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Ordered, That the Committee on that portion of the Constitution which relates to the General Court be instructed to consider the expediency of so amending the Constitution that no bill or resolve of the Senate and House of Representatives shall have any force as such, until it shall have received a majority of the votes of all the members of both branches of the legislature elected by the people.

On motion by Mr. FRENCH, of New Bedford,

Ordered, That the Committee to whom was referred so much of the Constitution as is contained in the Preamble and Declaration of Rights, be instructed to inquire into the justice of incorporating in that instrument provisions which will effectually secure to all persons on Massachusetts soil their inherent and inalienable rights in all cases whatsoever, except as a punishment for crime, and that they shall not be deprived of those rights without trial by jury, and what is called "due process of law."

On motion by Mr. HATHAWAY, of Freetown,

Ordered, That the Committee to whom was referred so much of the Constitution as is contained in the Bill of Rights, be instructed to consider the expediency of incorporating therein a declaration that in all criminal proceedings for libel, the truth may be given in evidence to the jury; and when it shall appear to the jury that the alleged libel was true, and was published from good motives and justifiable ends, the party shall be acquitted.

On motion by Mr. RICE, of Leverett,

Ordered, That the Committee upon the Senate and the House of Representatives, be instructed to consider the propriety of so amending the Constitution that those bodies shall not be convened over ninety days, under pay of the State, at one time, during which time their compensation shall not exceed $250 per day; and if continued longer, their services shall be gratuitous.

On motion by Mr. EDWARDS, of Southampton,

Ordered, That the Standing Committee on the Organization of the House of Representatives be directed to consider the expediency of so amending the Constitution that each and every incorporated town shall be entitled to at least one representative annually.

On motion by Mr. BRADFORD, of Essex,

Ordered, That the Committee to whom was referred so much of the Constitution as relates to the Office of Governor, be instructed to consider the expediency of so amending the Constitution that every legal citizen shall be eligible to that office.

Ordered, That the Committee to whom was referred so much of the Constitution as relates to the Amendment thereof, be instructed to consider the expediency of so amending the Constitution that the people shall have the right at all times of making a revision of the Constitution by delegates.

On motion by Mr. TRAIN, of Framingham,

Ordered, That the Committee to whom was referred so much of the Constitution as relates to the University of Cambridge, be directed to consider the propriety and expediency of expunging from the Constitution, so much thereof as relates to the University at Cambridge.

On motion by Mr. WALLACE, of Palmer, Ordered, That the Committee to whom was referred so much of the Constitution as relates to

the Judiciary, be instructed to consider the expediency of providing in the Constitution that the judges of the several courts of the Commonwealth shall receive ample salaries; which shall not be diminished during their continuance in office.

On motion by Mr. DUNCAN, of Williamstown,

Ordered, That the Committee to whom was referred so much of the Constitution as relates to the Judiciary, be directed to consider the expediency of so amending the Constitution as to provide for the election of Justices of the Supreme Court, and the Judges of the Court of Common Pleas by the legislature upon joint ballot for the term of seven years, in such order as may be hereafter determined: provided, that no person shall be eligible to, or continue in such office, who shall have passed the age of seventy.

On motion by Mr. BROWN, of Dracut,

Ordered, That the Committee to whom was referred so much of the Constitution as relates to the Encouragement of Literature, be instructed to inquire into the expediency of so amending the Constitution, that the proceeds of the sales of the public lands in the State of Maine, owned by the State, and not now otherwise appropriated, shall be appropriated to the support of common schools.

Report upon the Senate.

Mr. WILSON, from the Committee to whom was referred so much of the Constitution as relates to the Senate, made the following Report; which, on motion by Mr. KNOWLTON, of Worcester, was referred to the Committee of the Whole, and ordered to be printed :—

1. Resolved, That it is expedient to alter and amend the Constitution of this Commonwealth, so that it shall provide that the Senate shall consist of forty members to be elected annually in single districts composed of contiguous territory and of as equal population as is practicable.

2. Resolved, That it is expedient to alter and amend the Constitution of this Commonwealth, so that it shall provide that the meetings for the choice of Senators shall be held on the Tuesday next after the first Monday of November, annually.

3. Resolved, That it is expedient to alter and amend the Constitution of the Commonwealth, so that it shall provide, that the Senate shall have power to adjourn, provided such adjournments do not exceed three days at a time.

4. Resolved, That it is expedient to alter and amend the Constitution of the Commonwealth, so that it shall provide that not less than a majority of the Senate shall constitute a quorum for doing business, but a smaller number may organize, adjourn from day to day, and may compel the attendance of absent members in such manner as the Senate may provide.

5. Resolved, That it is not expedient to alter or amend that part of the Constitution of the Commonwealth which provides that no person shall be capable of being elected as a Senator who has not been an inhabitant of this Commonwealth for the space of five years immediately preceding his election, and which also provides that he shall be at the time of his election, an inhabitant of the district for which he shall be chosen.

6. Resolved, That it is not expedient to alter or amend the provisions of the Constitution of the Commonwealth, which are contained in the eighth article of the third section of the first chapter of the Constitution.

Adjournment to Monday.

Ordered, That when the Convention adjourn to-day, it be to meet on Monday next.

Printing.

[May 13th.

On motion by Mr. LELAND, of Holliston,

Ordered, That the Secretary of the Convention be authorized to employ the present contractors for the legislative printing, to do the printing of the Convention, at the same rate of compensation as is fixed by their contract for legislative printing.

Resolutions.

Mr. GREENE, of Brookfield, submitted the following resolutions, which were referred to the Committee having in charge so much of the Constitution as relates to the Senate:

Resolved, That the Constitution be so amended that the Senate shall consist of forty members, to be elected in the following manner :

Every voter in the Commonwealth, qualified as in the Constitution may be provided, shall have a right to give in his vote annually for one senator, and no more; and no person shall be eligible as senator who is not an inhabitant of the State, and himself qualified to vote for a senator.

Every candidate who shall appear to have received one-fortieth in number of all the votes cast at any annual election for senators, shall be summoned by the governor of the Commonwealth, fourteen days before the first Wednesday in January next succeeding that election, to attend at the State House on the said first Wednesday in January, then and there to take his seat as senator, and the Senate so convened shall be the judge of the election returns and qualifications of its own members.

If at any annual election for senators, less than forty members shall appear to have been chosen by the people, the senators elected shall proceed to fill the vacancies by choosing the requisite number of senators from among the candidates who shall be made eligible by the provisions of the Constitution.

If any senator shall have received from the people, at the time he was chosen, enough votes to elect him two, three, or more times over, he shall be entitled to two, three, or more votes in filling the vacancies in the Senate, in proportion to the number of votes he may have received from the people, but on all other occasions he shall be entitled to one vote only.

Resolved, That the Constitution be so amended that the Senate shall consist of forty members, to be elected in the following manner :

Every voter in the Commonwealth, qualified as in the Constitution may be provided, shall have the right to give in his vote annually for forty senators, all on one ballot, and no person shall be eligible as senator who is not an inhabitant of the State, and himself qualified to vote for senators.

Every candidate who shall be borne the first on the list upon one-fortieth in number of all the ballots cast at any annual election for senators, shall be summoned by the governor of the Commonwealth fourteen days before the first Wednesday in January next succeeding that election, to attend at the State House on the said first Wednesday in January, then and there to take his seat as senator. Whenever any two candidates shall appear to be the first two on two-forticths of all the votes cast, any three to be the first three on three-fortieths, any four on four-fortieths, and so on, the governor shall, in like manner, summon those two, three, four, or greater number of candidates, according to the proportion here stated, to attend and take their seats as senators; and the Senate so convened shall be the judge of the elections, returns and qualifications of its own members.

If at any annual election for senators, less than forty members appear to have been chosen by the people, the senators elected shall proceed to fill the vacancies by choosing the requisite number of senators from among the candidates who shall be made eligible by the provisions of the Constitution.

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Committees appointed.

agree with him that that question was submitted

On Leave of Absence-Messrs. Fay, of Southborough, Fowler, of Danvers, Dean, of Stoneham, Crockett, of Boston, Brown, of Tolland, Adams, of Topsfield, Clark, of Townsend.

On the Pay Roll-Messrs. Livermore, of Cambridge, Ely, of Westfield, Preston, of Boston, Pool, of Abington, Hunt, of Weymouth, Davis, of Methuen, Caruthers, of Salisbury.

On the Order relative to the Plurality Principle -Messrs. Hooper, of Fall River, Osgood, of Northfield, Beebe, of Boston, Hyde, of Sturbridge, Parsons, of Lawrence, Edwards, of Southampton, Davis, of Truro, Winslow, of Windsor, Simonds, of Bedford, Breed, of Lynn, Parker, of Chicopee, Beal, of Scituate, Andrews, of New Salem.

Mr. Lincoln, of Raynham, was substituted upon the Committee on Secretary, Treasurer, &c., in place of Mr. Paine, of Brewster, excused.

Mr. Bird, of Walpole, was substituted upon the Committee on Harvard University in place of Mr. Ward, of Newton, excused.

Notice to Berlin.

On motion by Mr. BUTLER, of Lowell, The Convention proceeded to the consideration of the Orders of the Day, being the order introduced by Mr. Butler, prescribing the form of notice to the town of Berlin of the vacancy in their delegation to the Convention, to which Mr. Bartlett, of Boston, had moved an amend

ment.

Mr. HYDE, of Sturbridge. I do not understand that there is any objection in any quarter of this Convention to the election by the town of Berlin of a delegate to fill the vacancy from that town in this body. The only question before the Convention, as it seems to me, is as to the form of the order. At first view that would seem to be of little importance practically; but upon an examination of the laws connected with this form, it seems to me to be of very great importance, and well to deserve the serious consideration of the Convention. Perhaps, in order to make myself understood, it may be necessary for me to enter a little into the history of the manner of calling the Convention.

An Act of the legislature of 1851, very similar in form and substance to that by which this Convention was called, submitted to the people the question whether it was expedient that there should be a Convention to revise the Constitution of the Commonwealth of Massachusetts. The majority of the people decided that it was not expedient, and, consequently, that law ceased from that time; it became a dead letter, and nothing more was done under it. But the legis lature of 1852 passed another law, substantially the same in form and substance, varying but little in its phraseology, and again submitted the question to the consideration of the voters of the Commonwealth at the annual election, in November, 1852. The people then decided by their votes that it was expedient to call a Convention, and that delegates should be chosen. The gentleman from Boston (Mr. Choate) stated yesterday, in his remarks, that the only question put to the voters last autumn, was, whether it was expedient to choose delegates to meet in Convention to revise and alter the Constitution. I perfectly

him in his limitation of the effect of that vote. Nothing is more simple, or clear, than that the voters meant that a Convention should be called ; but they did not stop there, but intended that the Convention should be called in the way and manner prescribed by the law of 1852. It could have meant nothing less. We cannot suppose that the voters meant that it was their will that a Convention should be called, without any regard to the time, place, or manner, of calling the Convention; for that was all prescribed in the Act of 1852, under which they voted. Its provisions had been promulgated through the State, before the election, for a year and a half. When we take into consideration the similarity of the Act of 1851, voters must have well understood the whole matter when they were called upon to signify their will. When, therefore, they voted that it was expedient to call a Convention to revise the Constitution, that vote must have carried with it a desire that the Convention should be called with regard to the time, place, and manner, indicated in the Act; and that the vote carried with it everything contained in the Act in relation to the manner of voting, the holding of meetings, where they should be called, and where the elections should be held. They expected and intended all these to conform to the Act when they gave that Act their sanction.

But after that vote, in November last, and before the time appointed for the election of delegates to the Convention, another Act was passed by the legislature, at its present session, I think upon the first of March, prescribing a different manner of voting. When the law of 1852 was passed, the law of this Commonwealth prescribed that the votes cast for certain officers should be in sealed envelopes; but on the first of March, 1853, the legislature passed another Act, leaving it optional with the voter to vote by secret or by open ballot. The question then arises-Did that law, passed the first of March, 1853, repeal the law of 1852, which had been ratified by the people in the autumn of that year? I think not. Then what law governed the election of delegates on the first Monday of March last? I say that it was the law of 1852, and that no other law could govern it. It may be asked what law of 1852 was in force at the time of that election in March, concerning the manner of election. I admit that there was no law in force in relation to any other election, save that of delegates to this Convention. The law which passed upon the first of March, leaving it optional with the voter whether to use the secret or the open ballots, applied to all elections, save the election of delegates to this Convention. But that election of delegates which took place on the seventh of March, resulted from the law of 1852, and the mode of election being incorporated in that law, still survived. It prescribed that the clection should be by the closed envelope, that being the mode then established by law, and it could therefore be in no other way. Perhaps gentlemen will say that this law had no more force than any other law of the legislature, and could be repealed by the legislature. But I reply, that it became incorporated for this purpose in the law which was ratified by the people in their vote last November, that it was expedient that a Convention should be called in this Commonwealth in the manner therein prescribed, and

[May 13th.

that the law, thus ratified, could not be repealed by the legislature.

On the first Monday of March, as I said before, two laws were in force in this Commonwealth concerning the manner of voting. The law of the first of March, 1853, was in force for all purposes of voting, save for the election of delegates; and the law of 1852 was in force for the election of delegates. But, Mr. President, perhaps gentlemen may inquire, What has become of the law that was in force on the first Monday of March last? I say that the law of 1852, by which this Convention was called, died on the first Monday of March. At the end of that day it had no vitality, and I will give my reasons to this Convention for thinking so.

The Act of 1852, calling the Convention, prescribed certain preliminary steps. The govern or was to issue his proclamation, calling on the voters of the towns and cities of his Commonwealth to meet in the usual form, and at the usual places of voting, then and there to give in their votes for delegates to this Convention. They did so; and I think they were bound to vote by secret ballot, as the Act of 1852 prescribes. But, Mr. President, that law did not prescribe for the election of delegates at any other time than the first Monday of March. There is no provision in that law authorizing the people to elect delegates at any other time than the 7th of March; and there is no provision in that law authorizing this Convention to fill vacancies of any character.

Now, the 7th of March has passed. On the 7th of March, the election took place. The law prescribes that the delegates elected on that day should meet here in Convention on the first Wednesday of May. The delegates so chosen have met, and the first Wednesday of May has also passed. A vacancy has occurred in the town of Berlin, there being no fault on the part of the inhabitants of that town, for it seems that they wished to be represented by a delegate in this Convention. They have taken all proper and legal steps to be represented. They have chosen a delegate; but he has declined acting as a delegate for the town of Berlin. The question now comes up, Ought the town of Berlin to elect another delegate to this Convention? Upon that point I trust that there is no question; that we are all agreed that they ought. The only question before us, then, is, what is to be the form of the notice or request to be given to the town of Berlin. I think that the form of the order of the gentleman from Lowell (Mr. Butler) is decidedly wrong. I shall feel myself bound to vote for its reconsideration, because it prescribes to the town of Berlin that they shall elect a delegate to take a seat in this Convention, in accordance with all the provisions made in the second section of the Act of 1852. It is very clear, that the second section of that Act prescribes that delegates shall be elected by secret ballot, because the Act says they shall be elected in the same way and manner in which the governor, senators, and representatives to congress are clected. At the time the law of 1852 was passed, no other law was in existence regulating the manner of voting; and that law was confirmed by the people in November, and continued to be the law until the first Monday of March. Then the Act of 1852 makes provision for no other election than that which was held on the first Monday of March. So far as the manner of voting is concerned, and no farther, that

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Act died on the first Monday of March. It could not longer exist, for there was nothing for it to stand upon. If the legislature had not passed the Act of the 1st of March, 1853, that law would have been in force. But they, in their wisdom, saw fit to pass a law, making certain alterations as to the manner of voting; and that law has been in force from that moment for all purposes, save for the election of delegates. The Act of 1852 was passed especially for the day assigned,-the 7th of March,-and it could not extend beyond that time. By an Act passed in 1853, the Act of 1852 is so amended, that voters can vote by secret or by open ballot.

Mr. BUTLER, of Lowell. Will the gentleman allow me to ask him a single question? If the Act of 1853 provides only for the election of the first Monday in March, I would ask him what law is now in force?

Mr. HYDE. I ask the gentleman if that is all the provision of the law. I have looked for it, but have been unable to find it.

[A MEMBER here pointed out the law to Mr. Hyde.]

Mr. HYDE. The wording of the Act referred to, in one sense, may be a little different from what I anticipated. I have never seen the law until this moment, but I still conclude that I am right in my premises, because this law comprises all elections, hereafter-for president, vice-president, senators, representatives to congress, &c. If I am right in the construction I put upon this Act, it covers all the cases that I have enumerated. What is now the law of the Commonwealth with regard to voting? What law will affect the voters of the town of Berlin, in case they see fit to exercise their right to elect another delegate? The law of 1852, as I have said, expired on the 7th day of March, because there is no provision in that law which extends beyond that time. It makes no provision for filling vacancies, and consequently the law of the 1st of March, 1853, must be in force. That, Sir, is my view of the case. Whence arises the importance of this order? As the gentleman from Boston, (Mr. Choate,) observed yesterday, if this order is passed, and the selectmen of Berlin should act under it through mistake, they would render themselves liable to indictment. I do not, however, go into that question, as enough has already been said upon that point. But if the order goes to the town of Berlin in its present form, and the officers of that town should feel, on considering this order, that they must elect a delegate in the manner provided in the 2d section of the Act of 1852, it might lead to confusion, and it might, hereafter, take up much of the time of this Convention. For instance, suppose they should call a meeting in the town of Berlin to choose a delegate to fill this vacancy, and the selectmen should refuse to receive all votes except those cast by secret ballot. Suppose that a majority of the whole number of votes should be for the delegate not declared to be elected, and a remonstrance should be sent in against the one occupying the seat, would not a decision of the question take up much of our time? Now, that we have an opportunity to prevent all mistakes of that kind, we should issue an order or precept to the town of Berlin in an intelligible form, so that the inhabitants may not mistake it. I want it so plain that the selectmen cannot misunderstand it. I do not know that there is any danger, but it is sufficient for my

It

Mr. HUNTINGTON, of Northampton. seems to me, Sir, that we have opened a discussion here, which really has no place upon the question now pending the question of reconsideration. The whole discussion has gone upon the ground that the election takes place on the first Monday of March, and not another time. I take this position: that there is no law by which the vacancy now existing the town of Berlin, can be filled. It is an omitted case, on the part of the present legislature. I would wish those gentlemen who say that, in giving the instructions contemplated by the honorable mover of this order, we are persuading the selectmen of the town of Berlin, to violate the law of the land, to point me to that law. Where is it to be found upon the statute book? I hold in my hand an attested copy of the laws of this session of the legislature, touching the matter of elections. It does not exactly correspond with the copy presented by the gentleman who moved the order. The first section was amended in the House, and I will read it in its amended form :

"All votes and ballots for Governor, Lieutenant-Governor, Senators and Representatives of the Commonwealth, Electors of the President and ́ Vice-President of the United States, and Representatives in Congress; and all votes and ballots to be given in the meetings to be held on the 1st Monday of March in the present year, for the election of Delegates, to be chosen under the provisions of an Act relating to the calling of a Convention of Delegates of the people, for the purposes of revising the Constitution of the Commonwealth, may be deposited in the ballot-box, in a sealed envelope or in an open envelope, at the option of the voter."

This, Sir, is the law. Now I ask of gentlemen -of the District-Attorney, (Mr. Train,) who holds an official position in this Commonwealth, and of the Attorney-General, (Mr. Choate,) how they can maintain an indictment against the selectmen of the town of Berlin, for an offence committed at an election held in the month of May? Let them remember that the Act which it is said may be violated by the selectmen of the town of Berlin, and upon which a bill of indictment is to be framed, says, that the man who votes on the first Monday in March, may deposit his ballot open or sealed, and I ask him how an indictment can be sustained simply upon the ground that an open ballot has been refused in the month of May? The selectmen of the town of Berlin commit no offence against the first section of the Act. They do not attempt to refuse votes given upon the first Monday of March; and then was the time when, if ever, a man had a right to vote for a delegate to this Convention either by open or by sealed ballot. Now, I ask, what other time is there under this Act when a man can deposit a vote either open or scaled for a member to this Convention. There is none, Sir.

Perhaps some gentleman will say, look at the third section of the Act, and you will find that the secret ballot law of 1851, and 1852, is repealed. Does that Act of repeal operate as a re

[May 13th.

peal of the Act calling this Convention? No, Sir.

The Act calling this Convention merely provided that the delegates should be chosen as representatives to the general court were then chosen. The language of the Act is, "as they are now chosen." Now what is the common-sense construction of that? What did the legislature mean when they gave that Act existence? They meant that the election of delegates should be by secret ballot, and they meant nothing else. The gentleman who last spoke, (Mr. Hyde,) says that that Act has discharged itself-that after the first Monday of March, no man could be compelled by that Act to vote by secret ballot. Very well, that we will concede, if you please. Then the position of this Convention is such that we have now no law at all as to the mode of choosing delegates. If the Act of 1852, has discharged itself, and certainly there is no provision in the Act of 1853, which authorizes the selectmen of any town to receive one kind of votes and refuse another kind at elections held in May, to fill vacancies, what is to be done? Perhaps the gentleman will say go back to the Act of 1839. That Act required the open ballot. It did not apply to a delegate to a Convention at all. It only applied to elections for Governor, Lieutenant-Governor, Representatives to the General Court, Representatives to Congress, &c., &c. It did not say one word as to the mode by which the delegates to this Convention should be elected. But go back to that Act and suppose for a moment that it did. The Act of 1853 says that "all other Acts and parts of Acts inconsistent with the provisions of this Act, are hereby repealed." You have, therefore, by the legislature of this Commonwealth repealed the Act of 1839; for that Act provided for open ballots only, and the Act of 1853 provides both for the secret ballot and the open ballot; consequently, the Act of 1839 is inconsistent with the Act of 1853, and cannot regulate the election of delegates. We then see that the Act of 1839 is repealed by the Act of 1853; that the Act of 1852, so far as it related to the election of delegates ceased to exist at the expiration of the 7th day of March, and that there is nothing in this order inconsistent with the Act of 1853. Now, Sir, it is my desire to get light upon this subject, in order that I may be enabled to vote understandingly; and if any gentleman will satisfy me that the selectmen of the town of Berlin, by following the request of this order will subject themselves to indictment, Sir, I, will pause. I live by the law; I stand by the law; and so does every man in Massachusetts. When the gentleman tells me that by the vote I give here, I am influencing the selectmen of Berlin to violate the law of the land, and to subject themselves to an indictment, I pause. I paused, yesterday, while listening to the eloquent remarks of the gentleman from Boston, (Mr. Choate.) When he, Sir, with an intellect fit to adorn any court, any bench, any legislative hall, tells me, if I vote against this order or for its reconsideration, I shall violate the law, I pause. But after the smoke of the battle had cleared off; after the spell which that gentleman's eloquence had thrown around me had disappeared; I looked into the provisions of this Act to see whether an indictment could be maintained against the selectmen of the town of Berlin, and I must say, that I was not able to find that section by which an indictment could be maintained.

Mr. TRAIN, of Framingham. I would in

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quire of the gentleman, if the town meeting to be called in virtue of the request which we send, will be a legal town meeting or not? It legal, I want to know what regulations the selectmen must adopt in regard to the manner of voting.

Mr. HUNTINGTON. I will come to that shortly. I say that an indictment could not be maintained against these selectmen for not receiving an open ballot, because the Act, in that respect, is confined entirely to the election of delegates on the first Monday of March last.

Now I will tell you how I would have the matter arranged. I look at the statute, and I see that there is no provision of law reaching this case. The legislature of 1853 doubtless intended* to do something; what, I know not and care not; but they did not reach this case. They did reach the case of the election on the 7th of March, 1853, and perhaps the gentleman from Boston, (Mr. Choate,) might maintain an indictment against the selectmen for some act committed on that day. But as the framers of that law did not go farther than the election of delegates on the 7th of March last, it does not apply to subsequent elections of delegates. But that seems to be a thing that they did not think of. As the Act passed the Senate, it provided for the vote to be given on the first Monday in March, without saying anything about the character of the meetings to be held on that day. The Judiciary Committee of the House of Representatives amended it so as to make it apply to the meetings for the election of delegates. If there had been an adjourned meeting from the first Monday in March, then that Act would have covered it. But the case before us is not one of that character, but one providing for a new meeting entirely.

The gentleman from Framingham, (Mr. Train,) asks me if the meeting, in pursuance of our request, held in the month of May, would be a legal meeting. I think it would; and why? Because in the absence of the statute law, we resort to the law parliamentary, to certain rights incident to this and every legislative and deliberative body, in relation to such cases as this. How do we stand? There is no statute to reach this case. A vacancy has occurred not in the contemplation of the framers of the law of 1853, or the Act of 1852. A vacancy exists in the town of Berlin, which town has a right to be represented here. What is to be done? What does the law parliamentary say to you? Fill that vacancy. Now, if the selectmen find but a mere request in your communication to them, to fill this vacancy, without any reference to the mode of doing so, what do they do? They look to the law of 1853 and say, this law does not touch a meeting in May, but relates wholly to the meeting to be held on the first Monday in March, at which time they were bound to receive ballots open or scaled. They then go back to the law of 1839 and find that repealed by the law of 1853. They are thus left without chart or compass to guide them. Is it anything but reasonable for the Convention to indicate to them what they are to do? Then all we have to do is to resort to the Act of 1852 calling this Convention, and use the analogy covered by that Act. Can we do a safer thing than to follow the law calling this Convention, take that Act of 1852 for our charter, our constitution? Our constitution there tells us to take the secret ballot, that is, to take the Act which was in force when the law of 1852 was passed. That is the

only guide we can follow, and the closer we adhere to its provisions, the safer, in my opinion, will be our course. If we follow the guide there furnished us, without regard to whether we like the ballot prescribed or not, I do not think the people will complain, and should any question hereafter arise as to the validity of an election on the first Monday in March last, where the selectmen received either the open or the secret ballot, it will be time enough to meet it when it has been presented to us by the Committee on Elections. I am not prepared, for one, to meet that question now. I want to hear from the Committee on that question. I want all the light they can furnish

us.

Now, in the absence of all law, we can take parliamentary usage, and intimate to thetown of Berlin in what manner we should prefer to have a delegate returned to us. That is all that it is proposed to do. And I should want no better case in a court of justice than to defend the selectmen of that town against any indictment brought against them, under the Act of 1853, which, as I read it, does not touch a case of this sort. Therefore, I say, take this question as it stands, and not anticipate anything else. Let us intimate to the town of Berlin what our charter, our constitution intimates to us, and do not let us leap before we come to the stile. When other questions come up, we can then meet them. We have only now to say what shall be done in this emergency which has arisen, and which is provided for by no law, and governed by no law. And inasmuch as every gentleman who opposes this order agrees that the town of Berlin should be represented here, what harm can result from our saying in our capacity as a convention of the people, what would probably be grateful to us,—what our charter prescribes to us? I hope, therefore, the motion to reconsider will not prevail.

Mr. GREENE, of Brookfield. I am in favor of the order submitted by the gentleman from Lowell, (Mr. Butler,) and therefore, opposed to the reconsideration. I desire to say a few words in reference to the remarks of the gentleman who has just taken his seat, (Mr. Huntington.) He has said that if the selectmen of the town of Berlin would render themselves liable to indictment by obeying the order or request of this Convention in this case, he would submit. I listened most attentively to the words of the honorable gentleman from Boston, (Mr. Choate,) yesterday, and the music of his eloquence still lingers upon my car, and however long I may live, I shall always rejoice that I have once had the high gratification and pleasure of listening to his voice. I suppose that in the matter of law his authority is great. I am no lawyer myself, and am satisfied to abide by his opinion. He says that the law of 1853 is as valid as was the law of 1852, and he declares that, should the selectmen of Berlin refuse to receive an open ballot, no matter what may be the request of this Convention, they would be indictable and punishable in any court of justice. Now, I grant that that is correct. I submit to the higher authority of men learned in the law. But if that be correct, we must recollect that there are other things in this world besides law; there is such a thing as logic. If that be correct, it follows logically that it is possible for the legislature of the Commonwealth of Massachusetts, by law, to prevent its sovereign, the people, from exercising

[May 13th.

their inalienable right of totally altering the form of government of this Commonwealth. If we turn to the Bill of Rights-and the gentleman from Boston, (Mr. Choate,) craved øyer of the deed in regard to a question very nearly related to this-we shall find a passage which I think will serve as oyer of the deed. Whenever the great objects of the inst tution of government are not obtained, the people have a right to alter that government and take all measures necessary to their safety, prosperity and happiness. In the words of the Bill of Rights:

"Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men; therefore, the people alone have an incontestible, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same when their protection, safety, prosperity and happiness require it."

Now, I respectfully submit, that if, when the people of this State decided to call a Convention of this Commonwealth, to meet at a specified time, the legislature had a right to make the law which the present legislature has made, then it could also pass a law requiring property qualifications and a thousand other qualifications; so that the power of the legislature would, in that particular, transcend the power of the sovereign people. It seems to me that I recognize in this principle that which is known in the philosophy of politics as absolutism. It is the doctrine against which Martin Luther organized the insurrection of human thought; it is the doctrine against which the cannon of Oliver Cromwell thundered; it is the doctrine to resist which oceans of blood where shed in the revolution in this country, in the French revolution, and in the other revolutions upon the continent of Europe. It is the doctrine of the Czar of Russia, and of the boy Nero of Austria, who have overwhelmed under mountains of tyranny and oppression, the great Titans of European Democracy. So that, at this day, the Eastern continent is, as it were, a smothered but smoking volcano, beneath the surface of which are smouldering those fires of liberty which have blazed forth so brightly in this country for the enlightenment of nations.

If the doctrine I contend for is correct, the legislature of Massachusetts had no right to submit the law to the people providing for our assembling here, because all our institutions are based upon the right of revolution and no other right. I would say that the right of the revolution in this country implies its peaceable exercise. The right of revolution is one thing, the power and the exercise of that right is another. It is not necessary, in order that there be a revolution, that there should be blood shed, powder burnt, and other attendants of war displayed. A revolution may take place peaceably, and if the right is once recognized in a country, it should take place peaceably, because in the recognition of that right, is also the recognition of the duty of obedience upon the part of the government. Now, if the people of this Commonwealth are sovereign; if they have those powers which it is stated in the Bill of Rights they do possess, then it is the duty of the government to render obedience to the people whenever they express their sovereign will. Therefore, I affirm that the legislature of this Commonwealth, in the Act which it passed, was guilty of treason against

the people of this Commonwealth. I am not disposed to mince words. I speak plainly, as I believe.

An honorable member the other day said that there were no parties in this Convention. I was glad to hear it. But, since then, I have become convinced that there are two parties here; one in favor of reviving ideas and principles which are dead or dying, and which, in my humble opinion, ought to die; the other in favor of the liberty of the people. And I thank God that I am able to stand up here on the people's side, and against all arrangement of power by which the organized government can act above and beyond the rights of the people, and prevent them from exercising the power which they derive from the Almighty, and which are placed in the Bill of Rights, not for the purpose of guaranteeing them to the people, but to certify that they are recognized to that extent. They are put in the Bill of Rights because they are true, not true merely because they are placed there. I can conceive of no logical grounds upon which sovereignty can be placed in the hands of the legislature at the present time. The sovereignty is in the hands of the people, and all the departments of the government, including the legislative, executive and judicial, are but the creatures of the people. And an attempt like that made by our legislature this year to over-ride the will of the people, is the highest of all crimes, an insurrection of the creature against the creator.

This I conceive to be a solemn occasion for us all. If the selectmen of Berlin are liable to prosecution and punishment for complying with the request we make of them, then our liberties are gone. It behooves us, as the only body that is capable of doing anything to protect the rights of the people, to move rapidly in the matter. If the selectmen of Berlin are thus liable to punishment, then are we also liable, as being the instruments of the people in carrying out their essential, natural and inalienable rights. There is at this time, I fear, a conflict among us which I had supposed did not exist here, which I had supposed never could exist in this Commonwealth; a conflict between the people and its government. Now the Constitution was framed to protect the people against the government; not to protect the government, for that is strong in itself; but to protect the people. Yet we find by the argument presented to us here that that instrument is not sufficiently efficacious; that at this time, it is threatened to put the government in operation in order to oppress the people and take from them those rights which inhere in them by their very

nature.

These considerations prove conclusively to my mind that this Convention does possess all the powers claimed for it, for such powers are necessary to enable it to guard the people's rights. If this Convention, thus assembled, have not the power to do all that is necessary to enable the people peaceably to revolutionize their government, and if they will to totally change it; if we have not the power to prevent any legislature from passing a law to constrain the people's will, then the people are not sovereign. I, therefore, respectfully submit, that all the powers claimed by the order of the gentleman from Lowell, (Mr. Butler,) do inhere in this Convention, because those powers are necessary in order that the rights of the people may be protected.

On motion by Mr. ABBOTT, of Lowell, the subject under consideration was laid upon the table, for a time, in order to present a report.

Vacancy in the Boston Delegation.

Mr. ABBOTT, of Lowell, from the Committee to whom was referred the order of May 7, instructing them to inquire if any vacancy existed in the Boston delegation, reported that the Committee had attended to that duty, and from an examination of the letter of Henry B. Rogers, a delegate elected from Boston, to the Hon. William Appleton, a delegate from the same city, the Committee are satisfied that the said Henry B. Rogers intended to decline serving in this Convention. They, therefore, report that a vacancy does exist in the delegation from the city of Boston, and recommend that notice of such vacancy be given to the authorities of said city, in such form as the Convention may determine.

No objection being made, the Convention then proceeded to consider the above Report, and the question being taken, it was agreed to.

Assignment of Seats.

Mr. BATES, of Plymouth, submitted the following::

Ordered, That a Committee be appointed to proceed, with the Messenger, to draw the scats of members of this Convention, immediately after the adjournment this afternoon.

Mr. THOMPSON, of Charlestown.

noon.

I move

to amend the order so that the seats can be drawn when members enter this hall on Monday afterThe session of this afternoon will probably be protracted to so great a length, as to leave no time for the drawing of seats, and it will be more convenient for the drawing to take place on Monday afternoon.

Mr. BATES. I should like to inquire of the gentleman from Charlestown, if, should his amendment be adopted, the committee to be appointed are to be constantly in session until all the members have drawn their seats? I have submitted this order, at the suggestion of the Messenger of this Convention, who is also Sergeant-at-Arms of the House of Representatives, which body is still in session, as being the most convenient to the committee and to the members.

Mr. THOMPSON. I have only to remark, that I do not contemplate, by my amendment, to have this committee constantly in session until all the seats are drawn. If this time is given, then the seats can be drawn at any time, at the convenience of the members, through the Messenger to this body. Such is the course, I believe, which is pursued by the House of Representatives, and all confusion and inconvenience are thereby avoided.

Mr. GOOCH, of Melrose. I supposed that the committee were to draw seats for members, and that each member would take the seat thus assigned to him.

The PRESIDENT. By the order of May 10th, a Committee was appointed, to act in connection with the Messenger, and assign seats to the members of the Convention.

Mr. HOOPER, of Fall River, moved that the order be referred to that Committee, which was agreed to.

Vacancy from Berlin.

On motion by Mr. CHURCHILL, of Milton,

HALLETT.

[May 13th.

the Convention proceeded to the consideration of 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. HALLETT, for Wilbraham. Mr. President, I desire to submit a few suggestions to the Convention upon the subject before them, which, to my mind, is one of the highest importance, although it has so unexpectedly been sprung upon this body at this early stage of its proceedings. I should greatly have preferred to have met the question at a period of time when we were more deliberately engaged in the consideration of those principles which we have come here to settle, in passing upon the amendments to the Constitution; but I am not sure that it is not as well that we should find out in the outset where we stand with regard to the fundamental principles upon which we are to reconstruct our Constitution; and this issue my very able friend from Boston, (Mr. Choate,) has seen fit to raise before the Convention.

Now, Sir, I have no doubt at all that there are two points of view, very different in themselves, from which gentlemen equally entitled to respect and consideration for their opinions touching the Constitution, will view this broad issue which is now raised; and this is, as I think, clearly shown, as to what right the people have to intermeddle with the formation at first, or with the alteration after it is formed, of the Constitution; whether, in fact, the sovereignty exists in the people or in the legislature. If that is the issue which the gentleman intends to bring up, I suppose that from the point of view at which he stands, and the one at which I stand, we should regard it differently. While we start with the same fundamental doctrine of popular sovereignty, admitted in the abstract, we shall very soon diverge when we come to its application. As applied to the present question before the Convention, viz., the motion to reconsider the vote adopting the order or request to be sent to the town of Berlin to fill a vacancy, I do not see that it is of so much importance whether that motion is reconsidered, as it is upon what grounds it may be reconsidered. If we reconsider

upon the ground that the power of this Convention to order or direct a town to fill a vacancy in this body, is doubtful, then I am not sure but that I may go with the gentleman from Boston in the reconsideration; but if it is to be reconsidered upon the ground that the legislature of 1853, had a right to alter or amend the Act of the people in 1852, calling this Convention, then I should hope that no man who regards himself as entitled to a seat in this body would consent to a reconsideration. It, therefore, becomes important to determine upon what ground the vote shall be reconsidered.

Speaking strictly with reference to the authority under which this Convention is assembled, I confess that I have great doubts whether the Convention has power to send to any town an order or a direction in the form of law, calling upon them to send a member to this Convention. It was for that reason that I suggested, when this order was first introduced, some days ago, that there should be referred to the same committee the general subject of filling vacancies in all un