(July 1st.


then, should they transfer their appointing power | opinion, for the people to make an assignment of to agents and attorneys.

their appointing power, in any case, where they In relation to the judge of probate, there is a have the opportunity and ability to exercise it security, which the records of the probate juris- themselves. Al human experience shows that diction furnish. No executor can defraud the agencies to create agencies, are avoided by prulegatees of his testator,-no administrator can dent men, and associations of men, whenever they wrong the widow and heirs of his intestate, if it can be. It is a trust-power which cannot be be seen to, that the estate effects and credits are prudently transferred and imparted. The mass is placed upon the inventory, the accounts are fairly governed by the same motives which direct the stated, and the records accurately kept. Those individual. That business should not only be who have the administration of property of de- done, but well done, is quite as important, and ceased persons, are constantly under the super- quite as much regarded, in the one case as the vision of watchful creditors and jealous expect- other. The people would no sooner appoint to an ants. No decree, affecting the interest of every important office, where the candidates are known, one, is passed till after due notice, and not only and their qualifications canvassed, a man unthe doings of the administrative agents, but the suited to it, than my friend from Boston, had he orders and decrees of the judge in relation there a temple to erect, would select for the drawings to, are matters of careful inspection. There is of the plan and the supervision of their execuno danger from the sources which the gentleman tion, an ordinary house-carpenter from the counhas suggested.

try. The people will act very much as he wouldI fully agree with my friend for Otis, (Mr. Sum select the very best man they can find. As with ner,) that every man is not competent, although a individuals in this respect, so with the people in man of good sense, to discharge the duties of judge It is said that this will be made a purely of probate as they should be discharged. These political matter. Party politics may enter into it, duties have become various and complicated, and but, I believe, to no dangerous or mischievous are becoming more and more so, as business and extent. I have satisfaction in the conviction that social relationships increase in number and com the people, collectively, care very much less about plexity. A capacity and talent to examine long party organization, and party victory, than of and involved accounts,—to detect the errors which the public good and prosperity. Indeed, if I often occur in such accounts, and so to classify mistake not, in local matters, the time is at hand, the statements, that they may be easily seen and if not now, when the first inquiry will be, not fully understood, are very necessary to this officer. to what party he the candidate belongs, but who If he be not a lawyer, an intimate acquaintance is he, what sort of man, and what he does believe with those branches of the law which relate to in—is he morally trust-worthy? It is to draw the construction of wills, the duties of executors, these county officers as far away from politics and guardians, and trustees, the marshalling and dis- its agitations as they can be taken, that I would tribution of assets, &c., is indepensable. These make them elective. They are now subjects of are matters which require a sound judgment, no executive appointment. Who is the executive ? little learning, and a good deal of critical exami- Is he no partizan ? Was he not thrown out of the nation. Now, I ask, will the people of the boiling chaldron of party strife? Is he not the several counties, who are so directly and largely product of party fermentation ? Is he not often interested in the able and faithful discharge of both the cause and the effect of party bitterness these duties, be likely to select either careless, or and violence? Is the standard bearer of the party dishonest, or incapable men to perform them. influenced by no party considerations in his apWill they be controlled in any considerable de pointments to offices of trust and honor? Will gree, by political considerations in their selections he not do what he has promised to do, and for When they become so reckless, so wild, so insane, which he was chosen? Does the history of the as to throw away their regard for a good name after past leave a lingering doubt? No, Sir; a man death, and their love and affection for their child- nominated by a caucus, puffed by caucus apren, they may do so; but not till then. Instances pointees for that purpose, sustained by one party, are by no imeans rare, they are very frequent in opposed bitterly by the other, will be true to his deed, where political considerations have been en- prejudices, true to the expectations which he has tirely absorbed by the much greater considerations raised, until the standard of political morality beof faithfulness and capacity. That this will be the mes more elevated than it is at present. Hit or case in relation to all officers to whom are com miss, he will discharge his obligations to his mitted the charge and control of the business of friends, and it may be often irrespective of the the people, I have no doubt. It is unwise, in my interests of the people. I concede, that he may



[July 1st.

pick out, if he can discover him, the very best looked after and kindly cared for, and I venture man of his own party. He can go no further, to predict that, he who now exercises the probate without incurring the disapprobation, and may be jurisdiction in my own county of high hills and the bitter vituperation and vindictive persecution large hearts, will sit where he is just so long as of his political friends. The people are not thus he chooses to do so. straightened and circumscribed. They can, if When the people have found a man popular,they will, and they will if they can, select from in the sense in which I would use that word, not any and all parties the man of their choice,-and popular in the sense given to it by my friend from who can cite them to account? Their appointee Boston, that is, a facile man, fawning and obseis independent, not an appointee accountable to quious to the people,-when they have found a an appointee compelled to answer over. Such, man straight, erect, capable, prompt, always ready Sir, is the appointing power, and such the ap and willing to discharge his duties, they will stick pointments, which your Committee would have. to him, re-elect him, and never, till obliged, incur

A word, Mr. President, in relation to the tenure the hazards of change. How is it with our serof county and district officers.

geant-at-arms, now in this town? He has stayed The Committee have reported in favor of their here for years, amidst all the changes and agitaelection triennially. I do not regard this par tions of party, and why? Because he is the very ticular limitation as a very important matter. It man to perform the duties of that office which he may be enlarged without affecting the principle fills to the entire satisfaction of all men, cliques, which governed your Committee ; yet, I think, and parties; and here, I venture to say, he will the period recommended a proper and judicious stay, if God spares him, legislature after legislaone, and, perhaps, the wisest limitation which ture, be its political complexion what it may, becan be made, not because the judge of probate, cause, first, he is a man of integrity; second whose term is sought to be enlarged, will become he is equipped for his duties; third, he is not a thoroughly and intimately acquainted with all facile and obsequious, but a firm, decided man; the duties of his office in the course of a year or and last, a courteous and urbane man. One with two, but because in the time limited in the report such a combination of qualities is too high and his capacity and fitness can be ascertained, and strong to be pulled down even by diciplined party if the people have made a mistaken choice, if yiolence. they discover they have selected a man for the Sir, I maintain that there is little danger of office, incompetent to the discharge of its duties, political influence or interference with the election or unqualified in any respect, or faithless to the of judge of probate ; little, indeed, with that of trusts committed to him, they may have an op any other county officer, whose duties are not of portunity to rectify the mistake. Three years is a political character, and do not connect him, long enough to test and try him in, and if he be necessarily, with the leaders of political parties. found wanting, the people should not be required, A good man, a faithful and a wise, is sure of his he should not require them, to endure him reward. The people will reward him. They are longer.

disposed to do so. It is for their interest to do If, on the other hand, he be found learned, so; and if that reward is re-election, he is sure faithful, capable and competent to the discharge of it. of his duties, and I will also add,-though per Mr. LORD, of Salem. I do not think, when haps of less moment,-if he be found courteous these resolves were under discussion before, that and gentle, kind and friendly to the widow and any particular objection was made to the manner the orphan, over whom, by law, he is appointed of electing these officers; and, I propose now not the overseer ; if he do not repulse them by an to discuss the question how the judges of probate impatient frown, as they approach him, but meets should be put into office, whether by the people, them with the sympathetic cordiality which or by the executive, because I deem that to be should characterize their legal protector and comparatively an unimportant matter. guardian; he will be selected over and over willing to agree with gentlemen that upon the again. It has been my pleasure, for a quarter original selection of persons for local offices, the of a century, to look on such judges, and no people are quite as likely to make a wise choice other; to admire, and covet, too, as one of the as the executive is; but, this is not a question things most worth living for—the love, confidence, of original appointment. The difficulty does not and respect which they received. I would ask lie in that at all, but in the dependence of the for no other earthly reward, no higher felicity, officer. I care but little about the manner of the than the thanks and gratitude of the widows and election of these judges, or of any judges, proorphans of the dead, who have been faithfully vided you make them independent, and put them

I am



(July 1st.

out of the way of temptation ; provided you put and that cases of apparent wrong will hurl a just them in a position where women's tears cannot magistrate from his place, and put an unjust one affect them. That is the place where we want a in. It is for that reason that I would not have judge. If you make a judge of probate eligible been a magistrate, dependent for his continuance for only three years, do you not recognize again in office, upon a widow's tears. the principle that men are influenced by the hand But, Sir, I have not yet said, and I am not that feeds them. And has not this Convention quite prepared to say, how I would have the not only recognized that principle, but have they original selection made for the office of the judge not also determined that poor human nature re of probate. I am quite prepared, however, to quires protection against it—that it is our duty to say, that the tenure of his office shall be an inderender man, in the discharge of important func- pendent one, and one in which he should not be tions, entirely independent of the hand that feeds moved by the cries of distress which the gentlehim. Will they tell me what their secret ballot man from Lenox has portrayed. is made for? Is it not because there is a class of I agree that it is a court of inferior jurisdiction, men, a class of voters, who have not the inde- but every act of discretion of a judge of probate pendence to act contrary to the wishes of the hand may be reversed upon appeal. I do not agree that feeds them? Have we not, by putting that with the gentleman from Lowell, (Mr. Butler,) provision into the fundamental law of the land, and with the gentleman for Manchester, (Mr. acknowledged that human nature is so consti- Dana,) that the acts of discretion of a judge of tuted that men will yield to the hand that feeds probate cannot be revised. I believe they were them? Now, Sır, my doctrine is, that men led away by a false analogy. They supposed, ought not to yield to the hand that feeds them, that because the supreme court, having appelate and the man who is not capable of withstanding jurisdiction in matters of law, cannot revise the that temptation, is not fit to exercise the duties discretionary acts of the court of common pleas, which devolve upon him. I care not who the therefore, they cannot revise the discretion of the judge is, whether he be a judge of probate, or any court of probate. But the analogy does not hold other judge, if he cannot perform his duties with and the supreme court may revise the judgment out yielding to the hand that feeds him, he can of a judge of probate upon the sufficiency of a not perform them well, and ought not to be in- bond, as well as upon a decree of distribution, or trusted with them. I want the judge of probate any other decree. Whatever act is discretionary —and I deem his office one susceptible of great may be revised by the supreme court, it being abuse-elective, in the sense in which I use that the supreme court of probate. term. I would not make the incumbent depend But is it an argument that, because, when you ent upon the caucus for his continuance in office. put an unfit man into office, there is a remedy I do not speak of the original appointment. I for the wrong which he will do, therefore, you agree with the eloquent speech of the gentleman will take such a course as will lead to the selecfrom Lenox, (Mr. Bishop,) in that there is noth tion of a man who will be likely to do wrong? ing so powerful as a woman's tears. I agree in Although I agree with the gentleman from Bosthat, and you may put Gabriel in the place of a ton, that it is desirable to have a judge of projudge of probate, and send before a caucus, to bate who is learned, not only in all the mysteries nominate a successor, a woman in her tears, with of the law, but in all departments of science, yet her professed and apparent wrongs, and Gabriel it is not really necessary. In the good old councannot so far sustain himself as to be renom ty of Essex, we never had but one judge who inated.

was a lawyer. I mean a lawyer by profession. Well now, Sir, I know the tendency of the other things being equal, the cultivation and minds of men are always sympathetically inclined pursuits of a lawyer are of much advantage to a to the widow. The widow and the orphan are judge. always powerful before any tribunal. It is be But, Sir, while I consider it important that cause of the abuse of that power, and because the Judge of Probate should hold his office inwill be wielded not for right, but for wrong, that dependently, I do not consider that his office I do not want the continuance of the judge of is, by any means, the only important one that probate to depend upon that. We all know that needs to be carefully guarded in relation to its the exercise of the power by the judge of probate independence. Nor do I consider that his indeis so delicate, that with all his sympathy, and all pendence is, by any means, the only one that may his disposition to mete out justice to the widow be interfered with. I think the gentleman from and to the fatherless, there will be cases where Lowell, (Mr. Butler,) was right when he said exact right, and exact justice, is apparent wrong, that the office of sheriff was a very important



(July 1st.


one, and in some respects quite as deserving seri- , considerable amount, and I cannot, therefore, ous consideration in reference to the manner of speak so much from experience as from observaselection and tenure, as that of judge of probate. tion, nor with quite so much enthusiasm ; but, I And, Sir, the deputy-sheriffs may also be placed think the experience and observation of every in the same category. I do not know why we member of the Convention will testify to the should not have our deputy-sheriffs placed upon truth of the remark, that the moment you make the same basis with sheriffs, if simply because a man interested in the soil, that moment you they are public officers to do the work of citizens, make him a good man, and a good public man. the people should choose them. They are no Now, while I think of it, I will say what I more and no less executive officers than the sher- have not said before, that I am not at all afraid of iffs, and the general line of argument here in favor the small towns. (Laughter.] I do not care of the selection of persons to all places of trust or how much you talk about them, they will come duty as well applies to deputy-sheriffs as to sheriffs. out all right in the end, because, almost every

But, Sir, there is another officer which is also voter in them is interested in the land. a very important one-I mean the County Treas Now, take the case of county commissioners, I

A gentleman says he is always re-elected. believe in one county there were only some fourWell, Sir, I believe that is a fact, and I believe it teen or fifteen, or perhaps, nineteen hundred is also a fact that the county treasurer is always votes cast for them at the last spring's election, from the time he is elected, the most popular man out of some seven or eight thousand who usually in the county, and why is it? Probably because vote in elections. Well, Sir, what were the he never has anything to do with the people of reasons which operated to secure their election ? the county except to pay them money. Sir, if Was it the qualifications of the man for the office ? you will give me a chance to pay the people all No Sir, that consideration was not taken into the money I want to, as unpopular as I may be, account at all. It was in some cases, because a I will be elected to the Convention to the legisla- | particular road was laid out, and in others, because ture, or anywhere else. (Laughter.] That is the a particular road was not laid out. Now, will secret of the county treasurer's popularity. But, any gentleman in this Convention tell me of a while the treasurer is all the time paying money, single case where county commissioners have and doing nothing else, the sheriff is all the time been elected upon any other than a mere sectional grasping money or grasping men, and you will or local issue-some matter purely local in its find the result very different in respect to popu- character? I believe there are no exceptions, larity. I doubt if you can find an instance where though, possibly there may be some. The electhe sheriff is re-elected year after year. If you tions ordinarily turn upon some considerations of will show me such an instance I will agree that I that nature. am mistaken in the considerations which in my We have elected our county commissioners judgment will influence the popular mind in since 1836–7 or '38, I do not recollect precisely elections to offices of this character.

the time, and at the last election by the aid of A MEMBER. Registers of deeds are elected, two roads, one bridge, and by two towns wanting and the people are always paying them instead of to elect a particular man, we made out to re-elect receiving from them.

the old commissioners in the county of Essex, but Mr. LORD. Yes. Registers of deeds are offi this is the first instance of a re-election of the cers who receive money from the people, as my whole board in that county. There has always friend by me suggests, but the people do not pay been a change in that board. And how does them money until they have received from these this happen: Do the people come out and canofficers something which does them more good vass the matter? Do they inquire of the qualifithan the money did, for there is nothing gives a

cations of the candidates . Not at all. Some parman more pleasure than to know he is recorded ticular man happens to be out of employment at as a holder of real estate. I believe it is the best that particular time; his friends think the old feeling in a republican community. I believe commissioners have made a great blunder with rethere is nothing that makes an individual feel so gard to a particular road; that it will be best for much his importance and dignity as a man, as to their interests to put this man in, and so they go know that he has a deed recorded, showing that to work to get him elected. That is the way it he is the possessor of real estate. Well, Sir, he is done. must go to the register of deeds to get his deed As a general thing we have had pretty good recorded, and that makes this officer popular. I county commissioners, but they have been chosen am sorry to say that, I have not quite arrived at wholly on account of their particular views of a the dignity of a holder of real estate to any very particular road or on account of some matter of



[July 1st.


mere local importance, and I do not think that is | these officers may be originally made, whether by a good principle upon which to act.

the people or by the governor, that we should enThen the office of commissioner of insolvency, deavor to make them as independent as possible. is one, in my opinion, of more importance and I do not doubt that these offices may be well filled, one from which more danger may be apprehended even where the tenure is a short one. Fix it at than that of judge of probate. The general object three, five, seven, ten or twelve years ; fix it at of insolvents in selecting a commissioner of insol any limit you choose, but say that the officer shall vency to whom to present their petitions, is to get hold his office during that term, unless he does a man that will put them through. Well, Sir, something for which he may be impeached, and these gentlemen who want to be put through, as then in no case allow him to be a candidate for a general thing, are pretty active at the caucuses. re-election,-do that, and I think that many of I do not mean to give them any undue influence the evils which some of us apprehend from making there, but they generally act pretty briskly. The so many officers elective for short terms, may be only question to be asked, when a man comes avoided. I do not care to whom is intrusted the to vote for a commissioner of insolvency is, did he original selection of these officers, so that they are put my friend through well ? Because, if he did, made independent. he is a man of good feelings and a kind disposi But, Mr. President, I did not intend to have tion ; he is disposed to treat the unfortunate len detained the Convention so long. I thought iently. But, if he put the man through rather when I began that I should scarcely occupy the doubtfully, then the controversy is between the attention of the Convention for five minutes, but friends of the creditors and the friends of the in I have unconsciously been drawn into what may solvent. So it is, all these officers will be likely to seem to have been intended as a speech upon the be chosen from merely local, or partial, or personal general subject-I feared there was some danger considerations.

of confounding the original filling of these offices If a man feels himself crowded by the action of with their subsequent tenure, when the original a local tribunal of this kind, he immediately sets appointment seemed to me to be the least danhimself to work to bring the action of the ma gerous part of the matter, and I rose merely to chinery of a political caucus to bear upon that

call attention to the distinction. Now, Sir, if the people are to select such Mr. DANA, for Manchester, remarked that he an officer as that, I would make him indepen-wished to reply to some of the suggestions which dent, and not obliged so to gauge his conduct so had been made, and he was ready to do so now if as not to stir up a hornets nest about his ears. it was the desire of the Convention to take the We, all of us, know the management of caucuses question to-night; but, upon the suggestion of in relation to these officers. If a commissioner of members around him, that it would not be desirainsolvency, in the honest performance of his duty, ble to vote upon it this evening, he moved to lay refuses to discharge a debtor, the friends of that the whole subject on the table. debtor, or the insolvent himself, and probably

The motion was agreed to. both, will almost certainly go privately about, working the wires for packing the caucus so as

Report from a Committee. to prevent the re-election of the commissioner. Mr. FROTHINGHAM, of Charlestown, from There is not a man in this House who does not the Special Committee to whom was referred the know that it is a matter which can be very easily subject of Granting Special Charters for Banking accomplished in any county where there is noth purposes, having considered the same, reported ing to draw public attention to it. Half a dozen the following resolve: men determined to do it, can, at any time, pack a caucus, and out goes the commissioner of insol COMMONWEALTH OF MASSACHUSETTS. vency a good deal easier than he came in.

In Convention, July 1, 1853. Sir, this is an office of a great deal of importance

Resolved, That it is expedient to insert into the in the administration of the affairs of this govern

Constitution articles providing :ment. The commissioner of insolvency is not 1. That the legislature shall have no power to only an officer to whom is intrusted the adjudi-pass any act granting any special charter for cation of matters of the highest importance, but banking purposes, or any special act to increase of the most delicate nature; matters of a charac- the capital stock of any charter bank; but corpoter most likely to excite very strong feelings upon rations may be formed for such purposes, or the the part of the parties connected with them. capital stock of charter banks may be increased,

In this view of the case, it seems to me a matter under general laws. of the first importance, however the appointment of 2. That the legislature shall provide by law for

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