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BIRD ·GILES ·

WILSON HOOPER.

relation between that institution and the Commonwealth, which exists between no other institution and the State. The very existence of this special relation under the Constitution, implies that the Commonwealth has a right to control it, and we do not mean, by striking out that clause, to admit that the relation between Harvard College and the Commonwealth, is the same as that between any other institution and the Commonwealth. I have no doubt, that when gentlemen see the bearing of this matter, it will be retained. In relation to the Report of the Committee, I❘ suppose it is not improper for me to say, that the chairman of the Committee that made this Report, (Mr. Briggs,) was, at the time that he made it-for, being on the Committee on Harvard College, he expressed that opinion to that Committee -in favor, as a matter of personal preference, of dissolving the connection between the Commonwealth and Harvard College. But, gentlemen will remember that he yesterday assented to the resolution adopted by the Convention in relation to Harvard College, thus abandoning the ground he had previously taken, that as a matter of policy, it was better to abandon all connection with the college. The striking out of this phrase, is a part of the policy of severing the connection. The chairman of the Committee may have been in favor of that policy, but we all understood him yesterday, to have changed his opinion upon that matter; and, therefore, we are at liberty now to assume that he would be opposed to striking out this clause. I trust the motion will not prevail.

Mr. GILES, of Boston. The gentleman from Walpole, who has just taken his seat, has alluded to a subject which I suppose he has correctly stated. The chairman of the Committee to which this subject was referred, was also a member of a Committee to which the first section was referred. I cannot speak for that Committee, nor do I know whether any member of that Committee is present; but my impression is, that this Report was made in the expectation that the Committee to which the other subject was referred, would strike out everything relating to Harvard College, and the Report of the Committee to which the first section was referred being adopted, this resolution was expected to fall, as a matter of course. I may be mistaken, but whether it be so or not, I think it is better to let this stand, without going to the mooted question, whether this be a public institution in the sense of the common law, thereby giving the State power over it. I think there is another reason for retaining it, which is this: that this beautiful section, which I so greatly admire, after making it the duty of the legislature to cherish

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"all seminaries of them," to wit, of science and literature, then specifies such seminaries as the State then had, and such as she always means to have, and always ought to have, to wit: a university, and "public schools, and grammar schools in the towns."

That system of common school education, beginning now, I believe, with the primary school for almost infants, in fact, as well as in law, and terminating in your university, is that which it was designed that the legislature should cherish. I wish it to stand, for that reason, that it may always be known that we have a university, and public schools and grammar schools in towns, as making up a part of the seminaries of learning which we are to cherish in all time to come, tracing back their origin to that short and pithy clause which has been the admiration of the whole world, and deservedly so. I am, therefore, in favor of retaining that section as it stands.

The question was then taken on the final passage of the resolve, and there were, on a division, ayes, 19; noes, 108.

So the resolution was rejected.

On motion by Mr. WILSON, of Natick, the Orders of the Day were laid on the table.

Incorporation of New Towns.

Mr. WILSON. I now move that the Committee of the Whole be discharged from the farther consideration of the resolution in relation to the incorporation of new towns.

The motion was agreed to.

Mr. WILSON. I now move that the rules of the Convention be suspended, in order that that resolution may be considered at the present time. The motion was agreed to, and the Convention proceeded to its consideration.

The resolution is as follows:

Resolved, That the Constitution be so amended, that hereafter no town shall be incorporated with less than fifteen hundred inhabitants.

Mr. HOOPER, of Fall River. I would inquire if we have not already passed upon that question, when we acted upon the resolves relating to the House of Representatives?

Mr. WILSON. I do not so understand it. It may be necessary that the legislature should incorporate a town with less than fifteen hundred inhabitants, although that town may not be entitled to a representation in the House of Representatives. It has been necessary, heretofore, and although we have provided that a new town with less than fifteen hundred inhabitants shall not be represented, yet, if a town wishes to be incorporated without the right of representation, and it

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is for their interest to be incorporated, I see no objection to it. I therefore move, that the farther consideration of the resolution be indefinitely postponed.

Mr. GARDNER, of Seekonk. I have only a single word to say, with regard to this question. I am very desirous that the resolution should pass, in some form, and, if it were admissable, I should like to move an amendment that no town should be incorporated hereafter, with less than one thousand inhabitants. If the provision stands as it is, with regard to representation, and no town can be incorporated with less than fifteen hundred inhabitants, it may deprive some towns of privileges which they ought to possess. I hope the motion of the gentleman from Natick will not prevail, and that there will be an opportunity offered to amend the resolution, and that it may then be passed. I think it will deprive certain towns in the Commonwealth of privileges which they ought to possess, and which I can conceive no reason why they should not enjoy. The gentleman from Natick lives in a very flourishing town, which is growing up and becoming wealthy; and, I suppose, he does not care so much for the interests of the smaller towns adjoining, which wish to be incorporated; at least, he is not solicitous that they should be incorporated, and have the right of representation on the floor of the House of Representatives. I know that when the basis of representation was fixed, it was provided that fifteen hundred inhabitants should be required, to entitle a new town to a representative, and I am opposed to that also. I wish, if the gentleman from Natick has no objection-and I can see no reason why he should have any-he would withdraw his motion, that this resolution may be modified.

Mr. BIGELOW, of Grafton. I do not see why, if this motion to postpone the resolution indefinitely prevails, we are not left in a position that we may incorporate a town with any number of inhabitants we please. Why do we need to put this provision in the Constitution? Why shall we say that any town with six hundred inhabitants, shall not be incorporated, if they please? It seems to me it is very proper to postpone this subject indefinitely.

Mr. HOOPER, of Fall River. I see that this resolution is somewhat different from the one in relation to the basis of representation, but it does not seem to me to embrace all that it ought to. That provides that no town shall be incorporated, with the right of representation, with less than fifteen hundred inhabitants; but there is no declaration that the town shall not be divided in a manner so as to leave less than fifteen hundred

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in the old town. So that I do not see, but that with this provision, a town might be divided so as to leave only one thousand, and create a new town with fifteen hundred, which would be evading the object of the provision on the basis of representation. I would suggest to the gentleman from Natick, that he withdraw his motion, and allow the resolution to be amended so as to read: that no town shall be incorporated when, by the division of a town, there are less than fifteen hundred inhabitants left in the town from which the new town shall be taken.

Mr. RANTOUL, of Beverly. It appears to me that this subject had best be left with the legislature. I think we should not impose any restrictions. Circumstances may occur, when it may be necessary to incorporate a town with a less number, and it may be exceedingly desirable to persons that the town shall be incorporated, and it may be for their convenience, and for the public interest, that it should be done. It seems to me there can be no necessity or advantage in imposing such a restriction upon the legislature that they cannot make such laws as are desirable from time to time.

Mr. FROTHINGHAM, of Charlestown. I agree with the gentleman from Beverly, who has just spoken. I hope the resolution will be postponed. It seems to me, it is entirely inexpedient and wrong in principle. If there has been any policy which has distinguished Massachusetts, and made us what we are, it has been the policy of incorporating towns. I should like to know if a community, living on contiguous territory, wishes to enjoy town privileges, and comes up to the legislature,—be it five hundred, or fifteen hundred inhabitants,-and asks the benefits of a town incorporation, what argument can be adduced to show that they should not enjoy those privileges. The question in relation to town representation, is another thing entirely, and ought not to be connected with it; that is, the principle of local self-government is one thing, and the principle of representation, is another, and the latter is always provided for. But, as to the question of the policy and the propriety of incorporating towns, there can be naturally but one answer given to it, and but one true view of it, and that is, to incorporate them whenever good and sufficient reasons can be shown for doing it.

The more towns we have, and the more power is subdivided in Massachusetts, or anywhere else, the sounder will be our republicanism. That is my view of this matter.

It has been the policy of Massachusetts, from the earliest times, to multiply towns; and it has been the object also, of those who have endea

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vored to restrict Massachusetts, to restrict the incorporation of towns. Long before the Revolution, there was an order sent over here from the British administration, prohibiting our governors from assenting to the incorporation of towns; and we took the ground here, that it was a natural right which the people had, to enjoy self-government, and so, when they could not get at the name of towns, they incorporated themselves under the name of precincts, parishes, or something else, in order to get as much of the value of this self-government as possible.

[July 16th.

valuable popular right. There was no such thing as this in New England. How came we by our town government? This is a short story of the matter: When our people came over here, they acted, at first, in town meeting, all together; they were so many little democracies. But they soon found that this mode of determining town affairs was too inconvenient; it took up too much time; and what did they do next? Their object was to remedy an evil, and to provide for a necessary want. I can point gentlemen to the original constitution of a board of selectmen. The inhabitants of the towns came together, before there was any law of the general court in regard to the matter-years before-and signed an instrument, to the effect that, inasmuch as the trouble of these frequent town meetings was so very great, they would agree to be bound by what seven of their number should do, as though it were done by them. Then followed the election of those officers, and other officers; and this was done in Charlestown, and it was done in other towns, before there was any law to regulate elections. Such was the origin of the towns, and of town government. The people brought with them the great idea of popular sovereignty, and all through it was a struggle to apply this to their condition. They applied it to a town or local form of government, assuming the right to do it, before there was any law or practice to authorize or to justify it. In a few years the general court reorganized the towns, and made laws to regulate their proceedings, and so it has gone on from that time to this, to the immense advantage of the country.

As long as I am up, I will take occasion to make a few remarks respecting one other point, in relation to the origin of our towns. I have heard it stated by the venerable gentleman before me, (Mr. Morton,)-and some others have said the same thing,—that our towns came from the custom of making forts, and perhaps out of some other institutions, such as the church. Indeed, this is a very common opinion. I am not going into a long speech about this matter, but merely to state a fact or two, or a view that has grown up out of facts in relation to this subject. Let any one go back and trace out how it was that Boston, and Lynn, and Salem, and all the earlier towns, came to be incorporated, came to be towns, not how they came by their territory, but more precisely how they came to have their form of town government. Did they obtain this right from the first charter? did they come by it from a law of the British Parliament? Did they copy the example of England, in relation to towns, and follow on in an old custom, as to electing town officers? No! not at all! They had no warrant for what they did, neither in the charter, the statute, nor usage. When Sir Edmund Andros came over here, and saw the beautiful operation of the towns, their democratic feature, their republicanism, their great popular privileges, he was jealous of the spread of Commonwealth notions, and saw that these towns were nurturing a principle anything but in harmony with the British Constitution. But there was no British law to justify this system,―noth-ilege of self-government. I have been here upon ing to justify a town, in the New England sense of the term, and when selectmen, in resisting his arbitrary laws, pleaded town action, he snapped his fingers at them, and told them there was no such thing as a town in all New England. And Sir Edmund Andros was right. He took his idea of towns from Old England; and there was no comparison at all, as to government, between the towns of New England and the towns of Old England. That is, the governments of the towns of Old England were close corporations, selfelected councils, little oligarchies, without a single

Now, I am in favor of allowing this great idea to be established, viz.: That the people have a right to be incorporated into new towns when the growth of the community and the increase of population and change of interests in certain localities leads individuals to apply for town privileges. I see nothing in the whole system but benefits to the communities concerned, from allowing them to divide, and granting to them the right and priv

this floor when large towns and old towns have been divided, when the progress of business and population have created in certain localities large interests,-commercial or manufacturing interests, it may be,-distinct from the ancient agricultural interests, where such new communities claimed the right to manage their own local concerns in their own way; or it has been the other way, that is the agricultural interest has claimed that it ought not to be taxed to support the commercial interest, as in the case of Somerville and Charlestown. Now, what argument can be

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LELAND HOOPER - GARDNER-BROWN - SARGENT.

brought against such claims? There is no argument; nor is there evil in creating towns for such reasons; and I am in favor of keeping this where it is that is, of leaving the whole matter with the legislature.

Mr. LELAND, of Holliston. I think this matter ought not to be indefinitely postponed at this time; for I think, with the gentleman from Fall River, that there is a necessity for amending this resolve. Suppose it should pass in its present form, and hereafter a town with twenty-five hundred inhabitants should wish to be divided so as to get additional representation. We do not know what may happen, and it is wise to provide for it. Well, Sir, fifteen hundred of the inhabitants can be set off and incorporated into a new town, and the thousand who are left will also be entitled to their town rights. I think this is something which we ought to provide for, and, therefore, I hope that the resolution will be amended accordingly.

Mr. HOOPER, of Fall River. I move to amend this resolve by striking out all after the word " 'incorporated," and inserting the words "by a division of a town, leaving less than fifteen hundred inhabitants in the town from which the new town shall be taken," so that the resolve, as amended, will read as follows:

Resolved, That the Constitution be so amended that hereafter no town shall be incorporated, by a division of a town, leaving less than fifteen hundred inhabitants in the town from which the new town shall be taken.

I fully agree with the remarks of the gentleman, and see no necessity for putting any barrier in the way of an unlimited incorporation of towns, that is not necessary to guard it in relation to representation; it has already been guarded in one respect, and it seems to me to be necessary that it should also be guarded in the other.

Mr. GARDNER, of Boston. Mr. President: It is the first time that I have made the motion which I now make, in this Convention, and it will probably be the last; but, Sir, I am not in favor of sitting here and doing business in the absence of a legal quorum of this body. I am of the opinion that there is not a quorum now present, and I therefore make the motion that the Convention do now adjourn.

Mr. SCHOULER. For the purpose of determining whether there is a quorum or not, I ask for a division.

The question being taken, on a division, there were-ayes, 38; noes, 59-no quorum voting.

Mr. WILSON, of Natick, moved that the Convention adjourn.

[July 18th.

The motion was agreed to; and accordingly, at twenty minutes before two o'clock, the Convention adjourned.

MONDAY, July 18, 1853.

The Convention assembled pursuant to adjournment, and was called to order by the President, at nine o'clock.

Prayer by the Chaplain.
The Journal of yesterday was read.

Limitation of Speeches.

Mr. BROWN, of Medway, submitted an order that hereafter all speeches, except those of the chairmen of Committees, be limited to fifteen minutes each.

The order was laid over for consideration to

morrow.

Orders of the Day.

On motion of Mr. WILSON, of Natick, the Convention proceeded to the consideration of the Orders of the Day, the first subject being the resolve on the subject of the

Incorporation of New Towns, Which is as follows:

Resolved, That the Constitution be so amended that hereafter, no town shall be incorporated with less than fifteen hundred inhabitants.

To this resolve an amendment had been moved by the gentleman from Fall River, (Mr. Hooper,) and Mr. Wilson, of Natick, had moved its indefinite postponement.

Mr. SARGENT, of Cambridge. I am opposed to the amendment, and in favor of the motion of the gentleman from Natick. I believe we are attempting to establish a false principle in the Constitution. I do not believe that the question of the incorporation of new towns can be settled upon mere numbers; it must be settled upon the circumstances which surround each particular case. There may be a case where it would be of the utmost importance that a new town should be incorporated, where there were not more than five or six hundred inhabitants; and in other cases it might neither be proper or just to incorporate a town, although there were more than fifteen hundred. I presume that the object of this amendment is to remedy an evil which it is feared may grow out of our basis of representation. If that be the case, to my mind it affords no argument in favor of adopting another wrong principle, because two wrongs can never make a

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right. The amendment is proposed for the purpose of preventing the legislature from so dividing a town that the original town shall be deprived of its annual representation. Now, Sir, this matter of dividing towns, or creating new towns, is a mere matter of profit and loss. The legislature have always required, and I believe, always will require, that the petitioners for a new town should make out a clear and undeniable case, that the benefits to be derived from the incorporation of that town were greater than the evils to be inflicted; and whenever such a case is made out, irrespective of numbers, then I hold that the power should be vested in the legislature to grant the prayer of the petitioners. Suppose that a petition comes before the legislature for a division of a town in this Commonwealth in such a manner that the original town will have less than one thousand inhabitants, and will thereby be deprived of a portion of its representation. That is an element, and it is one of great weight for the legislature to consider. It is one of the elements of law, and unless they can show that benefits are to be derived which will more than counterbalance the evils, the legislature will never so dissever a town. I hold, therefore, that the adoption of this resolution, either as it was originally reported, or as it is proposed to be amended, would be ingrafting a false principle in the Constitution; it would be fettering the legislature upon an important subject, and one which, it is altogether safer to leave in their hands, so that each case may be decided upon its real merits, instead of being decided upon mere numbers. I hope, therefore, that the amendment will be rejected, and that the motion of the gentleman from Natick will prevail.

Mr. EARLE, of Worcester. I am opposed to the amendment, which is offered, because, it appears to me, that it creates just as great an evil as it attempts to remedy. It proposes to strike out the provision by which no new town shall be incorporated with less than fifteen hundred inhabitants, and to provide that no old town shall be left, by the incorporation of a new one, with less than fifteen hundred inhabitants. It permits, in fact, that a new town may be incorporated with only five hundred inhabitants; but it says, that by so doing, you shall not leave an old town with less than fifteen hundred. Now, Sir, I am opposed to any provision of this kind. I think that these town corporations are intended for the benefit of the inhabitants. They have little to do with territorial arrangements, except so far as they tend to the convenience of the inhabitants for their municipal concerns; and wherever the convenience of the people requires a municipal corpora

[July 18th.

tion of this kind, although there may not be more than a thousand or twelve hundred, I see no reason why they should not have it. I am, therefore, opposed to having any provision inserted into the Constitution in relation to this matter. I think that the provision, which has already been agreed to, that no town shall be incorporated, with a right to representation, as such, which had less than fifteen hundred inhabitants, is all that we need to do, and all the restriction that we need to impose. If a population of a thousand, or twelve hundred, suppose they will be better accommodated by a town corporation, without the right to representation, except as connected with the town from which they are to be set off, and choose to take an act of incorporation under such circumstances, I see no reason why they should not have it. They would then be placed in the situation of corporations formerly made, where districts were established, having all the rights of towns except that of representation. I see no reason why that right should not be still given, and therefore I am opposed both to the amendment and to the original proposition, and I hope that neither of them will pass.

Mr. HOYT, of Deerfield. I must confess that the form of the proposition, as proposed to be amended, does not meet my view; but yet I do think that it is important that some provision should be inserted into the Constitution, to regulate the creation of new towns. As was remarked by the gentleman from Cambridge, (Mr. Sargent,) this subject is intimately connected with the system of representation which this Convention have adopted; but, if I understood him, he seemed to assume that that system was wrong, and that we could not make a provision to secure a thing which was wrong, that would not itself be wrong. But to those who consider that the system of representation is right, of course, his reasoning would not apply. I think that this is a matter which should not be left entirely to the control and direction of the legislature; but, that the towns themselves should have a voice in this matter; and I should like a provision that new towns should not be incorporated without the consent of a majority of the voters of the town from which the territory was to be created. As towns are incorporated for the convenience of the inhabitants, I regard those inhabitants as the best judges of the importance, or the necessity, or propriety, in every case, of making a new town, or of making a very material change in the limits of a town, especially if the system of representation which has been adopted by this Convention, should be ratified by the people.

Mr. EARLE. There is one objection, which

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