no desire that the town of Walpole shall not be represented. 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-mor

row.

Reconsideration-Town 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

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 daily meetings at a 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.

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.

[May 12th.

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 Government, &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.

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

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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.

Those persons

Now the election of delegates to this Convention has nothing to do with the election of representatives to the general court. 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?

Mark you, it

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

TOWN OF WALPOLE. — ABBOTT.

is made by the Act calling this Convention. But the question is, are you entitled to vote for representative to the general court? That is answered in the affirmative. Have you been inhabitants of this town six months? We have. These questions being so answered by these men, why should they not be allowed to vote? Where else could they vote? They are not inhabitants of Dedham, but of Walpole. The Act requires nothing more than that, at such meetings, those entitled to vote for representatives to the general court, shall vote for delegates to this Convention. I apprehend that, upon a further examination, the conclusion must be that this phraseology upon which the doubt that has arisen is founded, is intended merely to refer to qualification of voters, and not the place of exercising that right.

Now, to show that I am not wrong in this opinion that the terms "qualified voters" and "persons entitled to vote for representatives in the general court," are convertible terms, I beg leave to refer to various provisions in our statutes. There is a provision in the 14th chapter of the Revised Statutes in relation to the election of registers of deeds. If the construction contended for upon the other side be the true construction, then the inhabitants of this portion of Walpole must vote in Dedham for register of deeds, and for a variety of other officers, as the phraseology in the one case is the same as in the other. In the case referred to, there is a provision that "at the annual meeting of the several towns in each county for the year 1836, and every year afterwards, the inhabitants of said towns qualified to vote for representatives in the general court shall elect registers of deeds," &c. This is not the only instance, for by turning to that portion of the Revised Statutes which provides for the election of members of congress, you will find this phraseology: "The selectmen of the several towns shall, in the manner prescribed by law for holding elections therein, cause the inhabitants of such towns, duly qualified to vote for representatives in the general court, to assemble," &c. Again, in regard to presidential electors: "The selectmen of the several towns shall, in the manner prescribed by law for holding elections therein, cause the inhabitants of their respective towns, qualified to vote for representatives in the general court, to assemble," &c. You find the same phraseology in all these cases. Now, when the legislature set off a part of the inhabitants of the town of Dedham to the town of Walpole, because the exigencies of those inhabitants thus set off required that they should have the right of voting in the town of Walpole, if the construction contended for upon the other side be correct, the legislature did not accomplish the object in view, because, in the large class of cases to which I have referred, these inhabitants must still continue to vote in Dedham, not only for representatives in the general court, as provided for by special enactment, but also for registers of deeds, members of congress and presidential electors.

Now, that the terms "persons entitled to vote for representatives in the general court," and "qualified voters," are convertible terms, meaning one and the same thing, I think cannot be doubted. It will be found that in the same chapter providing for the election of registers of deeds, there is a provision providing for the election of other county officers, viz., treasurer and commissioner, and although the same qualifications are

[May 12th.

required in the one case as in the other, yet the term "qualified voters" is used in the latter case, showing conclusively, to my mind, that all that was intended was a description of person, rather than any limit to the place where the right of voting could be exercised. Again, there is a somewhat remarkable provision in the statute concerning election of members of congress. In the first place it requires the selectmen of the several towns to assemble "the inhabitants qualified to vote for representatives in the general court." Then, in the provision immediately following, providing for another election in case of no choice being made, the phraseology is, "The selectmen of the several towns, etc., shall cause the qualified roters to assemble."

Now, if you adopt the construction contended for by those who oppose the Report of the Committee, you are driven to occupy this position. The law of the land has generally provided guards and checks upon the exercise of the franchise of voting, considering very properly the ballot-box as the very ark of our liberty. But in this particular case, adopting the construction of the other side, no manner of provision whatever is made for those cheeks which the law has thrown around the elective franchise, except in the case of representatives to the general court, and perhaps members of congress. By the Act setting off a portion of the inhabitants of the town of Dedham to the town of Walpole, the selectmen of the town of Walpole are required to furnish to the selectmen of the town of Dedham a check list of the voters thus set off, who are to be treated by the selectmen of Dedham precisely as though they had never been annexed to Walpole. This, however, is required only in the case of representatives to the general court; the obligation upon the selectmen of Walpole ceases with that one case. No provision is made that the selectmen of Walpole shall furnish to the selectmen of Dedham a check list of these voters in any other case. The law is entirely silent upon that point. I think, therefore, that we cannot come to the conclusion that in this instance it was the intention of the legislature, where there was no constitutional provision to prevent them from accomplishing their object, when they annexed the inhabitants of one territory to another municipal corporation in order to obviate the inconvenience previously existing in regard to the exercise of the right of voting, to still require the inhabitants so annexed to vote in every case in the town from which they were taken.

These are some of the reasons and considerations which induced the Committee on Elections to come to the conclusion which they did. Fortunately there was no dispute in this case about the facts. The facts were presented to us, in the first instance, by a copy of the town record, certified to by the proper officer, and they were afterwards verified by the chairman of the selectmen, who happened to be the opposing candidate, and who made a statement on oath before us. So far as the facts are concerned, there can be no disagreement; the only point at issue is on a question of law, as to the construction of the Act of 1852, taken in connection with the Act setting off part of the town of Dedham to Walpole. The Act setting off a part of the town of Rochester, and incorporating a new town called Marion, has been alluded to; but on referring to that Act I find this provision:-" Said town of Marion shall con

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 provisión 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 adopted which is most consistent with the general design of the Act, in order that it may go into effect according to the intention of the law-makers, instead of thwarting that intention. The chairman of that Committee says he thinks it a matter of some doubt; but, to my mind, it seems very clear that there is nothing in the language of the Act which requires the construction that he has contended for. If it admits it, at least it does not require it. If it required it, just look at the consequences to which it would lead. Suppose a new town is created; under the construction of this Act which is contended for, it would not be possible for that town to be represented. What is the law of 1852, under which we are convened? It provides that each of the districts shall be entitled-I use the word districts instead of towns, because when you speak of a town entitled to a representative, you mean a representative district -to the same number of delegates that it was entitled to by the apportionment of 1850. How many delegates would the town of Winthrop be entitled to, in that case? None at all, Sir; simply because, under the census of 1850, there was no apportionment of any representative to that town, and they would thus have legislated it out of any right whatever to have a delegate. The same principle would apply to the towns of Swampscot and West Roxbury; the inhabitants would be deprived of any representation at all, unless they were permitted to vote in the towns of North Chelsea, Lynn and Roxbury, from which they were taken. I will read from the Act incorporating the town of Winthrop :

:-

"The town of Winthrop shall, for the purpose of electing representatives to the general court, until the next decennial census, or until another apportionment of representatives be made, remain a part of the said town of North Chelsea, and vote at such place as the inhabitants of said North Chelsea hold their meeting for the election of representatives."

So far as I see now, this is precisely in point. If this distinction be adopted, that they are to vote according to the new town lines and not according to the old, there is no power in the town of Winthrop to be represented here at all, because the Act would give them no representative, and if they had no representative they would have no delegate. I will illustrate this matter by putting a case much stronger in point of numbers than the one before us. I will suppose, instead of a small section of one town being taken off and annexed to another, that eleven of the wards of the city of Boston had been annexed to the town of Brookline, leaving only East Boston. According to the construction contended for in this Report, it would follow of course that the town of Brookline, having some 130,000 inhabitants, would be represented here by only one delegate, while the few inhabitants of East Boston would be entitled to forty-four delegates. That is the same principle, and it would be applicable in precisely the same manner; and this supposed case illustrates the more strongly my position that such could not have been the intention of the legislature, but that, on the contrary, their intention clearly was to adopt the existing apportionment instead of the town lines, in the election of members of this Convention. The Act under which this Convention is called uses language which, in its most natural sense, leads to the same conclusion. I

[May 12th.

refer to the second section, which provides that the meetings shall be duly notified by warrant from the selectmen of the several towns, and the mayor and aldermen of the several cities, and that the inhabitants "shall elect one or more delegates, not exceeding the number of representatives to which each town or city was entitled last year—it being the year in which the valuation of estates in the Commonwealth was settled-to meet delegates from other towns and cities in Convention, for the purposes hereinafter expressed. And at such meetings" what meetings, Mr. President? Meetings called according to law. "At such meetings of the inhabitants, every person entitled to vote for representatives in the general court shall have a right to vote in the choice of delegates." In their remarks upon this subject, gentlemen have spoken of "qualified voters" as if this was synonymous with the language of this Act; but it will be noticed that this is somewhat different from the language here used. The Act says: "At such meetings of the inhabitants, every person entitled to vote for representatives "-not every qualified voter, but every person duly qualified to vote for representatives; not those qualified to vote at general meetings, but those entitled to vote at such meetings-" shall have a right to vote in the choice of delegates" to this Convention. That is the plain and obvious meaning; it is the more natural construction, and there is no necessity for forcing another construction upon the language. The Act was made to apply throughout the whole Commonwealth; and we are not to adopt a construction to help this particular town, or any other particular town, which will have the effect of disfranchising the inhabitants of the town of Winthrop, and taking away from them the power of voting anywhere for a delegate, or of being represented by any delegate in this Convention. The Report of the Committee would inevitably lead to this conclusion, as it seems to me; and I hope, therefore, that we shall not, out of kindness to the individual who will be effected by it, adopt a construction of the law which will return like a curse to plague the in

Mr. ALLEN, of Worcester. This subject has been so well presented to the Convention by the chairman of the Committee, (Mr. Abbott,) that I do not intend to speak at much length upon it. How strangely we are made to differ! My friend who has just addressed this body, feels great sympathy for the gentleman from Walpole, but his strong convictions of duty, and his great fear lest certain principles should be overthrown, restrain him from the exercise of the kind and benevolent feelings which he entertains towards that individual, and oblige him to oppose the adoption of the Report of the Committee. Now, Sir, I have come to an opposite conclusion; and it is because it is consistent with justice, and with the just regard for the rights of voters, that I concur in that Report. It is agreed, on all hands, that there is nothing in the Act calling this Convention which expressly declares that individuals situated like these electors in the town of Walpole, shall not be allowed to vote in the town in which they reside. But it is said that the general scope and purport of the Act shows that it was not the intention of the legislature that such should be the case. Sir, I call this begging the whole question. What was the general object of the Act? It was that a Convention of the people might be held,

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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

TOWN OF WALPOLE. — WILSON - MOREY.

near future. It was proper that voters should be connected, in the exercise of their right of suffrage, with the individual who is to represent their rights for the future; and I maintain, therefore, that there is a very important reason for allowing these voters to exercise the right of suffrage in the town to which they now belong, rather than the town from which they came.

What shall be done, then, with another class of people, for instance, those of the town of Winthrop? A different rule must govern in such cases-a rule which will be applicable to them; and when the question presents itself before the Convention, I think they will have no difficulty in finding and applying a rule. But let us not introduce confusion here, by mingling two cases which are essentially different in some of their particulars. When the subject of a Constitutional Convention was before the legislature, there was a difference of opinion there as well as among the people; and in the discussion of the subject, there were some cases which did not occur to the minds of the legislators. The case of new towns, like the town of Winthrop, was probably one of these; and I think the inhabitants might very properly have met and have sent a delegate to represent the interest of that town in fixing the right of representation hereafter. But that question does not now arise, because the inhabitants of that town united themselves with the community with which they were formerly connected.

With regard to this case, it seems to me that there can be no difficulty about it. These men exercised their right of suffrage where they felt their interest to be, and no mischief resulted to any one from it. In the case assumed by my friend, with regard to the city of Boston, he supposes that eleven wards had been annexed to the town of Brookline, and he then asks us if the town of Brookline, with its 130,000 inhabitants, should only have one delegate, and the inhabitants of East Boston should have forty-four? Let me tell him, Sir, that the legislature, in its discretion, could make provision for any such case as that, if they should ever have occasion to do so; but we cannot reason upon such extreme cases or such extravagant propositions. Why, Sir, the gentleman might as well have said, "Suppose the city of Boston had been caught up by a whirlwind, and carried away and set down upon the banks of the Connecticut River, would the town of Chelsea have been the county of Suffolk forever afterwards?" [Laughter.] I hope, Mr. President, that the Convention will come to a just conclusion with regard to the subject before them. On the one hand, there is the right of individuals, properly and reasonably exercised; will you sustain them in the exercise of that right? On the other hand, there is an objection of a merely technical character, and I hope that we shall not be deterred from doing what justice and a regard to the rights of voters demands of us, on account of a technical objection which ingenuity can raise, but which a little sound discretion and good sense will brush

away.

Mr. WILSON, of Natick. I desire to say a word or two in regard to the vote I propose to give upon this question, and I shall be very brief in what I have to say.

These persons set off from the town of Dedham to the town of Walpole, attended the election, honestly believing that they had a right to vote in the town of Walpole for delegate to this

[May 12th.

Convention. They gave their votes under that impression. The result of their votes, if counted, elects Mr. Bird as delegate to this Convention from that town. Now, if we follow the will of the people as expressed, then—as these men supposed they had a right to vote as they did-Mr. Bird is the delegate from Walpole, and as such, I think we ought to receive him, and so I shall vote. I do not believe that the legislature had any right to change, in any way whatever, the Act of the people of Massachusetts calling this Convention. So believing, and believing also that there are many delegates upon this floor who, by a strict construction, have no right to be here, yet, as they received the votes of the people in their districts, honestly and fairly given, and are here by the popular will, fairly expressed, I would not, under any circumstances, forbid their remaining. I shall vote for this Report, and to retain all members in this Convention who come here after having received a full expression of the wishes of the people of their several districts.

Mr. MOREY, of Boston. It appears that on the 7th of March last there was a meeting of the inhabitants of Walpole, summoned in pursuance of a law providing for such meetings" of the inhabitants entitled to vote for representatives in the general court." That probably was the form of the warrant. Now, what is the meaning, in common parlance, whether used by a lawyer or one not a lawyer, of the expression "inhabitants entitled to vote for representatives in the general court?" Suppose, for a moment, that the legislature is about to pass an act affecting the vital interests of some town, and they are of opinion that that act should not go into effect except by being adopted by the inhabitants of that town. A clause is inserted, saying that the act shall go into effect as soon as it may be adopted by "the inhabitants of the town entitled to vote for representatives in the general court." Would not that mean, entitled to vote for representatives from that town? Is there any lawyer in the country, who, upon being consulted by the selectmen or assessors, as is often done when they are in doubt concerning the interpretation to be given to any law, would say that any inhabitant entitled to vote elsewhere for representative, could vote upon the adoption of that act? I think not. And the same construction should be applied to this case, and the language used means persons entitled to vote for representative in the general court from the town in which the meeting is held.

It appears that, at this meeting for the election of delegate to this Convention in the town of Walpole, seven persons claimed a right to vote there. The selectmen said they could not receive their votes, because they were the inhabitants of Dedham, as far as that Act was concerned, and although they had been set off to Walpole for some purposes, they were not inhabitants of that town for every purpose. They were inhabitants of both towns in part, as the Act setting them off expressly provided that they should be considered as inhabitants of Dedham for the purpose of electing representatives in the general court, and also of Walpole for other purposes. Now, the place where these inhabitants were entitled to vote for delegate to this Convention depends upon the construction of the Act calling this Convention. The Act provides, when it shall appear that the voice of the people is in favor of calling a Convention, that meetings for the purpose of electing delegates

Thursday,]

shall be called, and the inhabitants of each town or city, entitled to vote for representatives in the general court, shall, at such meetings, vote for a like number of delegates which they are entitled to of representatives; the meetings shall be presided over by the same officers, and the votes received, sorted and counted as in the case of representatives, and all laws regulating the matter in the case of representatives shall continue in force, and be applied to the election of delegates. The election for delegates was to be conducted in all respects as an election for representatives. This case of Dedham and Walpole was not the only case of the kind. There were the cases of Winthrop, North Chelsea, West Roxbury and Swampscot. I know I was consulted upon the subject by many persons, and I thought the universal sentiment was, that in such cases, the votes were to be given in the old towns as in the case of representatives. It seems strange that these persons should have gone up to the polls in Walpole to vote. They had a right to vote in Dedham, and why did they not go there? Suppose that the seat of the worthy and respectable gentleman who represents Dedham, should become vacant to-morrow by death or resignation, and this Convention were to send a notice to the town of Dedham of the fact, with a request or precept for a new election by the inhabitants of the town entitled to vote for representatives in the general court," for such is the wording of the Act under which we are assembled. What would the constable do, in whose hands would be placed the warrant for the meeting? Here are certain persons, seven in number, who, at the election on the 7th of March, went up to the polls in Walpole to vote. Who are they? The act setting them off to Walpole, says that they shall continue to be inhabitants of Dedham for the purpose of voting for representatives, and they must of course be notified because they constitute a part of the Dedham representative district. The town meeting assembles; these seven persons appear and desire to vote for delegate; but the selectmen say that their votes cannot be received. What would be the reply to that? In the first place, they would say that they were inhabitants of Dedham, and, although annexed to Walpole for certain purposes, still entitled to vote for representative in Dedham; and, therefore, under the Act calling a Convention, entitled to vote for delegate in the same place. When I was practising law, thirty or forty years ago, I should have asked for no better success in any suit I might have had in charge, than I should be sure of obtaining in a suit brought against the selectmen of Dedham should they refuse these persons' votes.

These persons, therefore, having a right to vote in Dedham for the delegate to this Convention, coming under the description of persons entitled to vote for delegate in Dedham, contained in the Act calling this Convention, had no right to go to Walpole to vote as they did on the 7th of March last. Though set off to the town of Walpole for some purposes, they were still directed to vote in the town of Dedham for representative, and the only right they had to vote for delegate was the right they had to vote for representative. This matter, I understand, was brought before a committee of the legislature, and the universal opinion there was, that they could vote for delegate only in the town from which they had been set off. For these reasons, and under these circumstances, I

think the person declared by the Committee to be entitled to a seat in the Convention from the town of Walpole, has not been duly elected to that place. I am, therefore, in favor of reversing that decision of the Committee, and declaring the scat of the delegate from Walpole vacant. When that is done, the Convention can adopt such order in regard to filling that vacancy as may be deemed proper.

Mr. KEYES, of Abington. The only apology I can offer for extending this discussion, is, that I am myself a citizen of the town of Dedham. I was also a member of the legislature when the two Acts about which so much has been said was passed. In regard to the intention of the legislature, I believe they had no intention about the matter one way or the other. It has been thirtythree years since the last Convention to revise the Constitution of this Commonwealth was held. The men who had advised that matter, have long since passed away. In passing our laws the legislature had no reference to conventions of this character. The passing of both these Acts had not the slightest reference to cases of this sort. The legislature had no intention one way or the other in reference to the people in controversy here, but it is left to the Convention to decide the question in this case, according to the Act under which they are assembled, and the principles of equity and justice.

Now a great many of the arguments against this election seem to me to be very plausible, and I think the general impression at first was that all the provisions of law applying to the election of representatives also applied to the election of delegates. But literally such is not the case. Now let us imagine one of these voters going up to the polls in Dedham and presenting his vote for delegate. What would the selectmen of that town say? Do you belong to the town of Dedham? No. What business then have you to offer your vote here? Why I live in that portion of this town annexed to the town of Walpole. Very well, what right does that give you to vote here? The voter then reads that provision of the Act setting him with others off to the town of Walpole, in which they are required to vote for representative in the general court in Dedham. The selectman would say to that, we have no such business on hand to-day? we are here to elect a delegate to the Convention and not a representative in the general court. You may go home. Now I am satisfied that there were seven men who voted for the candidate elected from Walpole, who did not and could not vote for the candidate elected from Dedham. I am satisfied from my knowledge of the men who presided over the ballot-box there, that if there had been the slightest expectation that those votes would have changed the result of the election, they would not have been permitted to have been dropped into the ballot-box. I understand, however, that upon these votes depend the result of the election in Walpole. We are left to decide this question according to our judgment concerning the meaning of the language of the Act, and the principles of equity, so as to do no injustice in any respect. The Act states expressly that the inhabitants of the several towns are to assemble in meeting, and when thus assembled, the "qualified voters"— for I think the explanation of the gentleman from Lowell, (Mr. Abbott,) is perfectly satisfactory upon that point-may vote for delegates to this

[May 12th.

Convention. The qualified voters did so vote. I think, therefore, there can be no injustice to any one in allowing the gentleman who received the majority of the votes in the town of Walpole to take his scat here.

Mr. SARGENT, of Cambridge. I have no disposition to prolong this debate, for it has been very ably argued on both sides. But I think there is one point in this case, and a very strong one, in my judgment, that has not been touched upon by any gentleman on either side. I presume there is no man in this Convention who would willingly vote to deprive any member of his seat, if he was legally entitled to it. Nor do I believe any one would vote to give a man a seat here, if he thought he was not entitled to it.

Now the simple question to be decided here is, where did these seven men have a right to vote in electing delegates to this Convention? A portion of the Act under which we are assembled, requires all persons who shall claim to have a right to vote for delegates, to be entitled to vote for representatives in the general court. The Act further provides that all laws in force regulating the duties and conduct of town and city officers, sheriffs, magistrates and electors, in the election of governor, lieutenant-governor, senators and representatives, shall continue in force and be applied to the election of delegates to this Convention. Now what law was in force in reference to these seven voters, touching the election of representatives in the general court? There was a special law setting those inhabitants off from the town of Dedham to the town of Walpole, which required them to continue to be a part of Dedham for the purpose of electing representatives to the general court, until the next apportionment. That was the law in force. Now, I ask, could they have had a right to vote in more than one town? They had a right to vote in the town of Dedham, and therefore could have no right to vote anywhere else.

Now, what other provision was in force to guard the rights of these seven voters? The same special statute provides that it shall be the duty of the selectmen of Walpole to make out a true list of the voters residing on the territory set off from Dedham, and deliver the same to the selectmen of the town of Dedham, seven days at least before the said election, and said list shall be taken and used in the same manner as if prepared by the selectmen of Dedham. The question now is, was this law touching the rights and duties of these seven electors in an election for representative, in force on the day when they were called upon to vote for a delegate to this Convention? In my judgment it was. I understand the check list was furnished by the selectmen of the town of Walpole to the selectmen of Dedham, agreeably to the provisions of this Act. What then was the duty of these electors? Why, Sir, to go to the town of Dedham and vote where they had a legal right to vote. Unless the selectmen of Dedham should refuse to receive their votes, there is no power on earth that could deprive them of their right to exercise the elective franchise there at that time.

As has been said before, Mr. President, the intention of the legislature evidently was that the legislative districts should constitute districts for the election of delegates, and that citizens of the Commonwealth should vote for the choice of delegates precisely as they voted for representatives.