to him. The gentleman from Lowell then claimed the floor upon the ground that the gentleman for Abington had already spoken upon the subject under consideration. Supposing that the gentleman from Lowell wished to speak upon the question, the Chair, therefore, awarded the floor to him, upon that ground, as he was compelled to do under the Rules of the Convention, and the gentleman then moved the previous question. The Chair believes that is a correct statement of the case.

Mr. LORD, of Salem. Before the President decides, definitely, the question of order, I desire to call his attention to the 23d Rule, which is the following:

"No person shall speak more than twice upon one question, without first obtaining leave of the Convention; nor more than once until other members who have not spoken, shall speak, if they desire it."

Under this Rule, any member who has once spoken, must yield to another, if he desires to speak, but I do not suppose he is obliged to yield to him to make a motion.

The PRESIDENT. The Chair will again state, that he supposed the delegate from Lowell had a right to claim the floor if he wished to speak, the gentleman for Abington having once spoken upon the question. He, therefore, awarded it to the gentleman from Lowell, supposing that he wished to address the Convention; he, however, is constrained, under the circumstances, to rule the motion made by that gentleman to be out of order. Mr. KEYES. I wish to say only one word. I did not intend to have troubled the Convention again upon this subject. I was very anxious that this question should be disposed of without debate; and although this is a subject in which I have taken some interest, I have expressly avoided saying anything which should elicit debate.

But the gentleman from Framingham, (Mr. Train,) has seen fit to come out with one of the same sort of speeches which we have heard-not only upon a former occasion during the debate on this question, but which we have heard outside of this body-and such as I think, ought not to be made anywhere. I can see no reason why the gentleman should make such speeches, for I believe him personally to be one of the kindest hearted men in the Convention, and I can only account for it on the ground of the butcher business in which he has been engaged. I can think of nothing else which should prompt him to rise and make such speeches.

Sir, I undertake to say, that these prosecuting officers and judges, whose business it is to convict

[July 22d.

and sentence criminals, are not the proper men to be applied to for opinions in relation to the pardon of those convicts. Having once expressed their opinions as to the nature of their guilt, they have some pride in the matter. They do not like to have their decisions reversed. If he is a judge and has given his decision, upon a full knowledge of the circumstances connected with the trial, which has resulted in the incarceration of a man in prison, he is not willing to turn round and say that his sentence was too severe, and that the convict should be liberated. It is the nature of men to have faith in the cause they are obliged to maintain. An illustration may be found in a debating society, where a man taking the wrong side of a question for the sake of argument, defends and discusses it until he ends in believing that to be right, which, at the outset, he honestly believed to be wrong. And so it is with advocates who argue against what they know to be the plainest evidence; they argue themselves into the belief that what they are supporting is right.

Now, Sir, these very judges upon the bench, in charging the jury, generally argue the question in such a way as to indicate pretty clearly what their opinions are in relation to the guilt or innocence of the accused, and in nine instances out of ten, their opinions thus given, determine the verdict of the jury, when half the time any member of the jury is as good a judge of what is justice and equity as the judge himself. The idea that judges never make mistakes is a false one. You cannot go into any county court in the State, and examine the decisions through a single term without finding great mistakes committed. There is not much reason or common sense in many of their sentences, and that every-body knows. I do not mean to say that the judges mean to give wrong decisions, but any man who sits upon the bench feels differently at one time from what he does at others. I have suffered from dyspepsia long enough to know that sometimes a man may feel as if he would strangle half the world, if he could get them by the neck, [laughter,] and at others, as if he would shower blessings on the whole race. I believe the judges perform their duties conscientiously, and as well as they are able to, but they are not infallible.

But, as I said in the outset, it is no purpose of mine to oppose this amendment. If people think it is necessary, let them have it. But I cannot subscribe to requiring these men, who, if not hangmen, are only one remove from it, and who, by means of their profession, have acquired to some extent, the dispositions of butchers, to give their opinions upon the propriety of exercising the pardoning power.

Mr. BATES, of Plymouth, When the discussion first commenced upon this question, I was in favor of the amendment of the gentleman from Milton, (Mr. Churchill). But when I heard the argument of the gentleman from Framingham, (Mr. Train,) I was opposed to it, inasmuch as it put it upon the ground that the Council were a set of scoundrels who were unfit for, or incapable of taking care of the interests of the State, with regard to matters committed to them. But I am opposed to continuing this debate farther. It may be, if it were to continue, that arguments might be presented which would lead me to vote in favor of the amendment, and I therefore move the previous question.

Mr. UPTON, of Boston. I have an amendment which I desire to offer, and I also desire to occupy not more than two minutes in explaining it. If the gentleman will withdraw his motion for the previous question, I will renew it before I set down.

Mr. BATES. With that understanding, I withdraw my motion for the previous question.

Mr. UPTON. I move to strike out the second resolution as it now stands. It is the following:

Resolved, That it is expedient so to amend the Constitution as to provide that the record of the proceedings of the Council shall always be subject to public examination.

Now, Mr. President, one single word to explain my object in making that motion. These resolutions provide that your Council shall sit in judgment upon criminals-that is to say, the question of pardon is to come before them. They sit in public, but still the records of their proceedings, in every case, are to be made subject to public examination.

Now, Sir, in the case of an examination before a jury, of a criminal offence, if there is any difference of opinion among the jurors, where the person is not convicted, the opinions of those jurors who were in favor of conviction are never made public. Yet it is proposed to provide that the proceedings of the Council shall not only be open, but that the record of their proceedings shall be kept open for public examination, so that, if their is a difference of opinion among the the councillors upon a question of pardon, any one, from a personal or other motive, can go to your Council-Chamber, and ascertain how each councillor voted. Now, Sir, that is contrary to the principles and spirit of our institutions. You open the door for any person entertaining feelings of hostility towards any particular councillor, to carry them into effect, by ascertaining from the record what were his votes in relation to applica

tions for pardon, and using those votes to secure his own private ends. You open the door for revenge, if you please. Why should the opinions of jurors, as to the criminality of a person upon whom they are called to decide, be kept from the public, and the opinions of a councillor, who is called upon to decide the same question, upon an application for pardon, be made public?

I hope the resolution will be stricken out; and now, in accordance with my promise, I move the previous question.

The previous question was seconded, and the main question ordered to be put.

Mr. BRIGGS, of Pittsfield. I do not wish to say one word upon the question before the Convention; but, having heard that I made an erroneous statement in relation to one of the unfortunate young men to whom I alluded when I was before up, I wish, in justice to his friends, to correct the statement.

The PRESIDENT. The previous question having been ordered, the gentleman from Pittsfield can only proceed by unanimous consent.

There was no objection made, and

Mr. BRIGGS proceeded. I alluded to a young man by the name of Learned, in Worcester County, who, upon the recommendation of many of the citizens of that county, was pardoned; and I stated that he turned out to be unworthy, and that he had since been tried and convicted for another offence in the State of New York.

Sir ce making that statement, a gentleman tells me he has learned that the young man has, within a few days past, died in the State Prison in the State of New York, but that before he died, satisfactory evidence was produced, to show that he was wrongfully convicted; that the governor of New York was satisfied of that fact, and sent him a pardon; but that that pardon reached the prison-house two hours too late; and that in his dying moments the poor fellow protested his innocence of the offence for which he was convicted.

Sir, that young man may have a mother, he may have a sister, or some friend, who may see in print, or in some other way learn, what I said in relation to his case. I desire, therefore, to take it all back, for of all things, I would not do injustice to any human being placed in such a situation, or wound the feelings of his friends. I understand that the evidence was satisfactory that he was wrongfully convicted.

The question was then taken on Mr. Churchill's amendment, and there were-ayes, 135; noes, 115.

So the amendment was adopted.

The question then recurring upon the motion

of Mr. Upton, of Boston, to strike out the second resolution, it was taken, and the motion was not agreed to-ayes, 97; noes, 164.

The PRESIDENT. The question now is upon ordering the resolves, as amended, to their final passage.

Mr. HALLETT, for Wilbraham. I move a reconsideration of the vote whereby the previous question was ordered. I desire to say one word as a reason for so doing.

Mr. EDWARDS, of Southampton. I rise to a point order. I would inquire of the Chair if it is in order to move a reconsideration of the previous question after we have proceeded under the operation of that previous question and taken votes?

Mr. HALLETT. I withdraw my motion. Mr. GRISWOLD, for Erving. There is one vote taken here with which I am dissatisfied, and I will venture to move a reconsideration of the vote by which the amendment of the gentleman from Milton (Mr. Churchill) was adopted. Mr. SCHOULER, of Boston. I rise to a question of order. My point of order is that there cannot be a reconsideration now, after the previous question is ordered.

The PRESIDENT. The Chair is of the opinion that the motion to reconsider is not in order; that no motion to amend or reconsider can be in order, the main question having been ordered.

Mr. SCHOULER. The gentleman can move a reconsideration after we have got through with the resolves.

The PRESIDENT. The question now is upon ordering the resolutions to their final passage.

Mr. GRISWOLD. I had supposed that the motion I made was in order; but as it has been ruled out of order, I call for a division of the question.

The first resolve was then read, as follows:

Resolved, That eight councillors be elected by by the people in single districts, each district to consist of five contiguous senatorial districts.

The question was taken, and the resolution was agreed to.

The second resolution was read, as follows:

Resolved, That it is expedient so to amend the Constitution as to provide that the record of the proceedings of the Council shall always be subject to public examination.

The question was taken, and the resolve was agreed to.

The third resolution was read, as follows:

[July 22d.

Resolved, That it is expedient so to amend the Constitution as to provide that no councillor, during the time for which he shall be elected, shall be appointed on any commission, or to any place, for which he shall receive any compensation whatever, other than that which he receives as councillor.

The question was taken, and it was a reed to. The fourth resolution was read, as follows:Resolved, That the legislature may provide by law that public notice shall be given of all applications to the Governor and Council for remission of the sentence of persons imprisoned for crime.

The question was taken, and a division being called for, there were-ayes, 129; noes, 135. So the resolution was not agreed to.

Mr. HALLETT, for Wilbraham. I rise for the purpose of moving a reconsideration of the vote just passed.

The PRESIDENT. The motion will go into the Orders of the Day for to-morrow. I rise to a Mr. BOUTWELL, for Berlin. question of order. I wish to know whether the motion can be made at this time?

The PRESIDENT. The motion cannot be made except by general consent, unless the Orders of the Day be first laid upon the table. Mr. BOUTWELL objected.

Mr. HALLETT moved that the Orders of the Day lie upon the table.

The question was taken, and the motion was not agreed to.

Preservation of the Records.

The PRESIDENT. The next matter in the Orders of the Day is No. 6 in the calendar, being the resolves on the subject of the preservation of the records. The question pending is upon their final passage.

The resolves were read, as follows:

Resolved, That, at the close of the session, the Secretaries of the Convention deposit the original journals, together with the papers of the Convention, in the office of the Secretary of State.

Resolved, That William S. Robinson prepare an index to the journal, and procure two thousand copies of the journal and index to be printed and bound, on such terms and in such manner as shall be approved by the Committee on the Preservation of the Records, and that he be paid four dollars a day for his services therein.

Resolved, That his Excellency the Governor be requested to draw his warrant on the treasury for such expenses incurred in the execution of the preceding resolves, as shall be approved by the Committee on the Preservation of the Records.

Resolved, That the Secretary of the Commonwealth be requested to distribute copies of the journal to each member of the Convention, and

Friday,]

to all persons and public bodies mentioned in chap. 2, sec. 2, of the Revised Statutes, excepting members of the legislature.

The PRESIDENT. The question is upon ordering the resolves to their final passage.

Mr. BRIGGS, of Pittsfield, I wish to make an inquiry in regard to this matter. I am informed that the mode of doing this business in the House of Representatives is to pay a certain sum, say one hundred or one hundred and fifty dollars, for the work. If that has been the practice heretofore, I wish to inquire what reason there was for departing from it in this case? I merely ask for information.

Mr. BIRD, of Walpole. The Committee understood that the practice had been to pay four dollars per day for services of this kind rendered by the clerk; but I have been informed by gentlemen here that the practice has been to pay a round sum, one hundred or one hundred and fifty dollars, as the case might be.

Mr. BRIGGS. I have no choice about it. I merely wanted the information.

The question was taken on the resolutions as reported by the Committee, and they were agreed to.

Elections by Plurality.

The PRESIDENT. The matter next in order is No. 7 upon the calendar, being the resolutions upon the subject of elections by plurality and majority. The question pending is upon their final passage.

The resolutions were read, as follows:

Resolved, That it is expedient to provide in the Constitution that a majority of all the votes given shall be necessary to the election of a governor, lieutenant-governor, secretary, treasurer, auditor, and attorney-general of the Commonwealth : provided, that if at any election of either of the abovenamed officers, no person shall have a majority of the votes given, the House of Representatives shall, by a majority of viva voce votes, elect two out of three persons who had the highest, if so many shall have been voted for, and return the persons so elected to the Senate, from which the Senate shall, by viva voce vote, elect one who shall be governor.

Resolved, That in all the elections of senators and councillors, the person having the highest number of votes shall be elected.

Resolved, That in the election of representatives to the general court a majority of all the votes given in shall be necessary to the election at the first ballot: provided, that in case of a failure of election on such ballot, the person having the highest number of votes at the second or any subsequent ballot, shall be elected.

Mr. HOOPER, of Fall River. I move the previous question.

[July 22d.

Mr. DANA, for Manchester. I hope the previous question will not be sustained, for I have an amendment which I desire to propose.

Mr. SCHOULER, of Boston. I hope the previous question will not be pressed, because I shall feel myself under obligation to move a reconsideration, and I do not think we shall gain any time by such a motion. I do not intend to discuss this matter, but I intend to move the same amendment which I offered the other day. The gentleman for Manchester has also expressed a desire to move an amendment. I do not know what it is, but I think that opportunity should be afforded to any gentleman to move amendments. I can assure the gentleman from Fall River, (Mr. Hooper,) that I do not intend to occupy any time, but merely to offer my amendment. If the previous question should be sustained, and no opportunity given to offer amendments, I shall move a reconsideration. I call for the yeas and nays upon the previous question.

The yeas and nays were ordered.

Mr. HOOPER, of Fall River. I will withdraw the motion for the previous question.

Mr. DANA, for Manchester. I propose to amend the resolves by striking out all after the word "that," in the first resolve, and inserting the following::

That in the election of all officers required by this Constitution to be elected by the people, except town officers and representatives to the general court, the person having the highest number of votes shall be deemed elected. In the election of town officers and representatives to the general court, a majority of votes shall be required, unless otherwise provided by the legislature.

I wish to take a few moments of the time of the Convention to suggest a reason or two in favor of this amendment. I said, day before yesterday, when the subject of the judiciary was up, that I hoped that whatever had been settled by a test vote would be treated as settled; and that I would not bring forward any amendment on the subject of the plurality, if the amendment on the subject of the judiciary could also be dropped; but as that subject was reopened, I feel myself at liberty to bring forward this amendment.

The Convention will allow me to suggest to them the state of this question now. The officers whom the people elect will be divided into three classes: first, those chosen by towns, including representatives. Now, are we not pretty much all agreed, as the votes show, that they shall be chosen still by majorities, and at the same time, that the hands of the legislature shall not be tied, so that if towns think it expedient to have the right