[July 14th.

sonally every man fit to be a judge of either of ment, and yet it may be well to recollect that our higher courts ; and let us have the confidence afterwards, in 1804, the same Alexander Hamilto suppose that any individual who will be put ton, as an advocate, defended Harry Croswell in into that place will make a judicious selection. a prosecution of “The People vs. Croswell,” The selection may be no better, perhaps not so for a libel upon Thomas Jefferson, and maingood, as the people would make, but if it is as tained the right to give the truth in justification. good, or nearly as good, will it not be safer to And it was on that occasion that Alexander leave it there and try it until we can see whether Hamilton said, very differently from what he said our new system works well elsewhere? But, I in the “Federalist,” that it was only by the declare, that when there is no existing evil or abuse of the forms of justice that this people abuse which needs a remedy, when there is no could ever be enslaved. “An army,” said he, necessity to make an experiment, under existing “can never destroy our liberty. It is to be subcircumstances, I choose to wait and see how the verted only by a pretence of adhering to all the system works in other places, and rely upon the forms of law, and yet breaking down the subwisdom of the court, and upon that of the exec- stance of our liberties." utive, who is in a position to gain all the infor- And no judiciary could ever usurp arbitrary mation he may need to enable him to fill up such power, or break down our liberties by subverting vacancies as may occur. For these reasons, I laws and Constitution, through false interpretafeel constrained to vote against every proposition tions, except by judges holding office for life, which is about to touch the judiciary of the Com- irresponsible to the people. monwealth.

That was Mr. Hamilton's sound conviction Mr. HALLETT. There are seven minutes and after-thought, when he was practising at the left before the question must be taken, and I de- bar; and that is the conviction very often wonsire to occupy them for the simple purpose of derfully enforced-much oftener than openly exgiving my testimony, as a member of the bar, pressed-on the minds of members of the bar against what I regard as an anomaly in our insti- when engaged in practise before our courts. tutions,-a life tenure of office to any subject of That eminent counsellor may not have felt this the Commonwealth. While, at the same time, I so much as others have, and yet I think he has have expressed myself here, and continue to felt it.

On another point, the learned gentleman inmode of judicial appointments as it stands in the quired if there was any want of integrity in the Constitution, because it is not now expedient to judges ? Let me answer that at once. No, Sir. change it, and also because it being done by the There is no doubt about the integrity of the annual agents of the people it is only one remove present judges. But the question is not present from the mode of appointment by the people personal character, but the principle of life tenure themselves; yet I desire to say, as a member of in a democratic government. the bar, and one who has had some little experi- Again, the gentleman asks, Is there any doubt ence in this matter of a judiciary independent of about their ability ? No, there is no doubt of the people, that, in my judgment, if there is any that, as a general proposition. But neither honone correction important to be infused into the esty nor ability entitle men to hold office for life. fundamental law of this Commonwealth, in order I wanted to ask him one other thing, which to make it republican, in order to make it har- he omitted ; is there courtesy in the judges ? and monious with all other institutions and agencies the gentleman might have answered that, from where the people govern, and in order to dispense observation, at least, if not experience. Now, justice impartially and courteously, as well as Sir, I say forcibly, I want to give to our judiciary wisely, it is that you should limit the life tenure the grace of courtesy; I want not only to have of your judges.

the fortiter in re, but I also want the suaviter in Sir, the eloquent gentleman who addressed us modo; and where are you to get it? Only in the this morning, (Mr. Choate,) and with whom I creation of a future bench without a life tenure, agree on the subject of the appointment, and dis- and whose periodical reappointment shall lie in agree on the subject of the tenure,—referred us, the power of the people. as if it were an authority, to the opinions of Alex- Sir, when I was a student at law, I remember ander Hamilton, which I find, on examination, to have heard said what I have never forgotten, are given in the Federalist, No. 78, where, in by a very eminent professor of that day, Mr. 1788, he advocated the life tenure of the judges Ashmun, one of the first professors of the Law of the United States Court. I do not accept Mr. School at Cambridge, when he had been contemHamilton as an authority on republican govern- | plating some of these evils that grow out of an




(July 14th.


irresponsible judiciary-"give me" said he, "a self constrained, although he gave his opinion court for the correction of errors, if it be but a right, to give his judgment wrong; and therefore, body of selectmen !” And so say I; give me and for all that I have said, and much more I accountability; give me some body behind your might say, give me accountability in the judges judges, if it be but a town council or a board of by at least periodical returns to private life. selectmen, who can somewhere at sometime or

"Mr. Hallett here yielded the floor at the request other say that the hour of accountability has of Mr. MORTON, of Taunton, who moved that

The gentleman cited Hamilton for life the vote be reconsidered by which the hour of tenure. I prefer the opinion of Thomas Jeffer- four o'clock was assigned for taking the question, son, who, in his letter to Mr. Kircheval, July 12, and that it be fixed at ten o'clock to-morrow 1812, upon the subject of an independent judi- morning, remarking that, as was apt to be the ciary, in answer to one of these old, worn out case, he had consumed so much time himself, that arguments about the appointment of judges for he had deprived others who wished to be heard, life, in England, to make them independent of of an opportunity to speak. the crown, said that this was an argument that an Mr. BUTLER, of Lowell. I would inquire if American lawyer should never utter in an Ameri- the gentleman from Taunton is one of those who can assembly ; because, the question of depend- voted with the majority. ence was entirely different where the appointing

The PRESIDENT. The rules of this conand removing power was in the hands of an vention do not require that. The hour has hereditary executive, like a king,—then it was a arrived, at which the Convention has ordered the great point gained to have the office continue for question to be taken. life, “but in a government founded on the public Mr. BUTLER. I hope that the motion to will, this principle (of life tenure) operates in an reconsider will not prevail. This matter has opposite direction, against that will."

another stage to pass through, and while it is not The reason changes, for, says he, while in so important that we should have farther discusEngland they make the judges independent of sion now, I think it is important, for various the king, here by appointing them during life reasons that I might suggest, that we should come "you make the judges dependent on none but to a vote. At the present time I think the most themselves !” There is the difference, Mr. Presi- | important thing which this Convention can do is dent. Our judges with life tenures are depend- to vote and go home. ent upon nobody but themselves; and that Mr. HALLETT. I trust that the Convention enables them to be independent of what? Not will not, from any considerations personal to myonly independent of the people, but indepen- self, reconsider this motion. I should much dent of good manners; independent, if they rather prefer that they would bring this matter to choose to be, of their own consciences and con- a close now, than that they should, out of mere victions ; independent of any errors which they courtesy to me, extend the time beyond what is may make in judgment; independent of the necessary in order that the vote may be taken grossest partiality, in fact of everything but crime, understandingly. while they may be dependent upon, and may, The question was taken on the motion to unconsciously and honestly yield to the political reconsider the order, and it was not agreed to. and social influences that surround them—these The Convention proceeded to vote upon the cliques, these clubs, those circles that are drawn pending question. around them as men and politicians before they The question being upon the amendment of the are judges, and under the influence of which gentleman from Fall River, to the amendment they go upon the bench. They may be perfectly reported from the Committee, the yeas and nays honest, I have no doubt of that, and yet they are were taken, with the following result-yeas, 101; imbued with the atmosphere of local and social sentiment, and interest, and they find it, the best and purest of them, in giving opinions upon religious freedom and similar matters, very much as Adams, Shubael P. Bird, Francis W. the distinguished jurist who preceded me in this Allen, James B. Bradford, William J. A. argument, (Judge Morton,) found it, when he was Allis, Josiah

Breed, Hirm N. on the bench. I refer to a grave question of reli

Alvord, D. W. Brown, Hammond gious freedom, * wherein that local and social influ

Baker, Hillel

Brownell, Frederick

Bancroft, Alpheus Brownell, Joseph ence was so strong upon him that he found him

Bates, Eliakim A. Bryant, Patrick

Bates, Moses, Jr., Buck, Asahel * Commonwealth us. Kneeland, 20 Pickering, 206.

Bigelow, Edward B. Burlingame, Anson

nays, 226:



YEAS — Nays.

(July 14th.

Butler, Benjamin F. Morss, Joseph B.
Case, Isaac

Morton, William S.
Chapin, Daniel E. Nayson, Jonathan
Childs, Josiah

Nichols, William Clarke, Alpheus B. Norton, Alfred Clark, Henry

Nute, Andrew T. Cleverly, William Orne, Benjamin S. Cole, Sumner

Osgood, Charles Crane, George B. Parris, Jonathan Cushman, Henry W. Partridge, John Cushman, Thomas Perkins, Daniel A. Davis, Ebenezer Perkins, Noah C. Davis, Isaac

Phelps, Charles Day, Gilman

Pool, James M. Dean, Silas

Rawson, Silas Duncan, Samuel Richardson, Daniel Fisk, Lyman

Rogers, John Fitch, Ezekiel W. Royce, James C. Foster, Abram

Sanderson, Chester French, Charles A. Simmons, Perez French, Rodney Simonds, John W. French, Samuel Sprague, Melzar Frothirgham, R’d, Jr. Spooner, Samuel W. Gooding, Leonard

Stacy, Eben H. Griswold, Josiah W. Stevens, Joseph L., Jr. Griswold, Whiting Sumner, Charles Hapgood, Lyman W. Taft, Arnold Hawkes, Stephen E. Thayer, Willard, 2d Holder, Nathaniel Tilton, Abraham Hood, George Upham, Charles W. Hooper, Foster Weston, Gershom B. Hoyt, Henry K. White, George Jacobs, John

Whitney, Daniel s. Kingman, Joseph Whitney, James S. Knowlton, J. S. C. Wilbur, Joseph Knowlton, William H. Williams, J. B. Knox, Albert

Wilson, Willard Lawrence, Luther Wood, Charles C. Lawton, Job G., Jr. Wood, Otis Leland, Alden

Wood, William H. Mason, Charles Wright, Ezekiel Merritt, Simeon

Crittenden, Simeon Hobbs, Edwin
Crockett, George W. Howard, Martin
Cross, Joseph W. Hubbard, William J.
Crowninshield, F. B. Hunt, William
Cummings, Joseph Huntington, Asahel
Curtis, Wilbur Hurlburt, Samuel A.
Cutler, Simeon N. Hurlbut, Moses C.
Dana, Richard H., Jr. James, William
Davis, Charles G. Jenkins, John
Davis, John

Johnson, John
Davis, Solomon Kellogg, Giles C.
Dehon, William Kendall, Isaac
Deming, Elijah S. Kimball, Joseph
Dennison, Hiram S. Kinsman, Henry W.
Denton, Augustus Knight, Hiram
Doane, James C. Knight, Jefferson
Dunham, Bradish Knight, Joseph
Eames, Philip

Knowlton, Charles L. Earle, John M. Kuhn, George H. Easland, Peter

Ladd, Gardner P. Eaton, Lilley

Ladd, John S. Edwards, Elisha Lincoln, Abishai Edwards, Samuel Lincoln, Fred. W., Jr. Ely, Joseph M. Littlefield, Tristram Ely, Homer

Livermore, Isaac Eustis, William T. Lothrop, Samuel K. Farwell, A. G. Loud, Samuel P. Fay, Sullivan

Lowell, John A. Fellows, James K. Marble, William P. Fiske, Emery

Marcy, Laban Foster, Aaron

Marvin, Abijah P. Fowle, Samuel Marvin, Theophilus R. Fowler, Samuel P. Miller, Seth, Jr. Freeman, James M. Moore, James M. French, Charles H. Morey, George Gale, Luther

Morton, Elbridge G. Gardner, Johnson Morton, Marcus Gates, Elbridge Morton, Marcus, Jr. Gilbert, Wanton C. Newman, Charles Gilbert, Washington Noyes, Daniel Giles, Charles G. Ober, Joseph E. Giles, Joel

Oliver, Henry K. Goulding, Dalton Orcutt, Nathan Graves, John W. Paige, James W. Gray, John C.

Paine, Benjamin Green, Jabez

Paine, Henry Greenleaf, Simon Parker, Adolphus G. Hadley, Samuel P. Parker, Joel Hale, Artemas Parsons, Samuel C. Hale, Nathan

Parsons, Thomas A. Hall, Charles B. Peabody, Nathaniel Hallett, B. F.

Pease, Jeremiah, Jr. Hammond, A. B. Penniman, John Hapgood, Seth Perkins, Jesse Harmon, Phineas Phinney, Sylvanus B. Haskins, William Plunkett, William C. Hathaway, Elnathan P. Pomroy, Jeremiah Hayden, Isaac

Powers, Peter Hayward, George Preston, Jonathan Heard, Charles Prince, F. O. Heath, Ezra, 2d Putnam, George Henry, Samuel Putnam, John A. Hersey, Henry Rantoul, Robert Hewes, James

Reed, Sampson Hewes, William H. Rice, David Hillard, George S. Richardson, Nathan Hinsdale, William Richardson, Samuel H. Hobart, Aaron Rockwood, Joseph M.

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Ross, David S. Sanderson, Amasa Sargent, John Schouler, William Sherril, John Sikes, Chester Sleeper, John S. Smith, Matthew Stetson, Caleb Stevens, Charles G. Stevens, Granville Stevens, William Stiles, Gideon Storr Charles S. Taylor, Ralph Thayer, Joseph Tileston, Edmund P. Tilton, Horatio W. Turner, David Turner, David P. Tyler, William Upton, George B.

Viles, Joel
Vinton, George A.
Walcott, Samuel B.
Wales, Bradford L.
Wallis, Freeland
Walker, Amasa
Walker, Samuel
Ward, Andrew H.
Warner, Marshal
Warner, Samuel, Jr.
Waters, Asa H.
Weeks, Cyrus
Wetmore, Thomas
White, Benjamin
Wilder, Joel
Wilkins, John H.
Wilkinson, Ezra
Wilson, Henry
Wilson, Milo
Winn, Jonathan B.
Winslow, Levi M.
Woods, Josiah B.


Abbott, Alfred A. Huntington, George H. Allen, Charles

Hyde, Benjamin D.
Allen, Parsons Ide, Abijah M., Jr.
Ball, George S. Jackson, Samuel
Banks, Nathaniel P., Jr. Jenks, Samuel H.
Bartlett, Russel Kellogg, Martin R.
Bartlett, Sidney Keyes, Edward L.
Barrett, Marcus

Langdon, Wilber C.
Beach, Erasmus D. Little, Otis
Beebe, James M.

Loomis, E. Justin
Bell, Luther V.

Lord, Otis P. Bennett, Zephaniah Meader, Reuben Bigelow, Jacob Mixter, Samuel Bronson, Asa

Monroe, James L. Brown, Adolphus F. Nash, Hiram Brown, Hiram C. Packer, E. Wing Bullen, Amos H. Park, John G. Chapin, Henry Parker, Samuel D. Clark, Salah

Payson, Thomas E. Clarke, Stillman Peabody, George Cressy, Oliver S. Perkins, Jonathan C. Crosby, Leander Pierce, Henry Crowell, Seth

Read, James Davis, Robert T.

Richards, Luther Dawes, Henry L. Ring, Elkanah, Jr. DeWitt, Alexander Rockwell, Julius Dorman, Moses Sampson, George R. Durgin, John M.

Sheldon, Luther Easton, James, 2d Sherman, Charles Eaton, Calvin D. Souther, John Gardner, Henry J. Stevenson, J. Thomas Gooch, Daniel W. Strong, Alfred L. Gould, Robert

Stutson, William Goulding, Jason Sumner, Increase Greene, William B. Swain, Alanson Haskell, George Taber, Isaac C. Heywood, Levi Talbot, Thomas Hobart, Henry Thomas, John W. Hopkinson, Thomas Thompson, Charles Houghton, Samuel Tower, Ephraim Howland, Abraham H. Train, Charles R. Hunt, Charles E. Tyler, John S. Huntington, Charles P. Underwood, Orison

So the amendment to the amendment was rejected.

The question recurred on the amendment reported from the Committee of the Whole.

Mr. HALLETT, for Wilbraham, moved to amend, by striking out the words, “but in no case to continue in office after attaining seventy years of age.”

The question was taken, and upon a division, there were ayes, 148 ; nays, 98.

So the amendment was adopted.

Mr. BUTLER, of Lowell, moved to amend by striking out “ten" and inserting “ seven.” The question was taken, and by ayes 88, noes 180, the amendment was rejected.

Mr. BATES, of Plymouth, moved to amend by striking out the following words : “ Said justices to be ineligible to reappointment.”

The amendment did not prevail.

The question recurred upon concurring in the amendment reported by the Committee.

Mr. BIRD, of Walpole, moved that when the question was taken upon the amendment, it be taken by yeas and nays.

The motion was agreed to, and the yeas and nays were ordered.

Mr. COLE, of Cheshire, moved to amend by adding, after the word “ appointed," the words “ by the governor of the Commonwealth by and with the concurrence of the Senate.”

The amendment did not prevail.

The question being on concurring in the amendment reported from the Committee of the Whole, the yeas and nays were taken, and resulted-yeas, 158 ; nays, 160-as follows:

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[July 14th.

Cross, Joseph W. Moore, James M.
Cushman, Henry W. Morton, Elbridge G.
Cushman, Thomas Morton, Marcus, Jr.
Davis, Charles G. Morton, William S.
Davis, Ebenezer Nash, Hiram
Davis, Isaac

Newman, Charles
Day, Gilman

Nichols, William Dean, Silas

Norton, Alfred
Deming, Elijah S. Ober, Joseph E.
Denton, Augustus Orne, Benjamin S.
Duncan, Samuel Osgood, Charles
Dunham, Bradish Paine, Benjamin
Earle, John M. Paine, Henry
Easland, Peter

Parsons, Samuel C.
Edwards, Elisha Partridge, John
Ely, Joseph M. Penniman, John
Fay, Sullivan

Perkins, Noah C.
Fellows, James K. Phelps, Charles
Fisk, Lyman

Phinney, Silvanus B.
Fitch, Ezekiel W. Pool, James M.
Foster, Abram

Rawson, Silas
Fowle, Samuel Rice, David
Freeman, James M. Richardson, Daniel
French, kodney Richardson, Nathan
French, Samuel

Richardson, Samuel H.
Frothingham, R., Jr. Ross, David S.
Giles, Charles G. Royce, James C.
Giles, Joel

Sanderson, Amasa Graves, John W. Sanderson, Chester Green, Jabez

Sherril, John Griswold, Josiah W. Simonds, John W. Griswold, Whiting Smith, Matthew Hadley, Samuel P. Stacy, Eben H. Hallett, B. F.

Stevens, Granville Hapgood, Lyman W. Stevens, Joseph L., Jr. Hapgood, Seth Stevens, William Haskins, William Stiles, Gideon Hathaway, Elnathan P. Sumner, Charles Hayden, Isaac

Taft, Arnold
Heath, Ezra, 2d Thayer, Joseph
Hewes, William H. Thayer, Willard, 2d
Howard, Martin Tilton, Horatio W.
Hoyt, Henry K. Turner, David P.
Hurlbut, Moses C. Viles, Joel
Kimball, Joseph Vinton, George A.
Kingman, Joseph Wallis, Freeland
Knight, Hiram

Walker, Amasa
Knight, Jefferson Ward, Andrew H.
Knowlton, William H. Warner, Marshal
Knox, Albert

Warner, Samuel, Jr. Ladd, Gardner P. Waters, Asa H. Lawrence, Luther Weston, Gershom, B. Lawton, Job G., Jr. White, George Leland, Alden Wilbur, Joseph Lincoln, Abishai Wilson, Henry Littlefield, Tristram Wilson, Willard Marble, William P. Winslow, Levi M. Marcy, Laban

Wood, Charles C.
Marvin, Abijah P. Wood, Otis
Mason, Charles Wood, William H.
Merritt, Simeon

Ballard, Alvah Hewes, James
Barrows, Joseph Hillard, George S.
Barrett, Marcus Hinsdale, William
Blagden, George W. Hobbs, Edwin
Bliss, Gad 0.

Holder, Nathaniel Bliss, William C. Hood, George Braman, Milton P. Hubbard, William J. Breed, Hiram N. Hunt, William Brewster,

Osmyn Huntington, Asahel Brinley, Francis Hurlburt, Samuel A. Briggs, George N. James, William Brownell, Frederick Jenkins, John Bullock, Rufus Johnson, John Bumpus Cephas C. Kellogg, Giles C. Burlingame, Anson Kendall, Isaac Butler, Benjamin F. Kinsman, Henry W. Cady, Henry

Knight, Joseph Carter, Timothy W. Knowlton, Charles L. Carruthers, William Knowlton, J. S. C. Chandler, Amariah Kuhn, George H. Chapin, Chester W. Ladd, John S. Choate, Rufus

Lincoln, F. W., Jr. Churchill, J. McKean Livermore, Isaac Coggin, Jacob

Lord, Otis P. Cogswell, Nathaniel

Lothrop, Samuel K. Cole, Lansing J. Loud, Samuel P. Cole, Sumner

Lowell, John A. Conkey, Ithamar Marvin, Theophilus R. Cook, Charles E. Miller, Seth, Jr. Copeland, Benjamin F. Morey, George Crittenden, Simeon Morss, Joseph B. Crockett, George W. Morton, Marcus Crowninshield, F. B. Nayson, Jonathan Cummings, Joseph Noyes, Daniel Curtis, Wilber

Nute, Andrew T. Dana, Richard H., Jr. Oliver, Henry K. Davis, John

Orcutt, Nathan Davis, Solomon Paige, James W. Dehon, William Parker, Adolphus G. Denison, Hiram S. Parker, Joel Doane, James C. Parsons, Thomas A. Eames, Philip

Peabody, Nathaniel
Eaton, Lilley

Pease, Jeremiah, Jr.
Edwards, Samuel Perkins, Jesse
Ely, Homer

Plunkett, William C. Eustis, William T. Pomroy, Jeremiah Farwell, A. G.

Preston, Jonathan Fiske, Emery

Prince, F. O. Foster, Aaron

Putnam, George Fowler, Samuel P. Putnam, John A. French, Charles A. Rantoul, Robert French, Charles H. Reed, Sampson Gale, Luther

Rockwood, Joseph M. Gates, Elbridge Rogers, John Gilbert, Wanton C. Sargent, John Gilbert, Washington Schouler, William Goulding, Dalton Sikes, Chester Gray, John C.

Sleeper, John S. Greenleaf, Simon

Sprague, Melzar Hale, Artemas

Stevens, Charles G. Hale, Nathan

Storrow, Charles S. Hammond, A. B. Taylor, Ralph Harmon, Phineas Tileston, Edmund P. Hawkes, Stephen E. Turner, David Hayward, George Tyler, William Heard, Charles Upham, Charles W. Henry, Samuel Upton, George B. Hersey, Henry Walcott, Samuel B.

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