Aldrich, P. Emory Alley, John B. Alvord, D. W. Aspinwall, William Baker, Hillel Ballard, Alvah Ball, George S. Bancroft, Alpheus Barrett, Marcus Bates, Eliakim A. Bates, Moses, Jr., Bennett, William, Jr. Bigelow, Edward B. Bird, Francis W. Bishop, Henry W. Boutwell, George S. Booth, William S. Boutwell, Sewell Braman, Milton P. Brinley, Francis Brown, Hammond Bryant, Patrick Butler, Benjamin F. Cady, Henry Chandler, Amariah Chapin, Henry Clark, Ransom Cleverly, William Cook, Charles E. Cooledge, Henry F. Crittenden, Simeon Cross, Joseph W. Cummings, Joseph Curtis, Wilbur Cushman, Henry W. Cutler, Simeon N. Dana, Richard H., Jr. Dawes, Henry L. Day, Gilman Dennison, Hiram S. Duncan, Samuel Durgin, John M. Eames, Philip Eaton, Calvin D. Eaton, Lilley Edwards, Elisha Edwards, Samuel Ely, Joseph M. Fay, Sullivan Fisk, Lyman Foster, Aaron Foster, Abram Freeman, James M. French, Samuel NAYS. NAYS - ABSENT. Griswold, Josiah W. Hinsdale, William Schouler, William Wheeler, William F. Whitney, James S. Wilder, Joel Wilkins, John H. Allen, Charles Allen, James B. Allen, Joel C. Appleton, William Andrews, Robert Atwood, David C. Banks, Nathaniel P., Jr. Hewes, James Bartlett, Sidney Bell, Luther V. Bennett, Zephaniah Bigelow, Jacob Blagden, George W. Bliss, William C. Bradbury, Ebenezer Bradford, William J. A. Brown, Adolphus F. Brown, Alpheus R. Brown, Artemas Brownell, Joseph Bullen, Amos H. Bullock, Rufus Burlingame, Anson Carter, Timothy W. Caruthers, William Case, Isaac Chapin, Chester W. Choate, Rufus Clarke, Alpheus B. Clark, Henry Clarke, Stillman Clark, Salah Coggin, Jacob Conkey, Ithamar Cressy, Oliver S. Crockett, George W. Crosby, Leander Cushman, Thomas Davis, Charles G. Davis, Ebenezer Davis, Isaac Davis, John Davis, Robert T. Dehon, William DeWitt, Alexander Dorman, Moses Easton, James, 2d Ely, Homer Eustis, William T. Farwell, A. G. Fellows, James K. Fiske, Emery Fowler, Samuel P. French, Charles A. French, Charles H. French, Rodney Frothingham, R'd, Jr. Gardner, Johnson Gilbert, Washington Gould, Robert Gourgas, F. R. Greenleaf, Simon Hadley, Samuel P. Henry, Samuel Hewes, William H. Heywood, Levi Hillard, George S. Hooper, Foster Houghton, Samuel Howard, Martin Howland, Abraham H. Hunt, Charles E. Hunt, William Huntington, Asahel Huntington, Charles P. Huntington, George H. Hurlburt, Samuel A. Hurlbut, Moses C. Hyde, Benjamin D. Ide, Abijah M., Jr. Jenks, Samuel H. Kellogg, Martin R. Keyes, Edward L. Kinsman, Henry W. Kimball, Joseph Knowlton, Charles L. Knowlton, J. S. C. Knox, Albert Kuhn, George H. Ladd, Gardner P. Lincoln, Fred. W., Little, Otis Livermore, Isaac Lord, Otis P. Lothrop, Samuel K. Loud, Samuel P. Lowell, John A. Marble, William P. Marcy, Laban Jr. Marvin, Theophilus R. Phinney, Sylvanus B. Plunkett, William C. - HALLETT EARLE. Mr. GILES, of Boston, moved to amend so as to provide that no loan shall be granted, without a two-thirds vote of each branch of the legisla ture. The amendment was adopted-ayes, 114; noes, 76. The resolves, as amended, were then ordered to a second reading. And, on motion, the Convention adjourned until Monday morning, at ten o'clock. MONDAY, July 11, 1853. The Convention assembled, pursuant to adjournment, and was called to order by the President, at ten o'clock. Prayer by Rev. Mr. COGSWELL. Reconsideration. Mr. THOMPSON, of Charlestown, moved a reconsideration of the vote by which the resolves on the subject of loaning the credit of the State were ordered to a second reading. Mr. GRAY, of Boston, inquired of the Chair whether these resolves would not be susceptible of amendment when they came up upon their second reading. The PRESIDENT replied that such would be the case. [July 11th. Mr. GRAY said, that being the case, he could see no necessity for reconsidering the vote by which they were ordered to a second reading. He had no intention, however, to oppose the gentleman's motion. Mr. THOMPSON said he would prefer to have the question come up upon the motion to reconsider, as that would open the whole subject and gentlemen would have an opportunity to express their views; and if the motion prevailed, there would be an opportunity to amend at that stage of the proceeding when amendments were more usually made. The PRESIDENT. The motion to reconsider will be entered upon the Journal, and will come up to-morrow for consideration. Resolution. Mr. HALLETT submitted the following resolution, which was read, and, on his motion, referred to a select committee of five, to be appointed by the Chair:— Resolved, That the Constitution ought to provide, in addition to the remedies now recognized therein for all injuries to person and property, that a remedy shall be given to the legal representatives of any deceased person whose death was caused by the negligence or misconduct of a railroad corporation, in the same manner as for like injuries resulting in disability and not in death. Orders of the Day. On motion by Mr. EARLE, of Worcester, the Convention proceeded to the consideration of the Orders of the Day, the first item on which was the motion of the gentleman from Quincy, (Mr. White,) to reconsider the vote by which the resolves on the subject of the House of Representatives were finally passed. On motion by Mr. WHITE, said motion was laid upon the table. The next item on the Orders of the Day was the resolve on the subject of general laws for corporations. Mr. WHITNEY, of Conway. At the request of a gentleman who is now absent and who expects to be here to-morrow, I will move that this resolution, relating to general laws for corporations, be passed over until to-morrow. The motion was agreed to. The next item, being the resolve to amend section 2, chapter 5, of the Constitution, by striking out the words "University of Cambridge," on its second reading, was taken up. Mr. BRIGGS, of Pittsfield, suggested that it would be better to pass this by until the subject of the University of Cambridge, concerning which a proposition was pending, or under consideration by a committee, had been acted upon. The resolve was passed by with unanimous consent. Mr. BUTLER, of Lowell, moved that the remaining item on the Orders of the Day, viz.: the resolve on the subject of loaning the State credit, be laid upon the table, with the view of going into Committee of the Whole on the resolves on the subject of the Judiciary. The motion was agreed to. The Judiciary. Mr. MORTON, of Taunton. I do not rise to detain the Committee with a lengthy speech, but to suggest a mode of proceeding, which I hope will meet with the approbation of the whole Committee. The Report of the Judiciary Committee presents three distinct propositions, upon separate and distinct subjects. I hope they are propositions which will at once command the support of the whole Committee. I wish now merely to suggest whether it would not now be expedient to take up and dispose of those different resolves by themselves, and leave the other one, in reference to the tenure of the office of the On motion by Mr. BUTLER, of Lowell, the judges, which is the more important one, and Convention then resolved itself into Resolved, That it is expedient to amend the Constitution by substituting for the last two clauses of the thirteenth article of the first section of the second chapter, the following: : The judicial power of the Commonwealth shall be vested in a supreme judicial court, and such other courts as the legislature may from time to time establish. The justices of the supreme judicial court shall receive honorable salaries, which shall not be diminished during their continuance in office. Resolved, That it is expedient to amend the third chapter of the Constitution by substituting for the fifth article in said chapter, the following: The legislature shall have power to make laws regulating marriage, divorce, and alimony, but shall in no case decree a divorce, or hear and determine any causes touching the validity of the marriage contract. Resolved, That it is inexpedient to make any further amendment in the first, second, and fifth articles of the third chapter of the Constitution. Mr. WILSON, of Natick, moved to amend the last resolution, by striking out all after the word "Resolved," and to insert the following: That it is proper and expedient so to amend the Constitution as to provide that the justices of the supreme judicial court shall be appointed for the term of ten years, and the justices of such inferior courts as are or may be established by law, for the term of seven years; said justices to be eligible to reappointment, but in no case to continue in office after attaining seventy years of age. about which, probably, there will be not only a greater diversity of opinion, but much more discussion, to be acted upon afterwards. I hope, therefore, that we shall take up the resolves in their order, and dispose of them in some way or other, and then have the distinct proposition in reference to the tenure of office of the several judges brought up by itself. If this suggestion meets the approbation of the Committee of the Whole, I should be pleased to explain, in a very few words, the reasons upon which the Committee founded their first three resolves, and leave the other subject open for discussion hereafter. The CHAIRMAN. The Chair would state that that can only be done by unanimous consent, or by the withdrawal, by the gentleman from Natick, (Mr. Wilson,) of his amendment. As it stands, the question being upon the adoption of the Report of the Committee, the amendment is strictly first in order. Mr. GRAY, of Boston. I would suggest whether my friend from Taunton, or any other gentleman, could not call for a division of the question which is before the Committee? If it were a single question I should not doubt that the decision of the Chair is correct, and which, as a general decision, I do not object to at all. one. Mr. MORTON, of Taunton. I am inclined to think that the view of the Chair is the only correct But it is proper, if the Committee choose to pursue that course, to receive all the amendments which may be offered, and then consider them as they may come up in connection with the several resolves to which they are offered. I hope, from the distinct nature of these several resolves, and the facility with which they can be disposed of, that there will be a general consent to consider them separately. Mr. WILSON, of Natick. I suggest that it would be as well to take up and consider each one separately, and when we reach the last resolve, the amendment which I have offered can be taken up in that connection. By the general practice in this body, that course has been pursued, and I hope we shall do so now. The CHAIRMAN. That can be done by unanimous consent, and if there is no objection to that order of proceeding, the Chair will consider that course to be in order, and the Committee will proceed with the consideration of the several resolves as they stand, and defer the consideration of the amendment of the gentleman from Natick until they reach the last resolve. Mr. MORTON, of Taunton. I suppose it will be expected of me that I should make some explanation of the reasons which induced the Committee to report these resolves. From the nature of the resolutions, I think very little explanation will be required. However, with the permission of the Chair and of the Committee, I will proceed very briefly to explain those reasons as far as the first resolve is concerned. It will be recollected that the present Constitution provides that the legislature or the executive may call upon the supreme court for their opinion on questions of law, or matters of great importance and interest. This provision the Committee thought ought to be expunged from the Constitution, and the substitute just read, placed in its stead—that is, that the power should be taken from the legislature and from the executive of calling upon the supreme court for their opinion in the cases referred to. There were several reasons which induced the Committee to come to that conclusion. In the first place, you provide that the several departments of government—the executive, judicial and legislative-shall be kept entirely distinct, and that the officers belonging to one department shall never exercise the powers belonging to the others. This is deemed an important provision, and it is one which is contained not only in the Constitution of this State, but in those of several other States of this Union, and in the Constitution of the United States. Wherever free governments exist, it is deemed important that these several departments should be kept entirely separate and independent of each other. The object of the introduction of this provision is to carry out that principle. The provision of the Constitution as it now stands, is inconsistent with the other clause of the Constitution, because it authorizes one branch to call upon another for their opinion in relation to matters which come before the first branch, and therefore we thought that there should be a change made in that respect, so that there should be no interference whatever between one branch of the government and the others. Another reason which operated strongly upon the minds of the Committee, was that the courts [July 11th. of the Commonwealth, and above all the highest court, ought never to be made liable to be drawn into the vortex of politics, and that it should be so removed from all political transactions, that the whole community might be satisfied, that in appealing to them, they were appealing to a tribunal so constituted, as to be as far removed from such influences, as it is possible to remove them, in the nature of things. The judiciary is now exposed to be drawn into the discussion of great and important interests which excite the community. The experience of our legislature shows, that upon many occasions the opinion of the court has been asked upon subjects greatly exciting either to a section, or to the whole, of the Commonwealth. The importance of avoiding such a discussion on the part of the court, presented itself as one worthy of the consideration of this Convention. Again, there was another consideration, which is the last one I shall mention in relation to this resolve. The court is liable to be called upon to decide questions of law, without there being a full and proper hearing of both sides of them,— to decide questions of law, affecting private rights, without the parties who may be affected by them, having an opportunity of being heard in relation to those rights. Any one who has had as much experience as I have had upon the subject, can fully appreciate the importance of having all questions, which the court are called upon to decide, discussed by individuals having diverse interests to be affected by the decision. Therefore, it seemed to the Committee highly inexpedient that the court should be placed in such a situation; for the reason, that their decision might deeply affect the rights of individuals, without their having an opportunity to be heard. One word more, and I will relieve the attention of the Committee. It is important, as we all agree, that every person in the community should have the right of a fair and impartial trial, and it is important to the peace and happiness of the community that every one should be satisfied, whether the case be decided for or against him, that he has had a fair and perfect trial, as far as it is possible for him to have. In this view of the case, I hope the resolve will recommend itself to the favor of the Committee, and that it will be adopted. Mr. FRENCH, of Berkley. This Report of the Committee has reference to the second section of the third chapter of the Constitution of Massachusetts, which is as follows: "Each branch of the legislature, as well as the governor and council, shall have authority to require the opinions of the justices of the Monday,] FRENCH-WARNER-MORTON. supreme judicial court, upon important questions of law, and upon solemn occasions." I have had occasion to know that in one case, at least, this provision has been beneficial to the whole State. There was a time when the standard of the qualification of voters was different in almost every town in the State, and it arose out of the different constructions, which different parts of the State put upon a constitutional provision, and it seems to me that there should be some mode provided, by which the selectmen should be able to ascertain what the Constitution requires, so that they might know how to perform their duties. Now the different boards of selectmen have disagreed, and if doctors disagree who is to decide? One board followed one counsel, and another board followed another; and there was no uniformity of opinion or action throughout the State; and the board of selectmen were liable to be prosecuted for mal-administration, when they were discharging their duties according to the best light which they could obtain. What could be done? Here was this provision of the Constitution, and the application of it, according to the understanding of the different boards of selectmen. The decision of the judges of the supreme court was taken upon the question, and uniformity of action followed. Now I put it to the Committee, if that was not a case in which this provision was not beneficial. Why shall we strike it out of the Constitution? It certainly cannot do any injury by remaining in the Constitution. I believe other cases have occurred where recourse has been had to the opinion of the judges of the supreme court, besides the one which I have specified. That was a case in which it was important that there should be an uniformity of action throughout the State. The boards of selectmen, could not, from all the counsel they could get, hit upon a plan of action in which they felt themselves safe. One board adopted one plan, and another board another; but when the opinion of the supreme court was taken, they had a rule by which they could safely be governed, and there has been no diversity of opinion or action since, upon that question. Why then should this article be expunged? It certainly has been beneficial, and it has never worked any harm, as far as I, or anybody else, know. Cases may arise where the people may be placed in the same embarrassing position they were then in. I hope this Report of the Committee will not be adopted. I think it is for the interests of the whole State that this provision should be retained. [July 11th. Mr. WARNER, of Wrentham. Is it in order to offer an amendment to the pending resolve. The CHAIRMAN. It is. Mr. WARNER. Then I move to strike out from the Report of the Committee, the whole of the first resolve. I do not design to say more than a single word in explanation of the motion, or rather with the view of assigning the reasons why I make it. I quite agree with the gentleman from Berkley, (Mr. French,) that the supreme court of the State can render no better service to the Commonwealth than in answering such questions as may be propounded to them by the legislature. The questions which that court have already answered, which have been thus propounded, have been of great service, in my judgment, to the selectmen in the county of Essex, as well as of much service in various other respects. Fully believing this, I have moved that the clause as it is in the present Constitution, shall be retained, and I hope that it will be retained. Mr. MORTON, Jr., of Andover. I rise to ask whether this motion is in order. The question before the Committee is on the acceptance of the Report from the Committee to which this subject was referred. The motion at present, is merely to strike out; and I would suggest that if the question is taken on the adoption or rejection of the Report, that would be the most proper course. If it is rejected, then the motion to strike out is wholly unnecessary. It would certainly be in order to perfect the proposition by any amendment, before the motion to strike out can be put. The CHAIRMAN. The proposition of the gentleman is in the nature of an amendment to the resolution, and is therefore in order. Mr. MORTON. A motion to strike out and insert would be in order; but I do not understand the gentleman from Wrentham as proposing to substitute anything in the place of that which he proposes to strike out. The CHAIRMAN. The motion to strike out is in order. Mr. EARLE, of Worcester. It does not appear to me as making any difference at all, because the question before was on the adoption of the resolution. If the motion to strike out be adopted, it would only be equivalent to a rejection, and if it is rejected, why of couse, it is stricken out. Mr. WARNER. I do not see, on second consideration, that any material object will be gained by my motion. If it is rejected, it will, of course, be equivalent to the adoption of a motion |