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that the acts of this government, performed within the scope of the legitimate authority bestowed upon them by the Constitution, and by proper and legal laws under that Constitution, are the acts of the people themselves,

I recollect of having heard many years ago, an anecdote of an officer under the old constitution

of 1779 and 1780, which is so illustrative of my meaning that I beg leave to relate it to the Convention. The occurrence which I shall relate took place about the time that Constitution was adopted by the people, at a time when an officer of the Commonwealth was considered a little above par. A constable, in one of the interior towns, having occasion to serve a process, got into a controversy with the party to be affected thereby, which led, as controversies are apt to do, to a little angry feeling between them. The feeling ran high and led to considerable excitement. At last the party upon whom the process was about to be served threatened, in his excitement, that he would shake the constable. "What, Sir?" cried the indignant official, "Shake me? I would have you know that when you shake me, you shake the Commonwealth of Massachusetts.” [Laughter.] I relate this anecdote to show the feeling which existed at that day upon the part of one who held, what at this time may be considered, rather an humble office. The reply of that constable rightly considered, embodies a profound constitutional truth. It is true that whenever any one unlawfully undertakes to resist an officer of the law in the exercise of his duty, in the words of the anecdote to shake that officer, he does shake the Commonwealth of Massachusetts; for that individual, however humble may be the office which he holds, represents, so far as his duty is concerned, the authority of the Commonwealth, represents the people of the Commonwealth, is doing their act, is their agent; and when he is resisted, the authority of the Commonwealth, the people of the Commonwealth, are resisted. I give this as an illustration of the nature of the government under which we live, and to show that when rightly and constitutionally exercised, it does not possess a character of antagonism to the interests, the rights and the liberties of the people of this Commonwealth.

Mr. GREENE, of Brookfield. I desire, should the gentleman from Cambridge, (Mr. Parker,) think it proper, that he may review my argument thoroughly. For that reason I beg leave to interrupt him for the purpose of stating that when I used the word "government" the other day, I meant not that ideal, that abstract thing, which is the government of this Commonwealth, but the existing government, the present legislature of this Commonwealth, which I charged, if I recollect rightly, of having been guilty of an outrage against the sovereign people. I confess that the government of Massachusetts, as provided for by the Constitution, is all that the gentleman declares to be. I agree with him in reverencing that government; there is no issue between us But I desire him to understand upon that point. exactly what I meant, and that was, the legislature of this Commonwealth now in session.

Mr. PARKER. I am bound to accept the explanation of the gentleman from Brookfield, (Mr. Greene,) and I am happy to learn that his proposition is different from what I Lefore understood it to be, and what I still think, from the language he then used, I was authorized to un

May 16th.

to be all that could be desired after the expiration of this term of fifteen years? Did they suppose that if it should be found to be sufficient at the expiration of that term, should the people not desire to revise it then, it would be a Constitution to last through all coming time, and therefore no opportunity should ever be given for afterwards amending and altering it? Was that their idea? I think not. I do not think they were quite so self-sufficient as that. I think they must have contemplated some way in which that Constitution should be revised, even before the expiration of that term of fifteen years, should it be found that it did not provide for the security and welfare of the people in the manner in which they intended it should. I think that at least some gentlemen in the Convention, that framed that instrument must have entertained that opinion, although others might have not, but supposed that they had obtained the congregated wisdom of that day, and their work would last certainly for fifteen years, and if so, it might last forever.

derstand it to be. In relation to the Fm'ted ap- ¦ pared a Constitution which would certainly prove plication which he now gives to his proposition, that depends upon the fact whether the legislature has been guilty of that usurpation which he has charged upon them. That charge should not be made until proof of its correctness can be obtained. If the acts of that legislature have been in accordance with the Constitution, then the gentleman admits what I contend for, that they constitute the will of the people, duly expressed through their agents, and therefore there is no antagonism. Now is that so or not? That charge cannot be made against the legislature until that question is decided. We must not charge the legislature with usurpation until there is ground for the charge, until it can be proved. The gentleman supposes that it has been proved. I deny it. Others here deny it. What is the fact? The true nature of our government that gentleman and myself do not disagree about. The only question between us is as to when that rule of government has been departed from, when the agents have transcended their powers, and departed from their authority derived from the Constitution, so that their act is not the act of the people, but is the unauthorized act of the agents. When you appoint an agent you give him certain powers, and he has a right to execute the commission you have conferred upon him, and his act is your act, so long as he keeps within the limit of the powers you have conferred upon him. If you give him discretionary powers, and authorize him to commit discretionary acts, his act is your act, and his discretion is your discretion, so long as he keeps within the limits of the discretion you have allowed him. Now the question in regard to the present legislature is not a question of expediency but a question of right. If the legislature had the same powers in relation to the act complained of that they had in relation to any and all other legislation, then there was no usurpation in passing it, whatever opinion gentlemen may entertain about the expediency of it.

The people of this Commonwealth undertook, in 1780, to form a Constitution to solve the problem of self-government. I was about to make a remark in relation to that, which after the explanation of the gentleman from Brookfield, it is perhaps not necessary for me to make, going to show that all the acts done under this Constitution by the legislature and the ministers of the law, are the acts of the people of the Commonwealth, so long as their agents and officers keep within the limits of the authority conferred upon them by the Constitution and the laws made according to that Constitution. The legal processes of the courts are in the name of the Commonwealth of Massachusetts, and so executed. This form of self-government, this compact of selfgovernment thus agreed upon, contained an express provision in relation to the amendment and alteration of the Constitution. That provision was, that in the year 1795, fifteen years after its adoption, the people of the Commonwealth, should be called upon to say whether a Convention should be called for the purpose of revising the Constitution. There was no other provision expressly relating to that subject. But was there nothing in that Constitution providing for its amendment, except this provision in relation to the calling of a Convention in 1795? Did the framers of that Constitution really suppose that they had pre

The term of fifteen years passed by without any Convention being called. The Constitution answered its purpose for that length of time, as I admit it might have been well supposed it should have done. From that time forth, that provision in the Constitution became perfectly inoperative by its own limitation, and there was then no provision in terms for any change afterwards. Now if it be true that that provision was the only one in that Constitution sufficient for the purpose of altering it, then there stood a law, like that of the Medes and Persians, unchangeable, unalterable, except by a complete subversion of the government, by the people undertaking to break up the very foundations of the civil liberty that had been laid through the medium of revolution. Was that so? No, Sir. The legislature of 1820, took steps by which amendments could be made to that Constitution. They passed an Act by which -if the people answered "aye" to the question: "Shall a Convention be called to revise the Constitution?" that Constitution could be-not subverted, not overturned-but revised, amended, made to provide for the wants of the people at that time. Was not that a constitutional proceeding? I think it was so considered; no suggestion was then made, that I am aware of, that that was a revolution. No. The Constitution remained in force as before, with the addition of certain articles of amendment which the exigencies of that time required. I believe it has not yet been recorded in the history of Massachusetts, that that was a revolution. What was it then? I am not very fresh in my recollection of the history of that subject, because I had no particular interest in the matter. But if I mistake not, something was said at that time about the necessity of the case, that it was necessary to hold a Convention in order that some measures should be adopted towards amending the Constitutionshould that be found to be expedient. But that was not called revolution. So much of the territory of Massachusetts was gone, that it was doubtless desirable that some action should be taken with regard to a revision of the organic law; but, Sir, I think the Commonwealth of Massachusetts could have got along without it. It would have existed as a sovereign and independent State, if that Convention had not been holden. I do not see such a stringent necessity

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for it, for the State could have existed without it. It was doubtless expedient that it should be done in this way, but it might have been done in some other way, which would have answered. It would have devolved, after all, upon the legislature and the people. But supposing it is put upon the ground of necessity. What constitutes necessity? Suppose any other necessity had existed which in the minds of a majority of the legislators had rendered a revision of the frame of government necessary, they could have said, "we will pass a law and submit the question to the people as to the necessity of a revision of the Constitution." And if the people had said "yes," it could have been done in just the manner in which it was done, just as well as if it were owing to the separation of Maine. And now who could revise that necessity? Who could institute a court of errors upon the subject, and reverse the decision? I should like to know what power there is which would do it. If there is no power, then one necessity is just as good as another; and the ground of necessity will do just as well for any subsequent case.

But, Sir, I do not put the case upon the ground of necessity. I think there is a ground altogether better than that; and I place my position as to the constitutionality of the Convention of 1820 not so much upon the necessity of the case which may perhaps be conceded, as upon the ground that the legislature had the right, under the terms of the Constitution, to pass the law which they did pass, in exactly the manner in which they did pass it. I place it upon the ground that the Constitution authorized them to pass all manner of reasonable and wholesome laws and ordinances; and I ask you, Sir, if that is not broad enough to embrace the action of the legislature in doing what they did? Who shall say it was not a reasonable law and ordinance of the legislature of 1820, that this question should be submitted to the people for them to say whether a Convention should be called? Who will gainsay that? Who will institute a court of errors that will overrule that, and say that it was not a reasonable law, and that it was not necessary? I do not want any better foundation than that for the purpose. It is upon that ground that I maintain the constitutionality of the proceeding of the legislature in 1852. That provision still exists in the Constitution. The legislature have the same power to pass all reasonable laws that they had in 1820, and thus, without putting it upon the ground of necessity, they had the right to pass the Act of 1852. You may put it upon the ground of necessity, if you please; I choose to put it upon the other ground, that it was a reasonable matter-necessity or no necessity-if the legislature thought so, and they were the judges of that-that the question should be submitted to the people whether they would have a revision of their organie law. We have just the same right to hold the present Convention under the Act of 1852, that they had in 1820.

I am aware, Sir, that one of the amendments of the present Constitution is a provision by which alterations may be made in the Constitution without a Convention-by which, not for one period only, but at any period, for all coming time, as long as the Constitution exists, measures may be taken for amending that instrument without submitting the question of a Convention to the people, but that any amendments which are agreed to

by two successive legislatures and adopted by the people shall stand as a part of the Constitution. I am aware that learned gentlemen--gentlemen for whose opinions I am bound to entertain the highest respect-believe and say that this provision having been incorporated into the Constitution, and there being a way therefore, by which the Constitution can be amended, no other course can be adopted; this mode being set down, excludes all other modes. Sir, I do not so understand it; and I say this with all deference to the opinions of those gentlemen, many of whom I know and highly respect. I do not understand that there is anything in the terms of this provision of the Constitution which makes it exclusive-which makes it the sole and only mode in which the provisions of the Constitution are to be amended. I do not understand the principle to be that the mention of one mode excludes all the other modes which would have existed but for the mention of that mode. What is the principle upon this subject. I admit the principle in common law that the designation of one person or one thing in some instances is exclusive of all others; but does that principle apply to this case? That principle applies to all cases where, from the necessity or the nature of the case, it is shown to be the intent that other things should be excluded. If there is but one mode of several to be adopted, and one mode is prescribed, of course that excludes all the others. I may go farther than that. It may be true from the nature of the case, one mode being set down, that no other was intended, or in contemplation; but it is not so in this case. Is not this mode of amending the Constitution, which is prescribed in the Constitution in express terms, perfectly consistent with the other mode, by a Convention of delegates? There is no antagonism between the two modes. The people say by their Constitution, "We will have a convenient mode by which this instrument can be amended without a Convention; and we will therefore embody a provision that the opinion of two successive legislatures that the Constitution ought to be amended, shall be submitted to us for our action without the expense of a Convention." This is all very well; but does it exclude the idea that there is any other mode? Does it exclude the idea that a Convention may be holden, when there is nothing antagonistical between the two modes? By no means. Sir, I do not stand alone in this opinion. I am supported in it by eminent writers on constitutional law. I will read an extract from Mr. Rawle's Treatise on the Constitution, the work of a jurist of well-known reputation, and one whose opinions are entitled to high respect. He says:

"The laws of one legislature may be repealed by another legislature, and the power to repeal them cannot be withheld by the power that enacted them. So the people may, on the same principle, at any time, alter or abolish the Constitution they have framed. This has been frequently and peaceably done by several of these States since 1776. If a particular mode of effecting such alterations has been agreed on, it is most convenient to adhere to it, but it is not exclusively binding."

There is the doctrine laid down distinctly. If a particular mode has been designated by which this may be done, it is convenient to adhere to it, but it is not exclusively binding. It may be do e in other modes; and the mode by which it is to

[May 16th.

be done at the present time is by the action of this Convention. Sir, I may appeal to another authority, if another authority is needed to establish this point. The honorable member for Wilbraham has himself upon a former occasion cited this very passage, in his argument in the great case of Luther es. Borden, and he undertook to maintain himself upon it,-not particularly with regard to the action of the legislature, for the case was different from this in some of its features,-but he evidently regarded it as a good and available proposition. Now, Sir, if it was available there,

I may avail myself of it here, and call this a good and reasonable law under which this Convention is holden, because it will come under the Constitution as one of the modes by which the Constitution may be amended, although there is an express provision that it may be amended in another mode. I do not, then, take the ground assumed by the member for Wilbraham, that the action of the people has established a certain something passed by the legislature, and has given it life, efficacy and vigor, and made a law of it; but I stand upon the ground that the Act itself, when it was originally passed by the legislature of 1852, was a good and valid law under the Constitution, one which the legislature had a right to pass, and that the people were rightfully called upon to give their opinion whether it was expedient or not that a Convention should be called; and that they had a right to make a provision, as they did, that in case the answer should be in the affirmative, certain measures should be adopted for taking the ballots of the people for the election of the delegates. I do not know of any particular virtue which the response of the people gave to the law, beyond that which it had in the outset. It stood as a law before that response was given; it stood as a law for the purpose of procuring that response; it is as good a law thus far as any law upon the statute book. To be sure, it is not in all its provisions to take effect until that response is obtained. The latter part of its provisions are dependent for their efficacy upon that response, whether it shall be in the affirmative or negative; but notwithstanding this, it is a law of the legis lature, which, like any other law, required the officers to obey it, and it might have been accompanied with penalties upon all municipal officers who should refuse to comply with its provisions.

Here is a great difference between my position and that of the learned gentleman for Wilbraham, although he agrees with me that this is a Constitutional Convention, held under law and according to law. If his doctrine be correct, that this is a mere proposition, how can a mere proposition impose any duties upon the town authorities? What authority has the legislature to send to the town officers a proposition requiring them to perform certain acts? Why, Sir, if it was a mere proposition, having no life or efficacy until the response of the people imparted them to it, then if the legislature had imposed any penalties upon those town officers who should refuse to act under it, what authority would they have had to enforce those penalties? This is a government of the people. The town authorities are agents of the people, and they obey the will of the people expressed constitutionally by the legislature. They are bound to obey it; they can be made to obey it by penalties enforcing obedi, nce. But they are not bound to regard an unauthoʻzed proposition which the legislature may choose to

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make to them. The dForence is world-wile, therefore, between something that has no force or effect in its initiation-something that is a mere request or proposal, to which no sanction can be attached, and a law standing like other laws upon the statute book, which the agents of the government are bound to obey, because it is enacted by constitutional authority, the authority which te people have authorized and directed to make it.

Now, on my doctrin, the response of the people gave no force or efficacy to the first part of that law; and it has given no force or clicacy to the latter part of the law, except that according to the provisions of the law, the latter part of it was then to be enforced and carried into effect as law-that is all. If the people had said "no," the latter part of it would have become void; but the people having said "aye," it goes into operation, because it is a law of the legislature. The elections were to be holden because the leislature had provided by law that in that contingency they should be holden; and they were not to be holden under the sanction of the repouse of the people, or to be dependent upon that response, except for the reason that the legislature Lad made them dependent upon that response. The pople have fulalled the conditions which the legislature prescribed, and the Act assumes the character of law; but tre response of the people has not made it a part of the Constitution. The contingency attached to it gave to it no different character from that of any other act upon the statute book. It was passed under the Constitution, and by the legislature, as a legislative act. That act provided for putting a question to the people, and the question was put. The people answered in such a way, that the rest of the act took effect, as an act of the legislature, and not as an act of the people distinct from the legislature; it gave to the act no other character than that which it possessed before as a legislative act.

What is the consequence of this? Just the whole matter in dispute, Sir. I do not understand the honorable member for Wilbraham to maintain that this Act is a part of the Constitution, or that it stands as an amendment to the Constitution; but he says that it is something which the legislature cannot touch, because the people have acted upon the subject. Well, Sir, if I am correct in what I have said; if it stands as a law of the legislature; if it was a law of the legislature in its inception, and is nothing more than a law of the legislature still, notwithstanding, by its terms, it required the answer of the people before the last part of it should take effect, and have any efficacy at all; if it stands, like other laws of the legislature, as a constitutional law, then, Sir, it is in the power of the legislature, just like other laws. The people of this Commonwealth have constituted the legislature their agents, for the purpose of enacting laws, and for the purpose of repealing laws. The legislature, in the exercise of their constitutional authority, may enact, modify, or repeal; they may make and unmake laws to govern the people of the State, because the people have made them their agents duly constituted for that purpose. Upon this ground, Mr. President, I maintain that the legislature had a right, on the 1st of March, 1853, to modify any of the provisions of the law in relation to the election of members to this Convention, not merely in relation to the ballot, but in relation to other matters concerning the mode of

conducting the election, just the same as t' ey 1ad in relation to any other law which they had pass ed. There is no vested right in the matter; it is not a part of the Constitution; neit er is it, as some gentlemen seem to suppose, so a thing midway between the Constitution and common law—— not constitutional law, bee me too low for that, and not a legi-lative enactment, because tho high for that-and therefore somet'ing be'w en the two, which the legislature cannot touch. It is all legislative in its earact r, and is there fore sul feet to the lexislature; like other nets, it may be modined by them at their pleasure. Aye, Sir, I go farther than that. I say it was legally comptat for the legislat are, at the time they m did that law, to have repealed it totally, so far as it stool

[May 16th.

| existence of this Convention. Wat asurance have we that the le islature will not throw t.e w'.ole Commonwealth into confusion, by repealing all existing laws, taking away the powertrom all existing offers, and then going home and leaving the matter there? Why, Sr, the power to repeal the Act of 1852, is not a title of the power of mese' ict which this lenskar possesses, mad may exerése if toy se fit. With such a fora of government as we have seen fit to organiz, it bec me necessary to put the most plenary power into the hands of le. Slative bodies, And wherever power is even to one to act as the agent for motor, it must possarily be a power to do ev las well as to do gol. If te legi latue prefer to esel ew the gool, by casting your cyes over the statute bork, and realing t'a laws

have t constitutional power to repeal the law under which this Convention is assembled. Our s.curity is that the legislature will be bound by tacir oats, by the duty they owe to the Commonwealth, by ter personal character, by every consideration which can cost, to excrcise ther pow r in such a manner as it ought to be exereised. That is assurance enough. We need no

a law upon the statute book, to have put an eal to all further action under it. It mi_`thivebeen ¦ which they may 1 peal at any moment, you will done legally. I do not say thatar volution might i ca e to be stuti d, ot to tink it a monstrous and not have occurred in cons quence of such a pro- | alarming propos ton to assert that the legislature ece ling; that is another thing. I am aware, Sr, that such a disregard of the will of the people might justify a resort to force; but that is another thing. As a law upon the statute book, having the force and vigor of a law upon the statute book, and no more, the legislature have the same power over it which they have over any other law, and they might have repealed it if they had seen fit to do SO. Why did they not do it? Because they ought not to; because it was not proper, under the circumstances, that they should exercise that power, and they exercised their power in a way that they did think proper. I maintain further, Sir, and I am willing to place myself upon the issue, that this Convention sits here to-day under that as a statute law and nothing more; and the legislature being still in session here, may constitutionally and legally put an end to the existence of this Convention as a body assembled under the Constitution and under law, before that session clo-es. [Sensation.]

The proposition seems to have created a sensation; but I do not see any apprehension or alarm, arising from a fear that the legislature will exercise this power. I do not think myself that there is much danger of it. In fact, although I maintain that they have the power, yet, if they should undertake to exercise it, I do not know but I should be inclined to take a little part in a revolution myself. [ [Laughter.] I cannot say that I should be unwilling to take some measures outside of the Constitution, were the legislature to exercise such a power. Still there is no contract; there is nothing binding upon the legislature, nothing irrepealable, although the Convention have met and are in session. I admit that it would be an outrage which no person would for a moment sanction or expect. What I maintain is, that the legislature have the legal, the constitutional power to do it; and gentlemen who maintain that they had a right upon the first of March, 1853, to pass that law in relation to the secret ballot, cannot stop short of this proposition; because there is no standing place between the What security then have we that the legislature will not repeal the law calling this Convention? If this is nothing more than a law which can be repealed at any moment, what assurance have we that we shall not be dispersed, so far as our legal and constitutional existence is concerned? We have just the same assurance that we have in relation to a thousand other things which are as important, perhaps, as the

two.

more.

How is it that the response of the people Las given any validity to this law which it would not have possessed otherwise? In my opinion, the legislature could have passed an Act calling a Convention, without putting the question to the people. It is in their power to pass all reasonable laws, and they are the sole judges of the reasonableness of a law. Under the Constitution of 1780, the question was to be submitted to the people before the Convention was called; and this indicates the sense of the people at that time; but there is nothing in that provision which binds the present legislature. An exigency may occur -it is hardly within the compass of probability to be sure-in which it would be necessary to have a Convention for the purpose of revising the Constitution forthwith. If the legislature believes that their constituents desired it, they could then call a Convention rightfully, without submitting the question to the people. And if such a Convention should meet, and send out its amendments; and if those amendments should be adopted by the people, would they not become a part of our Constitution? Would they not have all the efficacy of any part of the Constitution? Most assuredly they would. If, then, the revision could be accomplished without any response of the people to the Act calling the Convention, how can that response give any efficacy to the Act? How can it be said that the present legislature in undertaking to modify the law in relation to the secret ballot, has gone counter to the will of the people, or has exercised its au thority in a manner which the people did not contemplate, or has outraged the good sense of the people in doing that which the people did not intend that they should do? Was that the fact? Assuredly not.

At the same time that the people said by their votes that it was expedient to hold a Convention, they elected a legislature with power to come here and modify that law. They declared it expedient that this Convention should meet, but at the same time voted for representatives to do their

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will in such amendment of that law as might seem expedient or necessary. It is not to be assumed that this Act which provides that the voter shall use either the open or the secret ballot in the election of members of this Convention, contravenes the will of the people. Gentlemen assume that the people preferred the secret ballot, because they sanctioned the Act of 1852, which contains that provision; but it is not to be forgotten that at the same time they elected another legislature to assemble and to have power to amend the Act, before it should take effect. So that I regard the Act of 1853, as equally valid with that of 1852. If gentlemen can show how it is that the sanction of the people has made the Act of 1852 something different from law and Something different from Constitution, between the two, so that it possesses a character above the law, but under the Constitution, I should like to hear it. I have not been able to find any course of reasoning which would lead me to that result.

But, the honorable member for Wilbraham, (Mr. Hallett,) thinks that in some way, I do not understand precisely how, the response of the people has given to this Act of the legislature, somewhat of a character of sanctity, so that it cannot be touched, and resembles the Constitution in its nature. Let us look at it a moment, and see how it is that a mere proposition becomes a kind of semi-constitutional law by virtue of the response of the people in favor of holding a Convention. The original proposition has no force or effect, but simply asks whether it is expedient that a Convention shall be called. The people say-yes. That gives it the character of a semiconstitutional law. How so. The people have not said in their frame of self-government that whenever proceedings of this kind shall be had, when there shall be propositions submitted to the people by any body, their affirmative action shall make them a kind of semi-constitutional law. How then, do they acquire that character? Is there any virtue in the fact that the proposition emanates from the legislature? Suppose the Board of Education, or the Managers of the Insane Hospital, or if those bodies are not large enough, suppose that a Woman's Rights Convention, should undertake to submit the proposition to the people, whether it is expedient to hold a Convention for the purpose of so amending the Constitution that women may have their rights secured to them in that instrument. Suppose that the town officers should put such an article into their warrants; for they may as well do that upon a proposition from a Woman's Rights Convention as from a legislature, if legislative action does not give it the character of law. Suppose that the people should respond-Yes. Is that constitutional law? I think the honorable member for Wilbraham will not contend for that. Is it something short of that, and above a statute? I think he will hardly assert that. He would want the proposition to come from some other body than either of those which I have mentioned. Perhaps, he might say that if a response came from the people, it would be a good basis for action. But that is not the question. The question is whether there can be a proposition emanating from a body which is not a legislative body, and which, when sanctioned by an affirmative response from the people, assumes a character above the law. If not, then there must be some virtue derived from

the fact that this proposition comes from the legislature.

Then, I inquire, what is the virtue in the fact that this proposition comes from the legislature which makes it different in its character from a proposition emanating from any other body? Is it anything else than that the legislature have the right to pass a law? They certainly have no more right to make propositions than other people. If then, it is true that this Act would not have been valid if it had emanated from any other body than the legislature, according to the gentleman's own doctrine, then it must be because they have a legislative authority which other bodies have not. Then comes the question, what is that authority? It must be the authority to make a legislative proposition. What then is a legislative proposition? I think that brings us to the conclusion that it is nothing but law; for I do not know what else can derive validity only from the legislature.

Mr. HALLETT, (interposing). I find myself agreeing so generally with the premises of my friend, that I am surprised to find us differing in the conclusions. I wish to ask my honorable friend, in relation to the question of a proposition from the legislature, or from any other body than the legislature, whether he maintains that the people can amend the Constitution, or alter or change their form of government without a previous act of the legislature authorizing it; and if they cannot hold a Convention to amend the Constitution without a law of the legislature, where he finds the authority for the legislature to make that law?

Mr. PARKER. Mr. President,-the range to which I am necessarily carried in considering this question is quite broad enough, without my going into Rhode Island. I do not propose to discuss the question of the Rhode Island rebellion, or revolution, or reformation, or Constitutional Convention. What the people may do when they take the initiative and undertake to reform their organic law, and whether such attempts are rebellion or something else, are not matters with which I need concern myself at this time. "Sufficient unto the day is the evil thereof." We may well keep within the bounds of Massachusetts at present, and I need not discuss that question, because the people of Massachusetts have not undertaken so to act. They did not take the initiative. The action of their representatives here was the basis of all they have done, and the people have done nothing else but to sanction their law. They have taken it as a law, and have acted upon it as a law. And their action upon it as a law cannot have given to it any other character than that of a law. So that the question which the learned gentleman has discussed with so much ability-what the people may do has not arisen; but merely the question what they have done, and the character of what they have done.

Mr. HALLETT. A single remark, with the gentleman's permission. I did understand that he had gone into Rhode Island, by raising the question, what would be the effect of a proposition made by any other body than the legislature,— the Woman's Rights Convention, for instance,— and sanctioned by an affirmative response of the people. Now I desire to have the question met in this Convention, whether there is any form for amending the Constitution excepting by a law of

[May 16th.

the legislature, in the opinion of the learned gentleman from Cambridge; because, if he believes that there is a mode of amending the Constitution without a law of the legislature, there is not a particle of difference between him and me.

Mr. PARKER. I have no doubt that the Constitution may be amended; it may be subverted or reconstructed; it may be pulled down, taken to pieces, and put together; and this may be done without a law of the legislature for that purpose. But whether that can be done under the Constitution itself, without any action of a revolutionary character, is a question which I will submit to the gentleman himself to answer, as a question which it is not necessary for me to discuss here, such not being the character of the proceedings in Massachusetts. I put the question whether the gentleman would recognize a Woman's Rights Convention, or any other body, for the purpose of ascertaining how far his principle acts. If his principle goes to that extent, very well; but I did not suppose that he would carry it quite so far. I supposed that he would require as the basis of Constitutional reform, something beyond that, which was either a law of the legislature, or something that could be called the action of the people, and not merely the action of a small body of individuals. It may be that the gentleman's position goes so far as to maintain that a proposition coming from any quarter would be sufficient; but I do not understand him as maintaining that yet. He maintains, however, that the people may take constitutional action aside from the legislature; but that is a side issue into which it is not expedient for me to go in discussing the question before the Conven

tion.

The basis of the action of the people has been the action of the legislature-a proposition of the legislature, if you please-and the response of the people cannot make it anything else than an act of the legislature, or a proposition of the legislature. It has become somewhat common, within a short period, for legislatures to return to the people some portion at least of the responsibility which the people have put upon them, by passing laws in such a form that they will take effect provided the people will them to take effect by their vote. Liquor laws, for instance, which have perhaps been more prominent than any others, but which are not peculiar or distinct from other laws, except in this particular, have frequently been put in that form. If the legislature may do this in relation to one law, it may do it in relation to another. I put the question to members of the Convention: Suppose the legislature should pass a law regulating or prohibiting the sale of liquor, and making it conditional to take effect if the people, at their annual meetings next to be held after the session of the legislature, shall approve the law; and suppose they do approve it, have you got a constitutional law then, such as no subsequent legislature can repeal? The response of the people has given a character to the law. It has affixed its something beyond the law. Is it a part of the Constitution, or beyond the reach of the legislature? I think, Sir, that it would surprise the legislatures who have been in the habit of legislating in that way, to find that they have been doing something which they cannot undo at their pleasure; to find that the response of the people has given it a new character, placing it beyond their control; to find

Tuesday,]

that in their efforts to get rid of responsibility they have got an act which it is beyond their power to modify or repeal, but every provision of which must stand as constitutional law.

I am aware, Sir, that it has recently been decided in New York that such legislation is not valid; that the legislature have no right thus to return the responsibility upon the people, because the people have constructed the government in such a way that it is their duty to pass the laws without submitting them to the people; and that, so far from such laws having the force of constitutional law, or anything beyond ordinary laws, a law constructed in that way and accepted by the people, has no force at all. I approved of that decision heartily. I do not see any difference between one kind of law and another, or one kind of proposition and another, in that respect. For if in one case it may be done, making a proposition more than a law, it may be done in another, and will have the same effect. Let me make another supposition. Suppose that the legislature, in the exercise some day of what they believe to be their reasonable discretion, and their authority to pass wholesome laws, should pass a law by which all the real estate in the Commonwealth should be appraised and divided among the several male inhabitants thereof, or, if you please, including the female inhabitants also; and should provide that this law should be laid before the people, and that the question should be submitted to them whether it would be expedient that it should go into effect; and if the people said "aye," commissioners should be appointed in the several counties to make the appraisal and partition. Suppose the people in answer to that should vote " Aye," would you sanction the principle that this proposition would have the force and effect of constitutional law, so that subsequent legislatures might not modify its provisions, at least in relation to the appointment of commissioners, so far as to provide that they should be elected by the people instead of being appointed by the governor and council? I think not. I think the inhabitants of this Commonwealth would hardly be ready to admit that they had thereby imposed upon themselves by their sanction of that law, a constitutional provision, not to be touched in any of its details. I am aware, Sir, that it may be objected in this case, that this is not in the power of the legislature, nor of the people; that the people hold their estates under something which looks very much like an executed contract; and that they cannot be taken away from one and given to another by any such partition as this; that there is some sort of provision in the Constitution of the United States which would render a law of this kind ineffective.

Then take another supposition. Suppose the legislature of this State should pass a law by which all the property belonging to the State should be sold, and the proceeds devoted to some benevolent object? that the State House in which we are assembled, and all other public property in the control of the legislature and therefore in the control of the people, should thus be sold, and the proceeds given to sustain the cause of Foreign Missions, for example, to the American Board of Commissioners for that purpose; provided the people should assent to it. It may be said that the legislature would transcend their powers to do this. But let us admit that they have the power;

and suppose that the people vote "Aye." Is this irrept alable, so that another legislature could not correct it, and provide that the property should not be disposed of in that way, because the majority had become convinced that it was not for the welfare and good of the people, but that it was in fact an abuse of the power of the majority? Could it not be recalled by legislation, wit out the necessity of a revolution? I think the proposition could hardly be carried to that extent. Where then shall we stop? What is there in the character of this legislation which I have been supposing, to distinguish it from the legislation which is now under consideration ?

I have thus stated, somewhat at length, but as briefly as I could in order to make myself fully understood, the grounds upon which I maintain that this Convention is constitutionally called, that it is here under the law, that it is acting through the law, by the will of the people duly expressed; and that the act of the legislature modifying the manner of voting, is equally as binding upon voters in all elections, as any other law which prescribes the mode and manner of conducting elections.

There is, however, one other subject, which in my anxiety to close my remarks, as it is now the usual hour of adjournment, I had forgotten, but which is one of too much importance to be passed over unnoticed.

The honorable gentleman here gave way to Mr. BIRD, of Walpole, who moved that the orders of the day be laid upon the table, which was agreed

to.

On motion the Convention then adjourned.

TUESDAY, May 17, 1853.

Reports of Committees.

Mr. HOOPER, of Fall River, from the committee to whom was referred the resolution in relation to a plurality law, reported the following:

Resolved, That it is expedient so to amend the Constitution that in all elections the person having the highest number of votes, shall be deemed and declared to be elected.

On motion by Mr. WILSON, the resolution was referred to the Committee of the Whole, and ordered to be printed.

Mr. DAVIS, of Worcester, from the Committee on so much of the Constitution as relates to the office of Governor, reported the following resolutions, which were referred to the Committee of the Whole, and ordered to be printed.

Resolved, That it is expedient, to alter and amend the Constitution, so as to provide that no person except a citizen of the United States, shall be eligible to the office of Governor, nor shall any person be eligible to that office who shall not have attained to the age of thirty years.

Resolved, That it is expedient to alter and amend the Constitution by abolishing the property qualification for Governor.

Resolved, That it is expedient to alter and amend the Constitution, so as to provide for the election of Governor, on the Tuesday next after the first Monday in the month of November, annually.

Resolved, That it is expedient to alter and amend the Constitution so as to provide that in case of the failure of an election of Governor by the people, he shall be elected by the Senate and House of Representatives, by joint ballot.

May 17th.

Order Submitted and Asopted. On motion by Mr. MARVIN, of Winchendon,

Ordered, That the Committee to whom was referred so much of the Constitution as relates to Harvard College, le instructed to inquire into the expe beney of so amending the Constitution as to require that the Board of Overseers of Harvard College shall be hercaiter constituted in accord ance with the 3d article, 1st section, of chapter 5th

of the Constitution of 1820.

Petitions.

Mr. WILSON, of Natick, presented the petition of Thomas Wentworth Higginson, of Worcester, and 219 others, asking that the word "male" be stricken from tae Constitution whereever it occurs, which was received and referred.

Mr. COLE, of Cheshire, presented three several petitions signed by more than 150 persons, citizens of Roxbury and Egremont, in aid of the petition of John W. Le Barnes, which were received and referred to the committee having that subject in charge.

Mr. FRENCH, of New Bedford, pre-ented the petition of Harriot K. Hunt, praying to be allowed to vote or be excused from paying taxes, which was received and referred to the Committee upon so much of the Constitution as relates to the Qualifications of Voters.

Mr. FRENCH also presented a petition from the same, praying that females have the same advantages of education with males, which was received and referred to the Committee upon the Encouragement of Literature.

Orders Adopted.

Mr. DAVIS, of Worcester, submitted an order which was agreed to, directing the Committee having that subject in charge to inquire into the propriety of providing for the rira voce election of all officers, to be elected by either branch of the legislature.

Mr. MASON, of Fitchburg, submitted the following order, which was agreed to.

Ordered, That the Committee on so much of the Con-titution as relates to the Frame of Government and the General Court, consider the expediency of incorporating into that instrument a provision making it incompetent for the legislature to refer to the people for their approval or ratification, any legislative act other than such as have reference to amending or altering the Constitution.

Mr. WILSON, of Natick, submitted the following order, which was agreed to.

Ordered, That the Committee on so much of the Constitution as relates to the Judiciary Power, be instructed to inquire into the expediency of so amending the Constitution as to provide that all Justices of the Supreme Judicial Court, and the Court of Common Pleas, shall be appointed by the Governor for the term of ten years subject to the confirmation of the Senate in executive session; that they shall be eligible to reappointment, and that they shall not, in any case, remain in office after they shall have attained the age of

seventy years.

Mr. MORTON, of Andover, submitted the following order, which was agreed to :-

Ordered, That the Committee to which was referred so much of the Constitution as relates to the Judiciary Power, be directed to inquire into the expediency of expunging or amending that part of the Constitution which provides that