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In relation to the judge of probate, there is a security, which the records of the probate jurisdiction furnish. No executor can defraud the legatees of his testator,-no administrator can wrong the widow and heirs of his intestate, if it be seen to, that the estate effects and credits are placed upon the inventory, the accounts are fairly stated, and the records accurately kept. Those who have the administration of property of deceased persons, are constantly under the supervision of watchful creditors and jealous expectants. No decree, affecting the interest of every

one, is passed till after due notice, and not only the doings of the administrative agents, but the orders and decrees of the judge in relation thereto, are matters of careful inspection. There is no danger from the sources which the gentleman has suggested.

I fully agree with my friend for Otis, (Mr. Sumner,) that every man is not competent, although a man of good sense, to discharge the duties of judge of probate as they should be discharged. These duties have become various and complicated, and are becoming more and more so, as business and social relationships increase in number and complexity. A capacity and talent to examine long and involved accounts,-to detect the errors which often occur in such accounts, and so to classify the statements, that they may be easily seen and fully understood, are very necessary to this officer. If he be not a lawyer, an intimate acquaintance with those branches of the law which relate to the construction of wills, the duties of executors, guardians, and trustees, the marshalling and distribution of assets, &c., is indepensable. These are matters which require a sound judgment, no little learning, and a good deal of critical examination. Now, I ask, will the people of the several counties, who are so directly and largely interested in the able and faithful discharge of these duties, be likely to select either careless, or dishonest, or incapable men to perform them. Will they be controlled in any considerable degree, by political considerations in their selections? When they become so reckless, so wild, so insane, as to throw away their regard for a good name after death, and their love and affection for their children, they may do so; but not till then. Instances are by no means rare, they are very frequent indeed, where political considerations have been entirely absorbed by the much greater considerations of faithfulness and capacity. That this will be the case in relation to all officers to whom are committed the charge and control of the business of the people, I have no doubt. It is unwise, in my

their appointing power, in any case, where they have the opportunity and ability to exercise it themselves. All human experience shows that agencies to create agencies, are avoided by prudent men, and associations of men, whenever they can be. It is a trust-power which cannot be prudently transferred and imparted. The mass is governed by the same motives which direct the individual. That business should not only be done, but well done, is quite as important, and quite as much regarded, in the one case as the other. The people would no sooner appoint to an important office, where the candidates are known, and their qualifications canvassed, a man unsuited to it, than my friend from Boston, had he a temple to erect, would select for the drawings of the plan and the supervision of their execution, an ordinary house-carpenter from the country. The people will act very much as he wouldselect the very best man they can find. As with individuals in this respect, so with the people in mass. It is said that this will be made a purely political matter. Party politics may enter into it, but, I believe, to no dangerous or mischievous extent. I have satisfaction in the conviction that the people, collectively, care very much less about party organization, and party victory, than of the public good and prosperity. Indeed, if I mistake not, in local matters, the time is at hand, if not now, when the first inquiry will be, not to what party he the candidate belongs, but who is he, what sort of man, and what he does believe in-is he morally trust-worthy? It is to draw these county officers as far away from politics and its agitations as they can be taken, that I would make them elective. They are now subjects of executive appointment. Who is the executive ? Is he no partizan? Was he not thrown out of the boiling chaldron of party strife? Is he not the product of party fermentation? Is he not often both the cause and the effect of party bitterness and violence? Is the standard bearer of the party influenced by no party considerations in his appointments to offices of trust and honor? Will he not do what he has promised to do, and for which he was chosen? Does the history of the past leave a lingering doubt? No, Sir; a man nominated by a caucus, puffed by caucus appointees for that purpose, sustained by one party, opposed bitterly by the other, will be true to his prejudices, true to the expectations which he has raised, until the standard of political morality becomes more elevated than it is at present. Hit or miss, he will discharge his obligations to his friends, and it may be often irrespective of the interests of the people. I concede, that he may

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to predict that, he who now exercises the probate jurisdiction in my own county of high hills and large hearts, will sit where he is just so long as he chooses to do so.

A word, Mr. President, in relation to the tenure of county and district officers.

The Committee have reported in favor of their election triennially. I do not regard this particular limitation as a very important matter. It may be enlarged without affecting the principle which governed your Committee; yet, I think, the period recommended a proper and judicious one, and, perhaps, the wisest limitation which can be made, not because the judge of probate, whose term is sought to be enlarged, will become thoroughly and intimately acquainted with all the duties of his office in the course of a year or two, but because in the time limited in the report his capacity and fitness can be ascertained, and if the people have made a mistaken choice, if they discover they have selected a man for the office, incompetent to the discharge of its duties, or unqualified in any respect, or faithless to the trusts committed to him, they may have an opportunity to rectify the mistake. Three years is long enough to test and try him in, and if he be found wanting, the people should not be required, he should not require them, to endure him longer.

If, on the other hand, he be found learned, faithful, capable and competent to the discharge of his duties, and I will also add,-though perhaps of less moment,-if he be found courteous and gentle, kind and friendly to the widow and the orphan, over whom, by law, he is appointed the overseer; if he do not repulse them by an impatient frown, as they approach him, but meets them with the sympathetic cordiality which should characterize their legal protector and guardian; he will be selected over and over again. It has been my pleasure, for a quarter of a century, to look on such judges, and no other; to admire, and covet, too, as one of the things most worth living for-the love, confidence, and respect which they received. I would ask for no other earthly reward, no higher felicity, than the thanks and gratitude of the widows and orphans of the dead, who have been faithfully

When the people have found a man popular,— in the sense in which I would use that word, not popular in the sense given to it by my friend from Boston, that is, a facile man, fawning and obsequious to the people,-when they have found a man straight, erect, capable, prompt, always ready and willing to discharge his duties, they will stick to him, re-elect him, and never, till obliged, incur the hazards of change. How is it with our sergeant-at-arms, now in this town? He has stayed here for years, amidst all the changes and agitations of party, and why? Because he is the very man to perform the duties of that office which he fills to the entire satisfaction of all men, cliques, and parties; and here, I venture to say, he will stay, if God spares him, legislature after legislature, be its political complexion what it may, because, first, he is a man of integrity; second he is equipped for his duties; third, he is not a facile and obsequious, but a firm, decided man; and last, a courteous and urbane man. One with such a combination of qualities is too high and strong to be pulled down even by diciplined party violence.

Sir, I maintain that there is little danger of political influence or interference with the election of judge of probate; little, indeed, with that of any other county officer, whose duties are not of a political character, and do not connect him, necessarily, with the leaders of political parties. A good man, a faithful and a wise, is sure of his reward. The people will reward him. They are disposed to do so. It is for their interest to do so; and if that reward is re-election, he is sure of it.

Mr. LORD, of Salem. I do not think, when these resolves were under discussion before, that any particular objection was made to the manner of electing these officers; and, I propose now not to discuss the question how the judges of probate should be put into office, whether by the people, or by the executive, because I deem that to be comparatively an unimportant matter. I am willing to agree with gentlemen that upon the original selection of persons for local offices, the people are quite as likely to make a wise choice as the executive is; but, this is not a question of original appointment. The difficulty does not lie in that at all, but in the dependence of the officer. I care but little about the manner of the election of these judges, or of any judges, provided you make them independent, and put them

out of the way of temptation; provided you put them in a position where women's tears cannot affect them. That is the place where we want a judge. If you make a judge of probate eligible for only three years, do you not recognize again the principle that men are influenced by the hand that feeds them. And has not this Convention not only recognized that principle, but have they not also determined that poor human nature requires protection against it-that it is our duty to render man, in the discharge of important functions, entirely independent of the hand that feeds him. Will they tell me what their secret ballot is made for? Is it not because there is a class of men, a class of voters, who have not the independence to act contrary to the wishes of the hand that feeds them? Have we not, by putting that provision into the fundamental law of the land, acknowledged that human nature is so constituted that men will yield to the hand that feeds them? Now, Sir, my doctrine is, that men ought not to yield to the hand that feeds them, and the man who is not capable of withstanding that temptation, is not fit to exercise the duties which devolve upon him. I care not who the judge is, whether he be a judge of probate, or any other judge, if he cannot perform his duties without yielding to the hand that feeds him, he cannot perform them well, and ought not to be intrusted with them. I want the judge of probate -and I deem his office one susceptible of great abuse-elective, in the sense in which I use that term. I would not make the incumbent dependent upon the caucus for his continuance in office. I do not speak of the original appointment. I agree with the eloquent speech of the gentleman from Lenox, (Mr. Bishop,) in that there is nothing so powerful as a woman's tears. I agree in that, and you may put Gabriel in the place of a judge of probate, and send before a caucus, to nominate a successor, a woman in her tears, with her professed and apparent wrongs, and Gabriel cannot so far sustain himself as to be renominated.

Well now, Sir, I know the tendency of the minds of men are always sympathetically inclined to the widow. The widow and the orphan are always powerful before any tribunal. It is because of the abuse of that power, and because it will be wielded not for right, but for wrong, that I do not want the continuance of the judge of probate to depend upon that. We all know that the exercise of the power by the judge of probate is so delicate, that with all his sympathy, and all his disposition to mete out justice to the widow and to the fatherless, there will be cases where exact right, and exact justice, is apparent wrong,

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and that cases of apparent wrong will hurl a just magistrate from his place, and put an unjust one in. It is for that reason that I would not have been a magistrate, dependent for his continuance in office, upon a widow's tears.

But, Sir, I have not yet said, and I am not quite prepared to say, how I would have the original selection made for the office of the judge of probate. I am quite prepared, however, to say, that the tenure of his office shall be an independent one, and one in which he should not be moved by the cries of distress which the gentleman from Lenox has portrayed.

I agree that it is a court of inferior jurisdiction, but every act of discretion of a judge of probate may be reversed upon appeal. I do not agree with the gentleman from Lowell, (Mr. Butler,) and with the gentleman for Manchester, (Mr. Dana,) that the acts of discretion of a judge of probate cannot be revised. I believe they were led away by a false analogy. They supposed, that because the supreme court, having appelate jurisdiction in matters of law, cannot revise the discretionary acts of the court of common pleas, therefore, they cannot revise the discretion of the court of probate. But the analogy does not hold and the supreme court may revise the judgment of a judge of probate upon the sufficiency of a bond, as well as upon a decree of distribution, or any other decree. Whatever act is discretionary may be revised by the supreme court, it being the supreme court of probate.

But is it an argument that, because, when you put an unfit man into office, there is a remedy for the wrong which he will do, therefore, you will take such a course as will lead to the selection of a man who will be likely to do wrong? Although I agree with the gentleman from Boston, that it is desirable to have a judge of probate who is learned, not only in all the mysteries of the law, but in all departments of science, yet it is not really necessary. In the good old county of Essex, we never had but one judge who was a lawyer. I mean a lawyer by profession. Other things being equal, the cultivation and pursuits of a lawyer are of much advantage to a judge.

But, Sir, while I consider it important that the Judge of Probate should hold his office independently, I do not consider that his office is, by any means, the only important one that needs to be carefully guarded in relation to its independence. Nor do I consider that his independence is, by any means, the only one that may be interfered with. I think the gentleman from Lowell, (Mr. Butler,) was right when he said that the office of sheriff was a very important

one, and in some respects quite as deserving serious consideration in reference to the manner of selection and tenure, as that of judge of probate. And, Sir, the deputy-sheriffs may also be placed in the same category. I do not know why we should not have our deputy-sheriff's placed upon the same basis with sheriffs, if simply because they are public officers to do the work of citizens, the people should choose them. They are no more and no less executive officers than the sheriffs, and the general line of argument here in favor of the selection of persons to all places of trust or duty as well applies to deputy-sheriffs as to sheriffs.

But, Sir, there is another officer which is also a very important one-I mean the County Treasurer. A gentleman says he is always re-elected. Well, Sir, I believe that is a fact, and I believe it is also a fact that the county treasurer is always from the time he is elected, the most popular man in the county, and why is it? Probably because he never has anything to do with the people of the county except to pay them money. Sir, if you will give me a chance to pay the people all the money I want to, as unpopular as I may be, I will be elected to the Convention to the legislature, or anywhere else. [Laughter.] That is the secret of the county treasurer's popularity. But, while the treasurer is all the time paying money, and doing nothing else, the sheriff is all the time grasping money or grasping men, and you will find the result very different in respect to popularity. I doubt if you can find an instance where the sheriff is re-elected year after year. If you will show me such an instance I will agree that I am mistaken in the considerations which in my judgment will influence the popular mind in elections to offices of this character.

A MEMBER. Registers of deeds are elected, and the people are always paying them instead of receiving from them.

Mr. LORD. Yes. Registers of deeds are officers who receive money from the people, as my friend by me suggests, but the people do not pay them money until they have received from these officers something which does them more good than the money did, for there is nothing gives a man more pleasure than to know he is recorded as a holder of real estate. I believe it is the best feeling in a republican community. I believe there is nothing that makes an individual feel so much his importance and dignity as a man, as to know that he has a deed recorded, showing that he is the possessor of real estate. Well, Sir, he must go to the register of deeds to get his deed recorded, and that makes this officer popular. I am sorry to say that, I have not quite arrived at the dignity of a holder of real estate to any very

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considerable amount, and I cannot, therefore, speak so much from experience as from observation, nor with quite so much enthusiasm; but, I think the experience and observation of every member of the Convention will testify to the truth of the remark, that the moment you make a man interested in the soil, that moment you make him a good man, and a good public man.

Now, while I think of it, I will say what I have not said before, that I am not at all afraid of the small towns. [Laughter.} I do not care how much you talk about them, they will come out all right in the end, because, almost every voter in them is interested in the land.

Now, take the case of county commissioners, I believe in one county there were only some fourteen or fifteen, or perhaps, nineteen hundred votes cast for them at the last spring's election, out of some seven or eight thousand who usually vote in elections. Well, Sir, what were the reasons which operated to secure their election? Was it the qualifications of the man for the office? No Sir, that consideration was not taken into account at all. It was in some cases, because a particular road was laid out, and in others, because a particular road was not laid out. Now, will any gentleman in this Convention tell me of a single case where county commissioners have been elected upon any other than a mere sectional or local issue-some matter purely local in its character? I believe there are no exceptions, though, possibly there may be some. The elections ordinarily turn upon some considerations of that nature.

We have elected our county commissioners since 1836-7 or '38, I do not recollect precisely the time, and at the last election by the aid of two roads, one bridge, and by two towns wanting to elect a particular man, we made out to re-elect the old commissioners in the county of Essex, but this is the first instance of a re-election of the whole board in that county. There has always been a change in that board. And how does this happen? Do the people come out and canvass the matter? Do they inquire of the qualifications of the candidates? Not at all. Some particular man happens to be out of employment at that particular time; his friends think the old commissioners have made a great blunder with regard to a particular road; that it will be best for their interests to put this man in, and so they go to work to get him elected. That is the way it is done.

As a general thing we have had pretty good county commissioners, but they have been chosen wholly on account of their particular views of a particular road or on account of some matter of

mere local importance, and I do not think that is a good principle upon which to act.

Then the office of commissioner of insolvency, is one, in my opinion, of more importance and one from which more danger may be apprehended than that of judge of probate. The general object of insolvents in selecting a commissioner of insolvency to whom to present their petitions, is to get a man that will put them through. Well, Sir, these gentlemen who want to be put through, as a general thing, are pretty active at the caucuses. I do not mean to give them any undue influence there, but they generally act pretty briskly. The only question to be asked, when a man comes to vote for a commissioner of insolvency is, did he put my friend through well? Because, if he did, he is a man of good feelings and a kind disposition; he is disposed to treat the unfortunate leniently. But, if he put the man through rather doubtfully, then the controversy is between the friends of the creditors and the friends of the insolvent. So it is, all these officers will be likely to be chosen from merely local, or partial, or personal considerations.

If a man feels himself crowded by the action of a local tribunal of this kind, he immediately sets himself to work to bring the action of the machinery of a political caucus to bear upon that

man.

Now, Sir, if the people are to select such an officer as that, I would make him independent, and not obliged so to gauge his conduct so as not to stir up a hornets nest about his ears. We, all of us, know the management of caucuses in relation to these officers. If a commissioner of insolvency, in the honest performance of his duty, refuses to discharge a debtor, the friends of that debtor, or the insolvent himself, and probably both, will almost certainly go privately about, working the wires for packing the caucus so as to prevent the re-election of the commissioner. There is not a man in this House who does not know that it is a matter which can be very easily accomplished in any county where there is nothing to draw public attention to it. Half a dozen men determined to do it, can, at any time, pack a caucus, and out goes the commissioner of insolvency a good deal easier than he came in.

Sir, this is an office of a great deal of importance in the administration of the affairs of this government. The commissioner of insolvency is not only an officer to whom is intrusted the adjudication of matters of the highest importance, but of the most delicate nature; matters of a character most likely to excite very strong feelings upon the part of the parties connected with them.

In this view of the case, it seems to me a matter of the first importance, however the appointment of

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these officers may be originally made, whether by the people or by the governor, that we should endeavor to make them as independent as possible. I do not doubt that these offices may be well filled, even where the tenure is a short one. Fix it at three, five, seven, ten or twelve years; fix it at any limit you choose, but say that the officer shall hold his office during that term, unless he does something for which he may be impeached, and then in no case allow him to be a candidate for re-election,-do that, and I think that many of the evils which some of us apprehend from making so many officers elective for short terms, may be avoided. I do not care to whom is intrusted the original selection of these officers, so that they are made independent.

But, Mr. President, I did not intend to have detained the Convention so long. I thought when I began that I should scarcely occupy the attention of the Convention for five minutes, but I have unconsciously been drawn into what may seem to have been intended as a speech upon the general subject-I feared there was some danger of confounding the original filling of these offices with their subsequent tenure, when the original appointment seemed to me to be the least dangerous part of the matter, and I rose merely to call attention to the distinction.

Mr. DANA, for Manchester, remarked that he wished to reply to some of the suggestions which had been made, and he was ready to do so now if it was the desire of the Convention to take the question to-night; but, upon the suggestion of members around him, that it would not be desirable to vote upon it this evening, he moved to lay the whole subject on the table. The motion was agreed to.

Report from a Committee.

Mr. FROTHINGHAM, of Charlestown, from the Special Committee to whom was referred the subject of Granting Special Charters for Banking purposes, having considered the same, reported the following resolve:

COMMONWEALTH OF MASSACHUSETTS.

In Convention, July 1, 1853. Resolved, That it is expedient to insert into the Constitution articles providing :

1. That the legislature shall have no power to pass any act granting any special charter for banking purposes, or any special act to increase the capital stock of any charter bank; but corporations may be formed for such purposes, or the capital stock of charter banks may be increased, under general laws.

2. That the legislature shall provide by law for