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the charges against him, and an opportunity of being heard in his defence.

The PRESIDENT. The resolves are not the same. The gentleman will find certain officers mentioned in one resolution that are not mentioned in the other.

Mr. LORD. Certain officers are named in one of the resolves, and the other refers to former resolves, where the same officers are named.

The PRESIDENT. The Chair is of the opinion that they are not the same resolves, and that they are in order.

Mr. CHAPIN, of Worcester. The resolve to which the gentleman from Salem refers, contained in document No. 104, was committed, along with others, to the Select Committee, of which the gentleman from Boston, (Mr. Stevenson,) was chairman. That Committee struck it out in their Report. I submit, therefore, that the Convention has not taken any action upon it, which, by the rules of order, would prevent it from being introduced again.

Mr. LORD. If it is too late to raise the point of order, of course I have nothing to say. I however desire to say a word upon the amendment of the gentleman for Manchester, (Mr. Dana). If I understand the effect of that amendment, it is this: Whenever anybody sees fit to make a charge against an officer they do not like, and who is of different politics from the governor then in office, they thereupon present their charge to the governor, and the governor, thereupon, enters the charge upon record, suspends that officer, and appoints somebody else in his place. I want to know if that is not the meaning of this resolve? Has not the governor the power-as soon as one of these officers, elected by the people, comes into office, if anybody sees fit to object to him-to place that objection upon the record, and then suspend that officer just as long as he pleases?

A MEMBER. Only in cases of insanity. Mr. LORD. If it is only in cases of insanity I will go for it. Still, there is a class of unhealthy politicians who are considered insane, and that may be considered good reason, perhaps, for suspending them.

Now, I submit, Mr, President, that if the Convention understand this resolve, or this amendment, they will not pass them. It is not necessary to make an argument against them. It is only necessary for the Convention to understand their effect, to reject them. But, Sir, I will not take up the time of the Convention upon the subject.

Mr. DANA. I wish the Convention to understand this matter. The governor has always had the power to remove these officers for

[July 30th.

cause shown. We only make the same provision with regard to sheriffs, clerks of courts, &c., which has been made before. Indeed, we place restrictions upon the power of removal, which are not contained in the present Constitution.

Mr. LORD. My objection is not that there is a power of removal. The governor has heretofore had an unlimited power to remove the officers of his own appointment, and, I think it is perfectly proper that he should have that power; but now it is proposed to give him the power to remove officers appointed by the people. It is that to which I object.

Mr. DANA. Does the gentleman say the governor ought not to have the power to suspend these officers?

Mr. LORD. I think the governor ought not to have power to remove or suspend an officer the people have elected.

Mr. DANA. But suppose he is insane?
Mr. LORD. I would provide a remedy.
Mr. DANA. What is it?

Mr. LORD. I would not leave it to the governor to remove him.

Mr. DANA.

I do not think the objection holds good at all. The governor has always held that power. But this limits it. The governor and council are not to remove except for cause shown, and that cause must be noted upon the records of the council. Notice must be given to the party himself, and he has the right to be heard in his own defence. Now, I put it to the good sense of gentlemen, whether it is at all probable that the governor would remove, without good cause, an officer whom the people had chosen, on writThe ten charges, with published proceedings? people have the right to fill the vacancy every The appointee of the governor can hold only until the next general election. Now, Sir, while the governor must give notice to the officer himself, of the charges against him, and place the same upon record, I ask if he would dare to remove an officer the people have chosen, except for good cause? But if gentlemen are much afraid to trust the governor, I am perfectly willing the causes for which he shall be removed shall be specified in the resolve.

year.

I move, therefore, to strike out in the second line the words "cause shown," and to insert the or maladwords, "incapacity, misconduct, ministration in office," so that the clause will read :

Resolved, That the Governor, by and with the consent of the Council, may at any time, for incapacity, misconduct, or maladministration in office, remove from office, &c.

Mr. MORTON, of Taunton. The Committee

on the Judiciary gave some considerable attention to this subject, and they came to the result which is stated in this resolve. It may be open to objections-perhaps sound ones, certainly it is open to plausible ones. But, I think it must be obvious to every one, that some provision is necessary to provide for the removal of these officers. Here are a large number of officers chosen by the people. Some of them may become incompetent to perform their duties. There may be cause from insanity. There may be cause from absence from the Commonwealth. There may be cause from unfaithfulness and intentional violation of duty; and the public good seems to require that you should have somebody to act in this matter. It seems almost a matter of necessity that some of these officers should be on duty all the time. For instance, if the clerk of your courts, your sheriff, your register of deeds, or your register of probate, from any cause become unable to perform their duties, it seems almost indispensable that somebody should be authorized to displace him, and to appoint some one else to perform his duties. And, although I approve highly of the vigilance which seems to be shown in guarding the power you confer upon individuals, and especially in cases of removal, yet I do not believe that in cases of this kind there is any great danger of abuse. So long as the governor himself is elected by the people, and is required to place upon record the causes for which he removes an officer, I do not believe there is any great danger of his removing, without sufficient cause, officers who are chosen by the people.

I do not believe it is wise to define precisely the cause or the act for which an officer shall be removed. If we do, we shall be almost sure to omit certain causes for which they ought to be removed, and thereby exclude them. I think we ought to have the matter discretionary as much as possible. I do not know how we can limit or classify the causes for which an officer shall be removed, without involving ourselves in difficulty. The learned and astute gentleman for Manchester, (Mr. Dana,) is as competent as any one to make such a classification; and he has provided, among other things, incapacity, as a cause of removal. Now, we shall perhaps never have an election where one party will not charge the candidate of the other party with incapacity. They will charge that he is incompetent to perform his duty, and upon this ground the governor would have the power to turn him out of office. I repeat, I like vigilance in guarding the power which you confer upon individuals; but, it seems to me, if you undertake to limit the causes for which these officers may be turned out

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of office, you will not make the power any more safe from abuse, but, on the contrary, if there is danger, you make it more dangerous.

Mr. PARSONS, of Lawrence. There is a portion of the amendment to which I am entirely opposed, since we have made a portion of the officers elective, to whom this resolution is to apply. I have no great objection to the officers being elected; but since this Convention has thought proper, by a large majority, to make certain officers elective who have formerly been appointed by the governor, and have left that matter entirely to the people, I think it would ill become us to put in that amendment, especially that part of the amendment which says that when an officer becomes incompetent, and is not capacitated to discharge the duties for which he was elected, he may be suspended. I say, it will give an opportunity throughout this State, for various political parties to get up petitions in towns, counties, or districts, signed by hundreds, to be brought before the governor and create a disturbance, and interfere with the rights of the people. Now, what will that word "incapacity" mean. It means nothing more than this: that when it becomes necessary to send a petition to the governor, it will be argued by those persons who represent the petitioners, that that person is incapable; that he is incapable in a thousand different ways, not from being insane, or from malfeasance in office, but in an intellectual view, to perform the duties for which he was elected. I say the governor has nothing to do with it; and, to my mind, it is highly improper that such an amendment should be passed, for we have intrusted their election to the people, who are to judge whether a man is capable to perform the duties for which he is elected. Will not the people know the man for whom they vote? I want to know if they are not the best judges. Most assuredly they are the best judges. They have the sole right to judge, and as has been argued for weeks past, with regard to vested rights of the people, I will say, that so far as the vested rights of the people are concerned, I am not one of the sticklers for their rights in Massachusetts. I have no fear with regard to their rights. I have always, since I have been a voter, especially in the State of Massachusetts, thought that the people are capable of taking care of themselves, and of their own rights, and that they will do it. But, I say, we are not the judges whether a man is capable of performing the duties of an office to which the people have chosen to elect him. I hope we shall not make a farce of this matter, since we have said that it is not proper to give to the people the right to elect judicial

officers. This proviso, if adopted, will only make dissension which will array hostile parties against each other, by filing petitions on different sides, and they can bring an array against almost any

man.

I want to ask the reformers in this Convention if they intend to oppose our taking these officers from the farmers, when we come to elect them by the people, or from any other class of people from whom we may choose to take them. I say that petitions may be sent in with regard to district and county officers which may require weeks in order to decide whether the man who has been elected by the people is competent, intellectually or morally, for holding the office to which he has been elected. I hope the resolution will not pass. Mr. WALKER, of North Brookfield. I am sure that the resolution, as it has been amended, must commend itself to the good sense of the Convention. It is very evident to my mind that this power should be deposited somewhere; and in placing it in the hands of the governor, with these restrictions, there is no danger. I hope it will be sustained. It is very evident that nothing would be more unpopular or unwise, than for a governor to remove a man who had been elected by the people by a large majority. The very fact that he had been removed would insure his reelection. I cannot see the least danger to be apprehended in intrusting the governor with this duty.

Mr. KEYES, for Abington. It may appear a little immodest that I should imagine that I could do anything to extricate ourselves from this state of confusion; but if the gentleman for Manchester will listen to me, I will try. I will start in the first place, by saying, that I think that the amendment with regard to cause being shown, &c., is very proper, but that the latter part of the amendment is unnecessary. I am in favor of having a power of removal somewhere. But the reason for appointing some one in the place of the person removed, I think unnecessary. If the crime charged against an officer is of an extraordinary character, so that it unfits him at once for the discharge of the duties of his office, the governor and council can discharge him at once. Therefore there is no danger in having this stand as it does now, that a copy of the charges shall be furnished to the party, so as to give a reasonable opportunity for a defence.

Now if a man dies, and a vacancy occurs in that way, it is provided for in the fourth resolution. The time to be occupied in deciding a case need not be longer than in the case of filling a vacancy when a man dies, even if you give a copy of the charges and allow the accused to appear.

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And if the case is so extraordinary, and the person is so very guilty that he should not hold his office one hour, the governor and council can settle it in an hour; and therefore a vacancy will then occur. The officer being removed, there is a provision in the fourth resolution for filling that vacancy.

Now let us look at the character of these offices and see how important it is that in every minute of time there should be some one in office. Take the office of sheriff for example. Suppose he dies, or is taken insane suddenly; he has his deputies to perform his duties. I take it the deputy is simply a substitute for the sheriff.

Mr. BUTLER, of Lowell. I wish to suggest to the gentleman for Abington to consider that the moment the sheriff dies, the deputies all die with him. It is just as soon as that.

Mr. KEYES. That does not affect this case at all. If there is a charge of maladministration, he is alive then and his deputies are living with him, and the duties may be performed, as they are in many cases, by the deputies themselves. The idea which I wish to convey to the Convention is, that the time required to appoint a new officer is just the same as to try him, provided the case is so desperate that there would be danger to the community to have him remain. For instance, the council can be summoned, and he must appear immediately to show whether it is a desperate case or not, and if it is an extraordinary case he can be removed at once, and then as a vacancy will have occurred, that vacancy can be filled in the manner provided for in the fourth resolution.

So in the case of a register of deeds; he always has his assistants, and it is not necessary that his own hand should make the record of the hour when it comes to his office, in order to make it legal. Therefore the difficulty is no greater than if a man were dead. It seems to me, therefore, that all the power may be given to the governor and council that need to be given for the removal, with the provision which is now here, that a copy of the charges shall be sent to the officer and he may be allowed to appear before that council. Because he may hold on still, and the prosecution can go on; and in the mean time, it is not probable he would do any more mischief; and if the case was a desperate one he could be removed at once, and the vacancy filled according to the provision of the fourth resolution.

It seems to me, the third resolution may be left to stand precisely as it is, except with regard to the amendment proposed, that for cause shown, &c. Then you have all the safety you can desire. There should be some place of power somewhere,

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to remove an officer, and there is no place for it better than with the governor and council themselves. But they are elected annually, and they would not discharge a man elected by the people without sufficient cause. Now, to do away with that objection of putting the whole power into the hands of the governor to suspend him and appoint a new one, these charges against an officer can be preferred against him and a copy given, and the question settled as soon as the council can be called together. If it is such a doubtful case that the man is not so great a rascal, then the order may rest there for a while. It strikes me that this will avoid all difficulties, and that the first amendment of the gentleman for Manchester settles the whole thing.

The question was then taken on each clause of the amendment separately, and they were both adopted.

The question was then taken on the final passage of the resolves, as amended, and they were passed.

Question of Order.

Mr. DAVIS, of Plymouth. I wish to inquire whether it will be in order to offer a resolution

now.

The PRESIDENT. The gentleman can submit a resolution by leave of the Convention.

Mr. DAVIS. There was an order, in the early part of the session, offered by the gentleman from Natick, which was referred to the Committee on appointing the governor by the legislature. By some mishap, the Committee have not acted upon it, or if they have acted it has not been put into the Orders of the Day. I wish to offer a resolution as a substitute for the order sent the Committee by the gentleman from Natick.

Resolved, That the Constitution be so amended as to provide that no member of the Senate or the House of Representatives, who shall have taken his seat therein, shall, during the year for which he was elected, be appointed by the Governor to any office, commission, or trust, which shall have been created, or the emoluments of which shall have been increased by the Legislalature, during said year.

I ask leave to offer this resolution, because I suppose it will not create any debate, and so far as I can learn, it is unanimously the opinion of the members of the Committee that such a resolution should be inserted in the Constitution. We have a provision of this kind in the Constitution of the United States, and a similar provision has been adopted by the Convention with regard to the Council.

Mr. HALE, of Bridgewater. Before this resolution is received, I wish to state that that order

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to which the gentleman has referred, was considered by the Committee, and, I believe, it was almost the unanimous opinion of the Committee, that no action was necessary on the part of the Convention. I believe the gentleman from Plymouth was present at one meeting when it was considered expedient to have such a resolution; but at a subsequent meeting, when he was not present, it was decided inexpedient.

The PRESIDENT. If the Chair understands the gentleman from Plymouth correctly, this subject has been referred to a Select Committee of the Convention. It is not, therefore, in order. The proper order will be for the gentleman from Plymouth to make a motion that the Committee be instructed to report at a given time.

Mr. HUNTINGTON, of Northampton. It seems to me it is altogether too late to introduce a proposition of that character. It seems that the subject has been reterred to a Committee, and that there is a division of opinion in that Committee. Owing, therefore, to the lateness of the session, and the probability that the subject must create a debate, I move that the subject be laid on the table.

Mr. WHITNEY, of Boylston. I hope that motion will prevail. I want to leave a little something for the next Constitutional Convention to do. I hope that we shall not do everything at this time.

The question being then put on the motion to lay upon the table, it was agreed to.

Terms of Office.

Mr. MORTON, of Taunton. I wish to inquire whether the resolves from the Judiciary Committee have been finally passed. I have been obliged to be absent for a few moments.

The PRESIDENT. They have been passed. Mr. MORTON. Then, Mr. President, I feel it to be my duty to move a reconsideration of that vote, for a special purpose, which I will state; and if the purpose which I am about to state, will doubtless reconsider the vote by which the meets the approbation of the Convention, they resolves were passed, in order that I may introduce a certain amendment, which I will read before I ask action on the motion to reconsider. It is not for the purpose of rejecting anything that has been adopted, or modifying anything, but for the purpose of introducing an additional resolve, which the Committee on the Judiciary did not feel itself authorized to do, under the special commission under which they last acted. Gentlemen of the Convention will recollect, that we have provided for the election of a great number of officers, but we have not fixed the term of

those offices. We have fixed the tenure, but we have never fixed the term at which their duties shall commence. At present, some of them commence at one season of the year, and some at another. Now if they are elected in November, it seems to me that it would be better to have them commence at a uniform period to enter upon their duties. As it is now, the county commissioners enter upon the duties of their office at one period, the registers of deeds at another, and county treasurers at still another. The Committee have deemed it expedient to have the terms of all the offices commence at the same time. If this meets the approbation of the Convention, I hope they will reconsider the vote by which they passed the resolves, so that I may have an opportunity to offer an additional resolve, as an amendment, which I will now read :

Resolved, That the terms of all elective officers provided for in this Constitution, shall commence on the first Wednesday in January next after their election.

The PRESIDENT. If there be no objection, the Chair will consider the question on the final passage of the resolves as not having been put to the Convention. The Chair understands that no objection is made. The question will therefore now be on the final passage of the resolves.

Mr. MORTON. I now offer the amendment which I read to the Convention.

Mr. HALE, of Bridgewater. I want to inquire of the gentleman from Taunton how that would operate in the case of a vacancy filled by an election in the interim-whether in that case the term would have to commence on the first Wednesday in January following. Suppose the vacancy is filled in May, is the office to remain vacant until the next January before the term will commence ?

Mr. MORTON. The amendment was written in some haste; but that was not the intention, at any rate. If there is any oversight in the form of the resolution, the Revising Committee will put that right.

Mr. BUTLER, of Lowell. If I understand this matter, we have already passed a resolution that all these vacancies shall be filled at the annual election in November. If there is a vacancy occurring in the mean time, ad interim, the governor appoints some one; and of course the ad interim appointee would hold the office until the first Wednesday in the January succeeding, when the newly elected officer would assume the duties. There is no filling vacancies in May by elections, for all vacancies are to be filled at the annual election in November, in order to prevent the people from being called out too often.

Mr. STEVENSON, of Boston. I desire to make a suggestion, that it would be well to except representatives to the general court, for the reason that they may be chosen during the session of the legislature, upon precepts.

Mr. MORTON. This does not apply to vacancies. This resolve fixes the time when the terms of office shall commence. It says that the terms of all elective officers shall commence on the first Wednesday in January next after their election, and of course they hold their offices until the first Wednesday in the January following. If a vacancy occurs in the meantime, there is a provision made in another resolve how that temporary vacancy shall be supplied until the next election.

Mr. STEVENSON. I should like to have the resolve read again.

The resolve was accordingly read.

Mr. STEVENSON. The language of the resolve is, that the terms of all elective officers provided for in this Constitution, shall commence on the first Wednesday in January next after their election. Now, suppose a member of the general court is chosen by precept in April, 1854, the first Wednesday in the January next after his election will be the first Wednesday in January, 1855, and another election will then have intervened.

Mr. MORTON. My construction of the language there used, which I admit was not very carefully considered, was, that the regular term of office shall commence on the first Wednesday in January, and shall continue until the first Wednesday in the next January. If there is a vacancy, it does not affect the term of office; in that case, the term of office would be occupied by two individuals, or it may be, by three or four. In order to meet the difficulty suggested by the gentleman from Boston, I will modify the resolve, by adding after the word "Constitution," the words "except members of the legislature," so that it will then stand as follows:

Resolved, That the terms of all elective officers, provided for in this Constitution, except members of the legislature, shall commence on the first Wednesday in January next after their election.

Mr. MOREY, of Boston. I will inquire whether this applies to the election of governor and lieutenant-governor, and officers which are in some cases to be chosen by the legislature.

Mr. MORTON. It is already provided that their terms shall commence on the first Wednesday in January.

Mr. MOREY. Oftentimes it is the case that they are not chosen until sometime in the latter part of January.