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FRENCH-BOUTWELL - LOTHROP - BRIGGS - KNOWLTON.

legislature at present possesses, then all the objection which I could possibly have to it would be that it is useless. The opinion that I entertain of it myself, after having examined it with all the care of which I am capable, leads me to just that result, that it is entirely inoperative; and, therefore, I can raise no other objection to it. But, if it is unnecessary and useless, that is, to my mind, a sufficient reason why we should not adopt it as an amendment to the Constitution. If I am mistaken in this, I desire to know how far I am mistaken; and for this purpose, I wished to ascertain the individual opinions of gentlemen in relation to the operation of this provision, so as to know, if it is to accomplish something, what it is expected will be accomplished by it, and then I could tell better whether I had any objection to it or not. If it is to accomplish anything, I desire to know what it is to accomplish-what power it is to give beyond that which is already given. Until I know that, of course I do not know whether I object to it or not. With the view which I have of it at present, I have no disposition to detain the Committee with any discussion, farther than to say that my vote will be given against it, because I deem it inoperative and useless.

Mr. FRENCH, of New Bedford. Mr. President: I regret, Sir, that any gentleman upon this floor, any member of this Convention, should undertake to hold up to ridicule the lady and gentleman who had the honor of appearing before the Committee on the Qualifications of Voters. Sir, they need no defender in me; for, if that lady and that gentleman were here, and had an opportunity of defending themselves, I run no risk in saying, that no member of this Convention would envy the position of the delegate from Danvers, (Mr. Braman,) who so irreverently attacked them. Sir, there are gentlemen whose position enables them to say what they please in many places, and no reply can be made. It is not so here. Let me say through you to that gentleman, that, although he may slander them and hold them up to ridicule, and attempt to excite the mirth of this body by saying "Mr. Lucy Stone," and "Miss Wendell Phillips "-he may do that, Sir, but he is powerless to reproach

them.

The question being then taken on the adoption of the resolution, on a division, there were-ayes, 125; noes, 31-so it was agreed to.

Mr. BOUTWELL moved, that the Committee rise and report to the Convention that the resolution under consideration ought to pass.

The motion was agreed to. The Present having resumed the chair of

THE CONVENTION,

[July 15th.

The chairman, Mr. Sumner, for Marshfield, reported accordingly.

The question was then stated on ordering the resolution to be read a second time.

Mr. LOTHROP, of Boston, moved to amend the resolution, by inserting after the words "Harvard College" the words," the Board of Trustees of Williams, and the Board of Trustees of Amherst College."

Mr. BRIGGS. As I said before, Sir, I was not present when this resolution was drawn, but my impression is, that its language conforms as nearly as possible to the language of the acts of incorporation of those colleges. The gentleman from Worcester can state how that is; but I understood that it was intended to place her upon the same ground as the other colleges, in this respect, reserving any rights of contract.

Mr. KNOWLTON, of Worcester. I will read the language of the charters of those colleges, and if gentlemen will turn to the resolution as printed in document No. 72, they will see that the language of the resolve is almost identical with that of these charters: "that the legislature of this Commonwealth may grant any farther powers to, or alter, limit, annul or restrain, any of the powers vested by this act in the said corporation, as shall be judged necessary to promote the best interests of the said college." The Convention will find that, by turning to the law passed in the year

1793.

Mr. LOTHROP. I see no objection to my amendment on that account, but a farther argument in favor of it, from the fact that the same language is used in the incorporation of those two institutions. If, as has been understood, and as has been stated here by learned legal authority, and by some of the members of the Committee, this resolution does not confer upon the legislature any power over Harvard College but what it now possesses, and if we are to have anything about one college in the Constitution, I would have all colleges put upon precisely the same platform. I would have the recognition of one as distinct as that of the other, and the same power that is now expressed in the acts of incorporation reiterated again in the Constitution, if it is necessary to reiterate it in relation to Harvard College. If the legislature have all the power now which is given to them by this resolve, in relation to the president and fellows of Harvard College, it is unnecessary to make the statement at all; if they have not all this power, then I would, in the recognition of that institution in the Constitution, recognize all the others, and place them all upon the same platform. No evil is done, certainly,

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HOPKINSON-BOUTWELL GILES.

by the introduction of two other colleges; and we announce the great constitutional fact that all the colleges stand upon the same platform and bear the same relation to the State.

The PRESIDENT. The Chair will state that the amendment moved by the gentleman from Boston, refers to a subject different from that under consideration; and therefore, by the rules of the Convention, it is not in order. The subject under consideration, is in relation to Harvard College; and the proposed amendment relates to other colleges.

Mr. LOTHROP. I submit to the ruling of the Chair.

Mr. HOPKINSON, of Boston. I propose to amend the resolve by striking out the words "advancement of learning," and inserting in lieu thereof, the words "best interests of the college," so that it would read as follows:

The legislature shall forever have full power and authority, as may be judged needful for the best interests of the college, to grant any farther powers to, or alter, limit, annul, or restrain, any of the powers now vested in the president and fellows of Harvard College: provided, the obligation of contracts shall not be impaired; and shall have the like power and authority over all corporate franchises hereafter granted for the purposes of education in this Commonwealth.

The object of this amendment will be appa

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It is to carry out precisely the intention expressed by gentlemen here upon this floor, who tell us that the resolve under consideration is to put Harvard College upon the same footing with the other colleges; and I find that in regard to Amherst College, the language is precisely that which I have incorporated into the amendment. The extract from the law which has been read by the gentleman from Worcester, says, such powers as shall be judged necessary to promote the best interests of the said college." I have used the words "the college," omitting the word "said.” I do not propose to make an argument upon this point, but I do propose to say, that if the intention is to put them all upon the same footing, and if the only reason why such an amendment as was proposed by my colleague who sits opposite, (Mr. Lothrop,) should not be adopted, is, that it is unnecessary, inasmuch as the language used was intended to be the same as the language of the other charters, then it is well enough to conform to that language. Now, Sir, it may be asked, perhaps, whether there is any substantial difference; but it has been thought a sufficient answer to that question, to say that there may be a differFor that reason, it was deemed proper to adopt a provision in the Constitution which it

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[July 15th.

seems is generally understood to leave the college precisely where it is, but which some gentlemen think may make some change, but what change they are now unprepared to state. I do conceive that there may be difference, and that difference consists in this: the legislature, in order to carry out the Constitution practically, must act in reasonable conformity to the design of the power which is granted in the Constitution; and there might be legislation very diverse from "the interests of the college" covered up by some general idea of promoting the "advancement of learning" in a general sense; legislation which would not be for the interests of the college, and so palpably so that the court would feel bound to set it aside. It appears to me, that if the intention is to put all the colleges upon the same platform, it is expedient and proper to adopt this amendment.

Mr. BOUTWELL. I suppose the proper interests of a college are to promote learning, so that we propose to come to the result directly, by saying, that the legislature shall have power to make all such rules as may be necessary to promote the interests of learning. It might happen,-I do not think it would happen, but it might happen, that in the judgment of some people, the interests of a particular college would be somewhat different from the interests of learning; and for that reason, I do not want to leave that question open. All that we want of a college, is to promote the interests of learning, and, for that reason, we desire to say in our Constitution just what we mean; so that if, in the judgment of anybody, the interests of a college should happen to differ from the interests of learning, they could not have an opportunity to put that construction upon the provision.

Mr. GILES. I think that my colleague who presented this amendment, upon a full examination of the subject, and reflection, would deem it unnecessary. He would be satisfied that the same object is already attained; for, as I understand it, the very amendments which he now proposes to put in, were left out because they were already in the Constitution, in relation to Harvard College. In the proviso of the present Constitution, which was referred to your Committee, you have provided that "nothing herein shall be construed to prevent the legislature of this Commonwealth from making such alterations in the government of the said university as shall be conducive to its advantage and the interest of the republic of letters." That stands now, and is to stand.

The Constitution makes it the special duty of the legislature to cherish that university, and in

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GILESHOPKINSON-FRENCH- CRESSY KNOWLTON.

deed to cherish all our institutions of learning of every kind. In looking through the previous charters of Harvard College, my friend will find the expression, "for the advancement of learning," a good Baconian phrase, "invented," if you choose, by Bacon, and immortalized by the work bearing that name, or upon that subject, which has made his fame as high, as solid, and as immovable as Mont Blanc, or Mount Atlas, or any other mountain whose summit glistens in the sunlight shed upon its everlasting snows. It is a good phrase, and I would not strike it out. It directs the legislature directly, and at once, to the point mentioned by my friend for Berlin, (Mr. Boutwell,) that is, "for the advancement of learning." We do not wish to cherish Harvard College, or any other institution of the kind, for any other purpose. That is the polar star of its destiny. I believe, therefore, that the acts of future legislatures, as referring to this institution, will not only have to be "for the advancement of learning," but for the benefit of that university, as far as that university exists for the benefit of learning; and I understand that to be its objectmeaning by "learning," of course, the broad, catholic sense which was given to it by our forefathers, which included divinity first, then law, and the classics, and mathematics, and Hebrew, and all good learning, which is summed up in the fifth chapter of the Constitution, in language which is not exceeded by any sentence that ever was constructed in the English tongue. That paragraph alone has brought more honor to Massachusetts, where it has been seen and understood, than all the blue books that any legislature, or succession of legislatures, have made in ten years,—not to disparage the legislature, but to exalt it. It is a monument of the wisdom, and of the purity of language, and of the eloquence of expression, used by our forefathers. I hope, therefore, that my friend from Boston will not move to strike out this expression. I really think that the resolution, as it is, embraces the whole object, and is sufficiently definite to guide the whole action of the legislature. If there were time, and the occasion required it, and I felt a disposition to use my half hour, I should like to say something upon it; but, I see that the resolution is likely to be adopted as it is; and as that is my desire, I will not farther detain the Convention.

Mr. HOPKINSON, of Boston. It was not my intention, when I offered this amendment, to substitute a better phraseology than that which I have moved to strike out, because I am equally as partial to it as the gentleman who has just sat down. My design was, to call the attention of gentlemen to the fact, which seems to be disputed,

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[July 16th.

that there was a distinction now being made between the colleges, in a resolution professedly drawn up in order that they might all be treated alike, and all placed upon the same footing. It was not, therefore, for the purpose of delaying, or defeating any action upon this subject, but for he purpose of pointing out distinctly, what appears to me, to have the air of an intention to make distinction, and single out this college for dissection, leaving the others untouched. Had I proposed to strike out the word "hereafter," in the last line but one, it might, perhaps, have effected the same purpose. If it is expedient to make any provision applicable to one college, it is expedient in reference to all.

I do not care to insist particularly upon this amendment, because I do not think that it will make very much difference. My purpose is gained, if I point out the distinction between the language proposed, as applicable to this and the other colleges.

Having made this explanation, I withdraw the amendment.

Mr. FRENCH, of New Bedford, moved a suspension of the rules, in order that the question might be taken on the final passage of the resolution, without passing the question over to another day.

Mr. BREED, of Lynn. I hope the gentleman from New Bedford will withdraw that motion for the present.

Mr. FRENCH. I will not press it, if there be objection.

Mr. BREED. I move that the Convention adjourn.

The motion was agreed to, and the Convention, at half past six o'clock, adjourned.

SATURDAY, July 16, 1853.

The Convention met, pursuant to adjournment, at nine o'clock.

Prayer by the Chaplain.

The Journal of yesterday was read and approved.

Hour of Meeting on Monday next.

Mr. CRESSY, of Hamilton, moved, that when the Convention adjourn, it adjourn to meet at ten o'clock on Monday next.

The motion was agreed to.

Final Adjournment of the Convention.

Mr. KNOWLTON, of Worcester, presented the following order, which was adopted :—

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WILSON WHITNEY DE WITT - HALLETT.

Ordered, That be a Committee to consider and report at what time the session of the Convention may be brought to a close.

The following gentlemen were appointed as a Committee for this purpose: Messrs. Knowlton, of Worcester; Schouler and Giles, of Boston; Cushman, of Bernardston; Wilson, of Natick; Burlingame, for Northborough; and Eames, of Washington.

Adjournment this Day.

Mr. WILSON, of Natick, moved that the order to adjourn at one o'clock, be modified for this day, so that the time of adjournment be extended to two o'clock.

The motion was agreed to.

Orders of the Day.

On motion by Mr. WHITNEY, of Conway, the Convention proceeded to the consideration of the Orders of the Day, the first order being the resolve on the subject of

General Laws for Corporations. It was read, as follows:

Resolved, That it is expedient to incorporate into the Constitution, a provision that corporations may be formed under general laws, in all cases where the object of such corporation is attainable under the same; and where provision is thus made by general laws, no corporation shall be formed by special act.

The pending question being on the following substitute, offered by Mr. Davis, of Worcester :

Resolved, That it is expedient to incorporate into the Constitution, a provision that corporations shall not be created by special act, when the object of the incorporation shall be attainable under general laws.

Mr. DE WITT, of Oxford. I would inquire of the Chair, if an amendment to this substitute will be in order.

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[July 16th.

a provision, that corporations shall not be created by special act, when the object can be attained by general laws. That, I regard, as a fundamental principle worthy of being incorporated into the Constitution; but if you incorporate into the Constitution a provision that certain trades or occupations shall not have charters, leaving it to be inferred by implication, that all others may, then I think you are making your Constitution a mere specific act of legislation. I think, therefore, that this amendment involves a specification which ought not to be adopted, as a general principle, because it makes a discrimination. It virtually says to the legislature, "you may take care of the interests of certain classes, in this respect, but in regard to the interests of other classes, you shall not interfere." I go for a general principle, to be applied in all caseseither that you should leave to the legislature a discretionary authority, untrammelled by a limitation of this kind, or else leave the matter in the precise manner in which it now stands, permitting every individual to come and get a charter of incorporation, by purchasing a ticket in this lottery of special legislation; because that it is a lottery, every one knows who has been engaged in it, either on his own account, or for the benefit of others. The provision, submitted as a substitute for the resolution first reported, brings the principle directly to our consideration. It seems to me to be one of the best expressed provisions for a fundamental law, that I have yet seen introduced in this Convention.

Now, Mr. President, we have simply to choose between special legislation upon incorporations, in all cases, or general legislation in cases where general legislation will meet the case. The proposition to which I allude, is the one which is offered as a substitute, and which I perceive was offered by the gentleman from Worcester, (Mr. Davis).

Resolved, That it is expedient to incorporate into the Constitution, a provision that corporations shall not be created by special act, when the object of the incorporation shall be attainable under general laws.

That is a provision which I desire to see incor

Mr. HALLETT, for Wilbraham. The amend-porated into the Constitution, and it is the most ment proposed by the gentleman from Oxford, (Mr. De Witt,) is designed to embrace manufacturing, mechanical, and banking corporations, and thereby, by that limitation, to admit all other incorporations. I am opposed to that amendment. The proposition, as it is reported by the Committee, contains the general principle, that it is expedient to incorporate into the Constitution

unexceptionable provision, which, in my judgment, it is possible for words to place there. It expresses exactly what we mean, and that is, if I understand it, that all subject matters of incorporation which can be embraced by provisions of general legislation, shall be provided for, by general laws, which the legislature will be bound to enact, by this injunction in the Constitution.

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This will take care of all general business concerns, and, on the other hand, whenever a great question arises, which the legislature, in their judgment—subject to the revision of the judiciary if they violate this provision-shall determine is not within the powers of the general law, shall require some special guards or privileges, then the legislature is at liberty to act, by a law to meet the case.

Now, I ask, if there can be any citizen of this Commonwealth, who has no other good in view except that of the Commonwealth, who will stand upon any other principle than that of equality, as here set forth in all business concerns? Can he desire anything more than this? because, if he believes in the propriety of embodying fundamental principles in the Constitution, he has no right to ask for special privileges which are not conferred by general laws; and, in this matter of special incorporations, it is neither more nor less than a special privilege or advantage, conferred upon the few to whom it is given, to the exclusion of all the rest; and to obtain it, outside of a general law, a great public good must be made to appear, which the general law

cannot secure.

Mr. President: I am not going into the general question of incorporations. It is one on which I have said and written a great deal, in the course of my life; but I am not considering it now as a question between parties. It comes up here as a fundamental principle; and therefore, I say, in regard to this matter of special incorporations and privileges to enable one man or class of men to carry on any particular occupation or business without giving to all others the same rights, that it is special legislation; and, therefore, when you come to that point, you must do one of two things: either leave it to the will of the legislature to determine in each case that certain persons or classes are, or are not, entitled to these special privileges, and thereby violate the Bill of Rights, or else you must so open this privilege of incorporation, that any and every man may avail himself of it under general laws, giving to the public a proper security, and conforming to proper restrictions.

In regard to this matter of special business incorporations, many persons have held, and still hold, the doctrine that they ought never to have been granted, except under general laws. But if the people, for a long series of years, have failed to check special legislation hitherto, and it has run on to such an extent that benefits and favors have been conferred upon a minority of the community, to the exclusion of a large majority, then the only way is to go on and extend it as far as

[July 16th.

you can; and for that reason, in regard to this matter, I would at once either establish a constitutional rule that every man, or every class of men, petitioning for any trading charter of incorporation, should have it, as a matter of course; or else I would establish a general rule under which every class of men might incorporate themselves, conforming to the laws in such case provided; and there is not a single special provision which is requisite for a company or association, without exclusive favors, to carry on any trade, occupation, or business, that cannot be incorporated into a general law.

But, it will be asked, "Have we not a general law now in regard to corporations?" True, we have; and what is it? How does it operate? Why, Sir, you will not allow anybody to have a charter of incorporation for anything, unless he petitions the legislature, issues the required order of notice, goes before the committee, employs his counsel, has an agitation about it whenever he is coming in contact with his neighbors; and, finally, either obtains his charter of incorporation, and gets an advantage he is not entitled to have, or loses his time and money if he does not obtain it. Now, what sort of a tribunal is the legislature, to decide upon such matters in individual cases? Why should that body be called upon to determine between the interests of two competitors in trade in some city or village; one party, perhaps, starting the business upon his own real capital, and another upon capital borrowed from his neighbor, or a bank which he has got chartered, each contesting which shall have the advantage over the other? To interfere in such a case, is "special legislation," and that is the very special legislation which is applied to these business corporations, manufacturing, trading, mechanical, and banking, and others of a like nature, the result of which is, that the legislature in this Commonwealth has become a complete nuisance. Yes, Sir; your legislature has become a public nuisance. I speak, of course, not of the individuals composing that body; for them, individually, I have the highest respect; and I would say that it is impossible that in the Commonwealth of Massachusetts you can gather together, as the representatives of the towns and cities, four hundred men of whom the majority will not be both honorable and intelligent; but when they get here, they are operated upon by influences of which they are not aware in judging of what is proper and what is improper, fair or unfair, in these matters; and it would be expecting too much of human nature, to suppose that they will not, on some occasions, make mistakes, and do great injustice to petitioners, and great wrong to the public.

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