(July 22d.

to him. The gentleman from Lowell then claimed and sentence criminals, are not the proper men to the floor upon the ground that the gentleman for be applied to for opinions in relation to the pardon Abington had already spoken upon the subject of those convicts. Having once expressed their under consideration. Supposing that the gentle- opinions as to the nature of their guilt, they have man from Lowell wished to speak upon the some pride in the matter. They do not like to question, the Chair, tłerefore, awarded the floor have their decisions reversed. If he is a judge to him, upon that ground, as he was compelled to and has given his decision, upon a full knowledge do under the Rules of the Convention, and the of the circumstances connected with the trial, gentleman then moved the previous question. which has resulted in the incarceration of a man The Chair believes that is a correct statement of in prison, he is not willing to turn round and say the case.

that his sentence was too severe, and that the Mr. LORD, of Salem. Before the President convict should be liberated. It is the nature of decides, definitely, the question of order, I desire men to have faith in the cause they are obliged to to call his attention to the 23d Rule, which is the maintain. An illustration may be found in a following:

debating society, where a man taking the wrong

side of a question for the sake of argument, de“No person shall speak more than twice upon fends and discusses it until he ends in believing one question, without first obtaining leave of that to be right, which, at the outset, he honestly the Convention; nor more than once until other members who have not spoken, shall speak, if believed to be wrong. And so it is with advothey desire it."

cates who argue against what they know to be

the plainest evidence; they argue themselves into Under this Rule, any member who has once the belief that what they are supporting is right. spoken, must yield to another, if he desires to Now, Sir, these very judges upon the bench, in speak, but I do not suppose he is obliged to yield charging the jury, generally argue the question in to him to make a motion.

such a way as to indicate pretty clearly what The PRESIDENT. The Chair will again state, their opinions are in relation to the guilt or innothat he supposed the delegate from Lowell had a cence of the accused, and in nine instances out of right to claim the floor if he wished to speak, the ten, their opinions thus given, determine the vergentleman for Abington having once spoken upon dict of the jury, when half the time any member the question. He, therefore, awarded it to the of the jury is as good a judge of what is justice gentleman from Lowell, supposing that he wished and equity as the judge himself. The idea that to address the Convention ; he, however, is con- judges never make mistakes is a false one. You strained, under the circumstances, to rule the cannot go into any county court in the State, and motion made by that gentleman to be out of order. examine the decisions through a single term with.

Mr. KEYES. I wish to say only one word. out finding great mistakes committed. There is I did not intend to have troubled the Convention not much reason or common sense in many of again upon this subject. I was very anxious that their sentences, and that every-body knows. I do this question should be disposed of without de not mean to say that the judges mean to give bate; and although this is a subject in which I wrong decisions, but any man who sits upon the have taken some interest, I have expressly avoided bench feels differently at one time from what he saying anything which should elicit debate. does at others. I have suffered from dyspepsia

But the gentleman from Framingham, (Mr. long enough to know that sometimes a man may Train,) has seen fit to come out with one of the feel as if he would strangle half the world, if he

me sort of speeches which we have heard—not could get them by the neck, [laughter,) and at only upon a former occasion during the debate on others, as if he would shower blessings on the this question, but which we have heard outside whole race. I believe the judges perform their of this body--and such as I think, ought not to be duties conscientiously, and as well as they are made anywhere. I can see no reason why the able to, but they are not infallible. gentleman should make such speeches, for I be But, as I said in the outset, it is no purpose of lieve him personally to be one of the kindest mine to oppose this amendment. If people think hearted men in the Convention, and I can only it is necessary, let them have it. But I cannot account for it on the ground of the butcher busi- subscribe to requiring these men, who, if not ness in which he has been engaged. I can think hangmen, are only one remove from it, and who, of nothing else which should prompt him to rise by means of their profession, have acquired to and make such speeches.

some extent, the dispositions of butchers, to give Sir, I undertake to say, that these prosecuting their opinions upon the propriety of exercising officers and judges, whose business it is to convict the pardoning power.


BATES - UPTON - Briggs.

(July 22d.

Mr. BATES, of Plymouth, When the discus- / tions for pardon, and using those votes to secure sion first commenced upon this question, I was in his own private ends. You open the door for refavor of the amendment of the gentleman from venge, if you please. Why should the opinions of Milton, (Mr. Churchill). But when I heard the jurors, as to the criminality of a person upon argument of the gentleman from Framingham, whom they are called to decide, be kept from the (Mr. Train,) I was opposed to it, inasmuch as it public, and the opinions of a councillor, who is put it upon the ground that the Council were a called upon to decide the same question, upon an set of scoundrels who were unfit for, or inca- application for pardon, be made public? pable of taking care of the interests of the State, I hope the resolution will be stricken out; and with regard to matters committed to them. But now, in accordance with my promise, I move the I am opposed to continuing this debate farther. previous question. It may be, if it were to continue, that arguments The previous question was seconded, and the might be presented which would lead me to vote main question ordered to be put. in favor of the amendment, and I therefore move Mr. BRIGGS, of Pittsfield. I do not wish to the previous question.

say one word upon the question before the ConMr. UPTON, of Boston. I have an amend. vention; but, having heard that I made an ment which I desire to offer, and I also desire to erroneous statement in relation to one of the unoccupy not more than two minutes in explaining fortunate young men to whom I alluded when I it. If the gentleman will withdraw his motion was before up, I wish, in justice to his friends, to for the previous question, I will renew it before correct the statement. I set down.

The PRESIDENT. The previous question Mr. BATES. With that understanding, I having been ordered, the gentleman from Pittswithdraw my motion for the previous question. field can only proceed by unanimous consent.

Mr. UPTON. I move to strike out the second There was no objection made, and resolution as it now stands. It is the following: Mr. BRIGGS proceeded. I alluded to a young

man by the name of Learned, in Worcester Resolved, That it is expedient so to amend the County, who, upon the recommendation of many Constitution as to provide that the record of the proceedings of the Council shall always be subject

of the citizens of that county, was pardoned ; and I to public examination.

stated that he turned out to be unworthy, and that

he had since been tried and convicted for another Now, Mr. President, one single word to explain offence in the State of New York. my object in making that motion. These reso Sicce making that statement, a gentleman tells lutions provide that your Council shall sit in judg-me he has learned that the young man has, withment upon criminals-that is to say, the question in a few days past, died in the State Prison in the of pardon is to come before them. They sit in State of New York, but that before he died, public, but still the records of their proceedings, satisfactory evidence was produced, to show that in every case, are to be made subject to public he was wrongfully convicted ; that the governor examination.

of New York was satisfied of that fact, and sent Now, Sir, in the case of an examination before him a pardon ; but that that pardon reached the a jury, of a criminal offence, if there is any dif- prison-house two hours too late ; and that in his ference of opinion among the jurors, where the dying moments the poor fellow protested his inperson is not convicted, the opinions of those ju nocence of the offence for which he was conrors who were in favor of conviction are never victed. made public. Yet it is proposed to provide that Sir, that young man may have a mother, he the proceedings of the Council shall not only may have a sister, or some friend, who may see in be open, but that the record of their proceedings print, or in some other way learn, what I said in shall be kept open for public examination, so relation to his case. I desire, therefore, to take it that, if their is a difference of opinion among the all back, for of all things, I would not do injustice the councillors upon a question of pardon, any to any human being placed in such a situation, or one, from a personal or other motive, can go to wound the feelings of his friends. I understand your Council-Chamber, and ascertain how each that the evidence was satisfactory that he was councillor voted. Now, Sir, that is contrary to wrongfully convicted. the principles and spirit of our institutions. You The question was then taken on Mr. Churchill's open the door for any person entertaining feelings amendment, and there were-ayes, 135; noes, of hostility towards any particular councillor, to 115. carry them into effect, by ascertaining from the So the amendment was adopted. record what were his votes in relation to applica The question then recurring upon the motion




(July 22d.

of Mr. Upton, of Boston, to strike out the second Resolved, That it is expedient so to amend the resolution, it was taken, and the motion was not Constitution as to provide that no councillor, agreed to—ayes, 97; noes, 164.

during the time for which he shall be elected, The PRESIDENT. The question now is upon place, for which he shall receive any compensa

shall be appointed on any commission, or to any ordering the resolves, as amended, to their final tion whatever, other than that which he receives passage.

as councillor. Mr. HALLETT, for Wilbraham. I move a reconsideration of the vote whereby the previous

The question was taken, and it was a .reed to. question was ordered. I desire to say one word

The fourth resolution was read, as follows:as a reason for so doing.

Resolved, That the legislature may provide by Mr. EDWARDS, of Southampton. I rise to a

law that public notice shall be given of all applipoint order. I would inquire of the Chair if it cations to the Governor and Council for remission is in order to move a reconsideration of the pre- of the sentence of persons imprisoned for crime. vious question after we have proceeded under the operation of that previous question and taken

The question was taken, and a division being votes ?

called for, there were-ayes, 129; noes, 135. Mr. HALLETT. I withdraw my motion.

So the resolution was not agreed to. Mr. GRISWOLD, for Erving. There is one

Mr. HALLETT, for Wilbraham. I rise for vote taken here with which I am dissatisfied, and the purpose of moving a reconsideration of the I will venture to move a reconsideration of the

vote just passed. vote by which the amendment of the gentleman

The PRESIDENT. The motion will go into from Milton (Mr. Churchill) was adopted.

the Orders of the Day for to-morrow. Mr. SCHOULER, of Boston.

I rise to a I rise to a

Mr. BOUTWELL, for Berlin. question of order. My point of order is that question of order. I wish to know whether the there cannot be a reconsideration now, after the motion can be made at this time? previous question is ordered.

The PRESIDENT. The motion cannot be The PRESIDENT. The Chair is of the made except by general consent, unless the Orders opinion that the motion to reconsider is not in

of the Day be first laid upon the table. order; that no motion to amend or reconsider

Mr. BOUTWELL objected. can be in order, the main question having been

Mr. HALLETT moved that the Orders of the ordered.

Day lie upon the table. Mr. SCHOULER. The gentleman can move

The question was taken, and the motion was a reconsideration after we have got through with

not agreed to. the resolves.

Preservation of the Records. The PRESIDENT. The question now is The PRESIDENT. The next matter in the upon ordering the resolutions to their final pas-Orders of the Day is No. 6 in the calendar, being sage.

the resolves on the subject of the preservation of Mr. GRISWOLD. I had supposed that the

the records. The question pending is upon their motion I made was in order; but as it has been

final passage. ruled out of order, I call for a division of the

The resolves were read, as follows: question. The first resolve was then read, as follows: Resolved, That, at the close of the session, the

Secretaries of the Convention deposit the original Resolved, That eight councillors be elected by journals, together with the papers of the Convenby the people in single districts, each district to tion, in the office of the Secretary of State. consist of five contiguous senatorial districts. Resolved, That William S. Robinson prepare an

index to the journal, and procure two thousand The question was taken, and the resolution was copies of the journal and index to be printed and agreed to.

bound, on such terms and in such manner as The second resolution was read, as follows:- shall be approved by the Committee on the Pre

servation of the Records, and that he be paid four

dollars a day for his services therein. Resolved, That it is expedient so to amend the Constitution as to provide that the record of the

Resolved, That his Excellency the Governor be

requested to draw his warrant on the treasury for proceedings of the Council shall always be subject such expenses incurred in the execution of the to public examination.

preceding resolves, as shall be approved by the

Committee on the Preservation of the Records. The question was taken, and the resolve was

Resolved, That the Secretary of the Commonagreed to.

wealth be requested to distribute copies of the The third resolution was read, as follows: journal to each member of the Convention, and



(July 22d.

to all persons and public bodies mentioned in Mr. DANA, for Manchester. I hope the prechap. 2, sec. 2, of the Revised Statutes, excepting vious question will not be sustained, for I have members of the legislature.

an amendment which I desire to propose. The PRESIDENT. The question is upon or

Mr. SCHOULER, of Boston. I hope the predering the resolves to their final passage.

vious question will not be pressed, because I shall Mr. BRIGGS, of Pittsfield, I wish to make feel myself under obligation to move a reconsidan inquiry in regard to this matter. I am in- eration, and I do not think we shall gain any formed that the mode of doing this business in the time by such a motion. I do not intend to disHouse of Representatives is to pay a certain sum, cuss this matter, but I intend to move the same say one hundred or one hundred and fifty dollars, amendment which I offered the other day. The for the work. If that has been the practice here- gentleman for Manchester has also expressed a tofore, I wish to inquire what reason there was for

desire to move an amendment. I do not know departing from it in this case? I merely ask for

what it is, but I think that opportunity should be information.

afforded to any gentleman to move amendments. Mr. BIRD, of Walpole. The Committee un

I can assure the gentleman from Fall River, (Mr. derstood that the practice had been to pay four Hooper,) that I do not intend to occupy any dollars per day for services of this kind rendered time, but merely to offer my amendment. If the by the clerk; but I have been informed by gen- previous question should be sustained, and no tlemen here that the practice has been to pay a

opportunity given to offer amendments, I shall round sum, one hundred or one hundred and fifty

move a reconsideration. I call for the yeas and dollars, as the case might be.

nays upon the previous question. Mr. BRIGGS. I have no choice about it. I

The yeas and nays were ordered. merely wanted the information.

Mr. HOOPER, of Fall River. I will withThe question was taken on the resolutions as re

draw the motion for the previous question. ported by the Committee, and they were agreed to.

Mr. DANA, for Manchester. I propose to

amend the resolves by striking out all after the Elections by Plurality.

word “ that,” in the first resolve, and inserting The PRESIDENT. The matter next in order the following :is No. 7 upon the calendar, being the resolutions upon the subject of elections by plurality and That in the election of all officers required by majority. The question pending is upon their this Constitution to be elected by the people, exfinal passage.

cept town officers and representatives to the gen

eral court, the person havirg the highest number The resolutions were read, as follows:

of votes shall be deemed elected. In the election

of town officers and representatives to the general Resolved, That it is expedient to provide in the Constitution that a majority of all the votes given otherwise provided by the legislature.

court, a majority of votes shall be required, unless shall be necessary to the election of a governor, lieutenant-governor, secretary, treasurer, auditor, and attorney-general of the Commonwealth : pro

I wish to take a few moments of the time of the vided, that if at any election of either of the above-Convention to suggest a reason or two in favor of named officers, no person shall have a majority this amendment. I said, day before yesterday, of the votes given, the House of Representatives when the subject of the judiciary was up, that I shall

, by a majority of viva voce votes, elect two hoped that whatever had been settled by a test out of three persons who had the highest, if so many shall have been voted for, and return the

vote would be treated as settled ; and that I would persons so elected to the Senate, from which the not bring forward any amendment on the subject Senate shall, by viva voce vote, elect one who of the plurality, if the amendment on the subject shall be governor.

of the judiciary could also be dropped ; but as Resolved, That in all the elections of senators and councillors, the person having the highest to bring forward this amendment.

that subject was reopened, I feel myself at liberty number of votes shall be elected. Resolved, That in the election of representatives

The Convention will allow me to suggest to to the general court a majority of all the votes them the state of this question now. The officers given in shall be necessary to the election at the whom the people elect will be divided into three first ballot: provided, that in case of a failure of classes : first, those chosen by towns, including election on such ballot, the person having the representatives. Now, are we not pretty much highest number of votes at the second or any subsequent ballot, shall be elected.

all agreed, as the votes show, that they shall be

chosen still by majorities, and at the same time, Mr. HOOPER, of Fall River. I move the that the hands of the legislature shall not be tied, previous question.

so that if towns think it expedient to have the right



(July 22d.

to vote by plurality, they may do it. Now the ob case you have no second trial, and there is no majection to the Report of the Committee is, that it jority to elect the general officers, the election ties the hands of the towns. They cannot vote on should be by the legislature or by the plurality rule. the plurality principle on the first trial, if they I take it that the plurality principle is nearer the wish to, without amending the Constitution. My majority principle than the vote of the legislature amendment is this: that in the town meetings can be. I would ask the friends of the majority they shall vote upon the majority rule, but that principle to look at the position which they assume, the legislature may, when they desire it, untie when they sustain that Report. In case they sustheir hands and allow them to vote by the plu- tain the majority principle, and there is no elecrality rule. That is the first class of cases; and tion by the people, they leave it for the House of the reason why I think it expedient that towns Representatives to choose two out of the three should vote by the majority rule is, that they are highest, and that House of Representatives is not deliberative assemblies, and can vote as many based upon numbers. Is there any majority times in a day as they please, or adjourn. I principle in that? The House of Representatives suppose that we pretty much agree that it is best is not based upon numbers, and yet a friend of to leave them to the majority principle, with the majority principle leaves it to the House of power in the legislature to alter it.

Representatives to select two out of three, and With regard to the second class of cases, we are then he is to be chosen by the Senate. And how all agreed, as the votes show; that is, in the is the Senate chosen? Not by a majority but by county and district elections, including council a plurality. Now, where are the friends of the lors and senators, the plurality rule ought to pre- majority principle on that Report? If there is not vail. My amendment, and the Report of the a choice at the first trial, they will not allow a Committee, therefore, coincide in that respect. second trial ; and they then leave it to the House Then, Mr. President, is it not true that, after all, of Representatives to select two, that House of there is but one point of disagreement here: Representatives not being based upon numbers. Notwithstanding all the discussion we have had, They then leave it to the Senate to make the final when we come to get at the bottom of the matter, choice, the Senate being based on a plurality. is it not true that there is but one point of disa- | That throws out the majority principle entirely. greement here! And that point of disagreement The real question, then, is not between a mais far less, too, I apprehend, than gentlemen sup- jority and plurality, but between a majority and pose; because, on that point-that is, relating to the legislature, if you cannot get the majority. the election of governor, lieutenant-governor, and That is the real question; and I say if you cannot other general officers—the majority principle is get the majority, take the plurality. That is the abandoned. Yes, Sir, the majority principle is most democratic, the most republican, and comes abandoned. There is no difference, on that point, nearest to the majority principle. between the friends of the majority principle and The objections to trying the question in the the friends of the plurality principle; because it legislature are numerous. The legislature ought is agreed, on all hands, that there shall not be a not to be elected with reference to choosing a govsecond trial. Is not that so? Is it not agreed ernor, but for a very different purpose. In chooshere, by the friends of the majority, as well as by ing a governor on this floor, we are liable to the the friends of the plurality, that there shall be no influence of the arrangements made in committee second trial for these officers? If there is no sec rooms, of coalitions formed here which are not so ond trial, then the majority principle is abandon desirable nor so dignified as those formed at the ed. The only question, then, is, whether, in case polls. If we are to have them I would rather there is no majority, we shall take the plurality have them formed at the polls than in the comrule, or leave it to the legislature. If I am not mittee rooms. right in that statement, I would like to have some That is all I propose to say on the main quesgentleman say why I am not right. The votes tion. I think it raises the issue fairly. have shown that we do not intend to have a sec I wish to say one word in reply to the gentleond trial anywhere but in towns. No second man for Abington, who did me the honor to pay trial for the State officers, no second trial for the me a higher compliment on this subject than any councillors, no second trial for the senators, or for he had paid me before and I am indebted to him any of the county or district officers.

for two or three compliments—for all of which I Well, if there is no second trial, the majority am really obliged to him, because they had the principle is abandoned ; and all the discussion on evidence of being sincere, as everything has the subject of majority and plurality is entirely ir- which comes from him. But this compliment relevant. Then the real question is, whether, in exceeded them all. He said that I purposed

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