any sense. It does not give them strength, but on the contrary, their strength is derived from a source entirely independent of any right of representation. It depends upon the exercise of their municipal institutions. Representation is only incident to them. It is only a means of producing the representation of the people of the Commonwealth, and not a right to the towns in any

sense.

I have two or three quotations from standard writers upon this point. Of what is essential to municipality, one says:

"The characteristic of a town, is a municipal constitution. It is constituted for municipal purposes."

Another says:—

"That characteristic of a borough in which its existence originally and essentially resides-its organization for local government, forming the natural and necessary basis of its political character and efficiency."

Town representation is then only the basis and not in any sense the element of representation, as declared by the Constitution.

Sir, there was not under the colony law any perfect representation of corporations or towns. That law provided that there should be a union into districts of the small towns with less than a certain number of inhabitants and that towns containing a certain number of population should send one representative.

The delegate for Erving, has likened the town representation to the representation in the Senate of the United States, under the Constitution of the United States. He says that the little State of Rhode Island has as large a representation there as the great State of New York, and from that he argues that the little towns in Massachusetts should have as large a representation in our House of Representatives to be provided for under this Constitution, as the large towns of the Commonwealth. Now it seems to me that every gentleman must see there is no analogy whatever between the

cases.

The senators of the United States are representatives of the States of the Union, and the States which compose the Union, are all sovereign in themselves, having sovereign powers. They are as sovereign as the States of Great Britain, or France, and having conferred some portion of their sovereignty upon the national government, it was therefore necessary in the congress of the United States, that there should not only be a representation of the people, but that there should be representation of State sovereignty. It was accordingly provided that in the formation of

[June 23d.

the legislative department of the government of the United States, one branch should be composed of delegates representing the people, and the other composed of delegates representing the sovereignty of the States.

It was thought necessary that each one of these sovereignties should be present in the national council to see that its interests were properly attended to, its rights properly respected, and that none of its powers were infringed upon. So that there is not a particle of likeness between the representation of the States which compose the Union in the United States Senate, and the representation of the towns which compose Massachusetts or any other State, in the legislature of that State.

The present system of representation has two great evils. First, inequality of representation, and second, an inconveniently large House. It was to remedy those two defects that the people of the State demanded a Convention. The proposition of the majority of the Committee does not touch either of these evils. It does not cure, but rather increases, the evil of inequalty, to a very great degree. I do not know how any man can hesitate between retaining the old system which now exists in this Commonwealth and adopting this new one, which increases, to a great degree, the very evil which we are called upon to remedy. One gentleman-I believe it was the delegate representing Wilbraham, (Mr. Hallett,) — made a remark, which carried the intimation that town representation or something similar to it, is found in all the States of the Union. Now, in fact, there is not a State in the Union, out of New England, having a town representation or anything like it. In many of the States the representation is by counties, and in others by districts. In all of the original thirteen States, out of New England, it is by districts or by counties. In New York it is by districts. In New Jersey, by counties. In Pennsylvania, Maryland, Delaware and Virginia, by counties. In North Carolina by counties principally, except in three or four large towns. All the new States have representation by districts with the exception of Missouri, Iowa and Arkansas, where the representation is by counties. Louisiana has parishes. The gentleman representing Berlin, (Mr. Boutwell,) intimated that the representation of Louisiana by parishes was simply a form of representation by towns. But a parish in Louisiana comprises a territory larger than any one of the Connecticut River counties. It is provided by the laws of Louisiana, that a parish shall not consist of less than six hundred and twenty-five square miles, which will be a territory of twenty-five miles

Thursday,]

square-a larger territory than any of the counties upon the Connecticut River. It is in fact a representation by districts, and it makes the list complete; every State in the Union, out of New England, being represented either by districts or counties. There is one particular in which the proposition reported by the majority of the Committee must appear to every member of the Convention as operating great injustice and great political enormity in the action of the legislature. A little more than one-fourth part of the population of the State will, by the Report of the Committee, be able to elect an United States senator. I should like to know if the people of the State of Massachusetts are ready to say that a little over one-fourth of the people of the State shall have the power in their hands of electing a senator of the United States, against the wishes of nearly three-fourths of the people of the State? But the proposition of the majority of the Committee is not consistent in itself. It does not adhere to this corporate right, which has been so much eulogized, and upon which so much has been said. If representation is a corporate right, and if our system is to be made analogous to the system of the United States Senate, then why should one corporation have one representative and another one five or ten? That is a departure from the whole plan, and it is giving up the whole principle. If our system is to be similar to that of the United States Senate, or if the right of corporate representation is a strict right, then the large corporation has no more right than the small one. Every corporation stands exactly upon the same footing, and must be entitled to a like representation. I have not drawn up any plan of my own, but it seems to me impossible that the proposition presented to us by the majority of the Committee can be accepted.

Mr. ALLEY, of Lynn. I move that the Committee rise, report progess, and ask leave to sit again.

The question was taken, and it was decided in the affirmative.

The President having resumed the Chair of

THE CONVENTION,

the chairman reported that the Committee of the Whole had had under consideration the Report of the Committee on the subject of the Basis of Representation in the House of Representatives, had made some progress therein, but had come to no conclusion thereon, and asked leave to sit again.

Leave was granted.

On motion of Mr. ALLEY, the Convention adjourned until three o'clock P. M.

[June 23d.

AFTERNOON SESSION.

The Convention reassembled at three o'clock.

Election of Justices, &c.

On motion by Mr. EARLE, of Worcester, it

was

Ordered, That the Committee on the Secretary, Treasurer, &c., consider the expediency of a constitutional provision for the limitation of the terms of service of Justices and Clerks of Police Courts, and for their election by the voters of the towns or cities respectively in which they may be located.

Plan of Representation.

Mr. GARDNER, of Seekonk, submitted the following Plan of Representation in the House of Representatives, which was referred to the Committee of the Whole, and ordered to be printed :—

Resolved, That it is expedient so to amend the Constitution as that the members of the House of Representatives shall be apportioned in the following manner :—

1. Every town containing less than one thousand inhabitants, shall be entitled to elect a Representative five times in ten years. Or, any two or more towns, containing less than one thousand inhabitants, may, by consent of a majority of the legal voters present at a legal meeting in each of said towns respectively called for that purpose, and held before the first day of October in the year 1853, and every tenth year thereafter, form themselves into a separate District, and so continue for the term of ten years; and such districts shall have all the rights, in regard to representation, which would belong to a town containing the same number of inhabitants.

2. All towns and cities in the Commonwealth, containing from one thousand to five thousand inhabitants, shall be entitled to elect one Representative annually.

All the towns or cities in the Commonwealth containing over five thousand inhabitants, shall be districted into single Representative Districts, as follows:

3. Every town or city having from five thousand to ten thousand inhabitants, shall be entitled to elect two Representatives annually.

4. Every town or city containing from ten thousand to fifteen thousand inhabitants, shall be entitled to elect three Representatives annually.

5. Every town or city containing from fifteen to twenty thousand inhabitants, shall be entitled to elect four Representatives annually.

6. Every town or city containing from twenty thousand to twenty-five thousand inhabitants, shall be entitled to elect five Representatives annually.

7. Every town or city containing from twentyfive to thirty-one thousand inhabitants, shall be entitled to elect six Representatives annually.

8. Every town or city containing from thirtyone to thirty-eight thousand inhabitants, shall be entitled to elect seven Representatives annually.

9. Every town or city containing from thirty- | eight to forty-eight thousand inhabitants, shall be entitled to elect eight Representatives annually. 10. Every town or city containing from fortyeight to sixty thousand inhabitants, shall be entitled to elect nine Representatives annually.

11. Every town or city containing from sixty to seventy-five thousand inhabitants, shall be entitled to elect ten Representatives annually.

12. Every town or city containing from seventy-five to one hundred thousand inhabitants, shall be entitled to elect twelve Representatives

annuay.

13. Every town or city containing from one hundred to one hundred and twenty-five thousand inhabitants, shall be entitled to elect twenty Representatives annually.

14. Every town or city containing from one hundred to one hundred and fifty thousand inhabitants, shall be entitled to elect twenty-five Representatives annually.

15. Every town or city containing from one hundred and fifty to one hundred and seventyfive thousand inhabitants, shall be entitled to elect thirty Representatives; and no town or city shall be entitled to more than that number.

The above plan will give to The county of Suffolk

25 Representatives.

Essex, Middlesex 58 Worcester, 59 Hampden, 21

42

COMMITTEE OF THE WHOLE,

Mr. Wilson, of Natick, in the Chair, upon the resolves on the subject of

The Basis of Representation,

The question being on agreeing to said resolves. Mr. ALLEY, of Lynn. Mr. Chairman. It was my intention not to have said a single word upon this question; to have listened to the arguments and contented myself with giving merely a silent vote, but this is a matter in which my constituents feel deeply interested, and I feel it incumbent upon me, therefore, to submit a very few remarks to the Committee. This question will affect them, probably, as much as any other section of the Commonwealth, especially if the

[June 23d.

Report of the Committee be adopted. I have listened, with a great deal of interest, to the debate upon this question, but I have not heard anything submitted to the consideration of the Convention, which exactly meets my views, and it seems to me that the reports of both the majority and minority Committees are eminently unjust, unequal and impracticable. I heard the able argument of my friend, the distinguished gentleman representing Berlin, (Mr. Boutwell,) the other day, with very great pleasure, and I fully concurred with his views in regard to the importance of town representation, but he failed to convince me that it was absolutely essential to the preservation of the interests of the rural districts, and for the protection of the country against the centralization and concentration of wealth and population in the cities, that town representation should be in all cases strictly preserved. No man appreciates, more fully than I do, the importance and necessity of preserving town representation. So far as the Report of the majority of the Committee is concerned, I think it is a foregone conclusion, that it cannot receive the sanction of this Convention. So far as the interests of my constituents are concerned, it affects them vitally. It reduces their representation in the House of Representatives for the next ten years, one-fourth, and it gives to three contiguous towns containing less than one-fourth of the population of the city of Lynn, three representatives. It will give, in the next decennial period, to the little town of Nahant, which has been separated from the city of Lynn this very year, one representative, which would be twentyfive times as much representation as the city of Lynn would have. There was an objection made the other day, which struck me at the time as being of paramount importance, in the very able speech made by the gentleman from Middleboro', (Mr. Wood,) in relation to the introduction of a new political element into the legislature, occasioned by the division of towns, in case this Majority Report is accepted, and town representation in all cases is preserved. If it should be made a condition in the Constitution, that every town should have a representative, it seems to me that you will have numberless towns in this Commonwealth clamoring at the doors of the legislature for a division, and frequently upon political grounds. I know it has been the case, heretofore, that political considerations have actuated the legislature in the division of some of these large towns. Within two years, the city which I have the honor, in part, to represent, has been dismembered twice of a portion of its territory. The towns of Swampscot and Nahant

have been incorporated within two years, from territory belonging to the city of Lynn. I will not say that these towns ought not to have been incorporated, I will not say that there were not good and sufficient reasons given to the legislature why such a division should be made, but I stand here to say, and I say it without fear of successful contradiction, that so far as the town of Swampscot was concerned, political considerations occasioned that division. Votes enough were procured, by appeals to such considerations, to create that division. One gentleman, who voted against what he told me previously were his convictions, when asked by me for a reason for his vote, replied, that he was told by his political friends that if Swampscot was taken from Lynn, that Lynn would be a Whig city, and he said that many of his political associates voted upon the same ground. He was a high-minded and honorable man, one who would not intentionally do wrong, but I thought much better of his candor than of his judgment. I have known other cases which have come under my observation, where I had no reason to doubt that political considerations produced their effect in occasioning divisions. If this be the case, it does seem to me, I do not know how it may strike the remainder of the Convention, to be a question of paramount importance. Within a few years past the disposition to divide the large towns has been much more prevalent than formerly. There have been incorporated twenty-four new towns since 1838. Thirty-two towns have been incorporated since 1820. Seven new towns have been incorporated since 1850, thereby showing an increasing disposition to make new towns. I shall be as glad as any one to preserve town representation, if it can be done with any degree of propriety, but I am unwilling to make that a sine qua non. I am unwilling that town representation shall be preserved at the expense of every principle of justice, every axiom of liberty, and every sentiment of propriety, as it seems to me is done by this Majority Report. I know it has been pretty well established, that the precedents are all in favor of town representation, and that the people of Massachusetts have adhered, with great tenacity, to town representation, during nearly the whole period of its colonial and constitutional history. I have but a slight regard for precedents, unless they accord with my own convictions; so that makes but little difference with me. I would not attach much importance to them. I consider the Report of the Minority Committee much more objectionable than that of the Majority, much more unequal and unjust. For, however paradoxical it may seem, for one

[June 23d.

who claims to be a progressive, I hesitate not to declare that I believe representation upon the basis of the Minority Report will be much more unequal, unjust and oppressive, than that based exclusively upon town corporations.

Whatever may be said to the contrary, I nevertheless believe that the country does need protection against the cities and large towns. Sir, it needs protection against the influences of the wealth, the talent, and concentrated power of the cities and large towns. This system of checks and balances which has been so much talked about here, is a system which has been recognized by this government, and by all other governments which we should have any desire to imitate. In the Convention of 1820, Mr. Webster took the ground that it was absolutely essential to the preservation of government that we should have these checks and balances; and in this connection, I will read an extract from his celebrated speech, which has been so much commented upon, delivered in the Convention of 1820, wherein he made the startling declaration that it was but the prompting of wisdom to found government on property. In that speech, he took strong ground in favor of checks and balances, as being indispensably necessary to protect the liberties of the people. He says:

"In my opinion, Sir, there are two questions before the Committee; the first is, shall the legislative department be constructed with any other check than such as arises simply from dividing the members of this department into two Houses? The second is, if such other and further check ought to exist, in what manner shall it be created?

"If the two Houses are to be chosen in the manner proposed by the resolutions of the member from Roxbury, there is obviously no other check or control than a division into separate chambers. The members of both houses are to be chosen at the same time, by the same electors, in the same districts, and for the same term of office."

or otherwise, after these members thus chosen should have come up to the capitol.

"I understand the reason of checks and balances, in the legislative power, to arise from the truth that in representative governments that department is the leading and predominating power; and if its will may be at any time suddenly and hastily expressed, there is great danger that it may overthrow all other powers. Legislative bodies naturally feel strong because they are numerous, and because they consider themselves as the immediate representatives of the people. They depend on public opinion to sustain their measures, and they undoubtedly possess great means of influencing public opinion. With all the guards which can be raised by constitutional provisions, we are not likely to be too well secured against cases of improper, or hasty, or intemperate legislation."

It will be seen, Mr. Chairman, that Mr. Webster was applying these views to the other branch of the government. But as we are now situated, having agreed upon the basis of the Senate, and that it shall be based upon population in equal senatorial districts, it seems to me these remarks are peculiarly applicable to the House of Representatives under the existing circumstances. He says again :

"The Senate is not to be a check on the people, but on the House of Representatives. It is the case of an authority given to one agent to check and control the acts of another. The people having conferred on the House of Representatives powers which are great, and, from their nature, liable to abuse, require for their own security another house, which shall possess an effectual negative on the first. This does not limit the power of the people, but only the authority of their agents. It is not a restraint on their rights, but a restraint on that power which they have delegated. It limits the authority of agents in making laws to bind their principals. And if it be wise to give one agent the power of checking or controlling another, it is equally wise, most manifestly, that there should be some difference of character, sentiment, feeling, or origin, in that

agent who is to possess this control. Otherwise, it is not at all probable that the control will ever be exercised. To require the consent of two agents to the validity of an act, and yet to appoint agents so similar in all respects, as to create a moral certainty that what one does the other will do also, would be inconsistent and nugatory. There can be no effectual control without some difference of origin, or character, or interest, or feeling, or sentiment. And the great question, in this country, has been where to find, or how to create this difference, in governments entirely elective and popular. Various modes have been attempted, in various States. In some, a difference of qualification is required in the persons to be elected. This obviously produces little or no effect. All property qualification, even the highest, is so low as to produce no exclusion, to

June 23d.

any extent, in any of the States. A difference of age in the persons elected is sometimes required; but this is found to be equally unimportant. It has not happened, either, that any consideration of the relative rank of the members of the two Houses has had much effect on the character of their constituent members. In this State, the qualification of the voters is the same, and there is no essential difference in that of the persons chosen. But in apportioning the Senate to the different districts of the State, the present Constitution assigns to each district a number proportioned to its taxes. Whether this be the best mode of producing a difference in the construction of the two Houses, is not now the question; but the question is whether this be better than no mode."

Now, with regard to what has been said here in reference to the tendency to centralization and the influence which property has upon the administration of government and upon the legislation of the State, Mr. Webster says:

"It seems to me to be plain, that, in the absence of a military force, political power naturally and necessarily goes into the hands which hold the property."

Although he was contending in that speech for

founding government upon property, yet, notwithstanding, the argument as applied to the constitution of the House of Representatives, it seems to me, is peculiarly forcible. We have agreed, Sir, upon the basis of the Senate, and although it is nominally and theoretically the popular branch, yet, practically, it is the conservative body as heretofore. By the division which has been made-as the representation is based upon population and not upon voters, and as the foreign population concentrates in Boston and the large towns, and females constitute so large a portion of the population also in the large manufacturing towns and cities-it will naturally happen that these large towns and cities will secure a greater proportion of representation than they are entitled to, in my judgment of equality. Therefore I say that, although theoretically it is the popular branch, yet, for all purposes of practical legislation, it is the conservative body; and it represents to a greater degree than this branch does now or ever has done, the conservative interest in the Commonwealth.

Sir, I am the last person to disparage Boston, or to do or say anything which will affect injuriously her interests. Whatever affects the prosperity, interest, or glory of Boston, affects me. Here I spend the greater portion of my time; here is the majority of my business, and I would not consent to any proposition which will have a tendency to injure substantially the rightful in