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come from the gentleman for Wilbraham; I should have much preferred that it had originated in some other quarter, and I trust that this Convention will not fix upon the town of Wilbraham the disgrace of having originated an amendment to the Constitution of this character, to be acted upon by the people of the Commonwealth. Mr. HALLETT. The gentleman from Webster has done me great honor in his remarks, and I thank him for his compliments. I will show him, however, that I know his town as well or better than he does himself, and that it is, moreover, one of the most liberal towns in the Commonwealth. To convince him of this, I will call to his mind a single fact in its history.

In 1741, it was undertaken to form a church in Wilbraham, and the reverend ecclesiastics came from Springfield for the purpose of founding it according to the ecclesiastical rules of the Westminster platform, or whatever platform they had at that day, which required seven persons to make a church, and they had not but six on whom they could rely for this purpose. What to do they did not know, until at last the expedient was hit upon, to go out in the streets and seize the first man whom they met. They accordingly did so, and found one David Warner walking along, and, without stopping to inquire what was his creed or belief, or whether he had any at all, they carried him off and made him join the church, to make up the odd number which was required. [Laughter.]

Now I propose to do the very same thing in regard to the people of this Commonwealth. I desire that they may go into our great State church, without being particularly questioned in reference to these nice points of faith. I would treat every man as David Warner was treated; and, if I stand well here in other respects, I am confident that that generous constituency who said, when they sent me here, in a letter which I hold in my possession, "that they gave me no other instructions, than to do that which my conscience directed me," will sustain me in whatever course I may pursue. At any rate, whether or not I stand well before my constituents, in advocating religious freedom, I know I stand well before my God.

Mr. PLUNKETT, of Adams. I am not going to detain the Convention by any lengthy remarks, but I merely rose to express my disagreement and opposition to this amendment. I feel that it will not be safe, and my impressions are strengthened by reading the words of one whom every-body revered the words of George Washington. He says:

"Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked, where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national

morality can prevail in exclusion of religious principles."

Comment on this is unnecessary; it cannot fail to have its effect upon the minds of those who are in doubt upon the subject, and it may possibly lead those who have become fixed in their determination in favor of this amendment, to look at it in a different and more rational manner.

Mr. ABBOTT, of Lowell. Without intending to detain the Convention, I desire to say a single word upon the point raised, as to whether the adoption of this resolution would prevent the courts from deciding, or the legislature from enacting, a law that an Atheist might testify in courts of justice. I do not care what my friend for Wilbraham may say upon the subject, but I do not believe for a moment that he will risk his legal reputation by saying that the adoption of such a provision will have the slightest effect upon that question. I think that the criticism of the gentleman from Boston, so far as this matter is concerned, is perfect. It is by no means a privilege, that men are allowed to testify. No man can go into court and say, Here I am, gentlemen of the jury, I want to testify," but he is obliged to go there-it is his duty, and not a privilege.

In regard to the matter under consideration, I believe there is nothing which would, in the slightest degree, interfere with the passage of this provision which has been reported by the Committee. Nor do I believe that it would affect the question, whether a man should be permitted to testify who did not believe in a Supreme Being; for how can it be said that because you do not allow a man to testify on account of his disbelief in a Supreme Being, you restrain him in his perhis liberty, or estate? Besides, the matter has been already passed upon by the supreme court of this State.

son,

I have made these remarks because I desire that no man may be prevented from voting for this resolution from any supposition that it will affect his religious belief. I am free to say, and will not attempt to disguise it, that if I believed for a moment that this would be the effect of it, whether it is progressive or not, whether it is a work of reform or not, I would cut my right hand off before I would vote for such a proposition.

The question was then taken upon the adoption of the Report of the minority of the Committee, and upon a division-ayes, 121; noes, 168-it was decided in the negative.

So the Report was rejected.

Mr. HALLETT moved a reconsideration of the vote which had just been taken.

Mr. LORD, of Salem. Before the question is taken on that motion, I wish that the gentleman for Wilbraham would answer my inquiry. [Laughter.]

The question being taken on the motion to reconsider, it was decided in the negative.

The Committee of the Whole then proceeded to consider the Minority Report of the same Committee, on the subject of

Law Martial.

The report was read, as follows:--

COMMONWEALTH OF MASSACHUSETTS. In Convention, July 18, 1853. The undersigned, a minority of the same Committee, also report.

[July 26th.

To strike out from the 28th article of the Bill of Rights the words "but by the authority of the legislature."

So it will read, if amended,

No person can in any case be subjected to law martial, or to any penalties or pains by virtue of that law, except those employed in the army or navy, and except the militia in actual service.

B. F. HALLett.
L. MARCY.
H. WILLIAMS.

Mr. HALLETT. As this is a matter which is strictly legal in its character, I desire very briefly to explain the purpose of the Committee in making that Report. The Constitution of 1780 was adopted during the revolutionary war; our peace took place in 1783. At that time it was as a law of the camp, deemed necessary to have what is called the power of "martial law," or the law martial," and it was accordingly inserted in the Bill of Rights rather as a limitation then, than as a power granted, that "no person can in any case be subjected to law martial, or to any penalties or pains by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the legislature."

66

It will be recollected that at one period during the revolutionary war, Gen. Gage proclaimed martial law in the city of Boston, and the inhabitants were smarting under the recollection of the violence and wrong committed under this law, because, as Blackstone says, martial law is the absence of all law. It was, therefore, provided in the Constitution which was framed in 1780, for the purpose of securing a greater degree of protection to the people, that that law should not be put in force except by the consent of the legislature. Now, when the State of Massachusetts came into the Union, and the Constitution of the United States recognized the military power as belonging to the United States, Massachusetts conceded that the power of martial law in the Commonwealth became entirely incident to the camp. So that as the present Constitution stands, this clause is wholly unmeaning, and is with but little or no force, except that in certain cases it is giving to the legislature a great, an alarming, and a despotic military power, which, if they choose to exercise, might result in a reign of terror, and in the most disastrous and pernicious consequences. I do not apprehend that they ever will exercise it; it is quite certain they never have excrcised it; and even during that stormy and remarkable period known as Shay's Rebellion, when judges were turned out of their courts, there was no resort to "martial law." But yet I am opposed; and it seems to me all who mean to restrain despotic power, should be opposed, upon principle, to allowing that power to remain; and I hope we shall now take the necessary steps to remove it. If gentlemen have made up their minds in regard to this subject, I have nothing farther to say; but if they have not, and as they ought to vote upon this question understandingly, I wish they would give me their attention for a few moments, and see whether or not this change which is proposed, is proper to be made.

Now, the first question which arises is, "what is martial law?" And here let me say that it is entirely different from "military law," and this is a fact which I wish military gentlemen to

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understand. It has no identity whatever with the courts martial held in the militia, or the navy and army. And the amendment which has been proposed by the minority of the Committee, leaves the matter so that no person can in any case be subjected to "martial law," except those employed in the army or navy, and except the militia in actual service. That is the only time when a martial law is required, and then it is the martial law of the camp-that law which General Jackson, in a great and overwhelming emergency, proclaimed at New Orleans; and yet, as the martial law of the camp, it left offenders in civil matters subject to all the penalties of civil law for any violation of civil rights. Now under the Massachusetts Constitution, as it stands at present, the legislature may pass what is called a territorial martial law, and may thus declare the whole territory of Massachusetts under such law; and this extends all over the State, and stops all civil remedies. To show what martial law is, I read from the seventh of Howard's United States Reports, (Luther vs. Borden,) where this subject is very deliberately considered by Judge Woodbury; and I am sure that no gentleman who will attentively read this opinion of that very learned judge, as it is here reported, will hesitate, for one moment, about striking out this authority given to the legislature to pass such a monstrous law, or rather a power to abolish all laws except those of a military despotism. He says :—

"How different in its essence and forms, as well as subjects, from the articles of war was the 'martial law' established here over the whole people of Rhode Island, may be seen by adverting to its character for a moment, as described in judicial as well as political history. It exposed the whole population not only to be seized without warrant or oath, and their houses broken open and rifled, and this where the municipal law and its officers and courts remained undisturbed and able to punish all offences, but to send prisoners, thus summarily arrested, in a civil strife, to all the harsh pains and penalties of courts martial, or extraordinary commissions, and for all kinds of supposed offences. By it, every citizen, instead of reposing under the shield of known and fixed law, as to his liberty, property, and life, exists with a rope round his neck subject to be hung up by a military despot at the next lamp-post, under the sentence of some drum-head court martial. (See Simmons's Practice of Courts Martial, 40.) See such a trial in Hough on Courts Martial, 383, where the victim on the spot was blown away by a gun,' 'neither time, place, nor persons considered.' As an illustration how the passage of such a law may be abused, Queen Mary put it in force in 1558, by proclamation merely, and declared that whosoever had in his possession any heretical, treasonable, or seditious books, and did not presently burn them, without reading them or showing them to any other person, should be esteemed a rebel, and without any farther delay be executed by the martial law.' (Tyler on Military Law, p. 50, chap. 1, sec. 1.)

"For convincing reasons like these, in every country which makes any claim to political or civil liberty, martial law as here attempted, and as once proclaimed in England, against her own people, has been expressly forbidden there, for near two centuries, as well as by the principles of every other free constitutional government.' (1 Hallam's Court Hist. 420.) And it would not be a little extraordinary, if the spirit of our institutions, both State and National, was not much stronger than in England against the unlimited exercise of martial law over a whole people, whether attempted by any chief magistrate, or even by a legislature."

This is the definition of martial law, by Judge Woodbury, and it shows the dangerous power which the Constitution places in the hands of the legislature. I hope that the amendment of the Committee will be adopted, and that we shall strike out that power to declare martial law over the whole people and territory of this Commonwealth.

The question was then taken on agreeing to the Report of the Committee, and it was decided in the affirmative.

The next question to be considered in Committee of the Whole, was the following Report of the minority of the same Committee:

COMMONWEALTH OF MASSACHUSETTS. In Convention, July 18, 1853. The undersigned, a minority of the same Committee, also Report.

That there should be added to the fifteenth article of the Bill of Rights the following clause:

In all trials for criminal offences, the jury, after having received the instruction of the court, shall have the right in their verdict of guilty or not guilty, to determine the law and the facts of the case.

B. F. HALLETT.
ANSON BURLINGAME.
CHARLES SUMNER.
L. MARCY.
CHARLES ALLEN.
H. WILLIAMS.

The question being on the adoption of the above Report,

Mr. HILLARD, of Boston, said that as this was a very important question, and one which would require to be discussed at length, he desired that it should be taken up at a time when the members were in a more refreshed condition than at present. The question of enlarging the powers and increasing the rights of juries was one of the greatest importance, and he would submit whether it would not be better for the Committee to rise and report progress, and take up something which would not require so much consideration.

Mr. WILSON, of Natick. I move that the Committee rise, report progress, and ask leave to sit again.

The question being taken on agreeing to the motion, it was, upon a division-ayes, 118; noes, 39-decided in the affirmative.

The Committee accordingly rose, and by their chairman, Mr. Schouler, reported to

THE CONVENTION,

That they had had under consideration the several Minority Reports of the Committee on so much of the Constitution as relates to the Bill of Rights, and had rejected the first Report, adopted the second Report, and upon the third and last Report no action had been taken; and the Committee accordingly ask leave to sit again.

Leave was granted.

The question then being on concurring in the Report of the Committee of the Whole, it was decided in the affirmative.

Mr. BUTLER, of Lowell. I move that the Committee of the Whole be discharged from the farther consideration of the third Report.

Mr. SCHOULER. I hope that motion will prevail, as the matter can be considered in Convention just as well as in Committee.

The motion was agreed to.

[July 26th.

Mr. HALLETT, for Wilbraham. I move a reconsideration of the vote by which the Convention concurred in the Report of the Committee of the Whole, that the first Report of the minority be rejected, and upon that question I ask the yeas and nays.

Mr. LORD, of Salem. I would suggest to the gentleman representing Wilbraham, that it will be better to ask a division of the question now, and call for the yeas and nays upon the final

passage.

Mr. HALLETT. I merely desire to have some stage where the yeas and nays can be taken upon this question of religious freedom. I was not quite rapid enough to keep track of the movements of the Convention.

The PRESIDENT. By permission of the Convention the Chair will state that the question is on concurring with the Report of the Committee of the Whole that the first resolution ought not to pass.

Mr. HOLDER, of Lynn, asked for the yeas and nays.

The yeas and nays were ordered. The question then being taken on concurring in the Report of the Committee, it was decided in the affirmative by the following vote-yeas, 133; nays, 107.

Fowle, Samuel

YEAS.

Bradford, William J. A Nichols, William

Brown, Alpheus R.
Brown, Artemas
Bullen, Amos H.
Buinpus Cephas C.
Chapin, Chester W.
Choate, Rufus
Clark, Henry
Clarke, Stillman
Coggin, Jacob
Cook, Charles E.
Cooledge, Henry F.
Copeland, Benjamin F.
Crane, George B.
Cressy, Oliver S.
Crockett, George W.
Cummings, Joseph
Curtis, Wilber
Cushman, Henry W.
Cutler, Simeon Ñ.
Davis, Charles G.
Davis, Isaac
Davis, John
Davis, Robert T.
Dehon, William
Dorman, Moses
Easland, Peter
Eaton, Calvin D.
Eaton, Lilley
Farwell, A. G.
Fay, Sullivan
Fellows, James K.
Fisk, Lyman
Fiske, Emery
Fitch, Ezekiel W.
Fowler, Samuel P.
French, Charles H.
French, Rodney
Gardner, Henry J.
Gardner, Johnson
Gates, Elbridge
Gooding, Leonard
Gould, Robert
Graves, John W.
Greene, William B.
Greenleaf, Simon
Griswold, Whiting
Hadley, Samuel P.
Hall, Charles B.
Hapgood, Seth

Haskell, George

Loud, Samuel P.
Lowell, John A.
Marcy, Laban
Marvin, Abijah P.
Marvin, Theophilus R.
Meader, Reuben
Moore, James M.
Morss, Joseph B.
Morton, Elbridge G.
Morton, Marcus
Nash, Hiram
Nayson, Jonathan
Norton, Alfred
Ober, Joseph E.
Orne, Benjamin S.
Paige, James W.
Park, John G.
Parker, Samuel D.
Parris, Jonathan
Parsons, Samuel C.
Parsons, Thomas A.
Payson, Thomas E.
Peabody, George
Peabody, Nathaniel
Pease, Jeremiah, Jr.
Penniman, John
Perkins, Jesse
Perkins, Jonathan C.
Perkins, Noah C.
Powers, Peter
Prince, F. O.
Putnam, George
Putnam, John A.
Rantoul, Robert
Rice, David
Richardson, Nathan
Rockwell, Julius
Rockwood, Joseph M.
Rogers, John
Sampson, George R.
Sanderson, Chester
Sheldon, Luther
Sherman, Charles
Sherril, John
Simmons, Perez
Sleeper, John S.
Stacy, Eben H.

Stevens, Joseph L., Jr.
Stevenson, J. Thomas
Storrow, Charles S.

Hathaway, Elnathan P. Stutson, William

Hayden, Isaac

Heard, Charles

Heath, Ezra, 2d,

Henry, Samuel
Hewes, William H.
Heywood, Levi
Hobart, Aaron
Hood, George
Hooper, Foster
Hubbard, William J.
Huntington, Asahel
Huntington, George H.
Ide, Abijah M., Jr.
Jacobs, John
Jenks, Samuel H.
Kellogg, Martin R.
Keyes, Edward L.
Kimball, Joseph
Kingman, Joseph
Kinsman, Henry W.
Knowlton, Charles L.
Ladd, John S.
Lawrence, Luther
Lawton, Job G., Jr.
Leland, Alden
Lincoln, Abishai
Lord, Otis P.

Lothrop, Samuel K.

Taber, Isaac C.

Taylor, Ralph Thomas, John W. Tileston, Edmund P. Tilton, Abraham Tower, Ephraim Train, Charles R. Tyler, John S. Upham, Charles W. Upton, George B. Vinton, George A. Walcott, Samuel B. Walker, Samuel Ward, Andrew H. Warner, Marshal Whitney, Daniel S. Whitney, James S. Wilbur, Daniel Wilbur, Joseph Wilkins, John H. Wilkinson, Ezra Williams, Henry Winslow, Levi M. Wood, Nathaniel Wood, William H. Woods, Josiah B. Wright, Ezekiel

• Absent and not voting, 179.

So the Report was concurred in.

The next question being on ordering the amendment reported by the minority of the Committee, on the subject of martial law, to a second reading,

[July 26th.

Mr. DANA, for Manchester. The Convention will perceive that only three members of the thirteen who formed the Committee have signed this Minority Report, and the conclusion of course will be that the other ten had some reason for withholding their names. If gentlemen will turn to the twenty-eighth article of the Bill of Rights, they will find that it reads as follows:

"No person can in any case be subjected to law martial, or to any penalties or pains, by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the legislature."

It is proposed by the minority of this Committee to strike out the words "but by authority of the legislature." The question, of course, arises, what is the object of this amendment? The Committee which had the matter under consideration, did not think this a proper amendment to the Constitution, because we believed that it ought to be in the power of the Commonwealth to proclaim martial law whenever circumstances should render it necessary. We all hope and pray that it may never be needed, but the question is, whether there shall be vested in the legislature this power, to be used in case of any great emergency? For my own part, I can see no reason why we should strike out this clause from the Constitution. It has never been abused, and there is no danger that it ever will be; and I believe that we should therefore allow it to remain. The question is not whether martial law is necessary or unnecessary, but whether the power to proclaim it shall exist as it has heretofore existed in our Commonwealth. The fears of gentlemen will be allayed, by considering the process which must precede the declaration of martial law. The bill must pass the House of Representatives, then the Senate, and afterwards go to the hands of the governor and be signed or rejected by him. I cannot but think that if the Convention consider this subject more maturely, they will concur with the Committee.

Mr. HALLETT. The gentleman has not explained to the Convention, if I understood him, what martial law is; but he asks, is it possible that you will take from the legislature, who have so long held it, the power of proclaiming martial law? Now the question which we should ask ourselves is this: "Shall we, or shall we not, take from the legislature the power of abrogating all law, and proclaiming itself a dictator?" for, as Blackstone says, martial law is the abrogation of all law; it is putting territory under military authority. The gentleman says there may be a necessity for this. When it is so, it will be equally necessary for us to do as they did in the Roman Republic-proclaim a Dictator.

Mr. BUTLER, of Lowell. I am unwilling that this question shall be taken, without the fullest understanding of the subject; and in order that I may at least, present my views for the correction of other gentlemen, I will state a few words in regard to what I understand to be the principles of the subject under discussion. The question in dispute seems to be, whether or not the Convention are ready to say, that to the legislature shall be given the power at any time when it may best suit them, to take any citizen of this Commonwealth, however peaceably disposed, and without judge or jury, to try him, and hang him on the first tree! If you are ready for that, I am

Tuesday,]

willing to take my chance with the rest. [Laughter.] That is just the question which we are to decide upon. Martial law, as I understand it, is this that whenever either the legislature, or in some countries the general, chooses to proclaim martial law, from that moment the military chief is the only judge, the drum-head the only trial, and the provost-martial the only executioner. The gentleman for Manchester says, if a man is going to be hung, he may as well be hung by martial law, as by any other.

Mr. DANA. I beg pardon of the gentleman for interrupting him, but what I said was, that it was as well to be hung by martial law, as by no law.

Mr. BUTLER. I accept the amendment of the gentleman. Martial law then, is no law; it is the abrogation, as the gentleman for Wilbraham has said, of all law. Now, the moment a city gets to be a camp, we shall have martial law, and not before; and as such, the law martial may be proclaimed by the declaration of the commanding officer. But when so declared, it can only apply to the officers and soldiers under his command, and those who are in actual service and have consented to be governed by such a law, in any great emergency that may arise. Now, let me ask, what shall be done with five thousand insurrectionists, who may be disturbing the public peace, and laying waste the public property? Why, we will assail them, cut them off, destroy them, get them hanged, take them prisoners, and then, we will try them fairly and openly in our courts in as independent a manner as the lot of humanity will permit, before the judges whom my friend wanted to be elected for life.

Sir, I trust there is no lawyer in this body who is not sound in regard to the explanation of martial law; and as for myself, I am unwilling to have the power of proclaiming such a law placed in the hands of the legislature, except so far as it may affect those persons in actual service. Soldiers and sailors may be subject to martial law if they please; but I am unwilling that the little child, the infant in the cradle, the wife and the mother, shall come within its reach, to be hung up and whipped, to suit the capricious and brutal fancy of a second Haynau.

Mr. BRIGGS, of Pittsfield. I do not believe that in these days of progress and civilization, we stand in much danger of being hung up and whipped under a martial law, by a second Haynau, or anybody else. The experience of the past has shown that this power has never been brought into requisition, although at one period of our history, at the time of Shay's Rebellion, there was as much need for it perhaps, as there has ever been since, not excepting a recent crisis which arose, when the army and navy of the United States were directed to turn their attention towards this rebellious city. It is not impossible, however, that circumstances may arise in future, which will require martial law to be proclaimed in Massachusetts; but does any one doubt for a moment, that here, in this goodly Commonwealth, a proclamation will be made that all citizens from Boston Corner down to Hull shall cease to be under the civil law, and that every man, woman and child, shall be subject to a court martial for any charge brought against them? I do not believe that there is the remotest probability of such a state of things taking place; and therefore, I confess, though I have a great rever

ence for ancient things, I have no desire to see the martial law among the people. The history of our country presents but little encouragement to the continuation of such a law in our Constitution. It has seldom been proclaimed; I remember but a single instance, and that was in the city of New Orleans in the war of 1812; and I am sorry to say that there were transactions during that period which I wish, for the glory and renown of the individual who proclaimed it, could be expunged from the history of the country. That same individual said, that if Massachusetts had been within his military district, he would have hung every delegate. That is martial law; its process is summary; the trial is before a court martial, and not before a court of law; there is no great time spent in examining or cross-examining the witnesses, but the case, however important it may be, is brought to the most speedy termination. For these reasons, I think it would be entirely safe for this clause to be stricken out of the Constitution. As Burke once said, in speaking of the veto power in England, its preservation and repose may at some time result in great good. He said that that power for more than one hundred and thirty years had been unused, and its very repose had probably preserved the country. And so would I say in regard to this martial law, if there was the slightest probability that it would be the means of preserving the Constitution and the Commonwealth; but I do not believe there will ever be a need for it within the boundaries of our State; and I am, therefore, inclined to vote for the amendment of the Committee, and have the clause which provides for the proclaiming of the martial law by the legislature, stricken from the Constitution.

Mr. OLIVER, of Lawrence. I do not propose to occupy but a few moments in discussing this subject. I merely desire to say that I shall vote for the amendment which has been proposed by my friend for Wilbraham, on the part of the minority of the Committee, and I shall do so from the principle which has ever guided me, of endeavoring to keep everything of a military character distinctly subordinate to the civil power. As it has already been observed, the law martial travels with the military array, and wherever the military are, there, too, is this law. But the question is asked, if your law martial has reference only to the military, what shall be done with traitors who may be found inside the lines? I reply, they would be subject to arrest, but to arrest only; for they would not be tried by the law martial, but be turned over to the civil authorities, to be dealt with by them.

Mr. SCHOULER. I would inquire, if the civil authorities were on the side of the enemy, what would you do then; and who are to try such cases then?

Mr. OLIVER. I think that a case like the one supposed by my friend, could never occur. I do not believe that the circumstances could possibly happen, when the whole community who do not belong to the military organization, would be found to be traitors.

Mr. SCHOULER. My question was, what are you going to do in case the civil authorities are traitors?

Mr. OLIVER. I cannot inform the gentleman, for such a state of things is entirely beyond my comprehension. At any rate, I think the community will be perfectly safe if we

[July 26th.

omit this provision in the Constitution, as has been proposed by the Committee. Although I have been connected, for many years, with the militia of our State, I have a disrelish for anything which tends to place it in a prominent position; and, as I said before, I shall seek every opportunity of keeping it strictly subordinate to the civil law. For these reasons I shall vote for the amendment which has been proposed by the gentleman for Wilbraham.

Mr. SCHOULER. I do not suppose it is very probable that the circumstances will ever arise that will make it necessary for the martial law to be proclaimed; but still, I can conceive the possibility of such an exigency, and so long as this exigency exists, I am unwilling to have this clause stricken out. I do not believe that the legislature would ever exercise that power unless there was an urgent necessity for it, and then it would not by any means be so stringent in its operation as some gentlemen would make us suppose. We do not know what may happen in time, but at any rate, it is best we should be provided for any emergency that could arise. So long as there is no necessity for it, of course it will be a dead letter in the Constitution; but if the necessity should arise, we shall be provided for it. I am, therefore, opposed to the amendment which has been submitted by the Committee, and hope that it will not be adopted.

Mr. HALLETT, for Wilbraham. I do not feel that I can sit still after the allusion which has been made by the gentleman from Pittsfield, to the memory of one of the greatest men and patriots who ever lived in our country, without making some reply. Sir, I believe that that gentleman entirely mistook the character and conduct of General Andrew Jackson. That distinguished man, in his proclamation of martial law in the city of New Orleans, though he did it upon his own responsibility, saved his country and his country's honor at a moment when the legislature of Louisiana, assembled in New Orleans, were deliberating upon the propriety of surrendering that city to the enemy without striking a blow. He took this step, proclaimed martial law, and arrested that inglorious act. Yet, the gentleman says it was a stain upon his memory, and upon the history of the country! What, Sir, would have been the stain, if instead of the glorious victory which now graces our annals, we should have had a disgraceful defeat, and a surrender of our forces to Packenham? He took upon himself the responsibility, as a great man will ever do on a great occasion, and defended and saved his country's honor. And when that was accomplished, what did he do? He went into court, threw down his sword, and was tried for an infringement of the existing law. He paid his fine and passed out of the court, suppressing any attempts on the part of his friends who were there assembled, to interfere with that decision; because he well knew that it was the principle of his country to hold the military in subservience to the civil power. Time went on; party feeling passed away, and there now stands upon the records of the national legislature that act which refunded the fine which Andrew Jackson paid. That was the martial law then, and I ask, shall we allow to remain in our Constitution a provision which vests in the legislature alone the power of proclaiming the martial law. If necessary at all, give that power to the commanding officer; for

Wednesday,]

as Livingston, one of the ablest of political writers has said, whenever a General attempts to declare martial law upon his own responsibility, if he is successful, and protects his country, his country will protect him; and if he does violence and wrong, the laws will punish him. That is the only martial law I want to see in this free country.

Mr. GRAY, of Boston. I do not feel qualified to speak upon this question at length, because I do not know that I am aware of the precise distinction between the law martial and the military law; but I desire to refer to another part of the Constitution, which has not yet been adverted to. I find in chapter 6, article 7, the following clause :

The privilege and benefit of the writ of habeas corpus shall be enjoyed in this Commonwealth in the most free, easy, cheap, expeditious, and ample manner; and shall not be suspended by the legislature, except upon the most urgent and pressing occasions, and for a limited time, not exceeding twelve months."

Now, my question is this: If we say that the law martial ought not to be permanently established, ought we not likewise to say that this power of suspending the habeas corpus shall not be given to the legislature? If the legislature are allowed the power to suspend one of the greatest rights and priviliges of a citizen, ought not the same reasons to operate for the retention of the clause in question?

These are my views in regard to the subject, though I must confess my ignorance, as I said before, in regard to the merits of the question.

Mr. BATES, of Plymouth, demanded the previous question.

The demand for the previous question was sustained, and the main question ordered to be now put.

The question being on ordering the resolution reported by the Committee to a second reading, it was taken, and upon a division-ayes, 73; noes, 41-decided in the affirmative.

On motion by Mr. PLUNKETT, of Adams, the Convention then, at twenty-five minutes to seven o'clock, adjourned.

WEDNESDAY, July 27, 1853.

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

Prayer by the Chaplain.

The journal of yesterday was read.

Distribution of Books.

The order introduced yesterday, by the gentleman from New Braintree, (Mr. Mixter,) directing the distribution to the towns not represented of a copy to each of the new Constitution, and of the Journal of the Convention, and of that of 1820, was taken up for consideration.

Mr. MIXTER moved to modify the order by substituting the following:

Ordered, That each of the towns in this Commonwealth that have not sent a delegate to this Convention shall be entitled to receive one copy of Barnes's Constitutions of the United States, one copy of the Journal of the Massachusetts

Convention of 1820, and one copy of the Journal and Debates of this Convention.

Mr. MIXTER remarked that it had been suggested to him that the towns which are not represented here would not be furnished with these books, unless some special action were taken in regard to it. The members of this Convention would doubtless take care that their own towns were supplied, but those unrepresented, although equally entitled to receive them, inasmuch as they would be called upon to pay their proportion of the expenses, would, without some such order as this, be unsupplied.

Mr. EARLE, of Worcester. I have but one objection to the adoption of the order that is proposed, and that objection is, that I believe we have no power to do it. It appears to me we have just as much right to make an appropriation for any other object as we have for this; as much right to vote an appropriation for any purpose under the sun, as to do what is proposed by this order.

Mr. WALKER, of North Brookfield, remarked that it certainly appeared to him that the towns having no representatives here were as much entitled to have these books for their information, as those which are represented.

Mr. BUTLER, of Lowell, moved that the order be laid upon the table.

He withdrew the motion, at the request of Mr. BRIGGS, of Pittsfield, who moved to amend the order, so that it would read, that "the Secretary of the Convention be directed to send to each of the towns," &c.

Mr. ALDRICH, of Barre. I would inquire whether it will be possible to execute this order? It proposes to supply these towns with a copy of the Debates of this Convention. I ordered three copies at the commencement, and this morning I went to buy three more copies, and bought them at a premium upon the ordinary cost. I understand that it will be difficult to procure them.

Mr. SARGENT, of Cambridge. I would ask if the Convention did not order a sufficient number, so that they would have enough on hand to enable the Secretary to comply with this order?

The PRESIDENT. The Chair is informed that there is another edition to be published, from which this order could be filled, if the Convention so determine.

The amendment of the gentleman from Pittsfield was agreed to.

The question being on the adoption of the order, as amended,

Mr. BATES, of Plymouth. I shou'd like still farther to amend this order. I suppose the Convention of 1820 voted to each town in the Commonwealth a copy of its Debates, and that that copy is in the hands of the clerk of such town. This proposition is to supply those towns which are not represented here. Now, I would propose that, so far as relates to the Debates and Proceedings of this Convention, they be distributed to all the towns, one copy to each. It may as well be done under this order as at any other time. If we so order now, it will prevent the necessity for another order in reference to that matter.

Mr. MIXTER. I do not know but that the Convention of 1820 did order the distribution of their Proceedings to all the towns in the Commonwealth, but I do happen to know that there is no copy of those Proceedings in the town in which I live. I have had occasion to examine the books

[July 27th.

On motion of Mr. WILSON, of Natick, the Convention proceeded to consider the unfinished business on the Orders of the Day, being the resolve on the subject of the rights of the jury.

The pending question being on the final passage of the resolve.

mence.

Mr. BURLINGAME, for Northborough. Mr. President: There is so little time to discuss this question, that I scarcely know where to comI do not complain, however, for I am most anxious to bring the labors of the Convention to a close. But inasmuch as the time for discussion is so limited, I ask the ear of the Convention while I shall occupy its attention-not for my sake, but for my cause's sake-in behalf of a most important right. I shall speak as rapidly as I can, so that I may crowd as much as possible into the brief space allowed me.

The minority of the Committee, in asking you to adopt their Report, do not urge you to declare any new doctrine, but to recognize the old common law rights of juries. We do not wish to assail judges, nor to reflect upon them, but rather to relieve them from the imputations to which they might otherwise be subjected. Inasmuch as they do not now agree among themselves, as to the extent of their powers, it is our duty, as it is our right-for their good, and for the general safety to define them, to bound their sphere of action, to state the law which is to guide them so clearly that they can never misunderstand it; so that juries will know their duty, and counsel how far to go, and the whole people their rights.

Because in civil cases the judges give the law to juries, and because in criminal cases they instruct them in the law-which duty we do not desire to relieve them from-juries have become to believe, and the whole community along with them, that they can do no otherwise than follow the instructions of the court, whether those instructions be right or wrong. It is because this is so, because judges have, in some instances, in these latter days, usurped the rights of juries, denying to them, in the pride of position and the pride of learning, the right, in criminal cases, to pass upon the law and the fact, it becomes necessary, if we would save the great right of trial by jury in its integrity, either by legislative enactment or by more solemn expression in the fundamental law, to declare the right of juries, especially in criminal cases. This has been found necessary many times heretofore. Burke states that, up to his time, in England, over forty acts had been passed guarding the rights of juries;