walpole nearly eleven months. Now, I would ask gentlemen, if, by the existing Constitution of this Commonwealth, these gentlemen were not qualified voters of the town of Walpole for the election of representatives and all other officers ? Can the law of the legislature of this Commonwealth take away that right? But, as I understand the law, it does not attempt to disqualify them from voting for representative, but only to postpone the exercise of that right until a certain contingency shall happen. Now, they appear to have been fully qualified to vote for representatives, and I can see no good reason why they should not be considered as having been fully qualified to vote for delegates to this Convention. Entertaining these views, I shall go for the adoption of the Report.

Mr. GRISWOLD, of Erving. There seems to be a difference of opinion here. I understand the chairman of the Committee (Mr. Abbott, of Lowell) is absent on account of sickness in his family. I think that in justice to the claimant of a seat here for the town of Walpole, the subject should be postponed until to-morrow in order to give the chairman an opportunity to be here and give his views to the Convention. I therefore submit that motion.

The question being taken, the further consideration of the subject was postponed until to-morrow.

Mr. ALVORD, for Montague, submitted an order instructing the Committee to whom was referred so much of the Constitution as relates to Attorneys-General, Solicitors-General, Sheriffs, Coroners, Registers of Probate, and Notaries Public, to inquire into the expediency of providing for the election by the people of Clerks of the Courts, District Attorneys, and all other county and district officers, and to report thereon.

The order was adopted, and referred to the appropriate Committee.

Reports from Committees. Mr. ALLEN, of Worcester, from the Special Committee to whom was referred the order of the 6th instant, directing them to consider and report upon the expediency of filling such vacancies as may exist in this Convention, reported that they had discharged the duty assigned them, and found that eight towns entitled to representatives in this Convention, had made no returns; and several cities ‘having delegates here were not represented by the full number to which they are entitled. But inasmuch as the Committee had been unable to obtain any information as to the causes of this state of facts, whether such had in any case resulted from neglect or fault upon the part of the towns not represented, or from some other cause, they recommend that no action be taken upon the subject by the Convention at present, but that it be left to be disposed of as each particular case, with its attendant facts, may be presented.

The Report was received and placed among the Orders of the Day.

Mr. ALLEN also presented a Report from the Committee to whom had been referred so much of the Constitution as relates to the Frame of Goyernment, &c., which Committee in part performance of the duty assigned to them, recommended that the name “ Commonwealth of Massachusetts," be retained.

The Report was received and placed among the Orders of the Day.

Assignment of Seats. The PRESIDENT announced the following gentlemen as members of the Committee to act with the Messenger of the Convention in assigning seats to members, viz. :

Messrs. Bates, of Plymouth, Gardner, of Boston, Earle, of Worcester, Bennett, of Hubbardston, Peabody, of Salem, and Jackson, of Roxbury.

On motion, at twenty minutes past five o'clock, the Convention adjourned.

THURSDAY, May 12, 1853. Orders Submitted and Adopted. Mr. DAVIS, of Plymouth, submitted an order instructing the Committee upon the Bill of Rights to inquire into the expediency of declaring that the legislature shall pass no law recognizing a distinction in the rights of the citizens of this Commonwealth on account of color or class, and that no distinction made by any person or institution, founded solely upon color or birth, shall be recognized by this Commonwealth.

The order was adopted, and referred to the Committee on the Bill of Rights.

Mr. FRENCH, of New Bedford, submitted an order instructing the Committee to whom was referred so much of the Constitution as relates to the Judiciary, to inquire into the expediency of electing all our judges by the people, and to report thereon.

The order was adopted, and referred to the Committee on the Judiciary.

Mr. FRENCH also submitted an order instructing the Committee to whom was referred so much of the Constitution as relates to the Qualifications of Voters, to inquire into the expediency of providing that the same manner of voting be applied to the election of county, city, and town officers, that are elected by ballot, as by the Act of 1851 and 1852, applies to the election of State and United States officers, and to report thereon.

The order was adopted, and referred to the Committee on the Qualifications of Voters.

Town of Walpole. On motion of Mr. BROWN, of Dracut, the Convention resumed the consideration of the Report of the Committee on Credentials.

The pending question was upon the motion of Mr. LADD, of Cambridge, to recommit so much of said Report as related to the town of Walpole to the Committee on Credentials, with instructions to report a vacancy in that town.

Mr. ABBOTT, of Lowell. Having been unable to be present yesterday, when this subject was before this Convention, I desire now to state some of the reasons which induced the Committee on Elections, almost unanimously, to come to the conclusion upon this matter, which they have embodied in this Report. It is a question involving some doubt, perhaps, upon the first presentation of the facts connected with it; but I apprehend that, upon further consideration of the Act calling together this Convention, and the Act setting apart a portion of the town of Dedham to the town of Walpole, there will be found to exist no great doubt upon the subject. The doubt probably arose from the fact that the Act of 1852, calling the Convention, is nearly a transcript from the words of the Act calling the Convention of 1820, without taking into consideration that certain matters pertaining to representation are ma

ReconsiderationTown of Berlin. Mr. TRAIN, of Framingham, moved a reconsideration of the vote by which the Convention adopted the order of Mr. Butler, of Lowell, in relation to notifying the town of Berlin of the vacancy in this Convention.

Mr. THOMAS, of Weymouth, moved a suspension of the rules for the purpose of considering chat motion at this time.

The question being taken, upon a division, as follows: ayes, 145; noes, 88: two-thirds not voting in favor of the suspension, it was not



[May 12th.

terially altered from what they were at that time. It is upon this ground, probably, and because towns have been divided since the apportionment of 1850 and '51, for, representative districts, that the difficulty arose.

By referring to the second section of the Act calling this Convention, it appears that the inhabitants of the several towns and cities in this Commonwealth, entitled to one or more representatives, are directed to meet and elect a like number of delegates. And it further goes on to provide that at such meeting of the inhabitants, every person entitled to vote for representatives in the general court shall be entitled to vote for delegates to this Convention. The question then arises, whether the persons set off to the town of Walpole from the town of Dedham, are entitled to vote in the town of Walpole, from the peculiar phraseology of the Act, thus setting them off, which phraseology was in consequence of the decision of the Supreme Court that persons so set off after an apportionment year, must continue to vote in their old town until after another apportionment. Now I apprehend that the onus probandi rests upon those who claim that this portion of the inhabitants of the town of Walpole were not entitled to vote in that town for delegate. By reference to the general law, you will find that every inhabitant living six months in any town and possessing the other requisite qualifications, is entitled to vote in that town in all cases that may arise, and no inhabitant has a right to vote out of his domiciliary limits, except there be a special provision to that effect in some other law. Now, in this case, the inhabitants of this portion of the town of Walpole which was set off from Dedham were inhabitants of Walpole for the purpose of voting and all other purposes, with the one exception made in the Act setting them off, viz.: they could not vote for representative, for the reason I have before stated, except in the town of Dedham, until after the next apportionment. But in every other case they were entitled and bound to vote within the territorial limits of the town of Walpole. They had no right to vote anywhere else except in one particular case, that of representative, in which case they were obliged to vote in the town from which they were set off, in consequence of the revision of the Constitution in 1835 and '36, and the decision of the Supreme Court that no representative district could be changed except at the times of apportionment.

Now the election of delegates to this Convention has nothing to do with the election of representatives to the general court. Those persons living in that part of the town of Walpole set off from Dedham were inhabitants of Walpole for all purposes except one. They came before the selectmen of Walpole and claimed to have a right to vote there for delegate. Now I ask, how could they be refused the privilege of exercising that right? Suppose for a moment that they are now at the polls and the necessary questions are being put to them. Are you inhabitants of the town of Walpole? The answer is, We are inhabitants of this town for all purposes, and it is so enacted by law. Another question is put to them, adopting the strictest construction of the Act of 1852. Are you entitled to vote for representative to the general court ? is not, are you entitled to vote for such representative from the town of Walpole? No such question can be put to them; no such requisition

is made by the Act calling this ('onvention. But required in the one case as in the other, yet the the question is, are you entitled to vote for rep- term “qualified voters" is used in the latter resentative to the general court? That is an

an- case, showing conclusively, to my mind, that all swered in the affirmative. Have you been inhab- that was intended was a description of person, itants of this town six months? We have. These rather than any limit to the place where the right questions being so answered by these men, why of voting could be exercised. Again, there is a should they not be allowed to vote? Where else somewhat remarkable provision in the statute could they vote? They are not inhabitants of concerning election of members of congress. In Dedham, but of Walpole. The Act requires noth- the first place it requires the selectmen of the ing more than that, at such meetings, those en- several towns to assemble“ the inhabitants titled to vote for representatives to the general qualified to vote for representatives in the general court, shall vote for delegates to this ('onvention. court." Then, in the provision immediately fol. I apprehend that, upon a further examination, lowing, providing for another election in case of the conclusion must be that this phraseology up- no choice being made, the phraseology is, “ The on which the doubt that has arisen is founded, is selectmen of the several towns, etc., shall cause intended merely to refer to qualification of voters, the qualified roters to assemble." and not the place of exercising that right.

Now, if you adopt the construction contended Now, to show that I am not wrong in this for by those who oppose the Report of the Comopinion that the terms "qualified voters" and mittee, you are driven to occupy this position. “persons entitled to vote for representatives in The law of the land has generally provided guards the general court," are convertible terms, I beg and checks upon the exercise of the franchise of leave to refer to various provisions in our statutes. voting, considering very properly the ballot-box There is a provision in the 14th chapter of the as the very ark of our liberty. But in this parRevised Statutes in relation to the election of ticular case, adopting the construction of the other registers of deeds. If the construction contended side, no manner of provision whatever is made for for upon the other side be the true construction, those checks which the law has thrown around then the inhabitants of this portion of Walpole the elective franchise, except in the case of repremust vote in Dedham for register of deeds, and sentatives to the general court, and perhaps memfor a variety of other officers, as the phraseology bers of congress. By the Act setting off a porin the one case is the same as in the other. Intion of the inhabitants of the town of Dedham to the case referred to, there is a provision that "at the town of Walpole, the selectmen of the town the annual meeting of the several towns in each of Walpole are required to furnish to the selectcounty for the year 1836, and every year after- men of the town of Dedham a check list of the wards, the inhabitants of said towns qualified to voters thus set off, who are to be treated by the vote for representatives in the general court selectmen of Dedham precisely as though they shall elect registers of deeds," &c. This is not had never been annexed to Walpole. This, the only instance, for by turning to that portion however, is required only in the case of repreof the Revised Statutes which provides for the sentatives to the general court; the obligation election of members of congress, you will find this upon the selectmen of Walpole ceases with that phraseology: "The selectmen of the several towns

one case. No provision is made that the selectshall, in the manner prescribed by law for hold- men of Walpole shall furnish to the selectmen of ing elections therein, cause the inhabitants of such Dedham a check list of these voters in any other towns, duly qualified to vote for representatives case. The law is entirely silent upon that point. in the general court, to assemble," &c. Again, I think, therefore, that we cannot come to the in regard to presidential electors: “The select- conclusion that in this instance it was the intenmen of the several towns shall, in the manner tion of the legislature, where there was no constiprescribed by law for holding elections therein, tutional provision to prevent them from accomcause the inhabitants of their respective towns, plishing their object, when they annexed the qualified to vote for representatives in the gen- inhabitants of one territory to another municipal eral court, to assemble," &c. You find the same corporation in order to obviate the inconvenience phraseology in all these cases. Now, when the previously existing in regard to the exercise of the legislature set off a part of the inhabitants of the right of voting, to still require the inhabitants so town of Dedham to the town of Walpole, be- annexed to vote in every case in the town from cause the exigencies of those inhabitants thus set which they were taken. off required that they should have the right of These are some of the reasons and considerations voting in the town of Walpole, if the construc- which induced the Committee on Elections to tion contended for upon the other side be correct, come to the conclusion which they did. Fortuthe legislature did not accomplish the object in nately there was no dispute in this case about the view, because, in the large class of cases to which facts. The facts were presented to us, in the first I have referred, these inhabitants must still con- instance, by a copy of the town record, certified tinue to vote in Dedham, not only for represent- to by the proper officer, and they were afterwards atives in the general court, as provided for by verified by the chairman of the selectmen, who special enactment, but also for registers of deeds, happened to be the opposing candidate, and who members of congress and presidential electors. made a statement on oath before us. So far as

Now, that the terms “persons entitled to vote the facts are concerned, there can be no disagreefor representatives in the general court," and ment; the only point at issue is on a question of “qualified voters," are convertible terms, mean- law, as to the construction of the Act of 1852, ing one and the same thing, I think cannot be taken in connection with the Act setting off part doubted. It will be found that in the same chap- of the town of Dedham to Walpole. The Act ter providing for the election of registers of deeds, setting off a part of the town of Rochester, and inthere is a provision providing for the election of corporating a new town called Marion, has been other county officers, viz., treasurer and commis- alluded to; but on referring to that Act I find sioner, and although the same qualifications are this provision :" Said town of Marion shall con

Mark you, it



(May 12th.

as if


tinue to be a part of the town of Rochester for the purpose of electing a Representative to the General Court, State Officers, Senators, Representative to Congress, and Electors of President and VicePresident of the United States, until the next decennial census shall be taken.” Now, Mr. President, I do not know exactly what we are, but I suppose we are State officers. As I understand it, an officer is a person appointed and commissioned to perform some public duty; and I suppose that we are appointed and commissioned to perform a public duty, the very important duty of revising the Constitution. We are State officers for that purpose, and here is an express provision in this Act directing the inhabitants of the town of Marion to vote in the town of Rochester when they vote for State officers. I think, Sir, that a liberal construction of the Act would show that they did precisely what the Act creating them authorized them to do.

Mr. HOPKINSON, of Boston. As I understand the question before the Convention, it is simply upon the right of the gentleman from Walpole to his seat. I was very unwilling to trouble the Convention with any remarks, for it is always a disagreeable duty to oppose the claims of an individual to a seat; but, Sir, vast questions are involved, depending on important principles, and as the decision in this case is likely to be brought up as a precedent, we should consider the matter well before announcing that decision. In the examination of this question, Mr. President, I have not been able to bring my mind to the same conclusion with the chairman of the Committee. Let us consider for a moment what was the intention of the legislature of 1852, in passing the Act calling this Convention. There was no law or constitutional rule by which an apportionment should be made. The legislature were entirely at liberty to adopt any other mode of apportionment than that which they did adopt; they might have provided that the delegates should be chosen by counties or by the people at large, inasmuch as the form of choosing delegates derives authority from the Act itself. Now, when the Act was drafted, what was the intention and design of the legislature -to create a new mode of apportionment, or to adopt the apportionment of the State already existing ? The Act speaks for itself; there can be no doubt, from the general sense of the Act, that the design was to adopt the existing system of apportionment, under the census of 1850. There were certain rights to which the inhabitants of the towns of Walpole and Dedham were entitled by that apportionment; each of those towns was entitled to one representative, and was a representative district. Their relations in other respects might undergo a change; the lines of the counties might change, and the inhabitants might be set off to this or to that county according as their inclinations or interests might dictate; but after an apportionment is made according to the decennial census, there can be no change of districts so far as relates to apportionment—there can be no change of town lines which will involve a change of representative districts until the next ten years shall expire.

Now, the apportionment of Dedham and of Walpole was fixed according to the census of 1850; and the general intention of the legislature having been to adopt the existing apportionment, if there is anything in the Act calling this convention which is equivocal, which will admit of

various constructions, that construction should be refer to the second section, which provides that adopted which is most consistent with the general the meetings shall be duly notified by warrant design of the Act, in order that it may go into ef- from the selectmen of the several towns, and the fect according to the intention of the law-makers, mayor and aldermen of the several cities, and that instead of thwarting that intention. The chair- the inhabitants “shall elect one or more delegates, man of that Committee says he thinks it a matter not exceeding the number of representatives to of some doubt; but, to my mind, it seems very which each town or city was entitled last year—it clear that there is nothing in the language of the being the year in which the valuation of estates Act which requires the construction that he has in the Commonwealth was settled to meet delecontended for. If it admits it, at least it does not gates from other towns and cities in Convention, for require it. If it required it, just look at the con- the purposes hereinafter expressed. And at such sequences to which it would lead. Suppose a meetings” what meetings, Mr. President ? new town is created; under the construction of Meetings called according to law. “ At such this Act which is contended for, it would not be meetings of the inhabitants, every person entitled possible for that town to be represented. What is to vote for representatives in the general court the law of 1852, under which we are convened ? shall have a right to vote in the choice of deleIt provides that each of the districts shall be gates.” In their remarks upon this subject, genentitled- I use the word districts instead of towns, tlemen have spoken of “qualified voters because when you speak of a town entitled to a this was synonymous with the language of this representative, you mean a representative district Act; but it will be noticed that this is somewhat -to the same number of delegates that it was en- different from the language here used. The Act titled to by the apportionment of 1850. How “At such meetings of the inhabitants, every many delegates would the town of Winthrop be person entitled to vote for representatives "—not entitled to, in that case ? None at all, Sir; sim- every qualified voter, but every person duly qualply because, under the census of 1850, there was ified to vote for representatives ; not those qualino apportionment of any representative to that fied to vote at general meetings, but those entitled town, and they would thus have legislated it out to vote at such meetings—“shall have a right to of any right whatever to have a delegate. The vote in the choice of delegates" to this Convensame principle would apply to the towns of tion. That is the plain and obvious meaning; it Swampscot and West Roxbury; the inhabitants is the more natural construction, and there is no would be deprived of any representation at all, necessity for forcing another construction upon unless they were permitted to vote in the towns the language. The Act was made to apply of North Chelsea, Lynn and Roxbury, from throughout the whole Commonwealth ; and we which they were taken. I will read from the Act are not to adopt a construction to help this parincorporating the town of Winthrop :

ticular town, or any other particular town, which 6. The town of Winthrop shall, for the purpose will have the effect of disfranchising the inhabiof electing representatives to the general court, tants of the town of Winthrop, and taking away until the next decennial census, or until another from them the power of voting anywhere for a apportionment of representatives be made, remain delegate, or of being represented by any delegate a part of the said town of North Chelsea, and in this Convention. The Report of the Commitvote at such place as the inhabitants of said North tee would inevitably lead to this conclusion, as it Chelsea hold their meeting for the election of rep- seems to me; and I hope, therefore, that we shall resentatives.”

not, out of kindness to the individual who will So far as I see now, this is precisely in point. be effected by it, adopt a construction of the law If this distinction be adopted, that they are to vote which will return like a curse to plague the inaccording to the new town lines and not according ventor. to the old, there is no power in the town of Win- Mr. ALLEN, of Worcester. This subject has throp to be represented here at all, because the been so well presented to the Convention by the Act would give them no representative, and if chairman of the Committee, (Mr. Abbott,) that they had no representative they would have no I do not intend to speak at much length upon it. delegate. I will illustrate this matter by putting How strangely we are made to differ! My friend a case much stronger in point of numbers than who has just addressed this body, feels great symthe one before us. I will suppose, instead of a pathy for the gentleman from Walpole, but his small section of one town being taken off and an- strong convictions of duty, and his great fear lest nexed to another, that eleven of the wards of the certain principles should be overthrown, restrain city of Boston had been annexed to the town of him from the exercise of the kind and benevolent Brookline, leaving only East Boston. According feelings which he entertains towards that indito the construction contended for in this Report, vidual, and oblige him to oppose the adoption of it would follow of course that the town of Brook- the Report of the Committee. Now, Sir, I have line, having some 130,000 inhabitants, would be come to an opposite conclusion; and it is because represented here by only one delegate, while the it is consistent with justice, and with the just few inhabitants of East Boston would be entitled regard for the rights of voters, that I concur in to forty-four delegates. That is the same princi- that Report. It is agreed, on all hands, that there ple, and it would be applicable in precisely the is nothing in the Act calling this Convention same manner; and this supposed case illustrates which expressly declares that individuals situated the more strongly my position that such could not like these electors in the town of Walpole, shall have been the intention of the legislature, but not be allowed to vote in the town in which they that, on the contrary, their intention clearly was reside. But it is said that the general scope and to adopt the existing apportionment instead of the purport of the Act shows that it was not the intown, lines, in the election of members of this tention of the legislature that such should be the Convention. The Act under which this Conven- case. Sir, I call this begging the whole question. tion is called uses language which, in its most What was the general object of the Act? It was natural sense, leads to the same conclusion. I that a Convention of the people might be held, Thursday,]


[May 12th.

and that the electors of the Commonwealth might have an opportunity to give their franchise for delegates to meet in this Convention. But is there any indication in that Act that electors situated like these voters in the town of Walpole, should not vote in the town in which they happen to reside ? I do not find it so. There is no provision that they shall possess the same qualifications that voters are required to have in order to constitute electors of representatives to the general court. What then? It does not follow from that provision which has been read, that they must vote in the same place where they have been accustomed to vote for members of the House of Representatives. There is nothing in that Act which prescribes the place where they must attend and vote; and how does my friend from Boston ascertain that it was the intention of the legislature to require seven voters of the town of Walpole to vote in the town of Dedham: I do not find it so stated in the Act, and I apprehend that there is no reason for supposing that it was so intended. In my opinion, if the attention of the legislature had been called to this very point, the legislators themselves, in the exercise of a just regard for the rights and privileges of individual voters, would have directed these men to do precisely as they have done-to vote in the town of Walpole, where they reside. And why should they not vote there? To be sure, in the election of representatives, it was rendered necessary by a just interpretation of a constitutional provision, that they should continue to vote in the town from which they came until a new apportionment should take place. They were required to do it, not because it was best that they should vote in the town of Dedham on ordinary occasions, but from the necessity of the case ; and where that necessity does not exist, no such requirement is made of them, and they are not to vote at the polls in Dedham, but in Walpole.

While, then, there is no reason for their being required to vote on an occasion like this, in the town of Dedham, on the other hand there is the strongest reason why they should be allowed to vote in the town of Walpole. What is the duty to be performed by this Convention ? It is the formation of a new frame of government, or an amendment of that at present existing. This will involve a variety of new provisions-perhaps an obliteration of the district lines that have been formed for the purpose of electing members of the general court-new provisions affecting the interest of the town of Walpole, as of all other towns in the Commonwealth, not for this year merely, not for the present decennial period, but for the whole lives of the present inhabitants of that town, and for successive generations. It is an object looking not merely to the present but to the future, and individual voters want to elect delegates who will have regard to their rights in the future, and to the general good of the town in which they reside. We come here as the representatives of the several towns in the Commonwealth, and it is obviously proper that these seven voters should be represented here by a delegate residing in the town where they reside, whose interests are identical with their own, and who would desire that the welfare of the town of Walpole where they live, should be protected by a proper representation in all time to come. Therefore the Act by which the Convention was called looked to the distant future as well as the

near future. It was proper that voters should be Convention. They gave their votes under that connected, in the exereise of their right of suf- impression. The result of their votes, if counted, frage, with the individual who is to represent elects Mr. Bird as delegate to this ('onvention from their rights for the future; and I maintain, there- that town. Now, if we follow the will of the fore, that there is a very important reason for people as expressed, then-as these men supposed allowing these voters to exercise the right of they had a right to vote as they did—Mr. Bird is suffrage in the town to which they now belong, the delegate from Walpole, and as such, I think rather than the town from which they came. we ought to receive him, and so I shall vote. I

What shall be done, then, with another class of do not believe that the legislature had any right people, for instance, those of the town of Winthrop toehange, in any way whatever, the Act of the peoA different rule must govern in such cases-a rule ple of Massachusetts calling this Convention. So which will be applicable to them; and when the believing, and believing also that there are many question presents itself before the Convention, I delegates upon this floor who, by a strict constructhink they will have no difficulty in finding and tion, have no right to be here, yet, as they received applying a rule. But let us not introduce con- the votes of the people in their districts, honestly fusion here, by mingling two cases which are es- and fairly given, and are here by the popular will, sentially different in some of their particulars. fairly expressed, I would not, under any circumWhen the subject of a Constitutional ('onvention stances, forbid their remaining. I shall vote for was before the legislature, there was a difference of this Report, and to retain all members in this opinion there as well as among the people; and in Convention who come here after having reccived the discussion of the subject, there were some cases a full expression of the wishes of the people of which did not occur to the minds of the legisla- their several districts. tors. The case of new towns, like the town of Mr. MOREY, of Boston. It appears that on Winthrop, was probably one of these ; and I the 7th of March last there was a meeting of the think the inhabitants might very properly have inhabitants of Walpole, summoned in pursuance met and have sent a delegate to represent the in- of a law providing for such meetings “ of the interest of that town in fixing the right of represen- habitants entitled to vote for representatives in tation hereafter. But that question does not now the general court.” That probably was the form arise, because the inhabitants of that town united of the warrant. Now, what is the meaning, in themselves with the community with which they common parlance, whether used by a lawyer or were formerly connected.

one not a lawyer, of the expression “inhabiWith regard to this case, it seems to me that there tants entitled to vote for representatives in the can be no difficulty about it. These men exercised general court?" Suppose, for a moment, that the their right of suffrage where they felt their interest legislature is about to pass an act affecting the to be, and no mischief resulted to any one from vital interests of some town, and they are of opinit. In the case assumed by my friend, with regard ion that that act should not go into effect except to the city of Boston, he supposes that eleven by being adopted by the inhabitants of that town. wards had been annexed to the town of Brook- A clause is inserted, saying that the act shall go line, and he then asks us if the town of Brook- into effect as soon as it may be adopted by “the line, with its 130,000 inhabitants, should only inhabitants of the town entitled to vote for have one delegate, and the inhabitants of East representatives in the general court." Would not Boston should have forty-four? Let me tell him, that mean, entitled to vote for representatives from Sir, that the legislature, in its discretion, could that town? Is there any lawyer in the country, make provision for any such case as that, if they who, upon being consulted by the selectmen or should ever have occasion to do so; but we can- assessors, as is often done when they are in doubt not reason upon such extreme cases or such ex- concerning the interpretation to be given to any travagant propositions. Why, Sir, the gentleman law, would say that any inhabitant entitled to vote might as well have said, “Suppose the city of elsewhere for representative, could vote upon Boston had been caught up by a whirlwind, and the adoption of that act: I think not. And the carried away and set down upon the banks of the same construction should be applied to this case, Connecticut River, would the town of Chelsea and the language used means persons entitled to have been the county of Suffolk forever after- vote for representative in the general court from wards ?” (Laughter.] I hope, Mr. President, the town in which the meeting is held. that the Convention will come to a just conclusion It appears that, at this meeting for the election with regard to the subject before them. On the of delegate to this Convention in the town of one hand, there is the right of individuals, prop- Walpole, seven persons claimed a right to vote erly and reasonably exercised; will you sustain there. The selectmen said they could not receive them in the exercise of that right? On the other their votes, because they were the inhabitants of hand, there is an objection of a merely technical Dedham, as far as that Act was concerned, and character, and I hope that we shall not be deterred although they had been set off to Walpole for from doing what justice and a regard to the rights some purposes, they were not inhabitants of that of voters demands of us, on account of a techni- town for every purpose. They were inhabitants cal objection which ingenuity can raise, but which of both towns in part, as the Act setting them off a little sound discretion and good sense will brush expressly provided that they should be considered away.

as inhabitants of Dedham for the purpose of electMr. WILSON, of Natick. I desire to say a ing representatives in the general court, and also of word or two in regard to the vote I propose to Walpole for other purposes. Now, the place where give upon this question, and I shall be very brief these inhabitants were entitled to vote for delein what I have to say.

gate to this Convention depends upon the conThese persons set off from the town of Ded- struction of the Act calling this Convention. The ham to the town of Walpole, attended the elec- Act provides, when it shall appear that the voice tion, honestly believing that they had a right to of the people is in favor of calling a Convention, vote in the town of Walpole for delegate to this that meetings for the purpose of electing delegates Thursday,]


[May 12th.

shall be called, and the inhabitants of each town think the person declared by the Committee to be Convention. The qualified voters did so vote. I or city, entitled to vote for representatives in the entitled to a seat in the Convention from the think, therefore, there can be no injustice to any general court, shall, at such meetings, vote for a town of Walpole, has not been duly elected to one in allowing the gentleman who received the like number of delegates which they are entitled that place. I am, therefore, in favor of reversing majority of the votes in the town of Walpole to to of representatives; the meetings shall be pre- that decision of the Committee, and declaring the take his seat here. sided over by the same officers, and the votes re- seat of the delegate from Walpole vacant. When Mr. SARGENT; of Cambridge. I have no ceived, sorted and counted as in the case of rep- that is done, the Convention can adopt such order disposition to prolong this debate, for it has been resentatives, and all laws regulating the matter in regard to filling that vacancy as may be very ably argued on both sides. But I think in the case of representatives shall continue in deemed proper.

there is one point in this case, and a very strong force, and be applied to the election of delegates. Mr. KEYES, of Abington. The only apology one, in my judgment, that has not been touched The election for delegates was to be conducted in I can offer for extending this discussion, is, that upon by any gentleman on either side. I preall respects as an election for representatives. I am myself a citizen of the town of Dedham. I sume there is no man in this Convention who This case of Dedham and Walpole was not the was also a member of the legislature when the would willingly vote to deprive any member of only case of the kind. There were the cases of two Acts about which so much has been said was his seat, if he was legally entitled to it. Nor do I Winthrop, North Chelsea, West Roxbury and passed. In regard to the intention of the legisla- believe any one would vote to give a man a seat Swampscot. I know I was consulted upon the ture, I believe they had no intention about the here, if he thought he was not entitled to it. subject by many persons, and I thought the uni- matter one way or the other. It has been thirty- Now the simple question to be decided here is, versal sentiment was, that in such cases, the votes three years since the last Convention to revise the where did these seven men have a right to vote in were to be given in the old towns as in the case Constitution of this Commonwealth was held. electing delegates to this Convention? A portion of representatives. It seems strange that these The men who had advised that matter, have long of the Act under which we are assembled, requires persons should have gone up to the polls in Wal- since passed away. In passing our laws the all persons who shall claim to have a right to vote pole to vote. They had a right to vote in Ded- legislature had no reference to conventions of for delegates, to be entitled to vote for representaham, and why did they not go there? Suppose this character. The passing of both these Acts tives in the general court. The Act further prothat the seat of the worthy and respectable gen- had not the slightest reference to cases of this sort. vides that all laws in force regulating the dutleman who represents Dedham, should become The legislature had no intention one way or the ties and conduct of town and city officers, sheriffs, vacant to-morrow by death or resignation, and

other in reference to the people in controversy magistrates and electors, in the election of goverthis Convention were to send a notice to the town here, but it is left to the Convention to decide the nor, lieutenant-governor, senators and representaof Dedham of the fact, with a request or precept question in this case, according to the Act under tives, shall continue in force and be applied to for a new election by the “inhabitants of the which they are assembled, and the principles of the election of delegates to this Convention. town entitled to vote for representatives in the equity and justice.

Now what law was in force in reference to these general court," for such is the wording of the Now a great many of the arguments against seven voters, touching the election of representaAct under which we are assembled. What would this election seem to me to be very plausible, and tives in the general court? There was a special the constable do, in whose hands would be placed I think the general impression at first was that law setting those inhabitants off from the town of the warrant for the meeting? Here are certain all the provisions of law applying to the election Dedham to the town of Walpole, which required persons, seven in number, who, at the election on of representatives also applied to the election of them to continue to be a part of Dedham for the the 7th of March, went up to the polls in Walpole delegates. But literally such is not the case. purpose of electing representatives to the general to vote. Who are they? The act setting them Now let us imagine one of these voters going up court, until the next apportionment. That was the off to Walpole, says that they shall continue to be to the polls in Dedham and presenting his vote law in force. Now, I ask, could they have had inhabitants of Dedham for the purpose of voting for delegate. What would the selectmen of that a right to vote in more than one town? They for representatives, and they must of course be town say? Do you belong to the town of Ded- had a right to vote in the town of Dedham, and notified because they constitute a part of the Ded- ham: No. What business then have you to therefore could have no right to vote anywhere ham representative district. The town meeting offer your vote here? Why I live in that portion else. assembles; these seven persons appear and desire

of this town annexed to the town of Walpole. Now, what other provision was in force to to vote for delegate; but the selectmen say that Very well, what right does that give you to vote guard the rights of these seven voters ? The their votes cannot be received. What would be here? The voter then reads that provision of the same special statute provides that it shall be the the reply to that. In the first place, they would Act setting him with others off to the town of duty of the selectmen of Walpole to make out a say that they were inhabitants of Dedham, and, Walpole, in which they are required to vote for true list of the voters residing on the territory although annexed to Walpole for certain purposes, representative in the general court in Dedham. set off from Dedham, and deliver the same to the still entitled to vote for representative in Ded- The selectman would say to that, we have no selectmen of the town of Dedham, seven days at ham; and, therefore, under the Act calling a Con- such business on hand to-day? we are here to least before the said election, and said list shall be vention, entitled to vote for delegate in the same elect a delegate to the Convention and not a rep- taken and used in the same manner as if prepared place. When I was practising law, thirty or forty resentative in the general court. You may go by the selectmen of Dedham. The question now years ago, I should have asked for no better suc- home. Now I am satisfied that there were seven is, was this law touching the rights and duties of cess in any suit I might have had in charge, than men who voted for the candidate elected from these seven electors in an election for representaI should be sure of obtaining in a suit brought Walpole, who did not and could not vote for the tive, in force on the day when they were called upon against the selectmen of Dedham should they re- candidate elected from Dedham. I am satisfied to vote for a delegate to this Convention? In my fuse these persons' votes.

from my knowledge of the men who presided judgment it was. I understand the check list These persons, therefore, having a right to vote over the ballot-box there, that if there had been was furnished by the selectmen of the town of in Dedham for the delegate to this Convention, the slightest expectation that those votes would Walpole to the selectmen of Dedham, agreeably coming under the description of persons entitled have changed the result of the election, they would to the provisions of this Act. What then was to vote for delegate in Dedham, contained in the not have been permitted to have been dropped the duty of these electors: Why, Sir, to go to Act calling this Convention, had no right to go to into the ballot-box. I understand, however, that the town of Dedham and vote where they had a Walpole to vote as they did on the 7th of March upon these votes depend the result of the election legal right to vote. Unless the selectmen of Dedlast. Though set off to the town of Walpole for in Walpole. We are left to decide this question ham should refuse to receive their votes, there is some purposes, they were still directed to vote in according to our judgment concerning the mean- no power on earth that could deprive them of the town of Dedham for representative, and the ing of the language of the Act, and the principles their right to exercise the elective franchise there only right they had to vote for delegate was the of equity, so as to do no injustice in any respect. at that time. right they had to vote for representative. This The Act states expressly that the inhabitants of As has been said before, Mr. President, the inmatter, I understand, was brought before a com- the several towns are to assemble in meeting, and tention of the legislature evidently was that the mittee of the legislature, and the universal opinion when thus assembled, the “qualified voters"- legislative districts should constitute districts for there was, that they could vote for delegate only in for I think the explanation of the gentleman from the election of delegates, and that citizens of the the town from which they had been set off. For Lowell, (Mr. Abbott,) is perfectly satisfactory Commonwealth should vote for the choice of del. these reasons, and under these circumstances, I upon that point-may vote for delegates to this egates precisely as they voted for representatives.

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