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RAILROAD ACCIDENTS, &c.— CADY - DAVIS-DANA – HALLETT.
ganic law, the statute law, or by the common law. it was there. They knew practically what had | might say that the value of a man's life was a But that no protection in cases now before the been done by previous legislatures. Still, from million of dollars, and this constitutional provision Convention, is afforded, is true; but that is not all year to year, and year after year, a perfect neg- might require that of me; or else—for so I read in relation to it. I hold that the eleventh article lect has been indulged in by legislative bodies, this resolve-or else I should be called upon of the Bill of Rights, in the present Constitution, and they have neglected to afford that protection merely to decide that the party entitled to some which contains this same principle, has not af- which this article in the Bill of Rights was in- remedy is entitled to the same remedy which he forded any protection, either in this or other cases. tended to afford. There may be such a thing as would be entitled to for an injury resulting in I see no reason why, except that this article has an oversight, but this has not been one. When disability and not in death, no matter how small never been heeded by the legislature, and they the mother of Achilles plunged her son into the the damage may be. It seems to me there is this have never given that attention to it which is ne- river Styx, to render him invulnerable, there was inconsistency and this vagueness. I therefore cessary to make it valid and effectual. And I see an oversight on her part, because she forgot that move that this resolution be laid upon the table. no reason why this resolution should be put in the heel failed to be laved by the prophylactic The question was taken, and the motion was here, if no more attention is to be paid to it here- waters. But not so in this case. The legislature agreed to. after by the legislature, than has been paid to it have had their attention directed to this matter, So the resolve was laid upon the table. heretofore; and if they should not, I would as but they have gone on, year after year, neglecting lief see this provision struck out of the Constitu- it, and we have no more protection than when it
Law Martial. tion entirely. I can see no value in retaining an was first put into the Constitution in 1789.
The PRESIDENT. The next matter in the article in the Constitution, which has no effect, Now, Sir, I am in favor of a resolution like the Orders of the Day is the resolve upon the subject and is practically invalid. The present article one offered by the gentleman for Wilbraham, of the law martial. The question is to strike out says: “Every subject of the Commonwealth ought (Mr. Hallett,) if it can be made effectual in any of the twenty-eighth article of the Bill of Rights to find a certain remedy, by having a recourse to way. I am in favor of incorporating something the words, “by authority of the legislature,” so the laws for all injuries or wrongs which he may like this into the Constitution.
that it shall read :receive in his person, property, or character.” I Mr. DAVIS, of Plymouth. Owing to the laclaim that no person has ever had a remedy for an mentable circumstances to which the gentleman
No person can in any case be subjected to injury which has caused death, as he had for has alluded, I have hesitated to propose the motion
law martial, or to any penalties or pains by virtue
of that law, except those employed in the army wrongs to character or property. The article which I shall offer before I sit down, until I could
or navy, and except the militia in actual service. farther says: "He ought to obtain right and jus- hear the gentleman for Wilbraham, (Mr. Hallett,) tice freely, and without being obliged to purchase explain the reasons for his amendment. It seems The question is upon the final passage. it; completely and without any denial; promptly to me that no good reason can be assigned why a Mr. DANA, for Manchester. I wish to know and without delay; conformably to the laws.” provision providing only a simple remedy for an whether I can throw myself upon the indulgence
Well, Sir, there are no laws except this very evil, for injuries, for trespasses, &c., should be put of this Convention, for a few minutes, upon this one, and this, so far as it may be construed as a into the Constitution ; and, especially, no good subject. I will occupy but a few minutes, and law, might be considered as applying to all cases. reason can be given why it should be put into the will state but two propositions. Last night, when But I suppose it is not to be considered as a law, Bill of Rights. If it were proposed to put into there was but just a quorum present, the resolve but only as a principle upon which a law can be the Constitution a provision, that for all injuries introduced by the gentleman for Wilbraham, founded. Now, Sir, I contend that no person by tort, an action at law should lie, and that when (Mr. Hallett,) to deprive the legislature of the has ever had the benefit of the provision here such tortious injury resulted in death the action power of enacting the law martial, was passed. made, or intended to be made, by this article of should survive, I could see some reason for the I think it was passed under a misapprehension. the Bill of Rights. A man can injure and wrong principle, but certainly none for such a provision I have conversed with a number of gentlemen his fellow-citizen, and there is no remedy against as this. I understand that the liability, to some since last evening, and I have seen but one him which can be applied. I can bring an action extent, is now perfect by the act of the legislature. person to whom the subject has been presentagainst any man, or a rich man may bring an ac- And I also understand him to admit that the ed, who has not changed his mind. If the Contion against a poor man unable to defend his case, legislature have now full power to enact sufficient vention will give me attention for a moment, I and there is nothing in the statute which prevents laws with regard to all remedies affecting the per- will endeavor to satisfy them that the Constituit. He makes him just as much expense, and as son, whether they result in death or not. If that tion, since 1780, has been right in this respect, great a loss of time as he chooses and may cause be so, I see no reason why the provision should and that we had better let it alone. delays—for these actions are not without delay- be placed in the Constitution or in the Bill of The first question is, What is the law martial ? and just as much delay as the individual who is Rights. If gentlemen will look at this resolve as and the second is, Who shall control it? First, the oppressor, sees fit to make. In these cases of reported, it seems to me they will find that it is what is the law martial ? It is supposed by many unjust prosecutions, where an innocent man has too vague and indefinite. In point of fact, noth- that the law martial is just what a military man been seized by the arm of the law, and has been ing can be made of it whatever, and I ask gen- chooses to do. That is not so. It is a code of obliged to spend his time and money for his coun- tlemen of the Convention, before they make up laws enacted by the legislature, and not what a sel and other things, although he may at length their minds upon this question, to read the pro- military man chooses to do. First, we have the become released and establish his innocence, where vision. It is this : “ Where death is caused civil law, and, second, the law martial. They is he? Being a poor man, he has expended all through negligence or misconduct by means of are both enacted by the legislature, and they are the means he has in his power to obtain, to pay railroads, steam-boats, or public conveyances for both controlled by the legislature. his attorney and lawyer for his defence, and has hire, the same remedies shall be open in a suit Mr. HALLETT. Does the gentleman say spent his time, and what is the result? He has at law as for like injuries to the person resulting there is a martial law in Massachusetts beggared his family, his children are naked, and in disability and not in death.” That is, “where Mr. DANA. Certainly there is. his wife is in distressed circumstances.
death is caused,” “the same remedies shall be Mr. HALLETT. No, Sir ; there is a military Now, Sir, as I said before, I care not where the open as for a like injury," namely, death "result- law. law comes from which affords this protection. If ing in disability and not in death.” Will gentle- Mr. DANA. The martial law of Massachua provision of our Constitution cannot be made men also ask themselves what that same remedy is setts is in the Revised Statutes, and under that valid to afford this protection, I say I am in favor which shall be open at suits at law for injuries the courts martial are held. The law martial of of striking it out. This provision is here in the resulting in disability and not in death. Does the United States is in the laws of the United Constitution for something, and the legislature the Committee mean that the like rule of damages States, and under that the courts martial of the heretofore have neglected to pay that attention to shall apply to injuries resulting in death, that ap- United States are held; and I think the gentleit which it really deserves. Now, I think that it is ply now to injuries which do not result in death ? man for Wilbraham, (Mr. Hallett,) himself, has of vital importance to have such an article in the Or does the Committee mean to say a jury shall been a judge advocate of an United States court Constitution, but I thirk it is of much more im- be called upon, without any limit, to estimate, in martial. The legislature of the State can control portance that the article should be heeded. This broad terms, the value of life? What is the limit: the law martial of the State ; can alter it, and neglect was not because it was an oversight. The It seems to me, that, if called upon as a juror, as make it just as humane as they please. It is a legislature looked upon this article, and knew that perhaps I may be, to consider that question, I system of laws executed by a military tribunal
BILL OF RIGHTS. – DANA- HALLETT.
shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land.'"
Again he says :
“ So it is a settled principle even in England, that under the British Constitution, the military law does in no respect either supersede or interfere with the civil law of the realm ; and that the former is in general subordinate to the latter.'”
instead of by a civil tribunal. Those tribunals act according to law, by records, by proceeding in writing, and can punish no man except according to law. They cannot do as they please.
We have the civil law to apply to ordinary cases, but to whom does the martial law apply? It applies to military men, under arms. a militia man now, under martial law. At what other time does the military law apply? It applies when the civil law cannot apply; when, in times of insurrection and disturbance, you cannot control your jails, when you cannot control your court-houses, when the sheriffs cannot summon their juries, and courts cannot meet. When the civil law cannot go on, then the martial law is proclaimed. When the enemy is in possession of your strong-holds, when the milder processes of the civil law cannot go forward, then it is martial law or nothing. Well, then, the martial law is a law of the legislature, and which the legislature controls. When that state of things arises where the civil law cannot be put in force, then the legislature puts in force the martial law.
Then there remains but one question-who shall put in force the martial law ? Shall it be proclaimed by the legislature, or shall it be proclaimed by any military man who chooses to do it? Our ancestors, in 1780, abundantly cautious of liberty, provided that only the legislature should proclaim the martial law. The gentleman for Wilbraham means to leave it so that any military commander that comes here, may proclaim the military law. He eulogizes General Jackson for putting New Orleans under military law. I think General Jackson was right in doing that. But I wish to know why, if it was right for General Jackson to do that, it is not right in the legislature to do it; why it is not better and safer in the hands of the legislature.
If the legislature of Louisiana had put New Orleans under martial law, it would have been far better than to have General Jackson do it. General Jackson had to assume the power to do it, and I think he did right; but if the legislature had declared the city to be under martial law, it would have saved him an assumption of power, and General Jackson, as a good citizen, would have rejoiced at it.
Now let us take a case nearer home. Suppose you pass this provision, and Massachusetts is threatened to be invaded by an armed force. Your civil law cannot be enforced. A military commander comes and says, here are five thousand troops firing upon us. The people are in arms; there is no civil law that can be enforced ; your wives and children cry to us for protection. Your sheriff is not strong enough to protect them; juries cannot be impanelled; courts cannot sit; and we must have a law. Well, Sir, what do we do? We say Massachusetts has provided for this great emergency. We have a martial law. Let military courts proceed where civil courts cannot. We therefore go to the legislature, and ask them to proclaim martial law for that part of the Commonwealth where civil law will not apply. And what does the legislature say? They say: “We had the power to do what you ask us to do up to 1853, when a Convention was held to revise the Constitution. It was composed of very good, very wise and excellent men, but they were under the impression that there ought not to be martial law, and they have taken away the power of proclaiming it.” And then the legisla
ture of Massachusetts will go down upon its knees to this military commander, and beg him to enforce that martial law which they have not the power to proclaim. They will surrender up to this one man, despot though he may be, all the power they possess, and allow him to exercise it without the power of controlling him, because his Convention has said that in no case shall the legislature proclaim martial law.
Now the question is not whether we shall have martial law cr not, for that we shall have, if the case should ever arise when it should be needed; but the question is, whether we shall allow a military chieftain, who may come here, to assume that power for himself, without the power of the legislature, or of any civil tribunal to control him, or whether it shall be left in the power of the legislature to proclaim it when it shall appear that the civil law cannot be exercised ? Shall we leave it to them, or shall we place ourselves in the mortifying condition of forcing a military hero to assume the power, in an emergency, because we have unwisely tied our hands in a period of peace ?
Mr. HALLETT, for Wilbraham. As the gentleman for Manchester had leave to state his view of this question, and as I think he has stated it not in accordance with the law or the facts of the case, I ask the indulgence of the Convention to say a few words in reply, and promise that I will detain them but a moment.
If I understand the point made by the gentleman, he assumes that "military law” is “martial law.” Now, Sir, martial law is not military law, and I am sure that the gentleman cannot undertake to assert it, from any authority he can produce. I can only attribute his error to his not having looked into the matter. I presume that Blackstone was not before him, or the opinion of Judge Woodbury, when he made that assertion. Sir, I repeat, martial law is not military law. You cannot find any martial law upon the statute books. Martial law is the absence of all law. It can only be proclaimed when the laws which the legislature has established cannot be enforced. I read from Judge Woodbury's opinion, as given in the 7th volume of Howard's Reports, in the Rhode Island causes. The question there was, whether martial law could be proclaimed by a legislature. The learned judge says :
Now there is the rule of law, and the clear distir.ction between military law and law martial. I do not suppose that the gentleman for Manchester intentionally misstated the point; but I must say that, as a lawyer, he stated it very disingenuously. Now I ask, will the gentleman contend that military law should supersede the civil law?
Mr. DANA. I said nothing of that sort.
Mr. HALLETT. The gentleman said that martial law existed in our statute books, and that when the civil law could not be carried out it should be superseded by martial law. If he is correct, it follows that military law may supersede civil law whenever the legislature choose to say so. Now, Sir, I repeat that military law and martial law are not the same thing, and that there is no martial law in the statute book. The gentleman alluded to a court-martial, and to a judge advocate. Why, Sir, there are no judge advocates under martial law. No, Sir; if the gentleman had ever looked into any book upon martial law or upon military law concerning a court-martial, he would have known the distinction. There is no trial under martial law. There is no judge advocate. It is the drum-head and the platoon.
Mr. DANA. Does the gentleman mean to say that the legislature has no right to control martial law or to enact it?
Mr. HALLETT. Yes, Sir. The legislature can only declare martial law, or enact that certain persons, or the whole people, shall be put under martial law. They cannot alter martial law, nor decree what it is. The case for declaring that martial martial law exists, can arise only when the legislature, as it did in Rhode Island, shall declare the whole State to be under martial law. In other words, an abrogation of all law. The legislature of Massachusetts could not declare one portion of the Commonwealth under martial law and the other under civil law, during a campaign. They could not declare one town under martial law and another under civil law.
Mr. DANA. The gentleman has not answered my question. I ask him whether he means to deny that the martial law is under the control of the legislature, and whether they have not the right to make laws regulating it?
Mr. HALLETT. That is the point I was explaining. No, Sir; the legislature cannot make martial law or control it, because they have no power to enact in detail a code of law which abrogates civil law. They have no authority whatever, except that contained in this provision in the Bill of Rights, which is just this, as it stands in the present Constitution:
“No person can in any case be subjected to law martial, or to any penalties or pains by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by the authority of the legislature."
There is the authority which is to declare mar, tial law, or to subject persons to martial law;
“The present laws for the government of the military in England, do not exist in the vague and general form of martial law, but are explicitly restricted to the military, and are allowed as to them only to prevent desertion and mutiny, and to preserve good discipline. So in this country, legislation as to the military is usually confined to the general government, where the great powers of war and peace reside; and hence, under these powers, congress, by the Act of 1806, has created the Articles of War by which the armies of the United States shall be governed, and the militia, when in actual service, and only they. To show that this is not the law by which other than those armies shall be governed, it has been found necessary, in order to include merely the drivers or artificers in the service,' and the militia, after mustered into it, to have special statutory sections. Till mustered together, even the militia are not subject to martial law.. And whenever an attempt is made to embrace others in its operation, not belonging to the military or the militia, nor having ever agreed to the rules of the service, well may they say, we have not entered into such bonds-in hoc vincula non veni. Well may they exclaim, as in Magna Charta, that no freeman
BILL OF RIGHTS, &c. — BIRD - CHURCHILL-BROWN - WILSON - PARKER.
The PRESIDENT. The question is on the final passage
of the resolves. Mr. SCHOULER, of Boston. As I wish to move an amendment to that Report, of which I gave notice last night, I hope the Orders of the Day may be laid on the table ; and I make that motion, that they lie on the table.
The motion was agreed to.
Mr. SCHOULER. I move that the Convention adjourn.
The question being taken, on a division there were-ayes, 83; noes, 44.
So the Convention adjourned until three o'clock, P. M.
Mr. BROWN, of Medway. I voted this forenoon, under a misapprehension, on the subject of the rights of the jury. That vote does not express my real views, and I wish to have it changed, so that it may be recorded yes, instead of no, on that question, if it is consistent with the rules to
not to make or modify martial law. Now the But there is another question which may very
any emergency will ever arise within the borders Now instead of that, it is proposed to take this of the State of Massachusetts, where it would be power away from the legislature and provide that advisable to confer upon the legislature the power . no person shall be subjected to law martial except to declare martial law. I do not believe such a those engaged in the army and navy, and except state of circumstances is possible in the nature of the militia in actual service. That is the law mar- things, in the next fifty years. I do not believe tial of the camp, which follows the army wherever any person upon this floor will rise here and say it goes, and that is all the law martial which any he seriously believes that any emergency will ever republican Constitution, made since the Revo- arise in Massachusetts which may not be safely lution, ought to provide for, and it is all the mar- controlled by the civil authorities. Then where tial law I hope this Convention will consent to. is the necessity or propriety of conferring such a
To settle this matter of definition, I will read a power upon the legislature when we can hardly short extract from 4 Blackstone's Commentaries, conceive of an instance in which it would be concerning martial law. He says :
proper to use it? I hope the proposition before
the Convention will be adopted. “ Martial law, which is built upon no settled Mr. CHURCHILL, of Milton. It seems to principles, but is entirely arbitrary in its decisions, me that if we are to adjourn on Saturday, the is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged in rather
debate upon this particular topic has been prothan allowed as a law. The necessity of order
longed as far as is necessary. It seems to me that and discipline in an army, is the only thing which
a power that has existed so in the Constitution can give it countenance.
without any harm coming from it, may very
safely be trusted there in future. At the same Mr. BIRD, of Walpole. I have but a single time, I believe some great emergency may arise word to say, and that is this: I hold that those in the future, when such a power would be who are opposed to the passage of this resolve, necessary. I therefore move to lay the whole must show that there is a necessity for conferring subject on the table. upon the State authorities this power to declare Mr. BIRD. Upon that motion, I ask for the martial law.
yeas and nays. Mr. DANA. We have always had it.
and nays were not ordered, 25 voting Mr. BIRD. There may have been a necessity in the affirmative, and 104 in the negative. for it when this Constitution was formed, for we The question upon Mr. Churchill's motion was had not then tried the experiment of self-govern- then taken, and agreed to-ayes, 70; noes, 67. ment. It was then a very doubtful experiment, So the whole subject was laid upon the table. and it is easy to believe that it may have been Mr. FRENCH, of New Bedford. I move a wise then to put such a provision into the Consti- reconsideration of the last vote, that the subject tution. But before gentlemen can with good may go among the Orders of the Day for toreason call upon me to vote for continuing this power, they must show that the power is neces- The PRESIDENT. At the present time, the sary in this year of grace, 1853. Sir, I do not Orders of the Day are under consideration. The believe it. It may have been considered neces- next order is the document on the Bill of Rights. sary, or because it may have been really neces- The question is on its final passage. sary in 1780, it does not follow that it should Mr. MOREY, of Boston. I move that the be continued now when that necessity has passed Convention do now adjourn. away.
The question was taken, and on a division there Mr. SCHOULER. Suppose it should be were-ayes, 65; noes, 93. necessary fifty years hence ?
So the Convention refused to adjourn. Mr. BIRD. It has not been necessary for Mr. BRIGGS, of Pittsfield. I wish to inquire fifty years past, and I believe the world is grow- whether the yeas and nays have been ordered on ing better instead of growing worse, and therefore the amendments to the Bill of Rights? It seems it will be no more necessary fifty years hence to me, that if they have not, we ought not to take than it is now.
the question now, on such a subject. Now, I must first be satisfied that any con- Mr. SUMNER, for Marshfield. There has ceivable case can ever arise in Massachusetts been no vote to take the yeas and nays on this where it will be necessary for the State authori- proposition. ties to proclaim martial law, before I will ever Mr. BRIGGS. Then I think we ought not to vote to confer such a monstrous power upon the act upon it now, with a house consisting of legislature.
scarcely a quorum.
The PRESIDENT. The subject having passed in Convention, it is not competent for the gentleman to change his vote at this time.
Mr. WILSON, of Natick. I move to take from the table the resolutions in relation to future amendments of the Constitution. I wish to have the subject placed in the Orders of the Day.
The motion was agreed to.
Mr. WILSON. For the purpose of saving time, I move to suspend the rules for the purpose of having this subject placed in the Orders of the Day, for to-day.
The motion to suspend the rules was agreed to, and the resolutions were placed in the Orders of the Day.
Sectarian Schools. Mr. PARKER, of Cambridge. I move now to take from the table the subjects contained in Documents Nos. 11 and 16 of the calendar, relating to schools and school moneys. I do not wish to consume the time of the Convention by any remarks; but I must regard a refusal to take them up, as a refusal to act upon them at all.
The motion to take them up, and proceed to their consideration, was agreed to.
The question was on the second reading of the following resolve :
Resolved, That it is expedient so to amend the Constitution, as to provide that no public money in this Commonwealth, whether accruing from funds, or raised by taxation, shall ever be appropriated for the support of sectarian or denominational schools.
Mr. PARKER. I move to amend the resolution of the Committee, by striking out all after the word “ Resolved," and inserting the resolve contained in Document No. 123, which is as follows:
That all moneys raised by taxation in the towns and cities, for the support of public schools, and all moneys which may be appropriated by the State for the support of common schools, shall be applied to, and expended, in no other schools than those which are conducted according to law, under the order and superintendence of the authorities of the town or city in which the money is to be expended; and such moneys shall HOUSE OF REPRESENTATIVES, &c.— MORTON - HUNTINGTON – WILSON - EARLE - SCHOULER.
never be appropriated to any religious sect for the maintenance, exclusively, of its own schools.
I do not wish to detain the Convention a moment with this subject. This amendment has been prepared on consultation with divers gentlemen; and it is one which, I suppose, will meet the approbation of the Convention, and may be adopted without debate; and unless some gentleman objects to it, I shall take no time in explaining it
The question was then taken on the adoption of the amendment, and it was decided in the affirmative.
The question recurred on the final passage of the resolution as amended, and it was passed.
Special Assignment. Mr. MORTON, of Taunton. There is a subject before the Convention of some considerable interest, upon an amendment which I had the honor to offer to the resolution in relation to representatives. At the request of certain individuals who were not satisfied with my amendment, I withdrew it a fortnight ago, and submit. ted it as an independent proposition. For the accommodation of gentlemen who wished to press forward other business, I omitted to call it up until now. I find that gentlemen are anxious to close their labors here, and that there are other propositions which they wish to have acted upon at present; and I have agreed to move that the Committee be discharged from its consideration, so that there may be a special assignment for it to-morrow, at an early hour. It will be necessary, in order to accomplish it, that there should be a motion to suspend the rules for the purpose of discharging the Committee.
The motion to discharge the Committee from the consideration of the resolution, was agreed to.
Mr. MORTON. I move that the rules be suspended, so that the subject may be considered in Convention.
The motion was agreed to.
Mr. MORTON. I now move that it be specially assigned as the subject for consideration at ten o'clock, to-morrow.
Mr. HUNTINGTON, of Northampton. It seems to me this question is closely connected with another question which remains to be settled yet; and that is, as to the mode in which these amendments are to be submitted to the people. If these amendments are to go before the people as a whole, under the form of a revised Constitution, I do not see how this can be adopted ; and I think that until that question is settled, it should not be discussed. I object to having it made a special assignment for to-morrow morning at ten o'clock, until the other question is settled. It seems to me we shall only get ourselves into embarrassment, and consume time to no purpose, by taking up this subject, until we have settled the other question.
Mr. MORTON. I make this motion under somewhat peculiar circumstances; and if it is debatable, I should like to give the reasons why I claim to have it assigned for consideration tomorrow at ten o'clock,
The PRESIDENT. It is debatable to that extent.
Mr. MORTON. It will be recollected that this proposition was submitted more than two weeks
ago, as an amendment to the resolves in relation think it should be disposed of before the other to representation. At the request of certain subject is taken up. For these reasons, I am in individuals who were in favor of this proposition, favor of the motion of the gentleman from Taunand upon the assurance that it should have an ton, and hope this subject will be assigned for early consideration, I withdrew it as an amend- to-morrow morning. ment. I did not wish to press it upon the Con- Mr. SCHOULER, of Boston. I have been vention, nor to surprise them with it at any time, trying for the last fortnight to discover some and concluded to offer it as an independent propo- insuperable objection to having this alternative sition. Various subjects have come up, and it proposition taken up. Gentlemen who have has been postponed from time to time, at the spoken to me about it, have told me that it was request of gentlemen who had some object which not possible to dispose of that subject now, and I they wished to have acted upon, until the present understand the gentleman from Northampton, to time. I think that, under the circumstances, I consider it impossible. If we decide that the have a strong claim to have it considered by the Constitution shall go out as a whole, with the Convention at an hour when they can have an exception of this representative question, I underopportunity to consider it. I therefore desire that stand him to argue that it will be impossible to an early hour may be fixed for its consideration send out an alternative proposition with regard to-morrow.
to the basis of representation. There must be So far as the objection goes, I think it should some objection that I have not thought of nor not prevail, because the gentleman may have as
heard of; for really, I cannot conceive of any. much of an opportunity to discuss it under this, Supposing we do decide that the Constitution as under the independent proposition ; and there- shall go out to the people as a whole, still I can fore, I hope that, under the peculiar circumstances, conceive of no objection to having this part conthe Convention will do me the favor, I may say
sidered separately. We may, for instance, place the justice, to make the special assignment. It is
in the Constitution, the system of town represenobvious, and we all rejoice at it, that this Con- tation that has been adopted by the Committee vention is about to draw to a close ; and unless this
and the Convention; and at the same time we can proposition, which is a pretty important one, is
send out to the people the other proposition for considered early to-morrow forenoon, there will them to vote on, and provide, that if the district no proper opportunity to consider it at the pres
system receives the largest number of votes, that ent session of the Convention.
shall be inserted into the Constitution in place of Mr. WILSON, of Natick. I wish to say but a
the other. I can think of no difficulty about single word in relation to this matter. I hope it arranging that matter. I think I can frame a prowill be specially assigned for to-morrow, and if at position in five minutes, that will put the matter that time it is not best to consider it then, if other
just right, unless there is some objection which has things come up, it can be deferred for a short time. not yet been advanced. I am in favor of the genWe have several subjects which it is necessary to
tleman's proposition, that we shall take up the dispose of this afternoon, and I hope the gentle
subject to-morrow morning at ten o'clock, and man from Northampton will not object to it. decide whether we are to submit anything to the Mr. HUNTINGTON, of Northampton. I
people besides the system of town representation · have no objection to that time, if we can save
which has been adopted. It has been intimated time by it; but the other question in relation to
that there is a compromise proposition to be offerthe mode of submitting the amendments to the
ed, that will, perhaps, reconcile all differences. I people, has got to be discussed when it is brought
think if this matter is taken up to-morrow mornbefore the Convention by the Committee who are
ing, there will be an advantage in having an early to report upon that subject. If you assign this
decision of the question, in order that the Comsubject for to-morrow morning at ten o'clock, it
mittee who are to prepare and write out the will be discussed then, and you will inevitably
amendments to the Constitution, may be enabled have another discussion on it when the Committee to govern themselves accordingly. For these report; and thus you will consume double the
reasons, I am in favor of the special assignment time that is necessary. It appears to me, that in
proposed by the gentleman from Taunton. discussing the main question, this will also be
Mr. EAMES, of Washington. I am in favor brought in and discussed incidentally.
of the assignment for to-morrow morning, for I tleman from Natick seems to suppose, that unless
am willing to give the gentleman from Taunton this is specially assigned for some future time, it
time to have the matter discussed ; but, for the necessarily comes up now; but that is not so. If purpose of putting an end to this preliminary deit is not assigned for to-morrow morning, it may
bate, which accomplishes nothing, and in order to go over, and if the gentleman from Taunton will
enable us to get home to our constituents some assign it for the same time that the other question
time or other, I now move the previous quesis to be discussed, I think we shall save time by
tion. so doing; as the two subjects are connected, let
The previous question was ordered. them be discussed together. I do not see why
The question being then taken on the motion the gentleman cannot modify his motion, so as to
of Mr. Morton, it was agreed to. have this assigned for the same time that the other subject is taken up. If he will make
Leave of Absence. that motion, I will vote for it.
The PRESIDENT. The Chair has received a Mr. EARLE. I think if this subject is first communication from Mr. Huntington, member of discussed, it will do very much towards enabling the Convention for Becket, stating that in conseus to come to a proper result in relation to the quence of a death in his family, he is obliged to other question. I think that that question can- ask leave of absence until the close of the session not be settled before, so well as it can be after this of the Convention. is determined. When this comes to be discussed, On motion by Mr. EAMES, leave of absence it will probably lead to other propositions, and I was granted.
BILL OF RIGHTS, &c. – WHITE - HALLETT – DANA — KEYES.
force. I will tell him. By the present existing gitive slave was taken out of the hands and the Mr. WHITE, of Quincy, moved to reconsider
law, the judge determines, upon the presentation custody of the marshal of the United States, by the vote by which the resolve on the subject of
of a petition and the evidence, whether he will the State of Pennsylvania, and when the marshal
issue the writ of habeas corpus or not. In the refused to give him up, he himself was imprisonappropriations for sectarian schools was passed; and upon that motion he asked the yeas and case where a person is held by a criminal pro- ed. How different, Sir, are our proceedings in
cess, if he determines that that legal process is a our courts in Massachusetts ! When an applicanays. The motion was placed in the Orders of the Day
valid process, he does not issue a writ of habeas tion was made on behalf of the State of Mas-for to-morrow.
corpus. Now the gentleman insists that if you go sachusetts, to the United States marshal of this
before the judge and apply for the writ of habeas district, in a similar case, he set your application Bill of Rights.
corpus, on the very civil process under which the and your laws alike at defiance. The officers of Mr. WILSON, of Natick, moved that the Con
marshal holds the individual, although the judge the United States spit in the face of Massachuvention proceed to the consideration of the re
thinks that is valid, nevertheless he must issue setts; and instead of that opposition which should solves from the Committee on the Bill of Rights. the writ of habeas corpus. Then you have the have come from brave men, there was a whining The motion was agreed to; and the resolves
whole State on the one hand to put down, and sycophancy, a cowardly cringing to the South, having been read a second time, the question was
the whole United States on the other hand to be which has had no example since the days of the stated on their final passage.
put down; and the question is, who can fend off Revolution; and the men who indorse this foul Mr. HALLETT, for Wilbraham, moved to the hardest?
cowardice, are the only men who are called nastrike out the following words, being the same
Mr. KEYES, for Abington. I have been quite
tional Democrats or national Whigs. (Laughter.] that had been inserted on the motion of Mr.
concerned the last three or four weeks, in conse- Sir, according to the definition the national DemoDana :
quence of not having heard anything said about crats have given themselves, they are unlineal and
saving the Union. I think it has not been saved bastard Democrats. [Renewed laughter.] What “ Said writ shall be granted, as of right, in all for at least three weeks. (Laughter.] Since we idea have they of the doctrines of their great cases where the legislature shall not specially con
have heard these patriotic speeches on the subject, founder, whose name they take upon their lips, fer discretion therein upon the court; but the
however, I feel somewhat inspired with a hope but whose doctrines they every hour trample in legislature may prescribe preliminary proceedings to the obtaining of said writ."
that we shall not go to pieces before to-morrow the dust? I take it, Sir, that Pennsylvania has
morning, now that the subject has been taken up. set an example which Massachusetts may follow; Mr. HALLETT. Mr. President: This is a Now, Sir, I take it that the meaning, if there is that of this idea of danger to the Union, and this wholly new question, and I wish gentlemen to any meaning at all in this matter, is to extend conflict with the government of the United States, be apprised of its importance. The insertion of and to render more secure the right of habeas with which men, for their own base purposes, this provision in our Constitution, may bring corpus in Massachusetts, to individuals. If this have endeavored to frighten the people of Massathe United States and the State into direct is the tendency of it, I suppose it will be adopted. chusetts, we have now had an example, and we conflict. This provision may authorize any per- There is a small class of people here in Massachu- now see to what it amounts. When Pennsylvason to take out of the custody of any United setts, who have undertaken to save the Union by nia, or any other State demands, and insists upon States officer, any one whom he has in trust making us all negro-catchers-nothing else; and, its just rights, those rights will be granted; and upon 'a criminal or civil process. The result I trust, whatever this Convention may do, that it that too, without danger to the Union; but if we of it is, you compel your State courts to issue will not degrade itself by following any such
lay down on our faces, dust-licking, they trample a writ of habeas corpus, and one of your con- lead as that. Yes, Sir ; there are a set of men upon us, as they ought to do, and as we deserve stables or sheriffs goes to the marshal to ex- here in Massachusetts, who, for the last two or to be trampled upon. We ask for nothing but ecute it, who must either resist it, or be liable to three years have taken it upon themselves to save our just rights and liberties; and if we ask for a penalty if he allows it to be carried into effect. the Union by making the people negro-catchers
them like bold, brave, and just men, we shall get If the marshal resists, the United States forces the miserable serfs of negro-drivers; and Henry
them without much trouble. It is because we will be called out, and he will be sustained by the Clay says that even throughout the South, they have a pack of men in this Commonwealth, and United States law. He would call on his posse are a tabooed and contemptible set-tabooed from
scattered all over the country for political purcomitatus, and if the governor happens to be on all civilized people, and from the society of gen
poses, to show that they are national men, and who his side, he would have the military ordered out tlemen. If that class of men are satisfied to be
are forever with their mouths in the dust, that to assist him, and you would have war imme- come negro-catchers; if they choose to become has brought all this evil upon us. Let us assert diately. If this Convention desire to have a war, these abandoned wretches that are despised by
the dignity of Massachusetts, and submit to this they must find means to carry it on. Now, Sir, all gentlemen, then I am content that they should
thing no longer. Let us show, that while we reI object to throwing any such firebrand as this do so, and will not undertake to interfere with gard the government of the United States, we are into the Constitution. I hope we shall leave this them at all ; but when they undertake to make not to neglect the interests and rights of the State matter where we found it; for if we are going to me a negro-catcher, I am not content, for I and the people of Massachusetts. Let the people have war, I want to know what your martial regard it as a personal insult, which I shall take of the New England and the Free States but say law is going to be. every occasion, and every justifiable means to
the word once, and all difficulties and collisions Mr. DANA, for Manchester. Will the gentle- resent. I say that this class of men are despised
between the South and the North will end at once. man allow me to ask him wherein my provisions | by the human race, as they ought to be. But if
Southern men are gentlemen ; Southern men are differ from a law in the Revised Statutes, which this matter is to be argued seriously-and I do brave, and therefore I am willing to trust them. has been in force ever since 1822 :
not believe that there is any need for it-take the It is not the slave-holder, born on the SavanMr. HALLETT. I will tell the gentleman case that the gentleman for Wilbraham, (Mr. Hal
nahthat there is a difference in one important point. lett,) has said may occur in Massachusetts. A
The PRESIDENT. The Chair must remind The gentleman wants to carry his particular cases. case of the kind has just occurred in Pennsylva- the gentleman for Abington, that he is passing He accused me of bringing some matters into the nia; and, Sir, the State of Pennsylvania does not
beyond the subject before the Convention. Constitution, for which he said I desired to make
rank itself anywhere beside Massachusetts on Mr. KEYES. I was not aware of it. I thought constitutional provisions because I had lost cases; these questions of liberty. But a case of that I was talking about the amendment. The amendbut the gentleman also lost a case, and he has got sort has arisen in Pennsylvania, and the marshal ment, if I understand it, is for securing the writ his hobby here that he proposes to ride through of the United States, armed with those infamous of habeas corpus, or rather for extending the power the Convention. hope the Convention will not allow him to ride it in peace.
powers which are conferred by the federal gov- of that writ in the State ; and, Sir, I maintain that
ernment, but which conflict with the laws of it is good for nothing, unless it applies to this Mr. DANA. That is not my question.
the State of Pennsylvania, has been arrested and matter of the fugitive slave law. It is scarcely Mr. HALLETT. I was going to answer the imprisoned in that State. Sir, look round on ever needed under any other circumstances, and gentleman's question, if he will let me take my these walls ; look up into the sky; look at Wash- those difficulties between the North and the South time for it. The gentleman asks in what respect ington, and everywhere else; and all that you are what make this amendment necessary. this provision that he proposes to introduce into ever knew about the Union is just as perfect as But, Sir, I do not seriously intend to argue this the Constitution, is different from a law now in before that event happened. Yes, Sir, this fu- amendment; because, if the Convention regard the