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"cach branch of the Legislature, as well as the Governor and Council, shall have authority to require the opinions of the Justices of the Supreme Judicial Court upon important questions of law, and upon solemn occasions."

Mr. HARMON, of New Ashford, submitted the following order, which was agreed to:

Ordered, That the Committee on the House of Representatives consider the expediency of providing for continuing, in some form, the representation, by towns, according to their present boundaries.

Mr. WHEELER, of Lincoln, submitted an order which was agreed to, directing the Committee on the Frame of Government and the General Court, to consider the expediency of so amending or altering the Constitution as to provide that all Bills and Resolutions providing for the payment of money, shall originate in the House of Representatives; and also to consider the propriety of so altering the Constitution as to provide that all Bills and Resolutions shall originate and be first passed upon in the House of Representatives. Mr. COLE, of Cheshire, submitted the following resolution, which was received and referred to the Committee upon Amendments and Enrol

ment:

Resolved, That the Constitution be so amended that at the general election to be held in 1873, and in each twentieth year thereafter, and also at such other times as the legislature may by law provide, the question, "Shall there be a Convention to revise the Constitution and amend the same?" shall be decided by the electors qualified to vote for members of the legislature; and in case a majority of the electors so qualified, voting at such election, shall decide in favor of a Convention for such purpose, the legislature at the next session, shall provide by law for the election of delegates to such Convention.

Mr. LELAND, of Holliston, submitted the following order, which was agreed to:

Ordered, That the Committee on so much of the Constitution as relates to the Frame of Government and the General Court, consider the expediency of limiting the power of the Legislature for loaning the credit of the State, or contracting debts, except for paying its own expenses or for the public safety, unless the question is submitted to the qualified voters, and is approved by a majority of those voting thereon.

Mr. FROTHINGHAM, of Charlestown, submitted the following order, which was agreed

to:

Ordered, That the Committee on the Pay Roll be instructed to consider what compensation should be allowed to the members of this Convention, and report thereon.

Reporting and Publishing the Proceedings and Debates.

On motion of Mr. FROTHINGHAM, of Charlestown, the Convention resumed the consideration of the Report of the Committee on the subject of Reporting and Publishing the Debates and Proceedings of this Convention, together with the orders accompanying said Report. The Report and orders were read.

The question was upon agreeing to the orders reported by the Committee.

Mr. SCHOULER, of Boston. I have but this moment received a printed copy of this Report. It is somewhat important, if we are going to have

our debates and proceedings reported, that they be correctly reported. I stated yesterday that I was a member of this Committee, and met with them two or three times; but in consequence of my duties in the House of Representatives, I was unable to meet with them when they agreed upon the Report which they have made to the Convention. I had supposed that the Committee would make an arrangement with Mr. Parkhurst, who has been reporting for us since we have been in session. But it seems that they have decided in favor of another gentleman, of whom I never heard before, but who, I have no doubt, is competent to make the reports, as the Committee, after having investigated the subject, have so reported to the Convention.

men.

The third order submitted here, is the one to which I wish to call the attention of the Convention. Perhaps it is not known that during the whole of our session, so far, there have been gentlemen here, who have made full and accurate reports of our debates and proceedings under the direction of Mr. Parkhurst; and no other man or set of men have these reports but these gentleIt may not be known to all, though it is to many of this Convention, that Mr. Parkhurst was the official reporter for the Washington Union, for the last four or five years. He is a Massachusetts man, and fully understands the theory of our government and the general tenor of the subjects which will come before this Convention. And, therefore, I think that in this respect he is the most suitable candidate for reporter to this Convention. But as the Committee have reported in favor of Mr. Fowler, I do not wish to make issue with them upon that question. But I am authorized to say, that if the Convention wishes to have official reports, full reports, accurate reports, of its debates and proceedings since it has been in session up to this time, it is very doubtful whether they can obtain them at the rate proposed in this third order.

But I rose to ask, in the first place, a division of the question upon the adoption of these orders. I may hereafter propose to amend the first order by striking out the words "Harvey Fowler," and inserting the words " Henry M. Parkhurst ;" though upon that I have not yet decided. But I wish now to move to amend the third order by striking out all after the words "if necessary in the 5th line, and inserting the words "the prices which have been paid to the reporters of the Washington Union, for the official reports of the Senate of the United States." In that way we shall come in possession of the reports up to this time; otherwise it is very doubtful whether we shall obtain them or not.

The PRESIDENT stated the question to be upon the motion of Mr. Schouler, of Boston, to strike out the words "such prices as shall conform to the prices agreed upon and established for future reports and the printing thereof," and inserting in lieu the words "the prices which have been paid to the reporters of the Washington Union for the official reports of the Senate of the United States."

Mr. SCHOULER. I do not know, upon reflection, as the amendment I have proposed will accomplish the object I have in view. What I desire is this, that the reporters who have thus far reported our proceedings and debates, shall have for these reports the same prices as the publishers of the Union paid their reporters for furnishing

[May 17th.

official reports of the debates and proceedings of the United States Senate. The order is so worded, that it is hardly possible for me to incorporate the amendment I desire in an intelligible form.

Mr. GOURGAS, of Concord. Unless I am very much misinformed, the prices paid by the proprietors of the Union to the reporters whom they have employed, have varied very materially, from year to year, and higher prices were paid at the last session of congress than at the preceding sessions. If I am correct in that, I should like to have the gentleman from Boston (Mr. Schouler) make his amendment more definite, so that we may know to which session of congress he refers.

Mr. KEYES, of Abington. I have endeavored to keep the run of this debate so far, but it strikes me now that the gentleman from Boston (Mr. Schouler) should begin to amend, as he indicated, the first order, and then the other order need not be amended. However that may be, I do not think the amendment he has proposed is necessary. As I read the orders submitted here in relation to the contract to be made by this Convention with Mr. Fowler, he agrees to obtain the reports of the Convention up to this time, of Mr. Parkhurst, or whoever owns them, at whatever prices may be charged for them. That is Mr. Fowler's business, and not the business of the Convention. If this contract is entered into, he is responsible for these reports, and engages to furnish them to this Convention, whatever may be the charge for them. It strikes me, that by adopting the amendment proposed, we may agree to pay more for these reports than it will be necessary for us to pay.

Mr. SCHOULER. The gentleman from Abington-I should have said for Abington-(Mr. Keyes) has doubtless misunderstood me. I doubt whether he has had the printed report in his hand longer than I have, and I have not had it long enough to read it through carefully; but I endeavored to follow the Secretary, as he read it.

I will state the case again. The Committee have reported in favor of employing Mr. Fowler to make hereafter the reports for this Convention. Mr. Parkhurst, the reporter of the Washington Union, and, I doubt not, one of the best reporters in the country,-a gentleman who has often been employed in this State, and for the accuracy of whose reports I can vouch, made a proposition to the Committee which they thought high, in comparison with the one made by Mr. Fowler. Now the proposition before the Convention is this: if we adopt these orders, therefrom and after this day, Mr. Fowler is the official reporter for this Convention. But Mr. Parkhurst, with his corps of reporters, has been here from the commencement of this session, and has notes of all the debates and proceedings which have taken place up to this time. It is proposed by this third order to pay to these gentlemen the same prices for their reports which we are to allow to Mr. Fowler for future reports; to which arrangement those gentlemen most respectfully demur, and say that we cannot have their reports for that price. Now I think it is very important that we should have these reports, because there is always a great deal in the preliminary proceedings of such a body as this, which gives tone and character to its whole session, and which is always referred to for precedent, questions of order, rules of procceding, and, as in this case, many able and most valuable

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speeches. I desire to have this Convention come in possession of these reports. In order to do that, I will now move to amend the third order so as to give these gentlemen for their reports, the prices for which they offered to make reports during the whole session; which prices I understand to be the same as they received from the publishers of the Washington Union, for the reports they made there. Unless this amendment is made, as I have before stated, it is very doubtful whether we can have a report of our proceedings up to this day; and certainly, if we are going to have reports, it is very desirable that we should have full and accurate reports from the commencement.

I therefore move to strike out all after the words "such prices as," and insert the words "have been proposed therefor by Mr. Parkhurst." The order will then read as follows:

Ordered, That the same Committee have authority to procure correct reports of the debates and proceedings bad-in this Convention up to the time of the execution of the contracts provided for in the two preceding orders, and to pay for the same, and the printing thereof, if necessary, such prices as have been proposed therefor by Mr. Parkhurst.

By amending the third order in that way, we shall have full and accurate reports of our debates and proceedings from the commencement of the session. Unless we do so, I take it that neither Mr. Parkhurst nor his friends will be willing to give up the reports they have made; and there are none others to be had.

Mr. GOURGAS. I have not the least objection to the amendment proposed by the gentlenian from Boston. It is the misfortune of Mr. Parkhurst and the gentlemen associated with him, and not the fault of the Committee, that the Report which has been made was not in favor of employing them to make the reports of this Convention. The Committee have not the slightest desire to settle with Mr. Parkhurst for these previous reports upon any terms but those which are liberal and just. They supposed that, as they must adopt some rule for paying for those reports, probably the best they could adopt would be to pay him the same as they propose to pay Mr. Fowler for future reports. If, under the circumstances, that gentleman deems that price illiberal and insufficient, for one I will very cheerfully vote for the amendment of the gentleman from Boston, to give to Mr. Parkhurst, for his reports up to this time, the prices for which he proposed to continue to report, so that as far as that matter is concerned, it shall not appear that this Convention attempted to deal unfairly or illiberally with him.

The question being then taken upon the amendment proposed by Mr. Schouler, it was adopted, and then the orders as amended were agreed to.

Vacancy from Berlin.

On motion by Mr. NAYSON, of Amesbury, the Convention then proceeded to consider the unfinished business of yesterday, being the motion to reconsider the vote by which the Convention ordered a notice to be sent to the town of Berlin of the vacancy from that town.

Mr. PARKER, of Cambridge. Mr. President, I will detain the Convention but a few moments more upon this subject; but there was one mat

ter, which, in the hurry of closing my remarks yesterday, on account of the lateness of the hour, escaped my attention for an instant, and but for an instant. It is surprising that it should have escaped my attention at all, not so much on account of the importance of it, but for the fact that I had lying at my feet at the moment several books in relation to it. It will be recollected that the honorable member for Wilbraham, (Mr. Hallett, in the closing part of his remarks upon this subject, produced and read to the Convention the opinion of the Judges of the Supreme Court of the State of New York, in relation to certain proceedings in that State for the anerdment of their Constitution. It seems that the legislature of that State passed an Act on the 13th of May, 1845, recommending a Convention of the people of the State, which contained a provision for taking the opinion of the people on the question “Convention" or "no Convention," and it was provided that if the response should be in the airmative, the deleates should be chosen under the existing apportionment, and the mumber should be the same as the number of the members of the Assembly, from the respective cities and counties in the State. The response was in the affirmative; and under these circumstances, the legislature subsequently met, and in March, 1846, passed a new Act in relation to the apportionment of representation. The question then came up whether they could alter the Act in relation to the Converion, in such manner as to make the apportionment of members of the Convention conform to the new apportionment, instead of the old apportionment of the House of Assembly; and the question was submitted to the Judges of the Supreme Court of that State, for their opinion. The honorable member for Wilbraham, relies in support of his proposition on the opinion which was sent in answer to that call, and he has read portions of it to the Convention, for the purpose of showing that there is no force in the proceeding in the fir t place, beyond a mere proposition, and that it derives all its force from the adoption of it by the people; and further, that the proposition being adopted by the people has by that adoption become unalterable, and altogether beyond the power of the legi-lature. I admit, Sir, that the opinion which he produces, tends to maintain those propositions.

Now, Mr. President, I have four exceptions tɔ take to this opinion of the Supreme Court of New York, as furnishing any guide to the action of this Convention, or any basis for the formation of any opinion by the members of this body. In the first place, I object that it appears from the opinion itself that the members of the Court had not sufficient time to form a sound opinion. They say themselves, "We cannot close this communication without expressing our regret that questions of so much delicacy and importance should be presented under circumstances which have given us but a few hours for conferring together, and reducing our opinion to writing. Neither of us had either examined or thought of the questions until after the reference was made; and it was not until this day that we were able to meet and consult together on the subject." If they had not sufficient time to form an opinion, that is a good reason why we should not place much confidence in it.

I object to it in the next place, because the opinion itself shows that the judges themselves had no

{May 17th.

They

confidence in their own opinion; and, indeed, they could not have had, and ought not to have had confidence in it, when, as they acknowledge, they had not time to form a sound opinion. It carries evidence on the face of it, that they had no confidence in it. The important question submitted to them was, "whether this legislature has any power to alter or amend that law;" that is, the law of 1845. They say, "As a general rule, the legislature can alter or annul any law which it has power to pass. A proper solution of the question proposed by the Assembly involves, therefore, an inquiry concerning the source from which the Act of 1815 derives its obligation.” They go on to speak about that matter. say "the people have not only decided in favor of a Convention, but they have determined that it shall be held in accor Lance with the provisions of the Act of 1815. No other proposition was lefore them, and of course their votes could have had reference to nothing else. They have decided on the time and manner of electing delegates and how they shall be appordoued among the several counties," Then they go on to say, "If the Act of the last session is not a law of the legi-lature, but a law made by the people themselves, the conclusion is obvious that the legislature cannot annul it, nor make any substantial change in its provisions." True, Sir; "if" it is not a law of the legislature, what they say is correct; but there is as much virtue in an "if" here, as there has been found to be in many other cases. If it is not a law of the legislature, it is not in the power of the legislature to affect it. Then they go on: "A change in the fundamental law, when not made in the form which that law has prescribed, must always be a work of the utmost de Ferey. Under any other form of government than our own, it could amount to nothing less than a revolution. The greatest care should therefore be taken that nothing be done which can give re to doubts or difficulties in the choice of delegates, or the harmonious organization and action of the Convention." They seem to expect that controversies may arise, and they fear that these controversies will impair the usefulness of the proceedings of the Convention; and as a question of expediency, they "think it the safest course to leave the law as it now is." Now, after all this mixed-up communication — now putting in an "if" and now putting in a little good advice on the score of expediency—it seems that they did not consider it as a sound opinion, and thought it very probable that its validity might be brought in question, and so they add: "If, however, the Assembly should think otherwise, it is then proper that we should take some notice of the bill which has been referred for our consideration." The judges virtually say: "Here is our opinion; we have had but a few hours to concoct it. We have thought it prudent to put in an 'if'-if we are right, you have no power to change that law; and we also put in another 'if' —if you do not think there is any value in our opinion, and we do not ourselves think there is a great deal, we will examine the bill which you propose to pass." How much value should be attached to an opinion of the Judges of the Supreme Court, which come before us in this shape? I object to it on the third ground, for the reason that the legislature of New York, had no confidence in it, but on the contrary, disregarded it entirely. If they placed no reliance upon it, I think we may well follow their example. What

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did they do? They went right on, notwithstanding this opinion, and did just the thing which the Judges of the Supreme Court said in the first place, they thought could not be done, but "if" the legislature could do it, it had better be done in a particular mode. I do not speak without book, Mr. President; I have the documents on this subject before me. Here is the law of 1845, which provides that the number of delegates to be chosen to that Convention, should be the same as the number of the members of the Assembly from the various cities and counties in the State. On the 30th of March, 1816, the legislature passed an Act providing for a new apportionment of the members of the Assembly. Having done this, the question arose, whether they could amend the Act of 1815, so that the delegates to the Convention should be cho-en according to the new apportionment. On the 10th of April, as appears from this document, they called upon the Judges of the Supreme Court, for their opinion. On the 14th of April, the judges gave that opinion, and on the 22d of April, the legislature passed an Act providing that "the number of delegates to be chosen in and by the respective cities and counties" to the State Convention "shall be the same as the number of members of the Assembly, to be chosen in and by the said cities and counties repectively, in pursuance of an Act entitled 'An Act for the apportionment of the members of the Assembly of this State,' passed March 30, 1816." That is, that the apportionment should be according to the Act which they had just passed a few days before, the opinion of the Supreme Court to the contrary notwithstanding. That shows that the legislature disregarded the opinion entirely, for they passed an Act directly contrary to that opinion. But there is something more. The Judges, say: "The second section of the bill goes beyond a mere declaration, and provides that the number of delegates to be chosen to the Convention is hereby declared to be, and shall be as follows'-specifying the number to be elected in each county. The words shall be' give this section the force of a command; and if the section should be enacted, it will have the effect of altering the Convention law, if the legislature have any power over the subject." But were the significant words "shall be" stricken out? No, Sir. They stand in the law as it was passed. The legislature in this particular also disregarded the opinion of the Judges entirely.

My fourth objection is, that the Convention itself disregarded it, and the people disregarded it. Here is the amended Constitution, framed and drawn up by delegates elected under this new Act, and who were assembled in Convention in pursuance of the new Act; and it was adopted by the people, after being so amended. We have, then, these facts: the legislature of 1846 disregarded the opinion-the people in their election of delegates disregarded the opinion-the delegates in Convention assembled disregarded the opinion, and the people again, when they adopted the Constitution as amended by those delegates, disregarded the opinion. Now I ask members of this Convention how much importance we should attach to it, when it has been entirely disregarded by all the constituted authorities of the State of New York. I will occupy no more time on that subject. I think we are fully justified in disregarding it.

I made an observation in the course of my re

marks yesterday, which, it occurs to me, may have been misinterpreted. In speaking of the power of the legislature to repeal the Convention law, I remarked that they might do it, according to the reasoning which I submitted, even at the present time; and in order to express my opinion as to the impropriety of such an act, which, under the circumstances, would indicate a disposition to disregard the popular will, and thus to depart from the proper exercise of their legislative powers, I added that such a repeal might bring about a revolution, and that perhaps I myself might be inclined to take a small part in such a revolution. Now, Sir, if I was understood to express the opinion that it would be advisable to resort to forcible measures, I was misapprehended. The repeal of that law, although within the power of the legislature, would, under such circumstances, be a most unjustifiable and impolitic act; but the simple repeal of that law would not take away the power of the Convention-I do not mean its legal authority now, but its physical power-to consult upon the proper measures to be adopted with reference to amending the Constitution. I think that under such circumstances, the delegates who had been sent here by the people might continue their consultations without legal authority; and I think it would be a good plan for them to do it. We could frame certain propositions as amendments to the Constitution, and send them to the people, without any forcible resistance of authority; and it is probable that our doing so, under such circumstances, would be acceded to by the people without a resort to force. Whether I should be inclined to take part in a physical commotion or revolution, is a matter which I will think about; it will be soon enough to make up my mind about that when the time comes. If this were done in a peaceable mode, it would, in my view, be a revolution, although a bloodless one. In such a manner as that might the constitution be revised, and the legal authorities would afterwards yield to it, because they would see that the people willed it. It would not be according to law, neither would it he aside from law, for a revolution overrules laws and establishes new ones; and this, although peaceable and bloodless, would in fact be a revolution.

Mr. HALLETT, for Wilbraham. Mr. President, I do not rise for the purpose of making a speech, for, in my opinion, this subject has already been discussed as far as it can be beneficially. I desire simply to restate some of my positions as brought into connection with the argument of the learned gentleman from Cambridge, (Judge Parker,) who has entertained us with so able a disquisition upon constitutional law; and also to show what the grounds are, upon which, as I understand, the friends of this Convention place themselves. And by the friends of the Convention I mean those who originated it, and sustained it before the people, and who intend to carry it forward in a manner which will accomplish the great object which the people have in view, of salutary, safe and judicious reform. Now I think the whole argument of the gentleman proceeds upon the supposition that there is no sovereign people, distinct from the government which they have set up, and that it becomes necessary and indispensable that the legislature should in all respects be guardians of the people. Upon that point, I hold, not only with the early American statesmen, but with that distinguished deceased statesman whose opinions

[May 17th.

have often been quoted here, that there is something besides the legislature in the organization of government. I am very much of the opinion which was entertained by Mr. Webster on this point when the question was discussed in the Convention of 1820; and I think that he entertained an opinion very similar to mine, when the Foote Resolution was before congress. The doctrine laid down at that time for a different purpose, was not unlike that we have heard touching this Convention, viz., that the people can do nothing without the legislature: "Gentlemen, (said Mr. Webster,) do not seem to recollect that the people have any power to do anything for themselves. They imagine that there is no safety for them only under the close guardianship of the State legislature."

Now this assumption of legislative sovereignty over popular sovereignty, is what I, too, desire to repel, and therein I differ from the gentleman from Cambridge, who seems entirely to concur with those who hold that the legislature has all the power, and the people no powers which the legislature may not control. I agree with him that they have power for certain purposes. It is the power of making statute law, but it is not the power to make fundamental law; and, therefore, while we seem to have agreed in the premises, we differ in the conclusion to which we arrive, simply, as it seems to me, from his disregarding this distinction. The gentleman's argument assumes that the people having once made a constitution, that there can be no changes in that constitution without a legislative law to permit and enforce such changes. The consequence is that he is driven directly to rebellion by the course of his reasoning, for in carrying out his premises to their conclusion, he boldly admits that the legislature have power, if they choose to exercise it, to abolish the Convention, and then he goes on to add, that such a course of proceeding would justify a revolution. That is the natural and only result of such a doctrine, and I respect the candor with which he avows it. My answer is, that if the legislature have power to intermeddle with the making of the fundamental law, they must necessarily come in conflict with the people; the government and the people must contend at some time or other, and then you have civil war and revolution. If, on the contrary, the view which I take, and which is maintained by the early writers upon popular government, rebellion or revolution can never arise in reforms and changes of the organic law of a free people. That great American idea is expressed in few words and with beautiful simplicity, by one of the ablest teachers of 1775, JAMES BURGH, in his profound "Political Disquisitions," which were commended to the American people by Washington, and Jefferson, and Hancock, and Sherman, and Rush, and Silas Deane, and all the revolutionary worthies. It is this-that the people are the authors and not the incidents of government. Having made the government, they do not thereby become the mere "incidents" of government, so that they can never alter or change it without its consent; and therefore there is meaning in the seventh article of our Bill of Rights, where it is declared that the people alone have the right to institute government, and the people alone have the right to reform, alter, or totally change the same. But, says the learned gentleman from Cambridge, the people have no such right without the consent of

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the legislature; but the people and the legislature together can do it, provided the legislature does not see fit to turn the people's delegates out of doors! The Bill of Rights says no such thing. It says the people " alone;" and there it is where those who regard this question from two distinct points of view differ.

Then the simple proposition that I would lay down is, that the people possess governmental power, and the legislature possesses legislative power-that is, the power to make statute law. These two powers can never interfere, nor come in conflict. The people institute and establish fundamental law, and the legislature is the agent of the people for making their statute laws. The people, having made a constitution, have given a power of attorney therein to the legislature to make statute laws under that constitution; and so long as this power of attorney exists, the principal cannot exercise a power which he has expressly conferred upon his agent. But then comes the question, is the power irrevocable? Can the principal revoke his power of attorney? In ordinary transactions, the terms of the power determine this matter, and the principle is precisely the same with regard to the power of the people. So long as their constitution exists, it is a power of attorney, giving to their agents and representatives the power therein expressly conveyed; but it is not irrevocable. Whenever they choose to revoke it, they can do so. If this is not republicanism, there is no such thing in government.

There is another familiar illustration, and to no one more so than to the learned and able gentleman (Judge Parker) who has so eminently distinguished the judicial history of our country by his connection with it-that is, that the power which created can alone destroy. The simplest instrument, deed, or contract, can be set aside or changed, only by an instrument, deed, or contract, of like power, no matter whether it be parol, or written, or sealed. Thus the people have made a constitution, and they alone can revoke it-no agent of theirs can undertake or attempt to do it. No agent can take the first step towards it, unless specially ordered by them at first, or sanctioned and affirmed by them subsequently.

In the course of the gentleman's argument, he assumes the position that in the fourth article of section 1, chapter 1, of the Constitution, he can find authority by which that instrument may be amended otherwise than by the ninth article of the amendments; and he finds it very much, I think, as Mr. Clay found what he called "the vagrant power" in the Constitution of the United States to establish an United States Bank. This is a like "vagrant power" which he gets from the clause authorizing the legislature to make reasonable and wholesome laws-"all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant"-the gentleman omitted to read this-"sO as the same be not repugnant or contrary to this Constitution." There is a point which the gentleman overlooked. He told us that this legislature had the power to make all wholesome and reasonable laws, and that therefore they could call a Convention to revise the Constitution; but he omitted the limitation, "so as the same be not repugnant or contrary to this Constitution." And let me ask, if this be not repugnant or contrary to

the Constitution, for the creatures of the Constitution to undertake to overthrow the power that created them! Why, Sir, that would be a monstrous fallacy, a totally untenable position to maintain for one moment. Where, then, is the power? The power to revise the Constitution is in the people alone, and hence the Act calling this Convention has no power from the legislature, but derives all its power from the vote of the people affirming the Act. In this view I am supported by eminent authority here at home. I will give the learned gentleman an authority which was in my mind when I addressed the Convention on this subject the other day, but which I then omitted to quote, and that is, the opinion of the Judges of the Supreme Court of Massachusetts in 1833, in substance holding the same doctrine on this point as the decision of the Supreme Court of New York in 1818. The legislature of Massachusetts, in 1833, asked the Judges of the Supreme Judicial Court to give their opinion upon the powers of the legislature in revising the Constitution, and after sleeping twenty years, that opinion has just got into the reports. That opinion covers this precise point of legislative power, unless I am entirely mistaken. It may be found in the supplement to the sixth volume of Cushing's Reports. The question put directly by the House of Representatives to the judges was-" 1st, Whether the legislature had any power to amend the Constitution in any other form than that provided for by the ninth article adopted in 1820; and 2d, Whether, if the legislature should call a convention of delegates for the purpose of making a specific revision of the Constitution in certain departments, that convention would have any power to go beyond those specific amendments proposed by the terms of the rote calling the Convention?" I will read the opinion of the judges upon the first part of the question. It is as follows:

"There is no authority given, by any reasonable construction or necessary implication, by which any specific and particular amendment or amendments of the Constitution can be made, in any other manner than that prescribed in the ninth article of amendments adopted in 1820.”

Then there is no other mode for the legislature to adopt. The Constitution, according to the opinion of the Judges of the Supreme Court of Massachusetts, does not come under this "wholesome law" clause, as the learned professor from Cambridge maintains. The court further say:

"If the legislature should submit to the people the expediency of calling a convention to revise or alter the Constitution in any specified part thereof, and the people should by the terms of their rote, decide to call a convention, the delegates would derive their whole authority and commission from such vote, and would have no right, under the same, to propose amendments in other parts of the Constitution not so specified.”

Then we derive our whole power here in this Convention from the vote of the people, and not from the legislature. How unfounded then the position that we derive our power from the legislature, or that they can repeal or alter the Convention Act, when the judicial power of our own government has declared that our only authority is derived from the vote of the people. How unfounded the position that subsequent legislation can take away the power! I care not whether

[May 17th.

you call it constitutional law or people's law, or give it some other name; I say that it is not statute law which the legislature can interfere with, after it has been affirmed by the vote of the people. Call it what you please, it is not statute law, and not repealable; and so say the Supreme Court. The court proceed to say, further on this very question of legislative power to call a Convention as a legislative Act:

"The Constitution has vested no authority in the legislature to provide by law for submitting to the people the expediency of calling a Convention for revising or altering the Constitution."

That, sir, is the opinion which I have maintained, that the legislature has no power, within the terms of the Constitution, to call such a Convention.

"It is difficult to decide what would be the power of such a Convention, if called." say the learned judges in this opinion. They thus defer that high matter, very wisely, to the sovereignty of the people. They have not enjoined us. They have not undertaken to determine that we can sit here in the afternoon, and that the legislature in the morning can meet and subvert the Convention, leaving us, as an only remedy, the revolution which the gentleman proposes to take a part in. On the contrary, they leave the powers of the Convention to be decided by the will of the people, declared by the terms of their vote; and the whole is beyond the control of the legislature, and left according to the terms of the vote of the people. For the court proceed to say:

"If the people should, by the terms of their vote, decide to call a convention of delegates to consider the expediency of altering the Constitution in some particular part thereof, such delegates would derive their whole authority and commission from such vote; and upon the general principles governing the deligation of power and authority, they would have no right, under such vote, to act upon and propose amendments in other parts of the Constitution so specified.

(Signed.)

Jan. 24, 1833."

LEMUEL SHAW,
SAM. PUTNAM,
S. S. WILDE.
MARCUS MORTON.

This brings me back to my original position in this debate, supported by Mr. Webster in the debates of the Convention of 1820, that all the legislature could do was to make a proposition to the people; and when that act was sanctioned by the people it became their embodied will. As to the provisions in the vote of the people, by which towns were called upon to hold their town meetings, and elect delegates, it is wholly immeterial whether those meetings were legal or illegal. The people carried it forward by their voluntary action, and it became their embodied will.

The gentleman intimates that I have gone into the Rhode Island question. I have avoided that precise question, because we have a previous Act, and it is not raised here. But I never heard before, in the arguments upon the Rhode Island question, or upon any other question, and never expected to hear upon this floor, the doctrine maintained, that if there was an authentic act of the legislature, or of the people, by which the will of the people in relation to the alteration of their Constitution could be clearly ascertained, that a Convention would not have full power to propose a Constitution to the people, without in

terference from the legislature, and whatever form the people so adopted became the fundamental law of the land. But now, gentlemen, insist upon going one step further, and say that we have no right, except at the mercy of the legislature, to hold our seats under an Act which the people have adopted even by legislative sanction; because, as they argue, no amendment can be made, except as is provided in the Constitution as it now stands. Whatever change therefore you desire to make in the Constitution must be made, as they contend, in that mode alone. The answer to that assumption has already been given, and that is, that the only clear rule of distinction between the power of the people and the power of the legislature is, that the people lay down the rules for making the laws, and the legislature make the laws under those rules. So you have entire harmony in the distribution of powers. I think that the difference is perfectly clear between the right of the people to change the fundamental law, and their right to make a statute law. The legislature have no right to change the fundamental law; but it may go to the people and ask for instructions; it may ask them if they desire to pass a liquor law, or a woman's rights law, or any other law, and if the people say yes, they may then pass the law.

But for the people to pass a statute law, I hold to be unconstitutional, because a vote of the people upon a statute law, yes or no, is legislating by the people, and that power they have given to the legislature.

The distinction is manifest, and yet gentlemen maintain that the act of 1852 was nothing more than a statute law repealable at any moment.

I have now verified the decision in the state of New York by a decision in the Commonwealth of Massachusetts. I understand-and I regret exceedingly that official engagemects elsewhere have deprived me of the pleasure of hearing the arguments of the learned gentlemen on that point-that the position has been taken that the decision of the New York court was virtually overruled and set aside, because the Assembly, notwithstanding the decision of the court, did go on and authorize the people, or rather recommended to them, to enlarge their representation so as to cover the increase of representation under the new apportionment, instead of electing delegates under the original Convention Act. Now, will the gentleman from Cambridge maintain, that when the Supreme Court have given their decision, it is nullified, because the General Assembly of New York take the responsibility of acting counter to that decision? I think he should rather have moved for a grand presentment against the General Assembly of New York for violating their own Constitution, by proceeding directly in violation of it, after a decision upon the question by the competent tribunal. The Act of the New York Assembly was either a violation of the Constitution or a new proposition laid before the people for their decision, and it became valid by their confirmation of it. From the time of its passage by the legislature until it was confirmed by the people, it had no vitality. If it had been carried before the Supreme Court of New York, the very court which gave the opinion to the legislature, they would are at once declared it unconstitutional and void.

In conclusion, Sir, if we will observe the distinction between the making of fundamental laws

and the making of statute laws, I cannot see that any conflict can ever arise between the people and the Government.

In looking into our system of government, we must look to home, to the fathers of the Republic and to the formation of our Constitutions; because there is no precedent in the history of the old world. For our form of government and for our precedents we must depend upon ourselves. Researches into the ancient forms of republics or governments, or into the monarchies, despotisms or dynasties of Europe will not aid us in this matter. We must find our American precedents in the hearts of the people, whence sprung forth in full strength and was developed this great American doctrine under which we live. Oh! let us not stand here generation after generation, when the people have taken all power into their own hands, quibbling and doubting, and with special pleading, entering into curious technical limitations and estimates of the power of the people, whether it be a vitality in esse, or a mere incognitative construction to be frittered away by nice distinctions. No, Sir, the people have the power to make their laws in any form which shall be according to the observance of order. If the legislature will give the initiatory forms, through which the civil officers can proceed in collecting and ascertaining the will of the people, it is proper, it is desirable, for those forms should never be departed from or dispensed with, except in the most extraordinary emergencies. We are not likely to have such emergencies here; but not the less should we guard the rights of the people; not the less important is it that now, since this doubt has been raised, we should, in our Bill of Rights, our provisions for amendments, say emphatically that no technicality or special pleading and no intrusive interference of the legislature, shall ever be permitted to call in question the power and right of the people, to alter, change, or abolish their forms of government, whenever desirable, in their own opinion, and on their own responsibility, to secure their happiness or their

liberties.

Mr. LORD, of Salem. Mr. President, were it not that I happen to be a member of that legislature which has been accused of committing high treason against somebody or something-an accusation, by the way, that I have never been able exactly to understand—I should not have presumed to address the Convention upon this subject, which I understand to be a proposition to request the town of Berlin to elect a delegate to this body, to fill the place of the Hon. Henry Wilson who declines to accept that appointment, and that they shall conduct the election under a system known as the "Secret Ballot" system. It has been my fortune to learn the grounds upon which this is placed, from three gentlemen, who have given their views to this assembly to justify the proposition; and fortunately or unfortunately, they have placed them upon entirely different, contradictory and conflicting grounds.

The member who offered this order-the gentleman from Lowell, (Mr. Butler,)—puts it upon this ground; that this Convention is a revolutionary body; that it is a sovereign body; that it is an irresponsible body-that is, that it knows no law, is governed by no precedents, is bound by no rule except the individual judgment and individual conscience of each member-and that, being thus an irresponsible body, high above all other

is.

[May 17th.

authorities, being, indeed, as he says, "the people themselves," and a law to ourselves and to ourselves only, it is proper that we should invite the town of Berlinto do that which we think is best to be done. That is his proposition. There is no law about it. It is not a question of law;— it is a mere question of revolution, a mere question of sovereignty. We will it, and therefore it We require it and therefore it is to be done. The gentleman from Northampton, (Mr. Huntington,) comes along with an entirely different proposition. He said, as I understood his argument, that this Convention was called under "a very respectable law. It is a law which the two branches of the legislature have passed, which has been sanctioned by the governor, and has gone into effect upon the happening of a contingency, which the law itself provides must happen before it goes into effect; and that it being thus a law it is a mere exercise of legislative discretion; and the same legislative discretion that made it may change it, but in undertaking to change the law, the legislature did its work less thoroughly than it expected, changing it only as to the 7th day of March, and the meetings which were adjourned from the 7th day of March, and leaving it wholly unchanged as to any other meetings; leaving, really, all meetings which must be held in this category, a casus omissus-a thing not provided for; and there being no law upon the subject, it is well enough to suggest to the town of Berlin to make a law upon this question, and to vote in this particular mode; not because there is any virtue in this Act as it was originally passed, not because there is now any law of the land requiring such a vote, but simply because there is no law at all upon the subject. And there being no law, the town of Berlin would better make that law, and we would recommend to them to make such a law as the "Secret Ballot Law;" but even if they fail to make that law, or any other, if they send a delegate here, because there is no law, he will be received. That is the second proposition.

I was not fortunate enough either to hear or to understand the precise position of the gentleman from Brookfield, (Mr. Greene,) but I concluded from what I have heard and seen, that he takes a somewhat different view from the other gentlemen, and maintains, substantially, that the legislature has committed high treason.

The gentleman for Wilbraham, (Mr. Hallett,) who puts his argument upon manly grounds, and states them in a manner that they may be understood, says, in the first place, that the proposition submitted by the legislature in 1852 to the people of the Commonwealth of Massachusetts was a void act-an act having no authority whatever that it was a thing which they had no right to do; that that body had no more right to make a proposition to the people than a school in the town of Berlin has the same right. His proposition is, that the legislature makes a proposition to the people; the people vote for it; and the people, having voted for it, infuse into this particular nothing, and void creature, not only vitality, but indestructibility. It begins with nothing; the legislature are mere usurpers, just as much so as county commissioners would be to pursue the same course. They have no right to propose it to the people. The people of course are bound to disregard it, and will disregard it, because it is a mere usurpation of power; but