He can certainly have no objection to telling us whether he means to abrogate the statute I have read. Of course the gentleman has no concealment. Mr. HALLETT. The gentleman is very pertinacious upon this subject. I mean, if I can, to give such a direction to the public sentiment, bearing upon the highest judicial tribunal in this Commonwealth, that it shall never again have its courts dishonored by another such trial as has been heretofore alluded to. Mr. LORD. That does not precisely answer the question. The Constitution is the supreme law, and this is subordinate. Now does he mean that that shall abrogate this? That is the question. He certainly can have no objection to tell us what he means. Does he mean that the supreme law shall be in conflict with this subordinate law? Mr. KEYES. I might as well say a word, as to listen any longer to this debate, for it seems to amount to nothing. Now, Sir, so far as regards my own vote upon this subject, I had made up my mind to give it for this resolve. But, as I understand gentlemen, it has been said the probability is, that it may do away with the requirement of a belief in God to render a man competent to give his testimony in a court of justice. Now, in voting for this proposition, in that view, it might appear to some men in this Commonwealth that those so voting, are rather loose in their morals or religion. I shall vote for it, I trust, without being understood on that account, to entertain opinions inconsistent with Christianity. I recollect being myself upon a jury where I had the opportunity of getting the opinion of one of the supreme justices of this State on this subject. I recollect that when a witness was brought upon the stand, the counsel proposed to question him upon the subject of his belief in God. The judge who presided in that case, not only indicated, but said in so many words, "Do not do it," so that it was heard by the jury, and I do not know but it was heard by every person in the court-house. It gave me to understand it was his opinion, at least, that it was an improper act. Now, when it comes to this, I for one, should like to have something in the Constitution to prevent calling upon God to attest the numerous lies that are told upon the stand. I think if there is any blasphemy anywhere, and any temptation to it, it is that men are compelled to call upon God to witness the streams of falsehoods which are poured out upon the witnesses' stand. It is not necessary under our Constitution. Men are supposed to be able to tell the truth without this. One sect of Christians are not required to do it; and that is a [July 26th. sect which all will admit, tell the truth more uniformly and conscientiously, than any other portion of the community, on the stand, and everywhere else. They affirm under the pains and penalties of perjury alone, and it is those pains and penalties alone which produce any effect. At our custom-houses they have what they call a custom-house oath, which every-body knows, practically means nothing. Were it not for the pains and penalties of perjury, men would be just as well with the oath as without it. It is not so much from my own observations that I have come to this conclusion, as from the testimony of lawyers and others who are familiar with the proceedings in courts. Therefore, in voting for this, I do it because I believe it is useless to question a man as to his belief in God. Everybody believes in some sort of a superintending power, even if it be that of blind chance. Whatever belief he may have, he may swear if he pleases before the court that he believes in a God, although he may be what is called an infidel; and therefore in voting for this proposition, which may do away with the law forbidding infidels to testify, I trust none of us will be charged with any want of awe or reverence for the Supreme Being. Mr. KINGMAN, of West Bridgewater. I shall vote for the amendment of the gentleman for Wilbraham, and I shall do so because I am in favor of the greatest liberty being allowed in this matter. Why, Sir, if the prediction of the distinguished member for Berlin is to be verified, we shall, in less than half a century, have half a million of Chinese in the State of Massachusetts, every one of whom is an idolater. And are these Chinamen to be deprived of the right of testifying in our courts of justice? It certainly appears to me to be a curious idea. I hope the amendment will be adopted, so that every man, be he Christian, Mahometan, or idolater, may have the privilege of testifying in our courts. Mr. CHAPIN, of Webster. Mr. Chairman: I should like very much to know, what are the main objects which this Convention was called to consider. It has been said, that we have assem bled here for certain purposes, and we have considered and acted upon many important subjects but, Sir, I claim that we are not here to amend the Constitution in the manner now proposed. The people never contemplated any such amendment; they did not expect it; and are not prepared to vote upon it. I do not believe that the legal voters of our Commonwealth are ready to deny the existence of a Supreme Being in our courts of justice; but, on the contrary, they desire that every man connected with these proceedings, should feel and acknowledge His pres Tuesday,] CHAPIN-HALLETT-PLUNKETT — ABBOTT. ence; that the judge upon the bench should feel it; that the juries in their boxes should feel it; and, above all, that the man upon whose testimony is depending the life and liberty of a fellow creature, should feel that the Great God is looking down upon him, and that the Recording Angel is writing every sentence he utters. yet, from the remarks of the gentleman for Wilbraham, I am inclined to think that the design of this amendment is to effect that very object. And I wish to say, farther, that as a member of this Convention, and especially from the peculiar relations I sustain to the gentleman for Wilbraham, (Mr. Hallett,) I have the right to an answer from him, to the question proposed by the gentleman from Salem, (Mr. Lord). It so happens, that the town which he represents is my native place, and I am very happy it has been so ably and correctly represented in this Convention. I wish to say, for the encouragement of the gentleman for Wilbraham, that my eye has continually been upon him and his actions, during this session; and I have had occasion to feel proud that my native town has had so able, just, and learned a representative; but I do feel a mortification this afternoon, in seeing the town of my birth and education represented in this Minority Report of the Committee. I am sorry that that Report has come from the gentleman for Wilbraham; I should have much preferred that it had originated in some other quarter, and I trust that this Convention will not fix upon the town of Wilbraham the disgrace of having originated an amendment to the Constitution of this character, to be acted upon by the people of the Commonwealth. Mr. HALLETT. The gentleman from Webster has done me great honor in his remarks, and I thank him for his compliments. I will show him, however, that I know his town as well or better than he does himself, and that it is, moreover, one of the most liberal towns in the Commonwealth. To convince him of this, I will call to his mind a single fact in its history. In 1741, it was undertaken to form a church in Wilbraham, and the reverend ecclesiastics came from Springfield for the purpose of founding it according to the ecclesiastical rules of the Westminster platform, or whatever platform they had at that day, which required seven persons to make a church, and they had not but six on whom they could rely for this purpose. What to do they did not know, until at last the expedient was hit upon, to go out in the streets and seize the first man whom they met. They accordingly did so, and found one David Warner walking along, and, without stopping to inquire what was his creed or belief, or whether he had any at all, [July 26th. they carried him off and made him join the church, to make up the odd number which was required. Now I propose to do the very same thing in regard to the people of this Commonwealth. I desire that they may go into our great State church, without being particularly questioned in reference to these nice points of faith. I would treat every man as David Warner was treated; and, if I stand well here in other respects, I am confident that that generous constituency who said, when they sent me here, in a letter which I hold in my possession, "that they gave me no other instructions, than to do that which my conscience directed me," will sustain me in whatever course I may pursue. At any rate, whether or not I stand well before my constituents, in advocating religious freedom, I know I stand well before my God. Mr. PLUNKETT, of Adams. I am not going to detain the Convention by any lengthy remarks, but I merely rose to express my disagreement and opposition to this amendment. I feel that it will not be safe, and my impressions are strengthened by reading the words of one whom every-body revered the words of George Washington. He says: "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked, where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principles." Comment on this is unnecessary; it cannot fail to have its effect upon the minds of those who are in doubt upon the subject, and it may possi bly lead those who have become fixed in their determination in favor of this amendment, to look at it in a different and more rational manner. Mr. ABBOTT, of Lowell. Without intending to detain the Convention, I desire to say a single word upon the point raised, as to whether the adoption of this resolution would prevent the courts from deciding, or the legislature from enacting, a law that an Atheist might testify in courts of justice. I do not care what my friend for Wilbraham may say upon the subject, but I do not believe for a moment that he will risk his legal reputation by saying that the adoption of such a provision will have the slightest effect upon that question. I think that the criticism of the gentleman from Boston, so far as this matter is concerned, is perfect. It is by no means a privilege, that men are allowed to testify. No man can go into court and say, "Here I am, gentlemen of the jury, I want to testify," but he is obliged to go there-it is his duty, and not a privilege. In regard to the matter under consideration, I believe there is nothing which would, in the slightest degree, interfere with the passage of this provision which has been reported by the Committee. Nor do I believe that it would affect the question, whether a man should be permitted to testify who did not believe in a Supreme Being; for how can it be said that because you do not allow a man to testify on account of his disbelief in a Supreme Being, you restrain him in his person, his liberty, or estate? Besides, the matter has been already passed upon by the supreme court of this State. I have made these remarks because I desire that no man may be prevented from voting for this resolution from any supposition that it will affect his religious belief. I am free to say, and will not attempt to disguise it, that if I believed for a moment that this would be the effect of it, whether it is progressive or not, whether it is a work of reform or not, I would cut my right hand off before I would vote for such a proposition. The question was then taken upon the adoption of the Report of the minority of the Committee, and upon a division—ayes, 121; noes, 168—it was decided in the negative. So the Report was rejected. Mr. HALLETT moved a reconsideration of the vote which had just been taken. Mr. LORD, of Salem. Before the question is taken on that motion, I wish that the gentleman for Wilbraham would answer my inquiry. The question being taken on the motion to reconsider, it was decided in the negative. The Committee of the Whole then proceeded to consider the Minority Report of the same Committee, on the subject of Law Martial. The report was read, as follows: COMMONWEALTH OF MASSACHUSETTS. In Convention, July 18, 1853. The undersigned, a minority of the same Committee, also report. [July 26th. To strike out from the 28th article of the Bill of Rights the words "but by the authority of the legislature." So it will read, if amended, No person can in any case be subjected to law martial, or to any penalties or pains by virtue of that law, except those employed in the army or navy, and except the militia in actual service. B. F. HALLett. L. MARCY. H. WILLIAMS. Mr. HALLETT. As this is a matter which is strictly legal in its character, I desire very briefly to explain the purpose of the Committee in making that Report. The Constitution of 1780 was adopted during the revolutionary war; our peace took place in 1783. At that time it was as a law of the camp, deemed necessary to have what is called the power of "martial law," or the "law martial," and it was accordingly inserted in the Bill of Rights rather as a limitation then, than as a power granted, that "no person can in any case be subjected to law martial, or to any penalties or pains by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the legislature." It will be recollected that at one period during the revolutionary war, Gen. Gage proclaimed martial law in the city of Boston, and the inhabitants were smarting under the recollection of the violence and wrong committed under this law, because, as Blackstone says, martial law is the absence of all law. It was, therefore, provided in the Constitution which was framed in 1780, for the purpose of securing a greater degree of protection to the people, that that law should not be put in force except by the consent of the legislature. Now, when the State of Massachusetts came into the Union, and the Constitution of the United States recognized the military power as belonging to the United States, Massachusetts conceded that the power of martial law in the Commonwealth became entirely incident to the camp. So that as the present Constitution stands, this clause is wholly unmeaning, and is with but little or no force, except that in certain cases it is giving to the legislature a great, an alarming, and a despotic military power, which, if they choose to exercise, might result in a reign of terror, and in the most disastrous and pernicious consequences. I do not apprehend that they ever will exercise it; it is quite certain they never have excrcised it; and even during that stormy and remarkable period known as Shay's Rebellion, when judges were turned out of their courts, Tuesday,] HALLETT. [July 26th. there was no resort to "martial law." But yet | send prisoners, thus summarily arrested, in a I am opposed; and it seems to me all who mean to restrain despotic power, should be opposed, upon principle, to allowing that power to remain ; and I hope we shall now take the necessary steps to remove it. If gentlemen have made up their minds in regard to this subject, I have nothing farther to say; but if they have not, and as they ought to vote upon this question understandingly, I wish they would give me their attention for a few moments, and see whether or not this change which is proposed, is proper to be made. Now, the first question which arises is, "what is martial law?" And here let me say that it is entirely different from "military law," and this is a fact which I wish military gentlemen to understand. It has no identity whatever with the courts martial held in the militia, or the navy and army. And the amendment which has been proposed by the minority of the Committee, leaves the matter so that no person can in any case be subjected to "martial law," except those employed in the army or navy, and except the militia in actual service. That is the only time when a martial law is required, and then it is the martial law of the camp-that law which General Jackson, in a great and overwhelming emergency, proclaimed at New Orleans; and yet, as the martial law of the camp, it left offenders in civil matters subject to all the penalties of civil law for any violation of civil rights. Now under the Massachusetts Constitution, as it stands at present, the legislature may pass what is called a territorial martial law, and may thus declare the whole territory of Massachusetts under such law; and this extends all over the State, and stops all civil remedies. To show what martial law is, I read from the seventh of Howard's United States Reports, (Luther vs. Borden,) where this subject is very deliberately considered by Judge Woodbury; and I am sure that no gentleman who will attentively read this opinion of that very learned judge, as it is here reported, will hesitate, for one moment, about striking out this authority given to the legislature to pass such a monstrous law, or rather a power to abolish all laws except those of a military despotism. He says: "How different in its essence and forms, as well as subjects, from the articles of war was the 'martial law' established here over the whole people of Rhode Island, may be seen by adverting to its character for a moment, as described in judicial as well as political history. It exposed the whole population not only to be seized without warrant or oath, and their houses broken open and rifled, and this where the municipal law and its officers and courts remained undisturbed and able to punish all offences, but to civil strife, to all the harsh pains and penalties of courts martial, or extraordinary commissions, and for all kinds of supposed offences. By it, every citizen, instead of reposing under the shield of known and fixed law, as to his liberty, property, and life, exists with a rope round his neck subject to be hung up by a military despot at the next lamp-post, under the sentence of some drum-head court martial. (See Simmons's Practice of Courts Martial, 40.) See such a trial in Hough on Courts Martial, 383, where the victim on the spot was blown away by a gun,' 'neither time, place, nor persons considered.' As an illustration how the passage of such a law may be abused, Queen Mary put it in force in 1558, by proclamation merely, and declared that whosoever had in his possession any heretical, treasonable, or seditious books, and did not presently burn them, without reading them or showing them to any other person, should be esteemed a rebel, and without any farther delay be executed by the martial law.' (Tyler on Military Law, p. 50, chap. 1, sec. 1.) "For convincing reasons like these, in every country which makes any claim to political or civil liberty, martial law as here attempted, and as once proclaimed in England, against her own people, has been expressly forbidden there, for near two centuries, as well as by the principles of every other free constitutional government.' (1 Hallam's Court Hist. 420.) And it would not be a little extraordinary, if the spirit of our institutions, both State and National, was not much stronger than in England against the unlimited exercise of martial law over a whole people, whether attempted by any chief magistrate, or even by a legislature." This is the definition of martial law, by Judge Woodbury, and it shows the dangerous power which the Constitution places in the hands of the legislature. I hope that the amendment of the Committee will be adopted, and that we shall strike out that power to declare martial law over the whole people and territory of this Commonwealth. The question was then taken on agreeing to the Report of the Committee, and it was decided in the affirmative. The next question to be considered in Committee of the Whole, was the following Report of the minority of the same Committee: COMMONWEALTH OF MASSACHUSETTS. In Convention, July 18, 1853. The undersigned, a minority of the same Committee, also Report. That there should be added to the fifteenth article of the Bill of Rights the following clause: In all trials for criminal offences, the jury, after having received the instruction of the court, Tuesday,] HILLARD BUTLER - SCHOULER-HALLETT - YEAS. The question being on the adoption of the above Report, Mr. HILLARD, of Boston, said that as this was a very important question, and one which would require to be discussed at length, he desired that it should be taken up at a time when the members were in a more refreshed condition than at present. The question of enlarging the powers and increasing the rights of juries was one of the greatest importance, and he would submit whether it would not be better for the Committee to rise and report progress, and take up something which would not require so much consideration. Mr. WILSON, of Natick. I move that the Committee rise, report progress, and ask leave to sit again. The question being taken on agreeing to the motion, it was, upon a division-ayes, 118; noes, 39-decided in the affirmative. The Committee accordingly rose, and by their chairman, Mr. Schouler, reported to THE CONVENTION, That they had had under consideration the several Minority Reports of the Committee on so much of the Constitution as relates to the Bill of Rights, and had rejected the first Report, adopted the second Report, and upon the third and last Report no action had been taken; and the Committee accordingly ask leave to sit again. Leave was granted. The question then being on concurring in the Report of the Committee of the Whole, it was decided in the affirmative. Mr. BUTLER, of Lowell. I move that the Committee of the Whole be discharged from the farther consideration of the third Report. Mr. SCHOULER. I hope that motion will prevail, as the matter can be considered in Convention just as well as in Committee. The motion was agreed to. Mr. HALLETT, for Wilbraham. I move a reconsideration of the vote by which the Convention concurred in the Report of the Committee of the Whole, that the first Report of the minority be rejected, and upon that question I ask the yeas and nays. [July 26th. Mr. LORD, of Salem. I would suggest to the gentleman representing Wilbraham, that it will be better to ask a division of the question now, and call for the yeas and nays upon the final passage. Mr. HALLETT. I merely desire to have some stage where the yeas and nays can be taken upon this question of religious freedom. I was not quite rapid enough to keep track of the movements of the Convention. The PRESIDENT. By permission of the Convention the Chair will state that the question is on concurring with the Report of the Committee of the Whole that the first resolution ought not to pass. Mr. HOLDER, of Lynn, asked for the yeas and nays. The yeas and nays were ordered. The question then being taken on concurring in the Report of the Committee, it was decided in the affirmative by the following vote-yeas, 133; nays, 107. Adams, Benjamin P. YEAS. DeWitt, Alexander Doane, James C. Durgin, John M. Eames, Philip Edwards, Elisha Edwards, Samuel Ely, Homer Eustis, William T. Foster, Aaron Foster, Abram Fowle, Samuel Griswold, Josiah W. Hurlbut, Moses C. |