so that each question may be taken separately, and then the question on the amendment offered by the gentleman from Worcester, must wait till we come to the fourth resolution.

The PRESIDENT. The whole question was pending. The question was on ordering the whole of the resolutions to their final passage. The gentleman from Worcester moved to amend, when that motion was pending, and the gentleman from Manchester moved to lay the motion to amend upon the table. The Chair rules that if that motion be carried, it carries the whole question, and lays the whole subject upon the table. Mr. DANA. I have withdrawn my motion ⚫ to lay the motion to amend upon the table; and I call for a division of the subject, so that the question may be taken separately.

Mr. BUTLER. That call, of course, will be heard at such time as it can be done, by parliamentary rule. I do not propose to speak upon the division of the question. Any member has a right to call for a division of the question when a vote is about to be taken.

Mr. GRAY, of Boston. I rise to a question of order. I understand that any member has a right to call for a division of the question at any time. I understand my friend for Manchester has called for it now. I beg the gentleman now speaking to understand that I do not oppose any latitude being given, but I understand they are divided.

The PRESIDENT. The gentleman for Manchester calls for a division of the question now. Any member has that right; and when the question is put, it will be upon the first resolution; but the whole question, and all the resolutions are open for discussion.

Mr. BUTLER. That was precisely the way I understood the matter; and I do not think the judges will save their lives by parliamentary tricks and manoeuvres. In my judgment, if the judiciary of Massachusetts stands on no firmer foundation than mere parliamentary rules, the quicker it is tipped over the better. I propose that this question shall be met fairly, and on its merits. I wish, now, to disabuse the mind of the gentleman for Manchester, of one or two errors which he put forth, and in which he seemed to wish to carry the Convention along with him. The first is, that that vote heretofore given shows any result like that which he stated. He says, we must not touch this subject now, because the President said, very properly, that where the votes are pretty evenly balanced, it is well not to make any great change in the Constitution. So I agree, and so I would agree, in the application of it to this case, if the premises of the gentle

[July 20th.

man were correct. But I know of many men who are in favor of an elective judiciary, and who are in favor of the abolition of the life tenure, in some form, who voted with the gentleman for Manchester the other day, and against the tenure for ten years. And why? Because they thought it not enough. I can put my eye on many who voted against the ten years' tenure, because they thought it was not all they wanted; because they thought it did not crack the old shell widely enough.

But this proposition of the gentleman from Worcester, commends itself to my judgment. It has two elements in it that I approve. The one is an appointment for a given term, holding the judges responsible to the people; and the other is, that the appointment shall be confirmed by the Senate, and the Senate is to be elected by the people; in like manner the Senate of the United States has a confirming power. Again, the appointment has to lie seven days before it is confirmed, so that we can know who is nominated before he gets into an office for life. Aye, Sir, I know judges, and I could call names, if I was provoked to it, who, if their nomination had lain over seven days before the Senate, would have stood as much chance of being confirmed, as they would of being elected, if the question had gone to the people; and that is putting it strong enough. But the difficulty is, they are appointed; it is done in the Council-Chamber, and I do not propose to interfere with the Council now. But it is done in the Council-Chamber, and nobody knows who the judge is to be, until he is a judge, and there is an end of it, so far as getting at him is concerned, except by impeachment. And if he knows just enough not to do any great wrong, or if he does not commit any flagrant outrage, he can go along, and nobody can interfere with him. I have had my attention specially called to this matter by an article which I find quoted, with a great deal of approbation, in a leading political newspaper, which goes in strong for the life tenure of the judges. I mean the Boston Atlas, which meets the approval of the conservative portion of this Convention. And, as though that was not enough, it is copied from the North Adams Transcript, which I commend to my friend from North Adams, (Mr. Dawes,) as being under his particular jurisdiction. It seems that a man by the name of Howe, has been appointed down in Haverhill, for a judge of probate. Now the Whig papers defend that appointment. What is the reason? I will read the article, as it is short:

"N. S. Howe, of Haverhill, a member of the

State Senate, has been appointed, by the Governor, a Judge of Probate for Essex County, in place of Daniel A. White, resigned. This appointment has given rise to some dissatisfaction, and intimations are thrown out, in some quarters, that it is an injudicious one. It would be strange if, in every instance, the governor should be so fortunate as to make the best selection that could be made. But in this instance, we have no hesitation in saying that we believe he has made, under all the circumstances, the best appointment that could be made from among the applicants."

Now comes the reason:

"Mr. Howe is a stirring, active young Whig, and we believe his appointment, (and we think our sources of information are tolerably good,) will give more general satisfaction to the live, moving Whigs of the county, than that of any other man mentioned for the office. We suspect the mournings, if traced out, will be found to come from interested, if not disappointed, persons, who, until they have manliness enough to back up their insinuations by something tangible, or put their hands to paper, as they have been invited to do, had better say less."

Here is a man who is to settle the estates under the beautiful system which the gentleman for Manchester is so anxious to retain; or if he cannot remain there for life he is to remain till he turns old fogy, which is the next step to death. Mr. DANA. He holds his office only three years.

Mr. BUTLER. Aye, but it would be for life if the gentleman could have his way. True, we have made the judges of probate elective once in three years. Sir, I thank God we have got a chance at that young Whig, in the county of Essex, in about a year. This is the life system, and these are the reasons given when there is dissatisfaction manifested, when the men of the county say we do not want him. How is the appointment defended? On the ground that he is a live, active young Whig. And that is endorsed by a newspaper in the western part of the State, which I have heard is edited by one of the Executive Council, and then reëndorsed by the Boston Atlas. Is this right? Suppose we had put that man before the Senate. What would have been the result? Would he have been confirmed for that reason? I grant that we must go to appointments; I grant that is the best which can be done now; because, I am sorry to say, we cannot have an elective judiciary. Let there be five more, or ten more-one in each county-of such appointments, and that would settle the question. But the motion of the gentleman from Worcester exactly meets my difficulty. We have by that an appointment once in seven years, and then we

[July 20th.

have the nomination lie over seven days; and if the people are dissatisfied they can go to the Senate and have an understanding upon the subject after the appointment has passed the ordeal of the Council.

A word as to what was said by the gentleman for Manchester, who, although he said he did not argue the question, yet-with an adroitness which does him honor as a member of a somewhat adroit profession-still put forth the strongest argument which lay in his mind. He says we cannot put the Constitution to the people by piecemeal. I agree with him in that; we cannot do it. I was afraid it would be done. For there is very much of my success in my profession depending on the adoption of this Constitution, because I do not know what will be visited upon me from the judges, because I have laid my unhallowed hand upon the judiciary. But I am willing to take the risk, for I have been among the people since this matter came before the Convention, and I understand how they feel since I have seen them, and since this Convention has promulgated the idea that the people were not to be trusted with the election of the judges. That fell upon the people of the Commonwealth like a cloud, and no man, of all those I have met, except those in the ranks of conservatism, but what said: is it possible that the Convention has taken such a step? And those steeped in conservatism turned up their eyes, and said: "Well, you are a good reformer, but you are afraid of the judiciary." The laymen here know whether this is true or not. We could have carried that question of the election of the judges if the lawyers had not been a set of cowards. You were afraid of the judges, it is said, and you wanted to plaster and gloss over the matter. That is the way they speak outside of us. But I want it understood that I am not afraid of the judiciary. I am not very anxious on that point; my works may speak for me.

Now, we come to the people, if we sustain this amendment, and we say to the people, your judges shall be made amenable to you, once in seven years, through the Governor elected by you, and through the confirmation of a Senate elected by you. I ask gentlemen if they are not ready to put this into the Constitution, as a whole? In my judgment, it will carry with it three or four other measures which have not quite come up to the expectations of the people. I believe in the effect of the popularity of this measure. I may be mistaken; but I am not mistaken about the feeling in the Convention. The feeling here, I have no doubt is, that an elective judiciary would be best.

people.

But there is a little distrust of the Let us lay aside this distrust, and put

the proposition to them, and when we do it we shall get the response.

There is one thing which I wish to state, and I challenge contradiction in regard to it: that in every instance where the proposition to either elect judges, or to appoint them for a limited time, has been submitted to the people, with either proposition as a separate proposition; the proposition to elect the judges has received more votes than any other which was put to the people at the same time.

There was not a man found in New York to stand up against it at all. Where it has been put separately, even in the conservative State of New Hampshire-and I commend that to my friend from Cambridge especially-where they have been subject to such a state of things that if any State could have been wedded to the life tenure, it should have been that State; there, the proposition to limit the term of the judges, and alter their tenure, was received with more favor than any other proposition, being put separately.

Sir, I have listened to the arguments on the one side and on the other, and I have carefully weighed them in my own mind; and I wish gentlemen to understand that when I voted against the ten years' tenure, I did it not that I loved the life tenure more, but that I loved the ten years' tenure less. It was not because I wanted a ten years' tenure, but because I wanted the tenure of seven years.

There is a sort of magic about the number seven, if I may be permitted to say so. The Jews had a jubilee every seven years, under the Mosaic law, and so should we if we could get out some of our judges. [Laughter.] I could tell you a thousand reasons in favor of seven years, and against ten; but, more than all that, it is the shortest period. I will take occasion to repeat, that I may disabuse the minds of members of the Convention of the impression which might be created by the remarks of the gentleman for Manchester, that the vote indicated the state of feeling. I wonder if in this he included me, for I was one of the one hundred and sixty gentlemen, and I know of several members, who, if they would speak for themselves, would say that they voted the same way, because they thought we did not get enough. They wanted more.

And as the gentleman for Manchester has started this matter of parliamentary tactics and holding us to the rule, I propose, before we get through, to hold that same chalice to his lips. If we carry on these parliamentary tactics, as well as himself, I trust he will not complain.

Mr. DANA, for Manchester. I hope that so important a question as this, affecting ourselves

and our posterity in Massachusetts for a great many years to come, will not be prejudiced in this Convention by any consideration of the manner in which the question arises. When the proposition was moved by the gentleman from Worcester, it seemed to me that there were certain preliminary considerations, not touching the merits of this case, that should settle it; and therefore I proposed to get the sense of the Convention at once, by moving to lay it upon the table, and let the Convention decide whether it ought to be voted down. Because, if the motion failed, the whole subject was up for discussion; and if it prevailed, it would show that the Convention did not want to entertain the proposition. I do not consider that a parliamentary ruse; it was a parliamentary proposition, and if there were any parliamentary ruse about it, the ground taken that this Convention could not decide upon the preliminary question at all, but that the whole question must be decided at once, had much more of that aspect.

I thought the preliminary consideration should settle this matter; that it was not worth while now to enter upon the discussion of the question as to the judiciary, and I wished the Convention to say so; but I have been prevented, by a parliamentary ruse, from getting that question before this body; and now we cannot avoid the discussion of the whole question. I do not mean to alarm the House by proposing to discuss the merits of the whole question; but what I have to say I shall say as briefly as may be. And I will remark, in the outset, that I propose to discuss it in a very different manner from that in which it was discussed by the gentleman from Lowell. It seems that the gentleman from Lowell has been out among the people, and he has heard it said that he was afraid, or rather, that the lawyers, here, were afraid, and did not dare to come up to the work. He desires to show that he is not afraid. But, Sir, it is not necessary to amend the Constitution in order to prove that the gentleman from Lowell is not afraid. I think it was decided by the legislature last year that he was not afraid of anything. [Laughter.] I was not here at the time, but I understand that such was the decision. He has shown, farthermore, that he is not afraid by bringing this forward and making his speech. He has exhibited his courage, and no man here doubts it; and it was not necessary that he should have proclaimed it upon this floor. Another thing, which I wish to suggest, is, that this question ought not to be decided by any reference to special cases of appointments. It seems that one Mr. Howe, of Essex, has been appointed to office, and it seems

that some injudicious newspaper has given a very wrong and a very bad reason for the appointment. Now I want to ask the Convention whether they will decide this important question on a mere article from the North Adams Transcript-perhaps as good as any other paper-but will you decide upon one paper or upon all the papers in Massachusetts? Will you decide, upon the case of one Mr. Howe, or all the Mr. Howes in Massachusetts? Will you decide it by one judge of probate, or all the judges of probate in the Commonwealth? I trust that we shall put out of the question any newspaper paragraph, or any man's courage, or want of courage. I hope we shall decide this matter upon general principles. Besides, if Mr. Howe's appointment was an improper one, did not the governor nominate him? Whom does the gentleman from Lowell propose shall nominate his judge? Why, the governorthe same officer who nominated Mr. Howe.

Mr. BUTLER, (in his seat). The Senate is to confirm him.

Mr. DANA. The gentleman says that the Senate is to confirm him. That is true; but does he suppose that a Whig Senate will not confirm "an ardent young Whig" like Mr Howe? Does he suppose that that fact would be any objection to him in a Whig Senate? And suppose we had a Democratic Governor and a Democratic Senate, is it not perfectly clear that we should have some ardent young Democratic lawyer [laughter] nominated for judge by this Democratic Governor, and confirmed by this Democratic Senate?

Mr. BUTLER, (in his seat). Not for life.

Mr. DANA. It would be done every year, and that is no better. We should have a series of ardent young Democrats, and there would be no chance for any of them to grow older and wiser in office. [Laughter.] That is all that we should gain by it.

Then it seems that the gentleman is superstitious. With all his courage, he is a victim of superstition. He voted against a ten years' tenure, and will vote for a seven years' tenure, because seven is a sacred number! He says that the Jews had a jubilee every seven years, and therefore he wants a judge of the supreme court for seven years. Now, a superstitious man who reasons well about everything else, seldom reasons well about superstition. And he must remember, when he quotes the Jews for authority as having a jubilee every seven years, that we also read that they had seven years of famine, while they were in Egypt. [Great laughter.]

Mr. BUTLER, (in his seat). That was a curse upon them.

Mr. DANA. Well, I am afraid we shall have

[July 20th.

a curse upon us, if we follow bad examples. Our ancestors had a seven years' war, which turned out well; but does anybody want a repetition of it every seven years? I am not satisfied with making this change out of a superstitious veneration for the number seven, or for any other reasons which have been given. In sitting here as a deliberative assembly to make great fundamental changes in the Constitution, let us consider the matter seriously, and in a manner becoming the great questions which we have to pass upon. Let me repeat what I said when I moved to lay the resolution upon the table, that I think we had better drop the whole subject. The gentleman from Lowell says, that the vote the other day was not a test vote, for there was a majority of two against the proposition, and he knows of four or more who voted for special reasons, because they could get seven, and could not get ten-persons under the same hallucination about the number seven.

Mr. KNOWLTON. If the gentleman will allow me, I will state that I voted for their election, and voted against the term of ten years; and I did so as a matter of compromise.

Mr. DANA. It seems that there were four then, and that would leave just two in favor of the proposition, or about a measuring cast. How many gentlemen there may be, who follow in the wake of the gentleman from Lowell, I do not know, and I do not believe that he can tell himself; I do not believe that any man can count his adherents in this body-he says he knows of four; but I know of some who voted for the proposition of the gentleman from Natick, for a ten years' tenure, who may vote against the whole thing now, upon the principle which I relied upon when I moved to lay this resolution upon the table; that is, to let bygones be bygones. As I said before, we ought to do so, because we must submit this Constitution to the people as an entirety. I will satisfy any gentleman, who will go into the Senate-Chamber and look over the work which I had the honor to have confided to me by the chairman of the Committee, in making up the parts of this Constitution, that this is inevitable. The gentleman from Lowell says he is of that opinion also. Now, I ask the friends of this Convention, who must be responsible for the success of this Constitution, whether they think it worth while to peril it by referring this question, or by altering our judiciary system? Sir, I think they have got a good deal to do to carry this Constitution. There will be a good deal of hostility to some of the essential principles which we have maintained here; and if in addition to that, we stir up all the feeling in this Commonwealth

by an unadvised change in the judiciary system, | it will be a great risk to run, for the people of the Commonwealth are attached to the judiciary system. They have no complaint to make about it. Some lawyers who have lost cases may complain, and may think they have been ill-treated; but the great body of the people do not complain. If you attempt to reduce the tenure of the judges to seven years, you will find a good deal of popular feeling against it.

The argument of the gentleman from Lowell was principally based on opposition to the appointing power. It was based on the right of the people to choose their judges. He says that we have indicated to the people of the State, that we think they are not capable of electing their own judges. He says it fell like a cloud-I am not in the habit of seeing clouds fall where I live-it fell like a cloud upon the people, to hear it said that they could not elect their judges. But, Sir, he proposes to say this again, that the people are not capable of electing their judges, and that it must be left to the Governor and the Senate, for he voted against the amendment of the gentleman from Fall River. Now what kind of answer is that to the popular argument? You cannot get up any popular enthusiasm in favor of the seven years' appointing power. That is out of the question. If the people believe that they have a right to elect their judges, you cannot get up any popular enthusiasm in favor of increasing the executive power.

Another objection which you will have to counteract, when your Constitution goes out to the people, is this: that you will be adding vastly to the executive power and patronage. I ask the gentleman from Natick, and those gentlemen whose names are signed to the report of 1851, saying that the executive power in this State had increased, and ought to be diminished, with what face they can go out to the people and say: "We have increased the executive power seven-fold. Our little finger shall be heavier than our father's loins; for the governor could merely appoint a judge, and, after he had appointed him, he was entirely out of his power for life; but we now propose to give the governor power to appoint a judge once in about ten months?" That will be the result. If you have the seven years' tenure, with the resignations and deaths that will ordinarily occur, there will be a judge to be appointed every ten months. You then propose to add to the executive power and patronage, by giving him the right to nominate a supreme court judge about once in every ten months, and a common pleas judge about as often-two judges every year! I submit to gentlemen, what kind of ar

[July 20th.

gument is that with which to go out to the people, and ask them to support your Constitution, when you tell them, we have pretended that we wanted to diminish the executive power, but we have given the governor the power to appoint one supreme court judge and one common pleas judge in the course of every year? The objection will be, that you have put the judiciary under the control of the executive, and there will be no escape from it. Some one of these judges will, every year, be looking towards the Council-Chamber for his fate. No gentleman here can have a case come before the supreme court, without knowing that some one of those judges is looking to the powers that be, for his reappointment. Suppose a political case has arisen -a case in which parties have got mixed up, and suppose the suitor has incurred party odium, will he want to carry his case before such a court as that? Will not that circumstance be a strong objection? Which would you rather do: go before a judge when you knew his reclection was pending before a million of people, or when his reappointment was pending in that CouncilChamber? The gentleman from Lowell says, he wants to have a chance at that young Whig judge who has been appointed in Essex County. Well, Sir, he does not propose to make judges of the supreme court elective. If he wants to have a chance at one of the judges of the supreme court, how is he going to do it? He must reach him through the executive chamber, if at all. That will be the result. Whenever the gentleman from Lowell wants to "have a chance at a Whig judge," or whenever some Whig wants to have a chance at a Democratic judge, he must do it through the executive chamber. But while this is going on, the friends of that judge will not be idle. They will not submit to have him overridden. They will support him there, and if we have occasion to go there on any public business, we shall find the ardent young Democrats and ardent young Whigs blocking up the lobbies of that chamber, all the while that the nomination of that judge is pending. Well, Sir, after he gets his nomination, he must go to the Senate to be confirmed, and there it will be just about as bad. The same spirit will prevail, and whether he be a Whig judge or a Democratic judge, there will be the lobbying for and against him, and this contest will be kept up by a great many persons, and the influence will be felt throughout the State.

Now, I do not know that I can convince gentlemen in this Convention that that would be a bad principle; but I can tell them that there will be people enough in the State who will think it