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Thursday,]

And while I regret that any man is here with a doubt resting upon him with regard to his right to his seat, yet, believing as I do, that the law is decidedly against the Report of the Committee, I shall vote for the amendment.

Mr. ABBOTT, of Lowell. Mr. President, I do not desire to occupy the time of the Convention further than to call their attention to some of the statements made by the gentleman from Boston, who last spoke. It seemed to me that he had a remarkable facility in applying terms to things entirely different from those which belonged to them; and not to be disrespectful to him, I should think, to use a common phrase, that he put the cart before the horse. He tells us that these inhabitants who formerly lived in the town of Dedham, but who had been annexed to Walpole, were still inhabitants of the town of Dedham except for certain purposes! Why, Mr. President, the law provides that they shall no longer be inhabitants of the town of Dedham, but that they shall continue hereafter to be inhabitants of the town of Walpole. Inhabitants of the town of Dedham, indeed, except for certain purposes! They are the inhabitants of the town of Walpole for all purposes, so says the law; and they vote in Walpole for all officers except one. They pay taxes in Walpole, and the law intended that they should be inhabitants of the town of Walpole. My friend from Boston, gets up and says that they were set off for certain purposes, but that they remain inhabitants of the town of Dedham. No such thing, Sir; they are inhabitants of the town of Walpole, for all the purposes and design of this Act. Under the provisions of the Constitution they cannot exercise one of their rights in the town of Walpole for a limited time; that is all; but when the exception is made, that they shall exercise their right and privilege of voting for representative in the town of Dedham, they by no means cease to be inhabitants of Walpole, and become inhabitants of Dedham. Why, Sir, you would be laughed at if you should go and tell these men, that although the legislature had passed an Act that they should be set off to the town of Walpole, yet they were not inhabitants of Walpole-oh, no! they were still inhabitants of the town of Dedham, except for certain purposes. Sir, they would tell you that they were inhabitants of Walpole for certain purposes, and that those certain purposes included everything except the right to vote for representatives for eight or nine years. The gentleman from Cambridge tells us that the last part of the second section of this Act calling the Convention, prevents our coming to the conclusion to which the Committee have come. I will read it: "And all laws now in force, regulating the duty and conduct of town and city officers, sheriffs, magistrates and electors, in the election of governor, lieutenant-governor, senators and representatives, shall, as far as applicable, apply and be in full force and operation, as to all meetings holden, and elections and returns made under this Act, or which by this Act are required, to be holden or made, and upon the like forfeitures and penalties."

"As far as applicable," the law says. Well, Sir, every one of these men had a right to vote for governor, lieutenant-governor, and senators in the town of Walpole; and now, I pray you, why shall we not apply this rule to the case of these seven men, instead of picking out the single law relating to the clection of representatives, and say

TOWN OF WALPOLE. — ABBOTT — MOREY.

that that alone shall apply to these individuals? The Act says that all laws applying to the election of governor, lieutenant-governor and senators, as well as representatives, shall apply to the election of delegates to this Convention. Now my answer to the gentleman from Cambridge is this: this very provision in reference to the election of representatives is not applicable to this election. I do not undertake to say that the provisions in reference to the governor, lieutenantgovernor, and senators are not applicable, but you must come to that conclusion, if the argument of the gentleman from Cambridge is worth anything. All these laws must be thrown aside as worth nothing; you must pick up this law and make this applicable and throw aside all other laws which go against the remarkable construction put upon this Act.

Again, Sir, every inhabitant of a town in this Commonwealth who has lived in that town six months, and lived in the State a year, and who has paid his taxes, with some other provisions, has a right to vote for town officers, State officers, and representative to congress—where? In the town where he resides, and nowhere else. We are here in the capacity of State officers. We have been commissioned and appointed to perform some public duties; and how must we be elected? Under the general provisions of law, every person who has lived in the town six months, and in the State a year, and who has paid his taxes, &c., must vote nowhere but in the town where he lives. If he votes anywhere else, he must bring an order or a law which gives him a right to vote there. He has no such right unless there is an express limitation to the general provision, or a special exception to it. Now, Sir, in this case there is no such exception to the general law. According to the common rule of law, the mention of one thing is the exclusion of all others; and the exception in this case is confined to a single point, and confined to that point because a provision of the Constitution in force at that time made it necessary in order not to disfranchise such voters in the election of representatives to the general court. The exception is confined to that, and to that alone. It relates to the election of representatives to the general court, and to no other election whatever. On no other occasion do these men have any right to vote in the town of Dedham. By the Act of the legislature setting them off to the town of Walpole, they were told that the public exigency required that they should vote in the town of Walpole on all other occasions and in every other election; and this particular exception excludes them from the right to vote in the town of Dedham for any body else but for representatives. Look at it in any point of view you please, it seems to me that you must come to this result; and if the gentleman from Boston, was called upon to decide upon it as judge, I apprehend that the argument which I submit as a lawyer, could not be met, that these seven individuals could only vote in the town of Walpole, and could not go back and vote in the town of Dedham in any other election except that of representatives to the general court.

Mr. MOREY, of Boston. I stated, Mr. President, that these seven persons were inhabitants of Dedham, and they were also inhabitants of Walpole-inhabitants of Dedham for one purpose, and inhabitants of Walpole for certain purposes.

[May 12th.

That is the language of the Act. The Act says:— "The said inhabitants hereby set off to Walpole shall continue to be a part of Dedhain for the purpose of electing representatives to the general court." They were a part of Dedham for a certain purpose, and therefore when they were doing that they might well say that they were inhabitants of Dedham. They were set off for other purposes, and while exercising those duties they were inhabitants of Walpole; but I maintain that they were inhabitants of Dedham for the purpose of voting for representatives. Here they were to perform an act, the qualification of which was their being entitled to vote for representatives; and, consequently, for this purpose also they were in fact inhabitants of Dedham.

The motion of Mr. Ladd, of Cambridge, that the Report be recommitted to the Committee on Elections, with instructions to report a vacancy from the town of Walpole, was rejected; and the Report of the Committee was then agreed to.

Petitions Presented and Referred. Mr. SCHOULER, of Boston, presented the petition and memorial of John W. LeBarnes and four hundred other citizens of Boston, asking that the doctrines of no religion shall be established or recommended in the Constitution, and that no religious or ecclesiastical interference with the laws of the State, its official institutions or its public schools, shall be hereafter possible in this Commonwealth; which was referred to the Committee on the Bill of Rights.

Mr. FRENCH, of New Bedford, presented the petition of Francis Jackson and fourteen hundred and seven others, asking to have the word "male" stricken out of the Constitution; which was referred to the Committee on the Qualifications of Voters.

Mr. KEYES, for Abington, presented the petition of Harriet L. Randall and two hundred and three others, women and men of Abington, making the same request, which was referred to the same committee.

Mr. WILSON, of Natick, presented the petition of James B. Allen and other citizens of Boston, for the abolition of imprisonment for debt; which was referred to the Committee on the Bill of Rights.

Orders Adopted.

Upon motion of Mr. DUNCAN, of Williamstown, the Committee on the Qualifications of Voters were instructed to consider the expediency of amending article 9 of chapter 6, by the addition of the following clause: "Provided, however, that for the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the army or navy of the United States, nor while engaged in navigating the waters of this State or of the United States, or of the high seas, nor while a member of any seminary of learning."

Upon motion of Mr. MORTON, of Quincy,

Ordered, That the Messenger be directed to furnish to each member of the Convention a regular file of all the documents which have been or may be printed by order of this body.

Mode of Conducting Elections. Mr. SIMONDS, of Bedford, offered the follow

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ing resolutions, which were referred to the Committee on Elections:

Resolved, That as a rule of proceeding in relation to the election of delegates to the Convention, all questions relating to any informalities in the mode of conducting, or the manner of voting at an election, where the rights of a corporation or an individual are not alleged to have been restrained or controlled in such election, shall be determined by the Convention upon the principles of equity and justice: provided, however, that in cases where fraud or any illegal influences are alleged in the manner of conducting an election, and shall be made to appear, such election shall be deemed to be void.

Resolved, That in order that the rights of all persons and corporations within this Commonwealth may be fully represented, the Secretary is hereby directed to serve a notice of the fact of any vacancy in the delegation of any city, town, district, or place, with an attested copy of these resolutions, upon the proper municipal officers, of such vacancy existing or that may hereafter happen in any city, town, district, or place entitled to a representative or representatives in the general court, that they may take such proceedings in the case as may be deemed expedient.

Vacancy from Berlin.

The Convention proceeded to consider the order of the day, being the order directing the Secretary to notify the town of Berlin that a vacancy exists in consequence of the resignation of Hon. Henry Wilson. The question pending was on the reconsideration of the vote of the Convention adopting the order, which had been moved by Mr. Train, of Framingham.

Mr. TRAIN. Mr. President, perhaps I owe an apology to this Convention for trespassing upon their patience at this time. I had not intended to address the Convention at this stage of its proceedings upon any subject, much less upon this; but, Sir, views have occurred to me with regard to the order offered by the gentleman from Lowell, which were not suggested to my mind at the time the order was introduced. The order, as it stands, appears to me to have some hidden meaning which has not been developed to this body as frankly as I think it ought to be, and I have moved this reconsideration for the purpose of having an opportunity of suggesting my own views, which I hope will be found by other gentlemen worthy of some consideration. I do not wish to be understood as being opposed to sending a notice to the town of Berlin that a vacancy exists here, or as being opposed to requesting them to send a delegate here if they desire to do so; but I must respectfully object to the form of the order as submitted by the gentleman, not only because I think there is no power in the Convention to pass such an order-for as to that I care very little-but because if the Convention pass the order in the form proposed by the gentleman from Lowell, they introduce a doctrine or a principle which, if I understand it, may disfranchise a large portion of the members of the Convention. If that is the object sought by the gentleman from Lowell, or by any other gentleman, I desire to have it attempted in an outspoken way, and not in an equivocal way-in a way that we can all understand, so that we can govern ourselves accordingly.

Now, Sir, I feel in great doubts as to how we hold our seats here. There seems to be a set of gentlemen in the Convention who suppose that this body, to use the language of gentlemen in

debate, is a revolutionary body—that it is not a
Convention constituted under the laws of the
Commonwealth or under the Constitution of the
Commonwealth, but deriving its authority from
the people in a capacity different from that in
which they exercise their ordinary legislative
powers. There seems to be another set of gen-
tlemen who hold that this Convention is a con-
stitutional Convention in the strict signification
of the word—called by law, the members elected
by law, and that we hold our seats here under
the Constitution and laws of the Commonwealth,
and are to act accordingly. Now, Mr. President,
I desire that this question may be decided in some
way, so that I may know where to rank myself,
whether as a revolutionizer or as a constitutional
delegate, before I act in this matter. If I under-
stand the drift of the form now proposed to be
adopted, the Convention, by adopting that form,
will sanction the view of those gentlemen who
hold that we derive our powers from a source dif-
ferent from the source of ordinary legislative
powers, and that consequently our powers are
different from those which we derive from the
Constitution and laws of the land. It is mainly
for this reason that I object to the form in which
the order is submitted by the gentleman from
Lowell. With regard to the arguments which
were advanced by the gentleman from Bos-
ton, and replied to by the member from Lowell
yesterday, I have little to say-I care very little
about that view of the subject. I apprehend that
it is not becoming to a reformer to rely much
upon precedent. Precedents are sometimes use-
ful, but they are generally cited upon those occa-
sions where they are of the least possible use. If
a precedent is applicable, and a matter has been
decided exactly right, it is very well to cite the
precedent; otherwise let it pass. The precedent
set by the constitutional Convention of 1780 is
said to be a precedent which we may safely
adopt; they were acting under law-it was a
Convention properly formed-there was a gov-
ernment existing at that time, and therefore the
precedent is a safe one to follow. We all under-
stand, Mr. President, that there was a govern-
ment at that time, but it was a government of
force, a revolutionary government; and if we sit
here acting as they sat there acting, then the pre-
cedent is all very well; otherwise it amounts to
nothing. But never mind that-I look farther
than that, and I find a provision in this order
that we are to notify the selectmen of Berlin of
the vacancy, and request them to call the electors
of that town together and elect a delegate accord-
ing to the provisions of the second section of the
Act calling this Convention, and send him here
to fill that vacancy. Now, Sir, if we invite the
selectmen of the town of Berlin to do that act, we
invite them, as I understand it, to do an illegal
act; but if we are sitting here as a revolutionary
Convention, we can ask them to do any act we
please, legal or illegal. If, however, we are sit-
ting here as a constitutional Convention, we have
no right to ask them to violate the laws of the
Commonwealth; and if we attempt to take any
action in this matter, we are bound to ask them
to elect a delegate and send him here according
to the laws of the Commonwealth. I do not yet
know, Mr. President, whether gentlemen who
have already been elected to this Convention un-
der the law calling this Convention and under
the Act passed by the legislature at its present

[May 12th.

session, were elected legally or illegally; and I do not want this body to prejudge that question by adopting the form of the order presented by the gentleman from Lowell. This seems to me to be a matter entitled to some consideration. Now, I admire the frankness of the gentleman from Natick, (Mr. Wilson,) who, in the course of the debate, has given us his opinion upon that subject. I hope other gentlemen will do the same thing. Let them walk square up to the mark, and tell me whether, if I was elected by open ballot, under the Act calling this Convention, I am or am not a legal member of this body. If I am not a legal member of this Convention, I claim no seat here; and neither the gentleman from Natick nor any other gentleman has a right to say that they have so much courtesy and so much regard for me and for the people of the Commonwealth who sent me here, that although I have no right here, yet by the will of the majority I may hold a seat in the Convention. I desire, therefore, that the Convention should not adopt this order; it is not a manly way to do it, in my judgment; it is not like the outspoken way which I know my friend from Lowell generally adopts; and I think he would not have drawn it in this form if it had not been for the precedent which he found in the historical record.

Now, Sir, to go over the argument in a few words, I find that the legislative powers of the Commonwealth are derived from the Constitution, and are vested in particular bodies. I find that the constitutional legislative bodies passed a law submitting to the people of the Commonwealth a question to be voted upon by them, and providing that if that question was answered by the people in a certain way, the executive should have a certain duty to perform, and when the executive had performed his duty, the people were to perform another duty. Furthermore, I find that the same legislative power which passed that Act, at a subsequent period passed another Act, which changes the form in which the people were to exercise their rights under the first Act. I claim, Sir, that the legislature had the same power in the one case that they had in the other. I claim, therefore, that that portion of the Act calling the Convention, which provided that delegates should be elected by one particular mode of ballot, had been repealed at the time when the people voted, and thus they were to be elected by one or the other mode, just as the people might choose. In my opinion, either one of these modes of choice is legal; and I desire the Convention, if they wish to settle that question, to have the proposition fairly and distinctly submitted before taking a vote, so that we can vote upon it as a distinct proposition, and not do it indirectly, under cover of an order to the town of Berlin, I do not want to have the selectmen of Berlin obliged to say to the electors when they come to deposit their ballots, "We have received from the constitutional Convention an invitation to elect a delegate in a prescribed mode; we shall follow that mode, and you shall not vote in any other way." In this way you may prevent the electors from voting for or against the delegate by the form of your order. I do not want this question prejudged, as it will be if the form of the order now proposed shall be adopted. What is the language of the Act? If they have to follow the second section of the Act calling this Convention, the selectmen of the towr of Berlin must call their electors together on the

Thursday,]

FORM OF NOTICE TO THE TOWN OF BERLIN. — CHOATE.

first Monday in March, 1853; I do not see precisely how that is to be done, but that is one of the provisions. It is not a consideration of very great weight perhaps, but still it might make some trouble.

Now all I have to say, is this. I believe this to be a constitutional body, and I desire to act manfully and openly, so far as my own course is concerned, and meet every question fairly upon its merits. I am entirely content to send a notice to the town of Berlin, as the Convention voted to do, with a request that they shall send a delegate; but I am utterly opposed to instructing the town of Berlin by any form of notice which may be sent, as to how they shall exercise their right. I have so much confidence in the people of Massachusetts, and in the people of the town of Berlin, as to believe that they will find out how to exercise that right without any order or direction from us. If, therefore, it is the pleasure of the Convention to reconsider the vote adopting this order, I shall move to strike out so much of it as relates to the second section of the Act, and to insert a provision instead, directing them to elect a delegate according to law to represent them in this Convention.

Mr. CHOATE hoped the vote would be reconsidered, remarking, however, that if he did not think that a question was involved which had not yet been precisely apprehended, he should not have risen.

To the dispute, he said, whether we should merely notify to the town of Berlin the existence of a vacancy in its representation here, or convey also a request to fill it, I have nothing to add. Certainly, a simple notification seems to be the proper proceeding. It is decorous, respectful, and convenient; while the objections to a request— to any request-are, first, that it appears to suppose some inertness or disinclination in Berlin to discharge its duties, or exercise its rights,-of which I see no proof,-and, next, that there is, if not something of arrogance, at least a departure from the true position, and a forgetfulness of the true functions, of this body, in thus going abroad to stimulate this or that portion of the community to send delegates hither. Let us assume that the public will do its business, and let us address ourselves to our own. Sir, the instance of the invitation to the towns to cause themselves to be represented in the Convention of 1780, is totally inapplicable to us. There was a difficulty, hard to understand, yet almost insuperable, in engaging the attention of the people to the business of making a Constitution. That was one peculiarity of that time, certainly not belonging to this, or not applying to Berlin. And then, too, does not every one know, that through all that transitional and revolutionary era,-from 1765 to 1787,-it was the practice of every organized public body, -from the Continental Congress down to the Committee of Correspondence,-whatever were its more specific functions, habitually to contribute exhortation to the people, appropriate to the crises of preparing for war; of sustaining it; of recent peace; of constitutional formation; through which they were successively passing? It is among the most interesting and striking facts of that period, that every authorized or considerable organization—whatever else it had to do—deemed itself charged with the duty of pleading, in some form, the great cause of the day. Surely, all such precedents are not fairly pressed on us;

sitting in a time of civil calm; under a strict commission; for a prescribed and defined business.

But, Sir, the difficulty which I find goes far deeper. It is not so much that you request the authorities of Berlin to proceed to another election; but it is that you request them to conduct that election in direct violation of an existing law of this Commonwealth; and that if they follow your advice, they do an act for which-if done wilfully and with knowledge of the facts—they are liable to indictment and a penalty.

See how this matter stands. You request them to conduct the election-that is, to admit or reject votes, according to the provisions of section 2 of the Act of May 7, 1852. By that section, no man can vote by a ballot in an unsealed envelope; and if he tenders such a ballot, it shall not be received, and shall not be counted. You request these authorities, then, to refuse to receive a ballot in an unsealed envelope. Now, Sir, do we not bear in mind, that after the passage of the Act of May 7, 1852, and in March, 1853, the legislature of this Commonwealth-sitting under the Constitution, have by a statute, in due form, and apparently and prima facie, valid—changed all that, and given to every legal voter the option to put his ballot into a sealed envelope or not, as he pleases? Do we not recollect, or do we not recognize, that this statute of March, 1853, applicable, by just construction, to all elections legally holden under the Act of May 7, 1852, secures to every citizen entitled to vote, and preferring to vote as his fathers did, with an open ballot, the right to demand of the authorities of Berlin to permit him to do so; that it thereupon becomes their legal duty to permit him; and that "if they wilfully neglect or refuse to perform that duty, they shall forfeit a sum not exceeding two hundred dollars?" Such fine is recoverable by indictment in a court of law; and I think that I know that to such an indictment, in such a court, no request of this Convention will be a defence. I see eminent members of the legal profession about me, and I ask them if they could plead it in bar, or give it in proof?

Now I have much doubt whether this Convention will choose to begin the great work, for which they are called together, by such an act as this. Are we quite ready to auspicate this business of revising the fundamental law, by annulling a provision of the very law-now in full force-under which we were elected, and do assemble? Let me appeal to gentlemen to whom we are so much indebted for profound research of precedents, if they have happened to find a precedent for this? Learned as they have become in the history of our constitutional liberty, will they refer me to a case where such a convention has ever set the people an example of departing from an existing law, made expressly by the existing government, to regulate elections to the Convention? We hear a great deal about the Convention of 1780. Did that body do such a thing? No, Sir. The law that called those predecessors of ours together ordained that every citizen of twenty-one years of age should have the privilege of voting for delegates. Do you find in their journals, so copiously cited here, that they requested the authorities of towns, or of any one town, to receive the votes of citizens of nineteen years of age, or to reject votes of those below twenty-five? No, indeed. That were a precedent; but there is none such. Will you make one? To me it

[May 12th.

seems to concern our honor, our duty, our means of useful service, far too deeply to be hazarded without the most calm and careful consideration.

And now on what ground is the order which has been passed defended? It can be so only, of course, upon one of these two-either that the law of March, 1853, is wholly void, so far as relates to the mode of voting for delegates to this Convention-because the legislature had no constitutional power to enact it; or else that, although it is admitted to be a valid law, and one which can be enforced as such in a court of justice, this Convention, by virtue of some transcendent power, may, for its own action at least, annul it.

Of each of these a word in their order.

And, first, why is not the law of March, 1853, a valid law? I do not ask if it was expedient to pass it. Of the merits or demerits of the rira roce vote, or of the vote in the sealed envelope, or of the open ballot, this is no time to say anything. But on the validity of this law of March, as a mere legal question, examined judicially, I ask the members of this Convention-men of honor and of character--not undesirous, if this venerable and prized instrument requires it, to connect their own fame with a temperate and statesmanlike revisal of its provisions, which shall be approved of the people-I ask them if they can bring themselves to a real doubt?

Sir, an obvious argument seems to me to dispose of the matter. Assuming that the legislature which, by the Act of May 7, 1852, ordained that the sealed envelope should be used in voting for delegates to the Convention, had power under the Constitution to make such a provision—as in my judgment it is perfectly clear they had, and which nobody here yet has called in questionthen the legislature which sat in March, 1853, had power to modify that provision, if the Constitution which existed in May, 1852, existed without change in March, 1853. A legislature possesses at any moment exactly the powers which the then existing Constitution gives it, or allows to it, nor less, nor more. While the Constitution remains the same, the power of the legislature over subjects of public concernment remains the same. If one legislature may constitutionally prescribe the use of one kind of ballot for a future election, a subsequent legislature, at any time before such election, may prescribe the use of a different kind of ballot, if the whole, and every part of the Constitution continues all the while unchanged. Where did the legislature of May, 1852, find the power to require sealed envelopes in elections to this Convention? Why in the Constitution, to be sure, which empowers the general court to pass all manner of laws deemed by it good and wholesome. The moment a Convention becomes authoritatively called, whether under our system the legislature can call one or not, then-in the absence at least, of a mode of voting prescribed by some other sovereign power, the power of the legislature to make good and wholesome auxiliary regulations touching times and places and modes of voting, the place of the sitting of the Convention, and the like, attaches; and is quickened into activity, and continues perfect—at least till the elections are consummated. Such exactly was the situation of the legislature of May, 1852. A Convention was expected to come, and now has come, rightfully into being. Thereupon the legislature of the

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Commonwealth, on the actual facts, became clothed with the power, under the Constitution, of regulating, among other things, the mode of balloting for members. It made a regulation accordingly. But the legislature of March, 1853, had just the same power-the elections being still future-to change that regulation which its predecessor had to make it, if the Constitution of 1853 remained the same, and all its parts the same, with the Constitution of 1852. It had just as much power to do so, as it would have had to alter, and, in its judgment, amend, a law passed by the legislature of 1852 to prevent riots, or outrages on voters, at the meetings for the choice of delegates.

Unless, then, you can show me that between the 7th of May, 1852, and March, 1853, the Constitution had become altered, you cannot show me that the legislature of 1853, had not the same power to deal with, and alter, and make provisions auxiliary to, and regulative of, the approaching elections, which their predecessors had of the year before. But, will any gentleman say the Constitution had thus become altered? Will any body say that it was changed in the slightest degree between the time when the first ballot law was passed, and the time when the second ballot law was passed? Why, what happened in the meantime? Nothing but this; that a majority of the people had answered affirmatively to the question whether "it was expedient that delegates should be chosen to meet in Convention for the purpose of revising or altering the Constitution"-and that thereupon-upon the hypothesis in advance that such should be the answer of the people-the legislature had, as a legislature, entered on its duty of providing for the times, places and modes of choosing delegates; and the place of the sitting of the Convention. That was all. But did this change the Constitution? Will you say that a vote by the people in favor of convoking a Convention to consider whether any, and what changes shall be made in the Constitution-and a law of the legislature making certain regulative details for getting such a Convention together, do of themselves, work any change? We know better; and therefore I repeat, if the legislature of 1852, had the constitutional power to prescribe the sealed envelope for the elections to Convention, the legislature of 1853, sitting under the same Constitution, had the power to authorize the unsealed envelope.

This course of reasoning I know will not satisfy some gentlemen. They will deny to the legislature of 1853 the power to modify the provision concerning the sealing of envelopes, contained in the Act of 1852, upon another ground. They say, as I collect--not so much from what has yet been said here, though partly from that, as from what has been said elsewhere-not that the Constitution has been changed at all; but that the law of 1852-I mean this portion of it touching the ballot, I speak to no other portion-was a very remarkable sort of law; so remarkable that a subsequent legislature could not repeal or modify that particular provision. How they put this, it is not very easy to conjecture; but the idea seems to be that in the making of that law-and of this precise part of it relating to envelopesour masters, the people, intervened, an united their workmanship, to some extent, with the workmanship of the legislature, so as somehow to embody herein a double and auxiliar labor; that

of the legislature to endow with form; that of the people to inspire with immortality, or irrepealability at the very least; or if not so, that it is wholly the people's law, and there is an end of it.

Now, Sir, is there not in all this a most mischievous confusion of ideas, and a most extraordinary misapprehension of fact? Waiving for a moment all question of the power of the people, under the existing Constitution, to pass a law about scaled envelopes, having character as law, either in participation with the legislature or in town meeting ;—waiving that for the present, it is enough to say, speaking to the mere historical fact, that it is not true-it is wholly untrue-that the people have assumed to do anything so unprecedented as to enact a statute, or make a law, or in any obligatory form or manner whatever to order, decree, or determine anything concerning sealed envelopes at elections to the Convention, or which impaired the power of the legislature over the subject in the least degree.

Well, what is the historical fact, without exaggeration and without confusion of thought? Observe, Sir, the question is not whether public · opinion approved or demanded that part of the law of 1852 which prescribed sealed envelopes. The question is not whether it was popular or unpopular. The question is, Who made it? If it was the legislature, then it was left repealable like all other legislation. If it was the people, at least let it be demonstrated. Let us be shown some plain and grave declaration, issued in their name, assuming to speak in their person, at least as formal as a statute, rather in the more authoritative and impressive guise of a constitution-to the effect that "We, the people of Massachusetts, do ordain scaled envelopes for the elections to the Convention." Show us this, before you tell us of a law made by the people, lest you remind us of the old tyranny which hung the edict in the air out of sight and then punished its violation with blood.

Turn, then, to the historical fact. What did the people, in point of fact, do, in regard to this point of the law of 1852? Was it not exactly this? The legislature caused to be presented to them, according to the forms of law, the question for substance, whether they deemed it expedient that a Convention should be called to consider of revising the Constitution. They answered yes; and there they rested. I repeat it, Sir, standing on the indisputable historical fact, there they rested. Did they not? Did they rush together on Boston Common; did they rally in mass meeting on the banks of the Connecticut-among the steeps of Berkshire-on the sea side-in their primary and natural capacity-or in any capacity, or any how, to carry into effect the vote they had given in favor of a Convention? You know they did no such thing. To the question propounded to them they said, yes; and they paused right there. They never did another act of any kind whatever touching this subject, till last March, when they voted for delegates. If they did, show it. Do not talk about it. Show it! show it! There is none, Sir.

We hear it said, that the response of the people to the question provided to be put to them under the law of 1852, must be considered as an approval of all the details of legislation found in that law. But there are two answers to this. In the first place, we all perfectly well know, that the question propounded to them was intentionally

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and wisely confined with care to the naked proposition of Convention or no Convention. Suppose that when the Act of 1852 was under consideration of the legislature, some friend or some enemy of the call, had suggested this: let us put the question broadly to the people · are you in favor of electing delegates to a Convention by unsealed envelopes? Would not the answer of every fair man have been-no-that complicates and embarrasses the thing: it may deter many from voting for a Convention, because they oppose such a ballot; or it may induce many to vote for one which they do not care for, because it is coupled with a ballot to which their party is committed; let us devise an interrogatory so framed as to bring out nothing but the single will and wish of the people, for or against the Convention itself? Was not this the actual history of the question propounded—a form agreed on by every body, to confine the mind of the people to a specific point? It is put accordingly; is exactly and directly responded to;-and then gentlemen exclaim-O! the answer is a thousand times broader than the only question they dared to put! Is this quite fair dealing with the people?

Besides, Sir, suppose gentlemen are right in conjecturing that the people approved the use of the scaled envelope in the election to the Convention. Suppose you may infer it from their answering yes to a question which studiously shunned all allusion to the subject whatever. Do you get any nearer to your statute made by the people? Does not the Act of May, 1852, turn out, after all—and in the best way you can put it—just exactly a statute made by the legislature,—and approved, or supposed to be approved - by public opinion? Does it begin or end with " We, the People, do this-or that?" Not so-but in the old form : "Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same"-sheer and mere mortal, and repealable legislation in this provision at least-like all its companions in the statute book

I repeat it, then: the historical fact is, that the people expressed themselves in favor of a Convention, and there they paused. What does that pause imply? This exactly-that they thereupon leave it to their actual legislature, under the existing Constitution, to go on, in its own way, on its own responsibility, and to make a law or laws, by which the popular vote for a Convention may be carried out. Under that repose, under that inaction of the people, after that manifestation of their will in that general form, it became a matter for mere law in its ordinary course, to devise and enact details; and thereupon the legislature made a law of details; amendable like any other law by another legislature; their successors amended it, and under the law thus amended we are here to-day.

So much for the historical fact. It is not true that this part of the Act of 1852 is a statute enacted by the people, alone, or in participation with the legislature, and it is not true, therefore, that for this cause it was incapable of repeal.

Sir, let me say, in a somewhat broader view, passing from the historical fact, and the immediate subject, that I have no faculties to apprehend what in the world is meant by the people making a law. What a popular law is, we all know. We know what an unpopular law is. We know too, very well, what is meant by the legislature

Friday,]

FORM OF NOTICE TO THE TOWN OF BERLIN. — CHOATE.

as a Convention, or by a Convention proper, proposing amendments of the Constitution to the people, and their adoption of them.

But when gentlemen talk of the people making a law, under the Constitution as it is; without change of the Constitution; or of uniting with the legislature to make a law which is irrepealable, I am completely mystified. The Constitution knows nothing of such a thing as this. The Constitution knows no way in which the people can take a power from the legislature, but by acting directly on the Constitution itself, and amending it. It knows nothing about enactments, or decrees, or ordinances of any body, half way between the constitution and the law; neither one nor the other; in form mere statute-in effect omnipotent and irrepealable. It knows nothing of a partnership in law making, between the people and the legislature; and it is, (permit me to say,) a disparaging idolatry, and not a true religion, which thus confounds creature and creator, and destroys the identity, and misunderstands the functions, of both.

Sir, that same Bill of Rights, which so solicitously separates executive, judicial, and legislative powers from each other, "to the end,"-in the fine and noble expression of Harrington, borrowed from the "ancient prudence "— one of those historical phrases of the old glorious school of liberty of which this Bill of Rights is so fulland which phrases I entreat the good taste of my accomplished friends in my eye, to whom it is committed, to spare in their very rust, as they would spare the general English of the Bible"to the end it may be a government of laws, and not of men;" that same Bill of Rights separates the people, with the same solicitude, and for the same reason, from every part of their actual government" to the end it may be a government of laws and not of men." And what functions does it reserve or assign to the people? It makes them creators of legislatures; but not themselves a legislature. It leaves to them to make and unmake the frame of government; to establish, define, and reconstruct its great departments, and clothe them with their several powers; to elect to office; to remove from office; to set and keep the whole stupendous agency in motion. And this done, the people repose on their sovereignty, and supervise their servants each in their several sphere of political employment. They are constituted, and they remain, the fountain, the source, of all power; they dispense honor and shame; they create the public opinion which is arbitress of the State. But a legislature they are not; and the only modes known to our system by which they can or do, or ever assumed, or sought to act, on the legislature, are either by petition, remonstrance or instruction, or by changing directly that Constitution itself, under which the legislature exists, and has its allotment of being, and of work.

I dare not pause to read and collate all the parts of the Constitution which afford demonstration of this general doctrine, and it is needless to

do so.

Recall one sentence. "In fine the people of this Commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent." No one of the people is controllable Does the "constitutional by any other law.

representative body," this day, give its consent to a law compelling the citizen to put his vote into a

sealed envelope, or does it withhold its consent by a repeal of it: If the latter, who or what shall compel him so to vote? And yet you request the authorities of Berlin to do it.

If, then, the Act of March, 18.53, is valid, is constitutional, and must be so held in a court of justice, why tempt this town to violate it?

Do you say that this Convention, by virtue of some transcendent power, and so far as its own action is concerned, may annul the law? I answer, first, that this will afford no protection to the selectmen of Berlin. But I have another answer. I deny that you have a grant of any power so transcendent from any body. If you have it, will you permit it to be inspected? I crare oyer of the deed, Mr. President, and ask that it may be read to me!

Do gentlemen appreciate the extent to which such a doctrine might conduct? Do they really hold that, if a majority of this body should, for facility and energy of operation, be desirous to become two-thirds, and thereupon yonder eastern gallery of spectators should organize itself and send down a deputation of five and twenty new members, that you could admit them? Yet assuredly you could, if you are controlled by no law of the land regulating the elections of members; and your own mere will is your law in this behalf. It would be but one step farther to adjourn to the tennis court, vote your session permanent, and declare yourselves the Commonwealth of Massachusetts.

The consequences and results of a doctrine, test its soundness. So tested, this claim of a power to make our own law of election, appears extravagant and absurd. It is without a precedent in the history of American constitutional liberty. No convention, called together under a statute of the existing government to revise a constitutionand all American conventions, or all, with scarcely an exception, have been so called-ever yet assumed to nullify the law of election prescribed by the authority which called it together. If you can show that the people have given you the power so to nullify the law, be it so; but I ask again for inspection of the grant. Certainly you may judge of the returns and elections of members. This power, the law of May, 1852, gives you expressly. So may the House of Representatives; but can they admit women, minors, aliens? Can they judge capriciously and arbitrarily; or, must they do so, in good faith; according to the standard prescribed to them by the Constitution and law; and upon their responsibility to a just and wakeful public opinion? Gentlemen say, "the will of the people sent us hither." Exactly. So does that will send up members of the general court. But how did it send us; by what instrumentalities; under what restrictions; with what powers? Have the people broken out into revolution, and placed us in these scats to represent, and embody, and execute their revolution? Nothing like it. They have willed just two things: first, that there shall be a Convention: second, that it shall be called by the legislature; sitting as a legislature, as part of the established government; and that the elections of its members shall be conducted exactly as that legislature shall prescribe in the exercise of its ordinary, unfettered discretion. They willed one of these things just as much as they willed the other; and he who violates the regulation prescribed by the legislature touching the mode of voting, just as

[May 13th.

really disobeys and disappoints the will of the people, which is, that the legislature, as such, shall prescribe the mode, as he who stands out against any Convention, and all Conventions, however elected.

I collect the proof of this double, and equal will of the people, from the fact that when they had responded favorably to the proposal of a Convention, they rested there, thus leaving it, by irresistible implication, to the legislature to carry out that will in its own way, and that then two successive legislatures assumed to make the needful regulations for electing the Convention accordingly, and the people assembled, pursuant to custom, in town meeting, and under those regulations, cast their votes and retired. Did they dream that they were making a revolution all this while? Did they make one without knowing it? Has such a thing happened, and nobody known it? I take it, Sir, that so stupendous a transaction as a revolution, for good or evil, announces its existence pretty unequivocally. If that great sea lifts itself up; and that sky darkens; and that not very imitable thunder rolls, mankind hear it, and see it, I suppose. But look around you on the present, and recent past, of Massachusetts; and say if this calm; this order; this industry; these old fashioned town meetings, presided over by selectmen, according to act of general court-mark the course of that civil tempest which "overturns, and successfully resists the existing public authority; arrests the exercise of the supreme power; introduces by force, or by resort to a primary right of nature, a new, paramount authority, into the rule of the state?"

Assembled then, Sir, according to the will of the people, but a will expressed in strict and precise form of law, let us, in spirit and letter, obey that will. I desire to give to Berlin an opportunity to fill this vacancy. By a just and established construction of the Act of May, 1852, the right to fill it is clear. Early in the discussion I sought an opportunity to express this opinion. But do not request an illegal exercise of a legal right. Let us not begin our work of revising the law of laws, by a breach of law. Great powers have been given to us; we stand in a high trust; an opportunity of usefulnessof honor even-is, by the favor of the people, ours; to have found which one might be willing to live more than one life. Let us use them as not abusing them; for the best good of Massachusetts--for the credit, and for the advancement of constitutional liberty everywhere.

I hope the motion to reconsider will prevail; and that then the order may assume some form which shall reconcile all opinions.

On motion, the Convention adjourned.

FRIDAY, May 13, 1853.

Seats of Members.

Mr. BATES, of Plymouth, submitted a Report that in the seating of members, twelve seats be reserved for members of the Constitutional Convention of 1820, and for aged and infirm members, and that the remainder be distributed by lot. The Report was considered and agreed to.

Orders Submitted and Adopted. On motion by Mr. COLE, of Cheshire,

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