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ELECTIONS BY PLURALITY. — SCHOULER-HATHAWAY-HILLARD.
compromises, however much we may try to enlist the sympathies of this body by calling this a compromise.
I am opposed to the amendment proposed by the gentleman from Natick. I go for the representation of our towns, and of our cities; and I go for that, because I think every man, woman, and child in Massachusetts, should always be represented in the legislature; and that they should be the makers of the laws. If we adopt the amendment proposed by the gentleman from Natick, we will have the great difficulty and the great objection which lies against the present Constitution, for it leaves the Constitution, in that respect, precisely where it now is.
The gentleman from North Brookfield, (Mr. Walker,) in speaking yesterday, said it is no great inconvenience if a hundred towns are left out of the legislature. Now, Sir, I take issue with him upon that point. I say, there is an inconvenience and a wrong about it, which no compromise and no speech can overcome; because these people, not represented in the legislature, are still bound to obey the laws which other people make for them. It was to get rid of this town representation of small towns, and parts of the Commonwealth, which we came here principally, among other things, to perform; and, by the district system, we would have obviated the evils to which I refer.
The gentleman from Natick, and others who have discussed this question, have not looked at it outside of the small towns. He gives the small towns the right to vote two or three times every day, from the first Monday of November up to the time of the assembling of the legislature. Although we have cut down the representation of the cities unequally with that of the towns, still this makes the inequality still greater, because in the cities we cannot have elections every day. When we once get together for that purpose, we have to remain, for the mayor and aldermen cannot adjourn the meetings in the cities, as can be done in the towns. You may vote five or six times in the small towns, but you cannot do it in the cities; and, as the Constitution now stands, I do not see how we can obviate it at all. We can have but two elections-one, the annual election, and the other on the fourth Monday of November. I say this is not fair; because it gives to one part of the Commonwealth the right to try to elect a number of times, and allows the cities to try only twice.
But, the farther we go into the consideration of this matter, the more we see the difficulties. There are but two courses to pursue, and, as long as we keep to the principle of either, we keep in a straight line. I can see why some should travel in one line, and prefer the majority rule, and why others should pursue the other, and prefer the plurality principle. If gentlemen are in favor of the majority rule, say so, and stick to it. If they are in favor of the minority principle, stick to that, without compromise, and then we shall have a Constitution which is plain. If we adopt either the one course or the other, the people will know what it is, and it will operate equally throughout the State. The more we discuss this matter, the greater will be seen to be the difficulty of any attempt to compromise a principle; to attempt to put into the fundamental law of the Commonwealth, a provision which has no principle whatever in it, and never was intended to
have any principle in it. I trust, that as the representatives of the people, we shall see the necessity, when we are framing an organic law, of founding it upon principle. Unless we do so, it will not stand. All expediency, all compromise, seeks something beside principle, and will fall. I trust we will throw overboard this whole compromise platform, upset the omnibus, and adopt a principle, and stand by it through and through. I do not wish to consume the time of the Convention. I rose merely for the purpose of showing the absurd position in which the gentleman for Abington (Mr. Keyes) places himself, and from which I do not see that he will be able to extricate himself.
Mr. HATHAWAY, of Freetown. I am always extremely anxious to know precisely what I am called to vote upon, and I ask the indulgence of the Convention for a moment, upon this matter. In this part of the House there are various opinions as to the provision of the amendment of the gentleman from Natick, (Mr. Wilson). My friend from Boston, (Mr. Schouler,) says it contains the majority principle, and so I understand the gentleman from Natick to say; but if I understand the proposition, it is this, and nothing more: That upon the failure of an election of representatives, town meetings may be adjourned, from time to time, until an election shall be had. I do not pretend to give the precise language of the amendment, but that is the substance of it. I ask the gentleman from Natick where, in his amendment, he finds the majority of all the voters in an election required to effect an election, and wherein does it differ from the provisions of our present Constitution? Where is there any provision in his amendment to prevent the legislature, the very first day of their session, in January next, from passing a law, providing that thereafter a plurality may or shall elect? What violation would there be in that, of any principle or provision which he has incorporated in his proposition? If I am wrong in reference to this matter, I should like to be now corrected.
In consequence of the Convention, the other day, refusing to have a proposition read so that the Convention might understand it, and believing that all the Convention did not understand the precise proposition contained in this amendment, a few moments since I went to the Chair, and reëxamined it, and I found my impression true, that there was nothing in it to prevent the legislature from saying that a plurality may or shall elect. My friend from Worcester, (Mr. Allen,) suggests to me there is nothing in the present Constitution which requires that a majority of votes shall be required for an election of a representative. I agree with him, and I can find nothing in the Constitution which would have prevented, in times past-from 1780 up to the present moment—the legislature from providing, by law, that a plurality might elect; and the same difficulty, it seems to me, is involved in the proposition of the gentleman from Natick, if he intended to require a majority of all the electors to effect an election. In order that the Convention may understand the matter, and not be misledwhich I do not believe the gentleman from Natick designed should be the case-I call for the reading of the amendment.
Mr. HILLARD, of Boston. I think this Report, when we take it in connection with its parents and its pedigree, is rather a singular docu
ment. In this Convention, I, in common with the minority party, am only a passenger on board ship, not responsible for the course of navigation; but, from some symptoms that develop themselves, there seems to be a likelihood of a mutiny in the forecastle, in which case, we may be able to get a look at the log-book, and learn where we are, and where we are going.
As to the majority and plurality rules, I assent, substantially, to the views of the delegate for Manchester, (Mr. Dana). The plurality rule, it seems to me, ought to be applied to the election of the governor and all officers chosen by the general action of the whole State, but not to the election of town officers, or representatives. This is just reversing the application of the Report before us. That document reminds me of the horse advertised for a show, that had his head where his tail ought to be. But we are told that as we cannot have the whole of the principle, we must be content with what we can get. The gentleman for Abington (Mr. Keyes) was, in my judgment, right, in the doctrines he just now laid down and defended, with his usual courage and frankness. He said the Report did not pretend to push one principle to its extreme, but that it was a compromise; a compromise of principles. So far, so good. But I never expected to live to see the day when the gentleman for Abington, (Mr. Keyes,) and the gentleman from Natick, (Mr. Wilson,) would talk so glibly of compromises. Especially should I have thought that the word would have stuck in the throat of the latter gentleman, like Macbeth's "Amen." Perhaps he has been denouncing compromises so long, that he has learned to speak the word easily. It is only on this supposition, that I can account for its having been spoken so trippingly on the tongue, as it was just now.
I am one of those unprincipled men who believe, and always have believed in the necessity of compromises. My household consists of two persons, and I find I cannot govern it without daily compromises; [laughter;] and as to undertaking to govern a community of a million of souls, without compromises, it is just as impracticable as it would be to pass from one point to another without passing through the intermediate points. I go for compromise in this matter; but, as I said before, I would have transposed the rules, adopting that of plurality for the governor and other State officers; but not extending it to town meetings.
I spoke a moment or two ago of symptoms of mutiny in the forecastle. So far as we can learn from what we can hear through the bulkheads
Mr. KEYES, for Abington, (interrupting). I am not very particular, generally, about what place is assigned me by gentlemen; but in this instance, I beg that the gentleman from Boston will say cabin, or quarter-deck, and not forecastle.
Mr. HILLARD, (resuming). Well, Sir, from whatever part of the ship the voice comes, we learn from it that the Committee were moved by the wish to keep political power in the hands of the party which now enjoys it. The line of legitimate succession was not to be broken. This is a legitimate motive for political conduct, and I think the better of the gentleman for Abington for his frank avowal of it. We all feel this; we all act upon it; but we do not often speak it out so openly. There are but two houses in this world, Sancho Panza says, the house of Have, and
ELECTIONS BY PLURALITY. — HILLARD-WHITNEY.
the house of Want. Just now, it is my house that wants, and his house that has. profess to be a party man; and I hold that the preservation of party organization and the maintenance of party ascendency are motives upon which all party men must of necessity act, to a certain extent.
Now, as to the amendment of the gentleman from Natick, (Mr. Wilson,) so far as I understand it, I am ready to go for it. But I admit that I have no claim to speak upon this subject with any authority, for I have not been in a town meeting since I was twelve or fourteen years old. For this reason, I am ready to admit that the testimony of the gentleman from Framingham, (Mr. Train,) is much more important than any I, who have lived in a city all my life, am able to bring. But so far as I am able to judge, I hold, that in town meetings, the rule of the majority should always be applied strictly and exclusively. I would keep out of the town meetings the plurality principle, and under no circumstances, nor for any considerations, would I allow it to intrude here. The town meeting is a pure democracy; and as I hold to the government of the majority, so far as it is practicable, as an essentially democratic principle—as this is the very breath of the nostrils of democracy, I would not introduce any principle at variance with it into these primitive democracies. And, Sir, I do not believe that in the long run, the application of the majority principle here will occasion any serious inconvenience; because, the elements which make the application of the plurality rule necessary in many cases, cannot apply in small towns, or in towns of moderate size, because I assume that you cannot have three parties acting separatelyand I wish to be understood as making the remark generally, without reference to the present state of things. I say, you cannot have three parties acting separately, unless there are prizes or objects of some considerable importance to be struggled for; and I do not think that any offices or favors that are to be distributed or given out in the town meeting, are of sufficient consequence to produce that result. The natural tendency in our communities is for men to arrange themselves under the banners of one of two parties. The worst that could happen would be, that a certain number of towns would go unrepresented. This would be no public or general misfortune. It would be an inconvenience to the particular constituency not represented, and no more. In plain English, it would be nobody's business but theirs. Mr. WHITNEY, of Conway. I have a strong desire to say a few words, before a final vote is had upon this subject. Gentlemen from different sides of the House have attacked this Report, it seems to me, without a reasonable consideration of its merits. Some gentlemen tell us there is no principle involved in this whole matter; that we are only discussing the adoption of a rule for governmental action. Others urge that the embodiment of true republican principle lies in the plurality rule alone; while others claim that any departure from a positive majority, is a departure from the true democratic faith. Now, Sir, from what I heard in our previous discussions upon this subject, I had been led to believe that every member of this Convention concurred in the opinion, that the first principle upon which all our civil institutions were established, was, that a majority of the people were only entitled to rule; that sovereignty was acknowledged to
reside only in the expressed will of a majority of the whole people. I did suppose that upon this, as a principle, we were all agreed; that we had agreed that this was the principle upon which the Constitution of 1780 was founded; and that this was the principle upon which our present Constitution now rested, as an established fundamental doctrine; and that under the present Constitution, this idea was intended to be carried out in all our elections; but it is true, in the present Constitution, in case the majority of the people fail to elect the governor of the Commonwealth, then the people delegate their authority to their agents. Let us see what the Constitution now says:
"But if no person shall have a majority of votes, the House of Representatives shall, by ballot, elect two out of four persons who had the highest number of votes, if so many shall have been voted for; but, if otherwise, out of the number voted for; and make return to the Senate of the two persons so elected; on which, the Senate shall proceed, by ballot, to elect one, who shall be declared governor."
Gentlemen speak of a great departure in this Report, from the majority principle, as recognized in our present Constitution, in this respect. Why, Sir, the Report is precisely the principle of the present Constitution. It is an embodiment of the same idea precisely, although the language is somewhat changed. You have provided, by this Report, that certain officers now elected by the legislature shall be elected by the people, if they can elect them by a majority of their votes, but if they cannot so elect them, then you provide that they shall be elected by the legislature, the same as under the present Constitution. Well, Sir, no evil can grow out of this amendment, if our present Constitution is right, certainly, for in one case these officers are elected by a majority of the people, and in the other they are to be elected by the same number, or otherwise precisely as we now elect them; in this particular, this Report coincides precisely with the method recognized in the old Constitution. Now, Sir, is that principle a correct one, as it stands in the old Constitution? If it is, then that upon which the Report of your Committee rests is also correct, for it is identically the same thing. And when gentlemen object to the Report because it is a departure from the majority principle, they object to our present Constitution-which in the minds of some gentlemen is perfect. We agree that it is a departure, to some extent. We have departed in the election of officers to be voted for by the whole people of the State, only so far as has been demonstrated that a departure was necessary, and no farther. We abide by the old Constitution in the main, in the election of State officers.
But other gentlemen say there should be a departure, in toto-that the plurality is the principle. Well, Sir, be it so, for the purposes of the argument. Suppose it is the principle, have we not accommodated these gentlemen in this Report, in a measure? Have we not adopted the plurality in every case where a political necessity can be shown to exist? I take it the people have no attachment to the rule of a less number than a majority, as a principle. They consent to the rule of a lesser number than a positive majority, as a political necessity, growing out of the multiplicity of partics. This Report adapts the plurality system of the election of all the officers except
those which are now elected by the legislature. It leaves these officers to be elected by a majority of the people, if a majority can elect. Now, where is the great departure from principle in this Report, which gentlemen talk so much about, and say has been concocted in a pot-house, eatinghouse, or somewhere else?
But the gentleman from Natick, (Mr. Wilson,) objects to it, because it gives the plurality system in the choice of representatives; and says, sooner than choose by plurality, towns will go unrepresented, and vote not to send. Now, I submit to that gentleman, if in his sober judgment, he believes the towns will be less likely to send representatives under this third resolution, giving the plurality choice upon the second ballot, than they will under the present system? I put it to every member of the Convention, if the towns will not, in nine cases out of ten, be less likely to return full delegations under the system proposed by the gentleman from Natick, than under that proposed in the Report of the Committee? It is not because the towns do not want to be represented, that they do not send their full quota of representatives. They like to be represented, but every man is attached to his own party, and dislikes to give up in favor of another party; they also dislike these repeated elections, and therefore they allow themselves to go unrepresented; and perceiving no prespect of a choice, they vote not to send. I think there is no weight in the objection of the gentleman from Natick.
The gentleman for Abington, (Mr. Keyes,) has well answered the argument of the gentleman, that a third part of the people of the Commonwealth, from the small towns, will choose the governor. The case has never arisen, and never will arise, when all the small towns will array themselves on one side, and all the large towns upon the other. There always will be some of the small towns which will sympathize with the large ores, and there always will be some of the large towns that will sympathize with the other small towns; and the case, therefore, will never arise where a portion of the House of Representatives, representing only a third part of the people, will choose the governor. Under this resolution, if adopted in your Constitution, I verily believe you will always have your governor chosen; if not by a majority of the people themselves, by the representatives of a majority of the entire people of the Commonwealth. And how is the case where the majority rule is applied exclusively? Why your governor has often been chosen by a minority during the last eight years. Where there are third parties, there always will be vacancies under the majority rule. And under that rule, a small majority, by possibility, may choose your governor. And I therefore think that this argument, as applied to the Report of this Committee, is entitled to no weight at all.
The gentleman from Framingham (Mr. Train) said that this Report would furnish an opportunity for "truck and dicker." Now, Sir, I say that if there be any such opportunity furnished anywhere, it cannot be charged upon this Report, or upon this Convention, should it adopt this Report ; because in these particulars it copies the present Constitution; and therefore the majority of this Convention can in no sense be charged-by those who have opposed all alterations in the Constitution-when they leave the Constitution as it is, with having furnished opportunities for "truck
ELECTIONS BY PLURALITY.—WHITNEY - ALLEN - FROTHINGHAM
nd dicker." It is chargeable upon the present Constitution entirely, and not upon the Report now before us. Your present Constitution makes the same provision, so far as elections by the legislature is concerned; and the fault, if fault there be, rests upon that, and not upon us. The people have not complained, so far as I know, of the present mode of choosing governor; they have made no call upon us to change the present mode of choosing their State officers. In fact, I am not aware that any fault has been found with it; and therefore, I take it that the argument, so far as relates to alterations of the Constitution for choice by the legislature in case of failure to elect by majority our State officers, is, in this particular, groundless, with regard to the election of representatives, and other officers that the people must elect, if elected at all.
Every gentleman knows the effect upon communities, of frequent elections, where they are continued day after day; where neighbor is arrayed against neighbor, and friend against friend; ill-feeling is often engendered, ill-blood is produced, discord and strife provoked, all of which tend to degrade your electors, and bring them into disrepute, and thus drive the better portion of the people away from the exercise of the sacred right, and high privilege of self-govern
Now, Sir, if you want to make the people love and respect their government, let the people have an opportunity, at the ballot-box, to elect by a practicable number of their votes; and in case of their failure to elect by a majority, let a plurality suffice, in the election of members of the legislature; and let that legislature be chosen by the people, without engendering that ill-feeling and party animosity which is the certain result of frequent elections. But to return to the matter of "truck and dicker." I hold that, as to this matter, the Report of the Committee leaves it precisely where the present Constitution leaves it, with the exception that where the present Constitution allows the House of Representatives four candidates to "truck and dicker" upon, four persons to be voted for, this Report furnishes only three; therefore, I undertake to say that this Report has lessened the number of chances to "truck and dicker," and to that extent it has removed the objection.
Now, Sir, I think the repeated trials to elect, to which the people are subjected under a majority rule, is what the people of this Commonwealth wish to change in the Constitution. They look upon the plurality rule as a necessity in some cases; and they wish to adopt this rule only so far as a necessity exists, retaining the great principle established by our fathers: that in a majority, the only acknowledged sovereignty resides in an organic law, wherever it can be preserved consistently with the practical convenience of the great body of the people. And I think we ought to transmit to our posterity this great principle in our constitutional law.
I intend to vote for the Report of that Committee, as I cannot see any great objection to it, or that departure from principle which gentlemen have endeavored to make out. It provides that every elective officer, excepting such as are elected by the legislature, shall be elected under the plurality rule. If the gentleman from Boston, (MF, Schouler,) favors the plurality rule, why does he not favor the Report of this Committee?
Mr. SCHOULER. I did not object to this part of the Report, but the other portion of it.
Mr. WHITNEY. I beg pardon of the gentleman. I am happy to hear that he is intending to support the Report of the Committee. I would much prefer, in the case of representatives to the general court, to have had a plurality upon the first choice. In the terms of the Committee, generally, it is true, there is an opportunity to ballot twice upon the same day, and there may be something gained by a second ballot. If men come together, and a caucus nomination is not acceptable to the sober judgment of the people of the town, they will repudiate that caucus nomination on the second ballot. They will ence vote, and thus get an honest expression of sentiment upon the first ballot, as to who is the best man to represent them, and after having obtained that expression of opinion by this method, the Constitution will allow them to change the mode of election, if they fail to make choice by majority, to that of plurality. I think that such a plan will not work any great inconvenience to the people. I go for the majority rule as a principle; but I say we cannot abide by it, and as the gentleman for Manchester, (Mr. Dana,) said, in another matter the other day, we cannot carry theories always into practical demonstration in our government. We cannot abide strictly and legitimately by theories, and the theory which I take to be right here is the government of the majority. We depart from it in this case only so far as our convenience compels us to do so, and we give the people the opportunity to prevent any snap judgment, as the gentleman from Pittsfield, (Mr. Briggs,) calls it, by a speedy vote. We will require a majority the first time. I believe the people all over the Commonwealth are looking to this Convention to lighten their burdens in reference to repeated elections. I hope this Convention will stand by the Report of the Committee, and, for one, I design to vote against the amendment of the gentleman from Natick, (Mr. Wilson,) for I think it has produced confusion, and will, if adopted, leave this matter in a worse state than it was before. I intend to vote for the plurality in every case where the people are liable to be called together the second time, for an election; and in every case where the Constitution provides that they shall now be chosen by the legislature, I propose to let the Constitution remain as it is, only giving the opportunity to the people to elect by majority, if they will, if not, let State officers remain where they now are in the Constitution. By so doing, I see no great departure from principle. I think that upon a reëxamination of the Report of the Committee, gentlemen will not find it such a monstrosity as it has here been, by some gentlemen, represented to be. I shall abide by the Report of the Committee exactly as it came from their hands.
The question was then taken on Mr. Wilson's amendment, and there were-ayes, 59; noes, 145. So the amendment was rejected.
Mr. ALLEN, of Worcester. I move to amend by striking out the third resolution entirely. I will not multiply words at this hour of the day. Striking out the third resolve, will leave the Constitution where we found it, and surely that must be a very good condition of things, and a wise provision of the present Constitution, when gentlemen, upon all hands find it so difficult to change it. Upon this question of plurality or
majority, gentlemen have changed their opinions from day to day; not only single individuals, but bodies of men. My friend from Pittsfield, (Mr. Briggs,) and those with whom he associates, have acknowledged the changes which have been wrought in their minds, and, indeed, so rapidly have they been, that my head grows dizzy when I think about them. I was gratified with the course of the conservative members of this Convention in this one particular. I would not preserve the rust which remains in the Constitution; but, as there is great diversity of opinion in respect to any modification of one of its substantial propositions, I propose that we leave the Constitution, in regard to representation, just where we found it. I have not heard any great complaint, only in respect to the election of representatives. I believe that the practice which is allowed for the purpose of a choice, three days in November, and one in December, is amply sufficient on all ordinary occasions. I believe no serious difficulty has been found in this matter in the towns of the Commonwealth, when we had two parties, and none even when the Commonwealth has been divided into three. It was necessary to introduce another element, but I apprehend it will soon be removed from the political affairs of the Commonwealth, and we shall find that we shall go on hereafter, as we have heretofore, quite comfortably and conveniently, so far as respects the manner of choosing representatives, and the principles which will govern them, under the Constitution as it now stands. Differing in almost everything which has been proposed, let us unite in this matter, and retain that provision of the Constitution to which I have alluded, which has existed so long.
Mr. FROTHINGHAM. I shall go for as much of the plurality principle, as I can get; for I believe there is a demand upon the part of the people for it, and its adoption would save time and expense, and certainly party feeling. We have taken the vote upon this question several times. Yesterday, the gentleman from Plymouth, (Mr. Davis,) moved an amendment, the effect of which was to strike out this plurality rule after the first choice. Then, this afternoon the gentleman from Natick, (Mr. Wilson,) to my great regret, moved an amendment, which amounted to the same thing. Now, we have another amendment moved by the gentleman from Worcester, (Mr. Allen). All of these amendments would have the tendency of destroying the plurality rule, for the choice of representatives. I have nothing more to say, at this time, but I appeal to members of the Convention to stand fast by this rule, for the election of members to the House of Representatives; for it will be sure, notwithstanding what has been said by the gentleman from Natick, to cure that great evil-non-representation.
Mr. STETSON. I move the previous question.
Mr. FRENCH, of Berkley. I hope the gentleman from Braintree will withdraw his demand for the previous question, for a moment. I wish to offer the following amendment :
But in case of the failure of an election on such ballot, then at a subsequent meeting, called for the purpose, the person having the highest number of votes, shall be deemed, and declared to be elected.
I have said a word in regard to this amend
ELECTIONS BY PLURALITY, &c. — HOPKINSON — HILLARD — CHAPIN.
ment before, and I labored under an entire mistake, when I supposed that the amendment offered by the gentleman from Natick, had for its object, the same effect.
Mr. STETSON. I rise to a question of order, and it is this: I moved the previous question, and I would like to know if debate can go on?
The PRESIDENT. It is not in order for the gentleman from Berkley to discuss the merits of the question.
The previous question was seconded, and the main question ordered.
The PRESIDENT. The first question is upon the amendment offered by the gentleman from Worcester, (Mr. Allen,) to strike out the third section.
The question was taken on the amendment, and it was rejected.
Mr. HOPKINSON, of Boston. I rise to a question of order. I find the first resolution provides, substantially, that the governor, among other officers, in case of a failure of an election by the people, shall be elected in a particular manner pointed out, to wit: that a certain number of candidates shall be voted for by the House of Representatives, that they shall return the persons so elected to the Senate, out of which number the Senate is to make an election. I find by referring to the record of the 30th of May last, that this Convention, by a very large vote, passed upon this subject, and adopted a different provision. The resolve adopted on that day, reads as follows:
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.
I suppose it is a general parliamentary rule, which, if it has not been applied here, has been frequently applied, that when a particular matter has been finally passed upon, a reconsideration may be moved within a certain time; but if that time has passed by, such a reconsideration cannot be moved. It appears to me that this provision is a violation of the rule, as it makes provision for the choice of governor, by another method than that already passed upon and determined by the Convention.
The PRESIDENT. The suggestion as to the question of order amounts to this: that this proposition is inconsistent with another proposition, which has been assented to by the Convention. It, therefore, revolves itself into a question of consistency, and that is a matter for the Convention to decide. The Chair understands the general parliamentary rule to be that where a subject has been disposed of, the same subject cannot be presented again. But, that rule is not invariably adhered to, under the general parliamentary law. It is also provided for by a rule of legislative bodies, as by our House of Representatives, that when a question has been rejected, that question shall not be presented again. But, that is not the case in this instance.
Mr. BRIGGS. I would like to have the resolution which has been heretofore adopted, read. It was accordingly read.
The PRESIDENT. This is, in the judgment of the Chair, a question of consistency, and not of order, and is so laid down in Jefferson's Manual, which is the standard authority.
Mr. HOPKINSON, of Boston. I would inquire, whether, when a matter has been acted upon, it can be taken up again?
The PRESIDENT. The Chair cannot reply to a question of that general character, but only with reference to this particular case. The decision of the Chair is, that it is not for the Chair to decide, whether this is consistent or inconsistent; it is for the Convention to determine.
Mr. BRADBURY, of Newton. I would ask the Chair, as a question of order, would not this be a matter for discussion, and as this is like a question of order, whether, the previous question being ordered, it will cut off these two contradictory acts of the Convention?
The PRESIDENT. The rule is, that after the previous question has been ordered, the main question shall be taken without debate.
Mr. HILLARD, of Boston. I suppose that the previous action of the Convention has been limited to an expression of opinion, that it is expedient to do so and so; and I take it, that these expressions of opinion will be put into definite shape, and come up for the action of the Convention; and that when so brought before the Convention, and the inconsistencies are pointed out, instructions can be given so as to obviate them.
Mr. GRAY, of Boston. I would ask for a division of the question, so far as relates to the first resolution, so that it may be taken upon that separately.
The PRESIDENT. The question will be taken on ordering the first resolution to a second reading.
The question being taken, there were, upon a division-ayes, 140; noes, 90.
So the resolution was ordered to a second reading.
The question was then taken separately, on ordering the second resolution to a second reading, and it was decided in the affirmative.
Mr. HALLETT, for Wilbraham. I ask for the yeas and nays on ordering the third resolve to a second reading.
The yeas and nays were not ordered, and the question being taken on ordering the third resolution to a second reading, it was decided in the affirmative.
The question was taken on each of the succeeding resolutions separately, and they were ordered to a second reading.
On motion by Mr. DUNCAN, of Williamstown, the Convention then adjourned until nine o'clock, to-morrow morning.
WEDNESDAY, July 20, 1853.
The Convention assembled pursuant to adjournment, and was called to order by the President at nine o'clock.
Prayer by the Chaplain.
On motion of Mr. CUSHMAN, of Bernardston, the amended resolves on the subject of the lieutenant-governor were taken from the table and placed upon the Orders of the Day.
Orders of the Day.
The Convention proceeded to the consideration
of the Orders of the Day, the first item being the motion of the gentleman from Fall River, (Mr. Hooper,) to reconsider the vote by which the resolves relating to the incorporation of new towns had been indefinitely postponed.
On motion by Mr. THOMPSON, of Charlestown, this item was passed over.
The resolves on the subject of the Judiciary, and the resolves on the subject of Harvard College were also passed by.
General Laws for Corporations.
The resolve on the subject of General Laws for Corporations, being the next item on the calendar, was taken up for consideration. The question being upon its final passage.
The resolve was read as follows:
Resolved, That it is inexpedient to incorporate into the Constitution a provision that corporations shall not be created by special act, when the object of the incorporation shall be attainable under general laws.
Mr. CHAPIN, of Worcester. I voted against the resolution as amended, when it was before us on a previous occasion; and I wish to give some reason why I did so. It seems to me there is a misapprehension as to its meaning and operation, because I find that gentlemen voted in its favor on precisely different grounds. Some voted for it because it meant nothing, in their opinion; and others, because, I am bound to suppose, they expected it would accomplish something. Now the difficulty which I have in regard to it, is this: when I vote for a resolution, I wish to vote for one which is intelligible to myself, and the meaning of which I can, at least, think I understand. Now, I wish to make one proposition, and to ask this question of the members of this Convention : Do they wish to adopt in the Constitution a provision which will forever forbid the legislature granting any charter for a railroad? Some would say they do, and others that they do not. Now I ask if, upon that resolution, there is not a question whether the legislature will have the right to grant such a charter? What is the meaning of the clause "when the object of the incorporation shall be attainable under general laws." If it means that the legislature are to decide whether it is attainable or not under general laws in existence, why not say so? If it means an incorporation, the object of which is, in its nature capable of being attained under general laws which may be passed, why not say so? There is an uncertainty about it which makes it difficult for me to vote for it. I would not be willing to vote to give to the legislature power, under a general law to charter a corporation which should have the right to make a railroad or a turnpike so that the company might exercise the right of eminent domain, and so that it might appropriate your land and mine at its election, reserving to us only the right to have compensation. I believe that it should be left to the legislature to pass special acts for corporations of this kind. I am not an advocate for vested rights, but I am an advocate for the doctrine of good faith in legislation. If you and I, Sir, have invested our money in a railroad originally, it has not been for the purpose of making money by the investment, but for the purpose of encouraging the enterprise. Are we to make it necessary for the legislature to pass a general law on the subject, so that this question
GENERAL LAWS FOR CORPORATIONS. — SCHOULER-DAVIS.
can never be examined by the legislature as each case arises-and so that A, B and C may establish railroads where they please, and locate them over every acre of the Commonwealth without any special legislation upon the subject? I do not say that this resolution necessarily involves this result, but I do say that it leaves it in vagueness and uncertainty, and I am unwilling to adopt a resolution which contains in itself the elements of uncertainty, doubt, and consequent litigation.
I find, on looking at the Constitution of New York, there is a provision somewhat like this resolution; but there is in that Constitution an expression like this: "when in the judgment of the legislature it shall be expedient." Now suppose the legislature of Massachusetts should grant a special charter for a railroad, this resolution standing as a part of the Constitution. You go on and take stock in that road; and by and by, for some reason, you refuse to pay your assessment. The road is under way, the money has been invested, but persons who have taken stock, refuse to pay their assessments. Suppose they are proceeded against, and they come before the court and say that the legislature has no constitutional right to grant that special act. Then comes the question whether it was constitutional. It may be decided that this resolution means that no special act shall be passed when there is a general law upon the subject. Well, if it means that, it does not accomplish what is intended by its friends, because, all that the legislature would have to do would be to repeal the general law, whenever a special act should be required. It seems to me that the amendment introduced the other day by the gentleman from Oxford, contains the true principle. He offered an amendment that certain corporations for certain specified purposes, should not be chartered, except under general laws; and he specified what they should be. They were subjects in relation to which the principles are well settled, and which are well understood by the community. But it seems to me that there is a vagueness about this resolution which will give rise to litigation hereafter, and this in the establishment of an organic law of the Commonwealth we should carefully avoid; therefore, unless this can be amended so as to make it certain as to what we are doing, I feel bound to vote against it as I did before.
Mr. SCHOULER, of Boston. After the very decided vote, in favor of this resolution the other day, it may appear like hardihood or impudence, to rise in the Convention, and attempt to speak against it. But, I do not believe that the Convention fairly understood the whole matter, when they voted upon it before. The question was taken immediately, after a very able and eloquent speech by the gentleman from Conway, (Mr. Whitney,) and I think that he succeeded in presenting his side of the question exceedingly well, by leaving unsaid certain things which had better been said. The whole strength of his argument was, that we should have a general system of corporations. To that, I have no objections. We have now, upon our statute books, a general corporation act, for manufacturing and mechanical, and other business purposes of that kind. We have also, a general law with regard to banks. I have no doubt that these laws will stand permanently, upon the statute books of this Commonwealth. But, I am opposed to taking from
the people forever, the right to say, whether they shall have the right, under any circumstances whatever, to make a special act, for any special purpose. I desire to let the Constitution remain, so that the people shall have the power. I do not wish, for instance, that the people of 1853, shall bind for all time to come, the people of other years. I wish the people to have the right to say through their representatives, after they have heard a case, whether the legislature shall act upon it or not, keeping these general laws all the time upon the statute book, so that whoever wish to form themselves into corporations under these general laws, may do it.
There is another objection to this resolution, and one which the gentleman from Conway, avoided altogether; and that is: if we place this provision in the Constitution, we give to those special corporations now in existence-banking corporations—a monopoly for the next twentyfive years at least; for their charters extend until 1780, and they were all chartered the year before last. The very legislature which passed this general banking law, also re-chartered every bank in the Commonwealth. The very legislature which passed the general joint stock law, also incorporated companies for mechanical purposes, so that the theory and argument used upon that occasion was, that we would have both systems in operation; that is, we should have a general banking law for all those persons who think a general banking system is best, and wish to avail themselves of it, and also with regard to joint stock companies.
The proposition before us is to deprive the legislature of any supervision whatever over this great question of corporations; and I think the argument put forth by the gentleman from Worcester, this morning, is, of itself, conclusive, that we ought not thus to tie up the hands of the legislature. There is no doubt at all but that we can pass a general law with regard to railroads, as well as with regard to banks; and I ask whether it is the best, the purest, and the surest policy to allow persons to form themselves into corporations for railroad purposes, and run a railroad through our land, if we have any, to any point they please; whether the effect of it will not be to depreciate the property of individuals now in corporations of that kind, and whether it will not bring up the question of parallel roads? After men have invested their property upon a pledge of the State, in building railroads, I think it ought to be protected in some degree, upon the faith which the State has given.
Now, Sir, I think the argument is unauswerable, that all these matters ought to be kept in the hands of the people, and that we should allow them to do as they think best when the circumstances come up; and that is all that I desire. I think it is wrong to cramp the legislature of our State in this way. We have already general laws, and I trust that these general laws will remain ; I have no doubt that they always will remain. There was no attempt last year to repeal them, and there will be no attempt to repeal them. It seems to me that there is an argument, and there is a strong reason, why we should keep this great power in the hands of the people, so that they can act upon the cases as they come up, and not forever exclude them from being heard here through their representatives. I trust that the order will be defeated, and that we shall leave the Constitution precisely as it now stands.
Mr. DAVIS, of Worcester. I trust, Mr. President, that this proposition will be adopted; and it strikes me that if the members of the Convention will consider the matter, it would be adopted almost by a unanimous vote, if they are desirous of the prosperity and happiness of the good old State of Massachusetts. It is true that this is an important question; it is one which is to effect a major portion of the wealth of Massachusetts; because, by the last valuation, there are in this State about six hundred millions of property, and a majority of all this property, or more than three hundred millions, is now tied up in special acts of incorporation, where certain individuals have special privileges over the mass of the people. This has been done substantially and mainly during the last quarter of a centuary. With general laws upon the statute book, last winter there were special acts of incorporation passed by our legislature, to the amount of twenty-six millions of dollars; notwithstanding we had a general banking law upon the statute book, banks were incorporated to the amount of ten millions of dollars, when there was not specie enough in Massachusetts, by the bank returns, to put into these new banks to carry them into operation. Gentlemen know what the law is, and what men have to swear to, in order to get these banks into operation; and yet in the face and eyes of the returns of these banks that there was only three millions of specie, not ten cents to redeem a dollar, of the deposits for the bills in circulation, ten millions of dollars of capital were created by these special acts last winter, for banks; and for other business corporations, some sixteen millions
Gentlemen can easily see the whole length and breadth of this question, if they will look at the volumes of our special laws. Here are eight large volumes of special laws for the few, and two volumes of general laws for the many. This will show that there has been a system of legislation here in this Commonwealth, for the last quarter of a century, for the benefit of the few, and not of the many. Now, the principle of the proposition is to bring corporations, whenever practicable, under general laws, so as to legislate for all the people of the Commonwealth. The objection which has been taken by my colleague, (Mr. Chapin,) in my judgment, has no force in this particular; because, when the application comes up for a special act, it is for the legislature to judge, before they grant it, whether it can be be brought under the general law. There may be cases, and I have no doubt but that there will be cases, in which it will be necessary to grant a special act; but, whenever they can be brought under general laws, they should be brought under general laws that will apply to the whole subject, and operate alike upon all the people. If gentlemen would go into a consideration of this matter-take up the ponderous volumes of special acts, and see how much time has been spent in legislating for the few-they will perceive that hundreds of thousands of dollars will be saved, in the mere business of legislation, by the adoption of this simple principle; for, if they will look over the work of last winter, they will perceive that three-fifths of the whole time was spent upon special legislation. Now, the question is-and I want gentlemen to meet it directly is it right to legislate for the few or for the many? Should not our laws operate for the