Thursday,]

first step, I think they are bound to show that a learned and able judiciary can be secured under the tenure of office proposed by the gentleman from Worcester.

If those two points can be established, I think they are bound, in the last place, to make it reasonably certain that that learning and ability thus secured, will be placed in such a position of independence, that every man who has rights, or property, dependent on judicial decision, may feel, whatever may be the result, unshaken confidence in the purity and impartiality of our tribunals. These three questions, I think, are questions which should be deliberately considered and fairly settled.

Now, Sir, in relation to the first question, although I have not been able to be present during this discussion, yet, from inquiry, I am not able to find that anywhere during that debate, the suggestion has been made, that the judicial system of Massachusetts, from its earliest to its latest history, has not accomplished, or that it does not now accomplish, fully and satisfactorily, the great purposes for which it was instituted. What man has told you that human liberty, the rights of property, and all that is confided to judicial keeping, has not been well and wisely confided there, during the whole time that our judiciary has been established upon its present basis? I have heard of no such complaint, abroad or at home. But, on the contrary, if there be any portion of the institutions of Massachusetts which has, more than anything else, redounded to her credit next to her common schools, it is the marked ability, fairness and learning to be found in her judicial decisions. Wherever, in this country, the common law is administered; wherever the application of the great principles of commercial law is studied or investigated; wherever schools of jurisprudence are established, there will be found the reports of your adjudicated cases.

In the extensive collection of books forming the law library of congress, I am told, that among the best thumbed volumes are the Reports of your Pickering; a fact, if it be true, which constitutes a proud tribute to the institution which the pending resolution seeks to alter if not impair.

I submit, then, Mr. President, that the first important position which those who support the pending resolution are bound to establish, has nothing to rest upon. That your existing judicial system is, and should be, a source of just pride and congratulation; and that it is due to common prudence to leave untouched a branch of your government that commands and obtains unusual approbation and respect.

But if this were doubtful-as it is not-and if the conclusion should be adopted that our present system requires to be modified, or radically changed; the next important question occurs: will the proposed substitute secure the requisite learning and ability?

In determining this question, the advantage of professional success, compared with a judicial position, are to be carefully balanced. You must assume that the selection of judges is to be made from among those who have reached the foremost rank of the profession, that a humiliating contrast between the capacity of the bar and the bench may be avoided. To attain such degree of professional standing, years of severe study

THE JUDICIARY.- BARTLETT - DANA.

and practise, reaching, on the average, to the meridian of life, will commonly be requisite. The present standard of judicial compensationor, indeed, any probable measure of compensation which will ever obtain in this Commonwealth-will compare most unfavorably with the results of professional success. In this condition of things, is it probable, nay, is it even possible, that, for any lengthened period, the judicial office, with a tenure of ten years, can be an object of professional aspiration? What is to be the fate of an incumbent at the end of his term? Reappointment can never be counted on with certainty. Failing that, he is left without resource. The instances in which a return to practise at the bar has been successful-aside from the irksomeness of such change of position-are very rare. usual resort, under such circumstances-to the habit of giving advice and opinions at chambers, -has been found to be unenduring, and from obvious causes, unsatisfactory; and your judge is left substantially stranded and helpless, on the shore of the great current with which he has heretofore mingled, and, to some extent, aided to guide.

The

It may be, Mr. President, that where judicial positions have ceased to be the aim of those whose experience and learning furnish the requisite qualifications, talent and industry may occasionally be found, and trained by the experience of years, to come up to the standard of judicial excellence which it has hitherto been our pride to require. But this must be the accident and not the rule; and I am unwilling to believe that this Convention will be content to subject to chance the sound and successful administration of justice in this Commonwealth.

Mr. President: There are many gentlemen in this Convention, who upon this subject are, from their independent position and large experience, qualified to testify rather than to argue the question. The journal shows that they have been heard, and I desire only to add my own convictions, that the proposed scheme of limiting the judicial tenure to a period of ten years, will fail to secure the talent and learning which have hitherto been deemed so essential to a safe and impartial administration of the law.

Mr. President: Assuming that a change in our system is required,-or, whether required or not, is to be made,-and assuming, farther, that the scheme proposed by the member from Worcester will command the requisite learning and ability in the judicial office, the question still remains, will that learning and ability be placed in a position that will secure its independence and purity?

The argument founded on the alleged average number of years, during which office has been held by the judges of this Commonwealth, if, under any circumstances entitled to consideration, can have no weight in determining this question. The practical inquiry is, whether-contrasted with a tenure during good behavior-a term of ten years will probably preserve the sense of just independence, without which, all agree, the judicial office may be a scourge or a nuisance.

This must be tested by assuming that your judges are dependent on their compensation for their support. It may not always be true, but the exceptions are too rare to be relied on in forming a system. In this condition of things— having deserted a profession to which he cannot successfully return-how can a judge, as his term

[July 21st.

approaches its end, free his mind from solicitude as to the future? and pressed by that solicitudewith no hopeful issue save a reappointment-he must be more than human, if his conduct be not, insensibly, perhaps, to himself, influenced by his position; and how important that influence may be, to what extent it may interfere with the fair and just administration of his office, must depend on the strength of his mind and character. But a system that places its magistrates in a position of possible peril from such causes, has no foundation in true wisdom.

It has been suggested that no good and competent judge need ever subject himself to unworthy appliances, to secure a reappointment—that policy as well as duty, point to the uncompromising discharge of the functions of his cffice, as the true method of securing his continuance in it. I agree that acknowledged judicial eminence increases the embarrassment of displacing its possessor; but the certainty of such ultimate eminence at the outset, where one is to shape his destiny for life, can never be felt to be secure; and a fear or a doubt of its existence, when the period of reappointment arrives, may disturb the coolest judgment.

Mr. President: Judicial appointments will be made in the future-as they have for the most part been in past times-from the ranks of the dominant party, whenever it is supposed to contain persons of fit or equal qualifications. To that condition of things every incumbent must have more or less regard; and in my judgment it is vain to hope, that under the short and limited tenure proposed, the great judicial offices of this Commonwealth can be worthily filled, or their purity and independence as successfully maintained as under the existing, long-tried tenure; and I hope, as I stated at the outset, that the proposed scheme will be rejected altogether.

Mr. DANA, for Manchester. I have already had the attention of the Convention several times upon this subject, and if there is any other gentleman who desires to speak, I will yield the floor with great pleasure. I do not desire to speak upon the general subject, but upon a collateral point which I cannot speak to when it regularly comes before the Convention, by reason of the rule you have adopted, closing debate. I have an amendment, bona fide, which I mean to offer; and as I shall not have the opportunity under the order to explain it when it shall come up, I desire to speak to it now.

The gentleman from Worcester, (Mr. Knowlton,) proposes in his amendment that the judges shall be confirmed by the Senate. But, he has seen this morning, that his proposition would operate rather badly in one respect. That is to say, by the provision you have adopted in relation to the length of the sessions of the legislature, the Senate ought not to be in session more than one hundred days in any one year, leaving two hundred and sixty-five days in each year, in which you would have no confirming body in session. But, this morning, the gentleman from Worcester has modified his plan so as to allow the governor to call the Senate together, whenever a vacancy in any of your courts occurs during the recess. Of course, the chances are that three-fourths of the vacancies will occur during the recesses, and the governor must call together a body of forty men and keep them in session for seven days to confirm a single judge,

Thursday,]

perhaps of the court of common pleas. Yet, all that time, the Council, elected for the purpose of being a confirming body, are in session in their chamber.

Now, let us put this question to the Convention. You have a Council of nine, elected for the purpose of confirming the appointments of the governor, with nobody to confirm but coroners and notaries. They are in session a great part of the whole year. Is it, then, worth while to provide that whenever a vacancy occurs in your supreme court, or your court of common pleas, you must wait for nine months without a judge, with your courts over-crowded as they are with business, or call together a body of forty men, from the different portions of the Commonwealth, and keep them in session in the other end of this capitol for seven days, at an expense of some $1,200 or $1,400?

That objection, I think, ought to be fatal. I shall propose to amend by striking out the word "Senate," and inserting the word "Council;" because it is my wish, that whatever passes here, may pass in the best form possible; for I expect to be obliged to go before the people and defend the Constitution, when the time comes, and I desire to make it as good as I can. I do not wish to be obliged to go down to Manchester, and tell the people of that town that we must have a session of the Senate seven days-forty men here sucking their thumbs, wandering about Boston with nothing to do, at three dollars a day, and all to confirm a judge of the court of common pleas. The people of Massachusetts will not sustain such a proposition as that. It may be that the Council is unnecessary. Then do away with it. The Convention have voted to retain the Council; and influential men here, ex-councillors and ex-governors, are in favor of it on account of the pardoning power. If we have that Council, let us give them something to do. The most dignified part of their business is taken away from them. Of course, I am opposed to the whole proposition of appointing judges for the period of seven years, for I do believe that it will place the judiciary under the control of the governor too much, and will lead to cabals, and influences, and suspicions, and conditions of dependence, which I do not wish to see. But this subject has already been discussed at great length, and I do not wish to detain the Convention any farther.

Mr. KEYES, for Abington. I hope the amendment offered by the gentleman for Manchester, (Mr. Dana,) will prevail. I was surprised, I confess, to find the proposition now under consideration, coming from the sensible gentleman from Worcester, (Mr. Knowlton). I supposed it was settled, that is was bad policy to combine two branches of the government, the executive and the legislative. If we vote to have judges appointed by the governor, that will amount to an additional necessity for a Council, and that body is a thousand times more adapted to the duties of a confirming body, than the Senate.

The Senate, as a confirming body, would be liable to all the objections which are urged against popular elections of the people; because it is a political body, and their actions upon such questions would be determined politically. The Council, as a body, may be political in its character; but it is not so likely to be guided by political considerations in its action. That is the difference

between the two bodies. The Council can find out what the Senate never can find out; and, of course, as a confirming body, it is far better and more convenient. By maintaining the present system, we do not trample upon the great principle we have adopted: that no two departments of the government shall, jointly, exercise political power. I hope that the amendment of the gentleman from Fall River, (Mr. Hooper,) may be adopted, and I trust we shall vote to elect judges by the people. I wish to offer one suggestion here, in regard to what has been the tenor of the argument upon the other side. It has been held for a positive fact by all the lawyers who have spoken on that side-who may be supposed to know their own kin in the profession better than I do that they are the most corrupt and selfish men in the community; men who cannot be trusted for a day, unless you give them offices for life. I do not mean any impertinence or any disrespect by suggesting that it seems to be taken for granted that they would be always ready to "kiss the hand that feeds them." The gentleman from Boston, (Mr. Hillard,) has informed us that if the term of the office of judge should be limited, and the election given to the people, the latter would be likely to select for judges a pack of mean and abject wretches, who would, in order to gain a reëlection, fail to discharge their duties faithfully, and violate their oaths. I desire to know if that was not the whole tenor of the gentleman's argument, from the beginning to the end, and if he did not proceed upon the assumption, all through, that a man who does not hold office for life, would, necessarily, become corrupt? I do not believe any such thing. I know how men will stoop, and how their judgments are apt to be warped in view of four-pence-half-pennies; but men placed in responsible public positions, lose a great portion of that weakness. It may be illustrated by the case of a man, who, hearing of some great crime committed, says, at once, and in the first excitement: "He ought to be hung, and if I was on the jury, I would hang him;" but put the responsibility of that office upon him, and he changes his tone immediately. I believe that this would be the effect in the case of judges. The gentleman for Otis, (Mr. Sumner,) was in favor of limiting the tenure of office, but he wanted it so long that a man, in many cases, would die before he would ever reach it. He might have as well put it at fifty as fifteen years. Such a tenure is good for nothing. Some gentlemen advocate the plan of electing judges by the people, if you will give them a life tenure; but what difference does it make whether they are elected, or appointed, if that is to be the tenure? The governor of Massachusetts can appoint, or the people can elect, good judges; but the whole argument against the people electing judges is entirely opposed to the form of government which we have adopted. The Convention have settled that the governor is not to be intrusted to appoint the least responsible and important officers; but here it is proposed that he is fit to be intrusted with the appointment of the judges, an office affecting the interests and honor of the people more than that of any other in the State. I do not understand such doctrine to be democratic doctrine. Thomas Jefferson was in favor of electing judges by the people; but men who are supposed to wear his mantle, preach a very different doctrine. But they do not quote or imitate him much nowa

[July 21st.

days. What would Thomas Jefferson's bones do if they could hear all this talk about compromise? [Laughter.] But of that I have not time to speak. The party to which I belong do not care anything about names; but it is the thing at which they look. When we support a compromise, you may be sure it will be one that has no villainy in it like that indorsed by the Baltimore Conventions. [Here the hammer fell.]

The hour of eleven o'clock, fixed by special assignment for taking the vote, having arrived,

Mr. HOOPER, of Fall River, moved to modify his amendment, so that the second resolve would read as follows:

Resolved, That it is expedient so to revise the Constitution as to require that provision shall be made, by law, for the election of all the judges and justices of inferior courts for a term of years.

The yeas and nays having been ordered on Mr. Hooper's amendment yesterday, the question was then taken, and there were-yeas, 150; nays, 236-as follows:

YEAS.

Griswold, Whiting Hapgood, Lyman W. Hawkes, Stephen E. Hazewell, Charles C. Heath, Ezra 2d, Hewes, William H. Holder, Nathaniel Hood, George Hooper Foster Hoyt, Henry K. Hunt, Charles E. Huntington, Charles P. Hyde, Benjamin D. Ide, Abijah M., Jr. Jacobs, John Keyes, Edward L. Kingman, Josepli Knowlton, J. S. C. Knowlton, William H. Knox, Albert Langdon, Wilber C. Lawrence, Luther Lawton, Job G., Jr. Leland, Alden Lincoln, Abishai Little, Otis Loomis, E. Justin Mason, Charles

Merritt, Simeon

Monroe, James L.

Moore, James M. Morss, Joseph B. Morton, William S. Nash, Hiram Nayson, Jonathan Newman, Charles Nute, Andrew T. Orne, Benjamin S. Osgood, Charles Packer, E. Wing Paine, Benjamin Parris, Jonathan Partridge, John Perkins, Daniel A. Perkins, Noah C. Phelps, Charles Pierce, Henry Pool, James M. Powers, Peter Rawson, Silas Richardson, Daniel Richardson, Nathan Ring, Elkanah, Jr. Jr. Rogers, John Ross, David, S. Royce, James C. Sanderson, Amasa

ABSENT.

Harmon, Phineas
Haskell, George

Huntington, George H.
Kellogg, Martin R.

Banks, Nathaniel P., Jr. Lord, Otis P.

Payson, Thomas E.

Perkins, Jonathan C.
Prince, F. O.
Putnam, John A.

Sherman, Charles

Stutson, William

Swain, Alanson

Tower, Ephraim Wallace, Frederick T. Wilkinson, Ezra Woods, Josiah B.

Absent and not voting, 33.

So the amendment was not adopted. Mr. DAVIS, of Plymouth, moved to amend by striking out the word " Senate," in the fifth line of Mr. Knowlton's amendment, and insert in lieu thereof the word "Council;" and also by striking out the words "for the purpose of such confirmation, the governor shall have the power to convene the Senate, from time to time, at his discretion;" so that it would read as follows:

Resolved, That it is expedient so to amend the

Constitution that all judicial officers, except those concerning whom a different provision shall be made in the Constitution, shall be nominated and appointed by the governor, by and with the consent of the Council, for the term of seven years; that they may be reappointed at the expiration of such term, and that all such nominations shall be made and publicly announced, at least seven days before such appointment.

Mr. CROWNINSHIELD asked for a division of the question.

The PRESIDENT. The question will first be taken upon striking out the word "Senate," and inserting the word "Council."

The question was taken, and the motion was agreed to-ayes, 213; noes, 78.

The PRESIDENT. The question now recurs upon the motion of the gentleman from Plymouth, (Mr. Davis,) to strike out the following words: "and for the purpose of such confirmation, the governor shall have the power to convene the Senate, from time to time, at his discretion."

The question was taken upon the amendment, and it was agreed to.

Mr. ALVORD, for Montague, moved to amend the amendment, by adding the following words: "and the judges now in office shall hold their offices according to their commission."

The question was taken on the amendment, and it was agreed to.

Mr. HUNTINGTON, of Northampton, moved to strike out the word "seven," in the fifth line, and insert, in lieu thereof, the word "ten."

The question was taken upon the amendment, and it was rejected-ayes, 163; noes, 180.

Mr. HALLETT, for Wilbraham, moved to amend by inserting in the first line, after the word "that," the following words: "from and after seven years from the adoption of this amendment."

Mr. MORTON, of Andover. I move to amend the amendment of the gentleman from Worcester, by striking out the word "seven," and inserting

the word "ten."

Mr. BREED, of Lynn. I ask for the yeas and nays on that question.

The yeas and nays were not ordered.

Mr. BUTLER, of Lowell. After the motion to strike out "seven" has been disposed of, can the motion be renewed by simply adding a word to be inserted?

The PRESIDENT. The Chair is of opinion that such motion is in order.

The question was taken, and, on a division, there were-ayes, 186; noes, 173.

So the amendment was adopted.

Mr. STEVENSON, of Boston, moved to amend the amendment, by inserting, in the third line, after the word "Constitution," the words, "and the justices of the supreme judicial court."

Mr. HALLETT. I suppose the gentleman understands, and intends that we shall understand, that an invidious distinction is to be created between different classes of justices.

The question was taken on the amendment, and it was rejected.

The question then recurred on the adoption of the amendment of the gentleman from Worcester, as amended, which is as follows:

Resolved, That it is expedient so to amend the Constitution that all judicial officers, except those concerning whom a different provision shall be made in the Constitution, shall be nominated and appointed by the Governor, by and with the con

Thursday,]

Giles, Charles G.
Gooch, Daniel W.
Gooding, Leonard
Graves, John W.
Green, Jabez
Greene, William B.
Griswold, Josiah W.
Griswold, Whiting
Hadley, Samuel P.
Hallett, B. F.
Hapgood, Lyman W.
Hapgood, Seth
Haskins, William
Hawkes, Stephen E.
Hayden, Isaac
Hazewell, Charles C.
Heath, Ezra, 2d
Hewes, William H.
Hobart, Henry
Holder, Nathaniel

Bradford, William J. A. Hood, George

Breed, Hirm N.

Bronson, Asa

Brown, Adolphus F.
Brown, Alpheus R.
Brown, Artemas
Brown, Hammond
Brownell, Frederick
Brownell, Joseph
Bryant, Patrick

Buck, Asahel

Burlingame, Anson

Butler, Benjamin F.
Case, Isaac

Childs, Josiah

Clark, Henry

Clark, Ransom Clarke, Alpheus B. Clarke, Stillman Cleverly, William Cole, Sumner Crane, George B. Cressy, Oliver S. Cross, Joseph W. Cushman, Henry W. Cushman, Thomas Davis, Ebenezer Davis, Isaac Davis, Robert T. Day, Gilman Dean, Silas Denton, Augustus Duncan, Samuel Dunham, Bradish Earle, John M. Easland, Peter Eaton, Calvin D. Edwards, Elisha Ely, Joseph M. Fellows, James K. Fisk, Lyman Fitch, Ezekiel W. Foster, Abram Freeman, James M. French, Charles A. French, Rodney French, Samuel Frothirgham, R'd, Jr. Gardner, Johnson

Hooper, Foster

Howard, Martin Hoyt, Henry K. Hunt, Charles E. Hurlbut, Moses C. Hyde, Benjamin D. Ide, Abijah M., Jr. Jacobs, John Keyes, Edward L. Kimball, Joseph Kingman, Joseph Knight, Hiram Knight, Jefferson Knowlton, J. S. C. Knowlton, William H. Knox, Albert Ladd, Gardner P. Langdon, Wilber C. Lawrence, Luther Leland, Alden Little, Otis Loomis, E. Justin Mason, Charles Merritt, Simcon Monroe, James L. Moore, James M. Morton, Elbridge G. Morton, William S. Nayson, Jonathan Newman, Charles Nichols, William Nute, Andrew T. Osgood, Charles Packer, E. Wing Paine, Benjamin Parris, Jonathan Partridge, John Peabody, Nathaniel Penniman, John Perkins, Daniel A. Perkins, Noah C. Phelps, Charles Phinney, Sylvanus B. Pierce, Henry Pool, James M. Powers, Peter Putnam, John A. Rawson, Silas

Adams, Benjamin P.
Aldrich, P. Emory
Allen, Joel C.
Alley, John B.
Andrews, Robert
Aspinwall, William
Atwood, David C.
Ayres, Samuel
Barrows, Joseph
Bartlett, Sidney
Beach, Erasmus D.
Beal, John
Beebe, James M.
Bell, Luther V.
Bennett, Zephaniah
Bigelow, Jacob
Blagden, George W.
Bliss, Gad O.
Boutwell, George S.
Braman, Milton P.
Brewster, Osmyn
Brinley, Francis
Briggs, George N.
Brown, Hiram C.
Bullock, Rufus
Bumpus, Cephas C.
Cady, Henry
Carter, Timothy W.
Chandler, Amariah
Chapin, Chester W.
Chapin, Daniel E.
Chapin, Henry
Choate, Rufus
Churchill, J. McKean
Coggin, Jacob
Cogswell, Nathaniel
Cole, Lansing J.
Conkey, Ithamar
Cook, Charles E.
Cooledge, Henry F.
Copeland, Benjamin F.
Crittenden, Simeon
Crockett, George W.
Crosby, Leander
Crowell, Seth
Crowninshield, F. B.
Cummings, Joseph
Cutler, Simeon N.
Dana, Richard H., Jr.
Davis, Charles G.
Davis, John
Davis, Solomon
Dawes, Henry L.
Dehon, William
Deming, Elijah S.
Dennison, Hiram S.
Dorman, Moses
Eames, Philip
Easton, James, 2d

Edwards, Samuel
Ely, Homer
Eustis, William T.
Farwell, A. G.
Fay, Sullivan
Fiske, Emery
Foster, Aaron
Fowle, Samuel
Fowler, Samuel P.
French, Charles H.
Gale, Luther
Gardner, Henry J.
Gates, Elbridge
Gilbert, Wanton C.
Gilbert, Washington
Giles, Joel
Gould, Robert
Goulding, Dalton
Goulding, Jason
Gray, John C.
Greenleaf, Simon
Hale, Artemas
Hale, Nathan
Hammond, A. B.
Hathaway, Elnathan P.
Hayward, George
Heard, Charles
Henry, Samuel
Hersey, Henry
Hewes, James
Heywood, Levi
Hillard, George S.
Hinsdale, William
Hobart, Aaron
Hobbs, Edwin
Hopkinson, Thomas
Houghton, Samuel
Howland, Abraham H.
Hubbard, William J.
Hunt, William
Huntington, Asahel
Huntington, Charles P.
Hurlburt, Samuel A.
Jackson, Samuel
James, William
Jenkins, John
Jenks, Samuel H.
Johnson, John
Kellogg, Giles C.
Kendall, Isaac
Kinsman, Henry W.
Knight, Joseph
Knowlton, Charles L.
Kuhn, George H.
Ladd, John S.
Lawton, Job G., Jr.
Lincoln, Abishai
Lincoln, Fred. W., Jr.
Littlefield, Tristram

Livermore, Isaac
Lord, Otis P.
Lothrop, Samuel K.
Loud, Samuel P.
Lowell, John A.
Marcy, Laban
Marvin, Abijah P.
Marvin, Theophilus R.
Meader, Reuben
Miller, Seth, Jr.
Mixter, Samuel
Morey, George
Morss, Joseph B.
Morton, Marcus
Morton, Marcus, Jr.
Norton, Alfred
Noyes, Daniel
Ober, Joseph E.
Oliver, Henry K.
Orcutt, Nathan
Orne, Benjamin S.
Paige, James W.
Park, John G.
Parker, Adolphus G.
Parker, Joel
Parker, Samuel D.
Parsons, Samuel C.
Parsons, Thomas A.
Peabody, George
Pease, Jeremiah, Jr.
Perkins, Jesse
Plunkett, William C.
Pomroy, Jeremian

[July 21st.

Richards, Luther
Ring, Elkanah, Jr.
Rockwell, Julius
Rockwood, Joseph M.
Sampson, George R.
Sargent, John
Schouler, William
Sikes, Chester
Sleeper, John S.
Souther, John
Stetson, Caleb
Stevens, Charles G.
Stevenson, J. Thomas
Storrow, Charles S.
Sumner, Increase
Taber, Isaac C.
Talbot, Thomas
Taylor, Ralph

Tileston, Edmund P.
Tilton, Horatio W.
Train, Charles R.
Turner, David
Tyler, John S.
Upham, Charles W.
Upton, George B.
Walcott, Samuel B.
Wales, Bradford L.
Wallace, Frederick T.
Walker, Samuel
Weeks, Cyrus
Wetmore, Thomas
Wheeler, William F.
White, Benjamin
Wilder, Joel
Wilkins, John H.
Williams, Henry
Wilson, Milo
Winn, Jonathan B.

Absent and not voting, 36.

So the motion to reconsider was rejected.

Mr. HOOPER, of Fall River. I move to amend the amendment by adding at the end, the following:

Provided, That no judge shall continue to hold office after he shall have arrived at the age of seventy years.

Mr. ALLEN, of Worcester. I wish to make the inquiry whether that will apply to the judges now in office, so as to remove the present chief justice from the bench?

Mr. WHITNEY, of Conway. I move to amend the amendment by inserting after the word "judge," the words "hereafter to be appointed."

Mr. HOOPER. I accept that modification. The question was taken on the amendment, and on a division, there were-ayes, 158; noes, 154.

So the amendment was agreed to.

Mr. HALLETT, for Wilbraham. I move to amend by adding, after the words "all such nominations shall be made," the words "and officially publicly announced."

The amendment was agreed to.

Mr. ALLEN. As the vote was small, comparatively, by which the amendment of the gentleman from Fall River was adopted, to test the sense of the Convention upon the question of changing the tenure of the judicial office from seventy to seventy-five years, I move a reconsideration of that vote.

The question was taken, and on a division, there were-ayes, 168; noes, 162.

So the motion to reconsider was agreed to. I move to Mr. THOMAS, of Weymouth. amend by inserting eighty instead of seventy. The PRESIDENT. The motion is not in order.

Mr. ALLEN. I cannot give the reasons for wishing to substitute seventy-five, but I ask the gentleman from Fall River if he will not accept that modification.

Mr. HOOPER. I suppose the question has been decided by the last vote; but I will accept of that modification with the striking out of the words "hereafter appointed."

Mr. KEYES, for Abington. I know not how the gentleman from Fall River presumes that the question has been decided as he says, in one way more than in another. The Convention may turn two or three more somersets.

The question recurred on the adoption of the amendment offered by Mr. Hooper, of Fall River, and on a division, there were-ayes, 160; noes, 168.

So the amendment was rejected. Mr. ALLEN. I now move to amend the same amendment, substituting "seventy-five in the place of the word "seventy" as the limit of the tenure of the judges.

Mr. THOMAS, of Weymouth. Is the amendment which I proposed, in order.

The PRESIDENT. It is not.

Mr. BUTLER. I rise to a question of order. In filling up amendments with numbers, is it not necessary to have the highest number which is proposed, put first? When a gentleman moves seventy-five, is it not in order for another gentleman to move to insert eighty, or for me to move one hundred? And must not the question be taken on the longest time first?

The PRESIDENT. The Chair is of opinion that it is not in order, and that the motion of the gentleman from Worcester is in order.

Mr. HALLETT. I would like to make the inquiry, whether it is not out of order to propose to have a judge hold his office beyond the years allotted to man in the Scripture ? ter.]

[Laugh

Mr. KEYES, for Abington. Inasmuch as no amendment can now be offered, I propose, if this amendment is adopted, to offer an amendment inserting the words "one hundred and fifty." [Laughter.] It is known that Dr. Parr lived to that age or more, and perhaps some of our judges may,

The question was taken on the amendment of the gentleman from Worcester, and it was not agreed to.

Mr. THOMAS, of Weymouth. I now move to strike out seventy-five and insert the word eighty."

The question was taken, and the amendment was rejected.

Mr. STETSON, of Braintree, moved to amend the resolution so that no judge should continue to hold office after he shall have arrived at the age of seventy-two years.

The motion was not agreed to.

Mr. DANA moved to amend the resolution by adding the following words :

Provided that no judge shall continue to hold office after he shall have arrived at the age of seventy-five years.

Mr. BUTLER inquired whether that amendment applied to the present judges, or those which should be hereafter appointed.

Mr. DANA said that it was intended to cover both classes of judges.

Mr. KINSMAN, of Newburyport. I would inquire of the Chair, whether the Convention have not already passed upon this subject, by a previous vote that judges shall continue in office according to their present commissions? If that is the case, it seems to me that the gentleman for Manchester cannot attain his object unless he moves a reconsideration of that vote.

The PRESIDENT. The Chair will state the question. The resolution closes with the following words: "they may be reappointed at the expiration of such terin, and that all such nominations shall be made and publicly announced at least seven days before such appointment; and the judges now in office shall hold their offices according to their commissions: provided, that no judge shall continue to hold office after he shall have arrived at the age of seventy-five years." The Chair is of the opinion that the motion made by the delegate for Manchester is in order.

Mr. CHAPIN, of Worcester. I would like to ask, if our best judge now upon the bench has not already attained that age?

Mr. DANA. He is only seventy-two. The question being then taken on the amendment of Mr. Dana, on a division there wereayes, 102; noes, 193-so it was not agreed to.

Mr. GOOCH, of Melrose, moved to amend the resolution by striking out the words "according to their commissions," and inserting in lieu thereof the words "for ten years from the adoption of this amendment."

The PRESIDENT ruled the amendment out of order.

Mr. GOOCH. If my amendment is not in order in its present shape, I move to reconsider the vote by which the amendment of the gentleman from Montague was adopted by the Convention, in order that I may move this amendment.

The question being then taken on reconsidering the vote by which the following words were adopted, viz.: "and the judges now in office shall hold their offices according to their commissions," it was not agreed to.

The question then recurred on striking out the whole of the fourth resolution, and substituting therefor the amendment of Mr. Knowlton, as amended by the Convention; and the question being then taken by yeas and nays, resultedyeas, 200; nays, 164-as follows:

Bates, Eliakim A.
Bates, Moses, Jr.
Beal, John
Bennett, William, Jr.
Bennett, Zephaniah
Bigelow, Edward B.
Booth, William S.
Boutwell, George S.
Boutwell, Sewell

[July 21st.

Hobbs, Edwin
Hooper, Foster
Howard, Martin
Howland, Abraham H.
Hunt, Charles E.
Huntington, Charles P,
Hurlbut, Moses C.
Hyde, Benjamin D.
Ide, Abijah M., Jr.

Bradford, William J. A Jacobs, John
Bronson, Asa

Brown, Adolphus F.
Brown, Artemas
Brown, Hammond
Brownell, Frederick
Brownell, Joseph
Bryant, Patrick
Buck, Asahel
Cady, Henry
Case, Isaac
Chapin, Daniel E.
Childs, Josiah
Clark, Henry
Clark, Ransom
Clarke, Stillman
Cleverly, William
Cooledge, Henry F.
Crane, George B.
Cressy, Oliver S.
Crittenden, Simeon
Cross, Joseph W.
Cushman, Henry W.
Cushman, Thomas
Cutler, Simeon N.
Davis, Charles G.
Davis, Isaac
Davis, Robert T.
Day, Gilman
Dean, Silas
Deming, Elijah S.
Denton, Augustus
Duncan, Samuel
Dunham, Bradish
Eames, Philip
Earle, John M.
Easland, Peter
Easton, James, 2d
Eaton, Calvin D.
Edwards, Elisha
Edwards, Samuel
Ely, Joseph M.
Fay, Sullivan
Fellows, James K.
Fisk, Lyman
Fiske, Emery
Fitch, Ezekiel W.
Foster, Aaron
Foster, Abram
Fowle, Samuel
Freeman, James M.
French, Rodney
French, Samuel
Frothingham, R., Jr.
Gale, Luther
Gardner, Johnson
Giles, Charles G.
Giles, Joel
Gooch, Daniel W.
Gooding, Leonard
Graves, John W.
Green, Jabez
Greene, William B.
Griswold, Josiah W.
Griswold, Whiting
Hadley, Samuel P.
Hallett, B. F.
Hapgood, Lyman W.
Hapgood, Seth
Haskins, William
Hathaway, Elnathan
Hayden, Isaac
Hazewell, Charles C.
Heath, Ezra, 2d
Hewes, James
Hewes, William H.
Hobart, Aaron
Hobart, Henry

Johnson, John

Keyes, Edward L.
Kimball, Joseph
Kingman, Joseph
Knight, Hiram
Knight, Jefferson
Knowlton, Charles L.
Knowlton, J. S. C.
Knowlton, William H.
Knox, Albert
Ladd, Gardner P.
Lawrence, Luther
Lawton, Job G., Jr.
Leland, Alden
Lincoln, Abishai
Little, Otis

Littlefield, Tristram
Loomis, E. Justin
Marble, William P.
Marvin, Abijah P.
Mason, Charles
Meader, Reuben
Merritt, Simeon
Monroe, James L.
Moore, James M.
Morton, Elbridge G.
Morton, Marcus, Jr.
Morton, William S.
Nash, Hiram
Newman, Charles
Nichols, William
Orne, Benjamin S.
Osgood, Charles
Packer, E. Wing
Paine, Benjamin
Parris, Jonathan
Parsons, Samuel C.
Partridge, John
Peabody, Nathaniel
Penniman, John
Perkins, Daniel A.
Perkins, Noah C.
Phelps, Charles
Phinney, Silvanus B.
Pierce, Henry
Pool, James M.
Powers, Peter
Putnam, John A.
Rice, David
Richardson, Daniel
Richardson, Nathan
Richardson, Samuel H.
Ring, Elkanah, Jr.
Rockwood, Joseph
Rogers, John
Ross, David S.
Sanderson, Amasa
Sheldon, Luther
Simonds, John W.
Smith, Matthew
Sprague, Melzar
Spooner, Samuel W.
Stacy, Eben H.
Stetson, Caleb
Stevens, Granville
Stiles, Gideon
Sumner, Charles
Sumner, Increase
Taft, Arnold
P. Thayer, Joseph

Thayer, Willard, 2d
Thomas, John W.
Thompson, Charles
Tilton, Abraham
Tilton, Horatio W.
Turner, David P.
Underwood, Orison