seemed to argue against the Report of the Committee for the reason that it was necessary to have a Council unless the whole system of executive pardon was to be abrogated. Now, Sir, I do not understand that the Report of the Committee contemplates abolishing the pardoning power; no member of the Committee will advocate that; no member of the Convention will advocate that. But there was a consideration which operated strongly upon my mind, and induced me to agree to the Report of the Committee; and it was, that this pardoning power was abused-I do not exactly mean that, I will take that back; but that there have been facilities granted and inducements held out to make men apply for pardons, and thus to let loose upon the community those who have violated the laws of the land, perhaps felons, who, after having been judicially tried under the Constitution and the laws of the Commonwealth, and found guilty by a jury of their peers and sentenced to the State Prison for life, or for a term of years, send their petitions and their advocates into the Council-chamber. They understand that in one branch of the capitol there is a committee always ready to receive their petitions, and notwithstanding the declaration of the gentleman for Berlin, I say that they are ready to review the judicial decisions of our courts. I say, Sir, that this is a wrong mode of proceeding. I confess that I never was there, but I derive my information from the statements of gentlemen upon this floor, and from the Report of the Committee-gentlemen who have been for some years members of the Council, and who are therefore competent to inform us how they conduct business there. I assert, Sir, that such a course of proceeding as this is subversive of the fundamental principles of justice, here or anywhere else. What do they do? Interested parties, oftentimes the friends and relatives of the person confined in State Prison, come up here, and without even the solemnity of an oath are permitted to tell their story in their own way to the committee at an ex parte hearing.

The gentleman from Concord, (Mr. Gourgas,) made a reply to the remarks of some gentlemen, that no notice was given to the other side-that the prosecuting officers of the Commonwealth had no notice, the attorney-general or the district-attorney, as the case might be; and he told us that he himself had consulted with the district-attorney, in some cases; and the gentleman from Boston, (Mr. Hopkinson,) stated that the attorney-general had been called in by the committee, in one instance, and that the committee had refused to proceed until he should be present. But, Sir, these were unquestionably exceptions to the general rule. These hearings are ex parte hearings. There is no law in the Commonwealth requiring the district-attorney of the several districts of the Commonwealth, or the attorney-general, to be notified to be present at these meetings of the committee; and in a vast majority of instances, I have no doubt, judging from the information I have received from these gentlemen and from other sources, that the fact has been, that the committee have conducted these examinations in an ex parte manner. I submit, as I said before, that this is subversive of the very foundation of our judiciary system. I understood the chairman of the Committee to state, that the Committee on Pardons had adopted a rule, that they would not entertain a petition

for commutation of sentence, or for pardon, until the lapse of one-half of the term of sentence; but, the gentleman from Concord, says that no such rule has been in force recently, in the meetings of the Council. Now, if that be so, it is so much the worse. Then it is true, that at any time after sentence, a convict may come up here, by his petitions or counsel, and endeavor to obtain a reversal of his sentence. He may apply to the committee, at any time, and in any manner he chooses-of course, with the permission of the committee; but the statements he sends here are not under oath. They state their case in their own way, and it is decided upon ex parte testimony, which is not met or replied to by the government, and in many cases, when doubted, these statements operate upon the minds of members of a committee of that kind in a very different manner from that in which they would operate upon judicial minds. I do not mean to reflect at all upon gentlemen holding seats at the Council-board; or whoever have held seats there. I suppose it is perfectly well understood, that gentlemen have not been selected to fill that office with any reference to their judicial ability or discrimination. That is not understood to be the object for which they are selected.

Now, Sir, I maintain that it is wrong in prinple, from beginning to end, to allow these persons to come in and present their claims without the restraints which are imposed on parties in courts of law, to be allowed to review the proceedings upon which they were sentenced in some instances to the State Prison or to the gallows. I say that system is wrong, and I object to its continuation; but on the other hand I am in favor of the project reported by the Committee, because I wish to do away with the ease and facility with which these hearings may be had, and with which they are carried forward in many cases to a successful termination. Why, Sir, how does it operate? Individuals come in there, very respectable gentlemen, doubtless, but unacquainted with these matters, and who perhaps never even sat as magistrates in their lives, and take seats at the Council-board; and when the wife of a prisoner comes in, with tears in her eyes, bringing her little children with her, it might almost draw tears from a millstone to hear the story of her troubles and her imaginary wrongs. Now what are the facts of the case? Her husband has been convicted of violating the laws of the land by a jury of his peers. No man undertakes to say that their verdict was not correct; no man pretends that the judgment was wrong which was founded upon that verdict, or that the sentence was unjust. But they come in before the Committee, and present their case, saying that the husband or father, as the case may be, has reformed; he has been in the State Prison for a few years, and now he is a reformed man, and they ask, as none perhaps but woman could ask, to have his pardon granted, and to have him restored to their arms. Sir, I have no doubt that scenes are enacted in that ante-chamber which would draw tears from the autocrat of the Russias. I do not mean scenes exactly, but arguments and appeals are made there which would melt the hardest heart. Why, Mr. Chairman, when the gentleman for Abington in his remarks this morning, alluded to circumstances which have formerly transpired in that Councilchamber, under your observation, I thought that

I detected on your countenance some visible tokens of emotion, and I did not wonder at it at all. It is one of the redeeming qualities of human nature to manifest sympathy for those who are in distress, and I honor any man for it. I pray God that I may never be placed in a situation where my sympathies will be exposed to that ordeal. I do not wish to be placed in a situation where I should be subjected to those appeals-on the one side standing the wife and mother and the worse than fatherless children, and on the other side standing simply my sworn duty to the Commonwealth, which I should then represent. I think there is not much danger that I shall ever be placed in that condition. I hope I never shall. But there is one thing which I commend to the consideration of gentlemen who may be placed in that condition. When they sit there, holding the power to pardon, or the power of recommendation to pardon in their hands, and see before them these individuals-and every-body pities them who has a spark of humanity within his breast-when they see the tears of the halfdistracted wife and children, and hears them imploring them in God's name to give them the benefit of the power which they hold in their hands, I would have them pause. I would have them look at the welfare of the community, which is not represented there except in the person of its executive. The Commonwealth is not there; the community which has been outraged is not there; the judge and the attorney-general are not there to speak for this outraged community. Let them pause and remember that there. are two sides to this story.

While the gentleman for Abington this morning was painting those beautiful figures which presented themselves so vividly to the mind's eye, I thought that there was one group which he failed to depict. He showed in glowing colors the beauty of executive clemency, and we could look into the Council-chamber and see the committee surrounded by the weeping relatives of the unfortunate criminal; we could see the tears and hear the sobs which were excited by compassion for their distress throughout the length and breadth of that crowded room; but there is one group which you did not see-there is one group which the gentleman did not depict upon his canvas. There you might see a little group, far away in the country, in a lone church-yard. There is a woman clad in the habiliments of mourning, kneeling beside an humble mound; and near her are the tender pledges of her lovelittle curly-headed boys and girls, kneeling at their father's grave. That father's mangled form has been laid beneath the sod-and by whom were those wounds inflicted? By the hands of the very man whose friends are now collected in the Council-chamber asking for the executive clemency. That wife, and those children, in the bleak, autumnal evening, go out there to lift up their petitions to the Father of the fatherless and the God of the widow; and the mother prays that her life may be spared, and that He may prosper the labor of her hands and enable her to support and to train up, in the paths of virtue and knowledge, those children who have been deprived of a father's care and a father's counsels by the hands of the very man whom you are desirous of having released from prison and let loose upon community. Recollect all this, I say; and let the gentleman for Abington recollect this, and

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I think he never would advocate such a system as he has advocated. And I ask every man who has been led away and captivated by his eloquence, to consider that there are two sides to these stories. Let the cold dead in the grave be remembered as well as the living victims. I will refer to the case recently tried, as you know, in the county of Middlesex, where a man was sent to State Prison for a most diabolical murder. Why, Sir, in the course of a few years some very benevolent and philanthropic individuals-from the very best motives, perhaps-will endeavor to get his punishment commuted, in case there should be a disposition upon the part of the executive to enforce the extreme penalty of the law; an effort will, doubtless, be made to have that case reviewed after a while, and have the man set at liberty. But when that time comes, let gentlemen bear in mind there are the dead who have fallen by the hands of this man-let them revert to that fact in deciding this matter. I hope, Sir, that in all our deliberations on this subject we shall not be led away by such appeals as have been made to us to-day by the gentleman for Abington. solemnly believe, Sir, that the interests of humanity would be better subserved if we were to restrict the pardoning power, and have it confided to the executive alone. The executive is the only one who should exercise such power, and I hope it will not be left to a committee, whose doors are always open, to review the proceedings of your courts of law.

I

One gentleman tells us that the time of the executive would be all taken up in the examination of these cases. He says that the executive of the State of New York, had on his hands a short time ago, so many applications for pardon, that if he should undertake to read all the documents connected with them which had been placed in his possession, it would occupy his whole time for two years; yet, I have never heard that the people of New York, ask to have a Council established there in order that they may make all the investigations in relation to these matters. I submit, Mr. Chairman, that it is one of the rarest things in the world for one of those cases which properly call for the exercise of the executive pardon, to require an elaborate examination. These are cases which are in most instances apparent upon the very face of the thing. Some fact may have come to the knowledge, or occurred within the knowledge of the prosecuting officer, which shows that the whole theory upon which the government proceeded is wrong; or something has happened which may make it apparent to the executive in five minutes, that the decision of the court was wrong. It is not necessary that he should go over all the records and spend whole days in investigation; for such cases do not require elaborate investigation. We have certain laws, and I undertake to say that those laws should be enforced. A man is not to be pardoned out of State Prison and sent abroad into the community, merely because a moral effect has been produced upon him, and humanity has not all been pressed out of him. I agree with the gentleman for Berlin, that we have many persons now confined in our prison at Charlestown, who are better than many other people who still go at large in the community; but, what is the reason of it? It is because there is not quite so much evidence against those who go at large as there is against those who are shut up. There

fore, I say, that unless there is a clear case made out-not by mere argumentation and the introduction of doubtful testimony, or rather, perhaps, no testimony at all-unless there is a case made out by evidence clear and conclusive upon the face of it, then the pardoning power should not be exercised. I admit, Sir, that that was the object which I had in view, in concurring in the Report of the Committee. I thought it would remove some of the facilities which now exist, and prevent persons who have been convicted from coming here day after day, and year after year, and operating upon your Board by the use of any kind of testimony or any sort of statements, they might think fit to make, losing nothing except their time, and thinking that some time or other some good would grow out of it.

But if this Convention shall be of opinion that the Council must be retained for purposes of state, other than for the purpose of exercising the pardoning power, then I shall be in favor of the amendment which has been proposed by the gentleman representing Berlin, (Mr. Boutwell, ) which provides for the election of councillors by districts. But unless gentlemen can show that there are stronger reasons for continuing the existence of the Council, than I have yet heard, I shall be under the necessity of voting against it; and I hope, unless such reasons are given, that the Report of the Committee will be sustained.

Mr. FROTHINGHAM, of Charlestown. I have but few words to say in relation to this subject, and would not have presumed to say those few words, were it not that there is great force in the remark made this morning by the gentleman for Abington, (Mr. Keyes,) to wit: that where an individual had had even a small experience on one of the subjects on which the Committee is deliberating, his testimony in relation to it will not be wholly valueless. It is because of my having had some experience in one of our important public institutions, the State Prison, and reflected on its connection with the Council, that I venture to say a few words upon the subject.

A few years ago, I should have consented that the Council should be abolished, and should have said that, in many respects, it was a useless body; and this is the impression generally entertained throughout the Commonwealth. But it was then and there, during my two years' experience in connection with the State Prison, as one of its Inspectors, that I altered my mind; for then I saw, or thought I saw, reason to believe that the influence of the Council upon that institution was good, and might be made much more beneficial than it was, by making it the duty of the Council to exercise a more direct influence upon that institution than it has been accustomed to exercise.

Now, Mr. Chairman, let us look at things as they are in the Commonwealth in relation to its great institutions, its State Prison, the Hospitals, and we are soon to have State Almshouses. These institutions are daily multiplying. It seems to me, Sir, that there is a necessity for having somebody who should have authority, a visiting power, to go into those institutions and exercise influence over them, and who should be made more directly responsible than anybody responsible to the people now is for their good condition; and there seems to me to be no more appropriate body for the exercise of this authority than the Council.

For this reason, among others, therefore, I

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would have that body retained in the govern ment; and believe it would be a wise policy that the legislature, as it shall see fit, should put more and more duties upon that body, and not that there should be taken away from it any of the duties it now has, or that it should be abolished.

One word, Sir, in reference to the pardoning power. It is of the gravest import, on many accounts, that this should be exercised discreetly. During the two years' experience I had in connection with the State Prison, as one of the Inspectors, I cannot recall a single instance in which this pardoning power was exercised in a way which we deemed wrongful or improper. The difficulty then was to get it exercised in cases in which it ought to be exercised. I shall vote in favor of retaining the Council.

Mr. HUBBARD, of Boston. I should not have arisen to take any part in this discussion had not I been directly alluded to by the member for Berlin, as having some knowledge in regard to the importance of the right exercise of the pardoning power, upon one of the most important institutions in our Commonwealth. I was associated for two years with the gentleman who last addressed the Committee, on the Board of Inspectors, as its chairman, and Sir, I may say, that with my knowledge of the character of the men in that institution, I should walk through their workshops with trembling and fear, and armed to the teeth, and guarded at right and left, were it not for the all-powerful restraint which is exercised over them by a knowledge that there is a power which may dispense mercy to the penitent and the deserving. And, Sir, one of the most striking facts illustrative of the influence of this power is, that the life-men, as they are called, with hardly an exception, are the most exemplary and well behaved and easily managed men in the institution, and so it is in proportion to the length of time for which they are sentenced. We saw the influence of the fact, that this power might be brought to bear upon their welfare for weal or for woe.

Sir, I fully concur with the gentleman who was associated with me at that time, and who has just taken his seat, in the expression of opinion that the pardoning power in this Commonwealth is exercised -- notwithstanding the fears and doubts and the glowing pictures of the influences which are brought to bear upon the governor and council-I say this power is exercised with great care, prudence and discretion. If there was error on any hand, I should fear that it was that the claims and circumstances of persons confined in that institution were not sufficiently brought under the consideration of the Governor and Council.

It is true, Sir, that there are always prisoners there who have a large circle of friends, who present their claims to the executive, and it requires a wisdom rarely possessed by a single man, to administer the laws of the Commonwealth against criminals, with a due regard to mercy towards those who have violated the laws of the land.

But, Sir, it sometimes happens that a stranger to our borders falls a victim to the influence of vicious companions, and comes within the grasp of our law, and it often happens that the peculiar circumstances of that individual do not reach the ear of the executive. I will state a single case, Sir. On the first official visit I had occasion to make to the prison, I noticed a prisoner walking through the yard, of tall, manly figure, a man

who would arrest the attention of the people anywhere, by his fine figure, movements and address. I was led to inquire into his history. I found that he was the son of English parents, of respectable standing and influence in the old country, and, as I afterwards learned, he was from one of that class whose sons are almost of necessity brought up in habits of idleness, because if allowed by their fathers to work upon the farm, the laboring classes proper would interfere and not allow it. He fell into evil habits. He had a good education, and came to this country, with a small allowance, to seek his fortune. He employed himself at different times in surveying, and in keeping school, but in a fit of desperation he went upon the highway and committed a crime and fled. He was pursued, and seized in the State of New York, was tried, convicted, and sentenced to prison for his life. I inquired into his conduct while in prison. He had been there nine years, and there had not been an instance in which he had violated the rules of the establishment. He was there employed in a confidential capacity, and drafted all the plans for the stone shop. I exerted myself in his behalf, and took upon myself the responsibility of presenting his case to the executive. His sentence was remitted, and he soon found employment in another State. He was taken into the employment of a man having a marble yard, as a confidential clerk. He performed all the duties imposed upon him to the entire satisfaction of his employers, and such was the favorable impression he made, that he married one of the daughters of his employer, and he is now established in business, and is receiving the encouragement and patronage of those who knew his character when he was in our prison.

Sir, admit all that the gentleman from Lowell, (Mr. Adams,) has said, to be true; admit that those powerful appeals to executive clemency are made, yet if his argument goes for anything, we are only to look at the murdered victims, and, having their images before our eyes, we are to disregard all appeals made to the executive, and however plain the evidence of reformation, still the man must be immured within the walls of the prison, in the arms of inflexible justice.

Let such a system prevail and I pity the men who are appointed by the executive to take charge of the public penitentiary. The amendment proposes to leave it entirely with the governor of the Commonwealth, without any one to aid or advise him, except such advice as he may choose to pick up here and there, and is that the mode of exercising this power which we will adopt in preference to that which now exists in this Commonwealth? It has been my fortune, or my misfortune, rarely to hear any complaint of the manner in which the pardoning power has been exercised by the executive of the Commonwealth.

Let us go to other States, which have been cited here as those in which the executive alone has exercised the power to the satisfaction of the people. Is there a man who sees the papers of New York and Pennsylvania, who does not know that they have teemed with imprecations upon the executive for an abuse of this power? Oftentimes, and I could wish always, these imputations are unfounded, but where so tremendous a power is put into one man's hands, unaided by the wisdom and opinions of others, he will, time and again, be imposed upon, and where the people do not understand the circumstances un

der which the power is exercised, the severest imputations will be cast upon him.

But it is said that these hearings are all ex parte. Sir, there are officers of the Commonwealth whose opinions and judgment are of far more value-I say it with all deference to the gentleman who fills the office to which I referthan the judgment and experience of the districtattorney. I mean the officers of the prison. I know there was one particular case under consideration before the executive, where I thought and believed there was a strong inclination on his part to grant a pardon. A statement of a single fact, made by one of the officers of the prison, stayed the exercise of the pardoning power on the part of the executive.

And, Sir, the past winter, I was induced to make an appeal to the present executive, in behalf of a particular prisoner. I thought I knew the facts of his case; but when I came to the lieutenant-governor, to confer with him upon the subject, I found that he was much better posted up upon the case than I was. Strong petitions and appeals from the other side of the Atlantic had been presented to him, that he might be released from his imprisonment, and return to his friends; but I found that the executive had sent to the scene of the commission of the crime which had brought him to the prison, and had fully informed himself of the facts and circumstances. He disclosed to me circumstances of aggravation and outrage beyond and without the particular case, showing the dangerous character of the man; and though I came to the lieutenantgovernor with the full conviction that the man deserved a pardon, I became convinced that the executive wisely refused to exercise the power in that particular instance.

I cast no imputations upon the conduct of the governor of this Commonwealth. But with the little experience I have had, I entirely concur in the opinions expressed by the distinguished member for Berlin, (Mr. Boutwell,) in regard to the high and important duties which the Council perform, and of the importance that they should continue to perform them. I will also venture to express an opinion, which from the position which that gentleman occupies, he did not choose to express, that this power in the hands in which it is now placed is generally exercised with a great degree of prudence and discretion. That there may be cases where these officers may misjudge; that there may be cases where they may be imposed upon; that there may be cases where their human feelings may be operated upon; is but to suppose that they are human, like other men, Indeed, to suppose that it should be otherwise, would be to suppose that these executive officers are more than mortal; that they must be freed from all the weaknesses and frailties which belong to humanity, and not only that, but it would be to suppose them not to possess those higher feelings of our nature-of compassion and sympathy, without which we should be iron men, and should cease to be what we are; and those who would not be influenced by such considerations, under any circumstances, are men to whom I would not give the exercise of power. They are only motives which influence men of justice and probity.

Sir, I, for one, hope that whatever is done with the other duties which belong to this Executive Council, the pardoning power will not pass

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from their hands. I believe that it is exercised wisely and discreetly where it is, and I see no reason why it shall be removed into others hands. Mr. WALKER, of North Brookfield. I fully concur in the opinions expressed by the gentleman for Abington, (Mr. Keyes,) and by the gentleman for Berlin, (Mr. Boutwell). These gentlemen have given a very full, and I think, a very just view of the necessity there is for continuing the Executive Council. Many of the observations which I heard,-I had not been aware of the fact before,-would have led me to believe that there are very many and important duties and responsibilities, which the Council only can best perform. And for one, I am fully satisfied that, as a matter of economy, if for no other reason, it is best to retain this Executive Council.

ture.

But, Sir, the labors of that body, I trust, will be very much less in future, than they have heretofore been. Many of the appointments which have been made by them, I presume, will be made by some other power. The appointment of four or five thousand justices of the peace, is of itself, a duty requiring much labor and time. These, with many other officers, I trust, will not continue to be appointed by the executive in fuBut there are still important duties to perform, which will require, in my opinion, the continuance of the services of that Council. There is the matter of examining and auditing accounts, and the pardoning power, and many other duties, which I will not detain the Committee by enumerating. Therefore, I am in favor of retaining the Executive Council; but, in consideration of the fact, that we may expect so great a reduction of their labors, it will not be necessary to provide for as many as are mentioned in the amendment of the gentleman for Berliu. I think five, in addition to the governor and lieutenant-governor, will be sufficient to transact all the business which will be likely to devolve upon our Executive Council. I therefore, move that the number "eight" be changed to "five," and that a corresponding change be made in the number of districts.

The amendment having been reduced to writing, is as follows:-Strike out of the proposition of the gentleman for Berlin, (Mr. Boutwell,) in the first line, the word "eigt," and insert "five," and strike out of the fourth line, the word "five," and insert "eight," so that the proposition, as amended, would read.

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

Mr. HALL, of Haverhill. I rise to a question of order. I desire to know whether the amendment of the gentleman from North Brookfield, is in order.

The CHAIRMAN. The Chair thinks it is in order, as an amendment to the amendment of the gentleman for Berlin.

ernment.

Mr. GARDNER, of Seekonk. I have had a little experience in this department of the govBut I rise with some reluctance to say anything upon a subject which has already been 50 ay discussed. Nevertheless, I feel it a duty I owe to my constituents and to myself, not to allow the question to be taken without saying a word upon the subject.

I have listened with great pleasure to the re

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marks of the gentleman for Berlin, of the gentleman from Boston, and to those of other gentlemen upon this subject. I did not, however, have the pleasure of hearing those of the gentleman for Abington, (Mr. Keyes,) who, I understand addressed the Convention this morning. But, Sir, I wish, before this vote is taken, to express my objections to the Report which is before us, I have heard the opinion expressed that this Executive Council were but little more than supernumerary officers. But, having known by experience that there are most arduous duties connected with that position, and having arrived at the conclusion that it is one of the most important departments of the government, I could not permit this occasion to pass without entering my protest against the Report which has been presented here by the very able and learned gentleman for Wilbraham, (Mr. Hallett). I hope that neither the amendment which has been offered by the gentleman from North Brookfield, (Mr. Walker,) nor the original Report itself will be adopted by this Convention.

Sir, I have been opposed all along to the adoption of the plurality system, as proposed by the Report, which has elicited so much discussion in this body. I believe that the people of this Commonwealth desire that their officers shall be elected by the majority system, and that this is the true republican democratic principle, and I believe also that the people desire that we should retain this Executive Council. Now, Sir, I am a friend to judicious reform. I will go for anything which shall improve our Constitution. I will go for anything that the good of the people requires, but I cannot go for all the changes which are proposed in this Convention. It is a very easy thing to come here and resolve that it is expedient to alter this part of the Constitution so and so, and that part so and so. Now, Sir, I am for allowing this portion of the Constitution to remain just as it now stands. I would go for any change which would, in my opinion, improve it, but I cannot see how any change in relation to the Executive Council can improve it. No, Sir; instead of making it better it will make it worse. That, I think, will be the effect if you change the present form in any particular. Nevertheless, if any gentleman will propose some slight amendment, which will be gratifying to him, and which will be agreeable to those in the Convention who are so fond of change, I will not object. There are a portion of the members of the Convention who seem determined to have change, and I am disposed, therefore, to favor some slight amendments, merely for the purpose of gratifying them and making them think we have done something with regard to this department of government.

But, Sir, I have objections to meddling with what relates to the Executive Council. I want that portion of the Constitution to stand just as it is. I believe, Mr. Chairman—and you know in relation to it as well and perhaps better than any other man in this house-that this is one of the most important branches of government. And so far from detracting from the dignity or respectability of the governor, it increases that dignity. It confirms the judgment which he enters, and renders him an essential service. Sir, I put the question, Have gentlemen referred to any case where the existence of the Council has not been beneficial to the State? Not one. It is said you may abolish the Council because there is an

auditor appoint 1, and they are therefore not needed to audit the accounts of the Commonwealth. Well, Sir, so far from the appointment of an auditor having rendered the existence of the Council unnecessary, it has, if possible, made it of more importance. Why, Sir, their assistance to the auditor is not only essential and desirable, but it is absolutely necessary. We have an auditor of accounts, and I take pleasure in saying that he is a man of honor, integrity and fidelity. I know of no man who would better discharge the duties of his office. But every man is liable to errors, and I know from my own personal experience, that he has been often materially assisted by the Council in matters where not only a service was rendered to him, but in matters of very great importance to the Commonwealth.

Sir, I repeat, that the continuance of the Executive Council is absolutely essential to the best interests of the Commonwealth. I would not think of abolishing the office of councillor any more than I would that of the governor himself, or any other officer in the State. I hope, therefore, we shall have a unanimous vote against the Report of the Committee. I am against the orig-¦ inal form of the Report, and entirely against the amendment which has been offered by the gentleman from North Brookfield, (Mr. Walker,) and I repeat, with all due respect to the opinion of the gentleman, I hope the Convention will refuse to sanction either.

With these remarks, I close, asking pardon for having trespassed thus much at the present, upon the time of the Convention.

Mr. WALCOTT, of Salem. I should not have troubled this Committe by a single word, had I not been a member of the Committee who reported the resolutions now upon your table. I attended the sessions of that Committee regularly, and I think that I and one other were the only members of it who voted in opposition to the Report now before you. I had intended, if I had been a little more active and a little more willing to rise and speak, to have expressed my dissent to that Report at an earlier period in this discussion. I however do not regret the delay, and I am sure the Convention have reason to be entirely satisfied with it, because most of the objections which I should have presented have been so much better expressed by gentlemen who have had what I have not had, personal experience with the duties of councillor. I have never had any share in those duties or labors, and have therefore arrived at the conclusions I have expressed without the personal experience which most of the other gentlemen who addressed the Convention to-day, have brought with them, and I should not have felt at liberty to address you upon the subject, but for the fact which I have alluded to of my connection with this Committee.

Now, Mr. Chairman, I will proceed to state very generally and briefly a few of the circumstances, and a few of the motives which induced me to dissent from the Report of the Committee. In the first place, it is an old and important part of the administration of our government. The Council dates back to the very cradle of our existence as a colony or province of Great Britain. It was established under another name in the very first charter which we received. In the charter of 1628, under the name of Assistants, there was a Council appointed to aid and assist the governor in administering the affairs of the colony. In the

[June 2d.

charter of William and Mary, in 1691, we find it again established under the name of the Council, or at least, that was one of the names by which it was called. This Council had almost precisely the same powers, and almost precisely the same expressions were used with regard to it as are made use of in the Constitution of 1780. It was then, however, a more numerous body than now.

Now, Sir, it seems to me that a body which has existed so long, which has formed so essential a part of the administration of the affairs of your government, as a Colony, Province and State, which is older than your House of Representatives itself, should not be lightly cast off. It seems to me that a branch of your government which has approved itself to the judgment of succeeding ages under different forms of administration, having only been changed so as to accommodate it to the changes which were made in the forms of the successive administrations, which has so well met the wants of the government, cannot be thus violently wrenched from its place without doing serious injury to the other portions of your system. It has grown up gradually and slowly, and become fitly joined and compacted with the rest of the system. It is known and understood by all, and generally approved, and therefore should not be changed without good reasons. I do not say that it is a matter of necessity, that we must have a Council, and that it would be wrong in itself to do without it. I regard this question of the Council simply as a question of political and administrative expediency, and although its duties might be performed by another body, and although in other States which never had a Council, and in which the duties performed by such a body have been committed to a separate board of commissioners, or to other individuals, their system may work as well or better for them, still our system is better adapted to Massachusetts, and it is the part of wisdom to retain it until something better is presented to us.

One of the principal and strongest arguments for the abolition of the Council offered by the chairman of the Committee, (Mr. Hallett,) who addressed us yesterday, was that of economy. He estimated the annual expenses of the Council to be about fifty-four or fifty-five hundred dollars.

The gentleman from Boston, (Mr. Upton,) who spoke this morning, says, that an average of the expense of the Council for the last nineteen years has been $3,300 a year. As long sessions seem to be the fashion now, much longer than prevailed ten or fifteen years ago, it may be proper to assume, that the expenses of the Council hereafter, with the same number of members of which it now consists, and under the same system of administration, are not likely to be less than $5,000 or $6,000 a year. Just about $500 a year for each one of the members of the Council. I certainly am not going over the long list of duties which have been explained by gentlemen who know them much better than I do, but I ask the Committee whether it would be possible to obtain equally intelligent and well-informed gentlemen, who will devote their services to the Commonwealth for an equal length of time, for anything approaching that compensation. The chairman of the Committee, even, has not found fault with regard to that matter. He began his speech by stating that the Council was a mere excrescence which might be stricken off without injury to the body politic; that its duties

Thursday,]

might be performed without extra expense. Before he got through with his very able speech he admitted that a little more clerk hire might be necessary in order to perform the required duties, and that a little extra salary should be paid to the officers who are principally to be called upon to perfom these duties. How many clerks and how much addition can you make to the salary of the four or five officers who are to be employed? But, taking into consideration all the committees and legislative boards which this Report contemplates-for, if gentlemen will look at it, they will see it contemplates that the legislature will appoint boards and committees to perform a portion of these duties-how many extra clerks, and how much addition to the salary of the five or six responsible officers can be made without exceeding the whole expense of the Council? This, I take it, is a question of small consequence compared with our large expenditures for legislation. There was paid to the legislature for the last year, (1852,) more than $130,000, and only $5,000 to the Council. I verily believe that a larger addition will be made to the expenditure under the system proposed in this Report, than under the present system. Even if a thousand or two of dollars could be saved it is entitled to no consideration compared with that of having the affairs of the Commonwealth faithfully, judiciously, and wisely administered. I had intended to say something about the number of cases for pardon or commutation of sentence that come before this Council, and had made some examination in that particular, but I shall not go over that matter further than to say that it seems to be conceded, by the general remark of persons who are acquainted with the duties of the Council that in not more than one in three or four cases is there any action required or any entry made upon the records of the Council, and therefore the sum which I am about to state as the average is to be multiplied by three or four at least. The average number of cases for the last eight years is 47 1-8. The number of cases in 1845 was 26; in 1846 the number was 25; in 1847, 30; in 1848, 66; in 1849, 45; in 1850, 45; in 1851, 54; 1852, 86; making an average of 47 cases annually in which the Council actually made some change in the sentences of the courts. Whether the pardoning power be well or ill-administered, nobody doubts that it must exist somewhere. The chairman of the Committee says that he had rather leave it to the responsibility of the chief magistrate; and although he may, at times, be affected by the strong appeals made to him, or his feelings may be unduly wrought upon, and although he might, in some cases, outrage the feelings of the community by the exercise of the pardoning power, yet he says that is of little consequence, for the people will set the matter all right, and they will be sure to punish him the moment they have the power to do so.

But I contend, as I always have contended, that prevention is better than cure. The plan now reported proposes to leave the subject to what may be the misdirected judgment, mistake and imperfection of a single man, entire and absolute control of the exercise of the pardoning power, and all you can do to remedy the mischief done is not to elect him again. It seems to me to be the wiser and better course to surround the governor with a body of respectable and intelligent gentlemen, assembled from different parts of the Com

monwealth, who shall prevent the injudicious exercise of this power by their influence at the time, and so save the necessity of punishing or visiting his aberration with the public vengeance.

In the administration of the numerous affairs of government by the Council, one of the most numerous class of cases, which are but glanced at in the last section of this Report, are those in which the Council are to advise and assist the governor in the appointments of commissioners and their compensation; also all matters relating to the duties of trustees, the issue of State scrip, to various funds, and many other subjects which are provided for by a great number of temporary and special acts and resolves. By the Report appended to these resolutions, it will be found, upon careful examination, that quite as onerous and important duties are devolved upon the Council by temporary acts and resolves, whose operation expires within a year or two from the time they passed, and which never go upon the statute book as general laws, as by those which are provided for by the Constitution and general laws.

I desire to say one word with regard to the appointments, &c. By the resolutions reported by this Committee, the examination of returns and votes in all cases, the apportionment of the Senate and the House of Representatives, are to be made by a board consisting of the governor, lieutenant-governor, secretary of state, treasurer, and the attorney-general-a most respectable board, every-body will agree. But will the Commonwealth at large be as well satisfied with an apportionment of representation, either in the Senate or House of Representatives, and with the examination of votes which is to determine the balance of political power made in this way, as they would be with the same examination or apportionment made under the present system? Situated as these gentlemen must necessarily be, they will be here perhaps all of the time or residing within a few miles of the State House, having their offices within this city, and it will not be necessary to send, as the chairman objects must be done now, to Berkshire or Cape Cod to summon your Council to make this examination and apportionment; but I wish to ask whether Berkshire or Cape Cod will be as well satisfied with that examination and apportionment, as they would be if they had their own representatives in that board? It is important in the administration of a government founded upon public opinion and upon the good will of the people, that you should carry conviction to every part of the Commonwealth that their interests have been honestly and fairly attended to in every respect.

It was my intention to have spoken upon some other points, but as they have already been alluded to, I will not detain the Committee with any extended view of my own.

The closing recommendation of the scheme reported by the Committee is, that the abolition of the Council would lead to the simplification and improvement of the machinery of government. For one I deny that simplification and improvement are synonymous. I had supposed that the great excellence of the American system of government consisted in the system of checks and balances that it introduced, and that when you simplified it you put it in the power of an individual holding office to abuse the trust reposed in him, and that such abuse was truly tyranny. I

[June 2d.

hope, for the reasons which I have so briefly given, that the Report of the Committee will be rejected. If I had not already spoken longer than I intended, I would say a few words in regard to the amendment now pending. It is well known that the subject to which it has reference has been very much discussed heretofore. It is said that the people are not directly represented by the present system. That is true in a certain sense, but they were never represented much more directly than they are now.

Under the original charter system, the councillors were always elected by the legislature. By the Constitution, of 1780, it was provided that the legislature should elect the councillors from the persons elected as councillors and senators. But that was abrogated for what seemed to be very good reasons; because it might give the majority in the legislature, the power to change the political character of the Senate. That was the main reason why they ceased to choose the councillors from the Senate; it was that of which the country complained. Then they passed from what has been denominated the absurdity of choosing the senators councillors, only to give them an opportunity to decline, to the practice of electing them from the people. The recent amendment to the Constitution has set that all right, by providing that they shall be chosen in the first instance from the people. I am happy to coincide with the chairman in his statement that this is a question in which no party consideration can enter, for it is not in the power of any party to shape this matter so that they can tell whether the result may not be to defeat their own purposes the very next year. Therefore, I think the Convention can have no motive to look at this matter in any other light than as purely an administrative power, and to decide as shall seem best.

vote.

Mr. KINGMAN, of West Bridgewater. I do not rise to make a speech, but merely to express the hope that this subject may be brought to a I know it is probable that many gentlemen would be gratified by making a speech; but I hope, that out of courtesy, those gentlemen will deny themselves, and permit the question to be taken.

Mr. WILSON, of Natick. I do not rise at this time of the day for the purpose of detaining the Committee but a few moments. I wish, however, to say that I am somewhat disappointed at the turn which affairs have taken in the Committee. I believe that the Report of this Committee was made in accordance with what was understood to be the sentiment of the Convention and the sentiment of the people of the Commonwealth. I am of the opinion, Sir, from the little knowledge I have of the public sentiment in the State, that the expectation is almost universal that the Convention will abolish the Council. I believe that when we came together here, and up to this very morning, a decided majority in this Convention entertained that sentiment, and in making this Report which is now before us, I believe the Committee considered that they were acting in accordance with the sentiments of the Convention, and in accordance with the opinions of the people of the State. But, Sir, gentlemen of talent, of influence, of high position in the past, gentlemen to whom the opinions of many of us how with great deference and respect, have this day addressed appeals to this Committee which have evidently