THE GIFT OF phat^g A..U^^.H-i „ .'^Jl.k ATE DUE Cornell University Library JK3125 1821 .A23 Journal of debates and Pfoceedings '" ,th olin 3 1924 032 657 326 IK ■»m SAVLORD nifilli II r« fRINTKD IN U.S.A. Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924032657326 JOURNAL DEBATES AND PEOCEEDINGS IN THE CONVENTION OF DELEGATES, CHOSEN TO REVISE THE Cnngtitetinn ri jfii!00iirtiwtte, Eegnn and bolden at Boston, Norember U, MO, and continued by Adjourn- ment to January 9, Ml. REPORTED FOR THE BOSTON DAILY ADVERTISER. NEW EDITION, REVISED AND COKRECTED. BOSTON: PUBLISHED AT THE OFFICE OF THE DAILY ADVERTISER. 1853. Entered according to Act of Congress, In the year 1868, by NATHAN HALE AND CHARLES HALE, In the Clerk's Office of the District Court of Massachusetts. Dutton & Wentworth, Printers, 87 Congress Street. PREFACE. The present Report of the Proceedings and Debates of the Convention which assembled at the State House in Boston, No- vember 15, 1820, to revise the Constitution of Massachusetts, was first published, from day to day, in the Boston Daily Adver- tiser, during the session of the Convention, and was then issued in the form of a volume, immediately after its adjournment in 1821, the printing having been carried on during the session. A part of the edition was . ordered by the Convention to be distrib- uted among the members and other persons, and the remaining copies were immediately taken up by the public. It has been in considerable request at various times, but not to such extent as was deemed sufficient to indemnify the expense of a new edition. The recent call of a new Convention, for another revision of the Constitution, has awakened so much interest in the proceedings of that of 1820, as to induce the reprint now presented to the public. It has been considered important by the Editors that no mate- rial alterations should be made in the text. Although there are, perhaps, some portions of the volume which possess less general interest at the present time than others, and might have been omitted without detracting from its value, and although, from the haste with which the original report was prepared, there were doubtless some expressions in it which might have been improved upon a careful revision, the Editors, nevertheless, thought that the confidence of the public would be justly shaken in the accuracy of the volume, as a true record of the proceedings of the Conven- tion, if it were not the same as that printed contemporaneously with its sittings, the errors of which, if any existed, would have then been immediately exposed. The official journal was ordered by the Convention to be de- posited in the office of the Secretary of the Commonwealth ; but there is on a file of papers relating to the Convention, a contem- IV PREFACE. porary memorandum of the then Secretary, stating that it was never placed there, and it is not known where it is. The present volume, therefore, the first edition of which went through the press before the journal could have been completed, probably affords the only record in existence, of the proceedings of the Convention. The Editors have accordingly confined themselves to the cor- rection of the few obvious accidental errors which have been dis- covered on a careful revision. They intended to supply such documents or other material omissions, had there been any, which might have arisen from the haste in which the original edition was published, but no opportunity for this occurred, the original volume being, they believe, complete up to the date of its publi- cation, embracing all the reports and other papers of any impor- tance, which came under consideration. They have added in an Appendix, such documents of a subsequent date, as appeared necessary to complete the history of the Convention. Where it has been thought expedient to interpolate any re- marks in the text, such additions have been uniformly enclosed in square brackets, [ ] so as to distinguish them from the original text. The present volume, from the first of the pages numbered with Arabic numerals as far as the Appendix, with the exception ,of the brief additions thus marked, and the correction of the few obvious errors above alluded to, contains all, and only, the matter of the first edition. The Appendix embraces a number of documents of a date sub- sequent to the adjournment of the Convention, which are neces- sary to the completeness of its history, viz. : A Statement of the Votes of the People, by Counties, on the several amendments proposed to them by the Convention. This statement is given as printed in the Boston Daily Advertiser, at the time, but as the footings agree with those ofiicially reported by the Committee of the Convention to the Legislature, it may probably be relied on, as an accurate copy from the ofiicial re- turns. No official canvass of the vote by towns or counties has been found at the State House. Also, the Proceedings of the Committee of the Convention appointed to meet after the people had voted upon the amendments, and ascertain the result. These proceedings are copied from their original report, submitted to the Legislature, preserved in the office of the Secretary of the Com- PREFACE. V monwealth. Also, the action of the Legislature upon this report, -r-the Resolve passed for publishing the amendments — and the Governor's Proclamation promulgating them. Appended to these will be found the whole of the Constitution in its official shape, as originally established, with the amend- ments since adopted, not only at the recommendation of the Con- vention of 1820, but subsequently in the manner provided by that body.* The copious Index of the original edition of this volume, has been carefully revised, and made to conform with the present edition. It is believed to be correct. N. H. Boston, April 25, 1853. C. H. * In 1844, Hon. Luther S. Gushing prepared a draft of the Conslilulion of Massachusetts by striking out the annulled or obsolete portions of the instrument and inserting the amendments in their proper places. This draft has been usually printed since that time as the Constitution. It fully answered the purpose for which it was designed, viz., " for the convenient use of those who desire to ascertain what the existing provisions of the Constitution are, without the trouble and labor of tracing them historically from the original instrument through all the various amend- ments." Its use, however, is likely to cause confusion, when a particular article or chapter is referred to, if the reader does not distinctly bear in mind its character. NOTE. Origin and History of the Constitution- of Massachusetts. The royal charter under which the Colony of Massachusetts had heen gov- erned, continued in force, to some degree, even after the beginning of the revo- lutionary contest. Its authority, however, was almost entirely overthrown by the adoption, by the Continental Congress, May 15, 1776, of the resolution declaring " that the exercise of every kind of authority under the crown should be sup- pressed," and that " all the powers of government " should be " exerted under the authority of the people of the colonies." July 4, 1776, Independence was de- clared. In September, 1776, the Massachusetts Assembly voted to take steps to- wards the framing of a form of government. May 5, 1777, they recommended to the people to choose their representatives to the next General Court, " with full powers, in one body with the Council, to form such a Constitution of Government as they shall judge best calculated to promote the happiness of this State," to be subject to the approval of a vote of two-thirds of the people. At the session of June, 1777, a Committee cf twelve was charged with this subject. In January, 1778, this Committee reported a draft of a Constitution, which was adopted by the General Court, February 28, 1778, and submitted to the people, March 4, 1778. It was, however, thought to be defective and unsatisfactory in many respects ; ob- jections were made to the anomalous nature of the body by which it had been framed ; — and it was rejected by a large majority — five to one of the votes returned. Many of the towns made no returns. The failure of this first efibrt to establish a permanent form of government, showed the necessity of proceeding with more care and deliberation. According- ly, the General Court, by a resolve, passed February 20, 1779, directed the select- men of towns to cause the inhabitants to consider of and determine upon two ques- tions : " Whether they choose at this time, to have a new Constitution or Form of Government made," and, " Whether they will empower their representatives for the next year, to vote for the calling a State Convention for the sole purpose of forming a new Constitution," in case the first question were answered affirmatively. The people assented to both of these propositions, by large majorities. Accord- ingly, the General Court, by a resolve passed June 17, 1779, provided for the elec- tion .of delegates to a Convention to meet on the first of September in that year. The delegates accordingly assembled September 1, 1779, and having settled the principles upon which the government should be based, appointed a Commit- tee of thirty to prepare a Declaration of Rights and frame of a Constitution, adjourned over to October 28, authorizing- the towns not represented to choose delegates meanwhile. The Committee of thirty met immediately, and after dis- cussion, delegated the preparation of the Declaration of Rights to John Adams ; and the preparation of a draught of a Constitution, to a sub-committee of three, viz., James Bowdoin, Samuel Adams, and John Adams, who committed this task also to John Adams. He was thus the original author of the whole instrument ; and with a few alterations his draughts appear to have been preserved. In the fourth volume of his Works, now publishing under the editorial supervision of Charles Francis Adams, the original draughts are printed in such a way as to exhibit the nature and extent of the changes made. That volume also contains much inter NOTE. vii esting information upon the subject. The Journal of the Convention of 1779-80, was printed in 1832, by Messrs. Button & Wentworth, by order of the Legisla- ture, on the recommendation of the Joint Committee of the Library, of which Al- exander H. Everett was chairman. When the Convention reassembled, October 28, 1779, the Committee of Thirty reported the Bill of Rights and Frame of Government agreed upon. Some progress was made in discussing it, until the 11th of November, when the Con- vention adjourned to the fifth of the next January, hoping to secure a more full and constant attendance. January 5, 1780, the Convention again met, but the roads being in a bad condition for travelling, the attendance was small. The members met and adjourned from time to time, until January 27, when a sufficient number being collected they proceeded to business. Having finally agreed upon the Form of the Constitution, March 2, 1780, they adjourned to the first Wednes- day of June, making provision for obtaining the opinion of the people upon it in the meanwhile. They also adopted an address to the people. June 7, 1780, the members again assembled, and it appearing that the whole form was approved by more than a two-thirds vote, the Convention, June 16, 1780, declared " the said form to be the Constitution of Government established by and for the inhabitants ot the State of Massachusetts Bay," and resolved that it go into effect, except for the purpose of making elections, on the last Wednesday of October in that year. The Constitution provided for ascertaining the sense of the people in 1795, on the necessity or expediency of revising the instrument, with a view to making amendments. No such necessity or expediency was then found to exist ; and the Constitution remained unaltered for forty years. During the latter part of this pe- riod, the expediency and necessity of some amendments began to be seriously dis- cussed, particularly in relation to the third article of the Bill of Rights — the ex- cessive number of representatives in the popular branch of the Legislature — the apportionment of senators-^and especially the important change in the condition of the Commonwealth, produced by the establishrnent of the District of Maine as a separate State. Finally it was determined by the Legislature of 1820, that a revis- ion of the Constitution had become necessary, and accordingly the act of 1820, re- lating to the calling of a Convention, with which this Journal begins, was passed. August 21, the people voted, 11,756 yeas to 6,593 nays, in favor of having a Con- vention, as announced by Proclamation of the Governor, September 12. The election of delegates took place October 16, and the Convention assembled No- vember 15. Its doings are recorded in the present volume. They resulted in proposing fourteen amendments to the Constitution, of which nine were approved by the people and became a part of the Constitution. Subsequently four more amendments have been added, in the manner provided for by the ninth article of amendment. They will be found at the end of the present volume, with the dates of their adoption. Finally the Legislature of 1851 passed an act providing for a new Convention to revise the Constitution, but the proposition was rejected by the people, by a vote of 60,972 in the affirmative and 65,846 in the negative. A smiilar act was passed by the Legislature of 1852, which was assented to by the people, by 66,416 in the affirmative and 59,111 in the negative, and in accordance with its provisions, delegates were chosen on the 7th of March last, to meet in Conven- tion at the State House jn Boston, May 4, 1853. CONTENTS. Preface, m Note : Origin and History op the Constitution, . . vi Advertisement to the First Edition, 1 Act relating to calling the Convention, 3 List of the Members of the Convention, 5 Proceedings and Debates, (including the Rules and Orders and Reports of Committees,) 9 Resolves and Amendments adopted by the Convention, 613 Address of the Convention to the People, .... 622 Appendix — ^Popular Vote on the Amendments, . . . 633 Action of the Legislature, 636 Governor's Proclamation, 639 The Constitution, 640 Index, 671 ADVERTISEMENT TO THE FIRST EDITION. This Report of the Proceedings and Debates in the Convention was made for the Boston Daily Advertiser by the Editor of that paper, who was a member of the Convention, assisted by a gentle- man of the bar, [Octavius Pickering, Esq., afterwards, for many years. Reporter of Decisions of the Supreme Judicial Court,] to whom a seat was assigned by the President, The principal design was to furnish the public, from day to day, with an account of the proceedings, through that paper ; and to this design the report was necessarily made to conform. For a great part of the session, the proceedings of each day were published in the morning paper of the following day ; the reporters were in consequence obliged to prepare their reports in the greatest haste ; and in cases in which the sittings continued to a great length of time, and especially when two sittings were held on the same day and protracted to a late hour in the evening, it. became necessary, as well on account of the short interval for transcribing, as from regard to the capacity of the paper, to abridge the debate to a greater degree than they would otherwise have done. Many of the reported speeches are to be considered rather as abridgments, than as full reports of those which were delivered. It was, in general, the object of the reporters, to give the whole argument in substance, without being scrupulously careful to adhere to the language of the several speakers. In this design, however, they may occasionally have failed ; sometimes, from not hearing distinctly — sometimes, perhaps, from not fully understanding the scope of the argument, and sometimes from not being able, through fatigue, to give proper attention. For these reasons, it will not be supposed that complete justice is done to the different speakers, in point of elegance and propriety of expression, 1 Z MASSACHUSETTS CONVENTION. or that the same degree of justice is done to each, in regard to ful- ness and accuracy ; but the reporters have endeavored, according to the best of their ability, to give as full and accurate a report of the debates as circumst£inces would admit. January, 1821. COMMONWEALTH 01* MASSACHUSETTS. IN THE YEAR OF 0011 lOKD ONE THOUSAND EIGHT HDHDKED AND TWENTY. AN ACT RELATING TO THE CALLING A CONVENTION OP DELEGATES OF THE PEOPLE, FOR THE PURPOSE OF REVISING THE CONSTITUTION. Sect. 1. Be it enacted by the Senate and House of BepresentocUves, in General Court assemhkd, and by ffte aiUhority of the same, That the inhabitants of the several towns, districts, and places within this ConunonweaI% qualified to vote for Senators or Representatives in the General Court, shall assemble in regular town meetings, to 'be notified in the usual manner, on llie third IVtonday of August next, and shall, in open town meeting, give in their votes, by ballot, on this question : " Is it expedient that Delegates should be chosen, to meet in Convention, for the purpose of revising, or altering the Constitution of Government of this Commonwealth ?" And lie se- lectmen of the said towns and districts shall, in open town meeting, receive, sort, count, and declare, and the clerks thereof shall, respectively, record the votes given for and against the measure ; and exact returns thereof shall be made out, under the hands of a majority of the selectmen, and of the clerk, who shall seal Up and deliver the same to the sheriff of the county, within one week fi-om the time of meeting, to be by him transmitted to the oflice of the Secretary of the Commonwealth, on or be- fore the second Monday in September next ; or the selectmen may themselves trans- mit the same to said office, on or before the day last mentioned ; and all returns not then made, shall be rejected in the counting. And the Governor and Council shall open and examine the returns made as aforesaid, and count the votes given on the said question ; and the Governor shall, by public proclamation, to be made on or before the third Monday in said month of September, make known the result, by de- claring the number appearing in favor of choosing Delegates for the purpose afore- said, and the number of votes appearing against tihe same : And if it shall ^appear that a majority of the votes sivenin, and returned as aforesaid, are in favor of choos- ing delegates as aforesaid, me same shall be deemed and taken to be the will of the people of the Commonwealth, that a Convention should meet accordingly ; and in case of such majority, the Governor shall call upon the people to elect delegates to meet in Convention, in the manner hereinafter provided. Sect. 21 Be it further enacted, That if it shall be declared by the said proclama- tion that the majority of votes as aforesaid is in favor of choosing delegates as above- mentioned, the inhabitants of the several towns and districts within the Common- wealth, now entitled to send one or more representatives to the General Court, shall, on the third 'Monday in October next, assemble in town meeting, to be duly notified by warrant from the selectmen, and shall elect one or more delegates, not exceeding the number of representatives to which such town is entitled, to meet delegates from odier towns in Convention, for the purposes hereinafter expressed : Am at such meeting of the inhabitants, every person entitled to vote for representatives in the General Court shall have a right lo vote in the choice of delegates ; and the select- men shall preside at such elections ; and shall, in open meeting, receive, sort, count, and declare the votes, and the clerk shall make a record thereof, fair copies of which, attested by the selectmen and clerk, shall be seasonably delivered to each person chosen a delegate as aforesaid. And all the laws now in force, regulating the duty and conduct of town officers, sheriffs, magistrates, and electors, in the elections of governor, lieutenant governor, counsellOTs and senators, and representatives, shall. 4 MASSACHUSETTS CONVENTION. as far as applicable, apply and be in fall force and operation as to all meetings holden, and elections and returns made under this act, or which, by this act, are required to be holden or made, and upon the like forfeitures and penalties. Sect. 3. Be it further enacted, That the persons so elected delegates shall meet in Convention, in the State House in Boston, on the third Wednesday in November next; and they shall be the judges of the returns and election of their own members, and may adjourn from time to time, and one hundred of the persons elected shall constitute a quorum for the transaction of business ; and they shall proceed, as soon as may be, to organize themselves in Convention, by choosing a president, and such other officers as fliey may deem expedient, and by establishing proper rules of pro- ceeding ; and when organized, they may take into consideration the propriety and expediency of making any, and if any, what alterations or amendments in the present Constitution of Government of the Commonwealth ; and such amendments, when made and adopted by the said Convention, shall be submitted to the people for their ratification and adoption, in such manner as the said Convention shall direct ; and if ratified by the people in the manner directed by the said Convention, the Cotistita- tion shall be deemed and taken to be altered or amended accordingly ; and if not so ratified, the present Constitution shall be and remain the Constitution of Government of this Commonwealth. Sect. 4. Be it further enacted. That the said Convention shall establish the pay or compensation of its officers and members, and the expense of its session; add His Excellency the Governor, by and with the advice and consent of the Council, is au- thorized to draw his warrant on the Treasurer therefor. Sect. 5. Be itfurOur enacted, That the Secretary of the Commonwealth be a;nd he hereby is directed, forthwith afler the passage thereof, to transmit printed copieel of this act to the selectmen of every town and district within the said Common- wealth ; and whenever the Governor shall issue his proclamation, calling upon the people to elect delegates to meet in Convention as aforesaid, the said Secretary shall also, immediately thereafter, transmit printed copies of said proclamation, attested by himself, to the selectmen of every town and district in said Commonwealth. [Approved by the Governor, June 16th, 1820.] CONVENTION OF DELEGATES Assembled at the State House in Boston, November Wtk, 1820, for the purpose of revising the Constitution of Massachusetts, in pur- suance of the law of June 16th. LIST OF DELEGATES, SUFFOLK. Boston — ^His Honor William FhillipB, Hon. William Gray, laaac Parker, Charles Jackson, Thomas Dawes, John Davis, William Prescott, Artemas Ward, James Prince, Esq., Rev. James Freeman, Hon. John Phillips, Josiah Quincy, Peter C. Brooks, John Welles, Israel Thdrndike, Daniel Davis, Jonathan HuneweU, Rev. Thomas Baldwin, Thomas Melville, Esq., Hon. William Sullivan^ Redford Web- ster, Esq., George Blake, Esq., Hon. Daniel Webster^ John T. Apthorp, Esq., Benjamin Russell, Esq., Daniel Mes^in- ger, Esq., Warren Dutton, Esq., Joseph Coolidge, Esq., Mr. John Cotton, Lemuel Shaw, Esq,, Joseph TUden, Esq., Doct. John C. Warren, William Harris, EsiJ., Samuel Hubbard, Esq., Rev. Paul Dean, Mr. Eliphalet Williams^ James T. Aus- tin, Esq., Mx. William Sturgis, James Savage, Esq., Mr. Heman Lincoln, Rev. Henry Ware, NathaJi Ha,le, Esq., Mr. Samuel A. Welles, Mr. Lynda Walter, Mr. George Bond. Chdtea — Rev. Joseph Tuckertnttn. ESSEX. Amesbury—Joha Morse, Esq., Enoch Bartlett. Andovar — John Kneeland, Stephen Bar- ker. Beeerly—Rev. N. W. Williams, Dea- con John Low, Hon. Nathan Dane,* Hon. Robert Rantoul. Boxfbrd—Thom&B Perley;. jBrad^rrf— Deacon Daniel Stickney, Jesse Kimball, Jun., Esq. Darners — Ebenezer Shillaber, Caleb Oakes, John Page, Ebenezer King. £Mex— Jonauan Stoiy. Gloucester — Col. William Pearce, John Kittredge, Esq., Capt. William W. Par- rott, Nehemiah Enowlton, Col. WUliam Beach, Capt. Elias Davidson. Hamilton — Jonathan Lamson. Haverhill — ^Hon. Bailey Bartlett, Col. Charles White, Moses Wingate, Esq. fysimch — John Heard, NathanielWadfe. I^ftm — Joseph Fuller, Jonathan Batch- elder, Enoch Mudge, Jun., John Love- joy, Ezra Mudge. Jjifntifield — Asa T. Newhall. Manchester — Col. David Colby. Marhlehead — Nathan Hooper, Joshua Prentiss, Jun., Benjamin Knight, Nathan Martin, John H. Gregory. JlfetfcMen^— Stephen Barker. JiSddkton^—R&f. Ebenezer Hubbard. JYewbury — ^Josiah Little, Esq., Rich- ard Pike, Esq., Moses Little, Esq. JVewbteryport — Rev. John Andrew^, Hon. Samuel S. Wilde, William Bart- lett, William B. Bannister, James Prince, Dr. Nathan Noyes, iiaw2c^-^Parker CleaVelahd, Joshua Jewett. iSirfejn— Hon. Benjamin Pickman, Jo- seph Story, Leverett Saltonstall, Gideon Barstow, Esq., David Cuminings, Esq, Stephen White, Esq., John G. King, Michael Shepherd, John Derby, Jun. Salisbury — Samuel March, Benjamin Evans. Savgus — Jonathan Makepeace. Topsfdd — Cyrus Cummings. JImiAam— John Dodge. West JYewbury — Thomas Hills. MroDLESEX. AcUm — Joseph Noyes, Esq. * [Did not attend.] MASSACHUSETTS CONVENTION. AiUnf — John Locke. BiUmca — Joseph Locke. jBe^ord— William Webber. Brighton — JVancis Winship. Bvrlinsrton — None. Cambridge — Levi Farwell, Peter Tufts, Jun., Hon. Samuel P. P. Fay. Carlisle — Benjamin Barrett. C3utrlestoum — Seth Knowles, WiUiam Austin, Thomas Harris, Leonard M. Par- ker, George Bartlett, Timothy Thompson, Jun. Chdmsford — Amos Whitney, Jonathan Pelham. Concord — Samuel Hoar, Jun., Esq., John Keyes, Esq. Dracut—ilon. Joseph B. Vamum. Dunstable — Benjamin Rice. East Sudbury — Jacob Reeves, Esq. Drandngharr^—Jdnx Trowbridge, Esq., Josiah Adams, Esq. Groton — Luther liawrence, Esq., Hon. Samuel Dana. HoUiston — Elihu Cutter, Esq. Hopkinton — Joseph Valentine, Esq., Nathan Phipps. Lexington — Nathan Chandler, Esq. Lincoln — Samuel Hoar, Esq. Littleton — Rev. Edmund Foster. Maiden — Elder Ebenezer Nelson, Phin- eas Sprague. Marlborough — Joel Cranston. .Mw^orcJ— Nathaniel Hall, Abner Bart- lett Mctick — Jonathan Bacon. JVewton — Gen. Ebenezer Cheney, Jo- seph Jackson, Esq. PeppereU — John Walton, Abel Jewett Raiding — Daniel Flint,Timothy Wake- field. iS^iiwne— Calvin Sanger.. Shirley — Nathaniel Holden, Esq. South Beading — ^WiUiara Nichols. Stoneham — INone. Stow and Boxborough — Joseph Stone. Sudbury — William Hunt, Esq. Tewkshuru — Jesse Trull. Toioiuena^Samuel Brooks, Esq. Tungsborough — None. 1VaUhami—So\m Clark, David Town- send. Waiertoum — Walter Hunnewell. West Candrridge—KoB. William Whit- temore. Westford— John Abbott. Weston — ^Isaac Piske, Esq. Wilmington — ^William Blanchard, Jun. Wobum — John Wade, Marshall Fowle. WORCESTER. ^hbumham — Silas Willard. Alhol — Joseph Eastabrook. Barre — ^Nathaniel Jones, Nathaniel Houghton. Berlin — Amos Sawyer. Bolton — ^Nathaniel Longley. Boylston — Jonathan Bond. Brookjield — Simeon Draper, Seth Field. Charlton — John Spurr, Isaiah Rider. Dana — Ephraim Whipple. Douglas — ^Welcome Whipple. DuMey — William Windsor. FUchburg — John Shepley, Calvin Wil- lard. Gardner — William Whitney, Grafton — Pardon Aldrich. Hardwick — Timothy Page, Joseph Stone. flonjorrf— Thomas Hersey, Rev. Abi- sha Samson. Holden — William Drury. Hubbardston — Ephraim Allen. Lancaster — Jacob Fisher, Eiavis Whit- man. Leicester — Henry Sargent Leominster — Bezaleel Lawrence, Jo- seph G. Kendall. Lunenburg — Josiah Stearns, Esq. AfenrfoTi— Hon. Jonathan Russell, Dr. Daniel Thurber. Milford — Esek Greene. MuUmry — Aaron Pierce. .JVeto Braintree — Joseph Bowman. JVorthborough — ^James Keyes. JSTorthbridge — Rev. John Crane. JVorth Brookjield— T>a.mel Gilbert. OaJdiam — William Crawford, Jun. Oxford — Richard Olney. Paxton — Jonathan P. Grosvenor. Petersham. — Hutchins Hapgood, Israel Houghton. Pkillipston — John Doane. Princeton — Ward N. Boylston. Rnyalston — Rufus Bullock. Rutland — Zadock Gates. Shrewsbury — Nathan Pratt. Southborough — Rev. Jeroboam Parker. Sovihbridge — Nathan H. Harding. &7enecr— -James Draper, Jun. Sttrling— Thomas H. Blood, John Rob- bins, Jun. Sturbridge—Rev. Zenas L. Leonard. Suiton — Hon. Jonas Sibley, Darius Russell. Templeionr^Lovell Walker. Upton — Ezra Wood. Uxbridge^Hon. Bezaleel Taft, Samuel Reed. ff'ardr-John Clark. ^e»<6oroi^fcr— Nathan Fisher, Esq. West Boylston — Robert B. Thomas. Weston— Chester Powers. MASSACHUSETTS CONVENTION. WestmimUr — ^Jonas Whitney, Edward Kendall. Winchendon — Samuel Prentiss. Worcester — Abraham Lincoln, Esq., Hon. Levi Lincoln, Edward D. Bangs, Esq. HAMPSHIRE. Amherst — Hon. Ebenezer Mattoon, Is- rael Scott Bdchertovm — Eliakim Phelps, Philo Dickinson. Chesterfidd — ^Barnabas BUlings. Cummington — Nehemiah Richards. Eaathampton — ^Thaddeus Clapp. Goshen — Timothy Lyman. Granby — Eli Dickinson. Greenwich — None. Hadley — Moses Porter, Samuel Porter. Hatfidd — Oliver Smith. Middkfdd — David Mack, Jun., Esq. JVorthampton — Hon. Joseph Lyman, Hon. Samuel Hinckley, Ebenezer Hunt, Jun. JVorteieh — Artemas Knight. Petharn — Rev. Winthrop Bailey. Plainfield — James Richards, Esq. South Hadley — ^Peter Allen. Southampton — ^Luther Edwards. Ware — ^WiUiam Bowdoin. Westhampton — Rev. Enoch Hale. Williamsburg — John Wells. WorlMngton — ^Hon. Ezra Starkweather, HAMPDEN. Blandford — Enos Boyse, Abner Gibbs. £njB/!eW— Israel E. Trask, JohnWyles. Chester — Martin Phelps. Granville — Amos Foote, Francis Steb- bins. Holland and South Brined — Charles Gardner. Longmeadow — Calvin Burt. ImMow — Alfred Flower. Monson — Ede Whitaker, Deodatus Button. Montgomery — Oren Parks. Palmer — Amos Hamilton. Russell — None. Southwick — Enos Foote, Joseph, For- ward. ^mngfield—Hoji. George Bliss, Hon. Jonathan Dwight, Jun., Moses Chapin, Oliver B. Moms. Tolland— Henry Hamilton. Westjkld— Hon. Samuel Fowler, Jede- diah Taylor, Jesse Famham. West Springfield— haliiei Frink, Tim- othy Horton, James Kent. Wilbraham,—A\)el Bliss, Jun., Luther Stebbins. FRANKLIN. Ashfid^HsnTy Bassiett, Levi Cook. Bemardlrioji-— Jonathan Allen. Buddand — Enos Pomeroy. Charlemont — Asahel Judd. Colraine — Robert L. McLellan, George Eels. Conway — John Arms. DeerMdr— Hon. Ephraim WUliams, Hon. Elihu Hoyt. Gi«— Seth S. Rowland. GreenfM — Elijah Alvord. Hawley — Zenas Banks. Heath — Jesse Gale. Leverett — Roswell Field. Leyden — Elisha Chapin. i Montague — Rev. Aaron Grates. iNew &dem — ^Varney Pierce. JVorthfidd — Rev. Thomas Mason. ' Orange — Josiah Cobb. Bowe — None. Shelbume — Benoni Pratt. Shutesbwy — ^John Conkey, Jun. Sunderland — Nathaniel Smith. Warwick — Jonathan Blake, Jun. Wendell — Hon. Joshua Green. Whaldy — Thomas Saunderson. BERKSHIRE. Adams — John Waterman, James Mason. ^orrf— Elihu Lester, Esq. Becket — George Conant. Cheshire — Rev. Samuel Bloss. Clarksburg — None. Dalton — John Chamberlain. Egremont — James Baldwin, Esq. JVonflte— None. Great Barrington — Moses Hopkins. Hancock — Rodman Hazard. Hinsdale — Artemas Thompson. ■ Lanesborough — ^William H. Tyler. Lee — James Whiton. Lenox — Caleb Hyde. Mount Washington — None. Mw Ashford— None. J^/euj Marlboro'' — Gen. Ebenezer Hyde, Salmon Kasson. Otis — Col. Samuel Picket, Peru — Cyrus Stowell. Pittsfieldr—Naihan Willis, Henry H, Childs, Jonathan Y. Clark. Richmond — Zechariah Pierson. Sandisfidd—Chaxch Smith, Eliakiip Hull. SoirfA/5eW— None. Savoy— None. Sfte^ict— Stephen Dewey, Silas Kel- Stockbridge — Joseph Woodlbndge. Tyringham — John Garfield, Esq. Washington— PMip Eames. West Stockhri^e—Col. Joseph B. HiU. ^f^ianwtotOTi— Allanson Porter, Ste, phen Hosfqrd. s MASSACHUSETTS CONVENTION. ffindsor — Daniel Dana. NORFOLK. Bdlingham — ^Benjamin Hall. Braintree — Rev. Richard S. Storrs. Brookline — Hon. Richard Sullivan. Canton — Jonathan Leonard. Cohataet — James C. Doane. Dedham — Hon. John Endicott, Hon. James Richardson, William Ellis, Esq. Dordvestei — Hon. Perez Morton, Hen- ry Gardner, Thomas Crehore. Foxborough — Seth Boyden, Esq. jFVan^tn— ^Joseph Bacon, Eli Richard- son, Jun. Mtdjldd and Dover — ^Rev. Dr. Daniel C. Saunders. Medwcy—WMam Felt AEUon — Barney Smith, Jedediah Ath- erton. JVeedham — Aaron Smith. Quincy — Hon. John Adams, Thomas Greenleaf. Randolph — Thomas French. Roxhury — ^Heniy A. S. Dearborn, Eb- enezer Seaver, Abijah Draper, Sherman Leland. Sharon — Benjamin Reynolds, Esq. &oughton — Samuel Talbott IValpoU — Jesse Boyden. Weymovth — Lemuel Humphrey, Noah Torrey. fyreniham — Samuel Day,* Allen Til- linghast, Samuel Bugbee. PLYMOUTH. Mington — Nathan Gumey, Jared Whitman. Brideewater — Daniel Howard, Daniel Mitchell, Howard Caiy, Zeph Fobes. Carver — Benjamin Ellis. Duxbmy — Rev. John Alleyne, Samuel A. Frazer. Halifax — Zebediah Thompson. j^noiier — Robert Eells. Hanson — Calvin Tilden. Hingham — Rev. Joseph Richardson, Jotham Lincoln, Jun., Thomas Fearing. Hull — None. Kvhgston — George B. Holmes. MarsMeld — ^Rev. Martin Parris. Apddteborovgh — Hon. Thomas Weston, John "tinkham, Samuel Pickens, Levi Pierce, Seth MiUer, Jun. Pembroke — David Oldham, Jun. Plyaiplon — None. Plymoidh — Barnabas Hedge, John R Thomas, Joseph Bartlett, Jun., Benjamin Bramhall, Nathaniel M. Davis. Rochester — Abraham Holmes, Gideon j^rstow, Jun., Philip Crandon. Situate — ^Hon- Charles Turner, Jesse Dunbar, John Collamore. W'areton— Benjamin Bourne, Esq. BRISTOL. Mleborov^—Jahez Newell, Abiathar Richardson, Jun., Lemuel May. Berkley— J ahez Fox. DartmotUh— Hod. Holder Slocum, Eli- hu Slocum, Caleb Anthony. I>4'to)n— William Wood. J5a»ton— Shepherd Leach, Esq., Isaac Lathrop, Alden Spooner,* Thomas Nye.* Fairhaven — None. FreOown — Hon. Nathaniel Morton, Jun., Earl Sampson. ./MiiTi^/Wrf— Solomon Pratt. JVew Bedford— ioha A, Parker, James Howland, 2d,* Seth Russell, Silas Kemp- ton. MrioTi— George Walker, Seth Hodges. Rawnham — Silas Hall. JJeAoioJJi— James Bliss, Jeremiah Wheeler, S«™uel Bullock. Se«Sonfc— Aobert Daggett, Joseph Sis- son, Jun. Somerset — David Gray, Swansey — Daniel Hale, John Mason. Taunton — Jonas Godfrey, James L. Hodges, Thomas Lincoln, Nathan Leon- ard, Robert Dean, 7Voy-i_William B. Cannedy. JTMtoori— Abner B. Gifford, TiHing- hast Almy, Nathan C. Brownell. ' Wellington — Thomas S. Baylies, Esq. BARNSTABLE. Bwmtabk — Nymphas Marston, Wil- liam Lewis, Nauer Crocker, Brewster — Gen. Elijah Cobb. Chatham — Capt. Salathiel Nickerson, Capt Joseph Young. Dennis— Oren Howe. JEarffeim— Samuel Freeman. Fahrwidh — Thomas Fish, Braddock Dimmick. Harwich — None. Orleans — Daniel Cumings. Promncelown — None. Sandwich — Russell Freeman, Elisha Pope, Seth F. Nye. Truro — None. Well/het — Reuben Arey. FofTOoirffc^-Elisha Doane, Hon. John Reed. DUKES. Chilmark — ^None. Edgartown — Thomas Cook, Jun. TiSntry — Shubael Dunham. NANTUCKET. J^antvdcet — Josiah Hussey, Hezekiah Barnard, Jethro Mitchell, Gideon Folger, William Mitchell, Barker Bumell. ' [Did not attend.] IN CONVENTION. Wednesday, November 15. The Delegates elected to meet in Convention for the' purpose' of* revising the Constitution of this Commonwealth, in pursuance of the act of the 16th of June last, assembled at the State House in the Representatives' Chamber. At 10 o'clock, his Honor William PhiLLips, the Lieut. Governor, and a delegate for the town of Boston, called the House to order. The Hon. Judge Jackson of Boston, Mr. Pickman of Salem, Mr. Fay of Cambridge, Mr. Sibley of Sutton, and Mr. Fowlek of West- field, were appointed a committee to examine the credentials of the members and rfeport whether a quorum was present. The com- mittee having reported that a stlfHcient number of members were duly elected to proceed to business, it was voted that the House proceed to the choice of a Secretai'y, and the Hon. Judge Story of Salem, Mr. Greenleaf of Q,uincy, Russell of Mendon, Mr. Prince of Boston, and Mr. Bliss of Springfield, were appointed a committee to receive and count the votes. The ballots being taken, the com- mittee reported that the whole number of votes for Secretary was 273, and that there were 191 for Benjamin Pollard, Esq. and that he was chosen. Mr. Pollard was called in, and was sworii to the faithful performance of the duties of the office. It was voted that th6 House proceed to the choice of a President, and it was ordered that the same committee receive and count the Votes. The ballots being taken and counted, the committee re- ported that the whole number of votes wag 353, necessary for a choice 171, that the Hon. JOHN ADAMS had 335, and was chosen. This vote being declared, the Hon. Chief Justice Parker of Bos- ton, rose to offer a resolution to the House. After adverting to the advanced age and renowned character of the gentleman who had been chosen to preside over the deliberations of the House, and to the fact that he had been forty years ago a representative in the Convention which formed the Constitution that the House was now called upon to revise, he suggested the propriety of paying him some tribute of respect. He said it would be recollected that from the years 1765 to the Revolution, Mr. Adams was one of the most distinguished assertors of the freedom 6f his country, and made the boldest stand in defence of its rights. By recurrence to the journals of the day, it would be found that the political research and great talents displayed in the public proceedings, had great in- 2 10 MASSACHUSETTS CONTENTION. fluence in exciting the spirit of the Revolution. He said that it was remarkable that one so ardent in the support of his opinions ■was able to check his own feelings and those of the public, and to observe a temperate course so honorable to him and to the country. In 1770, when the country was in alarm and imder a great excite- ment in consequence of the killing and wounding of citizens by the British soldiers stationed in Boston, this firm and resolute man, though he had been opposing the encroachments of the British gov- ernment, had the hardihood to come forward in defence of the sol- diers, and show that the laws were to govern. In 1774 he was elected to the Continental Congress and was one of the most dis- tinguished members of that body. Though he did not draft the declaration of independence, he was one of the most able and res- olute supporters of it. In 1779, he was chosen one of the Delegates to the Convention for the purpose of forming the Constitution of this Commonwealth. And in that body his labors were conspic- uous. He carried to it a degree of profound knowledge which few men have possessed, and to that we are indebted for many of the excellent provisions of the Constitution. He was soon after ap- pointed by Congress on a mission to Europe for the purpose of con- ciliating the favor of and obtaining assistance from the nations on the Continent. He had the ability and address to persuade the cautious Dutch that it was for their interest to advance money for carrying on the war of the revolution. He remained in Europe during the war, where he performed great services to his country, and had the courage to obtain a treaty of peace on favorable terms to us, contrary to the wishes of our principal ally. On his return to this country he was received with unreserved public applause. He was afterwards associated in the government with Washington as Vice President of the United States, and succeeded him as Pres- ident. He had since lived in honorable retirement and had pre- served to a late period the vigor of his mind, of which he had given frequent proofs. He had finally been chosen by the unanimous voice of his townsmen to represent them in this Convention. Un- der these circumstances, he (the Chief Justice) thought it proper to pay him the testimony of their respect, and he proceeded to read the following resolution : — Whereas the Hon. Johk Adams, a member of this Convention and elected the President thereof, has for more than half a century devoted the great powers of his mind and his profound wisdom and learning to die service of nis country and of mankind : In fearlessly vindicating the rights of the North Ameri6an provinces against the usurpation and encroachments of the superintendent government: In diffusing a knowledge of the principles of civil liberty among his fellow sub- jects, and exciting them to a firm and resolute defence of the privileges of freemen : In early conceiving, asserting and maintaining the justice and practicability of establishing the independence of the United States of America: In giving the powerful aid of his political knowledge in the formation of the con- stitution of this his native state, which constitution became in a great meaaure the model of those which were subsequently formed: In conciliating the favor of foreign powers — and obtaining their countenance and support in the arduous struggle for independence : MASSACHUSETTS CONVENTION. 11 . In negotiating the treaty of peace which secured forever the sovereignty of the United States, and in defeating all attempts to prevent it, and especially in preserving in that treaty the vital interests of the New England States: In demonstrating to the world in his defence of the constitutions of the several United States, the contested principle, since admitted as an axiom, that checks and balances in legislative power, are essential to true liberty : In devoting his time and talents to the service of the nation in the high and im- portant trusts of Vice President and President of the United States. And lastly, in passing an honorable old age in dignified retirement, in the prac- tice of all the domestic virtues, thus exhibiting to his countrymen and to posterity an example of true greatness of mind and of genuine patriotism : Therefore Rtsolved, that the members of this Convention, representing the people of the Commonwealth of Massachusetts, do joyfully avail themselves of this opportu- nity to testify their respect and gratitude to this eminent patriot and statesman, for the great services rendered by him to his country, and their high gratification that at this late -period of life, he is permitted by Divine Providence to assist them with his counsel in revising the constitution, which forty years ago his wisdom and prudence assisted to form. Resolved, that a committee of members be appointed by the chair to commu- nicate this proceeding to the Hon. John Adams, to inform him of his election to pre- side in this body and to introduce him to the chair of this Convention. These resolutions being seconded by the Hon. Holder Slocumb and read from the chair, on motion of the Hon. Mr. Webster, the blank was filled with twelve, and it was ordered that the com- mittee should be nominated from the chair. The following gen- tlemen were appointed : Hon. Messrs. Gray of Boston, Varnum of Dracut, Morton of Dorchester, Mr. Fisher of Westborough, Rev. Dr. Baldwin of Boston, Messrs. Dane of Beverly, Starkweather of Worthington, Boylston of Princeton, Gen. Mattoon of Amherst, Mr. Melville of Boston, Hon. Messrs. Hoar of Lincoln and Bart- lett of Haverhill. Mr. Starkweather not having taken his seat, the Hon. Mr. Fowler of Westfield was appointed in his place. Mr. Dana of Groton observed, that nobody was more ready to accord in a tribute of praise to the venerable President elect, than himself. Yet, perhaps, he might not vote, in this case, precisely for the same reason, and on the same grounds, as were stated in the preamble to the resolve. This preamble, among other things, alluded to the efforts of the venerable gentleman, in defeating the intrigues against the peace of 1783. This was founded on a sup- position, that the Court of France had entered into intrigues, on that occasion, against the United States. He doubted whether there was such evidence of that fact, as that we ought to assert it. This resolution would be read abroad, as well as at home, and we ought to be careful therefore as to what is alleged. He believed that no public history had given an account of such intrigues ; and we were in possession of no regular documents to prove the allega- tion. He doubted therefore the propriety of making this declara- tion, under such circumstances. Mr. Blake of Boston expressed his satisfaction with the preamble as it stood. He believed it to be true, and that documents existed by which it could be proved. Judge Davis of Boston said it "v^as a delicate subject, and doubted ■^hether ^he expression might not usefully be modified. It was 12 MASSACHUSETTS CONVENTION. desirable, he thought, to avoid anything which might be injuriously interpreted. Chief Justice Parker observed, that he should be sorry that the preamble should contain anything which should not be satisfactory to every gentleman present. He had no doubt, however, of the truth of this part of it. He had the pleasure of knowing a gentle- man, now a citizen of Maine, an early friend to this country, and an enlightened friend to the liberties of all countries, and who was at that time in a situation to command the best sources of informa- tion ; and from him, as well as from other sources, he had been satisfied as to the truth of the statement in the preamble in this particular. He wished, however, to avoid anything which might lead to a protracted discussion, and should be quite willing to adopt any modification of the expression which should render the resolu- tion more conformable to the sense of the gentlemen present. Judge Story observed, that he had a view of this question, some- what difi'erent from that taken by -the Hon. gentleman from Groton. The preamble to these resolutions professed to contain a short sum- mary of the political services of the eminent and distinguished man, who had just been elected President of this body — and, for his part, he should have thought that enumeration of services most unsatisfeictory, if it had not made mention of this, in his opinion, most important and essential public service. He believed no act of the venerable gentleman's life had been more marked -jvith firmness, ability and undaunted courage. To pass over this, would be, he thought, to deprive him of one of his best earned and most valued laiurels. If this afi'air had not become matter of history, it was time it had. Its truth was well known to those of this generation, who had attended to the subject, and who were acquainted with the history of the treaty of 1783 — and he thought nothing more fit than that an expression of the sense of this Convention, on this im- portant topic, should now be made, since the truth of the fact, he presumed, existed in the knowledge and belief of every gentleman present. He gave to this resolution his niost cordial support on all accounts, and not the least on account of the just tribute paid to the private virtues of the object of it ; virtues, by which it is shown how much the value of distinguished talents is increased by an association with spotless character, and the qualities which dignify retirement. A modification was subsequently made in the phraseology of this part of the preamble, by the Hon. mover ; after which the resolu- tions were unanimously adopted. The conunittee then proceeded to wait on the President elect and the resolution was read to him by the Hon. Mr. MortonI On the return of the committee to the House they made report, and communicated the following written answer from Mr. Adams in which he declined the appointment. " FeUow CUizens — An election at my age and in my circumstances, by the free Bufla-ages of so ample a representation of the fqrtune^ and talents, the experience and MASSACHUSETTS CONVENTION. 18 wisdoia^-the authority, the viitnes and the piety of the ancient and renowned state of Massachusetts, I esteem the purest and fairest honor of my life, and my gratitude is proportionally ardent and sincere. I pray you, gentlemen, to present to the Con- vention my most cordial thanks, " Your enumeration of services performed for this country, recals to my recollec- tion the long services and succession of great and excellent characters with whom I have had the honor to act in the former part of my life, and to whose exertions I have endeavored to add my feeble aid ; characters who have been employed by Divine Providence, as instruments in preserving and securing that unexampled liberty which this nation now possesses, " That liberty which is the source of all our happiness and prosperity — a prosperity which cannot be contemplated by any virtuous mind without gratitude, consolation and delight — may it be perpetual. Gentlemen, as my age is generally known,* it will readily be believed that my forces are too far exhausted to perform the arducnis duties of the high office which the benevolence of the Convention has assigned to me. "I am therefore under the necessity to request permission of the Convention to decline the appointment, and to pray that some other gentleman may be elected, whose vigorous age, and superior talents, may conduct their deliberations with more convenience to themselves, and with greater satisfaction to the people of the Com- monwealth at large. JOHN ADAMS." This answer having been read, on motion of the Hon. Mr. Bliss, it was resolved that the House proceed to the choice of a President in the place of the Hon. John Adams, who declined the appointr ment. It was ordered that the Hon. Messrs. Wells of Boston, Lyman of Northampton, Lincoln of Worcester, Davis of Plymouth, and Sullivan of Brookline, be a committee to receive and cotmt the votes. The ballots being taken, the committee reported that the whole number of votes was 388, necessary for a choice 195, that the Hon. Isaac Parker had 195, and was chosen. The other votes were for Hon. Judge Story 130, Hon. John Phillips 52, and eleven scattering. This result being declared, Chief Justice Parker addressed the House in substance as follows : He said he felt highly honored by the appointment. That he had been for thirty years unaccustomed to the proceedings of delib- erative bodies, and was probably not so competent as many gentle- men about him to perform the duties of the office ; but he felt it his duty to accept, trusting that many gentlemen more versed in the forms of proceedings in legislative bodies would aid him with their advice and counsel. He could undertake that in the exercise of his duties he would be strictly impartial, and that he would be ready to listen to the superior wisdom of those about him. If he had preconceived opinions with respect to the constitution they should not interfere with the impartial discharge of his duty. It would be one object to preserve order in the deliberations and pro- ceedings of the House. This would not be difficult, seeing how the House was composed, being a fair representation of a people remarkable for their habits of order and decorum. With respect to anything in which greater experience was requisite, he should rely on the aid of gentlemen capable of rendering the assistance he should • rMr. Adams was born Oct. 30, 1735. He was accordingly at Uiis lime in ihe 86lh year of his ago.] 14 MASSACHCSETTS CONVENTION. require. He proceeded to declare his acceptance of the appoint- ment, ajid was conducted to the chair. On motion of Gen. Varnum of Dracut, it was ordered that the Sec- retary be directed to furnish a competent number of copies of the Constitution of the Commonwealth interleaved, for the use of the members of the House. On motion of Mr. Prince of Boston, the House resolved that they would now attend prayers. On the invitation of the President, the Rev. Dr. Freeman led in the devotions of the House. On motion of the Hon. Mr. Morton of Dorchester, it was ordered that a chair should be provided on the right of the President, and appropriated as the permanent seat of the Hon. JOHN ADAMS. On motion of Lieut. Governor Phillips, modified at the sugges- tion of Judge Dana, it was ordered, that a committee be appointed for arranging the seats of the members, and providing suitable seats for the accommodation of His Excellency the Governor and the members of the Council when they should choose to attend the Convention. This committee consisted of Messrs. Dana, Russell of Boston, Parker of Charlestown, Abbott of Westford, and Hunt of Northampton. On motion of Mr. Russell of Boston, a committee was appointed on the election and returns of delegates, consisting of Messrs. Dana, Richardson of Dedham, Hubbard of Boston, Cummings of Salem, Bangs of Worcester, Hodges of Taunton, and Moses Porter of Hadley. On motion of Mr. Shaw of Boston, it was ordered that a com- rriittee be appointed to report Rules and Orders for the regulation of the House, and that in the mean time the rules and orders of the House of Representatives be the rules of the Convention as far as they are applicable. This committee was composed of Messrs. Shaw, Leland of Roxbury, Saltonstall of Salem, Locke of Ashby, and Parker of Charlestown. Mr. Webster of Boston presented the remonstrance of Gamaliel Bradford and others inhabitants of Charlestown, against the election of Leonard M. Parker, one of the delegates returned for that town, on account of the irregular proceedings of the selectmen who pre- sided at the election. The ground of objection is, that a vote hav- ing passed to elect six delegates, and a ballot for six having resulted in the choice of five persons only, a motion was made that the vote should be rescinded so far as related to the election of a sixth — ^and that the five persons chosen should be the delegates for the town — which motion the selectmen refused to put, as well as an appeal from the decision of the selectmen that the motion was irregular. A new ballot was called for, and at eight or nine o'clock it was de- clared that Mr. Parker was elected. This remonstrance was refer- red to the committee on elections and returns. On a motion of Mr. Russell of Boston, it was ordered that a messenger to the House should be appointed with authority to ap- point such assistance as should be necessary. The President ap- pointed Jacob Kuhn to this office. MASSACHUSETTS CONVENTION. 15 Mr. Webstek moved that the Chaplains of the two houses of the Legislature be requested to officiate alternately as the Chaplains to the Convention. Before this motion was disposed Of, an adjourn- ment was called for, and after agreeing, on motion of. Mr. Pkince, that the hour of meeting daily should be ten o'clock in the morning until otherwise ordered, the House adjourned. Thursday, November 16. At 10 o'clock the President took the chair. The Hon. John Adams was introduced by a committee appointed for the purpose, and conducted to the seat assigned him on the right of the Presi- dent. As he entered, the members of the Convention rose and stood, uncovered until he was seated. The Convention attended pr&yers offered by the Rev. Dr. Bald- win on invitation of the President, no Chaplain having been chosen.. Gen. Porter of Hadley, Messrs. Greenleaf of Q,uincy, Endi- coTT of Dedham", Howard of Brjdgewater, and Valentine of Hop- kinton were appointed Monitors of the Convention. The order of the day, being Mr. Webster's motion that the Chap- lains of the two houses of the General Court should be requested to serve as Chaplains of the Convention, was called up. Col. Turner of Scituate moved as a substitute to the motion, that the several clergymen of diflferent denominations in the town of Boston, should be requested to officiate alternately. This motion was declared to be out of order. Mr. Webster's motion was put and carried in the affirmative. For the motion 232. Mr. Shaw, from the committee appointed to report rules and or- ders for the regulation of the Convention, made a report. The report, with the amendment subsequently adopted, was as follows : RULES AND ORDERS, To be observed in the Convention of Delegates for the Common- wealth of Massachusetts, met on Wednesday, the 15th of Novemr ber, 1820; CHAPTER I. Of the Dvties and Powers of the President. Sect. 1. The President shall take the chair every day, precisely at the hour to which the Convention may have adjourned ; shall call the members to order, and on the appearance of a quorum, shall cause the journal of the preceding day to be read and proceed to business. Sect. 2. He shall preserve decorum and order ; he may speak to points of order in preference to other members, and shall decide all questions of order subject to an appeal to the Convention, on motion of any member regularly seconded. Sect. S. He shall declare all votes ; but if any one member doubts the vote, the President shall order a return of the convention, with the numbers voting in the af- firmative and in the negative, and shall declare the result. Sect. 4. He shall rise to put a question or address the Convention, but may read sitting. Sect. 5. In all cases, the President may vote. Sect. 6. When the Convention shall determine to go into a committee of the whole, the President shall appoint the memher who shall take the chair. 16 MASSACHUSETTS CONTENTION. Sect. 7. When any member shall require a question to be determined by yeas and nays, the President shall take the sense of the Convention in that manner, pro- vided that one fifth of the members present are in favor of it. Sect. 8. He shall propound all questions, in the order they were moved, unless the subsequent motion shall be previous in its nature ; except that in naming sums and fixing times, the largest sum and the longest time shall be first put. Sect. 9. After a motion, being seconded, is stated or read by the President, it shall be deemed to be in possession of the Convention, and shall be disposed of by vote of the Convention ; but the mover may withdraw it at any time before a decis- ion or amendment. Sect. 10. When a question is under debate, no motion shall be received but to adjourn, — ^to lay on the table, — for the previous question, — to postpone indefinitely, — to postpone to a day certain, — to commit, or — to amend ; which several motions shall have precedence, in the order in which thej> stand arranged. Sect. 11. The President shall consider a motion to adjourn as always in order, and it shall be decided without debate. Sect. 18. He shall put the previous question in the following form, " shall the main question be now put," and all amendments or further debate of the main ques- tion shall be suspended, until the previous question be decided ; and the previous question shall not be put, unless a majority of the members present are in favor of it. Sect. 13. When two or more members happen to rise at once, the President shall name the member who is first to speak. Sect. 14. All committees, except such as the Convention shall from time to time determine to select by ballot, shall be nominated by the President. Sect. 15. The President shall have the general direction of the Hall of the Con- vention, and of the Galleries. No person excepting members, officers and attendants of the Convention and such persons as may be invited by the Convention, or by the President shall be admitted within the Hall. The chairman of each committee of the whole, during the sitting of such committee, shall have the like power of preserv- ing order in the hall and in the galleries. CHAPTER 11. Of the Rights, Dviits and Decorum of Members. Sect. 1. When any member is about to speak in debate or deliver any matter to the Convention, he shall rise and respectfully address the President ; he shall con- fine himself to the question under debate, and avoid personality. He shall sit down as soon as he has done speaking. Sect. 2. No member in debate shall mention a member then present by his name , but may describe him by the town he represents, the place he sits in, or such other designations as may be intelligible and respectful. Sect. 3. No member speaking shall be interrupted by another, but by rising np to call to order, or to correct a mistake. But if any member in speaking or other- wise, transgress the rules of the Convention, the President shall, or any member may, call to order, in which case, the member so called to order, shall immediately sit down unless permitted to explain, and the Convention shall, if appealed to, decide on the case, but without debate ; if there be no appeal, the decision of the chair shall be submitted to. Sect. 4. No member shall speak more than twice to the same question, without first obtaining leave of the Convention, nor more than once, until all other members desiring to speak, shall have spoken. Sect. 5. When any membpr shall make a motion, and such motion shall be sec- onded by another, the same shall be received and considered by the Convention, and not otherwise ; and no member shall be permitted to lay a motion in writing on the table, until he has read the same in his place, and the same has been seconded. Sect. 6. Every motion shall be reduced to writing if the President direct it. or at the request of any member of the Convention. [Sec. 7, not accepted but recommitted.] Sect. 8. No member shall be permitted to stand up to the intefniptioh of another, whilst any member is speaking, or pass unnecessarily between the President and the person speaking. Sect. 9. When a vote is declared by the President, and any member rises to doubt the vote, the Convention shall be returned and the vote made certain, without any further debate upon tiie question. Sect. 10. Every member neglecting to give his attendance in Convention for MASSACHUSETTS CONVENTION. 17 more than sk days after the commencement of the session, shall be held to render the reeison of such neglect ; and in case the reason assigned shall be deemed suffi- cient, such member shall be entitled to receive pay for his travel, but not otherwise. No member shall be absent more than two days without leave of the Convention, and no leave of absence shall avail any member, who retains his seat more than five days from the time the same was obtained. Sect. 11. All papers relative to any business before the Convention shall be left with the secretary, by any member who may obtain leave of absence, having such papers in his possession. Sect. 12. When any member shall violate any of the rules and orders of the Convention, and the Convention shall have determined that he has so transgressed, he shall not be allowed to speak or vote, until he has made satisfaction, unless by way of excuse for the same. Sect. 13. Every member who shall be in the Convention when a question is put, shall give his vote, unless the Convention, for special reasons, shall excuse him. Sect. 14. On a previous question, no member shall speak more than once, with- out leave. Sect. 15. A motion for commitment, until it is decided, shall preclude all amend- ment of the main question. Sect. 16. All motions and reports may be committed "or recommitted, at the pleasure of the Convention. Sect. 17. The division of a question may be called for, where the sense will admit of it ; but a question to strike out and insert shall be deemed indivisible. Sect. 18. When the reading of a paper is called for, aiid«the same is objected to by any member, it shall be determined by a vote of the Convention. Sect. 19. The unfinished business, in which the Convention was engaged at the time of the last adjournment, shall have the preference in the orders of the day, and no motion or any other business shall be received without special leave of the Con- vention, until the former is disposed of. Sect. 20. No standing rule or order of the Convention shall be rescinded or changed, without one day's notice being given of the motion therefor. Sect. 21. When a vote is doubted, the members for or against the question, when called on by the President, shall rise and stand uncovered, until tiiey are counted. CHAPTER III. Of the appointment and duties of Monitors. Sect. 1. One Monitor shall be appointed by the President for each division of the Convention, whose duty it shall be to see the due observance of the orders of the Convention, and on demand of the President, or of the chairman in committee of the whole, to return the number of votes and members in their respective divisions. Sect. 2. If any member shall transgress any of the rules or orders of the Conven- tion, and shall persist therein after being notified thereof by any Monitor, it shall be the duty of such Monitor to give information thereof to the Convention. Sect. 3. In case the President shall be absent at the hour to which the Conven- tion stands adjourned, the Secretary shall call the Convention to order, and shall preside until a President pro tempore shall be chosen, which shall be the first busi- ness of the Convention. CHAPTER IV. Of Communications, Committees, Reports, and Resolutions. Sect. 1. All memorials and other papers, addressed to the Convention, shall be presented by the President, or by a member in his place, and shall lie on the table, to be taken up in the order in which they were presented, unless the Convention shall otherwise direct. Sect. 2. No committee shall sit, durmg the sitting of the Convention, without special leave. Sect. 3. The rules of proceeding in Convention shall be observed in a committee of the whole, so far as they may be applicable, excepting the rule limiting the times of speaking ; but no member shall speak twice to any question, until every member choosing to speak shall have spoken. Sect. 4. Every motion or resolution, which proposes an alteration in the consti- tution, and all reports of Committees, appointed to consider the propriety and expe- diency of making any alteration therein, shall be discussed in committee of the whole, before they are debated and finally acted upon in Convention. 3 18 MASSACHUSETTS CONVENTION. Sect. 5. Every resolution of the Convention, proposing any alteration in the constitution, shall be read on two several days, before it is finally acted upon and adopted by the Convention. Sect. 6. In all elections by ballot, of committees of the Convention, the person having the highest number of votes shall act as chairman ; and when the committee is nominated by the Chair, the person first named shall be chairman. A rule in the original report, providing that in case the President should be absent at the time for calling the House to order, one of the monitors should call the House to order, and preside until a Pres- ident pro-tempore should be chosen, was the subject of some de- bate. The rule was finally altered so as to make it the duty of the Secretary to preside in the case specified. Mr. Bliss of Springfield moved to amend the rule providing for the case of reconsideration, in such manner that no vote of the House should be reconsidered, except on motion of a member who voted with the majority. A member, whose name we did not learn, objected to the amend- ment, that it would preclude any one who was absent, or did not vote, from the right of moving a reconsideration. Mr. Webster said that it was proper it should operate in that manner ; it was the duty of every member to be present. No one should be absent flattering himself that he might remedy any mis- chief that he conceived to be done in his absence, by moving a re- consideration of the subject. Mr. Dana of Groton observed that we ought to guard against trammelling ourselves with too much regulation. He thought it im- proper that the right of moving for reconsideration should be con- fined to one who voted in the majority. We are in the habit of reviewing our proceedings, and an opportunity for reconsideration should be open. Besides, it might be unpleasant for a member in the minority, to be under the necessity of supplicating one in the majority, to make a motion for him. Mr. duiNCY of Boston said, that from the very nature of a pro- position for reconsideration it should come from the majority. It is a proposition to review, for the purpose of furnishing the opportu- nity for members to vote differently from what they had already voted. The motion therefore should come from one who wished this opportunity, and not from those who were satisfied with the vote they had given, and only wished to bring the majority to their opinion. He said, also, that it was improper that a member vho has had the opportunity of urging his views and been overruled by the House, should have the power of renewing it under the shape of a reconsideration. Mr. Slocumb of Dartmouth said that he was afraid we were pur- suing a shadow and losing the substance. That by endeavoring to save time by limiting the right of reconsideration, we might be dis- abled from coming to the most mature results ; that a minority of great talents because they were out-voted would be deprived of the opportunity of enlightening the majority and inducing them to change their opinion, unless some one would accommodate them by making the motion. MASSACHUSETTS CONVENTION. 19 Mr. Webster said he considered the rule to be of great import- ance ; he wished every subject which came before the Convention to be thoroughly discussed, but he wished it to be done according to the rules of legislative bodies, which amply provided for mature deliberation, and guarded against surprise by requiring every act to pass through several readings at prescribed periods. Every member conversant with the proceedings of deliberative assemblies must have observed the inconvenience from the practice of frequently recon- sidering votes which have been passed. No vote should pass without every member being ready to act upon it at the several stages. Mr. Sibley of Sutton said he had another objection to the amend- ment of the member from Springfield ; that it was impossible to tell who did vote in the majority, and that some mode therefore of as- certaining this should be inserted in the rule. He was however himself opposed to the whole amendment. Mr. Q-uiNCY said that if the question had been taken by yeas and nays, it would appear on the journals who voted in the majority, and in any case, the member moving for a reconsideration would show his right to make the motion by stating that he had so voted. Mr. Foster of Littleton said he was not satisfied with the rule. He said we were debarred by it of privileges to which we had been accustomed. It had been urged that it would shorten debate, but he said that a minority might convince the majority and it was more important to come to a right decision than to save the time of the Convention. Mr. Prince of Boston spoke against the amendment. He agreed that it was the duty of members to be present. But a member from one of the neighboring towns might go home on Saturday with the best intentions of returning on Monday, but be prevented by a storm or accident. He thought that in any such case they ought not to be precluded from the right of being heard. Mr. Mattoon of Amherst moved that this article should be re- committed to the committee who reported it. Mr. Dawes of Boston opposed the recommitment, and expressed his hope that the motion to amend would prevail, for the reasons that had been stated, and for the additional one, that in all large bodies some members wanted to be speaking all the time, and it was necessary to have rules to restrain them. With respect to the difficulty of the gentleman from Sutton, that there was no mode of ascertaining who was in the majority, he said we might rely on the honor of any member of the Convention. Mr. Blake of Boston was opposed to the recommitment because he was satisfied with the amendment proposed. He said that if ever there were an occasion for being governed by prescribed rules of proceeding to prevent debates from running to an unnecessary length, it is now, in so numerous an assembly, almost a council of five hundred. From the importance of the occasion every member would be disposed to be in his place. 20 MASSACHUSETTS CONVENTION. Mr. Mattoon said that he did not move to recommit, because he -was averse to the amendment ; on the contrary, he approved of it ; but he thought the recommitment would give an opportunity to gentlemen of considering the subject and satisfying themselves. Mr. Apthorp of Boston spoke in favor of the recommitment. Mr. Morton of Dorchester was opposed to the recommitment and to the amendment. He said every member should have equal rights, and that he would rather prohibit all reconsideration, than that a delegate from one town should be allowed to call for it, while the right was denied to another. Mr. Austin of Boston was in favor of the amendment, but thought it necessary to recommit, for the purpose of rendering the rule more perfect in another respect. He replied to the argument of the gentleman who preceded him. The question of recommitment was taken, and decided in the aflarmative, 249 to 97. Mr. John Phillips of Boston moVed to amend by striking out the rule which prohibits any one in debate from speaking of a member who is present, by his name. He thought that in smaller bodies the rule was a good one ; but in the present assembly con- taining so many members from a single town, it was in some in- stances impossible to designate an individual alluded to, in the mode required by the rule. Mr. Stokt of Salem said it was not consistent with the dignity of the assembly to depart from the usage of all deliberative bodies, and to permit individuals to be called by name in debate. He thought there would be no difficulty in adhering to the rule. Mr. PicKMAN of Salem spoke against the amendment. Mr. Sibley of Sutton was in favor of the amendment. He thought the rule unnecessary. Our rules would be known abroad, and he was averse to its going across the Atlantic that we are so uncivil, as to require being trammelled by such rules. Mr. Webster observed, that the best argument in favor of the rule was, that the reasons offered against it, are in contradiction to each other. It was objected to by the mover of the amendment, that it could not be enforced, and by the gentleman who last spoke, that it would enforce itself. Mr. Sibley rose to explain. The motion to amend was with- drawn. Mr. Morton moved to amend the rule regulating the taking of yeas and nays. He moved to strike out the number "fifty," re- quired for taking the yeas and nays, and to insert "one hundred." He said that much time was wasted in a call of the yeas and nays and that fifty was too small a number of members to be entitled to make the call. His motion was adopted — 226 in favor and 137 against it. Mr. QuiNCY moved to strike out the rule for the purpose of in- troducing a substitute, the nature and object of which he explained. This motion was carried, 297 voting in favor. He proposed a rule MASSACHUSETTS CONVENTION. 21 which he modified on the suggestion, of Mr. Wellks of Boston, requiring one fifth of the members present to support a call for the yeas and nays. This substitute was accepted. The report as amended was accepted, with the exception of the rule recommitted. Mr. Turner moved that a committee be appointed to determine the compensation of the members of the Convention, and to make out a pay-roll. At the suggestion of Mr. Sibley, Mr. Turner agreed to sever the motion. The first part was then voted, and a committee appointed, consisting of Messrs. Turner, Sibley, Ran- TOUL of Beverly, Draper of Brookfield, and Prince of Newbury- port. Messrs. Ellis of Dedham, Sturgis of Boston, and Shepard of Salem, were appointed a committee to draft a pay-roll. Mr. Dana rose, and after observing that the House was now or- ganized, and that it was necessary to proceed to the business for which the Convention was called, declared that he felt embarrassed in proposing any course of proceeding. He said that after forty years' experience of the beneficial eff"ects of the constitution, the people had seen fit to choose delegates to make a revision of it. He had not had opportunities for judging of the sense of the people at large, but he knew that it was the opinion of those he had been with, particularly of his own constituents, that the constitution should be approached with great reverence, and that we should proceed with the greatest caution. He was much relieved from his apprehensions of any evil consequences, by the appearance of the Etssembly, composed as it was, of men of so much experience ; of so many who had been called to administer the government in the legislative and judiciary departments. He observed that a revision must be had ; the constitution was made in the time of war and soon after the declaration of inde- pendence, and some changes were necessary. He doubted his abil- ity to suggest the best course of proceeding. He said that the constitution must either be re-drafted or the amendments be interwoven with it. For the purpose of enabling the Convention to shape their course of proceeding, and to draw forth abler men than himself he would submit the following prop- osition: That the part of the constitution relating to the Senate should be so amended that there should be thirty-one Senators chosen to act as Senators only, and apportioned in districts accord- ing to the number of inhabitants. Mr. Webster moved that the resolution be committed to a com- mittee of the whole House and be made the order of the day for tomorrow. Mr. Russell of Boston was desirous that this subject should not be discussed until the committee for the arrangement of the seats had made their report, and that it should be made the order of a more distant day. 22 MASSACHUSETTS CONVENTION. Mr. Varnum of Dracut yrished that a different plan might be pursued from that proposed by the gentleman from Groton. He said we were appointed to revise the constitution, and he thought it our duty to begin at the beginning of it and go through it in course. Mr. Prescott of Boston rose and said, that he had a motion to make when it should be in order, which he thought would meet the views of the gentleman from Dracut, though not precisely sim- ilar to the one he had suggested. He said he concurred with the gentlemEin from Groton that the constitution should be approached with reverence ; that it should be touched with a trembling hand, and he believed that the Convention would proceed with the great- est caution. It had stood the test of forty years ; we had grown up under it ; it was interwoven with our habits and associations ; our institutions were founded upon it; and no one could predict what would be the consequences of any innovations in it. The only safe rule for our direction, should be, experience. Whatever alteration experience had demonstrated to be necessary or benefi- cial, ought to be adopted, and no other. Wherever there is doubt whether an alteration will be beneficial, it is our duty to wait for further light from experience. We had just reason to feel a degree of pride that forty years a^o, men and statesmen were found to frame, and the people had virtue and intelligence enough to adopt a better frame of government, than any on earth before that day. It had served, in some measure, as a model for all that have been formed since. How great would be the reproach, if, after the lapse of forty years, we should make alterations to impair the benefits derived from this constitution. No change had been wished, no Convention had been thought of, until the formation of a new state from a part of the Common- wealth. The people were satisfied with the constitution, and did not wish to avail themselves of the opportunity of revision in 1795, when it might be done in conformity with the constitution itself. Discontent with the government had sometimes shown it- self, but none with the constitution; and the revision now would not have been thought of, but from the supposed necessity in con- sequence of the separation of Maine from the Commonwealth. He inferred this from what he knew of the opinions of the peo- ple, and from the small number of votes which were given on the proposition for a Convention. It may have been expedient to take the subject of amendment into consideration. We had lived se- curely and happily under the constitution, but changes take place in the condition of human affairs ; defects creep into the best insti- tutions. He proceeded to consider in what manner the duty imposed upon the Convention could be best performed. He agreed with the gen- tleman from Dracut, that we were to revise the whole constitution, and to report to the people our opinion on the whole. He thought it would be necessary to submit the subject to a committee. A MASSACHUSETTS CONVENTION. 23 committee of the whole, was too numerous to discuss it advantage- ously, and it was iadispensable that it should go into the hands of a smaller number. Shall it then be submitted entire to one large committee, or iii parts to several? There were objections to the first mode. A siagle committee could embrace but a small portion of the intelligence of the House ; they would have too much to do ; their attention would be distracted, and while they were .preparing their report the principal part of the assembly would remain unoc- cupied. They would not be able to report upon a part so soon as a committee whose attention was confined to that part. He had thought with other gentlemen with whom he had conversed that it could be examined with greater despatch and clearness by appor- tioning it to several select committees. He said that no inconve- nience could arise from this course, as a distinct subject could be referred to each committee. He would have the committees as large as could well act on the subject. We should thus have all the different parts revising at the same time. Some of the com- mittees who would have much labor would report late, and others in a short time. With these views he had prepared some resolu- tions which he would submit. He then proceeded to read the fol- lowing resolves, accompanied with remarks upon each : — 1. Unsolved, That so much of the constitution of this Commonwealth as is con- tained in the first part or declaration of rights, be referred to a committee to take nto consideration the propriety and expediency of making any, and if any, what alterations or amendments therein, and report as soon as may he. 2. Resolved, That so much of the constitution of this Commonwealth as is con- tained in the first section of the first chapter of the second part, and respects the Gen- eral Court, be referred to a committee to take into consideration the propriety and expediency of making any, and if any, what alterations or amendments therein, and report thereon as soon as may be. 3. Resolved, Thkt so much of the constitution of this Commonwealth as is con- tained in the second section of the first chapter of the second part, and respects the Senate ; and also so much thereof as is contained in the third section of the same chapter, and respects the House of Representatives, be referred to a conmiittee to take into consideration the propriety and expediency of making any, and if any, what alterations or amendments therein, and report thereon as soon as may be. 4. Resolved, That so much of the constitution of this Commonwealth as is con- tained in the first section of the second chapter of the second part, and respects the Governor, militia, &c. be referred to a committee to take into consideration the pro- priety and expediency of making any, and if any, what alterations or amendments therein, and report thereon as soon as may be. 5. Resolved, That so much of the constitution of this Commonwealth as is contained in the second section of the second chapter of the second part, and respects the Lieut. Governor ; and also, so much thereof as is contained in the third section of the same chapter, and respects the Council and the manner of settling elections by the Legis- lature, be referred to a committee to take into consideration the propriety and expe- diency of making any, and if any, what alterations or amendments therein, and report thereon as soon as may be. 6. Resolved, That so much of the constitution of this Commonwealth as is con- tained in the fourth section of the second chapter of the second part, and respects the Secretary, Treasurer, Commissary, &c. be referred to a committee, to take into con- sideration the propriety and expediency of making any, and if any, what alterations or amendments therein, and report thereon as soon as may be. 7. Resolved, That so much of the constitution of this Commonwealth as is con- tained in the third chapter of the second part, and respects the Judiciary power, be referred to a committee to take into consideration the propriety and expediency of 24 MASSACHUSETTS CONVENTION. making any, and if any, what alterations or amendments therein, and report thereon as soon as may he. 8. Resolved, That so much of the constitution of this Commonwealth as is con- tained in the fourth chapter of the second part, and respects delegates to Congress, he referred to a committee to take into consideration the prepriety and expediency of making any, and if any, what alterations or amendments therein, and report thereon as soon as may be. 9. Resolved, That so much of the constitution of this Commonwealth as is contained in the fifth chapter of the second part, and respects the University at Canibridge, and the encouragement of literature, &c. be referred to a committee to take into consid- eration the propriety and expediency of making any, and if any, what alterations or amendments therein, and report thereon as soon as may be. 10. Resolved, That so much of the constitution of this Commonwealth as is con- tained in the sixth chapter of the second part, and respects oaths and subscriptions, &c., be referred to a committee, to take into consideration the propriety and expe- diency of making any, and if any, what alterations or amendments therein, and report thereon as soon as may be. Upon reading each resolve he communicated the principal objects embraced by it, and proposed that the committee should be larger or smaller according to the importance and difficulty of the several subjects. He said that he would propose upon the bill of rights embraced by the first resolve a very large committee, to consist per- haps of twenty-one members. The part of the constitution relating to the Senate and House of Representatives, embraced in the third resolve, he would have committed to a committee equally large. This subject, he said, was of great importance, and one on which there might be a difference of opinion. The article relating to the Senate was generally considered to require amendment. As to the House of Representatatives he did not know that any amendment would be expected. No doubt inconveniences were experienced from the large niimber of representatives, but he should be opposed to any alteration unless it could be made in a manner which would be generally satisfactory. The subjects embraced by the other resolves had fewer difficulties and might be referred to smaller com- mittees. He wished it to be distinctly understood, that he made these propositions because he thought it their duty to act upon the whole subject, not that he expected or desired any alterations on all the articles, or on any except such as are necessary. Mr. Dana then said that as the subject had been examined, and fully reviewed by the distinguished gentleman who had brought for- ward these propositions, whose views he was happy to find as far as he could understand them nearly coincided with his own, withdrew his motion, Mr. Prescott then laid his resolutions on the table and they were read from the chair. Mr. Varnum moved that they should lie upon the table until tomorrow. He said he was afraid that if they took the constitu- tion to pieces and dissected it in the manner proposed, they should not be able to put it together again. It Avas like sending mechanics into the woods in different directions to hew down trees and fit them there for a building. He thought that the whole should be be considered together. MASSACHUSETTS CONVENTION. 25 It was then ordered that the resolves lie on the table till tomorrow and be the order of the day, and be printed in the mean time for the use of the members. Mr. Dana, of the committee for arranging the seats, reported that the members, except monitors, should draw lots in presence of the Secretary and the messenger. And that members should be at lib- erty to make exchanges within five days, giving notice to the Sec- retary. On motion of Mr. Webstek, ordered, that the oldest member of the Boston delegation should give notice to the Chaplains, of the vote passed in relation to them, and request them to perform the duties of Chaplains of the Convention. Mr. Q.UINCY, at the request of the proprietors of the Boston Athe- naeum, informed the members of the Convention that their library and rooms were open for their use whenever they should^ choose to visit them. Adjourned. FarDAY, November 17. The members of the Convention having drawn for places in the interval since the last adjournment, in pursuance of the order of yesterday, took the seats thus designated, this morning. The committee appointed to inform the Chaplains of the two houses of the General Court of the vote yesterday in relation to them, having reported that they accepted the appointment as Chaplains of the Convention, and the House being called to order by the President, prayer was inade by the Rev. Mr. Jenks, Chaplain of the House of Representatives. The journal of yesterday's proceedings was read by the Secretary. Hon. John Adams of Q,uincy rose, and observed that the Con^ vention was yesterday informed that the Proprietors of the Boston Athenaeum had tendered to the members of the Convention the use of their Library collections. He thought that such an instance of politeness deserved a return on the part of the Convention. He therefore moved that the thanks of the Convention be given to the Proprietors of the Athenaeum for their liberal offer. A vote of thanks was passed accordingly. Col. Turner, from the committee to whom was referred the subr ject of compensation of members, made a report, which report was laid on the table and read as follows :— r Ordered, That there be allowed and paid out of the Treasury of this Commonwealth to each member of the Convention, two dollars per day for each day's attendance on the Convention, and tiie like sum for every ten miles travel from their respective places of abode to the place of the sitting of the Convention. And be it further Ordered, That there be paid to the President of the Convention two dollars per day for each and every day's attendance over and above his pay as a member. The report was accepted. 4 26 MASSACHUSETTS CONVENTION. The order of the day being called up, Mr. Slocum 6f Dartmouth. — Mr. President, I feel myself very incompeterlt to lead the way in the discussion which is to take place on the subject of the resolves (proposed by Judge Prescott,) which have now been read. When I look around me and see so many venerable men experienced in public affairs, some of whom have had a share in making our constitution, and many have taken a part in the administration of it, I feel the smalless of my abilities, but I deem it my duty to express my sentiments on the resolutions, confident that what is well intended will be favorably received. I thbught the first question would be whether we should make any amendment in the constitiition ; but now we are taking this for granted, and parcelling it out in order to make them. We are leap- ing the stile before we get to it. 1 hope the report will not prevail ; I do not know that my wishes will prevail, but I think it my duty to express them. I shall now sit down, and hea;r what other gen- tlemen have to say, and I shall be very happy to be convinced by their arguments ; otherwise I shall remain opposed to these resolu- tions. Mr. Dana of Groton said, that as no gentleman rose to present his views to the Convention, he would make a few observations. He said that the inquiry now presented, was whether the mode proposed was the best method of entering upon' the business of the Convention. The old convention had no land-mai-ks' to diredt them in the course which they Nvere to pursue; but our labors were of a difi'erent kind. We had a constitution, 'whiilAi was believed by many to be perfect already. It was stated by the gentleman whto moved the resolutions (Judge Pbkscott), that thewhole constitution was to be revised by us. This sentiment met with his eritire and hearty approbation. He approved of the form in which thte' subject had been presented in these resolutions, ' because he presumed that different gentlemen had come with views to particular 'parts; and certain members would be better masters of particular parts than any could be of the whole entire. The several committees will have studied the parts referred to them, and when their reports come in, they would be more complete and Satisfactory. There would besides be a large body of the members assembled, who 'could not be much employed, till the subjects had'been matured in the com- mittees. That mode which will employ' the greatest' number was the best. He had not examined whether the subject 6ould be dif- ferently divided, but it was not material in what manner it was divided. The forms are such, that every member Can be assured that his propositions will have full consideration ; and he was on the whole well satisfied with the mode proposed. He was not able to conceive a mode' better adapted' than the one presented by the gen- tleman from Boston. 'Mr. Vahnum of Dracut. I am very sorry, Mr. President, to be compelled to differ from the gentleman from Groton. Great for- mality has been used in taking the sense of the. people of this Com- MASSACHUSETTS CONVENTION. 27 mon wealth, and a large majority havp voted in favor of a revision of the constitution. The several towns have in consequence sent their delegates to look over the constitution, and see whether it requires any, and what amendments. The people have judged foi' themselves that the, whole is Xo he revised ; but now. we are paif-' celling out the constitution, one part to one committee, and another to another, before we have deterinined that any amendment ought to be made. Now that we are assembled in Convention, it is our duty to inquire what we are to do, aiid what we may not do. (The hon. gentleman then read the third section of the act providing for calling the Conyention; w^iph section, among other things, prescribes that the delegates elepted, when organized, njay take into consideration the propriety and expediency of making any, and if any, what alterations and amendments in the present Constitu- tion of Government of the Commonwealth.) He proceeded — ^We have met according to the act, in the State House in Boston. So far we have done right. What further then are we to do ? We are to take into consideration whether the con- stitution requires any amendment. It appears to me that we are not to touch a finger to the sacred instrument, under which our institutions have grown up, under which we have so long enjoyed prosperity and happiness, until this question is decided. We are not to begin by parcelling it out in the manner proposed by these resolutions. In niy opinion, our only proper way is to read the whole constitution, either in convention, or in a committee of the whole, and point out those parts which require amendment, pro- ceeding article by article. The Convention is sent here to consider what will be for the piiblic good, not only of this generation, but of thousands yet unborn. What are the objections to the mode which I am recommending? That it will waste time? Instead of con- suming time, Mr. President, it will save time. Those parts which we pass over will stand firm, and those only which require amend- ment, will be left to occupy our attention ; but if we send out com- mittees, their reports will be discussed as much as the whole con- stitution ; and will thus cause a great deal of time to be wasted. If these resolutions shall not be adopted, I shall move, that the Con- vention resolve itself into a conimittee of the whole, in order that it may take such a coilrse as upon deliberation shall be deemed expe- dient. I shall vote against the present motion, in order to bring forward the proposition I have before suggested ; and the subject now before the Convention, I esteem of such vital importance, that I shall call for the yeas and nays on thB question when it shall be taken. The motion was th«n put, whether the question when takerr should be by yeas and nays, and carried — 139 in favor — ^being more than one fifth of the members present. Mr. Blake of Boston rose. Professing to have little acquaint- ance with the proceedings of legislative bodies, he had originally contemplated no course as most appropriate to this occasion. He was, however, yesterday much pleased with the mode proposed by 28 MASSACHUSETTS CONVENTION. these resolutions ; and, on further reflection, he had been more and more satisfied that it was the best possible course that could be pur- sued. It was impossible to give a construction to the law by which we should not at some time or other examine every part of the venerable instrument. What was a more convenient time to pro- ceed to examine it, and how could it be better done, than by taking it up in several parts. The gentleman from Dracut had observed that we had no liberty to put our finger upon a single article, until we had examined the whole instrument. He would ask, how it was possible to examine the whole constitution, without considering it in parts ? Mr. Vaknum rose to explain. His idea was, that they had no right to parcel it out until the Convention had decided that the whole should be the subject of amendment. Mr. Blake proceeded. How could the Convention determine whether the whole constitution should be subject to amendments, without first examining the paxts of which it is composed ? The language of the constitution was simple, and easily comprehended by persons of moderate capacity. Still, it embraced a variety of important subjects, and they must be, at some time or other, examined in all their parts. Can this be done more satisfactorily, than by dividing the whole instrument among a number of respect- able committees, leaving it to the whole Convention to judge and act upon their reports, and, afterwards, upon the whole constitution ? There was a great variety of opinions. Almost every individual had formed his particular project for amendment. Each one had his own ingredients to throw into the political cauldron, and it might be imagined what would be the mixture. He said it was their duty to bring into exercise the greatest portion of intellect which could be commanded in this body, and it was no compliment to say, that it would be of the highest character. This could not be done in any other manner, than by placing it in the hands of committees, judiciously selected. He did not think there was any force in the suggestion made yesterday, that this mode was calcu- lated to produce a mass of disjointed materials. If we assembled to form a new constitution, there might be some aptness in the com- parison of the gentleman (Gen. Yarnum) ; but God forbid that any of us should entertain an idea that we were to form a new constitu- tion. We have the power to examine the instrument committed to us, to supply its defects. We have a fabric already erected ; there may be defects in it. He believed that such as there were arose rather from accidental circumstances, than from any inherent fault. He believed that the manner which the gentleman from Dracut had proposed, would be attended with great mischiefs ; and that that ofi'ered in the resolutions on the table, was the best that could be devised. Mr. Hubbard of Boston said, that as they were appointed to revise the whole constitution, he would move to amend the first resolution, so as to include the preamble, together with the Decla- ration of Rights. MASSACHUSETTS CONVENTION. 29 The amendment was adopted. Mr. "Webstek observed, that the appointment of committees was no derogation from the powers of the Convention, nor a transfer of the trusts which the people had reposed in them, to others. It weis certainly true, that the Convention itself was bound to inquire into the propriety and expediency of making alterations in the constitu- tion. But how was it to inquire ? It was a numerous, deliberative body ; clearly resembling, in its organization, a numerous legislative body. It, therefore, had adopted its rules of proceeding, in general, from the practice of legislative bodies ; and, among others, the common rules respecting the appointment of committees. He would ask, therefore, why it might not proceed in the important inquiries before it, as other such bodies are accustomed to proceed ? It had been urged, by the honorable member from Dracut, that no committee ought to be appointed, on any part of the constitution, until the Convention had come to a conclusion that such part needed amendment. But why might not the Convention com- mence an inquiry into this v^ry matter, — the necessity of any alteration — by a committee ? It seemed to be treated in argu- ment, as if it were a proposition to confide in others, the authority committed to our own hands. He did not look upon the propo- sition in that light. Committees are but instruments and organs of the body which appoints them. They are but means, which the body uses to aid it, in its inquiries and investigations. The con- stitution of this Commonwealth confers on the General Court, and on no other body, authority to lay taxes, establish judicatures, and pass laws. The General Court cannot transfer or delegate this power; and yet every one knows that in exercising it, the General Court uniformly acts through the agency of committees. What tax is laid, what judicjature established, what law passed, without com- mittees first appointed to inquire into the propriety and expediency of the proposed measure in every case ? He thought it a mere question of expediency and fitness, whether the Convention should proceed in its inquiries, in the first place, by committees, or in another course. He was favorable to the appointment of commit- tees ; among other reasons, because he thought that mode would give greater security against ill-considered and hasty propositions of change. We might, it was true, go into committee of the whole upon the constitution, in the first instance, and go through, it, para- graph by paragraph ; but he thought it better to follow the usual forpis, and to inquire by committees in the first instance. Every- body knew, of course, that on the report of any committee being made, any member might oppose it, or propose to amend it, or to recommit it ; or, he might bring forward himself any amendment to t}ie constitution which the committee had not brought forward. No member would be precluded from an opportunity of submitting any proposition to the Convention. At the same time, it might be confidently hoped, that the reports of respectable committees might contain useful suggestions and reasons on the subjects reported on 30 MASSACHUSETTS CONVENTION. by them, and might produce an effect on the judgment and discre- tion of members, with respect to the propriety of proposing altera- tions. It was in this way, as he thought, that the proceeding by way of committees, while it left an entire liberty to every m,ember, to bring forward his propositions, might yet have some tendency to produce a salutary caution in regard to the propriety of submitting such propositions. This coiuse seemed to him, on the whole, to be expedient, and he thought it quite clear, at least, that from the duty imposed upon the Convention by the law, there was no impropriety in their adopting it, if they judged it the most suitable manner of commencing their important inquiries. The question was then taken by yeas and nays, on the adoption of the first resolution, and carried in the affirmative. Yeas 377, nays 90. It was then moved that the question be taken on the rest of the resolutions together. Agreed to. The question on the acceptance of the other nine resolutions was then taken, and decided in the affirmative, without a division. On successive motions, it was ordered that the committee, to whom should be referred the part of the constitution embraced in the first resolution, should consist of twenty-one members. The committee under the 2d resolution, of fifteen members ; the 3d, of twenty-nine ; the 4th, of fifteen ; the 5th, of twenty-one ; the 6th, of fifteen ; the 7th, of fifteen ; the 8th, of five ; the 9th, of twenty- one ; and the tenth, of twenty-one. Mr. Child s of Pittsfield said he hoped it would not be indelicate, or be thought to show any want of respect to the chair, if he should move that the committee on the first resolution should be chosen by ballot. He had no doubt that the President would act with the strictest impartiality, but he thought it would be impossible for any single man to have such a knowledge of all the members as to be able to appoint a committee on this important subject which should represent the interests and feelings of all the different parts of the Commonwealth. Mr. Webster spoke on the impracticability of the measure pro- posed. He said it would be a great waste of time to choose all the conunittees, one consisting of twenty-one, another of twenty-nine members j and the others of a large number of members. All the ballots that would be necessary, could not be gone through with in a week. To state the proposition, was enough to show it to be impracticable. It was stated by the mover that the presiding officer could not have the requisite information. But his proposition ren- dered it necessary that every member should have the requisite information. When they were nominated from the chair, the House would act upon ea^h one, and either confirm or reject it. The appointments would be entirely within the power of the House. T^is would be a sufficient check, if any were necessary, upon the presiding: officer, acting as he would under the responsibHity belong- ing to his station. MASSACHUSETTS CONVENTION. 31 Judge Story of Salem said that the explanation which had just been given by the gentleman from Boston, showed very forcibly that there could be no advantage in choosing the committee in the mode proposed in the motion. The inconvenience of this mode had been stroiigly pointed out. Yet if he had any apprehensions that the interests/ feelings, and opinions of every member would not be as fairly represented, by the usual mode of nomination, he would be wiliingto go through' the labor of balloting for a whole week, if it wei;e necessary. But for himself he had' not tlie means of" know- ing what geiittemen were best qualified to serve on these commit- tees. Perhaps nineteen in twenty, of those who ought tp be ap- pointed, were wholly unknown to him. Many of thein'he had never s^en, and i probably he was in this rpspect in the same situa- tion with ninety-nine out of a. hiindred in the Convention. "The propriety of appointing one man depended on the question who was to be his associate. It would be necessary to select persons froin different parts of the State, and persons in different situations, and supposed to entertain liifferent opiiiions on the subjects referred to their consideration. Each member would vote, without knowing who would be voted for by others, and must act according to his own opinion, which of course could not be expected to prevail with respect to all. tie thought that besides the inconveniences with which this method would be attended, it was calculated to produce the very evil the mover .proposed to guard against, feut, said' he, when Iconsi'der the character of the gentleman from whoin, by the rules of the House, the nomination will proceed, his station in the Commonwealth, his station here, with all the responsibility that be- longs to it, we have a pledge which it is impossible should ever be violated, that no private motive sho uld mingle with considerations of duty in the selection of the committee. The eyes of every mem- ber of the Convention are upon him/ and it would' be impossible, if he were disposed, and that is not for a moment to be imagined, to swerve'from the line of strict impartiality. In the character of" the presiding 6&6ei) we have a pledge that the feelings and interests of air will be consulted. He will nialce the most careful examination, and act upon the best inforniation which gentlemen can give ' him. Even if it be possible, that from inadvertence or any other cause, there should be any impWper domination, the check belonging to this body is lipt to be forgotten. It is complete in all its parts. We can negative any nomination, or can add to the committee if it is not' satisfactory' to 'the House. We are not bound to accept, and can make any amendih6hts'to the repbrts which they shall make. The Convention is composed of so touch talent and character, that it is impossible to smuggle axiything through the 'House. Every report must be deliberated upOh and adopted only Upon conviction of its propriety. He had these reasons for thinking that the geiitleman's proposition was calculatecl to defeat the object he had in view. In the nomination, different men should be selected for different ob- jects. Some members had gKsat experience in certain parts of the 32 MASSACHUSETTS CONVENTION. duty which would be required, and none in others. It was not in his power — perhaps it was in the power of few individuals in the House — to judge who were qualified to serve most acceptably on the different committees. The motion was decided in the negative, without a division ; few members voting in favor of it. The President said that he should require a little delay, and that he would make the nomination tomorrow morning. Mr. FisHEK of Westborough moved that when the House ad- journed, it should adjourn to nine o'clock in the morning instead of the hour now fixed. Mr. Dearborn of Roxbury said he thought that ten o'clock would be most convenient to the generality of the members, and particularly to such as lived in some of the neighboring towns. Another member observed that committees would want time in the morning, and that ten o'clock was quite early enough. The ques- tion was then taken for altering the hour to nine o'clock, and was determined in the negative, 271 to 127. Mr. Beach of Gloucester moved for a reconsideration of the vote establishing the compensation of the membfers at two dollars per day, for the purpose of fixing it at one dollar per day. Mr. Dana moved that this subject be assigned for tomorrow at 11 o'clock. Negatived. Mr. Beach's motion was then put and nega- tived, the mover and one other member voting in the affirmative. The House then adjourned. Saturday, November 18. The Convention being called to order, the journal of yesterday was read. The President then informed the House that he was ready to nominate the several committees on the Resolutions passed yester- day. The nominations were confirmed by a single vote upon each committee. The following gentlemen compose the several committee's, viz.* iBt Resolve — ^Messrs. Bliss of Springfield; Varnum of Dracut; Baldwin of Bos- ton ; Heard of Ipswich ; Wingate of Haverhill ; Hoar of Concord ; Sibley of Sut- ton ; Estabrook of Athol ; Hinckley of Northampton ; Blake of Boston ; Fowler of Westfield ; Mason of Northfield ; Childs of Pittsfield ; Woodbridge of Stockbridge ; Storrs of Braintree ; Endicott of Dedham ; AUyne of Duxbury ; Turner of Scituate ; Morton of Freetown ; Leach of Easton ; Freeman of Sandwich. 2d Resolve — ^Messrs. Dana of Groton ; Starkweather of Worthington ; Keyes of Concord; Piske of Weston; Willard of Fitchburg; S. Porter of Hadley ; Hoyt of Deerfield ; Trask of Brimfield ; Hazard of Hancock ; Whitton of Lee ; Green- leaf of Quincy ; Weston of Middleborough ; Godfrey of Taunton ; Cobb of Brew- ster ; Hussey of Nantucket. 3d Resolve — Messrs. Prescott of Boston ; L. Lincoln of Worcester ; Saltonstall of Salem ; Pearce of Gloucester ; Lawrence of Groton ; D. Webster of Boston ; Knowles of Charlestown ; Russell of Mendon ; Lyman of Northampton ; Story of • (Thess committeea wera somewhat maiilified at the seision of the 20th.) MASSACHUSETTS CONVENTION. 33 Salem; Smith of Hatfield; Freeman of Boston; Alvord of Greenfield; Dwight of Springfield ; Hyde of Lenox ; Stowell of Peru ; Dearborn of Roxbury ; Sullivan of Brookline; Hedge of Plymouth; Spooner of Fairhaven; Hodges of Taunton; Reed of Yarmouth ; Sullivan of Boston ; Rantoul of Beverly ; Blood of Sterling ; Locke of Billerica; Foote of South wick; Nye of Sandwich; Newell of Attlebor- ough. 4th Resolve — Messrs. Varnum of Dracut; Mattoon of Amherst; Sullivan of Boston ; Dearborn of Roxbury ; Bartlett of Haverhill ; Pickman of Salem ; Spurr of Charlton; Willis of Pittsfield; Pay of Cambridge; Howard of Bridgewater; Russell of Boston ; Fearing of Hingham ; Doane of Yarmouth ; Lincoln of Taun- ton ; Abbott of Westford. 5th Resolve — Messrs. Pickman of Salem; Apthorp of Boston; S. A. Welles of Boston ; Bartlett of Newbunrport ; White of Salem ; Whitman of West Cambridge ; Flint of Reading ; Taft of Uxbridge ; Bangs of Worcester ; Lawrence of Leomin- ster ; Hale of Westhampton ; Hunt of Northampton ; Hamilton of Palmer ; Smith of Sunderland ; Hill of West Stockbridge ; Ellis of Dedham ; Richardson of Hing- ham ; N. M. Davis of Plymouth ; Mitchell of Bridgewater ; J. A. Parker of New Bedford ; Crocker of Barnstable. .6th Re&olve — Messrs. Ward of Boston; Bannister of Newburyport; Parrot of Gloucester ; Wade of Ipswich ; Josiah Little of Newbury ; Sanger of Sherburne ; Fisher of Lancaster ; Thurbur of Mendon ; Dickenson of Belchertown ; Morris of Springfield; Bassett of Ashfield; Dewey of Sheffield; Draper of Roxbury; Rus- sell of New Bedford ; Draper of Brookfield. 7th Resolve — Messrs. Story of Salem ; J. Phillips of Boston ; Morton of Dor- chester ; Curamings of Salem ; L. Lincoln of Worcester ; Andrews of Newbury- port; Holmes of Rochester; WOlis of Pittsfield; Austin of Charlestown ; Leland of Roxbury ; Kent of West Springfield ; Shaw of Boston ; Marston of Barnstable ; Austin of Boston ; Bartlett of Medford. 8th Resolve — Messrs. Welles of Boston ; Nichols of South Reading ; Gardner of Dorchester ; Picket of Otis ; Dean of Taunton. 9th Resolve — Messrs. Quincy of Boston; Fay of Cambridge; Saunders of Medfield ; Austin of Charlestown ; Kendall of Leominster ; Tuckerman of Chelsea ; Bailey of Pelham ; Thomas of Plymouth ; Hubbard of Middleton ; Sullivan of Brookline ; Ware of Boston ; Boylston of Princeton ; Smith of Milton ; Saunder- son of Whately ; Hooper of Marblehead ; Savage of Boston ; Locke of Ashby ; Freeman of Sandwich ; Noyes of Newburyport ; Stebbins of Granville ; Adams of Framingham. 10th Resolve — Messrs. D. Webster and Prince of Boston; Williams of Bev- erly; Poster of Littleton; Parker of Charlestown ; Seaver of Roxbury; A. Lincoln of Worcester ; Leonard of Sturbridge ; Sampson of Harvard ; King of Salem ; Parris of Marblehead; Shepley of Pitchburg; Hubbard of Boston; Piske of Weston ; Dean of Boston ; Hull of Sandisfield ; Baylies of Wellington ; Jethro Mitchell of Nantucket; Mack of Middlefield ;' S. A. Welles of Boston; Walker of Tempi eton. Mr. Dana of Groton moved that the Secretary be ordered to fur- nish each of the members of the Convention daily dming the ses- sion with two newspapers such as each member should choose. He observed that it was usual for members of deliberative bodies to be furnished with newspapers. In the present instance it would tend not only to their own instruction and gratification, but would enable them to furnish their constituents at a distance with a full account of their pro(3eedings here, by transmitting the journals of the day which contained a regular report of their doings. He concluded by offering a resolution. Mr. Austin of Boston hoped that if the resolution was adopted there would be an addition made to it, requiring that they should be read out of the House and not by members in their seats. He said it had been a pleasant sight to observe the members of the 5 34 MASSACHUSETTS CONVENTION. House attentively engaged in the business for Avhich they were con- vened. He should be extremely sorry to see the example which had been set departed from by the introduction of the daily joiunals. He said that the members had not the power of franking to enable them to send papers to a distance free of expense, and instead of being of any benefit to theii- constituents, that they would remain as waste paper on the table of the members. Mr. Dana replied, that the gentleman from Boston, living in the capital and always near the sources of information, might have a different feeling from those who had come there from remote parts of the State. He thought it would be a great convenience to be furnished with this means of informing their constituents of their course of proceedings here. On the ground of its interference with the duties of the House, he thought that no rule would be necessary to govern the conduct of members. A sense of decorum would be a sufficient restraint. It would be a convenience to be furnished the means which the papers afford of reviewing every morning the doings of the preceding day. The expense would be small and he would suggest that the papers should be delivered to the members at their respective lodgings. Mr. PicKMAN of Salem was opposed to the resolution because each member might supply himself at a trifling expense, and he thought it unnecessary that the House should take any order on the subject. Mr. Bliss of Springfield said he hoped the motion would pre- vail with an amendment, that the members should be furnished with but one paper daily instead of two, and that the motion should extend only to newspapers printed in Boston. He said that it would be convenient for the members to refer to the papers for the proceedings of the House — to know who were on committees, &c. That he thought this a sufficient ground for the motion, and that no other reason would justify their incurring this public expense. Mr. Dana consented to the amendment proposed by the gentle- man from Springfield. Mr. HoYT of Deerfield proposed that the order should relate back to the beginning of the session. Mr. TiLLiNGHAST of Wrcutham said he had no objection to the proposition of the gentleman who spoke last, if it could be carried into effect ; but he was apprehensive that the printers would not have newspapers on hand of the past days of the session sufficient to furnish the members. Mr. DwiGHT of Springfield moved that the subject in debate be assigned for Monday at 11 o'clock. Mr. Saltonstall of Salem hoped that it would not be assigned, and that the motion of the gentleman from Groton would not pass in any shape. He said the members had better be attending to what was going on before them in the House. That every one who had frequented the two houses of our Legislature must have witnessed the inconveniences arising from newspapers being furnished to the MASSACHUSETTS CONVENTION. 35 members. It was an unpleasant sight he observed, to see legisla- tors reading advertisements and the news of the day, to the neglect of the duties they were chosen to perform. He said it would look odd to make a rule to prohibit members from reading newspapers. He thought the members might furnish themselves with papers if they wanted them, and he hoped the motion would not prevail. Mr. John Welles of Boston was sorry to diifer from the gentle- man from Salem. He thought that members would not be disposed to violate the rules of propriety. He said it was of great importance that the proceedings of the Convention should be published, to en- able the members to give information to their constituents ; which he thought could not be done in a better or more easy mode. Mr. Bond of Boston moved that the subject be committed, in or- der that the committee might consider the expediency of substitut- ing for newspapers the volume which he understood was preparing, containing the proceedings of the Convention. He observed that most of our towns had Social Libraries in which the book might be usefully deposited, for the convenience of every man, who would not otherwise have the means of information. Mr. Kneeland of Andover hoped the motion to furnish newspa- pers would not prevail. He said the members might read them at their lodgings, without any expense. Mr. Apthorp of Boston thought it would be proper that the mem- bers should be furnished with the papers for their own information. Mr. Webster said that it was a standing rule of all the legislative bodies that he had any acquaintance with, that no member should be employed in reading in his place either newspapers or any printed paper except the printed journal of the house or some other paper printed by order of the house, and he should consider it the duty of any one who saw this rule infringed, to call to order the member who violated it. Mr. Dana was opposed to the commitment and to a postpone- ment, for reasons which he stated. The motion to commit was put and decided in the iiegative. Mr. Q,uiNCY of Boston said he thought that it was an act of comity due from gentlemen residing here who were already provided with the daily papers, to furnish others with the same privilege. He was in favor of the resolution. The question was taken and decided in the affirmative by a large majority. Mr. Shaw of Boston, from the committee to whom was committed the rule of the House on the subject of reconsideration of questions, reported as a substitute for the article in the original report, the fol- lowing rule : No motion for the reconsideration of any vote shall be sustained, unless made on the day on which such vote passes and a return of the Convention be then made and entered on the journal, when the question was not taken by yeas and nays ; every such motion shall lie on the table one day before it shall be taken up for considera- tion, and shall not be taken up, unless as many members are present in convention as were present when such vote passed ; and rfot more than one motion for the recon- sideration of any one question, shall be sustained. 36 MASSACHUSETTS CONVENTION. Mr. Dana moved to strike out the clause that required the same number of members to be present when the motion for reconsidera- tion was sustained as were present on passing the original vote. He thought there should be some regulation on the subject of reconsid- eration, but this was too strict. He said that if gentlemen would recur to the journal of the convention that framed the constitution of the United States, an assembly composed of members of great experience and intelligence, they would find that in the course of their proceedings, propositions were adopted and rejected, reinstated and again rejected, and that they exercised the right of reconsidera- tion with the greatest freedom. If such men required such an in- dulgence, we should not be able to dispense with it. He thought the rest of the rule would furnish a sufficient guard against abiise, without a second return of the House to know if as many members were present as there were on passing the measure proposed to be reconsidered. Mr. Sibley of Sutton thought it would be impossible ever to re- consider a motion if this rule prevailed. The House was now very numerous — gentlemen would be from inevitable accidents called home, and the members of the House regularly decreasing. It would also be in the power of persons opposed to reconsideration to keep out of the House, and in that way to gain their object. He thought that notice only was necessary, and that the amendment should pre- vail. Mr. Apthorp of Boston liked the order as it was reported. He thought the objection arose from not adverting to the nature of a re- consideration, which was a motion to do away what had been already done. It was reasonable that when anything had been done by any number of members, an equal number should be required to do it away. Mr. Shaw hoped that the amendment proposed by the gentleman from Groton, would not prevail, because it would wholly alter the character and operation of the rule. He was desirous of explaining, shortly, the course of reasoning which had induced the committee to recommend the rule, as it was reported. They had not submit- ted this rule, because they thought it to be absolutely the best and most conformable to sound principles, but because it had long been in operation in the most numerous legislative body in this Common- wealth ; therefore they considered it one, with the use and practice of which most of the members of this Convention were from expe- rience familiarly conversant. Had they been required now for the first time, to propose a rule on this subject, they would probably have preferred the substitute, oflfered by the gentleman from Spring- field, when this subject was before the Convention upon a former occasion, limiting the right of moving for the consideration of any vote, to a member who had voted with the majority upon the ques- tion proposed to be reconsidered, and which was understood to be conformable to the practice in the House of Representatives of the United States. But considering that some advantages in practice MASSACHUSETTS CONVENTION. 37 would be derived from adhering to the rules which have for many years prevailed in this Commonwealth, the committee in the first instance had adopted in terms, that of the House of Representatives of our own State in preference to a new one, not so well known. But it having appeared from the short debate on the subject, which took place when this subject was before under discussion, that the proposed rule was ambiguous in its terms, that different presiding officers had put different constructions upon it, and that gentlemen of the longest experience in the Legislature differed in their views of its true import, and as the subject had been recommitted for the purpose of further reconsideration and amendment, the committee had now reported the same rule in substance, but expressed in terms which in their apprehension would divest it of all ambiguity and make its import at least clear and intelligible. He proceeded to state that the rule itself was founded on the great and incontrovertible principle that in all deliberative assemblies of persons possessing equal rights, the voice of a majority, solemnly and deliberately ex- pressed, must control that of a minority. If the same number who have carried a measure, or a larger number, is desirous of revising their decision, whilst their acts are yet in their power, in conse- quence of having received new information or changed their views, they have an unquestionable right so to do ; but it has never yet been the practice of the Legislature of this Commonwealth, to permit a smaller number to reverse the acts and votes of a larger. The clause therefore, which the gentleman jMfoposes to strike out, is de- signed to secure the operation of these principles, to guard against surprise-, and to secure to the Convention the means of ascertaining in each particular case, that the body called upon to reconsider, is at least as numerous, as that which has deliberately adopted the measure, or passed the vote in question. Mr. S. said this amend- ment had been urged, on the ground that the rule as reported, had a tendency to narrow the range of discussion ; this, however, he believed was a misrepresentation of the design and operation of the rule. Its tendency was rather to encourage a free discussion of every important question at the most proper time, before a vote was taken. Besides, take the rules together, as they have already been adopted, and ample provision is made for the most full and un- limited discussion of every question, which any gentleman may think proper to bring under the consideration of the Convention. Every important question would first be considered in committee of the whole, when the most liberal discussion would be had and the sense of the whole body fully expressed, and again the mea- sure, whatever it might be, would be deliberately revised in Con- vention. Should their deliberations result in a resolution proposing alteration in the constitution, such resolution must be read on two several days, at each of which readings, the whole subject would be open to debate ; by using the term reconsideration therefore, in its liberal and proper sense, every important question must, in the re- gular and orderly course of proceeding which the Convention had 38 MASSACHUSETTS CONVENTION. prescribed to itself, be solemiJy and deliberately reconsidered. Nothiag, therefore, could be more groundless than the apprehension that this House would be deprived of the means of considering again every question that any member might think proper to submit. It had been suggested as one reason, why the rule as it stands would be impracticable, that the ranks of this body would shortly be thinned by the absence of members ; he trusted, however, that whatever might be the case in ordinary legislative assemblies, no consideration short of imperious necessity would induce a gentle- man to withdraw the aid of his voice and counsel from this con- vention until the very interesting and important trust confided to them by their constituents had been fully and definitively dis- charged. Believing that the clause in question was an essential part of the rule, that the rule itself, thus guarded, would promote the orderly course of proceedings, and prevent surprise, he hoped it would not be stricken out. Mr. Holmes of Rochester thought the argument of the gentle- man from Sutton, was irrefutable. He acknowledged that he felt the weight of the observations of the gentleman from Boston, last up, but he thought that the order might be so amended as to meet the views of both gentlemen — by merely requiring that there should be as large a number to vote for reconsideration as voted in the majority on the original question. Mr. Varnum observed, that the remarks of the gentleman from Sutton, were conclusive, and he called upon gentlemen to produce a single instance of a rule similar to the one reported, in any legis- lative assembly. He said it was an absurd rule, and what would be the consequences of it, he asked ? Suppose all the members of the Convention to be present, a vote passes by a majority of a single member ; we are not assured of the health of the members — ^we must expect accidents — it is probable that there will be a progress- ive decrease in the number of members who will attend — if one member is called away, you cannot reconsider, because there will not be as many present as there were when the original question was taken. Many votes pass upon the spur of the occasion — per- fection does not belong to men, and it always has been and will be the case, that members may change their minds ; but if this rule passes, there will be no remedy. Suppose an endeared friend should die — suppose a man should fall dead in the street — these would surely be reasonable causes for absence. Can the Convention supply vacancies ? — the law makes no provision for this. Suppose a measure passed which is a favorite with any single member — if he has not honor enough to come into the House, he has it in his power to defeat all reconsideration. The gentleman said the rule was an improper one, and an arbitrary one. He said that if notice were given of a member's intention to move a reconsideration, and this notice lay on the table one day, it was sufficient. That nothing but imperious necessity could justify the absence of any member of that body. MASSACHUSETTS CONVENTION. 39 Mr. S. A. Welles of Boston observed, that this -was the most salutary rule which had been reported by the committee. He said it would prevent any measure which had been adopted by a major- ity, from being reversed by a minority — that its influence would be particularly felt by the members from the country. It may happen that many members may have retired to their homes, feeling secure that what has been transacted in the House, with their approbation, would stand firm ; but if this rule is rejected, they will feel no se- curity. The measure may be reversed, before they can return. He apprehended that the gentleman from Dracut was mistaken in respect to the antiquity of this rule ; that if he would take the trouble to look over the proceedings of our old house of assembly, he would find a similar regulation, in a letter from the assembly, in 1768, to Lord Hillsborough. He thought this rule would be found to be a wise rule,> and one from which no inconvenience would be experienced, and he therefore hoped it would be adopted. Mr. Leland of Roxbury said that other instances besides those mentioned by the gentleman who preceded him, might be cited, where similar rules had prevailed. The committee had taken into the article the very principle that prevailed in the house of repre- sentatives of this Commonwealth, to confirm Which, he read the rule, and afiirmed that it required the same number should be present when the vote for reconsideration was taken, as were pres- ent on the main question. There was a little ambiguity, which the committee had removed in their report. He thought the rule reasonable. There should be a period when debate should come to an end. He said he would not reurge the reasons of the gentleman from Boston, but thought he was not heard in all parts of the House. He recapitulated the course of proceedings in the House — first, con- sideration in the committee — second, the same proposition as dis- cussed in the House — ^members may speak twice as a matter of right, and oftener by obtaining leave — the question is taken on two separate days — on each reading, any member may go over the argu- ment again on the same question. He supported the rule more at large, and opposed striking out. Mr. WiLLARD of Fitchburg was in favor of the amendment of the member from Groton. He said sufficient notice of a motion to reconsider, would always be given to those who were opposed to a reconsideration. The gentleman from Boston, (Mr. S. A. Welles,) had expressed great solicitude for the country members, lest advan- tage should be taken of their absence. He was from the country, he said, and for himself he felt no such apprehension. Mr. Martin of Marblehead thought members were making the subject in discussion of more importance than it deserved. He said they had been appointing numerous committees to consider of the expediency of different parts of the constitution. He would sup- pose that some amendments were adopted — that they were very excellent amendments — still, he said, the votes by which they were adopted, would not be beyond the power of the House, if the rule 40 MASSACHUSETTS CONVENTION. reported should be accepted. That some member would only have to move that the rules of the House be dispensed with, and the votes would be open to reconsideration. He said he should vote to strike out. Mr. MoKTON thought that the part comprehended in the motion of the gentleman from Groton, was an objectionable feature in the rule reported by the committee, and he hoped the motion to strike it out would prevail. Every member, he said, had equal rights, and no rule should be adopted which would give one member greater rights and privileges than another. If a member, in proper time, moves for a reconsideration, and takes care to have as many members present as there were when the original vote was passed, he does all than can reasonably be required of him. He stands rectus in curia. He has a right to say, I have made my motion regularly and fairly, and am entitled to have it considered — who, he asked, has power to make any rule to prevent its being consid- ered ? If any member should be absent by accident, this rule, he said, would deprive him of all power of remedying, what should appear to him to be an inconsiderate measure. He said there was no precedent to sanction this rule. Mr. Webster observed, that as there was much opposition to the motion, and as it was not of great importance to act upon it imme- diately, he would venture to propose to have it laid on the table. Mr. Dana spoke in favor of laying the report on the table. Mr. Foster was opposed to laying the report on the table, be- cause, if there was no rule, there could be no reconsideration. He thought that if the rule was not adopted, the other rules could not be printed. He wished that the rule might be settled, and that all the rules might be printed. Mr. Bond said he differed from his honorable colleague, (Mr. Webster,) and was opposed to the report's being laid on the table. The same difficulties and discussion, he said, would recur when the subject came up again. He thought that the opposition to the rule as reported, arose from mistaking the meaning of the rule, and from supposing, what would not prove to be true, that it would be im- possible to obtain a reconsideration of any question under it. He said that the objection, that all the delegates present at a vote, would not be present when the motion to reconsider was agitated, was more specious than solid. The rule, he said, did not require the lohole number, that is, the same persons, who voted, to be pres- ent at the motion to reconsider, but only as many as voted. The rule of the house of representatives, he apprehended, had been generally constrvied as this one is expressed. He hoped that the rule as reported, would be adopted. Mr. Savage of Boston thought that very many members felt great relief upon the motion being made by his colleague, to lay the report on the table. He thought that sufficient provision was made in the other rules to guard against surprise. The only objec- tion to omitting the rule, he thought, was, that when a motion was MASSACHUSETTS CONVENTION. 41 made for reconsideration, it might be objected that the motion was out of order. He thought that no difficulty would arise'of this kind, for if the House perceived the reason for reconsideration, they would readily accede to the motion. If there was no rule', there would be no prohibition of reconsideration. Mr. Slocum followed, but we were not fortunate enough to hear his remarks. Mr. HuBBAKD of Boston said if he understood the remarks of the gentleman from Boston, he thought it was not necessary we should have any rule on the subject in discussion. He (Mr. Hubbabd) thought there were many occasions, on which it was proper for the House to have a reconsideration. He thought that the House ought to have this right — ^but that they should qualify this right, and it was his opinion that the rule proposed, regulated it in a proper and convenient mode. He was opposed to having the report lie on the table. He thought the present time as good as any to determine on the question. There was nothing else of consequence to occupy the Convention now, as the important business for which they were assembled, had been portioned out to committees. He therefore wished that the subject might not be deferred. Mr. Webster withdrew the motion to lay the report on the table. Mr. Baldwin of Boston thought that the report could be so amended as to remove the objections which had been made to it. He suggested a modification of it, but did not make any motion to amiend. Mr. Dana was pleased with the disposition shown by members not to protract debate unreasonably. But he thought there was one operation of this rule which had escaped the observation of the conmiittee. He argued that the Convention, being formed of a single body, wanted the checks which were furnished in most leg- islative bodies, by being composed of two houses, and subject to the negative of the executive authority, and consequently required more ample provision for securing the right of repeated deliberation. He examined in detail, what must be the operation of the rule, and contended that contingencies, which he stated, might render the rule extremely injurious in its operation. He replied to the sugges- tion that the rule would secure the attendance of members. He thought that no additional inducements were necessary to secure attendance when it was possible, but there would be cases in which it would be impossible. A vote might pass in a full house, by a single vote. Members might change their opinions, yet it would be in the power of a single member, by retiring, to prevent the re- consideration of a favorite measure. It would put it in the power of a single member to oppose the will of the whole House. He thought that the Convention would not agree to a rule which might have so injurious an operation. Mr. Buss thought the striking out the part proposed would ren- der the rule absurd. He was desirous, he said, to save time as much as possible, and was in hopes that the Convention naight soon have 6 42 MASSACHUSETTS CONVENTION. two sessions a day. But this rule so altered would lead to a need- less expense of time. There was nothing in it to prevent a recon- sideration on the same day that the vote is passed, and as many reconsiderations as any member should move for. He said that without that part, it did not go to the object of the rule. It ought to require that notice of the motion to reconsider should be given at the time the vote passes ; otherwise the clause requiring a return of the House should be struck out as superfluous. He Avas satisfied he said with the rule as amended by the committee. It had obviated the objection he made to the one originally reported ; though he thought the substitute proposed by himself on a preceding day, would have answered equally well. He said that as he was not much conversant with the modes of proceeding in our legislative bodies, he did not know the practical efi'ect of the rule as it at first stood. That now the ambiguity was removed, and he was satisfied ; and he thought that substantial reasons had been m-ged against the alteration proposed. Mr. PicKMAN said that if the amendment was adopted, a further amendment would be rendered indispensable. Without it, it would be put in the power of a rtiember of a minority, on a vote passed by a large majority in a full house, to give' notice of a motion for reconsideration, and to call it up at any subsequent time in a thin house, and to carry it in opposition to the sense of a large majority of the house. Mr. Welles read a passage from the Massachusetts State papers, proving the existence of the rule he had alluded to, in the Massa- chusetts Provincial Assembly, in the year 1768, by which no ques- tion for reconsideration should be put, unless when there were as many members present, as when the original question was taken. Mr. Varnum said that when he spoke of the rule reported by the committee as being different from any that had prevailed in any other legislative body, he referred to the legislatures of the several United States, and he did not suppose that any gentleman in looking for an authority on this occasion would search the records of a British colony. The question for striking out on Mr. Dana's motion, was taken and decided in the affirmative, 195 to 193. Mr. Morton moved to amend by striking out the whole rule and inserting one which should allow of reconsideration when as many members voted for it as were in favor of the original measure, pro- vided they were a majority of the members voting on the question of reconsideration, — notice to be given, and one reconsideration of the same question only to be allowed. Mr. Webster thought, that of all the various propositions which the occasion had elicited, that now before the Convention was the most extraordinary. It appeared to him to be, in many respects, objectionable. In the first place, what is meant by requiring as many votes to reconsider a motion, as were in favor of the original measure ? — Suppose the questions were on the adoption of an MASSACHUSETTS CONVENTION. 43 amendment. A very small number for example, five, might be in favor of it, and all the rest against it. Yet, in this case, by the proposed rale, the vote was necessarily to be reconsidered. The honorable gentleman had drawn his motion as if affirmative votes only could be reconsidered, and has made no provision at all for the reconsideration of negative votes. Again, according to this pro- vision, a motion for reconsideration might be made and discussed for a week ; then put to the vote, and although carried aifirmatively by a majority, have no eifect, and be declared a nullity, because the majority was not large enough. He begged leave to dissent, entirely and most widely from all such modes of proceeding. All rules respecting reconsideration were intended and adopted for the purpose of, ascertaining, under what circumstances, and by whom, a motion for reconsideration might be brought forward. But when once brought forward, it must, of course, like all other motions, be decided by a majority. Nobody, he believed, ever before heard of a rule, by which a motion to reconsider, when once regularly made, was not to be decided like other motions. It might well be doubted whether the Convention could prescribe any such rules ; rules by which anything more than a majority of members should be re- quired for the decision of any question regularly before it. Mr. Webster proceeded to say, that it was with great unwillingness that he troubled the Convention again on this occasion, but he would indulge the hope, that after the failure of so many attempts to qual- ify the right of moving to reconsider, in any manner acceptable to the Convention, gentlemen would be more inclined to adopt the usual limitations, — the restriction of the right to some member voting with the majority. No other qualification was so simple or so easily understood and none better secured the right against abuse. He would presume even to take the sense of the House again on this subject, if the present proposition should be rejected, and renew the motion made the other day by the honorable member from Spring- field, (Mr. Bliss,) a motion which went to adopt the rule, in the form he had mentioned. He confessed, that he disliked the rule, as reported by the committee in all its forms. Instead of preventing surprise, it facilitated it. It might easily be shown that if anythiag unfair were intended, such a rule gave great facility to carry it into efi'ect. For example ; it was supposed to be an advantage to move to reconsider ; but such motion was to be limited, in point of time. Suppose, then, a member, favorable to what had been decided, yet apprehending a motion to reconsider, should make such motion himself and give notice that he should call it up two days hence — of course no other motion to reconsider could be made ; yet, at the expiration of two days, this motion might be withdrawn by the mover, and it would then be too late for any other member to make a similar motion. Again, a member favorable to any decision, ap- prehensive of a vote to reconsider, may presently make such a motion himself, and immediately by the sanie members obtain an inevitable confirmation of a favorite vote, for it could be reconsidered but 44 MASSACHUSETTS CONVENTION. once. These were among the modes, in which all these imaginary securities against surprise, might be turned to the very purposes of surprise. The practice of reconsidering votes, in a legislative assem- bly, was of recent origin. The general rule has been, and still is, that no proposition can be brought forward directly contradicting what has been done at the same session. Mr. Jefferson calls the whole practice an anomalous proceeding ; and a proceeding tending to produce effects by surprise. It was indeed a practice, by which the House put more power into the harfds of every individual mem- ber than it could itself exercise by the greatest majority. The House bound itself by rules not to give a second reading, or take a second important vote on the same measure, the same day. Hence propositions were so be read on different days, before they passed. But by this practice it was in the power of any individual member to do that which the whole House could not do ; and to bring on a second discussion, and a second vote the same day or the same hour. All deliberative bodies establish stages of proceeding ; and every measure may be debated at each stage. -This was useful and sal- utary ; and it was even useful that these stages should be frequent. He hardly cared how frequent. If three readings be not enough let there be four as is the practice in some bodies. But let all the members equally understand how many readings there axe to be, and then all will have an equal opportunity of being present and of opposing or supporting — the other course leads to great inequality and undue advantage on one side ; because it puts it in the power of an individual to choose his own time and opportunity. Mr. W. said he would appeal to gentlemen who had sat in assemblies where this right of moving to reconsider was under little or no restraint, whether they had not found that in fact it produced no real or ef- fectual reconsideration whatever — whether it is not true, that mea- sures were suffered to pass along through all the regular stages without discussion, and never be debated, nor in reality considered at all, till on the motion to reconsider, if it were so, then in truth the practice was hostile to any real revision or review of its judg- ments by the House. Indeed it had been said, in the course of this discussion, that the right to reconsider was useful, because it tended to save time ; ineismuch as gentlemen would forbear debate through all the regular stages of a bUl, in the hope that a majority would be found favorable to their views, without discussion — and still relying, if this hope failed, in the power of discussing the subject on a mo- tion to reconsider. Now he would ask, what was this, but limiting all real and useful discussion or consideration tb one single stage and one single time ? Would it not be much better that the reasons for meastires should be assigned when the measures were introduced ; and that opposition, if any were intended, should be made in the regular stages of the proceeding ? Gentlemen had spoken on this subject as if any limit on the right of moving to reconsider were a restraint upon the freedom of sppech and debate. He confessed he should have had more confidence in the opinions and sentiments of MASSACHUSETTS CONVENTION. 45 gentlemen in this particular, if their vigilance had been roused by another rule which had been adopted. He alluded to the rule al- lowing the previous question to be called, at the pleasure of a ma- jority. If there were anything curtailing a just freedom of debate it was this — as it had sometimes been used, it was certainly an instrument of injustice. Yet, not even the honorable gentleman from Dorchester, who spoke so ably and with so much animation on this occasion, had opposed this rule. For his own part, he pre- sumed it would never be executed in this body — or not except in extreme cases ; or otherwise he should himself have hoped to see it stricken out. The previous question was said to have been invented by a man who once resided not far from the spot in which he was speaking, Sir Harry Vane. When it was put in practice to silence the whigs in England, not far from the period of their revolution, one of them. Sir Robert Howard, said, it was like the image of its author, a perpetual disturbance. Mr. W. said he should conclude by repeating that if the amendment before the House did not pre- vail he should move for the adoption of the rule, as it was practised in Congress and other legislative bodies, that is to say, that every motion for reconsideration should be moved by some one who voted in the majority — ^this might not be, indeed it was not an absolute, an infallible security against surprise and other evU consequences some- times flowing from the practice. But it was the best security, and was familiar to many gentlemen, and to the practice of many assemblies. Having submitted this motion, he should leave it to the Convention to dispose of it as it thought fit ; not intending to trouble them with any further observations on the subject. The question was taken on Mr. Morton's amendment, and deter- mined in the negative without a division. Mr. Webster then moved, by way of amendment and in place of the rule recommended by the committee, the following, viz : — When a motion has been made and carried, in the affirmative or negative, it shall be in order for any member of the majority to move for the reconsideration thereof, on the same or succeeding day. Mr. MoKTON said the gentleman was not in order. (Overruled.) He proceeded to say that he was opposed to the gentleman's motion for several reasons. He said the rule of Congress was contrary to our habits ; that Congress, no doubt, had adopted it with very good intentions ; it might be found convenient in that body. But in this Commonwealth we had not adopted it, and we had felt no incon- venience from not adopting it. If one member could move for a recopsideration, why not every member ? What equity or justice was there in one member's having rights and privileges which all the members had not ? If a motion were a proper one, the members of the minority should have the power to offer it, as well as those of the majority. This was an invidious distinction. He said we were accustomed to the rule of our own Legislature. We were Restrained by it, but it operated equally on all the members. He said he should not object to the rule of Congress as a rule for the 46 MASSACHUSETTS tX)NVENTION. Legislature, where the impolitic acts of one , session might be remedied at the next. On the contrary the proceedings of this Con- vention would not be open to revision, and were to affect not only the present generation but posterity. It was important therefore that every member should have the power of moving for a recon- sideration, and by the rule proposed by himself, the vote on the reconsideration would be as solemn as the original one. The mover of a reconsideration would be restricted by the rules requiring as many members to be present when he makes his motion, and in favor of it, as there were in the majority when the vote passed. This certainly was fair. All the members would be notified of his intention — ^what could be fairer ? He repeated that he was opposed to one member's having privileges from which others were debarred. Mr. Varndm said, he felt very happy that the gentleman from Boston, (Mr. Webster) had proposed to substitute the rule practised in Congress. He said it was simple, easily understood and con- venient. That he had had many years' experience of iis operation, and had never heard any member of Congress make any objection to the rule. That the honor of gentlemen stating that they had voted in the majority had always been relied on, and that no incon- venience had resulted from such reliance. Mr. duiNCY corroborated the statements made by the member from Dracut. He said he had himself observed the favorable opera- tion of the rule for eight years in Congress, without having experi- enced the least inconvenience, though he was the whole of that time in a minority. He expressed his satisfaction at the remarks coming from a gentleman of so long experience as a member and presiding officer in the national legislature. He said it would be one of the most fortunate circumstances attending this Convention, if it should be the means of introducing this rule among us. He hoped it would be adopted in our Legislature, where, on important occasions, advantage was too apt to be taken under the rule now in use. Mr. MoKTON rose and stated a case. Suppose there are four hundred and one members present when a vote is passed ; two hun- dred and one voting in the majority — sixty afterwards come in, whose sentiments coincide with the minority — if this rule prevails, what is to be done ? How is the question to be opened ? He repeated that it was very important in this Convention, that questions should be open to reconsideration. Mr. Foster of Littleton said he felt very diffident of himself, when he saw around him so many men of talents and experience in public afi'airs, whose judgment must be venerable, and whose judg- ment he did venerate. He proceeded to say, that this rule was brought forward by gentlemen as the only thing which would answer the purpose intended. He said it might answer very well in Congress, where they have the power, at a future session, to cor- rect any inconsiderate measure of a preceding session. But it was not so with this Convention, which can have no future session. It MASSACHUSETTS CONVENTION. 47 did not, therefore, folloTv of course, that a rule suitable for Congress, or for any legislative body, -would be applicable to the Convention. He went on to state a case which happened in the Legislature ten or twelve years ago, and which came within his own knowledge. An important measure, he said, was brought forward and advocated by one person only. When the question was taken, it was deter- mined in the negative by the vote of the Speaker. A reconsidera- tion was moved for and advocated by the same person only. The Speaker's vote again determined the question in the negative. The measure was brought forward a third time, and carried by about two thirds, and has been since very well approved of. But this rule will put a stop to all such advantages of revision. He concluded by saying, that the rule was inapplicable to a body like the Con- vention, where a thing once done, was done forever. Mr. Vahnum begged pardon of the House for rising so often ; the gentleman from Littleton, he said, had mistaken -his object alto- gether. He asked, how can a gentleman in the minority get a re- consideration, unless some member in the majority has changed his opinion ? Question called for. Mr. Maktin was opposed to the motion. He approved of the rule that had prevailed in the Legislature of this Commonwealth. He said a thing once done by the Convention, was done forever ; all opportunities of reconsideration should therefore be allowed. Some of the members who live in the neighboring towns, might go l;iome on Saturday, and be prevented by a snow storm from returning on Monday. There were seventy from Essex. And in the meantime a question might be carried, and they would have no remedy. Mr. President, said he, I call this rule a bridle on our tongues. I hope the motion will not prevail. I hope this Convention will not be bound up by the little parliamentary rule that prevails in Congress. It may do very well there. Most of the members of Congress are lawyers, professional men, men of education ; but it is not so with all of us. We know what's right, and what's wrong ; but it is not to be expected that we can express ourselves so politely ; we have not had the education ; but we know when the rights of our towns are infringed. Question, question. The question was then taken on Mr. Webster's amendment, and carried in the affirmative — 350 to 120. Mr. Bliss moved that the rules and orders, together with a list of the members and of the committees, be printed for the use of the members. Ordered. Mr. Martin wished to have the rules read. He said he was pre- vented by the snow storm from being present when they were read before. He said there were a hundred others that had not heard them. Mr. Martin was answered that the rules were passed, and not then before the House — and he had better get them and read them himself. 48 MASSACHUSETTS CONVENTION. Mr. Dana, chairman of the committee on elections and returns, made the following report : — The committee who were directed to receive and examine the returns of the dele- gates to the Convention from the several towns and districts, and to prepare a roll of the members, have attended to the service assigned them, and ask leave to report: — That they have examined the copies of the records of the votes of all the towns and districts which have elected delegates to the Convention : And they find the records to have been duly made, and fair copies of said records duly attested have been produced by the respective delegates — all of which are in the usual form, except the return from Plymouth, by which, it appears that the town- meeting there, was continued by adjournment to the second day. The committee therefore submit the following resolution : — That all the delegates from the several towns and districts who have elected members, and against \Hiose election no remonstrance has been offered, have been duly elected. Mr. Bangs said he was against the acceptance of the report, and moved that the House should adjourn. Mr. Salstonstall moved that when the House adjourned, it should adjourn until Monday, at 11 o'clock. Carried, 194 to 167. The House then eidjoumed. Monday, November 20. At 11 o'clock the Convention was called to order by the President, and the Journal of Saturday's proceedings was read. Mr. Scxlivan of Boston, observing that he was appointed on two committees, and that it would be impossible for him to serve on both, requested to be excused from serving on the committee on the fourth resolution. Granted. Mr. Welles of Boston, for the same reason, was excused at his request from serving on the committee on the fifth resolution. Mr. Webster, for a like reason and at his request, was excused from serving on the committee upon the third resolution. Mr. Spooner of Fairhaven was excused from acting on the third resolution, on the suggestion that he was detained from attendance by sickness ; and Mr. Barnard of Nantucket, appointed in his place. Mr. Dearborn of Roxbury, being also appointed on three com- mittees, was at his request excused from serving on the fourth. Mr. Freeman of Sandwich, for a like reason and request, was ex- cused from serving on the first ; Mr. Sullivan of Brookline, on the ninth, and Mr. Willis of Pittsfield, on the seventh. Mr. Dana, observing that there was some variation in the copies of the constitution which he had examined, and that the copy fur- nished to the members by the order of the Convention had some interlineations, with a view of furnishing an authority for determin- ing the correct reading, moved the following order : Ordered, That the Secretary of this Commonwealth be requested to deliver to the President, the parchment on which the original constitution was engrossed and which was deposited in the archives of state, to lie on the table for the use of the members. Mr. Sullivan requested, that the mover of the order should so MASSACHUSETTS CONVENTION. 49 amend it, eis to procure, instead of the original, an attested copy of it. He said the original ought not to leave the Secretary's office, and if.it were brought here, it is so large that it could not be con- veniently used. Mr. Prince of Boston suggested an amendment which was ac- cepted by the mover, as follows : Ordered, That the Secretary of this Commonwealth be requested to collate and compare the copy of the constitution printed for the use of the members with fie original in the Secretary's office, and certify that it is correct, if so ; otherwise to mi- nute the variances. Thus amended, the order passed. The report of the committee on elections, which was read on Saturday, was then taken up, and, upon a motion that it be accepted, Mr. Varnum of Dracut rose and said he was unable to say what . the practice of the house of representatives of this State had re- cently been on occasions of this kind ; but he thought there was a great impropriety in accepting this report at this time. Towns may hereafter come forward and remonstrate against the election of mem- bers who come here to represent them, but after this report is ac- cepted, it will be too late. The acceptance will confirm the mem- bers in their seats. He said it was the custom in the house of representatives of the United States to have the report lie on the table, to give an opportunity for contesting the election of members. Mr. Dana thought there was much propriety in the observations of the gentleman who spoke last, and that the course pointed out by him was unobjectionable. He wished, however, that the return from Plymouth might be read to the House. The Secretary read the return, Avhich stated, among other things, that the town met on the third Monday of October last, and voted to send five delegates. That after balloting for five, it appeared three only were elected ; that the meeting was adjourned to the next day, when Nathaniel M. Davis and Benjamin Bramhall, were duly elected. Mr. Dana resumed and said the report was predicated upon this return. That, from decisions in our house of representatives, he was of opinion that the members returned were entitled to their seats. The act for calling the Convention says that the towns shall assemble on the third Monday of October, and elect, &c. The con- stitution ordains that the election of governor shall be on the first Monday of April, and that representatives shall be elected in May, ten days at least before the last Wednesday of that month. There is a distinction between the phraseology of this act and that of the constitution. The constitution requires that the -election shall take place on a certain day, or previous to a certain day. This act provides that the town meeting only shall be on a certain day ; it does not say that the election shall be on the same day, or any day in particular. And he submitted it to the House, whether the right of adjournment is not implied in the act, since there is no clause expressly taking away the right. He observed that there. 7 60 MASSACHUSETTS CONVENTION. was no remonstrance against the election, and no reason oflfered for holding it invalid, except from what appeared in the return itself. The election of a representative to Congress was held at Plymouth on the same day in the forenoon, and after the ballot for delegates, it appeared that three only, instead of five, were elected. It was about sun-down when the vote was ascertained. The question occurred whether they had a right to adjourn. A motion to that effect was made and carried, and more persons were present the next day at the adjomned meeting than had attended the first day. He said there had been no suggestion of fraud or improper conduct ; the only reason for the adjournment was want of time. He was in favor of the members retaining their seats. He should be sorry to have that ancient town of the landing of our forefathers denied a representation on an occasion like the present, when their error, if any had been committed, arose only from want of judgment. That as there would be no future Convention, there could be no danger from the precedent. He concluded by comparing the present case to what takes place in courts of justice, where relief is given to error when not accompanied by fraud. Mr. Bangs of Worcester stated that he was one of the committee who dissented from the opinion which they had expressed in their report, as far as it respected the Plymouth members. He thought they were not duly elected, and not entitled to their seats. The words of the act which provided for the Convention, and directed the choice of delegates, were, that the inhabitants should assemble in town meeting on the third Monday in October, and should elect one or more delegates. There could be no doubt that the intention of the Legislature was that the election should be holden on the third Monday of October, and on no other day. If they had not intended to confine the election to a single day, they would have so expressed it. They would have said they should be elected within a pre- scribed number of days, £is was provided by the constitution for the choice of representatives in the General Court. The Legislature meant to make a distinction between this case and that of repre- sentatives, otherwise it would have used similar language. They have said the meetings shall be held on the third Monday, and have said nothing about adjourning. It was true the word then was not used in the act, but he contended the meaning was the same as if it had been. He asked what would be the consequence of the con- trary construction. If town meetings had the power of adjourn- ment, they might have adjourned to any time previous to the meet- ing of the Convention — to this very day. Delegates may yet be chosen, and the Convention has now the power to issue precepts to elect delegates, where vacancies exist, or to supply those which shall exist. He knew it might be said that this was an assumption of power by the Legislature. But it was necessary that the power should be exercised, and it was proper that the Legislature should assume it, and that they should establish rules. If they had not the power to fix the time of election, they had no power to establish MASSACHUSETTS CONYENTION. 61 any other rule. It was not for Plymouth to assume rights that no other town had, or to adopt another rule. He did not agree that it was sufficient that the members present were elected without fraud, and were fair representatives of a majority of the inhabitants. Suppose a delegate had been chosen, by a majority of paupers. He would by this doctrine be entitled to his seat. There were many instances in which towns were not able to complete their election on the day fixed for it. But with the exception of Plym- outh, not one had thought of an adjournment. They had recon- sidered the votes by which they had agreed to send a certain num- ber, and had agreed to send no more than could be chosen on the day fixed by the law. He admitted that if any necessity could be demonstrated for an adjournment he would be willing to admit the members to their seats, but there was no such necessity. It might have been inconvenient ; but the town might have chosen ; there was time enough ; they adjourned before sunset, thinking it would be more convenient to choose on another day, but they might have completed the choice on the same evening. Mr. Q.DINCY rose to move that the report lie on the table, He thought the idea of the gentleman from Dracut was a correct one, that questions of this sort should not be sought for by the House, but proceeded upon only upon remonstrance. We should not imder- take to disfranchise Plymouth. It appeared to be the general sense of that town that they should be represented by five delegates, and that the sitting members returned were duly elected. He would lay the report on the table, and if a remonstrance were off'ered Elgainst the election of any members, they could be taken up in regular course. But it would be an unprofitable inquiry to enter into the subject, unless the inhabitants represent they are not satis- fied. Mr. S LOCUM wished the gentleman who moved to lay the report on the table would give some reasons for it. He did not hear any. We had had a committee to make a thorough examination of the subject, and the committee had not agreed. What shall we get by laying it on the table ? It would only give to the eagle-eyed in- habitants of Plymouth an opportunity to remonstrate. Mr. Story entirely agreed with the gentleman from Dracut, on the propriety of laying this report on the table. It seemed to be the proper course. It would then be regular for any member, by motion or resolution, to take the sense of the Convention on the election of the delegates from Plymouth. The reasons against thejr election appeared on the return itself They were, therefore, necessarily be-; fore the House, and he thought it bound to act upon the case with or without a remonstrance. He had an opinion on the merits of the case, which he should express on a proper occasion. Mr. Sullivan of Boston was opposed to laying the report on the table. He differed, with reluctance, from the gentlemen who had spoken, and who appeared to have formed their opinions on the course of proceedings in Congress ; p, course which he thought not 52 MASSACHUSETTS CONVENTION. usual in this Commonwealth. Here was no person claiming a seat adversely to the sitting members ; no remonstrance from any in- habitants of the town ; and no denial of the right of the town to send the number of delegates who had taken their seats. The sin- gle question was, whether the town, under the cu-cumsteur^ces, was authorized to continue a meeting legally assembled, to the next day by adjournment ? Nobody complains of fraud, unfairness, or sur- prise. Nobody doubts that the two gentlemen sit here with the full approbation of the town. He thought the effect of laying the report on the table might be rather to invite remonstrance and com- plaint, and to give an occasion to busy people to interfere. He hoped, therefore, the Convention would decide the question at once. He thought it a question of no difficulty, and was opposed to post- poning the decision. Mr. Baktlett of Plymouth was against laying the report on the table. He said he would state the facts respecting the election at Plymouth. On the third Monday of October, in the morning, the town chose a representative to Congress. Afterwards the question was taken how many delegates they should send to the Convention, and it was determined that they should send five. They proceeded to ballot, and after the votes were counted, it was declared that three only were chosen. It was near dark when the vote was declared, and if they had proceeded to ballot for the other two it would have been necessary to have had lights. This gave rise to a question whether it would be legal to go on. Some thought not. Another question then came up whether the meeting could adjourn. Legal advice was taken, which was in favor of the right to adjourn, and the meeting then voted unanimously to adjourn. The next day the meeting was fuller than it had been on Monday. Mr. B. said he had heard no suggestion of any general dissatisfaction, and he thought there would not be found more than four or five individ- uals disposed to remonstrate. He thought there could be no ques- tion in the case, except in regard to the legality of the adjournment , and as to this he felt himself incompetent to decide ; but he hoped the decision of the House would be in favor of the town of Plym- outh's having her full representation. Mr. Button of Boston said he rose to call the attention of the House to the real state of the question. The question was, whether the report of the committee should lie on the table ; he said the case of the Plymouth election was part of the report, and might be called up by any member after the report itself was laid on the table; and after the present question was disposed of, he should make a motion for that piurpose. The question was taken for laying the report on the table, and passed in the affirmative. Mr. Button then offered the following resolution : Resolved, That Nathaniel M. Davis and Benjamin Bramhall are dqly elected and fetumed as delegates ffom the towi^ of Elyniouth. MASSACHUSETTS CONVENTION, 53 Mr. Hoar of Concord regretted that since the Convention was only concerned to know that there was a real representation of the wishes of all the people in the Convention, and was not in a situa- tion to establish precedents, for ordinary cases, any question of the legality of an election had arisen. He did not know the gentlemen returned from Plymouth, nor any of their opinions ; but since no remonstrance had been presented against them, it was fair to pre- sume that they represented the feelings and sent^ents of the town. The question was, whether, on a liberal construction of the law, they were entitled to their seats. If they were, they ought to hold them ; and since to deprive them of their seats would be to deprive their constituents of their equal voice in the Convention, it ought not to be done, unless such a construction of the law was abso- lutely necessary. If, on a liberal construction, they could not be considered as fairly chosen, they could not, of course, retain their seats. He differed from the gentleman from Worcester, (Mr. Bangs) in the premises, rather than in the conclusion. He should agree at once, that they must appear to be chosen according to the provision of the act ; — ^but the question was, what is that provision, under a just and liberal construction ? If there were fraud, on the part of the presiding officers, the sitting members, or any other per- sons, that would be a different question. No such fraud, nor, indeed, any unfairness was pretended. It was admitted that the whole proceeding was fair and well intended: — so that the only question was, were the members chosen, in pursuance of the act, giving to the act a liberal and reasonable construction. The language of the act is — " that the inhabitants of the towns, &c., shall assemble on the third Monday in October, at a meeting duly warned, &c., and shall elect delegates, &c." The question is, when shall they elect ? Not, expressly, then, or on that day. But, as he contended, on that day the meeting is to be holden, and the delegates chosen at that mteeting. It is not necessary, in order to supply the elision in the phraseology, to read the clause thus — that the inhabitants "on that day" elect, &c. ' It suits as well gram- matical arrangement to read it, thus — they shall, " at that meeting " elect. As the words will bear this construction, and as the rights of the town seem to require it, it ought to be adopted, unless some evil consequence should result from it. He saw no such evil con- sequence upon the case as stated ; there was a full and fair expres- sion of the sense of the town ; and we ought to receive it, unless prevented by positive provisions or clear expressions of the law. His own opiaion was, that if the town assembled on the right day, and by accident or otherwise were prevented from completing the elec- tion on that day, they had a right to adjourn to the next day. This was analogous to other cases. Sheriffs were bound to serve process, within certain days — such as to take land on execution. The words of the several laws governing such cases were not dissimilar to those of the act under which we sit. Yet it had often been de- cided, that if the process were begun within the statute time, it was 54 MASSACHUSETTS CONTENTION. suflB.cient, and might be continued afterwards till completed. Now, why should we adopt a narrower construction, on this occasion, in which the whole people had so great an interest, than the courts of law had adopted, in a mere question of property? Of all questions, it was one best entitled to a liberal construction — And on this very subject of elections, he thought there were precedents in point. By an ancient English statute it had been ordered that the sheriff shotdd make election of knights, &c., "between the hours of eight and eleven." Yet it had always been holden that if he began the election between these hours, he might continue it £ifterwards till a choice were made. This seemed to be reasonable ; to grow out of the necessity of the case. If a corporation could not get through its business on one day, it ought of common justice to have a right to adjourn. He would repeat that this was not an occasion to take minute exceptions to the form of returns. He had been well informed, that in the Convention of 1779-80, there was great liberality on this subject ; — so much so, that no members com- ing up from certain towns, the Convention, by its own authority, wrote to such towns to send up members. Whether, therefore, he regarded it as a matter of strict law, or as fit rather to be governed by liberal precedent, he thought the two gentlemen from Plymouth entitled to their seats. Mr. D. Davis, the Solicitor General and delegate from Boston, was in favor of the resolution. He said the question turns upon the power of the selectmen to adjourn the meeting for the choice of the delegates — and he stated as a position, that the power of towns to adjourn their meetings when necessary, was inherent in the corporation, in all ccises when this power was not expressly limited or taken away. He knew of but one case when the power of adjournment of a town meeting, was taken away by a general existing provision — which is the case of a general election for state officers. The constitution requires that there shall be a meeting of the inhabitants in the several towns for the choice of senators and counsellors on the first Monday of April, annually — ^but it is not expressly required by this part of the constitution that the election shall be on that day ; and even if not for another provision, respect- ing the choice of governor, &c., there was no express provision against a necessary adjourmnent of a meeting in that case. But in that part of the constitution which relates to the election of gov- ernor, it is required that the meeting for the election of governor, &c., shall be on the first Monday of April, that is, on the day ap- pointed for the election of senators and counsellors, and that the votes for governor and lieut. governor shall be given in on that day. In the present case there is nothing in the act, under the author- ity of which the election was made, which requires that the votes shall "be given in" on the third Monday of October. The sec- ond section of the act requires that the inhabitants shall assemble on that day, and shall elect their delegates ; not expressly requiring th&t the election shall positively, and at all events, take place on that day. MASSACHUSETTS CONVENTION. 55 Further, the statute provides, "that at smcA meeting of the in- habitants, every person entitled to vote, &c., shall have a right to vote in the choice of delegates." Now if the power of adjourn- ment is inherent in the corporation, unless expressly taken away in this case, the meeting at which these votes were given in on the 17th of October, was the same meeting at which the electors assem- bled on the 16th, it being legally kept open by adjournment ; and consequently, "at such meeting" every qualified voter had a right to vote in the choice of these delegates ; which right they could not be legally deprived of. This right to adjourn, is not only inherent in the corporation, and necessary for the exercise of the corporate powers of towns, but is agreeablie to all the usages of the country, both before and after the adoption of the constitution. For these reasons, the Solicitor Gen- eral was of opinion, that the election of the two members on the 17th was strictly legal. But if it were necessary to resort to a construction of the statute, the rules of such construction, by all laws, both constitutional and municipal, required that the construc- tion should not only be liberal, but fully in favor of the rights of the party ; and that no rule could be admitted which would justify the Convention in giving such a construction of the statute, as would deprive the members of an important right. Question called for. Mr. Story of Salem said he perceived gentlemen were impatient to take the question, but he would request their indulgence while he made a few remarks only. He said he was in favor of the reso- lution. That on the closest and most impartial examination of the subject he was convinced that the members returned from Plymouth were duly elected. The act for calling the Convention was cer- tainly susceptible of two constructions, one of which would ex- clude these members from their seats, and the other would not exclude them — and both constructions were capable of being easily defended by men as ingenious as the gentleman from Wor- cester, (Mr. Bangs.) Mr. S. said, to ascertain the intention of the Legislature, the whole act should be examined. It was clear from the long practice of towns in this Commonwealth that they have the power to adjourn their meetings unless where they are expressly restricted. The power to adjourn town meetings will not be found in any of our statutes. He had examined them for the express purpose of ascertaining the fact. Upon what principle then, does it depend? Necessity. It is a necessary power. The laws include many necessary powers which are not expressed. In the months of March or April, town officers are required to be chosen. The select- men in calling a meeting, make out their warrants for a specific day, and yet the towns adjourn from time to time until all their officers are chosen. And this would be considered a legitimate exercise of their power by every court of law in the Common- wealth. Representatives to the General Court are to be chosen ten days previous to the last Wednes4ay in May. What is the practice? 56 MASSACHUSETTS CONVENTION. The towns have no express power to adjourn, and yet in contested cases they adjourn from day to day until the election is completed. The Legislature did not, in this act, intend to abridge the powers of towns. If a representative can be chosen at an adjourned meet- ing, a delegate may. Mr. S. then read the last sentence of the second section of the act for calliag the Convention, which says the meetings shall be regulated &c., in the same manner as those for the choice of representatives, &c. He then asked, is it not clear to the gentleman from Worcester, that a delegate may be chosen under the existing laws for the choice of representatives? Mr. S. thought no gentleman would feel so strong in his own opinion, as to say that this construction, maintained for many years respecting adjovirnments, was not a sound one. He said he stood upon the text. If then by a fair construction, the meeting only, and not the choice, was to take place on the third Monday of October, they were bound by the intention of the Legislature, and the rights of the people, to uphold this return. If it were necessary to step over the law at all, he should not advocate this motion ; but when they were met to advise only, not to do the last act, the most liberal construction should be given to the statute if necessary. But it was not neces- sary. The election at Plymouth came within the laws ; and they were bound not to infringe the rights of that venerable and ancient and excellent corporation. Mr. Slocum of Dartmouth wished the gentleman would vary his motion so that it should declare that the gentlemen from Plymouth were entitled to their seats, instead of saying that they were duly elected. He thought they ought to go according to the spirit of the law, and not according to the letter. If they were to go by the letter, he was sure it weis dead. But by the spirit, he thought they were entitled to their seats. The President read liie order, and said the import of it was the same, as of the language he had suggested. Mr. S. said he thought it more soft and delicate, and he should give his vote more freely if the motion was so amended. He had a great respect for the town of Plymouth, the place where our forefathers first landed, and he hoped we should not deprive them of their rights. We ought to adopt a liberal construction of the law. If that town had taken fire while the town meeting were proceeding in their election, and had time only to adjourn, should we- not on the spirit of the law confirm their proceedings, if they had gone on to elect delegates the next day ? He thought the House would, and he hoped these members would be allowed to hold their seats, though he did not mean to say he thought they were duly elected. The question was taken on accepting the resolve, and passed in the affirmative. Mr. Dana, after some remarks on the crowded state of the House, and the inconveniences to which many members were subjected for want of good seats, moved. That the delegates from the town of Boston be instructed to in- quire if it were not possible to procure for the accommodation of MASSACHUSETTS CONVENTION. S^ the Convention, a more convenient place of assembling, and to re- port as soon as possible. Passed in the negative. Mr. L. Lincoln was excused, at his request, from serving on the committee upon the 7th resolution. Mr. Walter of Boston moved a resolve instructing the commit- tee appointed on the 10th resolution, to inquire into the propriety and expediency of altering the constitution so that the Legislature should have power to grant to towns, charters of incorporation, with the usual forms of city government. In support of his motion, he stated at some length, the proceedings which had been had, from time to time, in the town of Boston, with a view of obtaining the establishment of such a form of government ; and the difficulties that had arisen from the language of the constitution. The motion was carried, yeas 273, and the House adjourned. Tuesday, November 21. The Convention was called to order at 10 o'clock, and attended prayers offered by the Rev. Mr. Palfbey, chaplain of the senate. The journal of yesterday's proceedings having been read, a re-, port from the Secretary of the Commonwealth, made in pursuance of the order of yesterday, was received and read. It stated that he had compared the copy of the constitution, printed and ordered for the use of members, with the engrossed copy in the office of the secretary of State, and that he had found it incorrect in a consider- able number of particulars, which he stated, and that it was correct; in all other parts. Mr. Vabndm moved that a number of copies of the report, suffix cient for the use of members of the Convention, be printed, which motion was agreed to. Mr. Richardson of Dedham was appointed on the committee on the third resolution, in the place of Mr. Webster, who was excused. Mr. Hyde of New Marlborough, on the fourth, in the place of Mr. Dearborn. Mr. Pike of Newburyport, on the fourth, in the place of Mr. Sul- livan. Mr. . Button of Boston on the fifth, in the place of Mr. Wells. Mr. Hopkins of Great Barrington, in the place of Mr. Willis of Pittsfield. Mr. GiFFORD of Westport, in the place of Mr. Lincoln. Mr. Dawes of Boston was appointed on the ninth, in the place of Mr. Sullivan of Brookline ; but at his request was excused, and Mr. TiLDEN of Boston was appointed in his place. Mr. Dana, from the committee on contested elections, made the following report : The committee on contested elections, to whom was committed the remonstrance of Timothy Walker and others, inhabitants and electors of Charlestown, against the Hon. Leonard M. Parkek's holding a seat in this Convention, have attended that service, and ask leave to submit to the Convention the following report ; — .... g . . 58« MASSACHUSETTS CONVENTION. That it satisfactorily appeared to your committee, that the inhabitants of Charles - town, legally qualified to vote at this election, duly assembled in town meeting on the day appointed by law, and voted to send six members to this Convention, it being the whole number they were entitled to by law. That the selectmen thereupon duly opened the balloting, and stated that the poll would be closed at a quarter-past four o'clock, P. M. The balloting was completed and the poll closed at or soon after the time appointed. On counting and sorting the votes, it appeared that the five other members from the town of Charlestown only were elected, and that the said Leon- ard M. Parker was not elected— the votes having been ^iven for sending other gen- liemen, and none having had a majority. After which, it was duly moved and sec- onded, that the town so far reconsider their former vote as to send but five members to the Convention. Which motion, the selectmen, after consultation, declined putting, and thereupon called on the electors to bring in their votes for a sixth member. The electors then proceeded to ballot, and the selectmen, on counting and sorting the votes, found that the said Leonard M. Parker had a majority, and declared him elected. Your committee, however, are fully satisfied that the selectmen acted from pure motives, and if it was their duty to have put the said motion, their declining was merely an error of judgment. On consideration of the foregoing facts, your com- mittee respectfully submit the following resolution. SAMUEL DANA. Resolved, That the Hon. Leonard M. Parker, having been duly elected, is entitled to a seat in this Convention, and ought to be confirmed in his seat. Mr. Dana begged leave to state, in relation to the report which had been read, that two of the members of the committee were ab- sent when it was agreed upon, and two were opposed to the report. He said that he was himself in favor of it ; he could never satisfy his mind with the decision which had been made in the house of representatives, disfranchising a large town containing forty-five thousand inhabitants, (alluding to the Boston election of represent- atives, in 1818,) for an error of judgment in the selectmen. He proceeded to state some of the facts relating to the election of dele- gates from Charlestown. No fraud was asserted or pretended in the case. A vote was taken in the first place to send six delegates. The ballotmg then commenced, and upon counting and assorting the votes, it appeared that 370 ballots had been given, and that five only of the persons voted for were elected. A motion was then made to reconsider the vote which had passed at the opening of the meeting, so fai- as respected the sixth delegate. The selectmen asked for time to consider of the motion ; which was denied them. They then consulted together, and concluded not to put the motion. It certainly was not to be wondered at, when the united wisdom and learning and talents of this Convention had spent two days upon the puzzling subject of reconsideration, that the selectmen of one of our towns should feel themselves at a loss when such a question came suddenly before them. After the gentleman from Groton had finished, Mr. M. Porter of Hadley said one fact had been omitted by him, which he should have stated, — ^that when the whole committee were together, four out of the seven were of opinion that the seat of the gentleman from Charlestown should be vacated. Mr. J. Phillips of Boston said the facts stated in the report were alone before the House, and that the fact of the selectmen's requir- MASSACHUSETTS CONVENTION. 59 ing time to make up their minds, did not appear there. He adr verted to the usage in this State, in relation to the election of representatives to the General Court, and said the selectmen were, by the act for calling the Convention, required to regulate town meetings for the choice of delegates, in the same manner as for the choice of representatives, and that the same proceedings were to be had. How would this case stand then, if it had been the case of a representative ? It had been decided by the judges of our supreme court, that the right of determining on the number of representa- tives, was a corporate right of the town. It was on this ground that the house of representatives had declared elections of the towns of Boston and Roxbury invalid, because the selectmen had refused to take the question how many representatives the town would send. With these two concordi§g decisions staring them in the face, will the Convention make one directly contrary ? He would give no opinion on this question, but he thought the subject de- served much consideration. The town of Charlestown, he observed, was six or seven miles long. It was presumable that many of the inhabitants had returned to their homes. It appeared that a major- ity of the voters were opposed to sending the gentleman who now claims his seat. What then, was the proper course ? what was the dictate of good fellowship in such a case ? It was the dictate which wa.s followed by Mr. Walker. He made a motion to reconsider the former vote, so far as concerned a sixth delegate. If he had a right to make this motion, the conduct of the selectmen ought not to be sanctioned by the vote of this Convention. The gentleman re- turned was a man of too much elevation of mind — he was too well informed, to suppose that the remarks now made, had reference to his individual case— that his case, considered by itself, was to be settled — ^their decision was to form a precedent for the guide of se- lectmen in all future elections of representatives, and he hoped to have heard better arguments than the good intentions of the se- lectmen. Mr. Lawrence of Groton, referring to the statements which had been made of the opinions of members of the committee, said he thought it was totally immaterial whether the committee had given any opinion on the question whether he is entitled to his seat. He was sorry to differ from the honorable gentleman from Boston whose experience and familiarity with all precedents of legislative bodies on questions of this sort, entitled his opinion to great weight. But he thought that no decision that should be made here could be drawn into precedent hereafter, because the Convention was differ- ently organized from any legislative body. He was on the com- mittee of the Legislature which framed the law for calling this Con- vention. He said it was not the intention of the committee that the Convention should be bound by the precedents in the house of rep- resentatives any farther than related to the form of proceedings. In settling the number and distribution of the delegates to the Conven- tion, the Legislature fixed upon the principle that towns should be 60 MASSACHUSETTS CONVENTION. entitled to elect as many delegates as they can choose representatives in the General Court. He contended that the principles which had been settled in the house of representatives ought not to be drawn into precedent on this occasion. This body was differently organ- ized, and they are convened for different objects. It was intended, and it is desirable, that all the interests, and all pai'ts of the Com- monwealth should be as fairly and equally represented as possible, and for this object that a liberal construction should be given to the principles which govern in cases of election. He was glad to per- ceive the liberality of the Convention, in their decision of yesterday in relation to the members from Plymouth, and he hoped the same liberal principles would govern their decision in this case. He pro- ceeded to distinguish the present case from the cases which had been cited as decided in the house of representatives, and first the case of the Boston members in 1818. The question in that case was decided on the principle that the right of choosing representa- tives was a corporate right ; that the corporation had a right to de- termine how many representatives they would elect, and conse- quently that any inhabitant had a right to make a motion for limiting them to a certain nimiber. The number in the present case having been fixed by a vote of the town, it presented on that ground a dif- ferent principle for the government of the presiding officer at the meeting. He referred to the Roxbury case, and contended that there was no analogy between it and the present case. He adverted to another principle. The representatives in the General Court are paid by the towns, and this fact furnishes the reason why they have a right to settle the number by a vote. This reason does not apply to the case of delegates who are paid out of the public chest. Re- ferring more particularly to the proceedings in the meeting at Charles- town, the first thing which was done when the meeting was full, was to take the sense of the house with regard to the number of delegates they would send. The result was a vote to send six, after which many inhabitants went away in expectation that such a num- ber would be chosen, and presuming they should be satisfied with the members who should be chosen. In this state of things he thought it was not proper, after many of the inhabitants of the town, some of them residing at a distance, had gone to their homes, that the vote should be reconsidered. In the decision of contested elections in the house of representatives, the great object has been to prevent fraud, and to demand that the proceedings of the meeting should be open and fair. He asked, would it not be unfair in a meeting, in which it had been in full meeting voted to elect a cer- tain number, for a part of the inhabitants, after many had retired, because they could not get their favorite candidates elected, to make a motion for reconsideration. He thought it was right in the select- men to refuse to put such a vote. As therefore the member whose election was now contested, was fairly chosen, in pursuance of the vote of the town, taken at the opening of the meeting when the house was full, and as it was reasonable in the selectmen to refuse MASSACHUSETTS CONVENTION. 61 to put a motion for rescinding that vote after a part of the inhabitants had retired to their homes, he hoped that the member returned would be allowed to retain his seat. Mr. Button. I agree with the gentleman from Groton, and am in favor of accepting the report. There are two provisions in the law, under which we are assembled, relating to this subject. One is, that " all the laws now in force regulating the duty and conduct of town officers, sheriffs, magistrates and electors in the elections of governor, lieutenant governor, counsellors and senators, and repre- sentatives, shall, as far as applicable, apply and be in full force and operation as to all meetings holden, and elections and returns made under this act," &c. &c. The other is, that the Convention shall be the "judges of the returns and elections of their own members," &c. The first, I apprehend, sir, is merely formal, and provides that the several towns shall act by their usual organs, leaving it to the Convention to exercise its own judgment upon their proceedings. The right to decide in all cases upon the elections and returns of its own members, is not only expressly given by the law to the Con- vention, but is inherent in it. This right draws with it the power of deciding upon the proceedings of towns, without reference to the opinion or judgment of any other body even in a like case. This Convention is a distinct and independent tribunal ; it neither gives nor takes precedents. It is not bound by the judgment of the house of representatives of the state, upon any facts relating to the conduct of town officers. If therefore a case could be brought from the journals of the house of representatives, resembling this, I should not feel obliged to take it as a precedent. But if this Convention were thus concluded, no such case has been produced. The two cases cited by the honorable gentleman from Boston, stand on very different ground. In the Roxbury case, the motion to limit the number was made before the balloting began, and the house of rep- resentatives rightly decided that the selectmen were bound to put that vote. This was substantially the Boston case, and was for the same reasons decided in the same way. But what are the facts in the case now before the Convention ? The town was duly convened, and a motion was first made and carried, that six delegates should be elected to the Convention. Upon the first balloting five only were chosen, and a motion was then made and seconded that the former vote to elect six should be reconsidered, and that no more than five should be elected. The selectmen refused to put this vote, and upon this fact the remonstrance is founded. I agree with the honorable gentleman from Boston, that the right in question is a corporate right, but in this case, the corporation had acted as such, before the motion was made. The town in its corporate capacity had a right to determine the number of delegates it would send to the Convention ; and it was in the power of any person to make a motion for that purpose, and his undoubted right to have it put by the selectmen. Such a motion was first made — the town acted upon it as a corporation, and determined the number it would send. That 62 MASSACHUSETTS CONVENTION. being done, the corporation was functus officio, and the individual corporators were called upon to give in their votes. The effect of the motion, therefore, was to reorganize the corporation for the pur- pose of voting again upon a question which they had once deter- mined — of undoing what they had already done. In this case, I apprehend the selectmen might well doubt ; and if in a doubtful case they even decided wrong, I do not think, that such an error of judgment ought to prejudice the right of the sitting member to his seat. In all cases of mistake or error, I am persuaded this Conven- tion will not adopt narrow rules of construction. If the proceedings appear to have been open and fair, free from management or fraud, they will be inclined to decide in favor of privilege. In the present case, I am not embarrassed with any difficulty. No precedent has yet been cited from the practice of the house of representatives, which is against the right of the sitting member ; and if we were bound by the same rules that that "body is, he might still, upon the facts before us, retain his seat. But this Convention, sir, will I trust, exercise its own powers relative to the elections and returns of its own members independently, as well as equitably and liberally. In the case of the Plymouth election yesterday, it manifested such a disposition ; and I do hope that the same liberal spirit will prevail, and that the report of the committee will be accepted. Mr. Thompson of Charlestown said that having been present, knd having presided at the town meeting in Charlestown, he would endeavor to state the facts in relation to it, as they were not all con- tained in the report of the committee. At the opening of the meet- ing a vote passed unanimously to send six delegates. After the declaration of the votes, Mr. Walker made his motion, and at the same time another motion was made to open the poll for the sixth delegate. The selectmen thought it not fair to proceed any further that day and offered to adjoinrn the meeting in order that all the voters might have notice of the state of the election. This offer was negatived, and after consultation, the selectmen concluded to open the poll ; upon which all clamor ceased. The poll was closed at 8 o'clock, when it appeared that the whole number of votes given in was 408, of which the sitting member had 210. More votes were given in at this balloting than at the former one, when the five del-, egates were chosen. Mr. Austin of Boston said that the report was satisfactory to him, but the statement of the gentleman who last spoke gave him addi- tional pleasure. He said the Convention was not to" be trEunmelled by precedents in the house of representatives. There were two questions for them to decide in this case. First, whether the motion to reconsider, made in the town meeting, was in order ; in the next place, whether an error of judgment, for there was no pretence of fraud in the selectmen, should operate to vacate the seat of the del- egate returned. As to the first question, he was of opinion that the motion was not in order. For what would be the consequences ? The whole corporate right must have been open if it weis open in MASSACHUSETTS CONVENTION. 63 part ; if the meeting could reconsider a part of their proceeding*, there was nothing to prevent their reconsidering the whole. Con- sequently, a small number of the inhabitants remaining at the end of the meeting might reconsider all that had been done, and set aside the whole election. The House had had experience that the subject of reconsideration was one of great difficulty. There was no evi- dence before the House that the town of Oharlestown had any by- law allowing a reconsideration in any case, and he apprehended that where there was no rule of that kind, a motion to reconsider would be out of order. The selectmen had their doubts on the subject and wished for delay, but were prevented by the impatience of the meeting. On the supposition however that the motion was in order and that the selectmen were wrong in their decision, as it was but an error of judgment, and as the whole town had expressed a wish to be represented by six delegates, it would be a high-handed act for this Convention to disfranchise them. He hoped therefore that the sitting member would be allowed to retain his seat. Mr. Blake of Boston said there was much force in the remark made by the two gentlemen from Boston, that this House was not bound by precedents in the house of representatives ; it was not however necessary to resort to this ground. If the law for calling the Convention and those to which its provisions refer were examined, it would be found that the proceedings of the selectmen were correct. He defied any member to point his finger to a law requiring every motion to be put which is made in town meeting. There had been, to be sure, much liberality in towns in respect to reconsideration — - more perhaps than there ought to be ; but the vote first passed in this case was of such a nature that it was incompetent to the town to reconsider it, and as the gentleman from Boston remarked, they might as well have moved to reverse the whole proceedings of the meeting. If the Convention however is bound by the decisions in the house of representatives, unless better precedents can be pro- duced than the Boston and Roxbury cases, they were bound to confirm this election ; but even if this admitted of any' doubt, he felt assured from the liberality shown yesterday, that the sitting member would be confirmed in his seat. Question called for. Mr. Austin of Charlestown said that as there was but little oppo- sition to the report, after so many arguments in favor of accepting it, he should consider it indecorous in him to rise, except to call for the question. Mr. Phillips rose to reply to the arguments advanced by gentle- men in favor of the report. It had been af&rmed, he said, that this Convention was not bound by the precedents of the house of representatives, nor the house of representatives by those of the Convention. This was true. But he thought the deliberate decision of that body, (the H. of R.) on laws which were applicable equally to the choice of representatives and of delegates, were entitled to much weight — and that he was not beat down as yet, by the remarks 64 MASSACHUSETTS CONVENTION. of gentlemen opposed to him on this subject. Again, it was urged that they ought to show liberality — that they ought not to disfran- chise a town for an error of the selectmen. This was begging the question. The town might have voted, had the question for recon- sideration been taken, not to send a sixth delegate. If that were in fact the wish of the town, then, by permitting the sitting member to retain his seat, they were disfranchising the town. That he could sound this argument with as much force as his opponents. It was said, too, that the inhabitants of Charlestown were desirous of sending their whole number, and voted to that effect, and then went home not so much caring who should be chosen. Was it possible that they were so indifferent ? it could not be true. Gentlemen had argued that a motion for reconsideration was not in order. This was not the case. Thfe conduct of these very selectmen was contrary to this position. A vote had passed that the poll should be closed — how then could it be opened again? Here was a reconsideration. His opponents were on the horns of a dilemma. Either the selectmen were bound to put the motion to reconsider, and then the refusal was wrong, or they should have refused to open the poll, a second time, and then they were wrong. Mr. Phillips thought that gentlemen did not attach sufficient importance to this case. The decision of the Convention indeed would not be a pre- cedent binding on the house of representatives, but coming from an assembly of so much learning and tEilents, it would undoubtedly have great weight in giving a construction to the laws of elections. He concluded by saying it was his opinion, that the sitting member had no right to his seat, and that the town of Charlestown would be disfranchised if he were allowed to retain it. Mr. L. Lincoln of Worcester said the town of Charlestown had already settled the question now before the House. That, sup- posing the motion to reconsider were in order, it was waived by the remonstrants proceeding to vote after the re-opening of the poll. Supposing Mr. Walker's candidate had been elected. Could he then have remonstrated becaxise his motion was not put ? Mr. L. appre- hended that his putting in a vote, to use a law term, would have been an estoppel. Mr. Thompson of Charlestown said the gentleman had misunder- stood him ; he had not said that the remonstrants voted. Mr. Lincoln replied that he understood him correctly at first, and said that it was incumbent on the remonstrants to have shown that they withdrew from the meeting without voting. Mr. Dana said it was due to himself, to answer the remarks of .the gentleman from Hadley, (Mr. W. Porter) which imported an insinuation, not intended he presumed, of unfairness in the repre- sentation, he (Mr. D.) had made, respecting the sentiments of the committee on elections. He knew that at a meeting of the com- mittee, four gentlemen had expressed an opinion that the seat of the gentleman from Charlestown ought to be vacated. But nothing was then determined upon, and it was intended there should be another MASSACHUSETTS CONVENTION. 65 meeting of the committee, to agree upon a report ; another meeting was held accordingly, at which the facts were as he had before stated. The question was then taken whether Mr. Parker should retain his seat, and decided in the affirmative. Mr. HtJBBARD of Boston moved that the committee on the 9th resolution, who have in charge the article relating to Harvard Uni- versity, and the encouragement of learning, be instructed to inquire into the expediency of providing by an amendment of the consti- tution, for appropriating the lands in the State of Maine, belonging to the Commonwealth, and the proceeds of the sales of the same, to the establishment of a permanent fund for the support of public schools. The resolution was adopted. Mr. HoBBARD, with a view of preventing unnecessary delay, moved that the chairmen of the several committees on the different parts of the constitution, be instructed to have their reports printed before they are submitted to the House. Mr. Cluincy opposed the motion. He said it was an unusual and irregular course of proceeding. Ittwas passed in the negative. Mr. Drapkr of Spencer moved that a committee be appointed to consider and report what compensation ought to be meide to the Secretary, Messenger, and other officers of the Convention, and to receive and report on the accounts for printing, stationery, and other incidental expenses of this Convention. The motion was agreed to, and Messrs. Draper of Sffencer, Val- entine of Hopkinton, Paige of Hardwick, Farwell of Cambridge, and Walter of Boston, were appointed. After which the House adjourned. Wednesday, November 22. The House was called to order at 10 o'clock, and attended prayers made by the Rev. Mr. Jenks, Chaplain of the House of Representa- tives. The journal of yesterday was then read. Mr. Paige of Hardwick was excused from serving on the com- mittee of accounts, and Mr. Bugbee of Wrentham appointed in his place. Mr. E. MuDGE of Lynn offered the following resolution, which was adopted : Resolved, That the fourth committee, to whom was referred so much of the consti- tution as is contained in the first section of the second chapter of the second part, and respects the governor and militia, &c., be directed to take into consideration the propriety and expediency of making any, and if any, what alterations and amend- ments therein, so as to give relief to such persons as have religious scruples about bearing arms. Mr. Q,uiNCY of Boston presented the following report : The committee tto whom was referred so much of the cqnstitution of this Conj- 9 66 MASSACHUSETTS CONVENTION. monwealth as is contained in the fiftli chapter of the second part, and respects the University of Cambridge, and the encouragement of literature, and who were directed to take into consideration the expediency of making any, and if any, what alterations or amendments therein ; — and who were also directed, by a resolution passed on the 21st instant, to take into consideration the expediency of providing, by way of amendment to the constitution, for the creation of a permanent fund, for the support of public schools, by appropriating for that object the lands owned by the Common- wealth within the State of Maine, and the proceeds thereof; — having attended to the respective subjects referred to them, ask leave to report the following resolutions, for the consideration and adoption of the Convention. By order of the Committee, JOSIAH QUINCY, Chairman. Resolved, That it is inexpedient to make any alteration or amendment whatsoever, in the fiflh chapter of the second part of the constitution of this Commonwealth. Resolved, That it is inexpedient to provide by way of amendment in the constitu- tion of this Commonwealth, for the creation of a permanent fund for the support of public schools, by appropriating for that object the lands owned by this Commonwealth within the State of Maine, and the proceeds thereof. Mr. Bangs of Worcester offered the following resolution, which was adopted : Resolved, That the committee on so much of the constifution as is contained in the first section of the second chapter of the second part, and respects the governor, militia, &c., be instructed to take into consideration the expediency of so amending the tenth article of said second chapter, as that in future the captains and subalterns of the militia, shall be elected by the written votes of the train band and alarm list of their respective companies, without regard to age. Mr. Dana of Groton presented the following report : The committee of the Convention who were appointed to take into considera- tion the propriety and iexpediency of making any, and if any, what alterations or amendments, in that part of the constitution which is contained in the first section of the first chapter of the second part thereof, and respects the General Court, have at several times had the said section under deliberate consideration, and hav- ing given to the subject all the attention its importance seemed to merit, they ask leave to report : — That a Legislative department formed by two branches — a senate and house of representatives, each having a negative upon the other — is the most congenial to the interests, habits, and manners of this people, as well as most con- formable to approved axioms of policy ; and that any alteration in the formation of this departmeYit is wholly unnecessary, and would be highly inexpedient. That the transfer of many of the principal subjects of legislation contemplated in the constitution, to the Congress of the United States since the adoption of the federal constitution, and the separation of that portion of the Commonwealth known as the District of Maine, and the election of it into a new state, have so far decreased the objects of legislative power, that (in the opinion of this committee) only one session of the Legislature will hereafter be necessary, unless upon some great emergency, or unusual occurrence, and in order that two sessions may not be necessary, a differ- ent and more convenient time ought to be fixed for the meeting of the Legislature, and settling the elections by the General Court, than the one which is prescribed by the constitution. That the article which prescribes the time in which any bill or resolve of the senate or house of representatives shall be returned, when the governor shall withhold his approbation, has given rise to some doubts, which ought to be removed by a more . explicit phraseology. Your committee have reviewed the powers which the people conferred upon their Legislature when they adopted the constitution, and find that for a series of forty years, the Geperal Court have annually been employed in redressing grievances, amending and strengthening the laws, and in enacting new ones, as the common good required, and that during this long period no defect of power has been dis- covered, by which the representatives of the people have been restrained from mak- ing all such regulations as are calculated to promote the public safety and happiness, nor has this department been found to possess any excess of power, which requires MASSACHUSETTS CONVENTION. 67 farther restriction, nor have this committee been able to discern that any attempt at a more perfect enumeration or precise definition of the powers of the Legislature, can be usefully made, and that it is not expedient to make any alteration in the third and fourth articles of this section. Revenue, being essential to the preservation and maintenance of all governments, a wise republic will take care that the necessary contributions should always be drawn from the people in a manner the most fair and equal, which their situation and circumstances will permit. The regulations prescribed in the powers given to the General Court for this object, were in use in ^e late province of Massachusetts Bay, and were practised upon, before the formation of the present constitution. Since that period many states have formed constitutions — new republics have sprung up, the skill and ingenuity of financiers have often been put in requisition to devise modes of drawing contributions from citizens and subjects. Your committee have compared the provisions of our constitution with such others as their opportunities have enabled them to, and are of opinion that it will not be expedient for the people of Massachu- setts to exchange their system, which has been sanctioned by such long experience, for any other mode. After a careful examination and an attentive perusal of that portion of the consti- tution which this committee has been charged to review, they have unanimously agreed to offer only the following resolutions for the adoption by the convention. Which are submitted for the committee, SAMUEL DANA, Chairman. Resolved, That the constitution ought to be altered so as to change the time at which the legislative body shall assemble every year, from the last Wednesday of May to the first Wednesday of January. Resolved, That the constitution ought tabe amended so as to render more certain the time in which the governor shall return any bill or resolve to which he may refuse his approbation, by adding to the second article of the first section, these words, " unless the General Court by their adjournment shall prevent its return, in which case it shall not be a law." On motion of Mr. Abbott of Westford, it was ordered that when the House adjourned, it should adjoiun to Friday next at 11 o'clock A. M. On motion of Mr. D. Webster of Boston, the reports presented by Messrs, Q-uiNCY and Dana were committed to a committee of the whole Convention and made the order of the day for Friday next at 11 o'clock A. M. The reports were in the meeui time ordered to be printed for the use of the members. The House then adjourned. Friday, November 24. The Convention came to order at 11 o'clock, and attended pray- ers, offered by the Rev. Mr. Palfrey. The journal of Wednesday being read, Mr. Welles, from the committee to whom was referred the consideration of so much of the constitution as is contained in the 4th chapter and second part, respecting delegates to Congress, made the following report : " The committee to whom was referred '.' so much of the constitution of this Com- monwealth as is contained in the fourth chapter of the second part respecting dele- gates to Congress— and the propriety and expediency of making any alterations and amendments therein," Report, that by recurrence to dates and facts it will appear, that when the consti- tution of Massachusetts was adopted in one thousand seven hundred and eighty, it 68 MASSACHUSETTS CONVENTION. became a duty in the convention then assembled to provide for the choice of delegates of the Commonwealth to the Congress of the United States agreeably to the system of confederation then subsisting. For which reason it was in this fourth chapter provided, that the delegates should be chosen in the month of June annually by a joint ballot of the senate and house of representatives. Their mode of commission, of recal, and of a new choice were all with propriety therefore in this article provided for. But the constitution of the United States having since been adopted by the people, and it having become the supreme law of the land, this article has been thereby vir- tually superseded or repealed, and has not since had any effect in the constitution of this Commonwealth. Under these circumstances your committee consider that the said fourth chapter of the second part as respects delegates to Congress is inapplicable to the existing condition of the state of Massachusetts, as well as to that of the constitution of the United States. The committee therefore recommend the adoption of the following resolution: /.>,;< Resolved, That the fourth chapter of the second part of the constitution ot this Com- monwealth, having become inapplicable to the existing condition of the state of Mas- sachusetts, ought to be expunged therefrom. All which is submitted. Per order of the committee. JOHN WELLES, Chairman." On motion of Mr. Welles, the report was referred to the com- mittee of the whole and made the order of the day for tomorrow at 10 o'clock. Mr. Austin of Charlestown submitted the following resolution, which being read from the chair was adopted : That the committee under the third resolution who have under consideration the part of the constitution relating to the senate and house of representatives, be in- structed to consider the expediency of so altering the constitution as to provide that the governor and lieut. governor, senators, representatives, and electors of president and vice president and representatives in Congress on the years when they are to be chosen, and town and county officers, be all chosen on the first Monday in April, or on the day of to begin with town officers, and to proceed with the others in order. Mr. Ward of Boston, from the committee on that part of the con- stitution embraced in the sixth resolution, made the following report : Commonwealth of Massachusetts, In Convention, November 24, 1820. The committee to whom was committed by the sixth resolution passed in this con- vention, so much of the constitution of this Commonwealth as is contained in the fourth section of the second chapter of the second part, and relates to the secretary, treasurer and receiver general, and the commissary general, notaries public, and naval officers, with directions to take into consideration the propriety and expediency of making any, and if any what alterations therein, have attended to the duty assigned them, and respectfully ask leave to report, That, notwithstanding they are very strongly impressed that no part of the form of fovernment under which we have lived so happily for forty years, and enjoyed all the lessings of civil and religious liberty and freedom, and which has received a prac- tical and judicial construction, and is now well understood, ought to be altered for light reasons, yet, inasmuch as the jurisdiction over impost and tonnage duties, by the constitution of the United States, is transferred to the government of the United States, and this Commonwealth, as an individual state of the Union, ceases to have any jurisdiction over imposts, export and tonnage duties, excepting the qualified one mentioned in the constitution of the United States, your committee are of opinion that the provision for the election of a naval officer in the section committed to them is wholly superfluous and ought to be expunged. In relation to the choice of notaries public, your committee are aware that their office is an important one ; one in the faithfiil and impartial execution of which, not only the citizens of the United States but foreigners have a deep interest, and that they ought to receive their appointment from the Supreme Executive, or legislative MASSACHUSETTS CONVENTION. 69 power of tha Commonwealth. And, after due deliberation upon this subject, your committee are of opinion that the election of notaries public, by the two branches of the Legislature, as provided by the section aforesaid, is attended with much expense, and unnecessary delay of legislative business, and cannot be executed, as well, by that department of the government, as by the Supreme Executive. Your committee therefore report the following Resolve. ARTEMAS WARD, Chairman. Resolved, That it is expedient to alter and amend the constitution of this Common- wealth, by striking out the words "notaries public and naval officers," in the first article of the fourui section, of the second chapter, of the second part. " On motion of Mr. Qbinct, the House resolved itself into a committee of the whole on the report of the committee on that part of the constitution relating to the Univer- sity of Cambridge and the encouragement of literature, submitted on Wednesday, and made the order of this day, the Hon. Mr. Varnum of Dracut, in the chair. The report being read, on motion of Mr. Quincy, the first resolution offered by the com- mittee was taken into consideration, viz. . x Resolved, That it is inexpedient to make any alteration or amendment whatsoever in the fifth chapter of the second part of the constitution of this Commonwealth. Mr. Q,uiNCT said that on general parliamentary principles it would be proper for him, as chairman of the committee which reported the resolutions, to go into a general consideration of the reasons which induced them to make the report, but as they did not propose to make any alteration of their part of the constitution the provisions of which were well understood, he should refrain from making any observa- tions in support of this resolution, unless he should be called upon to make some explanation, or the adoption of it should be opposed. Con- sidering that the encouragement of literature as already amply pro- vided for in the constitution, and considering that the unexampled prosperity of Harvard College furnished the most satisfactory proof that no provision in relation to that institution was necessary, he was desirous to give an example, which he hoped would be followed in other cases, of a disposition to indulge in as little debate as possible, and he waived the right of saying anything in support of the reso- lution. Mr. Richardson of Hingham. Mr. Chairman, I rise to offer my reasons for not accepting the report of Ihe committee now laid on your table, which proposes no alteration or amendment as respects the University at Cambridge, and the encouragement of literature, &,c. Sir, I would not derogate from the respect due to the com- Hiittee who have thus reported ; but, sir, I should violate my own sense of duty ajid obligations to my constituents, if I should vote to , accept this report, as it relates to the 3d art. of the 1st sec. of the 5th chap., where it is declared that the governor, lieut. governor, councillors and senators of this Commonwealth, with the President of Harvard College, together with the Ministers of the Congrega- tional churches in the towns of Cambridge, (fcc, shall be, and hereby are, ve:Sted with all the powers and authority belonging, or in any way appertaining, to the overseers of Harvard College. Sir, this constitution, by this provision, bestows exclusive honors and privi- leges upon ministers of Congregational churches, which provision, in my opinion, is directly repugnant to that clause in the Declaration of Rights, which declares, that no subordination of any one sect or 70 MASSACHUSETTS CONVENTION. denomination to another, shall ever be established by law. By the provision cited, all other denominations except Congregationalists, are excluded from a very honorable public trust. It is not simply from a trust reposed by the University, but from a high trust re- posed by this Commonwealth. Sir, what reason, I would ask, can gentlemen give for this preference, granted to ministers of one de- nomination. I, sir, profess a strong attachment to the Congrega- tional denomination. I am well satisfied with the mode of worship, and the discipline of this order of christians. But this, in my view, is no reason why I should be satisfied that our constitution of gov- ernment should draw lines of invidious distinction between the different denominations of christians. This provision appears to me to place all the other denominations of christians in a degree of suh- ordination to one, as if all others were disqualified for the high trust. What are the inferences naturally following such a provision ? That this State from the first institution* of this government and (as a province) long before, has with liberal munificence fostered Harvard University, for the encouragement of arts and sciences, and all good literature, (as expressed by the constitution) tending to the honor of God, the advantage of the christian religion, and the great benefit of this and the other United States — ^but entrusted, so far as depend- ing on the cEire of the ministers of religion, to one denomination only. Does not the inference follow, from the exclusive words, or rather from the implied and actual exclusion, that ijriinisters of other denominations are, in the view of the State, unworthy to be trusted with the care of an institution on which the "honor of God, and the advantage of christian religion depend?" It appears that all other denominations are taxed with large appropriations to support the character and dignity of an institution, which, as the constitution now stands, is a sort of holy of holies, which even the clergy of other denominations are not permitted to approach only in sub- ordination. Are there not respectable clergymen of other denomi- nations in the several towns mentioned (admitting that the board of overseers must be limited to these towns) who might be safely per- mitted to share in the management of that University ? In these several towns there are Episcopalians, Baptists, Methodists, Univer- salists, and perhaps other denominations, who have formed societies of high reputation, possessing great numbers and wealth, who have long contributed in the same proportion that others have done, to erect the numerous superb buildings, to endow liberally the many professorships, or at least to aid them, and in various ways to dignify this renowned institution. But these denominations are all excluded from the least participation in that department of trust assigned to the ministers of religion. If, sir, my views of this subject are erroneous, I hope to be convinced by fair arguments that they are so. But every feature of a free government that tends to cherish and perpetuate a spirit of intolerance among different denominations of christians, is inconsistent, in my view, with liberty, both civil and religious. I am constrained to view this policy of preference MASSACHirSETTS CONVENTION. 71 and exclusion as verging too much towards a national establishment of religion, and who has been conversant in history, and does not 'admit that religious establishments on narrow principles, maintained by civil power and authority, have not proved instruments of great calamity? Sir, I oppose the provision of the constitution on an- other ground. This partiality to Congregational tenets, in my view, is to render this denomination a spoiled child of the State. I would, however, rely principally on this ground of argument, that any pro- vision in the constitution, vesting a particular class of christians with preference in honors and privileges, is contrary to the general principles and spirit of a free government. The priuciple in which such provision is established, I am constrained not only as a chris- tian, but as a civilian, to disapprove, because it not only tends to perpetuate jealousy between different denominations in religion, but also to produce, ultimately, the evils of civil discord. Indeed were I an enemy to the Congregational denomination, I could scarcely devise, what I should consider a more effectual measure ultimately to bring it into disrepute. I am aware that it may be said that the board of overseers does not remain exactly as fixed by the constitution. In 1810, the Legislature passed an act providing that instead of the Congregational ministers of the several towns mentioned in the constitution, fifteen ministers of Congregational churches and fifteen laymen should be elected, and forever thereafter constitute the board of overseers. It was further provided, that the overseers should elect this new board. The new board are empowered to supply all vacancies. If this act was constitutional, here is a stand- ing board provided, for which, should the senate and council be reduced in numbers, as they probably will, may constitute a ma- jority in the board against the votes of the members on the part of the State. So that in fact, the act may place the University above the control of the State government. Thus we shall have a power- ful institution, built up by the State, and independent of the State. It will also appear, that among the ministers created members of the board, by this act, if I mistake not, not one who is not a Con- gregationalist is to be found. If, sir, the constitution contains a clause t&at can authorize a Legislature to place the University out of the power and control of the Commonwealth, is it not expedient that such provision be stricken out ? Placing powerful institutions, even partly the property of the State, out of the control of the State, is certainly the exercise of a prerogative that ought to be solemnly prohibited by the constitution. If this prerogative was deemed to be . authorized by the 3d art. of the 1st sec. of the 5th chap., (see constitution,) I humbly hope the Convention will not permit that part 'to pass unaltered. Sir, I humbly hope, that this Convention will never sanction any authority or precedent in the constitution of government to be submitted to the people, that will indicate an undue partiality toward any sect of christians. If the constitution is again laid before the people, unaltered, I'am persuaded that they will not manifest that indifference about it, which seems to have 72 MASSACHUSETTS CONVENTION. been implied by the small numbers who voted to call this Conven- tion. I trust that this sentiment will be found to prevail in this Convention, that it is utterly incompatible with all the views of sound and liberal policy, in a free government, to give preference of honor or advantage to any denomination in religion, unless it is intended to prepare the way for an amalgamation of church and state. I hope, sir, that the constitution, after revision, will meet the views of the several denominations of christians, and all classes of the people, as the perfect equality of the reaped corn in Laconia met the view of Lycurgus. Passing by, turning to those around him, he said, smiling, " Does not Laconia look like the possession of brothers, who have just been dividing their inheritance among them ? " Mr. duiNCT said that the views which had been taken by the Rev. gentleman who had just spoken did not escape the attention of the committee. It was observed, and they regretted that this exclusive feature existed in the constitution. He felt as fully as that gentleman could the advantage which would result to the University at Cambridge from calling in the aid of other denomina- tions to participate in the government. He thought that his general principles were correct and that on a view of the whole subject, reasons would be suggested which would satisfy that gentleman and the Convention that the resolution must be adopted. The gen- tleman's argmnent proceeded upon the principle that the constitu- tion made some alteration in the charter of Harvard College. But it was not so. There was no grant or gift of anything. The great men who formed the constitution of 1780, knew how sacred pre- existing chartered rights were. Mr. d. referred to the article from which it had been supposed that that convention altered the charter of Harvard College, and contended that it was not so. So far from exercising a power of altering the charter of 1642, they expressly recognize the existence of the charter, and provide for the exercise of powers under it. There was a necessity for making some pro- vision for the failure of certain official persons under the colonial and provincial charters of government. The charter of 1642, con- stituted the governor, deputy governor and magistrates of the colony, with the president of the college and a certain number of the clergy, the board of overseers. In consequence of the revolution and of the establishment of the present constitution, there was no deputy governor ; and the number of magistrates was so far increased that it was impossible to determine Who were properly their proper successors. In this state of things there was a necessity that it should be declared who should take the place of the persons so designated. If it had not been for this necessity they would have left that charter as all other charters ought to be left, untouched. He read a passage from the constitution, to show that the Conven- tion in framing the article state the necessity that existed as an apology for touching the chartered rights of the college. They did not take upon themselves the power to take away rights previously MASSACHUSETTS CONVENTION. 73 granted — they only undertook to declare -who shall be the succes- sors, under the charter, of a body of men who had ceased to exist, and proceeded to give a power, to those who were declared the suc- cessors. He presumed that the Convention would follow the ex- ample that was set us by the convention of 1780. They had no difficulty in providing that all the .powers which were then pos- sessed by the provincial legislature, should continue to be exercised by the General Court of the Commonwealth, with the limitation which before existed. The gentleman from Hingham was in an error in supposing that they exercised any power over the charter. They left the charter as to all the rights and privileges conferred by it, where they found it. But the question arises whether the Legislature has the power to make alterations without the consent of the corporation. This question is to be settled by the judiciary. If any alteration is made, it must be made by the Legislature with the consent of the corpora- tion, which consists of gentlemen of great talents and great liber- ality ; and without their consent, if the judiciary should declare they possess the authority. He made these remarks in reply to those which had been made by the gentleman from Hingham, and he hoped they would be satisfactory to him and to the Convention. Mr. Martin of Marblehead moved to strike out the word Congre- gational in the clause, "the governor, &c. together with the minis; ters of the Congregational churches, in the towns of Cambridge, &c. shall be (fee. vested with all the powers and authority belonging cfcc. to the overseers of Harvard College." Constitution, chap. V, sect. 1, art. 3. He said the gentleman from Hingham had not gone far enough for him in objecting to the word congregational only. He wished likewise to strike out rewards and immunities in chap. 5, sec. 2. He found fault with the liberality of the Legislature in granting one hundred and sixty thousand dollars to our colleges; and this at a time when the State was obliged to borrow money to pay the representatives. He thought the sum ought to be limited, beyond which the Legislature should not go. He found fault too, with the yeas and nays being kept back, so that the people could not know how their representatives voted on such questions. For- merly thirty-one members of the house of representatives in favor of calling the yeas and nays were sufficient, but now one third of the members present were required. The Chairman directed the gentleman to reduce his motion to writing. Mr. QuiNCT said that while the gentleman was reducing his mo- tion to writing he would remark that the other subject of this chap- ter of the Constitution, the encouragement of literature, was taken into consideration by the committee. But they found that object as amply provided for as could be wished. ' The duty of the Legisla- ture to afford encouragement to learning and the liberal arts, was clearly and forcibly expressed, and they had occasion to admire the wonderful comprehension and forecast of the mind which had dic- 10 74 MASSACHUSETTS CONVENTION. tated this article. He should say more, were it not for the presence of the gentleman (Mr. Adams) by whom this article was drafted. Mr. Baldwin of Boston said, he wished to be informed whether ministers of any particular denomination were named in the original charter of the college. There had been a change in the government of the University some years since, in which the same idea was kept up. He was not induced to speak on his own account or on account of those of his own religious sentiments, who were excluded from the government of the University, but he thought that by this provision in the constitution, the college might lose the assistance of able and useful men who were not Congregationalists. He men- tioned that Mr. HoUis made a large donation to the University, and requested that a minister of this town, of his own persuasion in re- ligion, might be an overseer, but it was refused. If money was granted to the college by Congregationalists only, then it was right enough that it should be governed solely by Congregationalists; but if men of other denominations contributed to its funds, he saw no reason why they should not share in its government. He did not meem to say that the government of the University had not been well administered, nor that it would not have been equally well ad- ministered by persons of different denominations. If the original chjirter expressed that the portion of the overseers composed of the clergy of the six neighboring towns should be Congregationalists, he should wish to have it confirmed. He only wished to know how the fact was. Mr. QuiNCY, in reply, said that he would satisfy the gentleman on the subject of his inquiry. He was happy to hear the remarks of that gentleman. They were wise, honorable, and characteristic of him, and he was sorry that the charter of the college did not permit the board of overseers to avail themselves of his talents and modera- tion. He read from the charter of 1642, a passage, in which it is ordered that the board of overseers shall consist of the governor, deputy governor, magistrates and the teaching elders of six adjoin- ing towns. The teaching elders of these towns were ministers of the Congregational churches, and it had always been the exposition of that charter, that it was confined in its application to the clergy- men of that denomination. In the supplementary charter of 1650, which contained a fuller exposition of the grants in the first charter, the corporation of the college was made to consist of the same per- sons. These charters were acted upon, without any further grant until 1780. It had been understood, up to this day, as embracing the Congregational clergy only, and the Convention of 1780 con- firmed that construction. Mr. J. Davis of Boston observed that the grounds of the report of the select committee, on the subject under consideration, had been so fully and clearly explained and enforced, that he should only offer some remarks suggested by what had been offered by his Rev. colleague, (Rev. Dr. Baldwin.) That gentleman, if he under- stood him correctly, had candidly admitted that if he was assured MASSACHUSETTS CONVENTION. ?6 that the original charter of the University was, in regard to the cler- ical portion of the board of overseers, limited to ministers of the Congregational denomination, he should not think he ought to con- .tend for an alteration. Nothing, Mr. D. thought, could be plainer, than that such was the true intent and meaning of the original as well as the confirmatory charter. If there could have been at any time any doubts on the subject, this construction must be consid- ered as the settled construction, by the language of the article in the constitution, now under consideration. If there were originally any thing doubtful or ambiguous as to this part of the overseers' board, , it was by the constitution, in express terms, limited to the ministers of the Congregational churches of the six neighboring towns, and must so remain, unless an alteration should be made pursuant to the proviso at the close of the article. If his Rev. colleague therefore, would feel himself restrained from attempting a change in the pro- vision, by a constitutional amendment, if he were persuaded that the limitation was created by the original charter, which was by an act of the Colonial Assembly, he ought certainly to be equally restrained by the express language of the constitution, in regard to which there was no ambiguity, and nothing left for construction. The University therefore rested on chartered rights, which it could not be presumed that the Convention would in any degree disturb or impair. The foundation of that important Seminary might not in this particular rest on such broad foundation, as would be congenial to the liberal spirit of the present times. But, to render justice to our ancestors, we must recur to its foundation. This venerable institution was one of the early objects of their care. They had a strong persuasion of the great importance of a learned ministry. Their institution was dedicated to "Christ and the Church " — and with such views, the clerical part of the board of overseers was introduced, as the most natural and efficacious guardians and promo- ters of an institution whose prime object was the supply of the country with able and learned ministers. At that period there were no clergy in the Colony but of the Congregational o^der. If the present state of the country required a wider range in the selection of members for the clerical part of the board, it could be effected by law, if the alteration should be consistent with the charter ; and if not, the Convention would doubtless hesitate in undertaking to affect a chartered right, by a proposed amendment to the constitution which could not be affected by law. A different organization of the board of overseers in this particular may be desirable. It may be hereafter effected. In the mean time it should be remembered that no injurious consequences have arisen from this construction of the board of overseers. Uniform Catholicism had been the distinguished traits in the history of the University, and no instance of partiality, or injustice, from preference or dislike to any religious sect or de- nomination, could be pointed out or verified. The Rev. gentleman had adverted to the denial of a favorite wish of one of its distin- guished l^enefactors, Mr. Hqlli^, tl^a-t a clergymari in the town o^ 76 MASSACHUSETTS CONVENTION. Boston, of his religious persuasion, should be admitted to a share in the government. However this might be, it was certain that Mr. HoUis, a man who was an honor to his country, and the age in which he lived, received satisfactory explanations in this particular ; so satisfactory at least, that he did not withhold the bountiful dona- tion which he intended. He only requested, ultimately, to have the nomination of the first Professor submitted to his approbation. That Professor was the Rev. Dr. Wigglesworth, a minister of the Congre- gational order, a choice which Mr. HoUis approved. The corres- pondence between Mr. Hollis and President Wadsworth will evince his entire satisfaction with the proceedings on the part of the college. He was assured with truth, that youth of the Baptist persuasion would be cheerfully received in the Seminary, and have the same privileges and advantages as the members of any other denomination. The liberality of that gentleman was imitated by successors of the same family. His nephew was still more munificent in his dona- tions. Others of the same name, even down to the present time, have given substantial marks of their attachment to the University, cir- cumstances which aiforded additional evidence of their continued approbation of the temper and conduct of the institution which they cherished. In the limitation under consideration, there was nothing new or peculiar. An University in a neighboring State (Rhode Island) was committed almost entirely to members of the Baptist persuasion. The college in New York was in the care of Episcopa- lians. Mr. D. had no partiality for these theological solicitudes. But we should be careful not to indulge our own views and biases to the prejudice of vested rights. Even in the present times our Leg- islatures do not hesitate in granting acts of incorporation to give peculiar and exclusive powers to those who originate the institution for which corporate powers are solicited. Upon the same principle by which the requirement for which the gentleman from Hingham contends, should be introduced into the constitution, we might essen- tially vary and mutilate the charters of other institutions in the Commonwealth, which may not be constructed altogether agreeably to our wishes. Such a course would be justly alarming to the com- munity, and would in no instance, he hoped, be pursued. After Mr. Davis had finished, Mr. Martin's motion was read from the chair, and declared by the chairman to be out of order. Mr. Freeman of Boston stated a fact with respect to church rights. The Episcopal minister of Boston, he said, once claimed a right to be an overseer of Harvard University, and applied to the Bishop of London on the subject. He received for an answer that no teaching elders were known in the Church of England. Mr. P. said he was not a Congregational minister himself, and consequently an altera- tion in conformity to the views of "his colleague from Boston (Mr. Baldwin) would he for his advantage ; but the fact was, that Harvard University was a Congregational institution. He gave his testimony however, to the liberality it had shown towards christians of diiferent sentiments. He observed that there were two colleges founded for MASSACHUSETTS CONVENTION. 77 a particular religion, and instanced the college at Providence, where it is required that the President shall be a Baptist. Mr. Baldwin rose to correct a mistake. He said he was a Fellow of Brown University. That college was not an exclusive one. The founders of it were principally Baptists, and they provided that the President "should be a Baptist ; but all the other officers might be of other denominations. That in fact, eight of the present Fellows were Baptists, and four were not ; and of the corporation, consisting of thirty-six members, twenty-two were Baptists, four Congregationalists, five Episcopalians, and five Friends. Mr. TucKEKMAN of Ohclsca said he should vote for the adoption of the resolution for two reasons. 1st. The convention of 1780, he thought, rightly restricted themselves to declaring who should be the successors of the magistrates and teaching elders who constituted the corporation before that time. They declared that the successors of the teaching elders were the Congregational ministers of the six 'adjoining towns. 2d. The act of 1810, in proposing certain changes in the charter, was conditional on its being accepted by the corpora- tion. At the meeting of the President and Fellows of Harvard College, they were in a formal manner accepted by the corporation and board of overseers. It was therefore understood that the Leg- islature had no right to make any change in the charter, without the consent of the corporation. If the Legislature had no right, this Convention has none. Mr. J. Phillips of Boston said, if he understood gentlemen cor- rectly, the objection to the provision in the constitution, was on account of its being exclusive. If the question could be settled by the Convention, it might be worth while, perhaps, to make a different provision ; but where chartered rights were concerned, the Convention must pause. The original charter of- 1642 had made use of the terms, teaching elders. What was the intention of the Legislature ? Every lawyer, he said, knew the value of cotempora- neous interpretation of laws ; and from 1642 to the present time, the charter had been construed so as to exclude Episcopal and all other ministers, except Congregationalists, from being overseers. Forty years ago the Convention only changed the name. In sub- stance the Congregational ministers were the same as the teaching elders. It might be desirable to open the office of overseer of the University, to ministers of all denominations, but it could not be done without the consent of the University. The Legislature un- dertook some years ago, to alter the charter, but it was upon condi- tion that the University should accede to the alteration. The University had its rights defined in its charter, and while it kept within the limits marked out by it, it was independent of the Leg- islature. Mr. Parkek of Boston (the President) wished his colleague (Mr. Baldwin) to review the principles he had laid down. He understood him to say, that if the privilege of being an overseer of the Univer- sity were given by the original charter to Congregational ministers 78 MASSACHUSETTS CONVENTION. exclusively, the grant ought to he confirmed. This principle was a sound one, and after hearing the passages which had been read from the original charter (by Mr. Q,uincy) he understood him to ad- mit that the privilege was originally given to men of that persua- sion, as it was a matter of genered information that the teaching elders were Congregationalists. It would seem then to follow froin these two principles, that it is not in the power of the Convention, if it were desirable, to alter the government of the University ; but the gentleman had laid down another principle, which might seem to him to give the Convention a right to interfere, viz., that those who had contributed money for the support of the institution, ought to have a share in the government of it. He (Mr. P.) apprehended however that the gentleman would see cause to abandon this prin- ciple. Suppose a person of the Legislature makes a voluntary dona- tion to an institution of this kind. Can such a donation be thought to give a right to interfere in the government of it ? If the grant is made upon that condition, this alters the case. But suppose the Legislature of Rhode Island should make a large donation to Brown University ; it surely could never be imagined that the Legislature would have a right to say, that any other person than a Baptist might be President of the University. Mr. D. Davis of Boston. I should not rise upon this question if my sentiments had been expressed by any gentleman who has preceded me in the debate. And my principal object will be to explain and en- force the proposition taken by the Rev. gentleman from Chelsea, viz., that this Convention have no authority to interfere with the rights, privileges and powers of the University, as they now hold them under the charter of their incorporation. I go further and state, that if such an interference should be made or indulged by this Conven- tion, their doing would be void and of no effect, unless accepted by the government of the University. Before I proceed to the explana- tion of this principle, I would remark, that the liberal principles and feelings expressed by the Rev. gentleman from Hingham, are felt and reciprocated by all good men, and particularly by the friends of the college ; but I apprehend the gentleman last mentioned is under a mistake when he says that the provision in the article of the con- stitution now under consideration, which designates ministers of the Congregational churches as a part of the number which is to com- pose the board of overseers, is repugnant to the third article of the^ declaration of rights, which provides that there shall be no sub- ordination of one sect or denomination of christians, under another. This part of the college charter has no reference to the religious establishments of the State, or of the University, or of the people at large. It only comprehends a provision, that certain clergymen of a particular description, residing in several towns in the vicinity, shall, together with the Senate and Supreme Executive of the State, compose a part of the board of overseers. This board have no ecclesiastical powers or privileges, are composed of a good ma- jority of laymen, and their principal business is to superintend and MASSACHUSETTS CONVENTION. 79 advise as to the temporal concerns of the University. The University have, and ought to have the exclusive right of selecting and ap- pointing their own officers and governors — and that part of their charter now under consideration contains nothing more than a pro- vision to that effect. I will now explain the reason why this Con- vention ought not and cannot interfere with the government of the University, so as to alter or change the same in any respect what- ever, without its consent. The charter of the University was granted in the year 1643, by the colonial government. It was granted and confirmed by the competent authority, then existing. This charter is a grant, a contract between the grantor and the grantees — the government, and the corporation accepting the charter. By those principles which are of universal application and authority relative to the law of contracts, there exists no power in any gov- ernment of laws, founded upon the. freedom and equal rights of the people, by which this contract or grant can be altered or impaired without the consent of the parties to it. The rights and obligations resulting from it are vested and cannot be taken away or abrogated by the arbitrary act of any man or body of men. When the con- stitution of 1780 was made and adopted, these rights and obligations were recognized and confirmed by that instrument. It became ex- pedient for the Convention which framed that constitution, to give such a construction to the original charter, as to declare who were the successors to this ancient corporation ; this in my opinion was expedient, though not absolutely necessary ; for it is a principle of the common law, that a change of government does not abrogate the rights of a corporation. It was expedient, because that part of the board of overseers designated by the terms "teaching elders" required an explanation, and a cotemporaneous construction. It is well known to those who recollect the style of the ancient laws of Massachusetts, both before and after the adoption of the charter of 1692, that teaching elders were the same persons that we now call ministers of the gospel, or public teachers, and that in the year 1692, all these teaching elders or ministers of the gospel, were teachers or ministers of the Congregational churches. A recurrence to the ancient laws and ecclesiastical history of the State for a century and a half, will show this to be the case. The construction, therefore, given in this case, by the convention of 1780, was unquestionably correct ; but whether it were so or not, it has now become imma- terial to us lof this Convention ; for this construction was adopted and accepted by the government of the University ; and it may be said, that in this respect as well as in others, they hold their char- ter under the highest source of human power and authority, viz., by the grant, assent, and declaration of the whole people of Massachu- setts ; not merely by legislative, but by the highest source of power and right, the constitutional authority of the Commonwealth. If this reasoning be correct, it follows conclusively that neither the Legislature, nor even the whole people of this State can deprive the University of thisir chartered rights — these are unalterably estab- 80 MASSACHUSETTS CONVENTION. lished and confirmed by the constitution of the United States, which provides that no laws shall be made, " impairing the obliga- tion of contracts" — the chai-ter of a corporation is a contract be- tween the government and the grantees — if the grant respects a religious or literary institution, the consideration upon which it is made is mutual ; on the part of the government the consideration is the good morals, principles and literary improvements it is in- tended to encoureige and disseminate ; on the part of the corpora- tion, the consideration is, among others, the employment and advan- tages it gives to its officers and founders. This contract is sacred, and under the protection of the highest authority, the constitution of the United States ; and on this account it follows most clearly in my mind, that if we were to do an act in this Convention which altered the government, or the rights of the University in the smallest degree, oin: act would be null and void, unless accepted and assented to by the government of the college. I express this opinion with more confidence, because we know that this question has recently come before and been decided by the highest judicial authority of the United States, in the case of Dartmouth College ; that case presented a question precisely similar to what might arise between the government of this state and the University of Cam- bridge, in case we should adopt without its consent any provisions which might impair or infringe their chartered rights. The legal discussions in the case of Dartmouth College, both by the bar and the bench, have not been surpassed for their learning or their liber- ality, in any country or in any age, and as the questions in that case have been decided under the advantages of so much light and deliberation, and by an authority, by which we are all at this moment bound, it cannot be expedient to depart from its salutary influence. One word further ; if the University now or hereafter wish for a change in its government, either in its principles, or in the mode or the persons by whom it is administered, the legisla- tive power have competent authority at all times to afford them the desired aid. It is clear that we cannot force upon them any such change. Mr. Savage of Boston said he should not rise to detain the House, but that no gentleman in the course of the debate had taken up the subject on the grounds, on which the special committee had pro- ceeded. Yet he believed the result was capable, if anything was, of demonstration; and if the members would patiently consider the subject, the result in the Convention must be as unanimous as it was in the committee room. He referred to the constitution to show that all the three articles of the first section of the 5th chap- ter were framed in a similar form, and they should each have the same construction. The first article begins with a recital of facts, that the college was founded in 1636, and that many persons of great eminence have been in it initiated in arts and sciences quali- fying them for usefulness in church and state, and that encourage- ment thereof tends to the honor of God, advantage of religion, and MASSACHUSETTS CONVENTION. 81 benefit of these United States, and here ends the recital ; and the article proceeds to declare a present right, that the corporation shall have, hold and enjoy all the powers, authorities, &c., which they now have, or are entitled to have. Here was no assertion or qual- ification of a principle, no restraint on the Legislature or command to them, but a mere declaration of a state of things existing in 1780 ; and it was all true. To be sure, the rights would have been enjoyed by that institution, if not so declared at that time ; but as it is declared, anything now done to alter the phraseology, would be in eflFect to resolve that the state of things in 1780 was not truly and justly stated in the constitution. The second article begins with a recital, that by divers persons, gifts, grants, devises, &c., had been heretofore made, and proceeds to declare that they are con- firmed. He demanded, are they not confirmed ? The Convention in 1780 could have declared no otherwise ; and if in this part of the chapter we make an amendment, we resolve in effect, not only that they should not have so declared, but that indeed they did not so declare justly and truly.- The third article begins by recital of the board of overseers constituted by the act of 1642, and of the neces- sity of ascertaining the successors of that board, and declares that the governor, lieut. governor, council and senate, are and shall be deemed their successors, and then, with the president and ministers of the Congregational churches of Cambridge, Watertown, &c., they are vested with all the powers and authorities belonging to the overseers. This part of the constitution he contended must be taken alto- gether with reference to that time, as a declaration of facts and of rights then existing. That the articles are all of one form, made, if I may so say, on one last. It does not, like other parts of this instrument, look to any future time. It asserts no principle, com- mands no duty, gives no new right, takes away or qualifies no old one, requires nothing and restrains nothing in the Legislature or any other branch of the government. It merely states, what, if any- thing was said,' it could not avoid stating, and what must then have been and must now be the universal opinion of the community, that the University, in all its privileges, estates, members, rights, officers, corporation and overseers, then stood on the rights therein recited, the same rights as every other corporation. It was not in the nature of things, that that Convention should be supposed to give any rights at that time, nor can the case permit a supposition that any were or could be taken away. The wise men who framed this constitution use very difi'erent language when they assert any new principle, secure any new right, require any duty, impose any restraint on the Legislature, or any other body ; but in all these arti- cles they merely announce an existing state of facts, declare the governor, &c., are successors in 1780, and if we change the words, we declare an absurdity in 1820, that they were not overseers in 1780. We might as well vote seven times seven to be fifty and not forty-nine, as alter the phraseology, because we would have desired others, when we had to state a fact which could not be 11 82 MASSACHUSETl'S CONVENTION. Stated in others. The word '-congregational" is proposed to be stricken out ; but if it is stricken out, the declaration will not be true in the constitution. Do not the gentlemen from Hingham, he asked, and Marblehead, and my reverend colleagues, see at once, that the language is altogether declaratory of what is, not what ought to be ? And is not the conclusion of the committee in the first resolution irresistible ? By the proviso at the end of the articles, the Legislature are empowered, in as full a manner as the Legislature of the late pro- vince, to make any alteration '^conducive to its advantage." The framers of the constitution well knew, that no other alterations could be made by the Legislatm-e. The fostering kindness of the liCgisIa- ture has in fact been three times applied. The first in 1810, changed the constitution of the board of overseers in part, by ex- cluding the senate and introducing fifteen laymen specially chosen at large, and restricting the clerical part of the board in number. There seemed to be some reason for this, because the board was thought too numerous. And indeed the number was much in- creased from the state of it in 1642. The governor, deputy gov- ernor and magistrates, were few. The assistants, who only were the magistrates in 1641, amounted to eight ; in 1643 to ten ; in 1642, the year of creation of the board, the number cannot easily be as- certained. The fifteen laymen were, with the governor, lieut. gov- ernor, council, president of the senate, and speaker of the house, substituted. But the community were not satisfied, and they should not have been satisfied. Two years after, the law was repealed ; but the repeal was total, and unhappily the advantage of the first act, which introduced a small body from the community at large, was not retained. The community were not satisfied, and they ought not to have been, for it was taking away overseers already appoint- ed, and so violating their rights and those of the college. The third act, soon after, makes the board as now constituted, keeping the senate with other persons of the civil list, as exhibited in the constitution, and the additional laymen of the act of 1810. So that it is now as it ought to be, not indeed as it was declared by the constitution, but as under that instrument, according to the pro- viso, it might be made. The clerical part of the board are congre- gational, but the lay part have several difi'erent persuasions. If there were a disposition and tendency to evd, it would be counter- acted, and nobody can entertain an apprehension of a mean, exclu- sive, bigoted spirit, were it possible so find such in the distinguished gentlemen who must ever be a minority of the board. The gov- ernor, lieut. governor, council and senate, of every possible denom- ination, men whom the people delight to honor, are the great majority, and always must be ready to prevent any such injury. Mr. S. said he rose merely to state the views of the committee to whom the subject was referred, and did not feel obliged to vindi- cate the college against illiberality. Many of the committee, per- haps a large majority, were sorry for the expression in the constitu- tion, but they were satisfied it could not be otherwise, because such MASSACHUSETTS CONVENTION. 83 was the fact in 1780, and had been from the commencement of the college. Such is the fact now, and it seemed at first to several of the gentlemen, and to him, that we might declare the present suc- cessors. But, said he, we need not declare who for all succeeding time shall be successors. Who v>ere in 1780 the successors of the board of 1642, it was necessary to state ; who they now are, it is not necessary to state, because all know from the law. A constitu- tion is not intended to point out minute exercise of rights, but only the rights themselves. There always will be successors, we need not fear. Those who have rights to their seats have the duty of filling vacancies. But in 1780 there was a necessity of declaring or announcing the fact. For ninety five years there had been a failure of formal right to seats at that board, either in posse or in esse. In 1685 all the charter rights of Massachusetts were taken away by a most arbitrary and tyrannical decree in chancery, on a scire facias to annul the charter of Charles I. All rights of all sorts, dependent on that charter, were annulled. Not, sir, said he, that my ancestors or yours were, or could be, deprived of the actual possession of their highest rights. They held them by something better than paper. No doubt, sir, that nullification was a nullity ; and after the restoration of liberty, with William and Mary, any tribunal, and especially the highest, must have overruled the ex- travagant edict which pretended to annul our charter without our being heard. From 1685 to 1780, no declaration could be made, who were the successors of the former board, except by the college itself. They called to such seats proper men in the successive periods, and the constitution confirmed in their places the men who were then found in those places. They were the very men designed by the colony charter, as far as it could be followed. But the province charter of William and Mary, though it was good for liberty and right, was not sufiiciently good. Application was made, time and again, relative to the college, and no change could be ob- tained, when it was necessary. Laws, orders, regulations were made, but could not take effect, because our governor was not "from amongst us." All laws, rules and orders were submitted to the king in council, and no improvement for the college could be ex- pected. His majesty's governor had orders, and with those orders, providing any supervision by his majesty, or deputy, the college would never comply. Had the institution complied-, the free born sons of the college in the General Court never would have con- sented to an enactment. Now, it was proper, though no failure of a good corporation and good overseers had ever been suffered, it was becoming in the Convention of 1780, to state a declaration of fact, for all those illustrious men and their fathers had been born since the original attempted infraction of right in 1685. I can ia- form the committee said Mr. S. how these articles were introduced, and these will support the resolution under debate. In the Conven- tion which formed our constitution, so many sons of an illustrious mother considered the University as an object to be named, I arja 84 MASSACHUSETTS CONVENTION. happy that as many are here to revise their instrument. They in- quired of the president, and other authority of that day, probably of the corporation and overseers, and asked if anything need to be done. What was the answer, and the result ? The governors of the college offered these propositions, which were inserted with- out alteration. What are they ? Any restraint of power to be exer- cised against them ? No, sir, but merely a declaration of what their rights had been, and then were ; with authority to the Legislature to make any such acts as would be conducive to their advantage, not specifying any acts, demanding this or denying that. When in select committee these articles were taken up, after dil- igent perusal of them and consideration of any amendments of which they at first were thought by some susceptible, we all agreeed there was nothing to be done. No principle is asserted in them, of which we could suppose a discussion now to have any in- fluence. It is merely past history, and it seemed not necespary to declare the present economy of its administration. We were satis- fied that the Legisla^ture had all necessary power, and it is evi- dent to all, that the Legislature here can do nothing but right. We sent indeed to the President, thinking that if it were desirable to speak of the present state of the Institution so highly favored, some amendment of phrase declaratory thereof, might be introduced. It might seem, that University should be substituted for College, in one or two places, but both names are used with propriety, and the change is unnecessary. Her sons are more anxious that she should be an University in fact than in name. We agreed, sir, to the report, being perfectly satisfied that no alteration could be made without an absurdity, except by striking out the whole section. If the whole be a mere declaration, I see not, that any gentleman can fail to agree to the resolution. On motion of Mr. Pickman, the committee rose, reported progress, and asked leave to sit again, which was granted, and the House adjourned. Saturday, November 25. The House met according to adjournment. On motion of Mr. Nichols of S. Reading, Resolved, That the committee on the tenth resolution, respecting oaths and sub- scriptions, be instructed to take into consideration the expediency of altering the constitution, so as to substitute affirmations for oaths in all cases whatsoever, where the party shall entertain religious scruples in regard to taking oaths. On motion of Mr. Enoch Mudge of Lynn, Ordered, That the committee on the seventh resolution, respecting the judiciary, be instructed to consider the propriety and expediency of providing in the constitu- tion, that the person of a debtor, where there is not a strong presumption of fraud, shall not be committed or continued in prison, after delivering, upon oath or affirma- tion, all his estate, real and personal, fqr tl}e use of his creditors, in such manner as shall hereafter be regulated by law. MASSACHUSETTS CONVENTION. 85 On motion of Mr. Willard of Fitchburg, Ordered, That the committee on the fourth resolution, be instructed to inquire into the expediency of so altering the constitution, as that captains, subalterns, non-com- missioned officers and privates of the militia, be exempted from payment of a poll tax during the time that they are liable to do military duty. On motion of Mr. L. Lincoln of Worcester, Ordered, That the secretary forthwith cause to be made a list of the members of this Convention, arranged alphabetically, by their surnames ; and that in taking the yeas and nays upon any question, the members shall be called to answer in the order of their names on that list. Upon motion of Mr. GIuinct, the Convention again resolved itself into a committee of the whole, upon the report of the special com- mittee on the ninth resolution : Mr. Varnum in the chair. The question before the committee, was upon the adoption of the first resolution contained in the report, viz., that it was inexpe- dient to make any alteration in the constitution, so far as it respects Harvard University. Mr. Nichols of South Reading said he was satisfied, from the discussion of the preceding day, that the Convention had no power to interfere with the chartered rights of the University. But he was as much averse to the invidious distinctions which had been commented upon, as the gentlemen who had iaveighed against them ; and as the provisions of the constitution respecting the Uni- versity, were inoperative at this time, he would move to amend the resolution in discussion, by striking out all the words after resolved, and inserting, " that it is expedient that the first section of the sec- ond chapter, which respects the University, be expunged from the constitution." Mr. D. Webster said that the time might come when such a proposition might be very proper. If the constitution is to be a new draft — a new constitution — then the constitution of 1820 ought to omit everything that is not applicable at the present time ; but he thought the gentleman's -motion premature, and he hoped it would be waived. Mr. Dana said he was not prepared to act on the proposition of the gentleman from South Reading. Mr. D. took a view of the present form of government of the University. The corporation consisted of seven members, called the president and fellows, with whom originated all laws and regulations for the government of the University. This was as it should be. There was a board of over- seers, who had a negative only on the proceedings of the corpora- tion. This, too, was right. The causes of doubt in the subject before the committee, arose from the manner only in which that board was constituted. It was now composed of the governor, lieutenant governor, council and senate, &c. He could not tell what alterations might be made by the Convention, with respect to these officers of the State government, nor of course how these al- terations would affect the board of overseers. He therefore thought the gentleman's motion was premature, and should move that the 86 MASSACHUSETTS CONVENTION. committee rise, with a view to the report lying on the table, until other things should be first settled. Mr. HtTBBARD of Boston said he did not know that the members of the committee would be better prepared than they were then ; that they would have to go over the same ground again, if the committee rose, and so lose a great deal of time. Mr. Webster thought the gentleman was out of order. The question was whether the committee would rise. Mr. Hubbard asked whether the whole subject was not before the committee, for the reasons for not rising were to be taken from the whole subject. Mr. Webster said the gentleman was entirely wrong. On a motion of this kind, it was never heard of, that the merits of the general subject should be discussed. The Chairman considered the motion as analogous to a motion to adjourn. Mr. Hubbard said the subject had been assigned for to-day, and he thought they should not be better prepared by postponing it. Mr. Blake of Boston was in favor of the committee rising. He was unprepared himself, and he apprehended it was the case with others. He had not made up his mind, whether the University were a public or private institution, and he was not sure that the Convention had not the right to mould the government of it into what form they pleased. Mr. duiNCY said, as gentlemen had been allowed to give reasons for the committee rising, members ought to be allowed to give reasons on the other side. He said there was an immense business before the Convention ; they might talk for twenty years upon the subject which had been discussed, but he conceived it lay in a nut- shell. That after the light thrown upon it yesterday, the House were as ready for the question as they ever would be. The de- bates would be protracted to an endless length by the course they were pursuing. Mr. Blake diifered from the gentleman as to the discussion of yesterday being satisfactory. He had expected much instruction from it. The three gentlemen from Boston had given each a dif- ferent reason for the report of the special committee. One of them, (Mr. duiNCT,) if he understood him right, lamented that they were foreclosed from altering the government of the college, as the con- stitution had only given a construction to chartered rights. An- other, (Mr. D; Davis,) went on a different ground, making no attempt at construction ; he said the constitution made a new grant, and that it was in the nature of a contract, and therefore not in the power of the Convention to interfere. The third, (Mr. Savage,) thought nothing weis said in the constitution that was applicable to the present time, and took the ground of expediency. He (Mr. B.) was not prepared to say whether either of them was right. He wished no injury to the celebrated and highly respected Seminary at Cambridge. He did not wish to interfere with its operations ; MASSACHUSETTS CONVENTION. 87 but he wanted the subject before the committee to be thoroughly understood and discussed; it had not been yet. It involved a question of law of great importance. He hoped the committee would rise, if the Convention should sit all winter and summer too. After a few remarks by Mr. GIoincy and Mr. Webster, the com- mittee rose. On motion of Mr. Webster, in Convention, the committee of the whole was discharged from the consideration of the whole subject which had been before it, and the report ordered to lie on the table. Time of session of the Legislature. — The report of the select committee on the subject of the General Court, being in order, the Convention resolved itself into a committee of the whole : Mr. Web- ster in the chair. The report being read, and the question stated, on the adoption of the first resolution, as follows : Besolved, That the constitution ought to be altered, 8o as to change the time at which the legislative body sheill assemble every year, from the last Wednesday of May, to the first Wednesday of January. Mr. Dana of Groton thought it a duty to go into an exposition of the reasons which induced him, as a member of the special commit- tee, to agree to the report. That part of it which relates to the constitution of the Legislature by two branches, he thought was in conformity with an universally acknowledged principle at the present day. A contrary doctrine had been maintained formerly, but it was now exploded, and no argument would be necessary to induce the Convention to -accede to the course pursued by the com- mittee in this respect. He passed to the second portion of the report, which had given rise to a resolution for an alteration. This he thought would be readily acceded to. The subject of the third portion of the report, required a little further consideration. The power? conferred on the Legislature, he thought were sufficiently ample. It had been sometimes doubted whether power was granted to establish a court of chancery. It was important that they should possess that power, but he thought they already possessed it. He referred to the article which confers the power of establishing a ju- dicatory. The doubt which had been expressed, had arisen from there being no expression which relates to the particular powers of a court of chancery. If this doubt were removed, as he thought it would be, by the expression of the opinion of this Convention, the only question hereafter for the Legislature to determine, would be the expediency of establishing such a court. He proceeded to con- sider the proposition for such an alteration as would expressly grant to the Legislature the power of granting to towns charters of incor- poration with city powers. He had no doubt that the Legislature possessed this power already. The power of granting acts of incor- poration of any kind, was nowhere conferred in express terms, yet the Legislature had always exercised that power. He thought the difBciilty arose only from the provision that the selectmen should 88 MASSACHUSETTS CONVENTION. preside at certain elections. This difficulty would be easily over- come by granting a charter, with the usual officers of city govern- ment, and with selectmen whose only duty should be to preside at such elections as by the constitution Ihe selectmen are required to preside at. For all other purposes the usual city officers might be appointed. He proceeded to consider some of the cases in which it had been decided by the courts of judicature, that the Legisla- ture had no right to interfere, such as applications for new trials. He thought that such questions were most properly decided in the courts of justice, and that the community had acquiesced in this course. He proceeded to inquire whether it would be useful to attempt a more precise definition of powers. Were they about to draft the constitution anew, they might have made some improve- ment in this respect, and adopted a better arrangement. But the committee, impressed with the apprehension lest they should do too much, had thought that no alteration should be recommended, which did not appear to be required by imperious necessity. With these views, which he explained much more at large, he said the committee had come to the result, that it was inexpedient to make any alteration in this part of the constitution. He proceeded to consider that part of the chapter which confers on the Legislature the power to raise taxes, imposts, &c. In some states, he said, that a poll tax was thought unequal, and many persons had contended that taxes should be entirely drawn from property. But on recur- ring to the practice that had always prevailed in this Common- wealth, he thought it inexpedient to make any alteration in this respect. All men are bound to the government by the same tie. All equally receive protection from it — and he thought if it were submitted to that class of men who would be exempted from con- tributing to the burdens of the public, if the poll tax were abolished, to determine whether that tax should be retained, they would be too generous to consent to receive the protection without contrib- uting their proportion to the support of it. In regard to the power of laying an excise upon articles which may be subject to -an excise duty imposed by the General Government, he thought that it might be safely left to the discretion of the Legislature. As to the prop- osition for changing the time of the assembling the Legislature, it was an abstract proposition on which every member was competent to judge for himself, and which needed no illustration. He con- cluded by moving that the committee accept the first resolution. Mr. PicKMAN of Salem did not agree with the gentleman who reported the resolution, that the first Wednesday of January was the most convenient day for the assembling of the Legislature. He said he had come to the Convention with a fixed determination not to vote for any alteration which did not appear manifestly proper and expedient, and he was glad to find that other members enter- tained the same sentiments. He was particularly pleased to hear the gentleman who oflfered the resolutions for appointing the vari- ous committees, (Mr. Pkescott) say, that we should approEich the MASSACHUSETTS CONVENTION. 89 constitution with a cautious hand ; that we should abstain wherever the advantage of any alteration was doubtful. Mr. Pickman gave reasons why the first Wednesday in January should not be the commencement of the political year. In the first place, it was im- portant that there should be a full attendance of the members of the Legislature when the government was to be organized. This would frequently be prevented by the inclemency of the season. The first business of the Legislature would be to fill vacancies in the senate ; but if the vacancies should be filled before the members were generally arrived, persons might be elected into the senate contrary to the general sense of the Legislature. Another reason : if the first Wednesday of January is fixed upon, the time for the elections must be altered. The State elections and the elections for officers of the General Government, would come near together and produce great excitement. It was important to keep the two gov- ernments as distinct as possible. Their objects were very different, and it was better to have the elections distinct. That great mis- takes and confusion would arise from amalgamating them, as he had reason to know had lately been the case with respect to the election of electors of the President of the United States. Further, all the charitable, religious and literary institutions hold their anni- versary at the time of the general election in May. The meeting of the Legislature reflects honor on them, and they in turn reflect honor on the meeting of the Legislature. He mentioned in partic- ular the Massachusetts Congregational Charitable Society, and ex- patiated on the benevolent operations of that institution. All this would be done away, as it would be very inconvenient and un- pleasant for these institutions to celebrate their anniversaries in Jan- uary, and they would be more likely to fall into decay. There were other reasons. The last week in May had, by ancient usage, become, as it were, sacred, as a jubilee. It was emphatically the people's week. Persons from all quarters flocked to the metropolis, and mixed in social intercourse. On the score of -economy, it was better for the Legislature to meet in May, when the days were longer. More business could be done with greater comfort; and since the separation of Maine, the travelling expenses of the Legis- lature were much reduced. A great part of the business of the May session was of a private nature — ^private petitions and remonstrances — orders of notice on these petitions, &c. These things being dis- posed of at the May session, gave the Legislature more time to attend to subjects of importance of a more general nature, at the winter session. He therefore hoped the resolution would not pass. Mr. Adams of Q,uincy rose and inquired whether it would not be competent to take the sense of the committee so far as it went to decide on that part of the report which proposed no alteration, and leave the other part undecided. In answer to an inquiry whether this course would be in order, the chairman replied that it was not in the regular order of proceed-r 12 90 MASSACHUSETTS CONVENTION. ings, but there could be no objection to the course if it appeared to be the unanimous wish of the committee. Mr. Story of Salem said he was sorry to object to the course proposed, but he had a proposition which he considered it his duty to make, from which he should be precluded if the course were adopted. The piotion consequently was not put. Mr. Foster of Littleton had long been of opinion, that one session of the General Court was sufficient for the year, and he was not sat- isfied with the reasons which had been- given against the proposed change. May, he said, was one of the most busy seasons of the year, and it continued to be busy until the harvest was gathered in. if we retain the ancient time for the stated meeting of the Legisla- ture, there would still be two sessions. Members would not have patience to finish the public business at that busy season. It had been the practice in past years to travel over the distance from their homes to the capital twice — to get together in May and separate, leaving the greater part of the business for another session in Jan- uary. It would be a great convenience to all to come together at the latter season for the first and only time. The travelling was not often so bad as to make it difficult. The several societies which hold their anniversaries at the time of the general election will follow the Legislature ; the charitable contributions will not be lessened and may be augmented. There would be a great saving in the trav- elling fees of members, and he thought the change ought to take place. Mr. Saltonstall of Salem said that the attention he had been able to give the subject had brought him to the same conclusion with his respected friend and colleague, that they ought not to adopt the resolution. The amendment under consideration was not one of the most important that might probably come before the Con- vention, but every proposition for alteration in an instrument so solemn as a constitution which had stood the test of experience so well as ours was important. It demanded the most serious considera- tion and ought not to be adopted unless for very strong reasons. Such reasons had not occurred to him in sufficient force to convince him of the expediency of the present amendment. If he could see that it would tend to lessen the evils of too much legislation or in a great degree to lessen expense, he would not oppose it. It will not lessen legislation. A great part of the business of our Legislature is now rather of a private than a public nature. Let us look at the course of it. It is now almost invariably the practice, it is indeed an es- tablished rule, to pass orders of notice in all these cases ; with a very few exceptions, they are made returnable at the next session of the General Court. No act would pass unless an order of notice had been issued, nor except in especial cases, imless the order is return- able at a subsequent session. He would appeal to gentlemen of experience in our Legislature, to the members of the standing com- mittees, if many of those projects do not expire between the sessions. Nothingmore is heard of them, The passions have had time to cool. MASSACHUSETTS CONVENTION. 91 What will be the effect of the proposed alteration in business of this kind ? If there is but one session a year, orders will be returnable at the same session at which they are presented. The interest of the par- ties will be kept alive. The passions will continue excited, their ardor will have no time to abate. Or perhaps a rule will be adopted like that in New York, of giving previous notice a few days or weeks before the session of the Legislature, and then the parties will come, all armed and eager for the contest, the business of legislation will be conducted amidst great excitement, and will not be so correctly done. As to public , laws the same reasons will apply and with at least equal force. No one at all acquainted with the subject can deny the great, the infinite evil of perpetually increasing, perpetually va- rying laws. Nothing is fixed, nothing settled. Scarcely anything is left for the test of experience. A law scarcely remains long enough to receive a practical construction. But is it certain the evil would be remedied by the proposed alteration in the constitution? If so, said Mr. Saltonstall, attached as I am to the old order of things, fondly as I would cling to the few remaining institutions in Massa- chusetts, I would support it. But he would look again at the order of legislation. Now, most important subjects are referred from one session to the next. It is seldom that an important public law passes the same session in which it is proposed. It is postponed to the close of the session, and then, almost of course, it is referred to the next. In the mean time it is published, and at the next session public opinion is found against it, or the plan is abandoned by its author. But if this alteration takes place what will be the course ? Will the new projects for improvement be referred? Who that is acquainted with the benevolent ardor of our reformers can believe that ? Great attempts will be made to carry them through at the single session, and laws will thus often pass, which otherwise would not. The saving of expense, if any, wUl be inconsiderable, probably irot more than the travel of members to the Legislature. The principal busi- ness now done at the summer session is the organization of the gov- ernment, and this must be done at some time or other. If there is but one session in the year, it must occupy as much or more of the time of that session ; the days will be much shorter and much less business will be done in a day. The session will be much longer than heretofore. The summer session now seldom exceeds a fort- night, and I need not say that a fortnight added to the single session would be the same expense to the government, except for the travel of the members, which is inconsiderable. The change is not required by the change of circumstances of the Commonwealth. It is true that many of the most important subjects are committed to the gen- eral government, but much still is left to us, all except subjects of a public and national concern. Still almost everything we see or feel in life — the subjects that interest us — our daily concerns — the reg- ulation of our contracts, depend on the goverrmient of the Common- wealth. He said the reason given by the committee for a change, that so many important subjects are transferred to the general gov- 92 MASSACHUSETTS CONVENTION. ernment, did not sound pleasantly to his ears — it should not be heard from Massachusetts men — there Avas tendency enough to lessen our consequence, he thought. Without our aid, everything around and about us is tending to reduce the Commonwealth to a mere corporation — to destroy all the monuments of its separate exist- ence. Let us not, said he, aid this influence ; let us not with our own hands make a path for the torrent that threatens to overwhelm us, but rather erect mounds and securities against it. It was indeed true, that a large portion of the Commonwealth was severed from us, but we should recollect how much that which is left is increased in importance — how much it exceeds in population, in commerce, in manufactures, in arts, in everything which calls for the interpo- sition of the Legislatm-e, the whole Commonwealth when the present constitution was adopted. It will destroy the only civil anniversary peculiar to Massachusetts. Are gentlemen, he asked, aware how ancient it is? That it was fixed in the first charter. (Here Mr. S. read from the charter of Charles I. 162, 7, 1627) — that the first general election was held on this spot nearly two centuries since, on the last Wednesday of May, 1630 — that this has remained un- changed in all the changes of our condition ? That it was left in the second charter — that it was continued through our existence as a colony — as a province ; and was preserved after we became a free, sovereign and independent state, by the constitution. It is one of the oldest anniversaries in the country. Why then change it ? Who that knows the power of association, the influence of habit, will doubt its importance. It is connected with everything memorable and interesting in our history. On this day the people of Massa- chusetts, from the beginning, have exercised their highest rights — they have quietly placed the rulers of their choice in power — the governor and magistrates of the last year have returned to private life, and those nef^vly chosen, in the language of the first charter, have been raised to our high places. Destroy this anniversary and you will destroy everything that can remind us of the separate exist- ence of Massachusetts. Another circumstance is, that we shall lose the principal holiday of Massachusetts. He hoped the suggestion was not beneath the dignity of this Convention. On this day all are free. It is a day of mirth and festivity. Some of our politicians have lamented that we had so few such days. Why th-en destroy this most ancient festival of our State ? Who does not remember when he hailed the return of this anniversary with joy ? On this occa- sion a large portion of the talents, learning and respectability of the Commonwealth are brought together at a delightful season of the year, upon this most delightful spot. The influence of this is very salutary. And he could not but repeat the observation that it is the anniversary convention of the clergy and of most of our religious and charitable societies, which do so much honor to our Com- monwealth. Another and with him a sufiicient reason against the alteration, was that it was not necessary. The meeting of the Leg- islature has been established for two centuries — why change it? MASSACHUSETTS CONVENTION. 93 We know the practical effects of the present system, that it is good we know not the consequences of an alteration ; it may seem to be unimportant, but why should we try the experiment ? If there is one principle better settled than another, said Mr. S., it is, that an evil must be very great to justify a change in government. The reasons must amount almost to necessity. None such exist here. I believe a great majority of this Convention came here opposed to material changes, but there is no knowing how far we may go. One committee reports and the report is accepted ; another report seems unimportant and that is accepted ; and so we may go on until finally it will be thought expedient to take the constitution into a new draft as has already been suggested. I hope not, and that we shall make no alterations, except such as are necessary. Mr. Bliss of Springfield thought the question an important one. It was a legislative question ; not one about changing a holiday. Was it most convenient to have one session of the Legislature instead of two, and to hold that session in January instead of May ? This was the real question ? And gentlemen wandered when they con- nected it with the other subject, upon which they had been expa- tiating. He hoped the alteration proposed would be adopted. It would produce a great saving of expense. This was an important reason, but it was not the only reason. It would be more convenient with a great proportion of the population. It would ensure a more general attendance of the members of the Legislature, who would not be so likely to be detained at home or to desert the business of the session, to attend to their private concerns, as they would if the Legislature assembled in May ; and it would prevent a great evil, which had been witnessed, of legislation going on in the summer session — important acts passing — when not a single member was present from any town west of the county of Worcester. The gen- tlemen from Salem might attend as well at one season as at another ; it was not so with members living at a 'great distance. But if the session should be held in January, no undue advantage could be taken of the absence of members, as then all would have it in their power to attend. These reasons were imperious ; if gentlemen thought a holiday necessary, let them have one in January ; though a May pole might not be so proper in that month, yet they might find some other Popish superstition which would answer equally well. There were amusements suitable for January or February as well as for May. Or if necessary, they might continue to keep their holiday in May ; there would be no difficulty however, in the various institutions altering their anniversary. Mr. B. concluded by reca- pitulating the arguments he had urged in favor of the alteration proposed. Mr. Abbot of Westford moved that the last Wednesday of Octo- ber should be substituted for thB first Wednesday of January. He thought that time more convenient in many respects ; it would ac- commodate the agricultural interest very well, and the weather and travelling would be better in general. The travelling in January 94 MASSACHUSETTS CONVENTION. was frequently bad, especially of late years. He confessed it was with difficulty that he could relinquish the festival of May ; but as so much of the State had been taken off, he thought one session of the Legislature in each year would be sufficient, and he had there- fore made up his mind to let the anniversary go. Mr. Lawrence of Groton was opposed to the £imendment of the resolution. He said there was the same objection to .the month of October that there was to that of May. It was a season when per- sons engaged in agricultiue would be as much occupied. He said that in fixing the time for the assembling of the Legislature, it was proper to consider other circumstances that are connected with it. He thought January would be a much more proper time, because it is necessary to have regai-d to the time when the elections are to take place. If the Legislature were to assemble in October, the annual elections must be had in September, a season which would be extremely inconvenient. This was a sufficient reason against the amendment. He thought that the month of January was the most suitable time for begimiing the session. It would then be in the power of the Legislature to transact all the business of the year, and in the power of gentlemen from the country to give their attend- ance. This was not the case in June. He agreed with the gentle- man from Springfield, that it was extremely inconvenient for mem- bers from the country to attend in June, and that they did not attend. If they were present at the organization of the government, they were under the necessity of getting leave of absence as soon as possible, and it was the duty of the Convention to adopt some more convenient time. The charitable societies might meet as well in January. The fountains of charity would not then be frozen up. The interest which the public feel in these institutions will not be destroyed, nor their effect impaired. The time of their assembling may as well be changed as that of the Legislature ; the time of hold- ing the commencement at the University in Cambridge had been changed from July to August, and no inconvenience had been ex- perienced from the change. The anniversary was observed in the same way as it had been before. He would be the last to give his consent to any unnecessary innovations in our ancient institutions ; but he was decidedly of opinion that the alteration proposed in this resolution, ought to take place, and that the motion for amendment should not prevail. Mr. Dana wished to present for consideration the single question whether any change should be made in the time for the purpose of enabling the Legislature to transact the business of the year at a sin- gle session. He wished, therefore, that the resolution could be so amended by striking out that part of it which designated a particular day to ba substituted, as to express only the expediency of adopting some different day from the present. Mr. Abbot withdrew his motion to amend, and Mr. Dana moved to amend the resolution by striking out that part of it which names the day' to be substituted. This question being stated from the chair, MASSACHUSETTS CONVENTION. 95 Mr. S. A. Wells of Boston said his views on the subject were in full concurrence with those which had been expressed by the gen- tlemen from Salem. He thought no alteration should be made in the constitution, but such as were founded upon absolute necessity. If the day for the stated meeting of the Legislature were changed, other alterations would be rendered necessary. The Chairman suggested that the debate should be confined to the question whether the resolution before the committee should be amended by striking out that part which names the time proposed to be substituted. Mr. Q.UINCT stated that the resolution admitted of a division, and suggested that a division would be preferable to the amendment moved by the gentleman from Groton. Mr. Dana then withdrew his motion, and Mr. Q,uincy called for a division of the question. Mr. Blake of Boston inquired whether it was a question suscep- tible of a division under the rule, and intimated his opinion that it was not. The Chairman stated the rule which declares the right to call for a division of a question where the sense will admit of it. The question whether the proposition admits of a division, is to be decided by the chair, subject to be confirmed or overruled by the house. The chairman decided that in the present case the resolu- tion admitted of a division, and stated the question then before the committee to be, whether it was expedient to alter the time for the meeting of the Legislature. Mr. Starkweather of Worthington said he was in favor of the resolve reported. He was adverse to alterations generally, but he thought the people would expect one here. It was expensive and unnecessary to have a session in May. The usual course was for the Legislature only to organize itself and hear a few petitions at that session, and members living at a distance would ordinarily say it is needless for me to attend, there will be enough without me. It was true, things might be well done at this session, but they would not be the same things which would have been done if all the mem- bers had been present. It had generally been thought best to post- pone the business of this session to the winter session, and the com- munity, therefore, looked upon the May session as useless and expen- sive ; and now the business of the Legislature would be so much diminished that it would have no more to do at the winter session, than it has hitherto had. He was going on to give reasons why the first Wednesday in January was the most proper time for the Legis- lature to assemble, but was informed from the chair, that the ques- tion of fixing the particular time was not before the committee. The question was then taken whether it was proper to change the time, and carried in the afiirmative. The other part of the resolution, fixing the time, then came be- fore the committee. Mr. Tillinghast of Wrentham moved to amend by striking out 96 MASSACHUSETTS CONVENTION. the first Wednesday in January, and inserting the first Wednesday in December. Mr. Prince of Boston said he voted in the special committee in favor of a change of time, because he thought it -jvould accommodate members of the Legislature from the country ; he did not think those consequences would result from the change which were apprehended by the gentlemen from Salem. He had hoped that the gentlemen from the metropolis would have left it to those from the country to fix the time ; and, if it was in order, he would move that a committee of one from each county — The Chairman informed the gentleman they could not appoint any committees, being only a committee themselves. Mr. Q,uiNCY wished that the question of amendment might be divided. The Chairman replied that by the rules of the Convention this question could not be divided. Mr. Varnum thought that October would be a more convenient time than the one proposed by the amendment. The business of the country would be sufficiently completed. Mr. Beach of Gloucester moved that the committee should rise and report progress. Mr. Bond of Boston hoped the motion would not prevail. The question was taken whether the committee should rise, and carried in the negative. « Mr. L. Lincoln of Worcester said there was but one sentiment in the county of Worcester on the question before the committee that January would be the most convenient time, on account of the arrangement of the terms of the courts of common pleas in that county, as also in Middlesex. In October, harvesting would hardly be done ; even at this present time, much of the produce of the year remained ungathered. The question was taken for substituting the first Wednesday in December, and decided in the negative. A motion was then made to substitute the last Wednesday in Oc- tober. Mr. Childs of Pittsfield said the sentiments of Berkshire coincided with those expressed by the gentleman from Worcester. October, he said, would be in the midst of the autumnal harvest. The question was taken for substituting the last Wednesday in October, and determined in the negative. The question was then taken for adopting the first Wednesday of January, reported in the resolution, and was carried in the affirma- tive. On motion of Mr. Story, the committee rose, reported progress, and asked leave to sit again ; which was granted. The Convention then adjourned to Monday at 11 o'clock. MASSACHUSETTS CONVENTION. 97 Monday, November 27. The Convention was called to order at 11 o'clock, and the jour- nal of Saturday was read. The Convention then resolved itself into a committee of the whole upon the unfinished business of Saturday. The committee took up the second resolution reported by the select committee upon the part of the constitution relating to the General Court, viz. : Resolved, That the constitution ought to be amended, so as to render more certain the time in which the governor shall return any bill or resolve to which he may re- fuse his approbation, by adding to the second article of the first section these words : — " Unless the General Court by their adjournment shall prevent its return, in which case it shall not be a law." Mr. Dana of Groton said , the select committee tvere induced to report this resolution, in consequence of what took place in the year 1809 or 1810. A bill respecting state affairs was passed by both houses of the Legislature towards the close of the session, and sent to the governor for his approbation. After the adjournment of the Legislature, it was observed that this bill was not mentioned in the list of acts passed, but it was supposed that it had been approved of by the governor. At the next session, however, the bill was re- turned by the governor with his objections, and the house of repre- sentatives refused to act upon it, on the ground of its not being con- stitutionally before them, not having been returned within five days. It was no doubt the intention of the framers of the constitution, that the governor should examine the bills presented to him ; for which purpose he was permitted to retain them five days. It was, how- ever, customary to load the governor's table at the end of a session with bills and resolves, so that he had not time to give them such an examination as they ought to receive ;■ and this had sometimes been a subject of complaint with the governor. Mr. D. did not mean to say that five days were too long or too short a time for the governor to retain a bill ; it might sometimes be thought unreasonable for him to detain the Legislature five days, waiting for the return of a bill, when they were otherwise ready to adjourn. The governor, however, ought to have a reasonable time, and this time ought to be certain. There was an ambiguity in the constitution with re- spect to the five days mentioned in it. He had understood, indeed, that there had been a judicial construction, by which they were in- terpreted to mean five legislative days. He had not seen the grounds of this decision, and, therefore, had still some doubts as to the meaning of the phrase legislative days, whether they included or excluded Sundays ; for in a time of great emergency during the revolution, the Legislature had held a session on Sunday, and cir- cumstances may. require the same to be done hereafter. He would, therefore, have the phraseology like that adopted in Connecticut — so many days exclusive of Sundays. The question of adopting the resolutions was then taken and de- cided in the affirmative. 13 98 MASSACHUSETTS CONVENTION. Mr. Dana moved to amend the report of the select committee by inserting, immediately after the preamble, the following resolve : Bxsohxi, That a legislative department formed by two branches, a senate and house of representatives, each having a negative upon the other, is most congenial to the interests, habits, and manners of this people, as well as most conformable to ap- proved anxioms of policy ; and that any alterations in the formation of the department is wholly unnecessary, and would be highly inexpedient. This amendment was adopted, 291 to 6. The report of the committee on the sixth resolution, embracing that part of the constitution which relates to the secretary, treasurer, &c., was taken up and read : Resolved, That it is expedient to alter and amend the constitution of this Common" wealth, by striking out the words " notaries public and naval officei's " in the first ar" tide of the fourth section of the second chapter of the second part. Mr. Ward said the effect of the proposed alteration was so obvi- ous that no effort would be necessary to explain it to the House, and he would not take up time by going fully into the reasons in support of it. The situation of the state at the time of the adoption of the constitution, was such that a naval ofBcer was considered necessary, but at present the exclusive right of raising a revenue by a duty on imports is given to the government of the United States, and, consequently, no state officer of that description is necessary. None has been elected by the Legislature of this State, since the adoption of the Constitution of the United States. The committee had, therefore, thought the provision for the appointment of this offi- cer should be struck out of the constitution. In relation to the ap- pointment of notaries public by the two branches, of the Legislature, there had been sufficient experience of the inconvenience of the mode of appointment, the delay and expense occasioned by it, and the impossibility of obtaining the information necessary for a judic- ious selection, to show that it was much better that they should be appointed in the same way as justices of the peace and other officers of government are appointed. The form in which the proposition should be stated in the resolution, was matter for consideration. He thought it ought to depend upon the form in which the amendments in general are to be made. If the constitution was to remain as at present, and the amendments, instead of being incorporated into the body of it, were to be appended, in the form in which the amend- ments are made to the constitution of the United States, which he thought would be the most proper mode, the resolution, perhaps, -should have stated the proposed amendment in a different form. He doubted the power of the Convention, under the act under which they were sitting, to abolish the old constitution and proceed to form a new one as a substitute ; but it was their duty to preserve the trunk, and engraft upon it such alterations, if any, as they should think expedient, and to submit the specific alterations to the peo- ple, for their adoption or rejection. If the proposed alterations are not adopted, the constitution will stand as it did before. It might be proper that the amendment should stand as it was proposed by MASSACHUSETTS CONVENTION. 99 the resolution. In declaring that certain words be struck out of th^ article, is understood merely that they remain inoperative ; but if it was intended that they should be literally struck out, the amend- ment could be stated in a better form. Mr. Bond of Boston asked for information of the propriety of re- taining the words "commissary general" in the constitution. He understood that, at present, no such officer w;as appointed by the two branches of the Legislature, and it was not probable that they would be required. If such an officer should at any time be required, it could be provided for by law, and in such case it might be thought expedienf to give the appointment to the governor and council. Mr. Ward said that it would be a useless labor to examine the whole constitution and determine whether a word was to be found that could be struck out. He did not know whether the office of commissary general was necessary — it might possibly become so, and therefore it was useful that there should be provision for it in the constitution — if it never became necessary, the provision for it was harmless. If the constitution were to be now wholly new mod- elled, it might, perhaps, be found that this provision was super- fluous. But under present circumstances, he preferred letting it re- main to spending time in debating whether it should be struck out. Mr. Austin of Charlestown thought it would be expedient to ex- tend the time limiting the period of office of treasurer and receiver general. The person who filled the office was required to give up his time and attention ; and if he was faithful to his trust, he became, by several years' continuance in office, the best qualified for dis- charging its duties. He approved of the general principle of rotation in office ; but in relation to this office the principle he thought was less applicable than to most others. He should move to amend the article by substituting seven or eight years fox five, the present limi- tation. Mr. Russell of Boston rose to a question of order. He said that the subject under consideration was the adoption of the resolution, reported by the committee, and the debate should be confined to the question of accepting that resolution. The Chairman said that^ the whole report was referred to the comr ;piittee and was under consideration. It might be best to take the sense of the committee upon the resolution whiich had been under discussion before proceeding to the consideration of other questions. Mr. Story of Salem rose to move an amendment to the resolu- tion under consideration, by adding to it the words " commissary general " before notaries public. His reason for the amendment was short and would take up but little time. By the clause as it now stands, it was imperative that the General Court should appoint the officer named. He thought it was more fit that it should be left to the Legislature to decide whether the appointment, if rendered necessary, should be made by the governor and council, or by the Legislature. The appointment was-not distinguishable in its nature from otjjers which are now required to be made by the executive. 100 MASSACHUSETTS CONVENTION. The governor, as the head of the military of the Commonwealth, must be better acquainted with the qualifications necessary for the office, and with the characters of candidates for it, than the members of the Legislature would be. The council, from the nature of their duties, have an opportunity of acquiring the same sort of knowledge. He thought it therefore importarit that this officer, whenever required, should be appointed under the responsibility of the commander in chief The office may become necessary when the Legislature are not in session ; a va- cancy may occur during the recess of the Legislature, and there may be an imperious necessity of the services of such an officer. It may happen that an extra session of the Legislature should be rendered necessary for the appointment of this officer, or that the appointment should be made nine or ten months after there is occa- sion for his services. There was another reason for objecting to this mode of appointment. The larger the body is by which appoint- ments are made, the less is the responsibility that is felt in making the appointment. Where the appointment is left with the governor, he is necessarily responsible for it, but when made by the Legisla- ture, the responsibility is so divided as not to be felt. Those who are acquainted with the manner of making appointments in conven- tion of the two houses of the Legislature, know how extremely dif- ficult it is to obtain the information necessary for acting with any discretion, and that it is a mode of appointment the least fitted of any that could be devised for giving satisfaction. Three fourths of the members of the Legislature cannot know anything about the qualifications of the candidate for the office. He saw no reason why this officer should be appointed in a different manner from the ad- jutant and quarter master generals. The Legislature would act un- der the want of personal responsibility inherent in large bodies ; it would be most difficult for them to judge of the qualifications for the office, and in case of the breaking out of a war or insurrection it might be necessary to call them together for the purpose of making a single appointment. Mr. Ward of Boston said he thought it was thrown upon those who would make any particular alteration in the constitution, to show that some evil now existed which would be removed by the proposed alteration. In regard to the appointment of notaries pub- lic, it was the general sentiment there was a great inconvenience in the present mode. But with respect to commissary general, he had heard of no objection from any quarter — no such officer had been appointed for many years, and no inconvenience had been felt. His principal objection to the alteration proposed, was an aversion to make any change where it was not necessary. He thought the pro- posed amendment unnecessary, but he was not very tenacious of his opinion. Mr. Blake of Boston was opposed to the amendment for this gen- eral reason, that he was resolved to assent to no amendment the tendency of which shoTild impair in any degree, the republican form MASSACHUSETTS CONVENTION. 101 of this government. The commissary general was an officer of great importance and responsibility. He was entrusted with the dis- bursement of large sums of money, and was invested with extensive discretionary powers. There was to be observed ia every letter of the constitution great caution in the distribution of the powers of government. The appointment even of notaries public, an office of comparatively little importance, was not left to the executive, but was granted to the two branches of the Legislature. Major-generals were also appointed by the Legislature, and he presumed that no al- teration with respect to them would be proposed. Appointments to offices similar to this in the government of the United States, were not made by the executive alone, but required the consent of the senate. He was aware that the responsibility of the individuals who unite in making the appointment was diminished by their num- ber, — ^but this argument, if it was of any weight, went too far ; it might extend to all the duties of govermnent. He would not advo- cate any change for which there was not shown to be some neces- sity. Mr. Dearborn of Roxbury said that in all governments, the com- missary general was one of the general staff. Generals of armies have the appointment of their staff in all countries ; they are respon- sible for their conduct, and for this reason should have the control over them. The adjutant and quarter master generals are in this State appointed by the commander in chief, and why the appoint- ment of commissary generals was reserved to the Legislature, he said, was to him inexplicable. It had been said that the commis- sary general was entrusted with the expenditure of large sums of money — so was the adjutant general ; one supplies arms and muni- tions of war, the other provisions, and the expenditure for the former object was greater than for the latter. The public are disposed to throw censure upon the commander in chief ; and to take from him the means of reflecting glory on himself, and honor upon his coun- try, would be deeding unjustly. Mr. Apthorp of Boston was in favor of the resolution as it stood — he said if we were likely to be much in a state of war he should agree with the gentleman last speaking. But for a time of peace, the present provision was not objectionable. He thought it inexpe- dient to take away from the Legislature the appointment which might not be wanted — in time of war the office would be important. The commissary would have the control of large sums of money, and to give the appointment to the governor, might be imparting to him too great a proportion of power. Mr. Sturgis of Boston said that striking out the clause did not necessarily give the power of appointment to the governor. It was not necessary to have any provision. If it was left out entirely, it would be competent for the Legislature to provide for the appoint- tment of the officer, if they should see fit to establish the office. Mr. HoYT of Deerfield said that the law of the United States for the government of the militia did not provide for the appointment 102 MASSACHUSETTS CONVENTION. of any such officer. He was in favor of striking out the words. If the United States government should require the appointment of such an officer, the Legislature could direct the mode of appointment. The question was taken on adopting the amendment proposed by Mr. Story, and passed in the affirmative. The question being stated on adopting the resolution as amended, Mr. Parker (the President) inquired whether it had been con- sidered that some further provision would be necessary in relation to the appointment of notaries than that proposed in the resolution. Taking away the power of appointment from the Legislature would not give it to the executive. Mr. Ward said that the consequence would be inevitable, that a further amendment should be made in that part of the constitution which grEUits powers to the executive. Bift the committee who re- ported this resolution did not consider that part of the measure as coming within their particular province. But he presumed it would be provided for by the proper committee. Mr. Varnum of Dracut said that the committee who had under consideration that part of the constitution which relates to the pow- ers and duties of the executive, and who had not yet reported, had taken this subject into consideration, and would report a proposition for giving the power of appointing notaries public to the executive. Mr. Parker suggested for the consideration of the committee, that in his opinion farther provision should be made for the duration of this office, and that the term of office should be the same as that of justice of the peace. The duties of the office were similar — some preparation for it was necessary, and he hoped" that provision would be made for its continuance for the term of seven years, subject to removal for improper conduct. Mr. Ward said that he had prepared a resolution for effecting this object, which he should take a proper opportunity of submitting for the consideration of the Convention. The question on the adoption of the resolution was taken, and passed in the affirmative. Mr. Austin of Charlestown wished to have the constitution per- fect, not only in substance, but likewise in logic, style and taste. He therefore moved that it be amended in the second chapter, fourth section, first article, by substituting " in joint body " for "in one room," so as to read, " The secretary, &c. shall be chosen annually by joint ballot of the senators and representatives in joint body." He proposed a further amendment by striking out all the subsequent part of the same article, considering it bad logic. The gentleman was informed from the chair that his motion was irregular; that he might mov£ to amend the report of the select committee by adding a resolution, but he could not move to amend the constitution. The gentleman varied his motion accordingly. Mr. L.- Lincoln of Worcester said he was opposed to the amend- ment; that he came to the Convention with the intention to MASSACHUSETTS CONVENTION. 103 apply a strong hand to the weak parts of the constitution, but not to demolish the fabric. What could be the object of the gentleman from Charlestown ? — ^merely to gratify a fastidious taste ! It was chimerical to think of satisfying every member of that assembly in this respect. With regard to the clause which prevents the same person from being eligible more than five years successively as treas- urer, in order that the Commonwealth might be assured, that the moneys remaining in the public treasury, upon the settlement and liquidation of accounts, were their property, he thought the logic was good enough. The people understood it ; it had received a practical construction. It was one of the most useful features in the constitution. The treasurer's office was one of high responsibility, and we had no security without a provision of this sort. We had had occasion to regret that the times for accounting were not more frequent. It was highly important that the public moneys should be counted from time to time. There should be some mode of as- certaining what money was in the treasury, and none could be bet- ter than requiring one treasurer to hand it over to a successor, who would be cautious for what sums he became responsible. If the office were continued for a longer number of years or for life, the treasmrer would make out a fair statement on paper, while in fact the treasury might be bankrupt. Unless members came there with a fanciful desire for novelties, he trusted such alterations as the gentleman pro- posed would not prevail. Mr. Ward expressed surprise that when we had such frequent examples of cashiers and other persons embezzling money, any member should have thought of proposing such an amendment. There was no other mode than the one contained in the constitu- tion of calling people to account, so as to prevent evasion. If the treasurer were to continue, he would only have to borrow money of his friends, to show to the inspectors of his accounts, to be returned as soon as the examination is over. The term of five years was long enough. There was not such a dearth of tEdents and integrity among us that we could not find men suitable to fill the office of treasurer. Besides, by an intermission for one year, a treasurer became eligible again for five years more. The question was taken upon Mr. Austin's motion and decided in the negative, but few voting in favor of it. The committee then took up the report of the select committee on the part of the constitution which relates to delegates to Congress. The question before the committee was upon the following resolve, viz. : Resolved, That the fourth chapter of the second part of the constitution of this Commonwealth, having become inapplicable to the existing condition of the State of Massachusetts, ought to be expunged therefrom. Mr. Austin of Boston said he agreed with the gentleman of the select committee in the reasons which they gave for expunging this chapter, but he was opposed to the resolution which they had reported, and wished to make an amendment. 104 MASSACHUSEITS CONVENTION. Mr. Austin then moved to amend the resolution reported by the committee on the eighth resolution, so as to provide that the repre- sentatives of this Commonweahh in the United States and the electors of president and vice president of the United States shall from time to time be chosen by the people, in such convenient dis- tricts as the Legislature shall by law provide, and that the Legis- lature of this Conunonwealth shall be required, next after every apportionment of representatives by the Congress of the United States, to provide by law for dividing the Commonwealth into dis- tricts for the choice of not more than two representatives or elec- tors in any one district, which law shall not be altered until after a new apportionment shall be made by the Congress of the United States. A motion was made that the committee should rise ; and after some debate was decided in the negative, 137 in favor — 236 against. The question on adopting the amendment was then taken and decided in the negative. Mr. Morton of Dorchester was opposed to having the whole chapter expunged, and he moved to amend the resolution by striking out the words "expunged therefrom," and inserting a provision that the chapter be so altered as to direct that the senators and representatives of this Commonwealth in the Congress of the United States, when duly chosen, shall have their commissions under the hand of the governor and the great seal of the Commonwealth, and attested by the Secretary. Mr. Parkee asked if there was ajiy necessity for such a provision — whether the senators and representatives are not already fur- nished with certificates of their election, which are satisfactory. Mr. Morton said his object was to retain the chapter in the con- stitution. His amendment proposed to require by a constitutional provision what is now done by law. The question was taken on Mr. Morton's amendment and decided in the negative, 107 to 250. Mr. Q,uiNCY said that if the old constitution of 1780 was to be preserved, he could see no reason why the chapter should not remain. He should prefer retaining it although it was a deeid letter. Mr. Parker said if the chapter was expunged, it would not be necessary to make a new draft of the constitution. The amend- ments would be printed at the end of the constitution as it now stands. The question was taken on the resolution as reported by the committee, and carried in the affinhative. The committee then rose, and reported that they had agreed to the resolutions reported by the select committee on that part of the constitution relating to the General Court, with an amendment — that they had agreed to the resolution reported by the select committee on that part of the constitution which relates to the choice of a Secretary, &c., with an amendment — and that they MASSACHUSETTS CONVENTION. 105 had agreed to the resolution report-ed by the select committee on that part of the constitution relating to the choice of delegates to Congress without amendment. On motion of Mr. Pay, it was ordered that the reports lie on the table. Mr. Russell of New Bedford had leave of absence on account of sickness in his family. Adjourned. Tuesday, November 28. The Convention met at ten o'clock, and after prayers by the Rev. Mr. Jenks, and the reading of yesterday's journal, Mr. PicKMAN of .Salem, from the committee on that part of the constitution relating to the lieutenaiit governor and council, made the following report : The committee to whom was referred so much of the constitution of this Common- wealth as is contained in the second article of the second chapter of the second part, and respects the lieut. governor ; also so much as is contained in the third section of the same chapter, and respects the council and the same manner of settling elec- tions hy the Legislature, to take into consideration the expediency and propriety of making any, and if any, what alterations and amendments therein, and report thereon ; having attended to the duty assigned them, respectfully report — that in their opinion, these branches of the Government, to which their attention has been called, have been found to answer the important purposes for which they were established. The committee therefore do not think it expedient to recommend any essential alter- ations therein. The amendments which they have agreed to propose are such as appear to them to be adapted to the present state of the Commonwealth ; to what seems to have become an established practice, that of finally electing the council from among the people at large ; and to meet what may be the ultimate decisions of the Convention respecting the religious test, and the commencement of the political year. With these observations the committee respectfully submit the following reso- lutions to the consideration of the Convention. BENJAMIN PICKMAN, Chairman. 1. Resolved, That it is expedient and proper to alter and amend the constitution of this Commonwealth by striking out, in the first article of the second section of the second chapter thereof, relating to the lieutenant governor, the following words — " in point of religion, property and residence in the Commonwealth." 2. That it is expedient and proper to amend the same by striking out in the first article of the third section and the same chapter relating to the council, &c. the word " nine" and inserting " seven," also the word " five" and inserting " four." 3. That it is expedient and proper to amend the same by striking out the whole of the second article of the same section and inserting, " Seven counsellors shall be annually chosen from among the people at large on the day of , by the joint ballot of the senators and representatives assembled in one room." 4. That it is expedient and proper to amend the same by striking out in the fourth article of the same section the word " two" and inserting " one," also the word " district" and inserting " county." 5. That it is expedient and proper to amend the same hy striking out in the seventh article of the same section the words « the last Wednesday in May," and inserting the day of ." This report having been read was referred to a committee of the whole, and made the order of the day for to-morrow at eleven o'clock. 14 106 MASSACHUSETTS CONVENTION. The report of the select committee yesterday acted upon in com- mittee of the whole were then taken up. The amendments agreed to in committee were adopted by the Convention. The resolves were then severally read a first time and ordered for the second reading to-morrow at ten o'clock. ]VIr, Austin of Boston said, that yesterday, in commitee of the whole, he ofi'ered an amendment to the report of the select com- mittee, which was not received. He then declined to press the proposition, and he now rose to renew it, with a trifling variation. He therefore offered the following resolution : Resolved, That the constitution ought to be so amended as to provide that the representatives of this Commonwealth in the Congress of the United States and so many of the electors of president and vice president as are equal to the number of the representatives aforesaid, shall be chosen by the people in such convenient districts as the Legislature shall direct ; and the Legislature of this Commonwealth shall be required at their session next after every apportionment of representatatives by the Congress of the United States to provide by law, by dividing the Commoii- wealth into districts, for the choice of not more than two representatives or electors in any one district, and such lav.- shall not be repealed or altered until after a new- apportionment of representatives by the Congress of the United States. Mr. Austin said that the proposition was one of great importance in principle, and whether it should be adopted or not was a question which required deliberate attention. The object of it was to decide finally an important question which was continually occiirring in the Legislature. All other elections-except those embraced in this proposition were fixed by permanent laws, while these, every time they came round, gave rise to discussion and to some degree of em- barrassment and confusion. He first considered the question in re- lation to ouij own constitution. Gentlemen had expressed a reluc- tance to change any part of the constitution. He regarded it with as much respect and affection as any ono — ^but he did not think it too sacred to be touched. It was not like the ark of the covenant which he that touched should die. The question whether it should be touched had been settled by the people. They had said it might require amendment, and had for that purpose chosen delegates to examine it. It was their duty to examine it to see what was sound, and what was unsound, and to take away every rotten plank" in the ship. Some gentlemen had expressed a reluctance to reject even the decayed parts. He was not under the influence of any such feelings. The old landmarks, where our borders were enlarged, were of little consequence except as matters of curiosity to the anti- quary. He would in all questions in relation to the constitution imitate the spirit of the enlightened men who framed it, act accord- ing to their best judgment of what was useful, and if new and im- portant principles have been taught us by experience, it is our duty to put them into the constitution. He said that when he in- troduced his motion yesterday, it had been objected by the gentle- man from Salem, (Mr. Justice Stoky) that it was beyond the power of this Convention to adopt this regulation, because inconsistent with the constitution of the United State?. He listened with great MASSACHUSETTS CONVENTION. 107 attention to any suggestion from that very learned gentleman, and upon all questions of law he had been accustomed to regard his opinions with extreme respect. Whatever he said came with that authority that was apt to crush all opinions that came from a hum- ble source. But the most learned judges may err. Mr. A. proceeded to examine the constitution of the United States, for the purpose of inquiring what the rights of the states under it were. In the second section of that instrument it is directed that the members of the house of representatives shall be chosen "by the people of the several states; " and in the fourth section, that "the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof." No part of this power was proposed by his amendment to be taken away. The time of the election was stUl to be settled by the Leg- islature, as well as the place of election, whether by large districts meeting in a single place, as is the practice in some of the southern states, or in towns. The manner of holding the elections is also left to the Legislature to determine, and without such a law as by this proposition is required to be passed, the election could not be held. The proposition is orily that we shall direct the Legislature in the exercise of the power which is given them by the constitution of the United States. The provision for the choice of electors of president and vice president is similar. The constitution requires that " each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, &c." The Legislature, if this proposition is adopted, will still exercise all the rights here given to it, in the manner in which they have been heretofore exercised. We only propose to limit them in the exercise of their discretion. Who can question the right of the people to instruct the Legislature in the manner of exercising their discretion. The Legislature are bound to exercise all their powers under the direction of the consti- tution. The people possess the supreme power — they have a right to impose this restriction upon the Legislature, and the Legislature will have no right to question their authority. The people have a right to instruct the members of their Legislature, and instructions given in a permanent instrument will be as binding as if given for each particular occasion. Congress Avould have no right to^ object to this limitation of the powers of the Legislature. The right of choosing electors is a state right, and Congress has nothing to do with it. This is not a new opinion. It is a principle that has been acted upon. He cited a case in which an electoral vote, which had produced great excitement, was remonstrated against ; a remonstrance was not received by Congress on the ground that the right of choos- ing electors was a state right, and the remonstrance should have been made at home. It was impossible that Congress should refuse to receive the vote that should be given, on the ground of interfer- ence with the powers of the legislature in directing the manner of election. He therefore concluded that there was a perfect authority in the Commonwealth to direct, in their constitution, how 108 MASSACHUSETTS CONVENTION. the Legislature should proceed in fixing the time, place, and manner of choosing representatives and electors. Why then should it not be exercised ? These were popular rights, and belonged to the peo- ple. They had a right to dii-ect. The mode of election proposed was one which would give the sense of the country in small districts. Although the majority of the people must govern, the minority have rights which ought not to be trampled upon. When electors and representatives are chosen in large districts, the rights of the minority Eire destroyed. It is only by dividing the State into small portions that there caai be a fair expression of public opinion. For obtaining uniformly this expression of opinion, he contended the people had a right to require the Legislature to divide the Conlmonwealth into small districts. In regard to electors there was a peculiar propriety in doing this. The election Avas sometimes a source of great irrita- tion. For want of such a provision, the state of New York in 1788 lost her electoral vote, by a disagreement about the mode of election. He referred also to the great agitation in 1801, when a decision on which the election of president was supposed to depend, was carried in the legislature of Pennsylvania by a single vote — to the election in this State in 1805 and in 1812, and contended that under the circumstances of those cases, which he stated, much difficulty and popular excitement would have been prevented by a permanent provision like that which he now proposed. It was said that in this election the State should have one voice. It was true it should have but one voice, if the people said so. It was always safe to trust the people. If they were unanimous in their opinion, the vote should be unanimous. When the venerable gentleman wjio was chosen the first president of the convention was- candidate for the presidency, the electors of this State were chosen in districts, and yet their vote was unanimous. It was not a sufficient objection that other states might not adopt the mode of election. If it was good in the abstract it was a sufficient reason for our adopting it. It might be useful to us if other states did not adopt it. It would be useful for this State to set the example of adopting the best mode. It has been the course in this State to choose the representatives in districts. They ought always to be so chosen, and taken from different parts of the State. But propositions have been made to change the mode of election. He did not wish to see these propositions renewed. Im- portant elections of themselves afi'orded grounds enough of excite- ment, without that which arose from a difference of opinion about the 'mode of election. The Commonwealth had been at times agi- tated by contending parties. There was now a calm — ^but the storm might burst out again. Let us take advantage of the favorable mo- ment to settle an important principle. Let it be understood that representatives and electors are to be chosen by districts. When districts are settled, let it be for ten years. Let there be no room for suspicion that the mode of election is determined upon from party motives. For the reasons which he had given, he thought that the Convention had the right, and possessing the right, that it was expe- MASSACHUSETTS CONVENTION. 109 dient to adopt the regulation which he had proposed. If he was not correct in his views, he had discharged a duty in acting according to his own sense of what was right and expedient in this case. Mr. Bliss of Springfield inquired whether thig were to be consid- as an original proposition. He thought it should be so considered. If so, it should, by the rules of the Convention, be first discussed in committee of the whole. The President said that the proposition was the same in sub- stance with that proposed by the mover in committee of the whole yesterday, and as such might be renewed in Convention. Mr. Story of Salem said — ^that in rising te address the Conven- tion, he had not the presumption to consider himself in any other character than that of a citizen and delegate — ^he had no right to claim and did not claim for himself any official authority, and his opinion could have and ought to have no other weight than that of one zealous for the publit service and addressing the judgments of his fellow-citizens. Whatever his errors might be in another place, (and errors without doubt he had coraniitted) they were not subject to revision here. Whatever errors he might here commit, he was sure will meet with indulgence, as the opinions of one, earnest at least to promote the public interest, and like the other members of the Convention, solicitous to perpetuate our public rights and liber- ties. When yesterday the learned and eloquent gentleman from Boston presented the proposition now before the Convention for consideration, he had supposed that it had not been examined with his usual deliberation. I find myself, said Mr. S. under a mistake ; and his ingenious speech requires from me a defence of the doctrine which I then ventured to suggest. He was opposed to the amend- ment proposed by the gentleman, because it was contrary to the constitution of the United States ; and if it were not so, he should deem its adoption wholly inexpedient. It was perfectly clear that the constitution of the United States was the supreme law of the land, and in terms it was so declared in the instrument itself. It was not within the legitimate power of the Legislature of this Com- monwealth in its ordinary capacity, it was not within the legitimate power of this Convention, to violate any of the provisions of that constitution. We are bound to obey it, and should abstain from all exercise of autljiority which in any respect narrows or contracts the powers delegated in it by the people of the United States. The gentleman would not differ from him in respect to this doctrine. The question then was, whetfier we have a right to insert in our constitution a provision which controls or destroys a discretion, which may be, nay which must be exercised by the Legislature, in virtue of powers confided to it by the constitution of the United States. The fourth section of the first article of the constitution of the United States declares, " that the times, places and manner of holding elec- tions for senators and representatives, shall be prescribed in each state by the legislature thereof ; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing sen- 110 MASSACHUSEITS CONVENTION. ators. ' ' Here an express provision was made for the manner of choos- ing representatives by the state legislatures. They have an unlimited discretion in the subject. They may provide for an election in sin- gle districts, in districts sending more than one, or by a general ticket for the whole state. Here is a general discretion, a power of choice. What is the proposition on the table ? It is to limit this discretion, to leave no choice to the Legislature, to compel representatives to be chosen in districts. In other words, to compel them to be chosen in a specific manner — excluding all others. Was not this plainly a violation of the constitution ? Does it not affect to control the Leg- islature in the exercise of its legitimate powers ? Does it not inter- fere with the superintending authority of Congress ? The gentleman says and says truly, that the Legislature will probably follow the rule presented by his proposition, if it is adopted by the Convention and ratified by the people of the Commonwealth. This, said Mr. S. is precisely my objection to it. The members of the Legislature are under oath to support the constitution of the State. They are also under oath to support the constitution of the United States. Will it not be a violation of their oaths to bind themselves not to choose representatives in any manner that the constitution of the United States allows, except that stated in the gentleman's proposi- tion, when they are satisfied that the public interest requires another manner of choice ? They may bring their consciences into jeopardy by such proceedings. It would be a direct and manifest departure from their duty. Again, the second article and first section of the constitution of the United States provides, that "each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and repre- sentatives to which the state may be entitled in the Congress." Here a discretion as to the choice of electors is given to the Legislature. It is unlimited, yet the proposition before us goes directly to destroy this freedom of choice, and compels the Legislature to resign all manner of choice but one. It assumes a control over the Legisla- ture which the constitution of the United States does not justify. It is bound to exercise its authority according to its own views of public policy and principle ; and yet this proposition compels it to surrender all discretion. In my humble judgment, said Mr. S., and I speak with great deference for the Convention, it is a direct and palpable infringement of the constitutional provisions to which 1 have referred. He proceeded to consider the policy of the measure, even supposing it were constitutional. He was free to declare that his present opinion was, upon the best consideration he could give the subject, that a uniform manner of choosing representatives' and electors by districts throughout the whole of the United States would be a great improvement in the national constitution. He perfectly concurred in the gentleman's reasoning on this subject ; and if he held any station in which his voice could aid such a meas- ure, he would most earnestly and zealously offer it. But, said he, the question now before us is not of this nature. It goes to limit MASSACHUSETTS CONVENTION. Ill US to a particular mode of choice, leaving all the rest of the United States freef to adopt any other. What would be the consequence of this measure ? That on the most important occasions we might be. deprived of all the influence to which our talents and character and numbers, justly entitle us. It has been my melancholy duty in other times to be a spectator in the national council of the evils of our domestic dissensions. We have had the misfortune to be placed there in a neutralized sitiiation, our representatives being divided so nearly between the two great political parties, that we scarcely had the means of aiding or defeating any important measure. I love my native State, and shall never cease to feel a deep and affectionate interest in- its public character until I cease to exist. The talents, the virtues, the sound education and practical habits of our citizens entitled them to an elevated rank and influence in directing the des- tinies of this nation. What can be more humiliating or mortifying than to see this influence lost by our divisions ? The direct and necessary consequence of the measure now proposed is to perpetuate our own humiliation. Why does Virginia (I speak of her with re- spect, ),why does Virginia choose her electors for president by a gen- eral ticket ? Because she is determined that her electors shall move in a solid column in the direction of the majority of the state. If chosen in districts, as now proposed, her electors would be composed of persons of different political opinions. When New York chooses electors by a legislative appointment, is it not for precisely the same reason — to preserve her legitimate influence in the Union, and to mark her vote with the stamp of the majority ? I do not say that this is the right method of choice. But it is one which the consti- tution authorizes, and it has been practised by various states in the Union, whenever the exigency of the times made its vote of impor- tance in the elevation of a president. Why should we givB up the same privilege ? Upon retaining this right in the most ample man- ner, may depend the choice of a president. Yet we are now asked to bind ourselves to a mode of choice which would neutralize our votes and place us in the same situation as if we had no vote. It seems to me this is a sacrifice which we ought not to make ; and that sound policy ought to induce us to yield up no privilege which the constitution of the United States secures to us. The gentleman suggests that the Congress of the United States have no right to in- quire into the manner in which electors are chosen ; and therefore that we may safely adopt the mode now prescribed. Sir, I doubt exceedingly this proposition in the latitude in which it is stated. I do not know that Congress have ever decided that they have no au- thority to inquire behind the returns made to them of the electors. Cases of fraud or of unconstitutional appointments of electors may arise, in which it might be fit and proper, and perhaps necessary for the public safety, to make this inquiry. The case alluded to by the gentleman from Boston, was not, I believe, a decision on this point. The question was not decided, because it was not necessary in that case ; for whether the votes were counted or not, the choice of pres- ident would not hava been altered. 112 MASSACHUSETTS CONVENTION. Mr. Webster wished to make one or two remarks before the gentleman who moved the amendment replied. Not to eifter into the argument on the question of our right to make such a provision, there were two considerations on the expediency of it which had weight wi^h him. The first was the general inexpediency of con- necting the state constitution with provisions of the national constitution. He thought it tended to no good consequence, to un- dertake to regulate or enforce rights and duties arising under the general government, by other means than the powers of that gov- ernment itself He would wish that the constitution of the State should have as little connection with the constitution of the United States as possible. Some of the states have sometimes endeavored to come in aid of the general government, and to enforce its laws by their own laws. State statutes had been passed to compel compli- ance with statutes of Congress, and imposing penalties for the transgression of those statutes. This had been found to be very embsirrassing, and, as he thought, mischievous; because its tendency was to mix up the two governments, and destroy the real essential distinction which exists between them. The true constitutional, har- monious movement of the two governments was as much interrupted by their alliance as by their hostility. They were ordained to move in different spheres, and when they came together, be it for the purpose of mutual harm, or mutual help, the system is deranged. Whatsoever was enjoined on the Legislature by the constitution of the United States, the Legislature was bound to perform : — and he thought it would not "be well by a provision of this constitution, to regulate the mode in which the Legislature should exercise a power conferred on it by another constitution. The other consideration which pressed on his mind was this. He was in favor of a general system of districting, throughout the United States, for the choice of electors. He supposed the gentleman who moved this resolution held that to be desirable. But that could only be brought about by an amendment of the United States constitution. Such an amend- ment, it was well known, had been repeatedly proposed in Congress. It had, he believed, more than once passed by the constitutional majority in the senate. He hoped it would also pass the house of representatives. But he could think of nothing more likely to have an influence to prevent it than the adoption of this measure. The inducement which the representatives of one state in Congress have to give up the power, (and it was often an important power,) of giving an undivided vote and voice in the choice of president, was, that other states would give it up also. But if other states volun- tarily restrained themselves, by their own constitutions, so that in fact they should have nothing to give up, the inducement was at an end. If every state in the Union, except two or three of the largest, were to bind themselves to choose electors by districts, and these two or three were at liberty to choose by general ticket, or to appoint by the Legislature, every one must see how far this would increase the actual and efficient power of those large states. In short, as far MASSACHUSETTS CONVENTION. 113 as it is an object to possess power in the Union, it is the interest of. every state, that every other state should be restrained to district" elections of electors, and herself left free. When we, therefore, tie up our own hands in this particular, by our own constitution, we do that, precisely, which those who wish a relative increase of their own power, would desire. He was afraid, in so acting, we should not entitle ourselves to much character for foresight or sagacity. As political men, desirous of retaining only the just, but all the just right and power of our constituents, he thought we ought to retain the right of giving an undivided electoral vote, until others also should agree to give up the same right. Otherwise we should be making a mere gratuity of that, which was all we had to offer as an. equivalent for a highly desirable object in return. Mr. Austin requested the indulgence of the House, to make a few remarks in reply to the gentleman who had opposed his motion. He admitted the inexpediency of attempting to aid the government of the United States. That government was strong enough to stand by its own force. The object of his motion was to arrange our own affairs. It was objected that we should take away an argument for the adoption of the prmciple generally throughout the United States. He did not concur in the justness of this remark. He said we should have a solid column of electors when we had a solid column of public opinion ; when the opinion of the public was divided, it was not desirable that we should have. In other states there was either a violation of the rights of the minority, or their citizens were united by a strong force of interest or political feeling. He should regret the destroying our influence in the Union, but he would not force public opinion by violating the rights of the minority. He agreed that if we introduced a provision into our constitution, contra'dicting the provisions of the constitution of the United States, it would be of no validity. But the question was, whether the constitution of the United States would be violated by the amendment offered. If it were a proposition to give to the governor and council the power of regulating the elections, it would unquestionably be a violation, because the Federal constitution ordains that the Legislature shall dii'ect as to the time, place and manner of holding the elections. By this proposition the Legislature will continue to direct. This amendment is only advisory of the manner in which the Legislature shall exercise its discretion. It is not necessary that the discretion should be unlimited, nor does the Federal constitution require it to be free from the influence contem- plated in this amendnient. The question was then taken upon Mr. Austin's amendment, and decided in the negative. It was then ordered that the report of the committee should have a second reading to-morrow at 10 o'clock. Mr. Q-uiNCY moved to take up the resolution respecting the crea- ting of a permanent fund, out of the lands Qf the Commonwealth in the state of Maine, for the support of public schools, reported by the committee on that part of the constitution which relates to the Uni- 15 114 MASSACHUSETTS CONVENTION. Tersity of Cambridge, and the encouragement of literature ; but it being suggested that some of the select committees were desirous of meeting, the motion was withdrawn. The Convention then adjourned. Wednesday, Noveiuber 29. The Convention was called to order at 10 o'clock, and attended prayers made by the Rev. Mr. Palfrey. After the journal of yesterday was read, the resolution respecting •the constitution of the Legislature by two branches, reported by the committee on that part of the constitution which relates to the Gen- eral Court, was read a second time and passed. The second resolution, reported by the same committee, respecting the alteration of the time for the meeting of the Legislature from the last Wednes- day in May to the first Wednesday in January, was read a second time. Mr. Q,uiNCY said, that the question was, for substituting a single session in January, for the tvto sessions which were required by the constitution ; in other words, it was an abrogation of the session in May. It had been passed in a committee of the whole, by a con- siderable majority. He hoped that he should be pardoned in asking the House to review its decision. He knew that the resolution had the gentleman from Springfield, (Mr. Bliss) for its patron. He was sensible that gentleman had a great influence in that body, and justly from his great talents, long experience, and characteristic in- tegrity. He requested of that gentleman to consider the weight which was due to the arguments which he should urge. He asked no more. A session in May was an institution. of an antiquity of nearly two centuries. He thought the reasons for changing should be great and general, and grave. Three general reasons had been urged by the advocates for the resolution. 1st. The inconvenience to country gentlemen from the May session. 2d. The advantage which resulted, in point of influence, to those who dwelt in this vicinity, in consequence of the necessary absence of country mem- bers, at the end of that session. 3d. The economy resulting from having one session, instead of two. 1st. As to the inconveni- ence arising to country gentlemen, from their being obliged to quit their farms in May ; it was certainly not excessive. It had been the practice of two centuries. There had been no grievous com- plaint. They had never been prevented attendance from any acci- dents of season or weather. From the first settlement of the country to this hom, the Legislature had been full to the brim. This was an all important fact. It . was the period at which the government was organized. Full houses, in both branches, at the time of first or- ganizing the departments, had always been secured. This was the important time, more important than any subsequent period of the sessiorL Because it evidences that, at this season, there is a certainty of organizing the government, according to the existing majority in MASSACHUSETTS CONVENTION. 115 the Commonwealth, however that majority was constituted. As to* the effect on the farming interests, we have the experience of two centuries ; during all which the practice had been uniform ; and the prosperous state of our Commonwealth was proverbial. Now al- though some inconvenience did exist, he submitted it to the good sen^e of the Convention to consider, whether it was sufficient, in itself considered, to justify so great an alteration in the constitution and the habits of our ancestors. The second reason, urged was, that it gave an undue advantage to those situated in the vicinity of the place where the Legislature was holden. If this was true, and this was a remedy, he granted that it was a good reason. The fact on which the objection was founded, he understood to be stated thus : " The country gentlemen from a distance go home, towards the end of the May session, and leave the decision of the business of the State to the gentlemen situated in this immediate vicinity." Now, if this is a fact, it is a melancholy one. But if it be a fact, is this the remedy ? Is it necessary therefore to amend *he constitution. He put it to the sense of the Convention to decide. Is it not abso- lutely within the power of the Legislature to remedy that evil? 1st. By compelling the attendance of members. 2d. By an ad- journment before the mischief occurs. 3d. By general rules and orders of both, or either branch, bringing the business within the time, in which distant members could attend. Now he asked, will it be seriously urged that this constitution shall be amended for the purpose of remedying an evil, absolutely and uncontrollably already within the ordinary powers of every legislative body ? But is it a fact ? Can any gentleman put his finger upon one act of state con- sequence ; any great measure effected by the influences of this vicinity, in consequence of the absence of country members ? That such may have happened, in relation to matters of local concern, in cases of banks, turnpikes, bridges, and the like, he thought was very probable. But he asked, on this account, ought we to alter the con- stitution, when the Avhole subject is now actually within legislative control ? Grant, however, that all the suggestions thus far made are true ; grant, for sake of argument, that the May session does give undue advantage ; that this advantage has been abused ; that this abuse is great enough to justify an amendment to the constitution ; the ques- tion results, is the measure proposed a remedy for that evil ? He said that he*had heard the arguments on this subject with astonishment. For if he had any power of perception concerning consequences, the interest of the gentlemen residing in the country was directly the other way. The most important moment of time during the whole session was that, on wjhich the government was organized ; because on that depended the political character of the State for the year. Now the question was, at which time of the year could the gentlemen from the country attend with the most convenience and certainty. In May, when the season was settled and the communication certain ? Or in January, when the roads 116 MASSACHUSETTS CONVENTION. *vere liable to be suddenly obstructed ? He put it to the experience of gentlemen, whether at the season proposed, a snow storm, of the ancient violence and depth, might not change the whole political power of the State. It is only rendering the roads for three days impassable, at the moment preceding the session, and the business is done. By an accident of this kind, concurring with a contested election, the whole political character of the Commonwealth might be changed for t^venty years. At the May session there was liability to no accident. He did not consider this a local question. The influence and weight of the inhabitants of the west and east, in all questions of state, were the right of those in the centre of the Com- monwealth, and he objected to the clause on this ground, that it tended to deprive this part of the Commonwealth of their assistance, as it might be, in a case of extreme difficulty. He thought, in the practicability of the meeting of the whole Legislature in May, the wisdom of our ancestors in this provision of the constitution was apparent. • The third reason given was that of economy. This was a high consideration to men in all relations. But he thought it was rather an aff"air of detail, than a rule to regulate the principles of a consti- tution. It was a consideration by which the organs of a government are to be guided after they are forrijed ; not a principle in relation to which they ought to be constructed and to be compelled to act. It was among the first considerations of law-makers. It was among the last of constitution makers, or menders. The reason is that in making a constitution we are regulating the principles by which the Legislature is to maintain our rights and liberties. If, in establish- ing the organization of that Legislature, we make mere economy the rule, we may limit or embarrass powers which may be necessary to oiu- defence, and thus endanger objects, infinitely more important than any amount of property whatsoever. But what is this expense ? It is scarcely more, probably not more, than the travelling expenses of one session. The week spent in organizing the government in June, will be saved in January. The work done in the first, will also be saved, to the last session. In this connection he noticed the effect of having but one session in the year, in relation to that influence of this vicinity, of which gentlemen were so apprehensive. The May session gives opportunity to issue notices for private business, and enables the Legislature in January to enter upon business early. But if such notices are not issued until January, time must be given, and all the business thrown into the last weeks, when members from a distance are always likely to be absent ; and thus the evil of local advantage increased, instead of remedied. He submitted it to the Convention if, after this examination, either the arguments from inconvenience, . from undue advantage, or from economy, were sufficient to justify any important change in the constitution, much more such a change as the measure now proposed was about to produce ; a change in a great institution pstahlished by ovr ancestors, at the first settlement MASSACHUSETTS CONTENTION. 117 of OUT country. He said that he knew what he was about to say • might be treated with sneers and ridicule. He trusted, however, to the candor of the Convention. The argument of the two gentle- men from Salem, Mr. Pickman and Mr. Saltonstall, had been so met yesterday. It was a testimony to the strength of those gentle- men's arguments, speaking concerning whom he said that he spoke the sentiments of every man who knew them, when he said that for an uifion of sound heads, with sound hearts, they were inferior to none, and equal to any in the Commonwealth. He Eisked what was the nature of the institution to which he alluded ? It is this : The Legislature of the colony and of the Commonwealth have been accustomed to meet for two centuries on the first week of May ; and in consequence of the singular character of our ancestors, who were not a vagrant class, but associated their principles of civil and religious liberty with elevated notions of learning and intellectual improvement, it became a custom for all the. literary, the religious, and the charitable institutions of our country, which werS of a general and state character, to meet on the week of the meeting of our Legislature. Accordingly, on this week, from the earliest period, all the clergy, the learned, the pious, and the charitable men of our country, made it a custom, as far as it was individually convenient, to meet on that week. The representation of this great and most respectable body of men, was always numer- ous. And for what purpose did they assemble? To settle the concerns of their respective corporations, whose influence and action were co-extensive with the State — ^to commune with each other on their respective concerns — to have intercourse with the fathers of the State — to receive and reciprocate light and information — to go together to the temples of the Most High, there to join in expres- sions of praise for mercies, and to supplicate his blessings on the coming political year. Are such institutions to be spurned ; are they to be slighted ; are the feelings which would preserve them to be sneered at and ridi- culed ? If the State were destitute of them, all the riches in the universe could not replace such an Institution, supply and originate such habits; and yet we are about to throw them away like common dust ? The gentleman from Springfield (Mr. Bliss,) intimates that these societies may have their meetings in January. Mr. Q,. said he should think this almost an insult, if he did not know that the gen- tleman from S. was incapable of an insult. He asked — would our clergy, our hoary-headed literati, our veteran statesmen, leave their homes for pleasure and general intercourse, at the most uncertain and inclement season of the year ? He said that they might as well take the warm and .glowing sun of May from the sign in which he predominates at that season, and place him in the sign which rules the inverted year ; as well take the flowers and green surface of June, and spread them as a carpet in January, as transfer • the insti- tutions of the former period to those of the latter. It could not be 118 MASSACHUSETTS CONVENTION. •done. Nature is against it. This resolution annihilates the whole institution. And what do you annihilate ? An unmeaning cere- mony ? An useless pageantry ? No — but a substantial, moral, and intellectual and political blessing ; such as no other State does pos- sess ; characteristic of our ancestors ; their glory ; associated with all our prosperity, political, social, and literary, £ind cause of much of it. Mr. Q,. asked if ever there was an institution in the world iJetter calculated to keep alive these sympathies, to make learning, relig- ion and good morals honored, and become the foimdation of soci- ety; and so constituted as to have chief effect on the political birth-day of the State — ^making a holiday over the whole State, and a jubilee for the metropolis. He said that he wished that the venerable gentleman on the right of the chair, (Mr. Adams,) to whom nature had left at the age of eighty-six years, the unabated vigor of his intellect, had also been permitted to have retained the unabated power of his ancient eloquence and voice. He wished that every gentleman in the Con- vention could have heard him say, as he had yesterday, that gen- tlemen did not realize the consequences of the measure. (Here Mr. Blake interrupted Mr. d., and called him to order — that it was not in order for one gentleman to state what another had said.) Mr. Q,. said he had no authority to repeat what the venerable gentleman had said, but presumed, as he was present, it was in order. The Chair decided that Mr. Q,. was not in order. Mr. Q,. said, that although he differed from the Chair, in point of order, yet that he had too great respect for the gentleman who filled it, to appeal — and that he had finished all the general obser- vations he intended to make. Mr. Slocum of Dartmouth said that he rose with great coolness and little animation on this occasion. While the gentleman from Boston was speaking, he sometimes threw a mist before him, and he (Mr. S.) sometimes thought he should vote with that gentleman. But the mist was now dissipated, and he could see the interest of his constituents. The gentleman dealt in Maypoles and flowers, and he was ■vV^illing he should have them, but he should have them on his own territories, and not at the expense of the State. The question was, whether it was best to have two sessions or one. It would be a great saving to have but one. If the Legislature were not able to do the business in one session in a year, they might adjourn, and if there was a majority in favor of meeting in May, they might adjourn to that time. He hoped therefore that the res- olution would pass. Mr. Foster of Littleton said, that as a member of the Massachu- setts Charitable Congregational Society, he would say a few words. The people of Massachusetts had shown a degree of kindness and hospitality not manifested by the people of any other State. "He MASSACHUSETTS CONVENTION. 119 wished to ackmowledge it with gratitude. At the annual conven- tion of the clergy, they always experienced the great munificence of the inhabitants of Boston. But he did not think that those who received this charity, would suffer from changing the time of the annual convention of the cl-ergy from May to January. On the contrary, he thought they might get more money in the winter. It was a time when people in general had more to give. Mr. PicKMAN of Salem inquired whether the present vote on the resolution was to be final, and being answered from the Chair that it was, he moved that when the question should be taken, it should be by yeas and nays. He was aware that it would take up some time, but he thought the final question on every considerable amendment, should be by yeas and nays. There were many modest gentlemen who refrained from speaking on questions, who would nevertheless wish that their constituents might know how they voted. Mr. D. Webster of Boston said he knew it was proper not to debate the question of taking the yeas and nays, but he rose to a point of order, in consequence of what fell from the Chair. He apprehended that all the amendments which should be adopted, would require to be put into the form of articles, and suggested that the gentleman from Salem would attain his object if the yeas and nays should be taken on the final adoption of those articles. (The President explained — he meant that the vote was final on the resolution in its present shape.) Mr. PicKMAN said that he only wished each member should have an opportunity of recording his vote at some time or other, and he withdrew his call for the yeas and nays. Mr. Q,uiNCY renewed it. He said that this vote decided the prin- ciple, and no gentleman on a subsequent vote, would wish to record his opinion in opposition to a principle which had already been finally settled by the Convention. Mr. Dana agreed in the views which had been expressed by the gentleman last speaking. Mr. Dawes of Boston said that he should have been astonished, but he remembered a rule of Dr. Franklin not to be astonished at anything — ^he was disappointed to hear the motion of the gentleman- from Salem — ^he was pleased when he withdrew it — and it was with grief that he heard it renewed by his highly respected col- league. He said he considered it a question whether they should sit all winter, if this resolution and twenty others, were to be de- cided by yeas and nays. He said he did not like the rule that a fifth part of the members should be at liberty to demand the yeas and nays. It was holding a rod over gentlemen, and telling them " if you do not vote as I choose, your constituents shall know it." The President said that the question of taking the vote by yeas and nays, should be decided without debate. Mr. Dawes said, If I had known that, I would not have said a Word. 120 MASSACHUSETTS CONVENTION. Mr. QuiNCY said that he did not wish to push the motion in op- position to the opinions of other gentlemen about him, and he with- drew it. Mr. Dana then renewed the motion. The question was taken on the motion for taking the vote by yeas and nays, and carried. The resolution was then read. Mr. Prince of Boston said that he expected there would be con- flicting interests in the House, and he wished to meet them in a spirit of conciliation. From the expression of opinion which had already been given on this question, he was satisfied that this reso- lution would meet the views of his brethren from the country, and he should for that reason give his vote in favor of it. Mr. Little of Newbury said that ever since the origin of the Commonwealth, the Legislature had met in May, and he had heard no complaint of it. If we were now to change, he wished it to be considered that it was because we were wiser than all our forefath- ers held been. But a single 'reason had been given in favor of it — it would save the expense of travelling. He proceeded to make some statements of the amount of expense in different sessions, within the last ten years. He thought it would be inconvenient to transact all the business at the winter session, and if they should have occasion to adjourn, they could not adjourn to a more conve- nient day than the last Wednesday in May. He had been a farmer for many years, and he knew that this was a season when business was least urgent. Mr. Walker of Templeton said that the only question was, whether the change would produce a saving of expense — all other considerations should be laid out of view. He considered the meet- ing in May as a mere ceremony, which could easily be dispensed with. He thought' it a self-evident proposition. Mr. PicKMAN thought it might be shown that expense would be saved by having two sessions instead of one. Every gentleman who had had any experience in the Legislature, must know that much time was taken up in organizing the government — it was not a mere ceremony — it was a duty imposed by the constitution itself. The days were so much longer, and the transaction of business so much easier, that one day in May was worth two in January for this purpose. He spoke from experience, and appealed to gentle- men who had been in the Legislature. To perform the same service, several days longer would be required in the winter than at the usual date of the summer session — and enough to make the whole difference of the expense of travelling. He suggested an- other argument against the change. This was but a part of a system. If the session o{ the Legislature was altered, the period of all elections must be altered. The gentleman from Springfield had told us that the people would attend to their private business, to the neglect of the public. What would be the consequence of transferring the business of the elections from the spring, a period of comparative leisure, to the autimin, when all are occupied. The MASSACHUSETTS CONVENTION. 121 session also would be so prolonged, from having all the business of the year crowded into it, that it would extend into the spring, and gentlemen would have the same temptation to desert their duty, as in May. Mr. Lincoln of Worcester rose to make a single remark, and he would endeavor that what he should say, should be remarkable for its brevity, if it was not for its solidity, on this as well as on all other occasions. He considered the question important to the inter- ests of the country, and he wished to express what he believed to be the sentiments not only of his constituents, but of other gentle- men in the same part of the State. He had hoped the gentleman from Springfield would have replied to the remarks of the gentle- man from Boston. He would have done it in a manner more satis- factory than he (Mr. L.) was able to do it. He professed as much respect for the present constitution as any member of the Conven- tion, but he was sorry to hear the expression of any sentimeht that should sanction the opinion that no improvement could be made to correspond with the progress of society. The {>resent constitution, at the time of its adoption, was but an experiment. The framers of it could not anticipate what would be the effect of every part of it. He thought that on this question there were imperative reasons for a change. He differed from the opinion expressed by the gentle- man from Salem, that it would produce no saving of money. His reasoning was predicated on the supposition that much time would be necessary in organizing the government. It was true that here- tofore much had been necessary. Time had been wastefuUy and uselessly expended in the legislative mockery of electing members of the council from the senate, merely to give them opportunity to decline. The houses had been employed day after day, in supply- ing the vacancies. All this time, he trusted, would now be saved. Whole days were occupied in choosing notaries public, in conven- tion of the two houses, but he trusted 'that with the amendments which should be adoped, little time would be requisite for organiz- ing the government. The argument of the gentleman was there- fore without founda.tion, which otherwise would have been of great force. He proceeded to reply to the remarks of the gentleman from Boston, (Mr. duiNcr.) He had expressed a great regard for the in- terests of the country ; he knew him too well to doubt that he was perfectly sincere in his remarks, but he could assure him, that the people from the country would have opportunity to attend to their own rights. Snow storms were not so dreadful as seemed to be imagined. The people were familiar with them, and they seldom prevented the passing from one end of the State to the other. He recollected but one instance when the travelling had been entirely obstructed by snow, which was in the year of the adoption of the constitution. But suppose it to happen more frequently, the argu- ment is inconclusive, unless it can be shown that the roads may not be broken up by freshets in the spring — ^that there may not be earth- quakes in May — that the bridges may not be carried off by floods. 16 122 MASSACHUSETTS CONVENTION. He contended that it would be more convenient to assemble in Jan- uary than in May. A great part of the members of the Legislature came from agricultural parts of the Commonwealth, where May and June are among the most busy months in the year. The seed is put into the groimd as early as May ; it soon requii-es weeding, and the first and second hoeing 'is hardly finished, before the gathering of the hay begins. Hay is begun to be cut in Hampshire county, as early as June ; in Worcester, in June or the beginning of July. It is inconvenient for gentlemen engaged in these pursuits, to leave their homes to attend the General Court. It has resulted from these causes, that it has been indispensable in the spring session of the General Court, either to transact business in a thin house, or adjourn to the winter, when the agricultm-al business of the year is finished, and those who are engaged in these pursuits, are at leisure. As to the charitable institutions which hold* their anniversary meetings at the time of election, if they were necessarily connected with the session of the Legislature, they might meet as well in January as in May. The sno-\v which then covered the ground, served rather to facilitate than to impede travelling, and the members of the Leg- islature in coming to the capital, might bring with them their min- ister or other persons, with greater ease than at another season. But he did not think there was much force in this argument, on one side or the other. He placed the question on the ground of expe- rience. He insisted that it was more convenient to have but one session, and to have that begin in January ; and for this reason he should vote for the resolution. The yeas and nays were then taken on the adoption of the reso- lution and it was decided in the afiirmative — Yeas 408. Nays — Messrs. Abbot, Adams John, Adams Josiah, AUyne, Andrews, Bartlett Wm., Bacon, Banister, Bond George, Bolyston, Blood, Cotton, Cleveland, Crawford, Crehore, Davis John, Estabrook, Frazer, Hale Nathan, Hall Nathaniel, Heard, Hoar Samuel, jr.. Hooper, Hunewell Jonathan, jr., Jackson Joseph, Little Moses, Little Josiah, Morton Perez, Messinger, Noyes Nathan, Pierce Varney, Perley, Phillips Wm., Phillips John, Perham, Pick- man, Q,uincy, Richardson James, Richardson Eli, jr., Russell Ben- jamin, Saunders, Saltonstall, Shillaber, Shaw, Sturgis, Storrs, Sulli- van Richard, Taft, Tuckerman, Tilden Joseph, Thorndike, Ware, Wade Nathaniel, Ward, Wells Samuel A., Webster Redford — 56. Absent 25. The third resolution reported by the same committee, respecting the limitation of the time for the governor's returning bills and re- solves sent to him by the Legislature for his approbation, was read a second time as amended in committee of the whole, and passed. The resolution for striking out " commissary general, notaries public, and naval officers" in ch. 2, sect. 4, art. 1, reported by the committee on the part of the constitution which respects the secre- tary, &c., and amended in committee of the whole, was read a sec- ond time. MASSACHUSETTS CONVENTION. 123 Mr. Fat of Cambridge observed that there was no provision in the constitution for supplying any vacancies which may happen, during the recess of the Legislature, in the offices of secretary and treasurer, and he wished therefore to amend the resolution, so as to provide that such vacancies should be supplied by the governor, with the advice and consent of the council. He said a law passed in 1792, authorizing the governor, with the advice of the council, to declare a vacancy in the office of treasurer, and to take proper steps for the security of the public papers and property until the Legislature should assemble. But the Legislature did not consider it competent to them to delegate their power to appoint a successor. A provision of the kind proposed was the more necessary, since it was contemplated to have but one session of the Legislature in,a year. With respect to the secretary, a law was passed in 1813, au- thorizing his deputies to act in such a case. This was, in fact, ena- bling the secretary to appoint his successor ; a proceeding which was contrary to the principles of our constitution. The president doubted, on a point of order, the propriety of tak- ing up a new subject which had not been debated in committee of the whole, and suggested that the proposed amendment should be referred to the select committee on the part of the constitution which respects the governor. Mr. Fay said he was aware that it might be referred to that com- mittee, or to a committee of the whole. He had had an intention of introducing the subject in the committee respecting the governor, as he happened to be one of the committee, but on further consider- ation he thought the proper place for the provision would be in th6 article respecting the secretary, (fcc. Upon a suggestion from Mr. Webster of a proposition he intended to make, Mr. Fay withdrew his motion. The question was then taken on passing the resolution, and de- cided in the affirmative. * The resolution reported by the committee on the part of the con- stitution respecting delegates to congress was then taken up. Mr. MoKTON of Dorchester renewed the motion he had made in committee of the whole to amend the resolution by striking out " expunged therefrom," and adding a provision that our senators and representatives in congress should be furnished with certificates under the hand of the governor, &c. He objected to striking out a whole chapter from the constitution, as the resolution proposes, and he doubted of the power of the Convention to do it under their authority to alter and amend only. The question was taken on Mr. Morton's amendment and lost. Considerable debate arose upon the concluding words of the res- olution, "expunged therefrom," and motions were successively made to substitute "annulled," and "become inoperative," and to lay the resolution upon the table ; all of which were lost. The question was then taken upon passing the resolution, and decided in the affirmative. On motion of Mr. Webster, it was ordered that the several com- 124 MASSACHUSETTS CONVENTION. mittees appointed in pursuance of the various resolutions adopted on the 17th inst., be standing committees until the end of the ses- sion. On motion of Mr. Fat, of Cambridge, it was then Besolved, That the committee on so much of the constitution as relates to the sec- retary, treasurer, &c., he directed to consider the propriety and expediency of so altering the same, as that in case either of the offices witliin the appointment of the Legislature shall become vacant ftom any cause during the recess of the General Court, the governor, with the advice and consent of the council, under such regula- tions as may be prescribed by law, shall appoint and commission a fit and proper person to fill such vacant office, who shall perform the duties thereof until a suc- cessor shall be, appointed by the General Court. Mr. Webster, from the committee on the 10th resolution passed on the 17th inst., submitted the following reports: The committee to whom it was referred to consider whether any, and if any, what alterations or amendments it is proper and expedient to make in so much of the con- stitution as is contained in the sixth chapter of the second part, and respects oaths and subscriptions, &c., ask leave to report the following resolutions : Resolved, That it is expedient so far to alter and amend the constitution, as to pro- vide, that instead of all oaths, declarations and subscriptions now required, all per- sons chosen or appointed to any office, civil or military, under the government of this Commonwealth, shall, before they enter on the duties of their office, take and sub- scribe the following oath of allegiance, and oath of office, viz.: " I, A. B. do solemnly swear, that I will bear faith and true allegiance to the Com- monwealth of Massachusetts, and will support the constitution thereof. So kelp me God." OATH OF OFFICE. " I, A. B. do solemnly swear — that I will faithfully and impartially discharge and perform all the duties incumbent on me as according to the best of my abili- ties and understanding, agreeably to the rules and regulations of the constitution And the laws of this Commonwealth. So help me God." Provided, that whenever any person, chosen or appointed as aforesaid, shall be of the denominatipn called Quakers, and shall decline taking said oaths, he shall make his affirmation in the foregoing form, omitting the word " swear " and inserting instead thereof the word " affirm," and omitting the words " So help me God " and subjoining instead thereof the words " This 1 do under the pains anapenallies of perjury." 2. Resolved, That it is proper ani expedient further to amend the constitution, so as to provide that no judge of any court in this Commonwealth and no person hold- ing an office under the authority of the United States, (postmasters excepted) shall at the same time hold the office of governor, lieutenant governor or counsellor, or have a seat in the senate or house of representatives of this Commonwealth, and that no judge of any court in this Commonwealth, the attorney general, solicitor general, clerk of any court, sheriff, treasurer or receiver general, register of probate, reg- ister of deeds, shall continue to hold his said office after being elected a member of the congress of the United States and accepting that trust ; but the acceptance of that trust by any officer aforesaid shall be deemed and taken to be a resignation of his said office ; and that judges of the courts of common pleas shall hold no other office under the government of this Commonwealth, the office of justice of the peace, and militia offices excepted. 3. Resolved, That it is proper and expedient further to alter and amend the con- stitution of this Commonwealth, so as to provide that if at any time hereafter any specific and particular amendment or amendments to the constitution be proposed in the General Coui-t, and agreed to by two thirds of the members of each house, pre- sent and voting thereon ; such proposed amendment or amendments shall be entered on the journals of the two houses, and referred to the General Court next to be chosen, and shall be published ; and if in the General Court next to be chosen as aforesaid, the said proposed amendment or amendments shall be agreed to by two thirds of the members of each house present and voting thereon, then it shall be the duty of the General Court to submit such proposed amendment or amendments MASSACHUSETTS CONVENTION. 125 to the people ; and if approved and ratified by a majority of the qualified voters, at meetings legally warned and holden for that purpose, the same shall become part of the constitution of this Commonwealth. For the committee, DANIEL WEBSTER. The committee on so much of the constitution as is contained in the sixth chapter of the second part, and who were instructed to inquire into the expediency and propri- ety of so amending the constitution as to authorize the General Court to grant to towns, in certain CEises, the powers and privileges pf a city government, ask leave to report the following resolution: Resolved, That it is proper to and expedient so far to amend the constitution, as to provide that the General Court shall have full power and authority to erect and con- stitute municipal or city governments in any corporate town or towns in this Com- monwealth ; and to grant to the inhabitants thereof such powers, privileges and im- munities not repugnant or contrary to this constitution, as the General Court shall : deem expedient or necessary for the regulation Sad government thereof; and to pre- scribe the manner of calling and holding public meetings of the inhabitants for the election of oflScers under the constitution : Provided, that no such government shall be erected or constituted in any town not containing inhabitants ; nor un- less it be with the consent and on the application of a majority of the voters of such town qualified to vote in town affairs. • For the committee, DANIEL WEBSTER. The committee on so much of the constitution as is contained in the sixth chapter of the second part, and who were instructed " to take into consideration the expedi- ency of so amending the constitution as to insert therein a provision substituting affirmations for oaths in all cases whatsoever, where the party shall entertain re- ligious scruples in regard to taking oaths," ask leave to report the following resolu- tion: Resolved, That it is not expedient to make any further provision by the constitu- tion, relative to the substitution of affirmations for oaths. For the committee, DANIEL WEBSTER. These reports were severally read, ordered to be printed, referred to a qpmmittee of the whole house, and made the order of the day for Friday, at 10 o'clock. The House adjourned. Thursday, Novembeb 30. The Convention met according to adjournment, and attended prayers made by Rev. Mr. Palfrey. The journal of yesterday's proceedings was read. Mr. Jackson of- Boston offered the following resolution : Resolved, That a committee be appointed to consider in what manner such amend- ments in the pl-esent constitution of government of the Commonwealth, as may be made and proposed by this Convention, shall be submitted to the people for their ratification and adoption, and in what manner their votes thereon shall be returned, and the result ascertained. He stated, that his object in making this motion, was to remove a diffixjulty which had frequently occurred in the course of the de- bate, from an uncertainty with respect to the form to which the amendments agreed to by the Convention should be reduced. For his part he had no doubt of the course proper to be pursued. He thought that they had no authority under the act under which they 126 MASSACHUSETTS CONVENTION. were convened, to reduce the constitution to a new draft, and if they had the power, he should not think it proper to exercise it. In that case, when the amended constitution was submitted to the people, they would be obliged to accept, or reject the whole. He_ thought it the most proper mode to propose the several amendments dis- tinctly, so that when submitted to the people, they may act upon each specific amendment, and adopt or reject them, according to their judgment of each. Otherwise they might reject the whole, on account of their objection to a particular article, and thus they would fail of their object, and all the labor of the Convention would be lost. He had thought that the subject might be referred to the chairmen of the several standing committees, but they had not yet all reported, and were therefore otherwise occupied. It would then be necessary to appoint a special committee for the pm'pose, and for that object he submitted the resolution. The resolution was then read and adopted, and it was ordered that the committee should consist of five members : The Hon. Judge Jackson, of Boston ; Judge Wilde, of New- buryport ; Mr. L. Lincoln, of Worcester ; Woodbridge, of Stock- bridge ; and Holmes, of Rochester, were appointed. Mr. PiCKMAN of Salem, from the committee on the part of the constitution relating to the lieutenant governor and council, called up the report of that committee, which was on Tuesday referred to the committee of the whole, and made the order of the day for 11 o'clock yesterday. On his motion the Convention resolved itself into committee of the whole, on that report — Mr. Varnum in the chair. The report of the committee was read, and it was voted that the several resolutions recommended in it should be taken up for consideration in order. The first resolution was then read as follows : Besolved, That it is expedient and proper to alter and amend the constitution of this Commonwealth, by striking out in the first article of the second section of the second chapter thereof, relating to the lieutenant governor, the following words: — " In point of religion, property, and residence in the Commonwealth." Mr. Pickman said it was his duty and right, as chairman of the committee which made the report under consideration, to explain the views which had led them to the adoption of the principles of their report. But in this case he was in the peculiar situation of being opposed to the resolution under consideration, which, as chairman, he had reported. The resolution was recommended by a bare majority of the committee, and after stating this fact, and that it was in opposition to his own sentiments, he should give an opportunity, to gentlemen of that majority, to explain their reasons in favor of it. As far as he understood the reason, it was that they were opposed to the requiring of any religious test as a qualification for the office of lieutenant governor. Mk. Bangs of Worcester said the gentleman had misapprehend- ed the reason which influenced the majority of the select com- mittee in regard to this resolution. It was not because they wished MASSACHUSETTS CONVENTION. 127 to show their disapprobation of a religious test that they were in favor of the resolution, but because they thought this amendment would meet the views of the Convention. The question respecting the test, it was supposed, would be determined more conveniently upon the report of the committee on the part of the constitution which respects oaths, &c. Mr. Bangs concluded by moving to postpone this resolution until the Convention had come to a decision upon that report. This motion was agreed to, and the committee proceeded to the second resolution. Mr. Bangs moved to amend the report by inserting a resolution that it is expedient to amend the constitution by making a provision in part 2, ch. 2, sec. 2, art. 2, that the lieutenant governor . shall receive the same compensation as other members of the council, and no more, unless called to perform the duties of the governor when a vacancy shall take place in that office, in whifch case he shall have the same salary as the governor. Mr.' Bliss of Springfield wished, as the subject was new to a majority of the committee, that it might be postponed. Mr. Bangs said he had no objection to that course. Mr. Parker (the President) said the question was a simple one, whether the lieutenant governor should have a salary or not! He thought it was unnecessary to have a postponement. Mr. Bangs said he proposed the amendment in compliance with what he conceived to be the general wish of the people in the part of the State in which he resided. They thought that the office of lieutenant governor was unnecessary, under existing circumstances, and there, was a general expectation that it would be abolished. For himself, he was in favor of retaining the office. It was founded by our ancestors ; it added to the honor and dignity of the State ; but the reason which had most weight with him, was the propriety of designating a successor to the chief magistrate in case of his decease. But the people were unwilling that the lieutenant gov- ernor should receive a salary for doing nothing. He has a compen- sation for his services as a counsellor;* this was sufficient. By giving him a salary besides, the Legislatiu:e had established a sine- cure, which was a monster in a republican government. The salary of five hundred dollars, he said, conferred no honor on the State — it was a pitiful sum. He would give nothing at all, or he would give a liberal salary. The sum however had nothing to do with his objections to the salary. It was the principle of a sinecure to which he was opposed. Giving a salary to the lieutenant gov- ernor was contrary to the principles and intention of the constitution. The constitution says the governor shall have a salary ; it does not say so with respect to the lieutenant governor — and yet the Legislature annually grant him a salary. He had understood that the lieutenant governor used to have fees and perquisites, as Cap- tain of the Castle ; and when these were relinquished by the ces- sion of the castle to the United States, the Legislature gave this 128 MASSACHUSETTS CONVENTION. salary of five hundred dollars as an equivalent ; but this was not intended by the constitution. It will be said we should not in the constitution, fix the precise sums for salaries. He was of the same opinion ; but there was a great difl"erence between fixing the amount of a salary and determining that there should be no salary at all. This amendment, he said, was not mailing any change in the con- stitution ; it was only making more explicit what was already intended by that instrument. But what if it was a change ? he came there to touch that instrument, not with a trembliag hand, as some gentlemen seemed to have come. He would touch it with a cautious, but at the same time with a firm hand, and amputate such parts as were diseased. Mr. PicKMAN thought this subject was not a proper one to be debated lq that body. It had better be left to the Legislature to determine whether a salary should be allowed or not. The mem- bers of the Legislature as well as those of the Convention were chosen by the people and represented the people. The constitution should guard against such abuses as the Legislature would be "under temptation to commit, but it should not be jealous of the Legisla- ture. The two branches of that body were rnore suitable to dis- cuss this subject, as they could frame their decisions according to the exigency of the times, and the Convention had better leave the power of deciding, where the constitution leaves it. Mr. P. did not agree with the gentleman from Worcester that this office was a sinecure. The lieutenant governor always kept himself ready to act in the council when wanted ; it was not so with the other coun- sellors. He had also the more arduous task of presiding in the council in the absence of the governor ; it was his duty to hold himself in readiness to supply a vacancy in the governor's office, and he was disqualified with respect to holding other offices. Mr. Slocum of Dartmouth said, dignities and sound were a pleas- ing thing, but we ought not to give too much for them. He did not wish duty to be performed without compensation, but he was not satisfied that the duties of the lieutenant governor deserved greater compensation thah his pay as a counsellor. Every body was glad at this opportunity for revising the constitution, because we could begin to economize, and there was no reason why ' we should not begin it at the head. The money to pay the salary of the lieutenant governor was to be drawn from the laboring part of the community, and he wished the office might be abolished as a useless one, but as that was not the question before the committee, he hoped the compensation to be allowed would be only as much as the compensation of a counsellor. Mr. Button. The amendment under consideration provides that the lieutenant governor shall have no salary, except during the time he acts as governor. I am opposed to the amendment. The only argument in favor of it is, that the office is a sinecure. I do not admit the fact. The lieutenant governor has high and impor- tant duties to discharge. In case of the death, or absence, or dis- MASSACHUSETTS CONVENTION. 129 ability of the governor, he is to perform all the duties that pertain to the office of governor. It will be recollected, Sir, that the gov- ernor and lieutenant governor are the only officers who are elected by the whole people. This is a wise provision, and secures to the people a governor elected by themselves. It has been the practice of other states and of the United States, to establish an office second in rank and dignity to that of the chief magistrate, to be filled by some distinguished man, and elected with a view to his discharging the duties of chief magistrate in certain specified emergencies. Be- sides, sir, in consequence of his rank and dignity, he is put to an additional expense. It ofteli happens, that he is obliged to do the honors of the Commonwealth, to notice strangers of distinction, and these civilities are attended with expense. Is it reasonable then, is it just, to clothe a man with an office, which subjects him to expense, without providing at least an indemnity. Sir, I believe the present lieutenant governor expends more than his whole salary in consequence of his office. But there is another objection to the amendment, which appears to me to be conclusive, and that is this : — it is a matter which belongs to the discretion of the Legislature. It ought to be left there, as the salaries of the other officers are. But this amendment goes to tie up the- hands of all future Legisla- tures, and puts it forever out of their power to provide any compen- sation, under any circumstances, for the lieutenant governor. To insert such a provision as this, into our constitution, has to my mind an air of littleness, not altogether becoming the dignity of the Convention. I am aware, sir, that the amendment provides, that when he acts as governor he shall be paid as governor, that the State may be charged in account with so many months and days service, as governor. But, sir, these offices are too important and dignified to be dealt with in this way ; and I trust we shall leave the subject where the constitution has left it — to the discretion of future Legislatures. Mr. Childs of Pittsfield said he would not be deterred by the in- timation of the gentleman from Boston of the littleness of this meas- ure. He considered it a principle that they were to establish ; that there should be no sinecures in the government. If the gentleman would define what was meant by a sinecure, and if the office of lieutenant governor was not a sinecure, he did not know how the word should be defined. He considered that office a sinecure, in which the incumbent rendered no services. He differed from the idea of the gentleman from Salem, that this was not a place to fix principles. He thought it was peculiarly the place to fix principles, and that the Legislature was not the place. By the constitution, the representation in the senate was proportioned to property, and that in the house of representatives to population. Were not these principles to be determined by the constitution, and not by the Leg- islature ? I do hold that the office of lieutenant governor is a sine- cure, and that we are called upon to fix the principle that no sinecure shall exist in the government. The antiquity of the office does not 17 130 MASSACHUSETTS CONVENTION. prove that it is not a sinecure. He hoped that the question would be decided on principle, and he was for that reason in favor of the amendment. Mr. Austin of Charlestown said he was sorry the gentleman from Worcester had not made a different motion. He was not disposed to make a motion himself, after the lamentable fate which had at- tended the last one he made, but he hoped the gentleman would vary his motion so that the proposition should be to abolish the office of lieutenant governor ; for if it was not a sinecure, it was at least a quasi sinecure. He should not vote for the gentleman's present motion. As the office was the second in the government, he should think it derogatory to request gentlemen to fill it for nothing. The present salary was not sufficient to support the courtesies which were expected from the incumbent. He did not mean to encourage pomp and splendor, which were contrary to the genius of our insti- tutions, but men high in office were unavoidably" exposed to addi- tional expenses on account of their office. It would no doubt be useful to appoint a successor to the governor, and one might be found in the president of the senate. Mr. Blake of Boston repeated the declaration which he had before made, that he would not assent to the change of a single feature of the constitution which should have a tendency to change its repub- lican character. He was opposed to the present amendment because it was anti-republican. The office was necessary, for the case might occur, and had already occurred, when all the duties of chief magis- trate would devolve upon the lieutenant governor. In such case it was proper, if the governor had any compensation, that the lieuten- ant governor should have it. These two offices come directly from the people. Some gentlemen would take away the choice from the people. They would have the office devolve upon a person chosen for another purpose, and in whose designation to perform the duties of chief magistrate the people would have no direct voice. The office was called a sinecure. Was it so ? The lieutenant governor is a member of the council and president of that board. They are sometimes in session from month to month. Other members may be absent, but the lieutenant governor cannot, as presiding officer — he has greater responsibility. The proposed alteration was anti-re- publican, because if it prevailed none but a man of wealth could be lieutenant governor. He is often required to represent the executive of the Commonwealth. He is bound in the absence of the gover- nor to receive strangers of distinction with the hospitality becoming the head of the Commonwealth. Who can perform these duties but a man of wealth or a man who has a compensation ? ' By with- drawing the salary we pronounce that none but a man of opulence can fill the office. The performance of these duties is called mere show and pageantry. He asked if the framers of tjie constitution were men of pomp, show and pageantry ; if the times in which the constitution was formed were suited for the indulgence of this dis- position ? If the office of lieutenant governor was important and MASSACHUSETTS CONVENTION. 131 necessary at the time of the formation of the constitution, when the population of the Commonwealth was comparatively small, was it not much more so now ? He referred to the example of the United States constitution, which requires a vice-president who has a per^ manent salary, and who is chosen not principally to act as president of the senate, hut that there may he a person chosen hy the majority of the people for the express purpose of acting as chief magistrate in case of necessity. Mr. HoAK of Concord said that if gentlemen would review their argument in support of this motion he thought they would be satis- fied that it was inconclusive. They state that the ofiice is a sine- cure, and if it is not, they do not understand the meaning of the term, and for this reason there ought to he no salary attached to it. But will they vote for an office which is a sinecure ? Their argu- ment is founded on the principle that there should be no sinecures, yet they vote for the office and object to the salary because th* office is a sinecure. -Mr. H. thought that if the principle on which this amendment was founded were to be pursued it would lead to an endless discussion. They should on the same principle restrict the Legislature in relation to' every other office, and they should be en- gaged in digesting a fee bill for all the offices of the State. This would involve an inquiry into a thousand minute considerations which he was not willing to go into. If the office was a sinecure, which however he did not think, if it was of no use, it ought to be abolished. But this was not the question now before the committee. Mr. Apthorp of Boston thought that upon the same principle on which we would prohibit the giving of a salary to the lieutenant governor we should limit the authority to give salaries to the treas- uref, secretary and other officers. But this was a subject much better left to the wisdom and discretion of the Legislature. The lieutenant governor has important duties to perform, and it may hap- pen that still more important duties shall devolve upon him. He is always bound to be in readiness 'to perform the duties of chief mag- istrate ; he is placed under a restraint, and subjected to expenses, for which he ought to be in part compensated. A member whose name we did not learn, disliked the amendment, because he thought the office unnecessary. To give time for the mover to substitute a resolution to abolish the office altogether he moved that the question be indefinitely postponed. The Chairman said an indefinite postponement could not take place in committee — it must be in Convention — and it would then be a postponement of the whdle subject. Mr. Dana of Groton said he had thought the office had better be abolished, but the discussion had given him better views of the sub- ject. He now thought it was proper that some person should be design9,ted by the people to supply a vacancy in the chair of the chief magistrate. The whole council, or the president of the senate, or the oldest or youngest counsellor might be appointed by the con- stitution to succeed, but it would not be so convenient ; as it would 132 MASSACHUSETTS CONVENTION. be necessary to keep in mind at the elections, that the counsellors and senators should be qualified not only for those offices respectively, but likewise for the ofiice of governor. He thought however that the constitution did not contemplate the lieutenant governor's hav- ing a salary. And this was to be deduced from contemporaneous con- struction, if that was of any force, for no salary had been attached to the office for several years after the adoption of the constitution. Mr. Hinckley of Northampton mentioned a circumstance which had occurred under our present constitution, of the office of governor having once immediately after the election, devolved on the lieuten- ant governor, who administered it through the whole year. He thought gentlemen were blending two distinct questions. It was one question whether we should have a lieutenant governor, and an- other whether he should have any salaxy. The Legislature had al- ways determined what were the pecuniary resources of the state and how they should be applied. It is for us to say only whether there shall be such an officer ; we should say nothing about his com- pensation. He never heard any objection made to the office, and he did not think that in his part of the country scarcely a vote would be given against retaining it. . This however was not the qiiestion before the committee. He said if it was requisite that the lieuten- ant governor should be at his post, that he should preside at the coimcil board — if the duties of a presiding officer are more difficult than those of another member, the Legislature ought to have power to make him a compensation. As to the lieutenant governor's be- ing always a wealthy man, keeping a sumptuous table and living in splendor, this was entirely out of the question. Mr. Stokt of Salem said he did not object to a thorough exami- nation of the constitution and making such amendments as were salutary. Those parts which were weak he would strengthen, and those which were useless he would strike out. They were not mak- ing a law which could be repealed, but a constitution which could not be altered. He said there was very great weight in the obser- vation of the gentleman from Salem, (Mr. Pickman,) that they should not bind the discretion of the Legislature except where it was liable to abuse. They ought to have confidence in the Legis- lature"; this principle was congenial to the nature of our govern- ment. It was incumbent on gentlemen who proposed any change in the constitution, to show the necessity or expediency of the measure. Had gentlemen shown any necessity or expediency in the present case ? Was any gentleman so wise, of such foresight, as to be able to say that in all future times and in all the vicissitudes of human afiairs, it would never be necessary to have such an officer as that of lieutenant governor — that his duties would never become important, and that they would never deserve any compensation ? He would pass over the arguments that we ought not to have a lieutenant governor, not because he was not prepared to show the importance of having that office, but because it was not the question before the committee. MASSACHUSETTS CONVENTION. 133 The learned gentleman then proceeded to argue, with great force and eloquence, that the office so far from being a sinecure had im- portant duties — ^that it was an office of great dignity and responsi- bility—that if no compensation is given, none but wealthy citizens can accept the office — that it is not to be expected that the person best qualified for the office will always be able, like the good, virtu- ous and pious individual, so distinguished for his extensive muni- ficence and benevolence, who has for several years filled the office, to dispense with a suitable compensation for his services — ^that the lieutenant governor cannot avoid incurring expense in consequence of his office — that it was not a republican principle to be obliged to choose a rich man who will serve without compensation, or a poor one to be corrupted — ^that it could not be expected that good, able, and faithful men should be found to serve the public without a suit- able compensation — and that it was no economy to starve men in office. Mr. Flint of Reading concurred in the views expressed by the gtentleman who preceded him. The question of compensation to the lieutenant governor belonged to the Legislature. If the Convention, should adopt this amendment; it was saying to the people of the Commonwealth that they could not choose another body of men fit to be trusted. It was an afiront on the people. It was attaching more consequence to themselves than they were entitled to. He objected to tying up the people by unnecessary restrictions. They had present experience of the injurious effect of superfluous limita- tions. Had it not been for six words in the constitution, relative to the apportionment of senators, the people never would have called this Convention. He stated other reasons against the amendment. Mr. Mitchell of Bridgewater spoke in favor of the amendment, and Mr. Holmes of Rochester, against it. The question was taken on the amendment, and decided in the negative — 105 to 282. The second resolve was then read in the following words : Resolved, That it is expedicint and proper to amend the same, by striking out in the first article of the third section and same chapter, relating to the council, &c. the ■word " nine," and insert " seven ;" also the word " five," and insert " four." Mr. PicKMAN explained the reasons of the committee for recom- mending a reduction of the number .of members of the council from nine to seven. They were in substance, that by the separation of Maine from the Commonwealth the duties of the council would be considerably diminished — that in fact for many years past it has been the practice to choose seven of the nine counsellors from Massachu- setts proper — ^that this number would be as adequate to perform the duties as nine before the separation. If the number of members be established at seven it would be proper to reduce the number required at a quorum to four. Mr. Bliss of Springfield was opposed to the amendment. He con- sidered the duties which devolved upon the coimcil as extremely im- portant, a^d he could not consent that two or three men should have 134 MASSACHUSETTS CONVENTION. the performance of those duties. If four members axe to form a quonmi they can perform all the duties of the council. Suppose the governor and lieutenant governor to reside in this vicinity, £ind three counsellors to be chosen from three adjacent counties, we should have the whole executive department of the Commonwealth within a cio cuit of ten miles from the metropolis. This was a case not unlikely to happen. There was nothing to control the governor from calling a council when he jJeases. Suppose a vacancy to occur in an im- portant office, and the council to be summoned upon a short notice, it would be impossible that the distant members should attend, and the duty of making the appointment would fall upon the members in this vicinity. He knew that the governor must have a discretion to sUlnmon the council at pleasure — that exigencies might arise that would admit of no delay — that it was important that a' considerable part of the executive government should reside near the metropolis. Yet it was also important that every part of the Commonwealth should be represented in this department of the government. He thought that if but seven were to be chosen to the council, five should be required to be present on making appointments. Mr. Pic KM AN said as he was called upon he hoped he should be excused from rising again. He was surprised at the objection made by the gentleman from Springfield. There was a general expecta- tion that the council would be reduced, and he had expected that gentlemen would be in favor of a greater reduction. He thought that seven was a sufficient riumber. Before the separation, the coun- cil in efiect consisted but of seven members, as the gentlemen from Maine on account of their great distance seldom attended. The ob- jection of the gentleman existed as forcibly against the old arrange- ment as against that now proposed. To eff'ect a more general dis- tribution of the members, it was proposed that but one should be chosen from a county, instead of two, the present limitation. He did not believe that we ever had or ever should have a governor who would undertake to nominate to an important office, and to have the nomination confirmed, without notice to all the members. It was not to be supposed that he would venture to appoint a chief justice when the members from this vicinity only were present. It was a sup- position too improbable to be admitted. It weis necessary on account of emergencies that may arise, that a quorum of the council should be within a convenient distance. It was even now 'often difficult to obtain a quorum. The compensation was too small to induce mem- bers to. give up their time entirely to the duties of the office. It was a sacrifice not to be expected. It was necessary that the quorum should be small, and one which could be formed from members with- in a short distance from the seat of government. The diflference be- tween five and four could make no difference in the gentleman's argument, as it required the same number to ma.ke a majority in one case as in the other. Mr. Fat of Cambridge wished to say a few words in re]jly to the gentleman from Springfield. His objection supposed that a fraud MASSACHUSETTS CONVENTION. 163 might be committed by the governor, which was not to be presumed ; and if committed would subject him to impeachment, or that the council might be taken by surprise, which event could not happen, as nominations are required to be made seven days before the ap- pointment takes place. Mr. Bliss had not forgotten that all appointments to judicial of- fices were made only after seven days' notice, but the Legislature were continually creating important offices, in the appointments to which no such notice was required. He knew that important ap- pointments had been made when some members of the council did not know even that any meeting of the council had been held, and he saw no reason why such cases should not occur again. He did not impute fraud to any one. The duties of the office were now much greater than when the constitution was established. He was not satisfied that the coimcil ought not to be differently con- stituted. Mr. Blak£ was not satisfied with the reasons given by the gentle- man from Salem for the proposed alteration. He had not shown that it was necessary or clearly expedient. He proceeded to argue that the duties of the council were as arduous and important now, as at the time of the adoption of the constitution. The qtiestion was then taken and the resolution adopted — 281 to 80. The next resolution was then read as follows : Resolved, that it is expedient and proper to amend the same by striking out the whole of the second article of the same section and insert, " seven counsellors shall be annually chosen from among the people at large on the day of by the joint ballot of the senators and representatives assembled in one room." Mr. D. Davis of Boston thought that there was a defect in the resolution. There was no provision for the qualifications of the counsellors. Under the present constitution it was required that the counsellors should be first chosen from the senate. It was proposed now to dispense with that requisition. Yet he presumed it was in- tended that they should now be qualified in a similar manner. If so, some further provision was necessary. Mr. PicKMAN agreed in- the propriety of this suggestion. Some further remarks were made on this subject by hiin, and several other gentlemen. Mr. Freeman of Sandwich, after stating the reasons for his motion, moved to strike out the word?, "from among the people at large." The motion was negatived. Mr. Bond of Boston suggested that some provision was necessary for supplying vacancies. The resolution makes it imperative that the seven members should be chosen on a certain day. Some other remarks were made by him and other gentlemen on this point. Mr. Bliss was not satisfied with the article. He thought it not necessary to take away from the people their voice in the choice of counsellors. He was against the innovation. He saw no good and^ there might be evil in it. 136 MASSACHUSETTS CONVENTION. A motion was made that the committee should rise. But the motion was withdrawn at the request of Mr. Parker (the President) who wished to propose an amendment. It was required that the counsellors should be qualified by taking the oaths in presence of the two houses of the Legislature. It sometimes happened that gen- tlemen elected could not attend during the. session, and the incon- venience would in future be still greater if there was to be but one session in the year. He therefore offered a resolution providing for such £in amendment, that if all the counsellors elected should not attend so as to be qualified in convention of the two houses, they shall be qualified before the governor and such counsellors as have been previously qualified. Mr. Davis moved to amend the resolution before the committee, by inserting after the word room, " who shall have the same quali- fications as are required by this constitution for senators of the Com- monwealth." The committee then rose, reported progress, and asked leave to sit again, which was granted. Mr. Story of Salem, from the committee on the judiciary, sub- mitted the following reports : — The committee to whom was referred so much of the constitution of this Common- wealth as is contained in the third chapter of the second part and respects the Ju- diciary power, with directions to take into consideration the propriety and expediency of making any, and if any, what alterations or amendments therein, and to report there- on, have attended to the duty assigned to them, and respectfully ask leave to report — That they have taken into consideration the several articles respecting the.ju- diciary power and are of opinion that some amendments and alterations may be made therein which will conduce to the public good, and extend the blessings we already derive from an upright and impartial administration of the laws. By the first article of the constitution, any judge may be removed from his office by the governor, with the advice of the council, upon the address of a bare majority of both houses of the Legislature — the committee are of opinion that this provision has a tendency materially to impair the independence of the judges, and to destroy the efficacy of the clause which declares they shall hold their offices during good behavior. The tenuis of good behavior seems to the committee indispensable to guard judges on the one hand from the effects of sudden resentments and temporary prejudices, entertained by the people, and on the other hand, from the influence, which ambitious and powerful men naturally exert over those who are dependent upon their good will. A provision which should at once secure to the people a power of removal in cases of palpable misconduct or incapacity, and at the same time secure to the judges a reasonable permanency in their offices seems of the greatest utility ; and such a provision will in the opinion of the committee be obtained by requiring that the removal, instead of being upon the address of a majoriiy, shall be upon the address of two thirds of the members present of each house of the Legislature. And this provision has the additional recommendation that it is engrafted into the con- stitution of some of the other states, and exists in analogous cases in the constitution of the United States. There is also a supposed ambiguity in the first article which has given rise to a question whether the justices of the peace were removable from office upon ad- dress, as other judicial officers are. The committee are of opinion that this ambi- guity ought to be removed, and have endeavored to effect that object by a slight change of the phraseology. The committee are further of opinion that it will be for the public good that the Legislature should have authority to create a supreme court of equity, distinct from •^p, supreme court of law, whenever exigencies of the public service shall demand Courts of equity seem indispensable to a perfect administration of public justice, MASSACHUSETTS CONVENTION. 137 since there are many cases of trusts, confidences, complicated accounts, partnerships, contributions among heirs and devisees, and above all oi frauds, which can scarcely admit of complete relief in any other tribunals. The Legislature under our present constitution, have undoubtedly full power to create a court of equity. But it is believed that such a court must, by the present frame of government, be subordinate to the supreme judicial court, and appeals must lie from its decrees to that court. It may become necessary, and in the judgment of the commitfee it is highly import- ant, that the Legislature should possess the power to form at its pleasure an indepen- dent supreme court of equity, of equal dignity with the supreme court of law, whose decrees should not be re-examined except by some superior tribunal common to each and independent of each. This may be effected by giving power to the Legislature, if in its judgment the public good shall require it, to establish a court of appeals, where the judgments of the supreme courts both of law and equity might be subject to revisions, under such regulations as the Legislature shall direct. Of such a court the judges of the supreme courts of law and equity might, ex- ofiicio, be members, entitled to give their reasAns on all appeals from their own de- cisions, but having no voice in the final sentence of affirmance or reversal of their own decisions. The other members of such court might be appointed and hold their offices by such a tenure as the Legislature might direct. There would be dignity and importance in such offices ; and probably either by making certain high officers ex-officm members of such court, or by appointments of some of our most distinguished citizens to such offices, as offices of honor only, the court of appeals might be made a court of great utility and security, as well to the citizens as to the government, at a very inconsiderable expense. The committee are of opinion that there is not any material objection to giving to the Legislature the proposed powers, since it will always be in the option of the Legislature to exercise them or not, and resting on the legislative will, they wUl never be exercised for any length of time, unless they are found essentially to promote the public interests. The committee are further of opinion that the second article respecting the ju- diciary power is of very questionable utility, and may lead to serious embarasSments and is therefore not necessary to be retained in the constitution. The question pro- posed by the Legislature or by the governor and council to the judges may deeply affect private rights and interests, and they must almost inevitably be decided by them, without the important benefit of an argument. It is contrary to the general theory of a republican government that the right or property of any citizen should be taken away without an opportunity of being heard upon the questions of law which those rights and that property may involve. Another class of cases of a more public character may be referred to the judges, involving questions of general inter- est, of political power, and perhaps even of party principles — and thus the proper responsibility of the public fiinctionaries may be shifted upon judges who are called upon only to decide, and not to act. It is desirable, as far as possible, to remove the judges of the supreme court from any connection with the other departments of the government, either executive or legislative, so that in the performance of their own proper duties in the administration of civil and criminal justice, they may continue to possess unimpaired the reverence and affection of the whole people. The committee propose no essential amendment in the third article, other than a provision that notaries public should hold their offices by the same tenure as justices of the peace, and should be removable from office in the same manner. The committee are of opinion that the fourth article requires no amendment; and that the fifth article has become inoperative, in consequence of the jurisdiction in causes of marriage, divorce and alimony, and appeals from the judges of probate having been by law transferred to the supreme judicial court, and therefore it is not necessary to be retained in the constitution. , , . The committee beg leave to recommend to the Convention the adoption of the ac- companying resolutions. All which is respectfully submitted. By order of the committee, JOSEPH STORY, Cfctiman. Resolved, That the first article of the third chapter of the constitution respecting the judiciary power ought to be amended, so that " all judicial officers duly appomt- ed, commissioned and sworn, shall, except when the constitution otherwise provides, hold their offices during good behavior ; but the governor, with the consent of the council, may remove any judicial officer upon the address of two thirds of the mem- bers present of each house of the Legislature." 18 138 MASSACHUSETTS CO]MVE>'TION. That the Legislature may, if the public good shall require it, establish a supreme court of equity, distinct from the supreme court of law. But questions of fact in suits in equity, shall, if either party require it, be tried by a jury in such court aa the Legislature may direct That the Legislature may, if the public good may require it, establish a court of appeals, to revise the decisions of the supreme courts of law and equity, under such regulations and restrictions, as may by law be prescribed ; which court shall consist of not less than members, nor more than members. The judges of the supreme courts of law and equity shall ex-officio be members of such court of appeals ; and may respectively assign the reasons of their own decisions, but they shall have no voice upon the question of a reversal or affirmance of their own decisions. The other judges of tlie court of appeals shall be appointed and hold their offices as the Legislature shall direct. Resolved, That it is inexpedient to retain the second article of the same chapter of the constitution, requiring the judges of the supreme court to answer questions propbsed to them by the governor and council, or either branch of the Legislature. Resolved, That the third article of the same chapter of the constitution ought to be amended, so that justices of the peace and notaries public shall hold their offices during seven years, if they shall so long behave themselves well ; and upon the ex- piration of any commission the same may, if necessary, be renewed, or another per- son appointed, as shall most conduce to the well being of the Commonwealth, and they may be removed, from office by the governor with the consent of the council, upon the address of two-thirds of the members present of each house of the Legisla- ture. Resolved, That it is inexpedient to retain the fifth article of thersame chapter of the constitution, which gives jurisdiction to the governor and council of causes of mar- riage, divorce, and alimony, and appeals from the courts' of probate. The committee to whom was committed the resolution of the Convention to con- sider the propriety and expediency of providing in the constitution that the person of a debtor, where there is not a strong presumption of fraud, shall not be committed to or continued in prison after delivering up on oath or affirmation all his estate, real and personal, for the use of his creditors, in such manner as shall hereafter be regu- lated by law, have attended to the duty assigned them and respectfully ask leave to report. That by the existing constitution, the Legislature possess full power to make the provision contemplated by tlie resolution, if in its judgment the public good require it ; and, therefore, it is inexpedient to insert in the constitution any specific clause on the subject. The committee beg leave to report the accompanying resolution for the adoption of the Convention. All which is respectfully submitted, by order of the committee. JOSEPH STORY, Chairman. Resolved, That it is inexpedient to insert in the constitution any provision, " that the person of a debtor, where there is not a strong presumption of fraud, shall not be committed to, or continued in prison, after delivering up on oath or affirmation all his estate, real and personal, for the use of his creditors in such manner as shall here- after be regulated by law. On motion of Mr. Story, the reports were severally committed to a committee of the whole, ordered to be printed, and made the or- der of the day for Monday next, at 12 o'clock. Mr. GuKNEY of Abington had leave of absence on account of the sudden death of his father. The House adjourned. Friday, December 1. The House met at 10 o'clock, and attended prayers offered by the Rev. Mr. Jenks. The jotirnal having been read, MASSACHUSETTS CONVENTION. 139 The Convention resolved itself into committee of the whole on the unfinished business of yesterday, Mr. Varnum in the chair, and the further consideration of the third resolution was taken up. Mr. Bliss of Springfield moved -to amend the report, by striking out all that part of the third resolution, after the word chosen, and substituting the following, viz. : " From among the persons returned for counsellors and senators, on the day of by the joint ballot of the senators and representatives assembled in Conven- tion, and the seats of the persons thus elected from the senate shall be vacated in the senate, and the remaining senators left shall constitute the senate for the remainder of the year." Mr. Bliss said, if he understood the chairman of the committee who made the report, he thought the constitution ought to have been construed in conformity with the mode which he now pro- posed. He, Mr. B., had no doubt that this construction was correct, and that it was the original intention that the persons elected as counsellors and senators, should be considered liable to be trans- ferred from the senate to the council, and, when selected, that theii' seats should be vacated in the senate. Nothing, therefore, was necessary, but to correct the improper procedure which had arisen under the constitution. Not more than a half a dozen cases had oc- curred within twenty years, in which the senators elected to the council have accepted the appointment, and almost all the persons elected as counsellors and senators, have considered themselves elected, in fact, only as senators. He thought this course had been incorrect under the constitution as it now stands. It was in con- formity with the genius of the constitution, that public officers should be elected directly, when it can be done, by the people. He was not tenacious of this particular method ; he should be willing that the counsellors should be chosen in districts ; but as this propo- sition makes less alteration in the original forms of the constitution, and as it was easy to correct the erroneous procedure which had grown into practice, from circumstances which he hoped the Com- monwealth would not again be placed in, he thought this course would be best. The only amendment necessary would be to make it peremptory on the senators elected, either to vacate their seats altogether, or to accept their appointment to the council. The selection would commonly be made in conformity to the wishes of persons elected, and of the electors. He saw no difficulty ia this method, and he preferred it to taking away the choice entirely from, the people. Mr. Wells of Boston approved of the proposition, except that he wished it to have one modification. He therefore moved to amend the amendment by inserting the words " not more than one coun- sellor shall be elected from one county." Mr. Bliss said that this object was already provided for in a sub- sequent resolution reported by the committee. Mr. Wells withdrew his motion. Mr. Button thought there would be a difficulty in proceeding 140 MASSACHUSETTS CONVENTION. with the amendment at this time. It is proposed to choose the counsellors from the senate, without liberty to resign. He under- stood that the committee who have that part of the constitution under consideration which relates to the senate, would form that body without any reference to counsellors. If this amendment pass, the council must be taken from the senate, which may embarrass the report of the committee. He would suggest the propriety of a postponement of the amendment till that committee should report. The Chairman inquired if the gentleman from Boston intended to postpone the whole resolution, as that would be the consequence of postponing the amendment. Mr. DuTTON did not insist on the motion, if such would be the effect. Mr. Freeman of Sandwich said he was opposed to the resolution of the committee. The idea which was suggested yesterday by the gentleman from Salem, (Mr. Pickman) was new to him, that the constitution intended that counsellors chosen from the senate should be under an obligation to accept the appointment ; but he was per- suaded it was the true construction, and he considered it one of the most beautiful features in the constitution ; but it had been distorted by the practice of the last twenty years. He was now more im- pressed with the sacredness of the constitution, and would not change it in this particular. He objected to the principle of the resolution, as it was going to deprive the people of a voice in the choice of counsellors. He likewise considered the senate, or a por- tion of it, as the proper advisers of the governor, and on this ground was opposed to the resolution. Mr. Locke of Billerica, to obviate the gentleman's objection to continuing the discussion, mentioned that the committee on the part of the constitution which respects the senate, had proceeded so far as to agree to report that the senators ^ould be distinct from the coun- sellors, and he wished that the question before the present committee might be determined before the select committee on the senate made their report. Mr. Parker (President) thought there would be great incon- veniences in the mode of election proposed in the amendment of the gentleman from Springfield. The forty persons elected as counsel- lors and senators had generally been chosen without any reference to their qualifications for the office of counsellor, and in consequence the practice had arisen of electing members from the senate board with the understanding that they should resign, and afford the oppor- tunity of choosing counsellors at large. The practice had been a disgraceful farce, and ought now to be remedied. But the remedy now proposed would increase instead -of remedying the evil. It was proposed that seven persons should be appointed from the senate, without any right to decline vacating their seats there. The gen- tlemen chosen to the senate generally accept with the expectation of remaining in that body, because the chance of being one of the seven elected to the council would be too small to influence their MASSACHUSETTS CONVENTION. 141 detemiiftation in accepting the choice. Any one so elected would be liable to be transferred to the council in opposition not only to his own wishes, but to those of the people who elected him, and deprived of any voice in the legislative department of the govern- ment. There is another objection. The senate are elected by the majority of votes in their several districts, and, consequently, a majority of the senate will be in con- currence with the opinions of the majority of the people voting for them. But it will be in the power of the two branches in Conven- tion to change this majority ; to put a stop on the voice of any seven of the members, to put thein asleep in the council, and, thereby, to change the majority of the senate to a contrary opinion. It wUl thus be in the power of the house of representatives, which being the most numerous body will commonly control the vote in Con- vention, to take away the check which the senate should have as one of the branches of the legislature, by changing the majority in such manner as to bring it in concurrence with the majority of their own body. It would also be a restraint upon the people in the choice of their senators. There may be men willing to serve in the senate, especially if there is to be but one session of the Legislature, who would not be willing to be subject to be called to the seat of government at every meeting of the council. They would always be compelled to choose men prepared to perform the duties of either oiiice, without knowing which it was to which they could be called. Mr. Foster of Littleton was opposed to everything like a wheel within a wheel. It was proper that the people should know what they were voting for. It was best to choose senators separately and counsellors separately. He thought thirty-oiie was a suitable num- ber for the senate, and was pleased when he was informed that gen- tlemen had thought of establishing that number. But if seven should be taken out of thie senate, it would be too much reduced, and he hoped the amendment of the gentleman from Springfield would not prevail. Mr. Morton of Dorchester was in favor of having the counsellors elected by the people ; and if it was proposed to separate the coun- sellors from the senators, he thought that both might be conveniently elected by districts. He was opposed to the amendment, as it would enable the majority of the house of representatives to take from the senate just such a council as they pleased, and leave such a majority in the senate as would coincide with their own political views; since the amendment prohibits the senators declining to act as coim- sellors when designated for that purpose. He thought that if thirty- one was to be the mmiber fixed upon for the senate, the gentleman himself who oflFered the amendment would be unwilling to take so many as seven from that body. Mr. Bliss was not satisfied of the force of the objections which had been made to his amendment. Gentlemen had not shown that it was not conformable to the spirit of the constitution. The gen- tleman from Boston (Mr. Parker) had said that in the election of U2 MASSACHUSETTS CONVENTION. senators, the people did not consider that they were choosing coun- sellors also ; it might be the case. But if the original intention of the constitution was otherwise, he wished to say to that gentleman, and to others, that his amendment went to restore the spirit of the constitution. If the choosing of the counsellors from the senate was now become a matter of form, it was not so once. It was clearly a violation of the constitution, and ought to be corrected. The peo- ple might be easily made to understand that they were choosing counsellors as well as senators, and they would then select proper candidates accordingly. It was said, too, that if this amendment prevailed, a senator might be made a counsellor without his consent. This was not the case ; for the candidates for the senate would know their liability to be transferred to the council board, and of course would consent to it by becoming candidates. Another objec- tion was, that the counsellors would not be chosen by districts in this mode ; here again was a mistake, as there was a subsequent provision to be made in the constitution, that the two houses of the Legislature, in convention, should have regard to districts in the choice of counsellors. Mr. Webster said he had an objection to the proposed amend- ment, somewhat more general than those which had been already suggested. The Convention had already expressed its almost unan- imous sense, in favor of the great principle of a division of the Legislature into two branches, each having a negative upon the other. This proposition it had adopted, in consequence of a sug- gestion of the Hon. member from Q,uincy. He (Mr. W. ) looked on this as a most important declaration. It was giving the sanction of our own experience for forty years, to a prop6sition much dis- puted and contested at the time of our revolution. Now, he thought, the proposed amendment entirely destructive of this principle. Its tendency was to enable one branch to control the other. The amendment provides that the persons elected counsellors, whether they accept or not, shall leave their seats in the senate. Now the choice of counsellors is to be made by the joint vote of the two houses. But as the house of representatives is much the most nu- merous, the voice of that house is of course usually much the strongest — therefore the effect must be, that the house of represent- atives can put out of the senate seven of the members at pleasure. But, considering the limited number of the senate, this power of removing seven -members at will, would be a most controlling influ- ence. It would very often alter the majority. The proposition then, was neither more or less, than that the house might compel seven senators to vacate their seats ; — a number which very often would alter the general complexion of the senate. This was, in effect, giving the house a power to mould the senate to its purposes. What would be said of a proposition to authorize the senate to send fifty members of the house on any service, incompatible with their holding their seats ? Yet seven to the senate was probably as many as fifty to the house. In short, the proposed amendment appeared MASSACHUSETTS CONVENTION. 143 to him to destroy the whole balance of the constitution. It was to give to one branch of the Legislature the power to arrange, and modify, and control, and new organize the other. This he thought contrary to first principles, and therefore was opposed to it. Mr. PicKMAN, with a view of meeting the objections which had been made by gentlemen, moved in place of the third resolution, to substitute the following : Resolved, That it is expedient to alter and amend the constitution of this Common- wealth, by providing that the second article of the 3d section of the 2d part, relating to the councU, shall be in substance as follows : Seven counsellors shall be annually chosen on the 1st Wednesday of January, by the joint ballot of the senators and representatives, assembled in one room, from among the people at large, including therein the house of representatives — and the counsel- lors shall have thp same qualifications as are required by this constitution for senators of the Commonwealth, and it shall be the duty of the Legislature, before the close of the January session, to fill up any vacancy or vacancies which may exist in the council by reason of death, resignation, or failure to have been qualified, which shall be considered as a resignation, or from any other cause in the manneribefore prescribed. Mr. P. said, that in the discussion yesterday, it was suggested that it would be expedient that counsellors should be required to have some qualifications, and also that there should be a provision for supplying vacancies. He had framed his amendment to meet both suggestions. He thought it would be most expedient that the coun- sellors should be chosen by the Legislature. The gentleman from Springfield, (Mr. Bliss) was in favor of their being chosen by dis- tricts. Mr. P. thought a more inexpedient way could not be devised — and for himself, he almost abhorred the word districts, they had beeri the cause of so much mischief in the United, States. If the choice should be by districts, men of different political sentiments would be likely to be chosen, and thus the wheels of government might be stopped. If the counsellors were to be chosen by the people the preferable mode would be by the whole people, and not by districts ; but both modes were objectionable. Mr. ApTHORP of Boston said he was originally so much in favor of the resolutioii reported, and he had heard so few arguments of any weight against it, that he must oppose this amendment. He argued that the amendment which had been suggested with respect to the qualifications of counsellors, might be very properly added to the resolution. He thought there would be more harmony in the council chosen by the Legislature in convention, than if it were chosen by the people, as some gentlemen wished. Mr. L. Lincoln of Worcester understood the amendment to con- tain three propositions, two of them respecting the qualifications of the persons to elect and to be elected, and the third respecting the supplying of vacancies at the council board. He was in favor of the two first, but objected to the last because the Legislature could not know until the time of its adjournment that a counsellor would not come in and claim his seat and be qualified as counsellor ; con- sequently there would be no time for them to appoint a successor in case the person first chosen should not come in to be qualified. He 144 MASSACHUSETTS CONVENTION. rose- therefore to propose a division of the question. There was also an ambiguity in the phraseology of the gentleman's amendment in respect to the words " people at large ; " as both branches of the Legislature were to join in the ballot, this phrase might be thought to exclude members of the house of representatives from being counsellors. It might be very proper that representatives should be taken for counsellors, as theii- places might be easily supplied by a new election. Mr. L. wished that the first part of the gentleman's amendment might be amended by striking out " the people at large," and inserting, " provided however that no person shall be eligible to the office of coimsellor, who, at the time of the election, has a seat in the senate." The Chairman said there could be no division when the motion was to strike out and insert. ' Mr. L. was aware of the rule, but there ought to be some mode of bringing the propositions distinctly before the committee ; other- wise they would be under a necessity of adopting a good principle together with a bad one, or rejecting both. The Chairman replied, that if the whole is rejected, the parts can be brought forward separately. Mr. Pickman said, if he understood the gentleman from Worcester, he had no objection to his proposition. Mr. Dana said great difficulties had arisen from the minuteness of the propositions which has been brought before the committee. He had hoped, after the proposition of the gentleman from Boston, (Mr. Jackson) that they should have been more attentive to the set- tling of principles. Mr. Bliss was as much opposed to this resolution as he was to that which was reported by the select committee, _ and for the same reason. He was entirely dissatisfied with any modification of this principle, and satisfied that the choice ought to be by the people in some mode or other. If it was unpleasant to talk about districts we might substitute some other word, but this was as good as any. He thought the people were not in danger of being imposed upon by an improper division of the state into districts for this important election-:— an election which was becoming more and more impor- tant every year, by the additional duties which were imposed upon the council by the Legislature. Divisions, it was true, between the governor and council, on political subjects, were unpleasant. But if the people are divided, the difficulty cannot be avoided. Gentlemen would recollect two instances, under difierent governors, when there was a difference of political opmions, between the gov- ernor and his council, chosen under the present constitution. This 'was an unpleasant occurrence, which he hoped would not occur again, though it might in the proposed mode of choosing. He saw no reason why the people should not elect according to the original spirit of the constitution. He was not prepared with any motion for giving the choice to the people, but he thought if they were chosen in districts, the people would be better represented. There MASSACHUSETTS CONVENTION, 145 could bejio evil from distficting the Commonwealth in such manner that one counsellor should be chosen from each district. It was not necessary that the districts should be adjusted with great nicety, or be frequently changed. It might be done either by the convention, to be permanent, or by the Legislature, after each valuation. Mr. Lincoln's amendment was then read, and accepted by Mr. PicKMAN as a modification of his motion, v^iz., to strike out the words "from the people at large," and insert at the end, the follow- ing: "Provided however that no person shall be eligible to the office of counsellor, who, at the time of the election, has a seat in the senate." Mr. Blake opposed the amendment on the ground that it was abridging the rights of the people. He preferred choosing by dis- tricts to the iikde now proposed. Mr. Flint of Reading rose to offer the reasons upon his mind in favor of the proposition now before the committee. He thought it was conformable with the spirit of the constitution, as it ^''as origi- nally framed, and with the practice under it, to require that the coun- sellors should be chosen in the first instance from the people at large. The only change weis, that senators would be chosen to serve in the senate only, and the counsellors would be chosen by representatives from every town, and senators froin every county in the Common- wealth, elected by the people with the express understanding that they were to choose counsellors as well as to perform their other duties. The representatives and senators coming together for this purpose would be better qualified to select proper persons for coun- sellors than the few persons who, if the State were districted, would assemble in the districts to make nominations. The governor wanted a good council, and persons of difi'erent qualifications^-a military man — a good lawyer — a good farmer — and many of them are well educated — many different professions. The two houses in convention would have the best opportunity for making a proper se- lection. The right of making this appointment may be conferred by the people, or the members of the two houses, with the same pro- priety that the right of making appointments to important offices is conferred on the governor and council. Most people are not ac- quainted with the candidates for office in large districts, and must depend upon a few individuals to make the selection. He thought that the members of the two houses in convention, would be quali- fied to make the most proper selection. Mr. Saltonstall of Salem said that he had been anticipated in a part of the remarks which he intended to make, by the gentleman from Reading. But he wished to say a few words in addition. The gentleman from Boston (Mr. Blake ) would consent to no change in the constitution which was not shown to be necessary. Yet he was opposed to the mode of election of counsellors by the two houses in convention, from the people at large, and proposed to choose them in districts. Mr. S. contended that the first mode was conformable to the spirit of the existing constitution, and the other 19 146 MASSACHUSETTS CONVENTION. was a material and unnecessary change. » He read a passage from the constitution, to show that it was not the intention or expectation of the framers of it that the members chosen from the senate to the council should be required to accept a seat at the council board. "In case there shall not be found upon the first choice the whole number of nine persons who will accept a seat in the council," the deficiency to be made up from among the people at large. There is no direction to supply the vacancy from the senate, and it seems to be supposed that they may decline. It must have been foreseen that there might often be very proper reasons why they shoidd de- cline. If they did not, it would often happen that the check of the senate upon the other house would be destroyed, and accordingly it had been the practice from the beginning that they should decline. There were various reasons for their doing it. TKey might be needed in the senate to preserve the majority there that the people had given. Some might be chosen who were willing to serve as senators, but not as counsellors. It had therefore been the practice from the beginning for many to decline, and for twenty years past the practice had been invariable for all to decline. It was therefore conformable, both to a fair interpretation of the instrument itself, and to the constniction that had been given to it by the practice of forty years, approved by the people, that the council should be wholly or in part chosen from the people at large. It was not ex- pected by the people when they chose their senators, that they would accept the appointment of counsellor. There were important rea- sons why there should be liberty to fill this office from the people at large. Qualifications were looked for which were not necessary for the senate. A variety of talents and qualifications was required in the members of the council, which would not be expected if they were chosen in districts. There could then be no concert. They might be all lawyers — or all military men — and none particularly qualified for taking charge of some important departments of the office. Gentlemen chosen to that board would look round and not find those to assist them whom they had been accustomed to meet there. He mentioned, also, the difficulty of forming the districts. It would be difficult at the present moment to divide the State into seven districts in a manner that should give satisfaction, and the difficulty might be at another time much greater. He hoped that the measme would not be resorted to. It was only necessary to make the mode of choice what it had been in practice for the last twenty years. Mr. Baldwin of Boston said it would be an objection to taking the seven senators from the senate; if it were to consist of thirty-one, that it would leave an even number and deprive the pres- ident of the casting vote. It would be difficult to choose from the people at large, except through the representatives. It was of little consequence from what part of the State they were chosen, if they were fit persons. It was an objection to taking them from the senate that where counties were entitled to but one senator they would be MASSACHUSETTS CONVENTION. 147 deprived of their representation if he were chosen to the counsel. The people feel a greater interest in the legislative business than in that of the counsel. No one had a more profound homage for a government of the people than himself. But there appeared to be insuperable difficulties in giving to the people directly, the choice of counsellors. The members of the two houses in convention could have their eyes on every part of the Commonwealth. Mr. Button considered the amendment in its present form, as presenting the* same distinct proposition, as the resolution of the se- lect committee. They both provide that the counsellors shall be chosen from the people in exclusion of the senators by the joint ballot of both houses. It was with reference only to a choice by the Legislature, or by the people in some form or other, that he in- tended to consider the amendment. A choice by the Legislature froifl the people at large was the most simple and convenient. It got rid of the ceremony of first choosing senators, and conformed the theory of the constitution to the practice under it. The practice was the result of the strong political necessity of keeping the power of the majority in the hands of the majority. As matter of theory, or abstract principle, he might agree with the gentleman from Springfield ; but experience has shown us that parties do, and always will exist ; and that the provision of the constitution could not be literally complied with, without endangering an important principle of government. The importance of this principle has been so clearly and forcibly stated by the gentleman from Boston, that noth- ing need or can be added. He was also satisfied with' the argument of the gentleman from Salem, that the practice of the last twenty years was not a departure from the spirit of the constitution. The amendment provides that the Legislature shall elect. Gentlemen who have opposed this mode have said that the people should elect in districts. These are the two modes presented : and he would confine his remarks chiefly to the statement of some objections to an election by the people in districts. Who shall form these districts ? It is said the Legislature. Will this Convention then shrink from this task and throw it upon the discretion of the Legislature, where it will become connected with party interests and passions, and there remain the subject of contention and cabal, in all the bitterness of party spirit. There must be seven districts only. As these would be large, it would be difficult for the people to select the can- didates. In some districts there would be no choice — another, and perhaps another trial must be had, before the elections could be completed. Four of the counsellors.chosen might be of one political party, and three of another, and as the lieutenant governor is ex- officio a member of the council, there would be an equal division. The executive department then, which, as its title imports, is to carry into effect, to execute, to act, might be obstructed by a divided counsel, at a moment too, when it was important to act promptly. He was in favor of checks and balances in the government, as much as any gentleman, but he was also in favor of introducing them in the 148 MASSACHUSETTS CONVENTION. right place. In his opinion the executive department was not that place, because it would tend to embarrass or defeat the fair exercise of the will of the majority. Mr. Freeman of Sandwich had been in favor of the proposition of the gentleman from Springfield, because the object of it was to place the constitution where it originally was. He hoped that no alteration would be made in the original feature of the constitution, unless to give the choice directly to the people. He never would consent, without his testimony against it, to taking tha-election from the people. If the constitution must be altered in this respect, he would abolish the council altogether. So that the governor who is chosen by the people should act upon his own responsibility. Mr. Lincoln of Worcester did not rise to enter into an argument but merely to state his reasons for the vote he should give. He al- ways rejoiced when he saw gentlemen disposed to pay deference to the will of the people. It -was because he regarded the rights of the people, and wished to secure the expression of the will of the people on republican principles, that he was inclined to advocate the resolution. He asked gentlemen to consider the arrangement which was to be made for the organization of the government. The governor, representatives and senators being elected on one day, there would not often be a difference of political character between the executive and the legislature. The security of republican govern- ments rested on the distribution of powers between the three branches, the executive, legislative and judiciary. The security of the rights of the people depended on this distribution. Much security has al- ready resulted from the check, which by this distribution is given to one branch over another. If you destroy the legislative branch, you give an excess of power to the executive — paralyze the arm of the executive, and you give too much strength to the legislature. The council is a component part of the executive. If a majority of the people are disposed to elevate an individual of a certain polit- ical character to the head of the governinent, and you surround him by a council of a different character, you defeat the will of the peo- ple. A majority of the council chosen in districts may be of a polit- ical character opposed to that of the governor chosen by a majority of the whole people, and may control all his measures. What then is the alternative ? To choose by the Legislature or by the people by a general ticket. There were objections to a general ticket, which he stated, and which were insuperable. To form districts it Yv'ould be necessary to form an unnatural alliance between different parts, to unite county to county^ where there was no community of feeling or interest. If the people elected a man to the office of gov- ernor, they wished the office should be pleasant to him, and that he should be surrounded by a council whose political sentiments were in unison with his and their own. In support of the proviso, in re- lation to elections from the senate, Mr. L. said that there were rea- soiis against admitting senators which did not exist against repre- sentatives. If a senator is chose^ to the council his place must remain MASSACHUSETl'S CONVENTION. 149 vacant — if a representative, his place may be supplied by a new election. If representatives were to be excluded from the council, it might operate to prevent some gentlemen from becoming candi- dates, and the services o^useful men would thus be lost. Mr. Blake was not convinced by the arguments which he had heard. The course of reasoning which gentlemen had adopted would lead to the result that every object of government should be accomplished by the agency of a few individuals. Difficulties and confusion might be apprehended from popular elections, and all might be saved by delegating the right to a few persons. It was objected to districts that new associations of counties tended to pro- duce confusion ; there was the same objection to districting the Commonwealth for the choice of senators. Yet this had always been done. Several counties were frequently united and no diffi- culty had arisen. He repeated that he was opposed to the principle of the report, because it was an abandonment of an important prin- ciple of the constitution. It could not be doubted that.it was the intention of the constitution, that the persons chosen from the senate should serve as counsellors. There was nothing to show that the mockery of choosing members of the senate, only that they might decline, was ever intended. There was no more ground for supposing that it was ;Lntended that they should resign than that the governor should. By this change we abandon an important and fundamental principle of the government for no reason. There should be chosen a sufficient number of counsellors and senators for both offices. The clause in the constitution was intended only to provide for a contingency not expected often to happen. He was not in favor of taking from the people any right however small which may be made a precedent for further encroachments. Mr. Webster wished to know what was the precise state of the question. He did not understand whether the proviso, suggested, by the gentleman .from Worcester, was, in itself, a proposition to amend, or whether the mover of the resolution (Mr. Pickman) had accepted it as a part of his motion. After some conversation, it was said that the proviso was accepted by the mover, as a part of his motion. Mr. Webster then moved to strike out the proviso. His reason was that it was introducing quite a new ground of exclusion. We were accustomed to the doctrine that offices, thought to be in- compatible, could not be holden by one person at the same time. But this was quite a new question. Here it was to be decided that a man holding one office, could not be voted for, for another. He had opposed the compulsory election of counsellors out of the senate, and he now opposed any restriction in this particular on the Legis- lature. It was fit to leave it free. There is no more reason why the Legislature should not choose counsellors out of the senate, than why they should not choose other officers, viz., secretary, treasurer, &c., out of it^or than that the governor should be forbidden to choose a judge, or an attorney general out of the senate. Hereto- fore, th« constitution has known no such exclusion as this. Th« 150 MASSACHUSETTS CONVENTION. Legislature ought to be free to choose a council. If a member of the senate is chosen, it is for him to decide whether he will accept — ■ in the same manner as if any other office were offered to him. He disliked the introduction of this new pr^iciple. It was not to be found in this or. any constitution. He hoped it would not be adopted. While he opposed, with some zeal, a power to compel senators to relinquish their seats, he opposed also a new and unheard of restric- tion on the power of the Legislature, and on the will and discretion of individuals. This was a case in which he thought there was danger of too much regulation. Mr. PicKMAN said that this principle of exclusion was found in our own constitution, as, after one choice of counsellors was made from the senate, and the counsellors chosen declined, the other sen- ators would not be eligible. The question for striking out the proviso was taken and decided in the negative — 88 to 222. The question recurred upon the amendment of the gentleman from Salem, and after some further discussion, it was withdrawn by the mover. Mr. Parker (the President) offered a resolution as a substitute for that reported by the select committee, which he afterwards with- drew. A motion was made that the committee rise, which was negatived. The question was then taken on the resolution reported by the select committee and decided in the affirmative — 221 to 172. On motion of Mr. Bliss, the committee rose and reported progress. A motion was made that the committee be discharged, in order that the subject might be referred again to the select committee, which was negatived. Adjourned. Saturday, December 2. The Convention met at 10 o'clock, and yesterday's journal was read. Mr. HoYT of Deerfield moved that after this day, the Convention should hold two sessions in a day. He said that he imderstood that all the committees to whom the several parts of the constitution were referred were ready to report, and he thought the Convention would be prepared to proceed more expeditiously by holding an afternoon session. He stated two reasons for making the motion, 1st, to relieve the minds of gentlemen who were apprehensive that the session was likely to last through the whole winter, and 2d, the importance of diminishing the expense to the Commonwealth, as every dollar which the Convention costs must be provided for by some extra means, because the ordinary revenues of the State were not competent to defray it. The question being about to be put, Mr. Story of Salem said he hoped the House would at least delib- erate a moment upon the expediency of this measure. The Coq- MASSACHUSETTS CONVENTION. 151 vention was not a body assembled to consider merely an affair of today, but to revise the constitution throughout, and to adopt meas- ures which are to be binding on posterity. He would not say how able other gentlemen might be to act always correctly upon the most important questions, on the spur of the occasion. They might think their talents fully competent to proceed in this manner. But, for himself, he did not ,feel able to proceed without deliberation. It required the deliberate exercise of all the talents which he pos- sessed to enable him to act satisfactorily upon the propositions which came in succession before the Convention, and he believed there were other gentlemen in the same situation. It was with the greatest difficulty that he could watch the progress of business as it was already condiicted. Resolution after resolution of the greatest importance to us and to posterity, was brought forward and acted upon, without giving that opportunity for deliberation in our closets, which is indispensable for forming a mature conclusion. What will be the consequence if this resolution is adopted ? Every moment not necessarily devoted to sleep will be employed in carrying busi- ness rapidly through this House. It was of great importance that, there should be opportunity for each member duly to deliberate upon the subjects debated here, and to revise the decisions here made. It often happened that after hearing a proposition argued with great power in the House he formed his opinion for the mo- ment in favor of it ; but on calm deliberation in his closet, he found occasion to change his opinion. Should there be no opportunity for this ? If we mean to propose amendments which the people will not adopt, it would be better not to revise the constitution at all. But if we look to the benefit of our children and posterity, we must take full time for deliberation, and not hurry through the business in such a manner that it cannot be understood. Of what conse- quence is it to save a few thousand dollars compared with the mag- nitude of the object, if the result of our deliberations is to be such that posterity will derive substantial benefit from them? J^ew propositions are submitted to this Convention, involving important principles, and we are called upon to say in a moment, whether we will accept or reject them. He was unable to go along with the business, as it was hurried already. If it was to be pushed faster, . what would be the consequence ? Our minds are called into action for the whole day, new propositions are off'ered and debated from hour to hour ; we are required to sit here until we are exhausted in mind and body, and no opportunity is afforded to review our de- liberations at home. He considered the opportunity to revise and weigh the propositions offered^ out of the House, as essential for coming to wise results, as the debates here. He hoped the motion would not prevail. It was no object to pass through as much busi- ness as possible in a given time, at the hazard of adopting fifty reso- lutions, which, on mature deliberation, we should be disposed to reject. 152 MASSACHUSETTS CONVENTION. Mr. Lawrence of Groton hoped the motion might be withdrawn until all the committees had made their reports. Mr. Apthorp of Boston was as little satisfied as any one with the slow progress which was made in tha business of the Conven- tion. He suggested that the object of the gentleman from Salem of obtaining time for examination and deliberation would be gained if the House would meet at a later hour, and, it might then be practi- cable to hold two sessions in a day. He hoped that the gentleman would withdraw his motion for the reason given, and when he re- newed it, he would bring it forward in a different form. Mr. HoYT declined withdrawing his proposition. He thought the time had arrived when we might proceed more expeditiously. The question was taken and passed in the affirmative — 182 to 127. Mr. Ward of Boston said that, upon further examination, he was confirmed in his opinion that the resolution respecting the filling of vacancies, taking place in the recess of the Legislature, in the offices of secretary and treasurer, would more properly be referred to the select committee on that part of the constitution which respects the governor, &c., than to the committee on the part of the constitution relating to the secretary, &c. He therefore moved that this last committee be discharged from the further consideration of the sub- ject, that it may be referred to the first mentioned committee. Mr. Varnum of Dracut, chairman of this last committee, said the committee had agreed on this report, which he held in his hand, and was ready to present it. It would therefore be inconvenient to have this subject referred to them. The question was then taken on Mr. Ward's motion and lost. Mr. Varnum, from the committee on that part of the constitution relating to the governor, made the following reports: Commonwealth of Massachusetts. In Convention, December 2d, 1820. The committee on so much of the constitution as is contained in the first section of the second chapter of the second part, and who were instructed to take into con- sideration the expediency of " so amending the tenth article of the second chapter of the constitution, as that in future the captains and subalterns of the militia shall be elected by the written votes of the train-band and alarm list of their respective .com- panies without regard to age," have attended that service and ask leave to report the following resolution : Commonwealth of Massachusetts. In Convention, December 2d, 1820. Resolved, That it is not expedient so to amend the tenth article of the second chap- ter of the second part of the constitution, as that the captains and subalterns of the militia shall be elected by the written votes of their respective companies, without respect to age. Also the said committee who are directed to consider the expediency and propriety of making any alterations in the said second chapter " so as to give relief to such persons as have religious scruples about bearing arms," have had the subject under consideration, emd ask leave to report the following resolution : Commonwealth of Massachusetts. In Convention, December 2d, 1820. Besolved, That it is not expedient so to alter or amend the second chapter of the constitution, as that any provision shall be inserted therein, respecting persons who have religious scruples about bearing arms. MASSACHUSETTS CONVENTION. 153 The said committee have also had under consideration the expediency " of so amending the constitution, as that in future the captains and subalterns, the non-com- missioned officers and privates of the respective companies of militia in this Common- wealth, shall severally be exempted from the payment of a poll tax for and during the time they shall be liable to do and perform mCitary duty," and ask leave to report the following resolution : CommonweaMh of Massachusetts. ' In Convention, December 2d, 1820. Resolved, That it is not expedient so to alter or amend the constitution, as that in future the captains and subalterns, and the non-commissioned officers and privates of the respective companies of militia in this Commonwealth., shall severally be exempt- ed from the payment of a poll. tax, for and during the time that they shall be liable to do and perform military duty. J. B. VARNUM,j7er order. Commonwealth of Massachusetts. In Convention, December 2d, 1820. The committee to whom was referred so much of the constitution of this Com- monwealth, as is contained in the first section of the second chapter of the second part, and respects the governor, militia, &c., with directions to take into considera- tion the propriety and expediency of making any, and if any, what alterations and amendments therein, have attended to the duty assigned them and ask leave to report the following resolutions, viz. : 1. Mesolved, That it is expedient to alter and amend the second article of the said first section, by striking out the words " one thousand pounds," and inserting instead thereof the words " — thousand dollars;" and also by striking out the words, "and unless he shall declare himself to be of tie Christian religion." 2. That it is expedient to alter and amend the third article of the said first section, by striking out the words " and representatives " — also by striking out the word " April " and inserting the word " November " — and also by striking out the words " last Wednesday of May," wherever they occur in the said third article, and insert- ing the words "first Wednesday of January." 3. That it is expedient to alter and amend the fourth article of the said first section, by striking out the word " five " and inserting " four." 4. That it is expedient to alter and amend the fiflh article of the said first section, by striking out the words, " and to dissolve the same on the day next preceding the last Wednesday in May " — and also the words, " and the governor shall dissolve the said General Court on the day next preceding the last Wednesday in May." 5. That it is expedient to alter and amend the seventh article of the said first section, by striking out the whole of the first paragraph of said article, and substitut- ing instead thereof, a paragraph in the words following, viz., " The governor of this Commonwealth for the time being, shall be the commander in chief of all the mili- tary and naval forces of the State, except when in the actual service of the United States ; and he shall have all the powers incident to the said office of captain general and commander in chief; to be exercised agreeably to the rules and regulations of the constitution and the laws of the land, and not otherwise." And also further to amend the same article by striking out of the proviso, and second paragraph thereof, the words, " by virtue of any power, by this constitution granted, or hereafter to be granted to him by the Legislature." 6. That it is expedient to alter and amend the ninth article of the said first sec- tion by inserting " notaries public " immediately after the word " coroners." 7. That it is expedient to alter and amend the tenth article of the said first sec- tion by striking out of the first paragraph of the said artisle the words, " of the train band and alarm list." Also by striking out of the fifth paragraph of the said article, the words " pursuant to the laws of the Commonwealth for the time being," and inserting instead thereof, •the words, " or in such other manner as may be provided by law." Also by striking out the whole of the sixth paragraph of said article, which relates to the appointment of officers of the continental army ; and Also by striking out the letters in the word " divisions " in the last paragraph of said article, and by inserting into the same the word " divisions " immediately after the word " into." 8. That it is expedient to alter and amend the twelfth article of said first section, 20 154 MASSACHUSETTS CONVENTION. by striking out the whole of the same, and substituting an article instead thereof in the words following, viz. -. " The governor may require at any time from all executive officers, information in writing, as to any matter connected with the duties of their respective offices." 9. That it is expedient to alter and amend the thirteenth article of the said first section by striking out of the concluding part of the first paragraph thereof, the words, " and it shall be among the first acts of the General Court, after the commencement of this constitution, to establish such Salary b^ law accordingly." And also by striking out the whole of the last paragraph of said thirteenth article, which is in these words, viz. : " and if it shall be found that any of the salaries aforesaid, so established, are insufficient, they shall from time to tune be enlarged, as the General Court shall judge proper." Which iB.respectfully submitted. J. B. VARNUM, per order. On motion of Mr. Varnum, the report was referred to a committee of the whole, and made the order of the day for Tuesday, at 10 o'clock, and ordered to be printed in the mean time for the use of the members. The House then resolved itself into a committee of the whole on the unfinished business of yesterday, Mr. Varnum in the chair. Mr. Parker of Boston said he had observed that much difficulty had arisen yesterday from the indistinctness with which propositions had been submitted to the committee. He had devoted some time, since the last adjournment of the Convention, to the subject before the committee, with the view of rendering it more simple and easy to be understood. The committee had already disposed df the three first resolutions reported by the select committee, and two remained to be considered. One of these two proposed that only one coun- sellor should be chosen from one county ; the other related to the time of making the choice. Mr. P. moved to amend the report by striking out the two last resolutions, and substituting several resolu- tions, which, after some discussion and slight amendment, were adopted as follows, viz. : Resolved, That it ought to be provided in the constitution, that members of the council shall have the same qualifications as members of the senate. Resolved, That all vacancies happening in the council shall be supplied in the manner provided in the third resolution [of the report.] Resolved, That not more than one member shall be chosen from any one senatorial district. Resolved, That in case any member chosen shall not attend seasonably to take the oaths and subscribe the declarations, whi'ch may be required by the constitution, before the Legislature, at the session thereof at which he shall be elected, he may take and subscribe the same before the governor, or before the lieutenant governor, and any one or more of the council, who shall have been previously qualified. Mr. Apthorp wished that the first resolution, which had been passed over, should be taken up, as he had a proposition to make, which he thought would remove the reason for its postponement. He then ofi'ered a resolution, which, after being modified, was adopt- ed as follows, viz. : . Resolved, That it is expedient and proper that the constitution shall be altered, so that the qualifications of the lieutenant governor shall be the same as are required in this constitution in the case of the governor. Mr. Baldwin of Boston said he had reason to think, that the third resolution of the report was not well understood, when the MASSACHUSETTS qONVENTION. 155 question was taken upon it yesterday. He therefore moved a re- consideration of the vote. (The third resolution related to the choosing of seven counsel- lors, from among the people at large, by the joint ballot of the sena- tors and representatives. ) The Chairman asked the gentleman if he had voted in the ma- jority when the question Avas taken. IVIr. B. answered in the afiirm- ative. Mr." Parker thought the gentleman might attain his object, when the resolution should come before the Convention upon the report of the committee of the whole. Mr. Blake doubted whether the whole subject could be acted upon so conveniently in the Convention. He thought they 'would • only be obliged to go into committee again. Mr. Baldwin withdrew his motion. Mr. Sturgis of Boston moved to amend the report, by adding a resolution, purporting that the counsellors should have notice, as soon as may be, of their election, and should be required to signify their acceptance within '■ days after their appointment ; other- wise, they should be considered as having declined, and the Legis- lature should proceed to choose others in their place. Mr. Freeman of Sandwich moved to amend, so that the counsel- lors should be obliged to signify their acceptance within days after they shall have received the notice. Mr. Sturgis said he had no objection to vary his motion so as to read, " within days after the notice shall have been sent ;" if that would meet the gentleman's views. Mr. Parker said the gentleman's (Mr. F.) amendment would be highly inconvenient, as it would be difficult for the Legislature to ascertain, whether the counsellors had received the notice, or not. He would fill the blank so as to allow ample time for the notice to be given. Mr. Freeman said it had happened on one occasion that all the senators had not been duly notified of their election, and the same thing might happen to the counsellors. All he wished was, that they should not lose their ^eats through accident, or the inatten- tion of others. Mr. Apthorp proposed that the word election should be substituted for appointment. Mr. Sturgis said he wished to settle principles ; he did not caxe a straw about the words. His motion was not to be incorporated into the constitution verbatim. The question was taken on Mr. Freeman's amendment and lost. Mr. Starkweather of Worthington wished the gentleman from Boston would withdraw his motion. He thought it unnecessary. Delays of this kind, on the paxt of gentlemen chosen counsellors, were not apt to take place. The Legislature ought not to act tUl they ascertain that a gentleman has received notice; and there might be circumstances out of his control, to prevent his answer 156 MASSACHUSETTS CONVENTION. being returned. Suppose he puts his answer in the post office and there is a failure of the mail ; he comes to Boston to be qualified and finds another elected in his room. He has the mortification of losing both his journey and his appointment. Suppose a counsel- lor is chosen from a distant part of the State two days before the Legislature rises; here there is no time to give notice and receive his answer, and if he should decline, there must be a vacancy in the council through the rest of the year, if the Legislature should have but one session. Mr. Prince of Boston hoped the motion would not be with- drawn; he had no objection to its lying on the table till it shall be deterrnined how they are to be chosen. Mr. Sturgis withdrew his motion. Mr. Sibley of Sutton said the gentleman from Boston (Mr. Baldwin) had stated that he voted in the majority on a question taken yesterday, concerning the mode of electing counsellors, and had made a motion to reconsider that vote. He regretted the gen- tleman had thought proper to withdraw his motion. He thought it important that there should be a reconsideration of the subject, and he would therefore renew the motion. Ml'. Bond of Boston begged leave to inquire whether the gentle- man had voted in the majority, when the question was taken ; he was informed by gentlemen that the case was otherwise. Mr. Sibley said he hardly remembered, or something like it, and sat down. (A laugh.) Mr. Webster moved that the committee rise. Mr. Baldwin said he would rene^'' his motion. Mr. Webster rose to a point of order. The motion was to rise. Mr. Bliss asked if this question was open to debate. The Chairman answered that he apprehended it was not. The question -was taken on the motion to rise, and decided in the negative — 218 to 127. Mr. Baldwin made a few remarks, and concluded by renewing his motion to reconsider. Mr. Bliss argued in favor of the reconsideration. The subject had not been well understood by a wery considerable nmnber of gentlemen, and he apprehended, that if any motion were made in Convention, proposing a different mode of choosing counsellors, it would be necessary for the Convention to resolve itself again into a committee of the whole. Mr. Webster said if this question was reconsidered, they might with equal propriety reconsider any question. He was not perfectly satisfied in his own mind what mode of choosing counsellors would be the best ; he was willing to let the constitution remain without alteration in this respect. The question on this resolution had been taken after a long discussion, and it would be put again in Conven- tion, where gentlemen might adopt the vote of the committee or reject it. This was a fair course, and the proper one to be pur- sued. MASSACHtrSETTS CONVENTION, 157 Mr. Blake objected to the course proposed by the gentleman from Boston. He said if the Convention should not agree with the coimnittee, they would have to change from convention to committee of the whole, and back again from committee to con- vention. He thought the question was one of vital consequence, and that more time would be properly spent on it in committee of the whole. " Mr. Leland said he was in favor of the counsellors being elected by the people, but he thought the proposition of the gentleman from Boston, (Mr. Webster) a fair one. Mr. Sibley was not satisfied that they could act as well on the subject in Convention, as they could in committee of the whole. He said if they rejected in Convention the vote of the committee, the constitution would stand as it now is, and this was not what the people wanted. He wished there might be a reconsideration. Mr. Slocum of Dartmouth said there was a full House now, and if they put oflF the question to the Convention, it would not be so full probably. Many gentlemen were persuaded, that they were curtailing the rights of the people, in adopting this mode of choos- ing counsellors. Mr. Mahtin of Marblehead said they were depriving the people of their rights. The people indeed, in the choice of counsellors, would have a side-wind voice through their representatives, but they ought to have more. This question was decided by a major- ity of fifty only, and a hundred members were absent, or did not vote, which they should have done according to the rules of the Convention. He hoped the question would be reconsidered. The question was taken and carried for a reconsideration — 224 to 134. The question before the conimittee jivas then stated to be upon the third resolution, in the same form as if it had not been adopted. Mr. Morton moved to strike out the resolution reported by the select committee, and to substitute for it a resolution, purporting that the constitution ought to be so amended that counsellors should be annually chosen by the people, in such convenient dis- tricts as shall be formed by the Legislature at their next session, having regard to the number of inhabitants, and as equal as may be without dividing towns, each district to choose one counsellor, who shall have the same qualifications as are required for senators, and if in any district there shall be no choice, the vacancy to be filled by joint ballot of both houses of the Legislature ; the choice to be confined to the two persons in each district who had the highest number of votes of the people — the districts thus formed to remain imtil a new valuation shall be taken. He made this motion be- cause he thought it was the original intention of the constitution that the people should have a voice in the choice of counsellors. Mr. Parker, (President) objected to the motion, that it proposed a substitute for all the resolutions reported by the select committee, instead of one only which it had been voted to reconsider. He 158 MASSACHUSETTS CONVENTION. suggested that the mover should confine his proposition to a substi- tute for the resolution voted to be reconsidered. Mr. Morton had no objection to taking the abstract proposition that the counsellors shall be chosen by districts. Mr. Blake naoved that the committee rise and report progress with a view that the resolution offered might be printed and as- signed for consideration on Tuesday. Mr. Buss wished that before the committee rose the resolution might be amended so that the districts should be formed in the same manner with the senatorial districts. • Mr. Morton had no objection. Mr. Parker. This would make ten counsellors necessary, theye being ten senatorial districts. Mr. Bliss meant only that they should be formed ii^ the same manner, not of the same extent. Mr. Sturgis asked if the fifth resolution had not passed. Chairman. It has been struck out. Mr. Dana inquired what was the question before the'^jommittee. Chairman. Whether the committee shall rise. Mr. Dana was against rising. He wished first to obtain from gentlemen a demonstration of their views. He was proceeding to offer further remarks, when Mr. Blake asked if the gentleman was in order. Chairman. It is not in order to debate the proposition before the committee. Mr. Dana thought it was in order to give reasons against rising. Chairman. Observations may be made regarding the expediency of rising, but the question previously before the House should not be debated. Mr. Blake stated as a re^on for rising that a hundred and forty members who were present when the resolution was adopted, were now absent. Mr. Dana gave as a reason for not rising that we might have the benefit of the observations of, the gentlemen who remain. The question that the committee now rise was taken and decided in the negative, 158 to 171. Mr. Morton then offered his motion, modified as follows : Resolved, That the constitution be so altered as that the counsellors shall be chosen by the people. Resolved,- That the Commonwealth for this purpose be divided into districts. 'Resolved, That said districts be formed by the Legislature on the same principles as shall be adopted for the choice of senators. The first resolution being stated as under consideration, viz., " that the constitution be so altered as that the counsellors shall be chosen by the people," Mr. Webster. The counsellors are now chosen by the people. Mr. Blake was of the same opinion. Senators and counsellors are chosen by the people on the first Monday in April, and when they came together, and the counsellors are designated by the members of MASSACHUSETTS CONVENTION. 159 the two branches in Convention, the choice is consummated. The choice is now by the people, and the Legislature only designate in which capacity each person elected shall serve, whether as coun- sellor or as senator. Mr. Bliss considered that the striking out of the third resolution was an important part of the proposition. The reasons against that resolution were not all given yesterday. He was of opinion that the executive should be a co-ordinate branch of the govern- ment proceeding from the people, and independent of the Legisla- ture. He supposed the case that the Legislature should wish to turn out the supreme judicial court. It would be in the power of the Legislature to select a council for the express purpose. Mr. Bond of Boston thought the committee were in the same difficulty that they were in at an earlier part of the morning, and that they might be relieved from it in the same mode, if the gentle- man from Dorchester would withdraw his motion, and substitute one merely to strike out the third resolution. Mr. Stone of Boxborough said he considered this a very impor- tant question, and he should call for the yeas and nays upon it. The Chairman said that in committee of the whole, the yeas and nays could not be taken. Mr. Blake moved to divide the resolution. Mr. Morton said it had been decided not to be in order to divide so as to strike out merely, without substituting. He wished to de- termine the abstract question, and this was done by voting to strike out the resolution and to give the choice to the people. Mr. Blake said that half an hour had elapsed since he moved that the committee should rise, and he felt now justified in renewing the motion. This was an important question. None more so would come up. It was a question whether we should take away from the people an important power. No one of the other reports involves so important a principle of the constitution. Many gentlemen were now gone ; it was not a proper time for acting upon such a subject. This resolution was passed yesterday by a majority of not more than fifty votes. He hoped that on all subjects there Would be something like uhanimity. He should not be surprised if on every important question, if it were thoroughly discussed, the House should come to nearly an unanimous vote. Mr. Webster called the gentleman to order; the chairman had re- peatedly decided that it was not in order to enter into debate on. a motion to'rise. Mr. Blake then moved that the committee rise, report progress and ask leave to sit again. The inOtiOn was carried and leave was granted. Mr. Story moved that when the House adjourned, it should ad- journ to Monday eleven o'clock. Negatived, 144 to 176. The House adjourned. 160 massachusetts convention. Monday, Decembek 4. The House met at a quarter past 10 o'clock, ajad the journal of Saturday's proceeding was read. Mr. Holmes of Rochester said that on Saturday the Convention had ordered that from this day they would hold two sessions a day. He voted in favor of that resolution, but on consideration he thought it would promote the progress of the business better, if they would reconsider that vote, and determine to adjoiu'n to nine o'clock in the morning, and sit each day till half past two. He therefore moved that the Convention reconsider the vote for holding two sessions per day. Mr. Pre SCOTT said that the committee on the third resolution had not finished their business — that they had held a session every day, and often to a late hour at night, and that they were now adjourned to meet this afternoon. That committee consisted of twenty-nine members, and it would be extremely inconvenient for them to finish their business if the House sat in the afternoon. Mr. duiNCY and Mr. Blake stated some reasons for reconsidera- tion, and against two sessions. Mr. Varnum thought that nothing would be gained by holding afternoon sessions. He should be willing to begin business at nine o'clock in the morning, as soon as all the business of the committees was completed; but he thought it could not be done at present. The motion to reconsider was then taken and decided in the affirma- tive— 182 to 42. On motion of Mr. Blake, it was ordered that the unfinished business of Saturday, in committee of the whole, be assigned to to- morrow at ten o'clock. On motion of Mr. Webster, the House went into committee of the whole on the report of the select committee upon that part of the constitution which relates to oaths and subscriptions and other subjects, Mr. Dana of Groton in the chair. The report was then read, and the first resolution was first taken into consideration. This resolution recommends to substitute for all oaths, declarations and subscriptions now required, a short" oath of allegiance, and an oath of office, with a provision that duakers, in- stead of swearing, may affirm. Mr. Webster. It is obvious that the principal alteration, proposed by the first resolution, is the omission of the declaration of belief in the Christian religion, as a qualification for office, in the cases of the governor, lieutenant governor, counsellors and members of the Leg- islature. I shall content myself on this occasion with stating, short- ly and generally, the sentiments of the select committee as I under- stand them on the subject of this resolution. Two questions naturally present themselves. In the first place ; have the people a right, if in their judgment the security of their govermnent and its due ad- ministration demand it, to require a declaration of belief in the Chris- tian religion as a qualification or condition of office ? On this ques- tion, a majority of the committee held a decided opinion. They MASSACHUSETTS CONTENTION. 161 ;hought the people had such a right. By the fundamental principle )f popular and elective governments, all office is in the free gift of he people. They may grant, or they may withhold it at pleasure ; md if it be for them, and them only, to decide whether they -will jrant office, it is for them to decide, also, on what terms, and with 8vhat conditions, they will grant it. Nothing is more unfounded :han the notion that any man has a right to an office. This Tiu'st depend on the choice of others, and consequently upon the jpinions of others, in relation to his fitness and qualification for of- ice. No man can be said to have a right to that, which others may ivithhold from him, at pleasure. There are certain rights, no doubt, ivhich the whole people — or the government as representing the ivhole people — owe to each individual, in return for that obedience, md personal service, and proportionate contributions to the public Durdens which each individual owes to the government. These •ights are stated with sufficient accuracy in the tenth article of the Dill of rights in this constitution : " Each individual in society has I right to be protected by it, in the enjoyment of his life, liberty, and property, according to the standing laws." Here is no right of office jnumerated ; no right of governing others, or of bearing rule in the State. All bestowment of office remaining in the discretion of the people, they have, of course, a right to regulate it, by any rules which ;hey may deem expedient. Hence the people, by their constitution, prescribe certain qualifications for office, respecting age, property, residence, &c. But if office, merely as such, were a right, which 3ach individual under the social compact was entitled to claim, all these qualifications would be indefensible. The acknowledged rights are not subject, and ought not to be subject to any such limi- tation. The right of being protected in life, liberty, and estate, is iue to all, and cannot be justly denied to any, whatever be their age, property, or residence in the State. These qualifications, then, 3an only be made requisite as qualifications for office, on'the ground that office is not what any man can demand as matter of right, but rests in the confidence and good will of those who are to bestow it. [n short, it seems to me too plain to be questioned, that the right of jffice is a matter of discretion, and option, and can never be claimed by any man, on the ground of obligation. It would seem to follow, then, that those who confer office may annex any such conditions to it as they think proper. If they prefer one man to another, they may act on that preference. If they regard certain personal quali- ftcations, they may act accordingly, and ground of complaint is given to nobody. Between two candidates, otherwise equally qual- ified, the people at an election may decide in favor of one because he is a Christian, and against the other because he is not. They may repeat this preference at the next election, on the same ground, and may continue it, from year to year. Now, if the people may, without iajustice, act upon this preference and from a sole regard to this qualification, and refuse in any instance to depart from it, they have an equally clear right to prescribe this qualification beforehan4 21 162 MASSACHUSETTS CONVENTION. as a rule for their future government. If they may do it,-they may agree to do it. If they deem it necessary, they may so say, before- hand. If the public will may require this qualification, at every elec- tion, as it occurs, the public will may declare itself beforehand ; and make such qualification a standing requisite. That cannot be an un- just rule, the compliance with which, in every case, would be right. This qualification has nothing to do with any man's coyisdence. If he dislike the condition, he may decline the office ; in like manner as if he dislike the salary, the rank, or anything else which the law attaches to it. However clear the right be, (and I can hardly sup- pose any gentleman will dispute it) the expediency of retaining the declaration is a more difiicult question. It is said not to be neces- sary, because in this Commonwealth, ninety-nine out of every hun- dred of the inhabitants profess to believe in the Christian religion. It i^ sufficiently certain, therefore, that persons of this description, • and none others, will ordinarily be chosen to places of public trust. There is as much security, it is said, on this subject, as the neces- sity of the case requires. And as there is a sort of opprobrium — a marking out for observation and censorious remark, a single individ- ual, or a very few individuals, who may not be able to make the declaration, it is an act, if not of injustice, yet of unkindness, and of unnecessary rigor to call on such individucds to make the declara- tion. There is, eJso, another class of objections which has been stated. It has been said that there are many very devout and serious persons — persons who esteem the Christian religion to be above all price — to whom, nevertheless, the terms of this declaration seem somewhat too strong and intense. They seem, to these persons, to require the declaration of XhaA faith which is deemed essential to per- sonal salvation ; and therefore not at all fit to be adopted by those who profess a belief in Christianity, merely in a more popular and general sense. It certainly appears to me that this is a mistaken in- terpretation of the terms; that they imply only a general assent to the truth of the Christian revelation, and, at most, to the supernatu- ral occurrences which establish its authenticity. There may, how- ever, and there appears to be, conscience in this objection ; and all conscience ought to be respected. I was not aware, before I attended the discussions in the committee, of the extent to which this objec- tion prevailed. There is one other consideration to which I will allude although it was not urged in committee. It is this. This qualification is made applicable only to the executive and the mem- bers of the Legislature. It would not be easy, perhaps, to say why it should not be extended to the judiciary, if it were thought neces- sary for any office. There can be no office, in which the sense of religious responsibility is more necessary than in that of a judge ; especially of those judges who pass, in the last resort, on the lives, liberty and property of every man. There may be, among legisla- tors, strong passions, and bad passions. There may be party heats and personal bitterness. But legislation is, in its nature, general. Laws usually affect the whole society, and, if mischievous or un- MASSACHUSETTS CONVENTION. 163 j ust, the whole society is alarmed, and seeks their repeal. The ju- diciary power, on the other hand, acts directly on individuals. The injured may suffer, without sympathy, or the hope of redress. The last hope of the innocent, under accusation, and in distress, is in the integrity of his judges. If this fail, all fails ; and there is no remedy on this side the bar of heaven. Of all places, therefore, there is none, which so imperatively demands that he who occupies it should be under the fear of God, and above all other fear, as the situation of a judge. For these reasons, perhaps, it might be thought that the constitution has not gone far enough, if the provision already in it were deemed necessary to the public security. I believe I have state'd the substance of the reasons which appeared to have weight with the committee. For my own part, finding this declaration in the constitution, and hearing of no practical evil resulting from it, I should have been willing to retain it ; unless considerable objec- tion had been expressed to it. If others were satisfied with it, I should be. I do not consider it, however, essential to retain it, as there is another part of the constitution which recognizes in the fullest man- ner the benefits which civil society derives from those Christian insti- tions which cherish piety, morality and religion. I am conscious, that we should not strike out of the constitution all recognition of the Christian religion. I am desirous, in so solemn a transaction as the establishment of a constitution, that we should keep in it an expres- sion of our respect and attachment to Christianity ; — not, indeed, to any of its peculiar forms, but to its general principles. Mr. Prince of Boston observed that as he was unused to public speaking, and engaged in pursuits of life which had in a great meas- ure excluded him for participating in the affairs of legislation, he trusted in the candor and kindness of the House, if, in the discharge of what he considered an imperative duty, he should not be fortunate either in the previous arrangement of his ideas, or afterward in the manner of expressing them ; and, that the few observations which he should venture to make, would not from their want of merit be severely censured by'those who could not approve them. Indeed, a consciousness of his inability, would induce him rather to state general axioms than to attempt to discuss and expatiate at large upon the subject under consideration. There are, said Mr. P., two distinct rights belonging to man — unalienable and natural — among those of the first class are the rights of conscience in all mat- ters of religion. Now I hold that religion is a matter exclusively between God and the individual ; and " the manner of discharging it, can be directed only by reason or conviction ; and thus, I repeat it, this right is in its nature an unalienable right, because it depends on the evidence as it strikes his mind; and consequently the result •is what is his duty towards his Creator.'^ And therefore, as man owes supreme allegiance to God, as the Creator, and as the undivided governor of the universe, he cannot absolve himself, nor can others absolve him from this supreme allegiance ; and hence, on entering into a social compact, the rights he gives up, and the powers he 164: . MASSACHUSETTS CONVENTION. delegates must be tributary to, and in subordination to this high and first allegiance — and among the first enumeration of rights and du- ties in the present constitution of the Commonwealth, this principle is recognized : " It is the duty and the right of all men (says the constitution) to worship the Supreme Being, the great Creator and preserver of the universe, and none shall be molested or restrained for worshippmg God in the manner and season most agreeable to the dictates of his own conscience, nor for his religious professions or sentiments." This is reasonable, wise and just. In forming or re- vising the social compact, let us then take heed, that we do not in- sert or retain any principle which by possible construction may in- terfere with, or abridge such sacred, such inestimable rights Ify an inquiiy into opinions for which man is only accountable to his God. Social duties are between man and man. Religious duties are between God and the individual. While we are solicitous to'- " render unto Ca3sar.the things that are Caesar's " — take heed, I be- seech you, that "you leave unto God, the things that are God's." Nor will the argument hold good that because during the forty years the test has been engrafted into and been in force under the present constitution, no extensive evils have presented themselves, and therefore it is inexpedient to expunge it from the constitution, lest it might be construed as an indirect abandonment of the cause of Christianity. On revising the constitution, every unnecessary point, even the most trivial, ought to be stridken out, and every possible evil guarded against. The American revolution fully recognizes this principle ; — it was noj the pressure of evils actually existing which induced the patriots of the revolution to resist the encroachments of Great Britain, but it was a dread of the conse- quences which they believed would result from submitting to the doctrines advanced by the mother country — hence, I repeat it, it is not from the multiplicity of cases which have occurred, whereby men of sterling integrity, pure morals and great strength of intellect may have been precluded from participating either in the advantages of office, or assisting in the public councils, but it is that by con- tinuing this principle in the constitution you may preclude them. I add moreover, that though many J)os^7«^;e instances are not known, yet there may have been many negative ones from the religious/ qualification alluded to ; if I have been rightly informed this quali- fication has not only had a tendency to prevent moral and intelli- gent men from office, who may or may not have been Christians, but sir, ere the ink which was used to record the qualification in the instrument was dry, one of our most distinguished citizens, and a most enlightened and prominent patriot, (I mean Mr. Hawley) a professing member of a Christian chiurch, disdained to hold a seat at the senate board on the condition that he should submit to make a. public acknowledgment of his religious sentiments, other than at the altar of the Most High God, although his zeal in support of the cause of Christianity almost bordered on an undue enthusiasm. How many Christians actuated by similar considerations have with- MASSACHUSETTS CONVENTION. 165 held their useful talents in favor of the Commonwealth I pretend not to state,- but I should think even this one sufficient to erase this qualification, " for, if all men are free, equal and independent by nature, and the right of conscience is unalienable, then, on entering into the social compact, every man has a right to enter on equal terms ; but, if the consciences of men are in any wise shackled by forms or qualifications, this would not be the case." I submit then the following positions, first, admitting the right, (which, how- ever, I do not) of the citizens when forming a social compact to prescribe such terms as a majority may deem expedient and proper, yet I hold it to be unjust to introduce a principle into the compact which, while it provides that the individual shall afford his personal aid, and risk his life for the common defence and yield i;p all his property (if need be) foT the maintenance of the government and its 'laws, yet virtually preclude? him from participating in any of the advantages resulting from offices, or from any share in the adminis- tration of the government, because Ije differs on a subject \yith which society ha* but a doubtful right to interfere ; although in point of morality and strength of intellect he shines as "a star of the first magnitude." Secondly — I hold that this act of injustice toward the individual is neither politic nor expedient ; first, because as before observed, it may deprive society of talent and moral ex- cellence, which should always be secured and cherished as one of the best means of preserving the prosperity of the Commonwealth ; and. secondly, while it may thus exclude men possessing such use- ful and amiable qualification, yet it is no effectual safeguard whereby to keep out ambitious, unprincipled men from office, or a seat in the public councils. And, I moreover hold, that the cause of Christi- anity doth not require such a qualification to support it. This re- ligion is founded on a rock and supported by a power which hu- manity cannot affect — it does not want the secular arm to defend it — its divine origin, and its own intrinsic merit, ever have been, and ever will be, its firmest support. What have the powers of the world to do with such a religion ? Experience has demonstrated that when left to the umpire of reason and of argument, it has tri- umphed the most brilliantly over the attacks of infidelity. Inquisi- tions, test acts and fanaticism, with their gibbets — ^their racks — and their faggots, may produce martyrs and hypocrites, but such writers as Watson and Paley have displayed its true character by arguments, which have put infidelity in the entire back ground. And may I not add from experience that in those countries where there are re- ligious tests, they have not been productive of any advantage ; even in that nation from whom many of us derived our origin, and where, in addition to a test act, the most solemn of the Christian ordinances are obliged to be adhered to as an additional qualification for office — there is either an almost total evasion, or the compliance is often made under circumstances which, while it gives pain to many a serious Christian, excites mirth in the breast of every infidel. I also believe the qualifications of candidates ought to be confided to 166 MASSACHUSETTS CONVENTION. the electors, who generally take them from the neighborhood, and will therefore be the best judges of their moral and mental powers, and should it unfortunately happen that an unfit citizen has been introduced into office — the electors, so long as virtue, patriotism and Christianity predominate, will avail themselves of the frequency of elections to obtain a remedy by a change of character ; -and that the evil will be much sooner remedied than if it is left to be done through the crucible of a test act. I moreover think, that while the scriptures seem to reprobate the presumption of demanding, and the fallacy of trusting, to mere professions of faith, they plainly point to the policy of preferring a trust in moral worth and excellence. Who art thou, O man, that judgest another ? With his own master he is to stand or fall. " These people draw nigh to me with their mouths, but their hearts are far estranged from me." "Not every one that saith Lord! Lord! shall enter the kingdom' of heaven." But Peter, speaking under the impulse of an awful rebuke and a solemn monition from heaven against his bigoted views, declared, that he now was satisfied, God was no respecter'of persons, but of every nation, "he who feared God and wrought righteousness^' would be accepted, whether Jew or Gentile. And surely man, fallible man, ought not to require from his fellow man fither and greater qualifications for an earthly office, .than is required from him, by whom kings reign and princes decree justice, for an admission into the society of just men made perfect. No, sir, the qualifica- tion's for those celestial abodes depend not on principles which in their tendencies may work an abomination, or may produce a false- hood. They depend on the performance of moral and social duties. He that hath from pious and benevolent motives fed the hungry, clothed the naked, and visited the widowed and the friendless in their distress and administered to their comfort and relief, though he may never have made a declaration of his religious creed, will be invited and welcomed by the heavenly messenger to enter into and partake of the joys of his Lord. It has been said that the Chris- tian religion is calculated to soften the manners and purify the niind, and thereby produce more reverence toward the government, and a prompt and ready obedience to the laws. This I will admit — but I repeat it with this reservation, that those advantages result from its moral precepts, and not from doctrinal points. I will not say that the omission of a religious test in the constitution of the United States, or of the individual states, with, as I think, the ex- ception of Vermont, Delaware and Maryland, ought to operate as a sufficient reason for us to erase it from ours ; but I would ask whether in those states you perceive among their citizens greater reverence for the laws, more marks of morality, or a greater display of Christian devotion and benevolence, than in those states which have none ? In making the aforegoing observations, I hope it will i not be considered as in any manner intending to weaken the cause of Christianity or of aiding the cause of infidelity. I make them because I verily believe, in forming or revising the social compact. MASSACHUSETTS CONVENTION. 167 we ought wholly to exclude every principle which by possible con- struction may interfere with the consciences of men, thereby leaving them and their religious opinions where alone they ought to be left, " to Him who searcheth the heart and knows our inmost thoughts." Whether the individual has or has not formed a correct religious opinion is nothing to us, as civilians. " For modes of faith, let graceless zealots fight, His can't be wrong whofle life is in the right." Indeed, sir, I think that so far from injuriag of the Christian cause, I am aiding it — when doubting men are left to the freedom of their own wills, they will be the more apt to listen to the arguments in support of Christianity than when shackled by test acts, or any other interference of the. civil government. I will further lastly add, that this was the opinion of some of our most able divines and our most enlightened statesmen, when assembled for a purpose nearly similar to this for which we are now in session — ^they decidedly declared that test acts were improper and inexpedient to be inserted in the social compact. Such were the opinions of the Rev. Messrs. Shute, Backus, Payson, and Thatcher, and also of the late learned Chief Justice Parsons — and I would not forget to mention the late pious and amiable Dr. Belknap. Believing then sir, as I verily do, that to retain any religious test, however liberal, is neither required for the safety of religion, nor for the safety of the Commonwealth ; that it is unjust in principle — ^fallacious as to the effect to be produced — pernicious in its consequences — and an unwarrantable assumption of the unalienable rights of a citizen, and also that it is repugnant to one of the most essential moral precepts of Christianity which in- culcates, "that whatsoever I would that men should do unto me, this I ought to do unto them ;" I hope the principle to which I have alluded will be left out of the constitution, now that we are called to revise it. After Mr. Prince sat down, the Chairman said, that as the organ of the committee, he would observe, that it was contrary to the rules of deliberative assemblies to read written speeches. Mr. GluiNCY differed from the chairman. He said it was a right, which every member should be permitted to exercise. Mr. Webster said the gentleman was out of order, as there had been no appeal from the decision of the chair. Mr. duiNCY said then he did appeal. The Chairman said he did not mean to make a decision, but a suggestion merely. Mr. J. Phillips of Boston observed in substance, that from the observations of the chairman of the select committee, it appeared evident that the citizens of this Commonwealth had the right to re- quire of theii- rulers, the declaration now provided in the constitu- tion. It should be constantly recollected, that it is the business of this Convention to propose amendments to the existing, and not frame a new, constitution. He did not believe the citizens of this Commonwealth were prepared, by erasing from this instrument this 168 MASSACHUSETTS CONVENTION. declaration, virtually to express an opinion, that it was indifferent to them whether their rulers should be Christians or the followers of Mahomet. Had this declaration required the belief of the doctrines of Calvin, or Arminius, or of any founder of a sect, he should con- cur in rejecting it ; but he did not expect at this period in a Christian community, that any objection would be made to these words, " I believe the Christian religion, and have a firm persuasion of its truth," — ^being all that the constitution requkes. One class objects to this declaration, on the ground that it is inconsistent with the rights of a citizen to require any evidence of his religious belief. Why then retain that part of the report which requires an appeal to the Supreme Being — the oath of office ? There may be found, he hoped.it never would be the case, persons elected to the Legislature who disbelieved the existence of God. If the argument is correct, to require this oath is inconsistent with their rights, he inquired if it could be now a subject of doubt whether the inhabitants of this Commonwealth professed to be a Christian people ? But it had been intimated by the chairman of the select committee, that some ob- jected to this declaration because they considered it could not be made with truth, by any, except those highly favored persons who have attained to the full assurance of their interest in the Savior. This was new to him, and he should wish to hear those who enter- tained this opinion, offer the arguments on which it is grounded. At present he should only express his desire that the subject might receive the most deliberate attention. . Mr. HussEY of Nantucket had observed, with much satisfaction, that the committee had recommended such an alteration of the con- stitution as would enable the people of the Commonwealth to avail themselves of the virtues and talents of the denomination of Christians called Q,uakers, who had heretofore been excluded from holding im- portant offices, because they could not conscientiously take the oath required for entering upon these offices. He knew many whose qual- ifications were of the first order, who had heretofore been thus exclud- ed. He believed that, besides those who belong to this denomination of Christians, there were many other good citizens of tender conscien- ces who held themselves bound by the literal import of the injunction in scripture, "Swear not at all," who would still, by the terms of the article as proposed to be amended, be excluded from office. He therefore moved to amend the resolution by striking out after the word Quakers the words "and shall decline taking said oath," and inserting, "and any other person who cannot by the principles of his religious faith take an oath, and shall decline taking the same." Mr. Webster said that this particular subject had been referred to the select committee and they had made a report upon it. He suggested that it would be more proper to enter into consideration of the amendment proposed, when that report should be taken up. Mr. S. A. Wells requested that the resolution might be read. The Chairman was proceeding to read the several ■ resolutions of the report of the committee, not having understood the gentlemein who called for the reading. MASSACHUSETTS CONVENTION. 169 Mr. Adams of Q,uincy moved that the report should be taken up paragraph by paragraph ; it was impossible for gentlemen to act un- derstandingly on the whole together. He said they should take it up link by link ; if a link was found defective, it should be broken, and those which were perfect should remain. Mr. Nichols of South Reading said he doubted, if the motion of the gentleman from Nantucket should be withdrawn, and the present resolution adopted, whether the subject of the motion could come before the committee on the other resolve. He asked for in- formation. , The Chairman said he had no doubt at all, that it could. Mr. TucKERMAN of Chelsea observed that he supposed the ques- tion now before the committee to be, whether the religious test in the constitution of 1780, shall be retained, or whether the resolu- tions now proposed by the select committee shall be adopted. He observed that, at the hazard of being accused of bigotry, and nar- rowness of mind, he, must take the ground of defence of the consti- tution on this subject, as it now stands. He said that, in reflecting upon the test, he had not anticipated the suggestion of any doubt concerning the right, should this Convention have the disposition, to retain it. The constitution declares every man to be eligible to all the high offices of the State, on the condition of certain prescribed qualifications. Yet if there was any probability that any people of color would be elected to fill either of these offices, he presumed that no doubt would be felt, either as to the right, or the propriety, of their exclusion. There would, without doubt, be a provision in the constitution for their exclusion ; or, it would be required, that these offices should be holden only by the white inhabitants of the Com- monwealth. And if, as is without doubt a fact, ninety-nine out of a hundred of the people of this Commonwealth are in their faith Christians, it seems to be as unquestionable as any one of the rights of a people, to require that their rulers shall, in their faith, be Chris- tians. The argument of. the honorable chairman of the committee on this subject, was very simple, but very complete and satisfactory, that if two candidates for an office be before the public, every indi- vidual had a perfect right to vote for one because he is a Christian, and not to vote for the other because he is an infidel. And if every individual have this right, the great majority of Christians in the Commonwealth have as clear, and full a right, to make faith in the Christian religion a prerequisite of office. He would say no more on the subject of the right. He thought that, on no good ground, it could be contested. The great questions then on the subject re- gard the expediency of abolishing the existing test, and the propriety of the substitution proposed in the resolution. On the question of giving up the test, he remarked, that an argument for its abolition was, that the State would thus obtain, in its high and important offices, the talents of a few men, who do not believe the Christian religion. He replied, that during forty years in which this test has stood in our constitution, we have never wanted men, in sufficient 22 170 MASSACHUSETTS CONVENTION. abundance, for all the offices in which it is required. And that no apprehension can be felt, whether we shall continue to have candi- dates enough, who will not shrink from the test, for every depart- ment of government which they can be called to fill. The test is so very broad, that it excludes no one of all the denominations of Christians. He remarked, that we should be exposed to much con- fusion and error on this subject, if we should consider the test now required, as having any relation to the very objectionable tests which have sometimes been required. The test established by the English constitution, for example, required a belief of the thirty-nine articles of the chujch of England. He would resist, with all the energy of the small powers that he possessed, any definition in the constitu- tion, of what Christianity is, as a faith to be required of those who may be elected to office ; and had he not heard the suggestion of the honorable chairman of the select committee, that there were gentlemen in that committee who thought that a solemn declaration of belief of the Christian religion could be made by those only, who were assured also of an eternal interest in the promises of our religion, he should have thought that every man, who had been convinced by evidence of the truth of this religion, and who felt the divine authority of its doctrines and precepts, would conscientiously have made this declaration. He respected the opinions of gentlemen, who gave this construction to the language of the test ; though he could not tliink the language to be fairly susceptible of this import. As he imderstood the declaration,' it implied only that belief, which is a security to the people, that their rulers receive the great funda- mental principles, which are the best security of good laws, and of a good administration of government. He said that, in his view, the most beautiful feature of those parts of oui present constitution, which concern religion, is, that it recognizes Christianity as the re- ligion of the State, in the great principles in which its various sects agree ; leaving unnoticed those in which they differ. Any man therefore, he thought, who believes that Christianity is a divine rev- elation, can make the declaration now required, and comprehend in that declaration, all that it is intended to embrace. On the question of the propmety of abolishing the test, he said, his objections were still more solemn. Either the religion of Jesus Christ is from God or it is not. Either we are accountable to God for all our means and opportunities of advancing the interests of this religion, or we are not. If our religion be from God, and if it be our duty, by all means which are consistent with its spirit, to pro- mote its progress, it is a question on which we ought to pause, whether we shall open the door of office indiscriminately to those who believe, and to those who reject, this revelation of God's will. We all know the descending influence of example. If men should be elevated to high and responsible stations, who are enemies of Christianity, may we not look with some apprehension to the conse- quences ? Sir, if this test had not been established in 1780, I am not certain that I should now have been disposed to advocate it; I MASSACHUSETTS CONVENTION. 171 might have felt a sufficient security in the election of ChristiaA magistrates without it. But it has now become associated with the sentiments, and habits, and feelings of forty years ; and if you now remove it, you declare to the people, and they will not misunder' stand the declaration, — ^that you do not deem it to be of importance that our magistrates should be Christians. Changes which a,fFect long established associations should be made very cautiously. The gentleman from Boston cites to us the words of our Lord, render to CcBsar the things that are Cmsar's ; I hope that we shall feel the importance of the precept. But my New Testament does not add^ "leave to God the things that are God's." I am told to rendek to God the things that are God's. And, sir, we owe it to God, to Christj and to our own souls, to do what we may for the extension and se- curity of our faith as Christians ; and to give our influence, whatever it may be, to the election of magistrates, who will make laws, and administer justice, in the spirit of Christianity. On these grounds I am opposed to the resolutions of the committee ; and wish that the test, from which no inconvenience has yet been experienced, may be retained in the constitution. Mr. Dearborn of Roxbury regretted that the subject of religion was introduced into that body, but since the gates of the temple were thrown open he should with hesitating awe enter in with the multitude, and he hoped he should come out without having com- mitted any offence which should destroy his hopes of happiness in a future world. He said he was well pleased with the report of the committee, and trusted there was sufficient liberality in these en- lightened days to sanction the amendment proposed to be made by it in the constitution. It was a lamentable fact, that our ancestors, who fled to this country to enjoy freedom of religion, brought with them the spirit of religious intolerance. We were however to look for their excuse in the history of their times. Of the constitutions of the several United States, those of this State and of Maryland were the only ones which were marked by bigotry and ecclesiastical intolerance. This was owing to peculiar circumstances existing at the time of their adoption. These circumstances are passed away. At the present time, this test was an unjust exaction and a violation of the unalienable rights of the people. He referred to the opinion of the learned, pious and illustrious Locke, that it was not the busi- ness of religion to interfere with the civil government. It was an established principle that acts, not opinions, were the subject of laws. Political opinions were not subject to a test ; why should those upon religion be subject to any ? They had no right to com- pel a man to throw open the portals of his mind and discover his religious sentiments. He trusted such oppression would not prevail in this free and enlightened country. There was no authority for it in the scriptures, and it was not until the third century that per- sons raised to civil offices were required to believe in any particular religious creed. He had heard it said that this test will exclude immoral and wicked men from office. He asked, if such had been 172 MASSACHUSETTS CONVENTION. the effect of tests in other countries. On the contrary, he thought the tendency of them was to exclude the good and conscientious only. The offer of a sceptre had induced princes to cross them- selves, or to throw off their allegiance to the pope, just as suited their views of aggrandizement. It Avould be said that other nations have religious tests. He believed that many of the nations of Eu- rope had discarded them, and in Great Britain he said the test act was a blot in theii- statute book. It was passed in times of political division, and was intended to operate against the papists, but it was found to apply equally to protestant dissenters, and it was after a long time and many trials in parliament, that the protestant dissen- ters were able to obtain relief In England, a man now goes to take the sacrament, not to repent of his sins, but because he is chosen first lord of the treasury. A measure being adopted by a great na- tion was no' proof of its wisdom or utility. The declaration of inde- pendence which proclaims, and the constitution of the United States which prescribes our rights, require no test ; and he could see no reason why a test should be required by our State constitution. (The above is but a sketch of the gentleman's argument; we do not pretend to do justice to his languEige. ) Mr. HoBBARD of Boston said that what with the sermon of the gentleman from Boston (Mr. Prince,) and what with the elaborate oration of the gentleman from Roxbury, (Mr. Deabbokn, ) he did not know how the remarks he should offer would be received by the committee ; he differed however from both of those gentlemen in his views of the present subject. He held with the chairman of the select committee, (Mr. Webster, ) that the people had a right to require, if they thought it expedient, of their officers a declaration of belief in some religious system. As we ■vfrere a Christian people, we had a right to insist that our rulers should declare their belief in the same religion. The right of exacting this declaration stood on the same ground as the right of exacting an oath of allegiance, or oath of office. Gentlemen had said this requisition was depriving men of their unalienable rights. He did not agree with them. The right to be elected to office was not an unalienable right. It affected neither a man's life, liberty nor conscience. The question then is, is it expedient to require this declaration ? This question was probably agitated when the constitution was made ; and he would ask, have circumstances. changed since that time ? We were a Christian people then ; and are we not now ? And do not the same reasons continue for supporting the Christian religion ? He said they were sent there to see what amendments to the constitu- tion were necessary. He denied that it would be an amendment to admit a mahometan, or a deist, or a jew, to hold an office over a Christian people. He had learned of but two persons, Major Hawley and one since, who had ever objected to making the declaration re- quired by the constitution. He thought there would be inconven- ience from striking out this declaration ; that it would be a disre- spect to om fathers, and a national sin. The third article of the MASSACHUSETTS CONVENTION. 173 bill of rights was at present a part of the constitution. If then it is required to support the Christian religion, was it not wise to have Christian rulers ? Was it wise to commit our religion to the care of enemies ? He did not see the policy of striking out the declara- tion, nor had any sufficient reason been shown in favor of that proceeding. The evils mentioned by the gentleman from Roxbury, arose from sectarian tests ; yet, however impolitic the test act of Great Britain might be considered, there was no country where there was better morality or sounder religion. He concluded by moving to amend the report by adding to the first resolution the following words, being the same as are now contained in the constitution, viz.: Any person, chosen governor, lieutenant governor, counsellor, senator or representative, and accepting the trust, shall, before he proceed to execute the duties of his place or ofiice, make and sub- scribe the following declaration, viz., " I, A. B., do declare, that I believe the Christian religion and have a firm persuasion of its truth." Mr. Austin of Boston observed that it appeared to be the gentle- man's object to amend the resolution by inserting in it what the committee had proposed to reject. He hoped that his motion would not prevail. It was to retain in the constitution a provision inserted forty years ago, which the greater liberality and intelligence of the present day would not have introduced. If it is an error in the constitution we ought to correct it. It required that certain officers, omitting certain others without any reasons for the distinction, should make a declaration of their religious belief as a qualification for the office. He did not agree with the chairman of the select committee who reported the resolution, that we had a right to demand this qualification. ■ On the contrary he held that we had no right to de- mand it — ^that every one who contributes to the expenses of govern- ment and bears his share of the public burthens, has a right to be a candidate for popular favor. -This was the general rule. He ad- mitted there were exceptions. We have the right to demand the qualifications of age, property and residence, because they are neces- sary to insure the proper performance of the duties of the office. But this qualification related to opinions which do not bear upon the duties of government and are not connected with the public safety. This was the distinction — if we pass this line there is no place to stop. No one would say that a belief in Christianity was indispensable in legislators. If the laws would not be well made — if the government could not be cai-ried on^f society would be in danger without a declaration of belief in the doctrines of Christianity, then this would be within the exceptions to the general rule. But it is argued that although it is not necessary for the preservation of civil society, it is necessary to show our respect for the institutions of Christianity. The first is a legitimate purpose, the other an un- lawful one. If it was agreed that it was proper that all those who held public offices should believe in the Christian religion, he was willing to say that he held in little respect the judgment of any one who in the present enlightened state of society, and with the present 174 MASSACHUSETTS CONVENTION. means of information, should not be satisfied with the evidences of Christianity, and still less the integrity of any one who should dis- believe without examination. Bu\ this was merely his opinion as an individual. And who should judge the people — it is their right — let them judge — give them means of information. But place him who believes, and him who sneers at religion, side by side as candi- dates for office, and let the people decide between them. They may be trusted to decide correctly. This is the theory of our govern- ment. He proceeded to the question of expediency. Has the test a good tendency ? The test was relied upon as a security, and the people have sometimes been imposed upon, because they supposed that the government would look to the object. But the test was evaded, and the laws brought into contempt. The Christian religion needs not oaths and tests to protect it any more than it does force. Its empire will be maintained and extended by neither the one nor the other, but the only aid which can be given to secure its triumph, is the diffusion of knowledge. It was argued that the test being a part of the present constitution, it ought not to be taken out. By tak- ing it from the constitution we no more violate the principles adopted by the framers of this instrument, than they violated principles pre- viously established. In 1631, it was ordained that no one should be a freeman, and have the right of voting, who was not a churdh member. This he contended was the true theory if we would have a religious test. We should go to the source — stand at the ballot box, and as each individual came with his vote in his left hand, re- quire him to hold up his right, and swear to his belief in the Christian religion. This was the system of our ancestors, but it was after- wards abolished, and in 1651 they adopted a stricter rule of exclusion. They required that the voter should not only be a member of the church, but should believe in the Christian religion, as it was pro- claimed by the orthodox writers of the day. At the time the con- stitution was adopted, by a belief in the Christian religion was meant an adherence to the orthodox church of the day. This interpreta- tion would exclude very many whom at the present day gentlemen would not exclude. By taking out this provision of the constitution, we adopt the spirit of those who framed that instrument. It was not very discreditable to them, if, after forty years' experience of the test, it should be found inapplicable to our present condition, and he did not think that in rejecting it we should show any disrespect to them or to religion itself. We only say it is unnecessary to mix the affairs of church and state. Mr. Foster of Littleton said that as he was on the select com- mittee, he felt more disposed to make a few remarks on the present question, than he should otherwise have done. In some of the speeches which had been made, there appeared to him to be more of declamation and fancy than solid argument. He did not know that the views of gentlemen were not correct ; he could only say they were not his own. He said there was a greai influence in words — some of them had a bad sound. Such was the word test ; MASSACHUSETTS CONVENTION. 175 and from the arguments he had heard, he should suppose that relig- ion was not a harmless thing ; so at least they struck his mind. What is this test ? not what it is in other countries ; it is a simple declaration of belief in Christianity. The gentleman from Rox- bury had said a great deal in very intelligible and forcible language, about sectarian persecution in other nations, and brought them home to our own country. But this declaration had no more to do with the persecuting spirit of our ancestors, than with the witch- craft of Salem. We live in a more enlightened age, and it is owing to the diffusion of the knowledge of Christianity. This declaration has nothing to do with particular doctrines — we ought not to abol- ish it because there are different opinions. The gentlemen have no objection to the declaration themselves. They all believe in Chris- tianity ; it is only for the benefit of some imaginary characters that they are so solicitous. There have been only two persons known who have stumbled upon this stumbling stone. One in Northamp- ton, now dead, and the other — ^he must not mention names — ^but the chair would know and the committee would know. The first, was a conscientiotis man, a believer in Christianity and a member of the church ; and yet he could not make this declaration, because it was required by the constitution. If this was not fantastical, he did not know what was. If he were living, perhaps he might ex- plain. Gentlemen seem to say, that it is well to be religious at. home ; we will be^ very good iii our private capacities, but when we come here, don't say a word — when we are placed in an ele- vated situation, and can^ do good by our example. When your candle is lit, put it under a bushel, not on a candlestick. He would go farther. There is at this day an unusual zeal for the diffusion of Christianity, even for extending it beyond our own country. But if it is so mischievous a thing at home, why send it to other coun- tries to spoil them ? When some think the millenium is coming, they say, put away all the Christian religion. He concluded by appealing to our own experience under the constitution. If there was a land on earth where toleration was enjoyed in its fullest ex- tent, it was America ; and nowhere more completely than in the Commonwealth of Massachusetts. He hoped the declaration would continue to make a part of our constitution. Mr. S. A. Wells said that he had the honor of being upon the committee which reported the resolve that is now under considera- tion ; that he approved of and voted with the majority. But his conclusion was drawn from very different premises from those which had been laid down and stated by the gentlemen who were of the same opinion as he. They deny the right in the people to prescribe any such condition as a test, to those whom they should select as their rulers. This right in the people, he said, was in his. opinion clear and indisputable. The people undoubtedly have the right to institute such form of government as they conceive to be best calculated to secure their peace and happiness ; the people are the majority, and if this majority is- composed of CJuristiansi and 176 MASSACHTJSETTS CONVENTION. conceived that their security and happiness required that their rulers should also be Christians, they had an undoubted right to prescribe as a condition, that their rulers should testify to their be- lief in the Christian religion. The advocates of the resolve, which prescribes an oath of allegiance, when they deny the right of the people to annex this as a condition of office, because it violates the right of conscience which is unalienable, involved themselves in a dilemma ; for if it be an interference in the right of conscience to require that persons who may be chosen by the people to certain offices shall swear to their belief in the Christian religion, it must also be an interference in the right of conscience, to require that they shall swear by the name of God himself: and what right then, have they to require a declaration in this form any more than in the other. If the people have the right of establishing government, they have the right of establishing such form of governinent as they may think best calculated to promote their security and happiness, whether it be a republican, moneirchical, or aristocratical, or even a hierarchy. After it shall be established, nobody will doubt their right to require an oath of allegiance by those persons who may be selected to administer it. If then, it be a republic, and one of the minority who is in favor of one of the other forms, is elected to office, and cannot or will not subscribe the oath of allegiance, he, according to the arguments of the gentlemen who deny the rights of prescribing conditions, is dpprived of his right as a citizen, or is disfranchised. The right of prescribing a religious test is equally clear as the right of prescribing a political test. The Convention that framed our present constitution, in wisdom, learning, and patri- otism, and a knowledge of the rights of man, was not inferior to this. I shall be very unwilling therefore, that this Convention should sanction an opinion by which that enlightened body of men should be declared either ignorant of the right of the people, or that they knowingly violated it. He said that he was in favor of the re- solve, because he was not settled in opinion that it was expedient that such a condition for office should be required, as that which it is proposed to remove. He felt satisfied that in another part of the constitution sufficient provision was made on the subject of religion. He alluded, he said, to the third article in the bill of rights. It was to this he looked for all those benefits which society were to derive from the public worship of God, and from a general diff"usion of piety, religion and morality. This would make a Christian people, if anything would, and consequently we may expect that the people would elect none to office who are not Christians. He might, he said, bring forward additional arguments in favor of this opinion, but did not judge it necessary. He however would not conclude with- out making a few remarks on the observations of the gentleman from Roxbury, who denied the right in the people to require that their magistrates should subscribe a religious test. As an extenua- tion, I presume, of the crime of violating the right of conscience of which the great men who framed the constitution of 1780 were MASSACHUSETTS CONVENTION. 177 guilty, he said, that they acted under the influence of those religious prejudices, which made a part of that government of which they had declared themselves independent. I had thought that the gentleman was eicquainted with the history of his own country, and the char- acter of those wise, learned and patriotic nien. No one can know much of their characters, who will assert that they were under the influence of any such prejudices, either civil or religious : if it had heen so, we should not probahFy be in possession of the civil and religious privileges which we now enjoy. Mr. Stone of Boxborough said he hoped the amendment to the resolution would be adopted. He was aware that religion was an aff'air entirely between the creature and his Creator, and that govern- ment could prescribe no forms to be observed that should- supply the place of it. But he thought that some religion was necessary in every community ; that it ought to be recognized in the constitution of government. Some leligion is recognized, and makes a part of the law of every country. It forms the criterion of right and wrong. It supplies to a great extent the place of law — without it we should have no principle by which in many things we should be governed. Many laws suppose the existence and acknowledg- ment of a certain system of religion. Laws are established that require the observance of the Sabbath. This is a distinct recogni- tion of the Christian religion. It would be unjust towards the Jews who observe a difi'erent Sabbath, unless we have a right to recognize one religion in preference to anothier. Without religion we have no standard for governing the conduct. Gentlemen may say that reason should be our guide. It is no guide — ^it sometimes directs one thingy sometimes another ; it is not to be trusted without the aid of religion, and some general system should be recognized by the government. A particular system was not wanted ; they had been in other countries the cause of bloodshed and numerous evils. But some general system was demanded and he hoped the amendment would be adopted. Mr. Wilde of Newburyport had had some difficulty in forming an opinion on the question, and his mind was not now entirely free from doubt. He should, however, ofier a few arguments, and at- tempt to explain the ground of the opinion which he had adopted, and the vote he should give. He should not at this late hour go fully into the argument of a question which had been so fully discussed ; but merely state a few of those which appeared to have the greatest weight. He first considered the question whether the people have a right to require from their rulers any religious quali- fication. He thought this right beyond all doubt. The people are the source of the sovereign power. It is an attribute of sover- eignty to use all means necessary to promote the public good, provided they do not interfere with the laws of God, or the inalien- able rights of individuals. To require this declaration does not interfere with the rights of conscience. No person has any con- science about becoming a legislator. He is not obliged to accept of 23 178 MASSACHUSETTS CONVENTION. office, and he has no right to claim it. The constitution reprobates the idea that any individual has a right to office. It is expressly- declared in the bill of rights that "the idea of man born a magis- trate, lawgiver, or judge, is absurd, and unnatural." It depends on the will of the people what qualifications they will require for those they elect to office. This doctrine was already illustrated by the chairman of the select committee who opened the debate. They not only have a right to elect whom they see fit, but they have a right to decide now by a general rule, what- qualifications they will demand. It may be objected, that we ought not to bind posterity. This objection is not sound. For every form of government is in- tended to bind posterity. He proceeded to inquire whether it is expedient to retain the test. It is contended, that to reject it, would be an encouragement of infidelity, and an expression of the opinion of the Convention, that we have no respect for religion. If he thought that the alteration would have this effect, it would be an unanswerable argument ; but he doubted whether it would have this efi'ect. If all the articles relating to religion were to be struck out it might be so. But other parts of the constitution will contain an ample expression of our respect for christiemity. In the twenty- third article of the bill of rights, the duty of public worshfp, and of supporting the institutions of religion, is fully expressed. Those Eirticles, he trusted, would in substance be retained, and they would contain an ample expression of opinion in favor of religion, and of the obligation to support it. He knew there were different opin- ions, and it was difficult to reconcile them, unless all in the spirit of conciliation were disposed to yield something. In this spirit, al- though he saw no important reason for rejecting the test, he was willing to relinquish it. He did not see the necessity of retaining it, though he could well suppose the case when it might be neces- sary. If Christians were a bare majority in the Commonwealth, it would be right, because it would be necessary for the preservation of the religion. But there was now nothing to fear. There would be no inconvenience in giving up the test. He had known few in- stances in forty years experience in which it had been of any efi'ect. Cases may arise in which it would have an effect, but the number must be small. There may be those who have a general belief in Christianity, and who yet hesitate to express it in so strong terms as are required by the constitution. It is possible that there may be well disposed and conscientious persons who hesitate in declaring their belief in everything recorded in the Scriptures, and whom yet it would not be desirable to exclude from office. It has been stated also, that there are others who put an interpretation upon the terms of the declaration much more strict than was intended. As he did not conceive that in the present state of the commimity, such a declaration was necessary ; as it was important, not only that we should have good laws, but such as the greatest number of the peo- ple will be satisfied with ; he thought it might be expedient to reject it. He had not the least objection to any part of it, but he was MASSACHUSETTS CONTENTION. 179 Willing to give up something for the purpose of meeting the views of others. The committee then rose, reported progress, and had leave to sit again. Mr. Perley of Boxford had leave of absence on account of ill health. The House adjourned. Tuesday, December 5. The House was called to order at 10 o'clock, and attended pray- ers made by the Rev. Mr. Jenks ; after which, the journal of yes- terday's proceedings was read. Mr. Richardson of Hingham said he had a resolution which he wished to oiFer to the Convention. He had been well pleased with the motion which the gentleman from Boston, (Mr. Webster) inti- mated that he should make, to have the resolution which formed the subject of yesterday's debate, lie on the table until the com- mittee which had under consideration the third article of the bill of rights should make their report, in order that both subjects should be referred to the same committee of the whole. The President told the gentleman he must make some motion, to serve as a foundation for his remarks. Mr. Richardson then offered a resolution that the Convention should proceed to revise the constitution, beginning at the preamble and so going on in course. Every day's proceeding, he said, had satisfied him of the propriety and necessity of this mode, which had been originally proposed by the gentleman from Dracut (Mr. Var- NOM.) Mr. Blake of Boston said the gentleman was out of order, as this question had already been determined. The President decided that the gentleman from Hingham was not in order. Mr. Richardson was going on to make further remarks. The President told him the subject of his motion had been de- cided, and that he was out of order. He might appeal from the decision of the chair if he thought proper. On motion of Mr. Webster of Boston the Convention resolved itself into a committee of the whole upon the unfinished business of yesterday. Mr. Dana of Groton in the chair. The Chairman stated to the committee that the question before them was upon the amendment ofi"ered by the gentleman from Bos- ton (Mr. Hubbard) relating to the declaration of belief in the Chris- tian religion. Mr. S LOCUM of Dartmouth said that if the refusing this amende ment were going to abolish the Christian religion, he should by all means be in favor of adopting it ; but he had no apprehension of ihat being the case. If the amendment had proposed to require this declaration to be taken by the judges of the supreme court, he 180 MASSACHUSETTS CONVENTION. should have liked it better. He wished to know whether other persons were not to have any religion besides the members of the Legislature. He thought requiring this declaration was useless. It was very pleasant to come to the General Court, and a man would make this declaration even if he did not believe in the Christian religion. He asked if taking this declaration would malce such a man a Christian ? On the contrary, he thought it would make him tenfold more the child of the demon than he was before. Religion was a thing between the creature and Creator; it was not to be regulated by the laws of men. When the constitution of Virginia was forming, the Baptists became very uneasy, and they went to General Washington about it ; he told them that if the constitution was going to deprive any man of the free exercise of his faith, he should oppose it. Mr. S. hoped the amendment would not be adopted. Mr. Baldwin of Boston said that after the arguments of yesterday he could not deny the right of th^ people to require such a declara- tion of their rulers ; the only question, therefore, remaining related to the expediency of the measure. Would it tend to make men more Christian ? He thought not. He considered it to be useless, or worse than useless. If a man was already a believer, taking this declaration would not make him more ^o ; and if a man did not be- lieve in the Christian religion, it would give him no satisfaction to have him say that he believed it. He thought the solemn oath re- quired of legislators was sufficient, without obliging them to take this declaration. The terms Christian religion required defining. Some men understood one thing by them, and some another. He was a Christian himself, and he thought every believer ought to pro- fess his belief, but in his individual capacity, and not as a qualifica- tion for holding a seat in the General Court. He could see no reason why such a declaration should not be required of the members of the Convention just as much as of members of the Legislature. He should vote against the amendment. Mr. Nichols of South Reading said his reasons for opposing the amendment were different from any which had yet been urged. If we were a perfectly independent people, we might have a right to require such a declaration, but the constitution of the United States is paramount to the state constitution, and that constitution guaran- ties to the several states a republican form of government. Our con- stitution, with this provision in it, would be an anti-republican form of government, and to make it consistent with the principles con- tained in the declaration of our independence, we should alter a clause in that declaration so as to reeid all Christians are bom free and equal, instead of all men are born free and equal. The requisi- tion had been placed by gentlemen upon the same ground as the requiring candidates for office to be possessed of property. He agreed with gentlemen in the justness of the comparison, and he hoped that requirement too would be abolished ; so that the people, might elect whom they pleased to fill any office, The gentleman MASSACHUSETTS CONVENTION. 181 from Chelsea (Mr. Tuckerman) had said there would be Christians enough to fill offices. He was acquainted with many excellent men among the Universalists, and he had no doubt there might be enough of them found capable to fill all offices ; but this was no rea- son for confining the selection to that class. He was not a deist, but from what he understood of their tenets, there might be very- good men among them every way capable of sustaining any civil office, and the community ought not to lose their services because they had not a qualification which has nothing to do with the fitness for office. This requisition was anti-republican and repugnant to the liberties of the people. He said he would notice one argument which had been used on the other side, viz., that this exclusion would exclude nobody ; if so, he would ask why not strike it out of the constitution ? Mr. Bli&8 of Springfield said that believing the right of the peo- ple to exact such a declaration as is contained in the amendment, and being satisfied in general with the arguments which had been urged in favor of retaining such a declaration in the constitution, he should trouble the committee with but a few remarks. He differed in opinion from gentlemen who had said this declaration was in the nature of an oath. It was not so ; there was nothing in it like call- ing God to witness, or like a promise ; it was a declaration merely, to be subscribed in the presence of several persons. He should not have risen, however, on account of his dissent on this point. He differed as to other points from several gentlemen who had expressed their sentiments. The more the constitution was examined, the more perfect appeared the symmetry of its parts. There was a fit- ness in requiring this declaration to be made by the persons men- tioned in the constitution, because the constitution enjoins it upon those persons to provide for the support of the Christian religion. It is not made a part of the duty of the judges of the supreme court to provide for the support of Christianity, and they are therefore not re- quired to Inake this declaration. In relation to the question of ex- pediency, he made a distinction between inserting such a provision in a new constitution, and striking it out of a constitution which had been in operation so long as our constitution. He would not say how he should act in the former case, but he thought to strike the declaration out of our constitution, would have a deplorable effect. He insisted upon the importance of sustaining religion and morality. Everything which looked like a disregard to religion, had an injurious effect, and he was persuaded that striking out this clause would have a bad effect on many minds, whether justly or not, he would not say. What was said of the religious scruples of different sects deserved very little consideration. This declaration had nothing to do with sects or particular doctrines. Nothing was said in it of the effect it was to have on particular minds ; it did not include the practical influence which some gentlemen seemed to suppose ; it required only a firm persuasion of the truth of the Chris- tian religion. But even if there were a few men who put such an erroneous construction upon it, the good of the community should 182 MASSACHUSETTS CONVENTION. not be sacrificed for their sakes. It had been said that this requisi- tion would have but little influence on people ; he thought other- wise. He thought that men exalted to the office of legislators would deem it of importance to tell what they really believed. An oath might have no efi"ect on some minds ; they could not help it, though it would be a deplorable thing. Ought oaths, therefore, to be abolished ? It was just so with this declaration. He deplored the influence which the striking out this declaration would have on the minds of the people, and particularly of youth. It had been said that good men would be excluded by this requirement. If there should be a few persons in half a century in this condition, they ought not to be regarded in an instrument which has in view the general good. A remark had fell from the learned gentleman from Newburyport(Mr. Wilde) which he thought was not so sound as was to be expected from that quarter. He (Mr. W.) had said that, as the Commonwealth was generally Christian, little danger or in- convenience was to be apprehended from striking out this declara- tion, as few men, not Christians, would be elected ; whereas, if the State had been nearly equally balanced between Christianity and some other religion, it would be proper to have such a provision. He did not disagree with the gentleman on the last point ; but the argument would be stronger for abolishing the requirement, be- cause it would exclude more persons from the government. He hoped this declaration would remain in the constitution, and that the amendment would prevail. Mr. Dean of Boston said if he was persuaded that retaining this declaration in the constitution would do any good, or reflect honor on the Commonwealth, he would retain it ; but he was far from being of that opinion. The design of making this declftration of belief in the Christian religion was not evangelical ; it was not con- strued to include all that is contained in such a profession of reli- gion ; and he asked whether it was proper to have two ways of pro- fessing religion, one evangelical, the other a matter of state policy. It was important that men who rule over a Christian country should be Christians, but it should be eff'ected by other means than by the constitution. Let no legal incapacity of this kind interfere between the people and their choice of rulers. It had been said to be the duty of the government, to bring all their influence to the support of Christianity ; he doubted it. Let there be the example of good legislators; this was better than all their entries in the journal. Their religion should be voluntary, not compelled. You may burn a man at the stake, but you cannot convert him in that manner. If legislators are not good men, it produces a bad efliect to have their declaration staring them in the face. Let a man's conscience and his duty to God lead him to the altar of religion. If you wish men to be Christians, let there be good examples ; let Christian ministers do their work ; support religious institutions ; and the less legisla- tion the better. The religion of England was not owing to her test acts and corporation oaths, but to her bishoprics, her deaneries. MASSACHUSETTS CONVENTION. 183 &c. Surely, Mr. Chairman, this is a much better mode for us to adopt , than to «have recourse to religious tests. Leave religion to the care of God, and it will spread its influence over the globe. Mr. Freeman of Sandwich said he rose as an humble individual to lift his voice against the rejection of the declaration. Alluding to the quarter from which much of the opposition to it had come, if he might use the sentiment of a profane author upon so sacred a subject, he could not but exclaim, " And thou too Brutus — this is the unkindest cut of all." He was surprised to hear so many ministers of the gospel whom he might have expected to be always ready to advocate the cause of religion and morality, giving their testimony in favor of expunging this article. He asked what practical injury had resulted from the article, and what practical benefit would re- sult from exchanging it. Who and what are we ? Are we not de- scendants of the PUgrims, who suffered so many hardships for the purpose of securing the privilege of worshipping God and preserv- ing the institutions of religion in their purity, now engaged in the work of establishing civil government under the auspices of the Christian religion ? It was formerly required that a person should be a church member, to entitle him to participate in the govern- ment ; and at this time the people have an undoubted right to make church-membership a qualification for office. In his opinion men of better lives and more useful members of society would now be- come rulers, if such were the qualification. It would have a good effect upon the individual and upon the community. He would have no objection to demand such a qualification in the chief mag- istratci He was an advocate for religious liberty. He hoped never to see the spirit of the constitution as it respects religious freedom departed from. He would have no sect preferred, no restraint upon the consciences, opinions, or even caprices of men. Let them go where they please, but in a Christian country let it be required that candidates for office shall be Christians. He alluded to an argument which had been founded upon the omission to require the test from judges of the supreme judicial court. He said that as the judges are appointed by the executive, this restriction upon the discretion was necessary — care being taken to preserve the purity of the foun- terin, the streams would be pure. The inhabitants of the town he represerited were a Christian people, and he should be ashamed to go home and meet them after having expunged this declaration from the constitution. Mr. Savage said, the proposed amendment is only the words of the constitution of 1780. (Here an interruption occurred by re- peated and confused calls of the question, which was terminated by the Chairman, who said the highest honor of his life was to pre- side in these deliberations, conjuring the members of the commit- tee to permit the progress of the debate.) The language of the constitution, requiring all officers, executive or legislative, to declare their belief in the Christian religion and firm persuasion of its truth, does not seem a heavy restriction. It is a declaration which the great majority, he hoped he might say every member of this Con- 184 MASSACHUSETTS CONVENTION. vention, would make with readiness. He had taken it with pleasure several years since, and would not object on his own account. But he wished to have the restriction on others removed, and more es- pecially claimed the right to give his reasons, because those which chiefly operated on his mind, had not in the debate been stated by gentlemen in full. Not, sir, that any supporters of the test should be cheirged by me with bigotry; nor because our fathers who formed the constitution, should be blamed as narrow and exclusive in their principles ; but because the result of the restriction is inju- rious to Christianity. The majority of mankind receive their religious principles, as their other education, from their parents and teachers, and they per- haps retain them without inquiry. But men of cultivated minds, and many such there are — when they begin to employ the princi- ples instilled into them in infancy, and to reason about them, often have painful and harassing doubts. These doubts require examin- ation, and it cannot be perfectly had by men of even great advan- tages of education, so as to lead soon to certainty. Not always one year or two will do. Half of life passes sometimes before full con- viction. Yet these doubts, sir, are a proof of honesty ; and if such men are excluded from office till their doubts are removed, an im- proper bias in one case, or a prejudice in the other, is given. He could enumerate many most distinguished men, opposed to our re- ligion, from a misfortune in their early education, who had done great honor to letters, and injury to Christianity, for which their in- structors were chiefly to be blamed. But he would spare the patience of the committee. He could not, however, omit one. The cele- brated Gibbon, born and educated a protestant, converted or per- verted to the Romish church, banished by his father to a foreign land to be converted again, and then converted, indeed, but to nothing, almost a universal skeptic. But for the injudicious treat- ment of his parent, he might have done as much honor to Chris- tianity, as his means allowed him to off'er injury. Such a man was not afraid to enter upon office ;• and when required to express his assent to such a declaration as this proposed, he either does or does not. He does, and declares an untruth. But with his hypocrisy he passes equally as well as the majority'of firm believers around hirn — and will not this prevent his fair and full inquiry, when it is ur>- necessary for his purpose ? Or, sir, he does not declare his assent, and forever after acquires a prejudice against the religion that op- poses his entry to office. Yet, sir, that man I would have voted for as a candidate for political power, much as I difi"er from his opinions on religion. I would not insist on his declaring his belief of Chris- tianity, because it might prevent his conversion to it. In our own country too, many distinguished men, at some time in their lives, have not enjoyed a settled faith in Christianity. I have been in- formed on high authority — it is not to be sure within my own knowledge — that the illustrious President of the Convention of 1780, the venerable Bowdoin, afterwards governor of the Common- MA,SSACHUSETT8 CONVENTION. 185 wealth, was many years not a believer in our religion. Yet he held office with great approbation of his constituents, and was deserving of it, as an honest man. Afterwards, by following the current of evidence, on due conviction, he declared his assent. But while in the state of uncertainty, had the test been proposed to his mind, do not gentlemen see the evil consequences either of hi& assent or re- jection ? Such is often the case of the truest asserters of the faith. Many reach to middle age, who have never been called by their circumstances to examine the opinions heedlessly received, almost by infusion, in their early childhood, and then find them, or some of them, unfounded, and thinking the whole must go together, have rejected at once the substance and the accidents. Some they are told are fundamentals, which they are sure are false ; and stripping off these, they suppose the whole false, because they have not learned to distinguish the parts. He wished every man to come into office without a prejudice against the Christian religion, if he had not studied it sufficiently to acquire satisfaction of its truth, and thus, he thought, our principles would be more sure to prevail, and for this reason he hoped the amendment would not be adopted. Mr. Walker of Templeton was one of the select committee who reported this resolution, and he rose to express some of his reasons for voting in favor of it. The majority of , the people had the right to adopt such rules as they should think proper for promoting the public good, provided they did not interfere with the inalienable righ,ts of individuals. The right of every one to be protected in the enjoyment of life, liberty, and property, were admitted to be fun- damental principles. As it regards the right of demanding a relig- ious qualification in a candidate for office, there is a difference of opinion. Admitting that we have the right to demand it — he doubted the expediency of it. He was opposed to it, because it did no good. If it was a real qualification he would retain it. The experience of forty years had not shown it to be of any use. If there are infidels, it will not operate to exclude them from office. A deist would consider it an impo'sition that he should be com- pelled to make the declaration, and would make it though he did not believe it. Men of loose lives will make the declaration — they have made it — there have been bad men who have come forward and made the declaration, considering it an imposition, and that they are not bound by it. The constituents ought to be judges of the character of those they elect — they know them and will deter- mine their qualifications. He did not agree that the constitution should be approached with that awe and trembling which would deprive us of our senses. The constitution of the United States was the work of great and wise men, and they did not consider a religious test necessary. He was not afraid that our constituents would think that we were treating religion with contempt — they are an enlightened people and are capable of judging. He thought it his duty to give his voice in favor of the resolution. Mr. Sturgis of Boston said that no gentlemen had attempted t;o 24 186 MASSACHUSETTS CONVENTION. show that the test had produced any harm. He thought it incum- bent on them to show this, to authorize striking it out of the con- stitution where we now find it. In answer to the argument of the gentleman last speaking, founded upon the example of the United States consitution, he contended there was no analogy between the two cases. He remai-ked in answer to the argument of the gentle- man from Boston, that it would operate to exclude from office men who have not made up their minds upon the evidences of Chris- tianity, that he would not do gentlemen so situated, so great an injury as to divert their minds from the important duty of satisfying themselves on this subject, by calling them to public offices where their services could very well be dispensed with. Mr. HussET of Nantucket said the object of the Convention was to make such alterations and amendments in the constitution as may be deemed necessaiy and expedient. Is it necessary to ex- punge that part of the constitution which requires a declaration of a belief in the Christian religion, is a question truly momentous and important. I would ask, sir, what benefit can possibly result to the citizens of this Commonwealth, from throwing open the doors and admitting a race of unbelievers to the rights of legislation. By introducing them to important offices and to a seat in our Legisla- ture, we shall add to their weight and influence, and consequently promote the growth of infidelity. With these views I shall be in favor of retaining the religious tegt. Mr. Flint of Reading spoke in favor of the amendment to the resolution. After expressing his respect for the framers of the con- stitution, his reluctance to change any important principle which they had established, the Interest which pious and good men feel in the preservation of this principle of the constitution, and the tears which they would shed if it were to be rejected, he proceeded to argue that no advantage would be gained by admitting to im- portant offices men who have not a firm persuasion of the truths of Christianity. Mr. Williams of Beverly contended that there was more danger of insincere professions of belief if they were demanded as a quali- fication for office, than there was in professions on admission to the church. The temptation of office may lead to false professions. If he understands the language of the declaration required by the constitution, it demands that belief which is required for admission to the church of God. It contains all that language can embrace, and he had yet to learn the propriety of requiring as a qualification for office, such a religious profession. Gentlemen had expressed a reluctance to expunge this requisition from the constitution on account of its antiquity. He had not this respect for antiquity. Brahma and Confucius were more ancient than Christianity itself. He thought it his duty to raise his voice against the amendment, and hoped it would not succeed. Mr. J. Phillips of Boston replied to some of the arguments against the amendment. He was opposed to any change in this MASSACHUSETTS CONVENTION. 187 part of the constitution as a departure from the example of our an- cestors, and as part of a system of innovation which would tend to weaken the supports of religion, and he should resist every such change as long as he had any power. The question was then taken on the amendment, and decided in the negative, 176 to 242. The question was then stated on the adoption of the resolution as reported by the select committee, and decided in the affirmative. Mr. Wake of Boston then offered a resolution, which, after some conversation respecting the most suitable time for considering it, he withdrew. The purport of the resolution was, that the constitution should require in candidates for office, the reputation of being be- lievers in the Christian religion. The second resolution, which declares what offices holden under the constitution, shall be considered incompatible, was then taken into consideration. Mr. Webster said, that as the constitution was framed before that of the United States, there was necessarily a deficiency in that part of it which relates to incompatibility of offices. The present reso- lution first provides that no person holding any office under the authority of the United States, postmasters excepted, shall at the same time hold the office of governor, lieutenant-governor, or coun- sellor, or have a seat in the senate or house of representatives of this Commonwealth. It next provides that no judge of any court in this Commonwealth and several other officers, shall continue to hold their offices after accepting the trust of a member of Congress ; and that judges of the courts of common pleas shall hold no other office except that of justice of the peace, and militia offices. He proceeded first to inquiry whether it was proper to provide that no judges of any court should sit in the Legislature. The prohibition is now confined to justices of the supreme judicial court. The com- mittee thought that there was no objection to extending it to judges of the courts of common pleas and other courts. They went on the presumption that when an office was established, it would be one which demanded as much attention as the incumbent could con- veniently give to it. There was besides an impropriety in mixing the legislative and judicial departments. In all the courts there was business of importance. Since the establishment of the con- stitution, the courts of common pleas had much increased in impor- tance and dignity, and they were likely still to increase, and it was therefore more expedient that the judges should confine their atten- tion -to the duties of their offices. There was also an objection to their holding a seat in the Legislature, from the manner in which they are elected. It seemed improper that the judges of the land should become candidates for popular favor at the annual elections. In proposing to exclude officers of the United States from the higher offices in the Commonwealth and from a seat in the Legisla- ture, they had followed the example of almost all the state consti- tutions recently formed. The general principle would exclude 188 MASSACHUSETTS CONVENTION. postmasters, but this office is, in a large proportion of cases, one of no emolument, but of some trust, and it appeared not advisable to exclude from the scope of the postmaster-general, in making these appointments, so many persons as would be excluded, if the accept- ance of the office were to shut them- out from all offices under the State govermnent. After several ineffectual attempts to amend the resolution, it was jBinally adopted without alteration. The third resolution of the select committee, which provides the mode in which amendments shall be hereafter made to the consti- tution, were then taken up. Mr. Nichols moved to strike out the words "two-thirds," with a view of inserting "a majority" or -'three-fifths." Mr. Webster said, that if these words were struck out they could not be again inserted. But if the proposition should on a vote be disapproved, any other proportion could be substituted. The com- mittee, in filling the blank, were governed both by their own sense of what would be the most proper number, and by the consideration, that this, being the highest number which would probably be proposed, would necessarily be first put. They thought the Conven- tion would have a view to the permanency of the constitution, and would suppose that it would be necessary to change it only for practical purposes. It had been found, in the practice of forty years, that it had served to protect all the essential rights of the citizens ; that the great outlines were so established as to need no alteration. It was thought, therefore, that a provision for a general revision was urmecessary. Any plain, sensible, and useful alterations which might be sug- gested, the people would see, and in the mode proposed would easily , be effected. It was not thought proper that the Legislature should have the power of submitting such alterations to the people by a small majority. But if the alteration wjis obviously useful and necessary, the public opinion would demand that the Legislature should sanction it by the required majority. When the question was once submitted to the people, a majority only was required to approve the amendment proposed. Mr. Parker, of Charlestown, Mr. Childs, of Pittsfield, and Mr. Nichols, spoke in favor of the amendment, and Mr. Blake and Mr. Foster against it. The question was then taken on Mr. Nichols's amendment, and decided in the negative. Mr. Webster moved to amend by inserting the words, " with the yeas and nays on the passing thereof," after the direction that the proposed amendments shall be entered on the journals of the two houses. This amendment was agreed to. The question was then taken on passing the resolution, and determined in the affirmative. The second report of the same committee relating to the authority to incorporate towns with city privileges, was then taken up and the resolution read. MASSACHUSETTS CONVENTION. 189 Some debate was had upon this resolution, and the blank was filled with " five thousand." After further debate, on motion of Mr. Bliss, the committee rose, reported progress, and had leave to sit Eigain. At a quarter past two the, House adjourned to nine o'clock, to- morrow. Wednesday December 6. The Convention met at 9 o'clock, and attended prayers offered by Rev, Mr. Palfbet. Mr. Prescott of Boston, from the standing committee under the third resolution, ofi'ered the following reports, which were read : Commonwealth, of Massachusetts. In Convention, December 6, 1820. The committee, to whom it was referred to consider whether any, and if any, what alterations or amendments it is proper and expedient to make, in so much of the constitution as is contained in the second section of the first chapter of the second part, and respects the senate, and also so much thereof as is contained in the third section of the same chapter, and respects the house of representatives, ask leave to report the following resolutions : — 1. Resolved, That it is proper and expedient so far to alter and amend the consti- tution, as to provide, that there shall be annually elected, by the free-holders and other inhabitants of the Commonwealth, thirty-six persons to be senators for the year ensuing their election. 2. Resolved, That it is proper and expedient so far to alter and amend the consti- tution, as to provide that the number of districts into which the Commonwealth shall be divided for the purpose of electing senators, shall never be less than ten. 3. Resolved, That it is proper and expedient further to alter and amend the consti- tution, so as to provide, that no county shall be divided for the purpose of forming a district for the election of senators. 4. Resolved, That it is proper and expedient so to alter and amend the constitution, as to provide, that the several counties in the Commonwealth shall be districts for the choice of senators, until the General Court shall alter the same, — excepting that the counties of Hampshire, Hampden, and Franklin, shall form one district for that pur- pose, and also that the counties of Barnstable, Nantucket, and Dukes County, shall together form a district for that purpose, and that they shall be entitled to elect the following number of senators, viz : SuflFolk, six ; Essex, six ; Middlesex, four; Wor- cester, five ; Hampshire, Hampden, and Franklin, four ; Berkshire, two ; Plymouth, two ; Bristol, two ; Norfolk, three ; Barnstable, Nantucket, and Dukes County, two. 5. Resolved, That it is proper and expedient further to alter and amend the consti- tution, so as to substitute " the first Wednesday in January," for " the last Wednes- day in May," in every place where these, words occur in the second section of the first chapter. 6. Resolved, That it is proper and expedient so to alter and amend the constitu- tion, as to provide that the governor, with four of the councy for the time being, shall, as soon as may he, examine the returned copies of the record of the names of the .persons voted for, and, of the number of votes against each name, instead of five of the council, as is now provided in the third article of the second section of the first chapter. 7. Resolved, That it is proper and expedient so to alter the constitution as to pro- vide that not less than nineteen members of the senate shall constitute a quorum for doing business. 8. Resolved, That it is proper and expedient so to alter and amend the constitu- tion, as to provide that every corporate town, containing twelve hundred inhabitants, and also all corporate towns now united for the purpose of electing a representative, and having together a like number of inhabitants, may elect one representative. 9. Resolved, That it is proper and expedient further to alter the constitution so as to provide, that twenty four hundred inhabitants shall be the mean increasing number which shtiU entitle a town to an additionaj, representative. 190 MASSACHUSETTS CONVENTION. 10. Resolved, That it is proper and expedient further to alter and amend the con- stitution so as to provide that each corporate town in this Commonwealth, containing les3 than twelve hundred inhabitants, — and also all the corporate towns which are now united for the purpose of choosing a representative, and have together less than twelve hundred inhabitanjts, shall be entitled to elect one representative every other year. 11. Resolved, That it shall be the duty of the Legislature, at their first session after the census which is now taking under the authority of the United States, shall be completed, to divide the towns in each county containing less than twelve hundred inhabitants, including towns united as aforesaid, into two equal classes. That the first of these classes sl^ll comprise half the towns in number, (those united as afore- said to be considered as one town,) and those towns which contain the greatest number of inhabitants ; and that each of the towns in this class shall be entitled to elect one representative the first year after they shall have been so classed. That the second class shall consist of the other corporate towns in the county having less than twelve hundred inhabitants', including those united as aforesaid, each of which shall be entitled to elect one representative the second year after they are so classed ; and that the towns so classed may each thereafter continue to elect one representative every other year ; and if the towns in any county shall happen to con- sist of an uneven number, the town making such an uneven number shall be placed in the second class, and be entitled to elect a representative every other year. 12. Resolved, . That it is proper and expedient so to alter and amend the constitu- tion, as to provide that whenever the population of any corporate town, or of the towns united as aforesaid, and classed as aforesaid, shall have increased to twelve hundred inhabitants, according to the census hereafter to be taken under the author- ity of the United States, or of this Commonwealth, such town or towns so united shall thereafter be entitled to elect a representative. 13. Resolved, That it is proper and expedient so to alter the constitution as to pro- vide that every town which shall hereafter be incorporated within this Common- wealth shall be entitled to elect one representative, when it shall contain twenty-four hundred inhabitants, and not before. 14. Resolved, That it is proper and expedient so to alter the constitution as to provide that the members of the house of representatives may be paid for attending the General Court during the session thereof, out of the treasury of the Common- wealth. 15. Resolved, That is proper and expedient to alter and amend the constitution so as to provide, that not less than one hundred members shall constitute a quorum for doing business. , 16. Resolved, That it is proper and expedient so to amend the constitution as to provide that no member of the house of representatives shall be arrested on mesne process, warrant of distress, or execution, during his going unto, going from, or his attending the General Court. 17. Resolved, That it is expedient so far to alter and amend the constitution as to provide that the senators shall have the like privilege from arrest as the members of the house of representatives. All which is respectfully submitted. By order of the committee, WILLIAM PRESCOTT, Chairman. This report, on motion of Mr. Prescott, was committed to a committee of the whole, assigned .to Friday at 9 o'clock, and ordered to be printed. SECOND REPORT. The committee on so much of the constitutional is contained in the second section of the first chapter of the second part, and respects the senate, and also so much thereof as is contained in the third section of the same chapter, and respects the house of representatives, and who were instructed to take into consideration the propriety and expediency of inserting, at the end of the second article of the second section of the first chapter, respecting the senate, an amendment, that on the first Monday of April, or on day of the election of governor, lieu- tenant governor, and senators, and the elections of electors of president and vice president of the United States and representatives to Congress, if such elections are MASSACHUSETTS CONTENTION. 191 to be had during the year, of representatives to the General Court, and of all town and county officers, shall be had on said day, ask leave to report the following reso- lutions : — 1. Resolved, That it is proper and expedient so to alter and amend the constitu- tion as to provide that the meetings of the inhabitants of each of the towns in the several counties in this Commonwealth, for the purpose of electing governor, lieu- tenant governor, senators and representatives in the Legislature of this Common- wealth, shall be holden on the same day in each year. % Resolved, That it is expedient so to alter and amend the constitution as to provide, that the meetings of the inhabitants of each of the towns in the several counties in this Commonwealth, for the purpose of electiilg governor, lieutenant governor, senators and representatives in the Legislature of this Commonwealth, shall be holden on the day of annually. 3. Resolved, That it is not expedient so to filter the constitution as to provide, that the meetings of the inhabitants of all the towns in the several counties in this Com- monwealth shall be holden on the same day for the choice of electors of president and vice president of the United States and representatives in Congress, as for gov- ernor, lieutenant governor, senators and representatives in the Legislature of this Commonwealth. 4. Resolved, That it is not expedient so to alter or amend the constitution as t6 provide, that town officers or county officers, shall be chosen on the same day as gov- ernor, lieutenant governor, senators and representatives in the Legislature of this Commonwealth. For the committee, WILLIAM PRESCOTT. The report being read, was committed to the committee of the whole, assigned to Friday at 9 o'clock, and ordered to he printed. Mr. Jackson of Boston, from the committee to whom the subject was committed, reported the following resolutions: In Convention, December 5, 1820. I. Resolved, That all such amendments in the present constitution of the Common- wealth, as may be made and proposed by this Convention, shall be submitted to the people for their ratification and adoption, in town meetings or district meetings, to be legally warned and held on the day of next ; and at which meetings all the inhabitants qualified to vote for senators and representatives in the General Court may give in their votes by ballot, for or against the general amendments that shall be so proposed. And the selectmen of the respective towns and districts shall in open meeting receive, sort, count, and declare the votes of the inhabitants, for and against each of the said amendments ; and the clerks of the said towns and districts shall re- cord the said votes ; and true returns thereof shall be made out under the hands of the selectmen, or the major part of them, and of the clerk ; and the selectmen shall enclose, seal, and deliver the same to the sheriff of the county, within fifteen days after the said meetings, to be by him transmitted to the office of the secretary of the Commonwealth on or before the day of next, or the said selectmen may themselves transmit the same to the said office on or before the day last mentioned. 9. Resolved, That a committee of this Convention be appointed to meet at the State House in Boston, on the said day of who shall open and examine the votes then returned as aforesaid, and shall as soon as may be certify to his excel- lency the governor, and also to the General Court, the number of votes so returned for and against each of the said amendments, and each one of the said amendments that shall be approved by a majority of the persons voting thereon, according to the votes so returned and certified, shall be deemed and taken to be ratified and adopted by the people. . 3. Resolved, That a copy of all" the amendments made and proposed by this Con- vention, shall be attested by the president, and by. the secretary thereof, and transmitted to his excellency the governor, and another copy shall be attested as aforesaid, and engrossed on parchment, and shall, together with the journal of the proceedings of this Convention, be deposited in the office of the secretary of the Commonwealth. And a printed copy of the said amendments, attested by the secretary of this Con- vention, shall be transmitted as soon as may be, to the selectmen of every town and district of the Commonwealth. 4- Resolved, That all the amendments made by this Convention shall be proposed in distinct articles ; each article to consist as far as may be of one independent prop- 192 MASSACHUSETTS CONVENTION. osition; and the whole to be so arranged that upon the adoption or rejection of any one or more of them, the other parts of the constitution may remain complete, and consistent with each, other. If any two or more propositions shall appeaj to be so connected together, that the adoption of one and the rejection of another of them would produce a repugnance between diifferent parts of the constitution, or would introduce an alteration therein, not intended to be proposed by this Conventioiij such two or more propositions shall be combined in one article ; and each of the said arti- cles shall be considered as a distinct amendment, to be adopted in the whole or rejected in the whole, as the people shall think proper. 5. Resolved, That the several articles when prepared and arranged as aforesidd shall be numbered progressively; and the people may give their votes upon each article as designated by its appropriate number, without specifying in their votes the contents of the article, and by annexing to each number the words yes or no, or any other words that may signify their adoption or rejection of the proposed amendment ; or they may give their votes upon all the articles, or upon any number of them together, without being required to vote separately and specifically upon each of the said articles. The resolutions being read, were, on motion of Mr. Jackson, ordered to lie on the table and to be printed for the use of members. On motion of Mr. Webster, the Convention went into committee of the whole on the unfinished business of yesterday, Mr. Dana in the chair. The resolution relative to the granting of power to the Legisla- ture to incorporate towns with the powers of city government, was taken into consideration. Mr. Shaw of Boston thought that if gentlemen would take time to examine the object of this amendment they would give it a ready assent. He disclaimed all idea of claiming powers or privileges for one cIeiss of citizens, which were not to be equally extended to another. But an act of incorporation for municipal purposes is equally enjoyed by all the towns in the Commonwealth. In other countries, cities were incorporated with substantial powers and privi- leges, — the right of choosing municipal officers ; the right of super- intending subjects of local administration, and, in England, the right of choosing members of parliament. But in this Common- wealth, every town is to all substantial purposes a city. They are towns corporate, having the power of choosing their own officers, and sending members to the General Court, with jurisdiction over all their local and prudential concerns, — such as the support of schools and highways, the relief of the poor, the superintendence of licensed houses, and other matters of local police. They have the power of making by-laws, and assessing and collecting taxes. They possess all the powers and privileges of municipal corporations in Great Britain or in this country. If it were otherwise, and if it were desirable to invest them with further powers, it is_ within the authority of the Legislature to grant it. It is obvious that a large and populoiis town must require many regulations, burdensome and expensive indeed, but yet necessary to its security and comfort, which are not necessary and would not be useful in a small town. Such are the regulations of streets, drains, lamps, the watch, mar- kets, health laws, and many other objects of local policy. Courts must be- erected, particularly adapted to the wants of such a town. But these objects are within the powers of the Legislature, and they MASSACHUSETTS CONVENTION. 193 are always ready amply to provide for them. What, then, is the necessity of granting any further power by an amendment of the constitution ? Mr. S. said he would confine himself to answering this question. The constitution, as it stands, requires a form of town government, not adapted to the condition of a populous town. The inhabitants of towns meet together for the purpose of giving their votes for town, county, state, and United States officers. In these cases the meeting is not deliberative. But they have another class of duties, which consists in deliberating and acting upon all questions falling within their jurisdiction, in which cases tKey are to be considered in all respects as deliberative bodies. But the consti- tution provides that the inhabitants shall meet and the votes be given ia open town meeting ; that the votes shall be counted, sorted and declared in open town meeting, in which the selectmen shall preside. These provisions render it imperative that the voters should meet together in one body, be they few or many. Mr. S. computed that the voters qualified to vote in town affairs were about one fourth or one fifth of the population. In a town of forty thou- sand inhabitants this would give from eight to ten thousand voters. Could this number of persons beneficially meet together in one body for the purpose of election or deliberation ? He thought obvi- ously nof. This then is the essential difficulty. The General Court can grant powers as occasion may require, but cannot dispense with the mode of organization required by the constitution. What then is the remedy ? It is to authorize such an organization as is adapted to the condition of a numerous people, — such an organiza- tion as will admit the inhabitants to meet in sections for the purposes of election, and choose representatives who should meet for the purpose of deliberation, instead of the whole body. Mr. S. pro- ceeded to explain his views more at large, and to answer objections. As to filling the blank it should only be considered what number of persons could conveniently meet and act together without danger of disorder. Probably about two thousand voters might be the highest number, and he should be in favor of fixing at ten thousand, the number of inhabitants over which the General Court should have authority to establish a city government. Mr. Blake of Boston said that he thought that the objection which had been expressed to the resolution arose from the small number with which the blank had been filled, and that there would be little opposition to the principle. It was self-evident that the form of town government, so well adapted to the purposes of small towns, was inapplicable to a large town where there are many in- habitants within a small compass. Boston now contains 40,000 inhabitants, and they may be in 20 years 60,000. How was it possible that such a population should hold a town-meeting ? He thought if the question was put upon a proper footing for trying the principle, there would hardly be a dissentient voice. Mr. Foster of Littleton said that he was not well informed on this subject, and he presumed that many other gentlemen were in 25 ■ ■ 194 MASSACHUSETTS CONVENTION. the same situation. He inquired whiCther a city incorporated with the powers proposed in the resolution would not ■exercise the power of making laws which would affect persons who were not inhabitants of the town, and whether inhabitants of other towns going into a city- would not be liable to be ensnared and entrapped by the operation of laws unknown to other pai'ts of the Commonwealth. Mr. Saltonstall said he would inform the Rev. gentleman last speaking, that he might go into Boston with equal safety after it was a city government as now, that they would have no more power to make-by-laws that might operatVinconveniently on strangers than they now have. They have authority by statute to make regula- tions for the general convenience, and so may all our towns under the authority of the court of sessions, and there are now a great va- riety of such regulations. The police regulations would probably remain the same as they now are. The amendment proposed was not to give the large towns any peculiar powers or privileges, but only to secure their enjoyment of this in common with other towns, as had been fully explained by the gentleman from Boston, (Mr. SuAw.) Mr. S. thought the blank ought not to be filled with a less number than 10,000 — a smaller number would excite greater jealous- ies and be more invidious. If reduced to 5000 there would be many applications from towns which might think there was seme advan- tage in being made cities. He did not know that-towns would de- sire to change their government which was peculiar to New England — he hoped they would not. It is a beautuul system, and had been most salutary. The Commonwealth from the beginning had been divided into these little republics, under a kind of patriarchal gov- ernment, most wisely adapted to their situation, and calculated to preserve the good order of society. At the same time, the Legisla- ture ought to have the right to extend this privilege to the second town in the Commonwealth.* There had been a time when the ex- citement was such there, as to bring 1800 citizens together, equally divided ; a day had been passed in choosing a moderator ; the town had been kept together till late in the evening, and in one instance there was a degree of confusion, to which it is unpleasant to allude, and which had well nigh deprived the town of their right at the election of governor. It may be found convenient to vote in wards. Mr. S. did not wish the government of the town should now be changed, but it ought not to be precluded by the constitution from the privilege, as it may become important hereafter to that and other towns, for the same reasons that now make it necessary in the capital. Mr. Wells of Boston said if the subject were understood, it would be perceived that very little additional power was intended to be ponferred on the Legislature by this amendment to the constitution. He referred the gentleman from Littleton to the sixth article of the declaration of rights, in order to remove his apprehensions with re- spect to exclusive privileges. From that he would perceive that it would be impossible to grant exclusive' privileges to the town of Postpn by virtue of this amendment. The only reason for the reso- • [Salem.] MASSACHUSETTS CONVENTION. 195 lution was on account of electiBns in large towns. He mentioned that in this town, at the town meeting for the election of delegatfes, the selectmen were employed from one o'clock in the afternoon to ten o'clock at night, in assorting and counting the votes; and if there had been as full a vote as there is on some occasions, it would have required three days. Mr. Adams of duincy said he might be mistaken, but he had thought there was no difference of opinion with respect to the gen- eral principle of the resolution, but only as to filling the blank. The inconvenience attending the elections in the large seaport towns was so great, he did not suppose any one could have questioned the ex- pediency of giving the Legislature the power proposed by this reso- lution. Our towns were very happy as at present constituted — he had always loved the system of their organization, and thought that they would not be disposed generally to change their form of gov- ernment. When the legislature of Connecticut gave facilities for all the towns becoming cities, it was inundated with applications fc* that purpose. The legislature began to be alarmed and to hesitate about granting charters of incorporation. At last a little clump of Indians in that state took it into their heads that they must apply for city powers and privileges. This convinced the legislature of the impolicy of granting charters with so much liberality, and there they stopped. If unlimited power were given to the Legislature to incorporate cities, there might be a great many applications, just as there were in Connecticut. He thought in filling the blank, the number of ten thousand was small enough. Mr. Martin of Ma:rblehead followed Mr. Adams. He was op- posed to giving the Legislature power to incorporate cities. The Chaibman told him to confine his observations to filling the blank. Mr. Richardson of Hingham said he should confine himself to that, and should be very concise. He referred gentlemen to the sixth article of the bill of rights, and asked what right they had to say that a town of ten thousand inhabitants shall have city privileges, and one of nine thousand shall not. Mr. PicKMAN of Salem, in answer to the gentleman from Marble- head (whose remarks we Avere not happy enough to hear) said that towns were already corporations, and that to make cities would be only changing corporations, not forming new ones. He was attached to the name and system of towns, and he should consent with reluct- ance to changing the town which he had the honor to represent, to a city. He thought the number ten thousand sufficiently small for » filling the blank. Mr. Martin said the Legislature had already remedied the evil complained of by the gentleman from Salem (Mr. Saltonstall) by providing that the moderator at town meetings should be chosen by ballot. Mr. M. was going on upon the resolution generally. Mr. Webster called the gentleman to order. The question was, for filling the blank. 196 MASSACHUSETTS CONVENTION. The Chairman told him (Mr. M.) ttat he was out of order. He had already spoken once and another gentleman had arisen to speak. Mr. Abbot of Westford was opposed to filling the blank with ten thousand ; and to obviate the objection of the gentleman from Hing- ham, he would propose that the Legislature should have power to gnmt city powers and immunities to any town. The question was taken for filling the blank with ten thousand and carried in the affirmative— 223 to 140. The question was now upon the resolution with the blank filled. Mr. Prince of Boston said the gentleman from Littleton's appre- hensions of being hampered by two opposite systems of laws, those of the Legislature and those of the city of Boston, were groundless, as the Legislature would be composed for the greater part of gentle- men from the country, and could control the city ordinances. Mr. Nichols of South Reading moved to amend the resolution by inserting a provision that the by-laws or municipal regulations of city corporations, should be subject to revision and repeal by the Legislature. His object was to prevent powers being granted to cor- porations which should not be subject to recal. He made the pro- position in consequence of the present doctrine respecting corpora- tions. Mr. Wells thought the amendment superfluous, as the Legisla- ture had the power already. Mr. Blake said the amendment struck him agreeably. The ques- tion of by-laws being repugnant to the laws of the State, was at present to be decided by the judiciary. He thought it proper that the Legislature should have the power of judging in such cases and of repealing when they thought fit. Mr. QuiNCT of Boston, (who had risen at the same time with Mr. Blake,) said that gentleman had anticipated his remarks, and when the meal was well ground, he did not care to have it pass through his hopper. The amendment proposed by Mr. Nichols was adopted. The question was then taken upon the resolution as amended and de- cided in the affirmative — ^291 to 24. The remaining resolution reported by the select committee was then taken up, that it is not expedient to make any further provis- ion, by the constitution, relative to the substitution of affirmations for oaths. Mr. Webster would only state the reasons on which the committee acted. The question had nothing to do with the mode of receiving testimony in the courts of law. All that part of the case rests with the Legislature and the courts — if anything be wrong, in that par- ticular, it can be altered without any amendment of the constitution. No purpose requires a change of the constitution, except that of giv- ing to persons, scrupulous of taking oaths, an option, in respect to offices, to make affirmation. Two things were to be considered — first the general principle — second, the acknowledged exception. The general principle in this government, and all others, was, that MASSACHUSETTS CONVENTION. 197 high offices should be performed under the responsibility of a relig- ious obligation, or oath. The exception in this Commonwealth was, that Quakers might take office, making an affirmation instead of an oath. That which is now objected to the resolution recommended by the committee, was, that it did not provide such an alteration of the constitution, as that affirmations might be substituted for oaths, in all cases, at the option of the party, on his suggestion that he had conscientious scruples. The committee had thought it not proper to recommend this alteration. It appeared to them that the question did not stand on the same ground as in the case of duakers. The duakers were a well known sect ; and it was equally well known that it was a sentiment of that sect that all swearing was unlawful. This was a sentiment, which, whether righfcor wrong, they had long adhered to, and had given full evidence of their sincerity in regard to it. They have suffered for it, and maintained it for near two cen- turies, in the midst of severe trials, sometimes of great persecution. It had therefore been supposed that it was safe and proper to take their affirmation instead of an oath. If a man was a Quaker, that fact alone furnished evidence, in the common understanding of so- ciety, that he was really and truly scrupulous about taking oaths — because his religious sect was known to be scrupulous in that re- spect. But the ^ase stood much otherwise with an individual not belonging to that sect, and therefore giving no evidence of his scru- ples but his own declaration. This declaration might be true, in- deed ; and it might be false ; — and how was it to be decided ? In short, it seemed contradictory and absurd to prescribe oaths of office, and then leave it to the uncontrolled option of the party to take the oath or not. It was possible that the> existing provision might bear hard on here and there an individual. He regretted it — ^but either oaths should not be required at all, or they should not be dis- pensed with, at the mere pleasure of the party. This would be playing fast and loose on a very serious subject. It appeared to the committee, on the whole, that the exception in favor of Quakers stood on distinct and particular grounds ; and that there was no ground on which to support an alteration of the constitution for the purpose of making other exceptions. As to testimony in the courts, that can be regulated elsewhere. The present question merely re- spects qualification for office ; and the committee were of opinion that no new provision was necessary. Mr. Baldwin of Boston deemed it his indispensable duty to show his dissent from the opinion expressed by the gentleman who last spoke. He could not see why one denomination of Christians should be favored more than another. Were the Friends the only people to be trusted? He admired the virtue and simplicity of their char- acter, but other persons were equally sincere in their scruples on this subject. If elected to office, a man might decline taking an oath, by declining the office, but it is not so in courts of justice. An af- firmation was an appeal to God, without coming under the name of swearing. He had religious scruples himself about taking oaths, and had not taken one these forty years. 198 MASSACHUSETTS CONVENTION. Mr. Foster thought it would be nugatory to have any oaths if every body was allowed to substitute affirmations when they pleased. He said he did not consider an affirmation as an appeal to God, but a promise by which a person subjected himself to human penalties in case he falsified the truth. Mr. Newhall of Lynnfield moved as an amendment that affirma- tions should be substituted for oaths in all cases when the party shall have religious scruples about taking oaths. Mr. Nichols was in favor of this amendment. He said it was not generally known that some other denominations besides duakers had religious scruples about taking oaths. He considered the requi- sition repugnant to the declaration of rights. Mr. Webster wished ■to bring gentlemen back to the question. It was necessary to see what were the existing provisions on this subject. He said the regulation of oaths, except those of office, which had been already decided upon by the committee, were the subject of legislation, and the Legislature had full power in relation to them. Mr. W. made other remarks showing the inexpediency of adopting the amendment. Mr. Enoch Mudge of Lynn said he had no such scruples himself, but many in Lynn had. He said the Quakers themselves disliked to see that name in the constitution. They wished to have the principle of substituting affirmations extended to all persons. The question was taken on Mr. Newhall's amendment, and de- termined in the negative — 86 to 278. Mr. Dana, the chairman of the committee of the whole, being one of the electors of president and vice president, and the hour appointed for their meeting having arrived, stated the necessity of his with- drawing from the chair, and Mr. Varnum was requested by the pres- ident to take the chair in his place. The question on the resolution reported by the select committee being stated, Mr. Williams of Beverly moved to amend it, by substituting a res- olution that the constitution be so altered, as that all persons con- scientiously scrupulous of taking an oath, shall in cases when an oath is required, be allowed to affirm upon the pains and penalties of perjury, provided that the persons administering the oath or affirma- tion shall be authorized to question them respecting the sincerity of their scruples. Mr. Webster observed that this proposition would take away all right from Quakers and put it in the power of the magistrate or other person administering the oath or affirmation to compel any one to swear or not according to his discretion or whim. That it put oaths of office on the same ground as other oaths, and it enabled the per- son appointed to administer such oaths to deprive a man of scrupu- lous conscience of the office to which he might be elected. That as to oaths before courts of justice, it was nugatory. The question was taken upon Mr. Williams's amendment and lost, and after a few observations by Mr. Nichols in opposition to MASSACHUSETTS CONVENTION. 199 the resolution the question was taken upon the resolution and decid- ed in the affirmative — ^298 to 29. On motion of Mr. Webster, the committee rose and reported their agreement to the two resolutions. Bill of Rights. — Mr. Bliss, from the committee on the first part of the constitution, offered the following report : Commonwealth of Massachusetts. In CoNVENTioif, December 6, 1820. The committee to whom was referred so much of the constitution of this Common- wealth as is contained in the preamble and declaration of rights, to take into consid- eration the propriety and expediency of making any, and if any, what alterations or amendments therein, and report thereon, respectfully report : That the title and preamble of the constitution, as it stands in the original, is proper and suitable, and ought to remain unaltered ; and that the declaration of rights contains a suitable and apt enumeration of the rights of the people and of the great principles of civil liberty. The committee do not think it expedient that any essential alterations should be made in any of the articles, except the third ; but as it is possible that some expres- sions in them may hereafter be construed as interfering with the constitution and laws of the United States, they have thought it proper to recommend such an altera- tion in the phraseology as may remove all doubt. They also think that the word " subject," where it occurs in said declaration, ought to be changed for a word more consistent with the feelings of freemen. As to the third article In said declaration, while the committee are generally agreed, that the great privilege of religious freedom, and the support of public wor- ship, and public religious institutions are so essential to the well being of society that they hold a distinguished place in that declaration, they have found no small difficulty in settling the mode in which the individual might be secured in the enjoy- ment of the right of selecting the place where he wpuld attend public worship, and of appropriating to the teacher where he attends whatever he is obliged to pay, and at the same time securing to the community the contribution of all the citizens to an object so important as that of public worship. They have -endeavored so to modify that article as to attain those ends, and respectfully submit the following resolutions. By order of the committee, GEORGE BLISS, Chairman. Resolved, That it is expedient that the second and eleventh articles of said decla- ration be amended by substituting the word " citizen " instead of the word " subject." Resolved, That it is expedient that the 12th, 13th and 14th articles be amended by substituting the word "person" for the word "subject" in said articles. Resolved, That it is expedient that the third article in said declaration should be amended by substituting for the word " or " immediately after the words " bodies politic," the words " and," and by adding the words " incorporated' and unincorpo- rated." Resolved, That it is expedient that the same article be further amended by substi- tuting the word " Christian " for the word " protestant." Resolved, That all that part of said article which invests the Legislature with power to enjoin an attendance on public worship, ought to be aimuUed, and be holden no longer obligatory. Resolved, That with the above amendments and alterations so much of the said article as declares the importance of public worship and public instruction, and en- joins upon the Legislature the maintenance thereof, and also secures to societies the right of electing their own teachers, and which is hereto subjoined, ought to be re- tained as a part of said article : " As the happiness of a people and the good order and preservation of civil gov- ernment essentially depend upon piety, religion and morality ; and as these cannot be generally diffused through a community, but by the institution of the public wor- ship of God, and of public instructions in piety, religion, and morality : Therefore, to promote their happiness, and to secure the good order and preservation of- tlieir government, the people of this Commonwealth have a right to invest their Legisla- ture with power to authorize and require, and the Legislature shall from time to 200 MASSACHUSETTS CONVENTION. time authorize and require, the several towns, parishes, precincts, and other bodies politic, and religious societies, incorporated or unincorporated, to make suitable pro- vision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Christian teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily. " Provided, notwithstanding, that the several towns, parishes, precincts, and other bodies politic and religious societies, incorporated or unincorporated, shall at all times have the exclusive right of electing their public teachers and of contracting with them for their maintenance." Resolved, That it is expedient that all that part of said third article which relates to the right of the citizen to elect the teacher to whose use he will appropriate the money he shall be holden to pay, and which immediately succeeds the foregoing, beginning with the words " and all moneys " and ending with the word " raised," should be annulled, and the following substituted in its place, to wit : — " And all moneys paid by the citizen to the support of public worship and of the public teachers aforesaid, shall, if he require it, be applied to the support of public worship where he shall attend, or the public teacher or teachers on whose instruction he attends, whether of a society incorporated or unincorporated ; provided there be any on whose instructions he attends, otherwise it shall be paid tow£u:dsthe support of public worship and of the teacher or teachers of the parish or precinct in which the said moneys are raised. ProvUied, however, That any inhabitant of any parish or member of any religious society whether incorporated or not, may at all times unite himself to any society within this Commonwealth, incorporated for the support of public worship, and having first obtained the consent of such society with which he shall so unite himself — and having procured a certificate signed by the clerk of such society to which he hath so united himself, that he hath become a member thereof, and filed the same in the oflSce of the clerk of such parish or society to which he hath belonged and in which said moneys are raised, he shall not, while he shall remain a member thereof, be liable to be taxed for any moneys raised after the filing of suoh certificate, for the support of public worship, or of any such public teacher, except in the society of which he hath so become a member ; but shall be holden to be taxed in the society with which he so united himself until he shall cease to be a member thereof. Pro- vided, also, that whenever any number of ])ersons not less than twenty, shall have associated themselves ttjgether for the purpose of maintaining public worship, and public religious instruction, and shall have made and signed an agreement in writing under their hands, declaring such purpose, and shall have caused a copy of such agreement to be filed in the office of the clerk of the town or towns to which they shall respectively belong, — they shall in regard to the support of public worship, and the maintenance of public teachers, have all the powers, and be subject to all the duties, of parishes within this Commonwealth — and all persons so associated while they continue members of such society, shall not be liable to be taxed elsewhere for the support of public worship, or of any public teacher of piety, religion and morality. And any person may become a member of such society, so united, and certified as aforesaid, if such society shall consent thereto, and shall not, after he shall have pro- cured and filed in the office of the clerk of the town to which he shall have belonged, a certificate signed by a committee or the clerk of such society of which he shall so have become a member, that he has become a member of such society, and attends public worship with them, shall not be liable to be taxed elsewhere, for any money raised after he shall have filed such certificate, so long as he continues a member thereof, and shall attend public worship with such society, and shall while he is a member thereof be holden to contribute to the support of public worship and of the public teacher or teachers in said society. Resolved, That it is expedient that all the residue of the said third article and which is in the following words, " and every denomination of Christians demeaning themselves peaceably and as good citizens shall be equally under the protection of the law ; and no subordination of any one sect or denomination to another shall ever be established by law," substituting the word " citizens " instead of the words " sub- jects of the Commonwealth," ought to remain as a part of said third article. Resolved, That it is expedient that the twelfth article in said declaration should be amended by varying the expressions from the words " face to face " to the end of the sentence, as follows, to wit : " and in criminal prosecutions to be fully heard by himself and hie counsel." MASSACHUSETTS CONVENTION. 201 Reaolved, That it is expedient that the seventeenth article of said declaration Bhould be amended by adding after the word " Legislature " therein, the words, " and in conformity to the constitution of the United States." Besolved, That it is exi)edient that the twenty-third article should be amended by anrtijUing or expunging therefrom the word "Legislature" at the end of said article. Resolved, That it is expedient that the twenty-seventh article thereof, should be amended by substituting the word "law" for the words "the Legislature." Resolved, That it is expedient that the twenty-eighth article of said declaration should be amended by substituting the words " Legislative authority " for the words " authority of the Legislature." On motion of Mr. Bliss, the report was committed to a commit- tee of the whole, assigned to Thursday at 11 o'clock, and ordered to be printed. Lieutenant Governor and Council. — On motion of Mr. Blake, the Convention went into committee of the whole on the unfinished business of Saturday, it being the report of the select committee on that part of the constitution which relates to the lieutenant governor and council. The question was stated on the resolution offered by Mr. Morton, on Saturday, to strike out the third resolution reported by the select committee, and to insert a . provision that the constitution be so altered that the council be chosen by the people. Mr. Morton withdrew this resolution, which, he said, did not em- brace his original ideas on the subject, and offered a substitute. Mr. Dearborn of Roxbury rose to offer three resolutions, which, if accepted, would serve as a substitute for that under consideration and that reported by the select committee. The purport of these resolutions was, to strike out that part of the constitution which directs that nine counsellors shall be appointed — so to amend that part relating to the lieutenant governor as to provide that he shall be president of the senate, that he may enter into debate when the senate are in committee of the whole, have a casting vote when the senate are equally divided, and when the two houses are assembled in joint body. And that if the offices of governor and lieutenant governor should become vacant, the president of the senate pro-tempore, or„ if there should be no such officer, the speaker of the house of representatives, shall act as gov- ernor. He read also two other resolutions, which he should offer at another time, if these should be accepted ; providing that appoint- ments instead of being made by the governor and council, should be made by the governor and senate ; and that all duties now re- quired of the governor and council, should be performed by the governor and senate. It being objected that it would not be in order to receive these resolutions, Mr. Morton withdrew his motion, and those offered by Mr. Dearborn were read. Mr. Bliss objected that it was not in order to receive these prop- ositions. The committee had already determined all these ques- tions relating to lieutenant governor, and all relating to the council had been once determined ; but the third resolution and that only 36 202 MASSACHUSETTS CONVENTION. had been reconsidered. It was proper to discuss that only, and it was clearly contreiry to the rules and orders, that propositions em- bracing all these subjects should be received. The Chairman said it Avould be impracticable to introduce these propositions in this manner — to propose resolutions which shall do away what has been acted upon by the committee of the whole. The gentleman would have an opportunity to bring forward his proposition in Convention, and it might then, if necessary, be referred to a committee of the whole. Mr. Morton renewed his last motion. It was to substitute for the third resolution of the select committee, one which should direct that counsellors shall be annually chosen by the people by ballots, distinct from those given for senators, in such convenient districts as shall be herein provided for. Mr. Parker of Boston wished that gentlemen who submit prop- ositions to the committee, might have an opportunity of explaining their reasons in support of their motions. In relation 'to this reso- lution, the committee ought to be informed how it was to be carried into effect. It proposed that counsellors should be elected by the people. All this was very good, but the question is as to the form in which this shall be done. They were as much chosen by the people when it was done by their deputies in convention of the two houses of the Legislature, as if it was done in town meeting. But it must be done in districts. How were those to be formed ? He could see no mode which did not present insuperable difficulties. The population of the Commonwealth was about five hundred thou- sand. The districts must be formed with some degree of equality, and seven districts must be formed, each containing a population of about seventy thousand souls. Boston contains forty thousand. What part of the State will you take to make up the rest of the dis- trict ? Will you take the county of Norfolk, or a part of Middlesex, that the voice of the people there may be merged in giving a coun- sellor to the town of Boston ? Worcester would be about large enough for a district — the old county of Hampshire for another ; but Berkshire is too small. Shall .the established lines of Worcester and Hampshire be broken up i or will you go down to Cape Cod and tack the county of Barnstable to Berkshire ? He proceeded to argue that it was not an interference with popular rights — referred to the recent example of Maine, and the practice here for forty years-purged the probability that so counsellors well qualified to perform the various duties would be elected — and recurred again to the incalculable dif- ficulties that must be encountered in forming the districts. Mr. Morton supported his motion. He said that it was expected that the old principle of electing counsellors and senators together would be abolished, for the principle had been departed from in practice. On that principle the counsellors were elected by the people. The committee who have reported an amendment to that part of the constitution which relates to the choice of senators, have said nothing about covmsellors. The people are therefore to be de- MASSACHUSETTS CONVENTION. 203 prived of their voice in the election. The choice by convention of the two houses, he considered a farce. The practice had been to elect nine cqunsellors who had already pledged themselves in sup- port of particular measures. The people who adopted the constitu- tion had no idea that the principle of electing counsellors would be so misused. Mr. Leland of Roxbury thought that the mode proposed would have a saltitary effect so far as it tended to bring into the council men of diiferent political opinions, but he thought that there would be insuperable difficulties in carrying it into effect. Counties be- tween whom jealousies existed, must be united ; a caucus nomina- tion would be necessary. He was in favor of an election by the people, but this proposition he thought visionary and the worst of all the modes proposed. Mr. Blake did not entirely approve of this proposition, but he thought it the best that had been made. He thought it unneces- sary to take the power of election from the people. It was an inno- vation which he would never consent to. He -would not alter one feature or lineament of the constitution that should subtract from the powers of the people. There were solid objections to the choice by the Legislature. The office of counsellor had important duties ; it was next in rank to that of lieutenant governor. All appoint- ments to office were made only by approbation of the council. They had besides great and various duties, hnd it was a mistaken idea that men who had become incapable of active services, and whose faculties were decayed, should be stowed away in the coun- cil, never more to be heard of. If the power of election were taken from the people, there were insuperable objections to giving it to the Legislature. They were the last body that ought to possess it. They were unfit to have much to do with elections. It is their proper duty to make laws and not to elect officers, except in cases where it is indispensable. The gentleman from Roxbury had ob- jected to caucuses. A legislative caucus was the worst of all. Members of the Legislature were subject to undue influences. A reverend gentleman had said, lead us not into temptation ; if you give this power to the Legislature, you not only lead them into temptation, but deliver them over to evil. It was improper to unite the duties of making laws and electing to offices. There was an incongruity in giving the choice of governor and of the council to different bodies. They both constituted but one branch of the gov- ernment. He was not strenuous for preserving the office of coun- sellor. But if it was preserved, they ought to be elected by the people, and there was no alternative but to choose them by districts. There were .difficulties, but they were not insurmountable. He concluded by moving a resolution that it is expedient and proper so to amend the constitution as to reduce the number of counsellors from nine to seven. The Chairman. That resolution has already passed. Mr. Blake then moyed to amend the resolution of the select comr 204 MASSACHUSETTS CONVENTION. mittee, so as to declare that it is not expedient to make any altera- tion in the constitution in regard to the election of counsellors. Mr. Adams was opposed to the amendment offered by Mr. Blake. He would much rather vote for an annihilation of the council. What is the council? It is an essential part of the executive. The governor is only primus inter pares. Every member has an equal vote with the governor and lieutenant governor. The executive consists of eleven heads. Who are to appoint nine or ten of these ? The lieutenant governor is appointed, and rightly, by the people. But nine are not appointed by the people. Returning forty men out of whom they are to be chosen, is not expressing the voice of the people. Intermixing them with forty men chosen for senators, is no election by the people at all. His objection was founded on a fundamental principle of a free government. It was essential that the executive and legislative departments should be distinct and in- dependent of each other. Can. any one say that they are distinct and independent, when the Legislature have the power to appoint nine members in opposition to the governor — to obstruct and em- barrass his measures ? He did not say that this had been done, but it might be done. If the council were to be appointed in the manner in which they used to be, it would be necessary to take from them all power of controlling the governor, and to leave the re- ponsibility with him. The two houses of the Legislature make an election of nine out of forty to form a part of the executive. It is such an intermingling of powers as no free government can long live under. If there have been no inconveniences heretofore, they will arise as the country increases — there will be more ambitious men, intrigues, plots, and caucuses. He was for districting the Common- wealth and giving the choice to the people. It is only by giving to the governor a decisive authority that he can administer with success. He had known no governor whom the people have chosen that was not worthy of his place. He had had great expe- rience of the difficulties of checks upon the executive power in the government of the United States. The power given to the senate would be the total ruin of the constitution of the United States, or it must be amended. Mr. Blake withdrew his amendment, and the question returned upon the proposition of Mr. Morton. Mr. Stone of Stow and Boxborough said it was the design of the founders of the constitution, that the people should have a voice in the choice of counsellors. It was true that if the choice was by the Legislature it emanated indirectly from the people ; but this was an innovation and a subversion of republican principles. He an- swered the objection that the people were not competent to choose in large districts. The same objection would lie against the elec- tion of governor and senators. Yet the people choose judiciously. He was opposed to a general ticket, because all would be of one po- litical opinion, and the minority would not be represented. By dis- MASSACHUSETTS CONVENTION. 205 tricts, all parts, all interests, and the different political feelings would be represented. Mr. Foster moved . theft the committee rise. Negatived, 178 to 182. Mr. Bliss spoke at some length in favor of the amendment. He saw no difficulty in forming districts — no objection to annexing counties. Mr. Phillips spoke against the amendment. The committee rose, reported progress, and had leave to sit again. licave of absence was granted to Mr. Noyes and Mr. Hcnt. Mr. Phelps of Belchertown was appointed in the place of Mr. Hunt, on the committee on leave of absence. It was ordered that the standing hour of meeting in the morning, should be 9 o'clock. Adjourned. Thuhsdat, December 7. The Convention met at 9 o'clock, and attended prayers offered by the Rev. Mr. Palfrey. The journal having been read. On motion of Mr. Webster, the Convention took into considera- tion the resolutions reported by the committee on that part of the constitution which relates to oaths, subscriptions, &c., agreed to -in committee of the whole. Mr. TucKERMAN of Chelsca moved to amend the resolution in such manner that persons elected to the office of governor, lieuten- ant governor, senator or representative, should, before entering upon the duties of the office, make and subscribe the following declara- tion: " I, A. B., do declare that I believe in the Christian religion." Mr. Saltonstall of Salem observed that he had intended, as he knew some others had, to address the Convention when the subject was before them, but was prevented by the symptoms of impatience expressed. He had since thought seriously upon it, and believed his duty would not permit his silence, though silence is so great a virtue in this Convention. It was one upon which he could not sacrifice his private opinion to others, however he might respect and venerate them. As to the right of a Christian community to require their rulers to profess their belief in the common religion of the State^it rests on the same basis as the right to require any other qualification for office. The great object of civil society is the pro- tection of the life, liberty and property of the members, and " to furnish them with the means of enjoying in tranquillity their nat- ural rights and the blessings of life ; " and those entering into it have a right to agree upon such a system of government as in their opinion will best promote these great objects. All are bound by their decision — it rests on the assent of all, express or implied. The people of this Commonwealth are a voluntary association, and hav« 206 MASSACHUSETTS CONVENTION. a right to adopt such regulations as they think fit, otherwise they are a voluntary society acting against their will. They have a right to decide what offices they will have, and what shall be the qualifications for them. No objection can be made to the right of requiring this declaration, which will not lie against every other qualification. Mr. S. then proceeded to illustrate it by referring to the qualification of property, age, and residence requii'ed in the governor. All these rest on the same principle — the right of soci- ety, to establish such rules as in their opinion will best promote the great objects of its iustitution. Why then have not a Christian com- munity a right to requii-e this declaration ? Will it not give some additional security ? What is the religion which they are required to profess ? It is too late to dispute its good tendency on rulers and people. It teaches rulers "to rule in the fear of God." This is a mere civil regulation, and was not intended to interfere with the rights of conscience and of private judgment. It abridges no man of his religious liberty. In every community there is a large class who are left in the enjoyment of their civil rights, who have yet no right to political privileges ; they cannot be elected to office. The great object of society is not the right of being rulers, but of secu- rity against wrong. Much of the objection to this test, as it is im- properly called, arises from confounding private judgment and the qualifications which the constitution creates for certain offices. To punish men for believing or not believing is cruelty ; but to annex conditions to office, is perfectly justifiable, and, indeed, nec'essary. Mr. S. also argued the right from the circumstance of its long con- tinuance. It is said government have nothing to do with opinions. The people always elect their officers with a view to their opinions, and why have not the majority in framing a government, the right to agree that they will not elect certain magistrates unless they will declare their belief in the Christian religion ? If the people have this right, then it is a mere question of expediency — it is found in the constitution, and shall it now be preserved or expunged ? But why expunge it ? What evil has it done ? It ought not to be ex- punged unless this is clearly shown. Has it deprived the Common- wealth of the services of good men ? In what instances ? It may have excluded from office unsuitable men. If it had excluded a man even as learned as Gibbon, from the Legislature, it would not have been unfortunate, if he was capable of making such an insid- ious, unmanly attack on our holy religion. As to jews, mahome- tans, deists, and atheists, they are all opposed to the common relig- ion of the Commonwealth and believe it an imposition, a mere fable, and that its professors are all under a wretched delusion. Are such persons suitable rulers of a Christian State ? But this test does much good. It has a good efi'ect on those who take it. They will not be so profligate as afterwards to profess their infidelity, and stamp their characters with hypocrisy. It is in this way a great check to infidelity. Who can tell how much influence it may have had in producing the present elevated character of Massachusetts ? MASSACHUSETTS CONTENTION. 207 If we should . now exj)unge it, it would be a triumph to infidels. Now, they would say, the people of Massachusetts have determined that a profession of Christianity is not necessary to, the enjoyment of the highest honors. The descendants of the Pilgrims have blotted out from the constitution the great recognition of the Chris- tian religion. We ought to consider this subject with the circum- stances with which it is combined — that it is in the constitution — that we are in Massachusetts, and what is proper here might be in- expedient in some other places. We ought to look at the history of Massachusetts and recollect that it is a religious Commonwealth — that it had its origin in devotion to the Christian religion, and that now the spirit of bigotry is gone, we have only the good in- fluence of their principles and institutions. It is an imposing spec- tacle that annually takes place here, when the principal officers of the State, in the presence of their Maker, and of an immense assem- bly, profess their belief in the Christian religion. It is a great public homage to truth. And, this religion is worthy of all our support and encouragement. It teaches all our duty. It commands all virtue and prohibits all vice. It is the greatest bond of civil so- ciety, and we ought to take great care not to lessen its influence. Mr. Q,uiNCY rose to a question of order. He had hoped that the report would have been suffered to lie on the table, until all the re- ports had been acted on. The subjects are materially connected. This is connected intimately with the third article. President. The gentleman is himself now out of order. Mr. duiNCY. I am going to move to lay this report on the table. President. That will be in order. The motion being made and seconded, Mr. d. proceeded to argue that the best course would be to go through in committee with all the reports, before they were taken up in Convention. Mr. Richardson of Hingham spoke in favor of the motion. The question was taken and decided in the affirmative. Mr. Dearborn of Roxbury inquired whether it would be in order to move that the resolutions offered by him yesterday be taken up.' After some conversation on the course most proper to be pursued, the resolutions were taken up and read, and a motion was made that it should be referred to a committee of the whole house. This motion was decided in the negative— 139 to 176. Mr. Q,uiNCY stated that he had voted in the majority on the ques-, tion just taken, and for the purpose that he might be in order to move a reconsideration of the vote. He then moved that the vote be reconsidered, and proceeded to state his reasons for it. In answer to a question whether it was a fair construction of the rule relative to reconsidera'tion to vote in opposition to his opinion for the express purpose of giving him a right to call for the question again, he said that it certainly was, and that it was every day's practice, and for the reason that the gentleman who had made the motion had a right to be heard in support of it ; but when he had waived that right, and any gebttelttan perceived that for want of explanation, the mo- 208 MASSACHUSETTS CONVENTION. tion was likely to be lost, it was perfectly r^ght and .common prac- tice for him to give his vote against the motion, that he might be in order to move a reconsideration, and to state the reasons for the motion. Mr. Dawes of Boston said he yesterday voted in favor of the gen- tleman's proposition being laid on the table, but he thought it a most unfortunate circumstance that he had introduced it. He was in favor, however, of the gentleman being heard if he insisted upon it, though he yet hoped the motion would be withdrawn. Mr. Story of Salem said he hoped the motion for reconsideration would prevail. Extreme diflBculties would arise if they attempted to preclude debate. It was the right of every member to be heard on any proposition he might make for the amendment of the constitu- tion, and they would consult their own dignity, as well as the ad- vantage of the Commonwealth, by giving an opportunity for a full discussion of every such proposition. They were sent there for that purpose and they would save time by pursuing this course ; that otherwise they would be laying a foundation for another Conven- tion. Members would go home complaining of not having been heard, and would argue over again their propositions. This might be attended with most disastrous consequences. He said the vote just passed was contrary to one of their own rules, which requires that every resolution proposing an alteration in the constitution, shall be discussed in committee of the whole, before it is debated and finally acted upon in Convention. If every other gentleman's mind was made up at once, upon hearing any motion read, it was not the case with himself ; and he thought they ought to be content to hear every argument, which gentlemen had to urge on any prop- osition to alter the constitution. The question was then taken for reconsidering the last vote and carried in the affirmative — 310 to 18. It was then ordered, that Mr. Dears okn's resolutions be referred to a committee of the whole, be assigned for Monday at 11 o'clock, and in the meantime be printed. Choice of Council. — On motion of Mr. Story the house went into conamittee of the whole on the report of the standing committee, on the fifth resolution respecting the council, &c. The question before the committee was upon Mr. Morton's amendment to the third resolution reported by the standing com- mittee. The amendment proposed that the counsellors should be chosen by the people in convenient districts, one counsellor in each district. Mr. Hoyt of Deerfield was opposed to the amendment for several reasons. It would be impossible to make a satisfactory division of the Commonwealth into districts. It weis very easy for gentlemen to talk about districting, but if a committee of that body were to take the census with them into one of the lobbies, and attempt to make districts, every one of them would be dissatisfied with any division that should be proposed. He said there would be a difficulty likewise MASSACHUSETTS CONVENTION. 209 in agreeing upon candidates, and described the mode practised in the nomination of senators. That the counsellors might all be of the same profession — that the principle of electing them by the peo- ple was not carried far enough for consistency, as the people ought to supply vacancies just as much as to elect in the first instance — that the rights of the people were in -fact taken away by this mode, by entangling them with too much regulation. Mr. Webster said that in his judgment the decision of the com- mittee would essentially depend on a right understanding of the precise question before it. Very various opinions had been enter- tained in this country on the subject of these councils, and it would be a very wide field of debate, if it were all open. In one state, (New Hampshire) the counsellors were chosen in districts or coun- ties, by the people. In New York, they were elected by the house of representatives, out of the senate ; in Vermont, they were chosen by general ticket. As far as he recollected there were but two states, Pennsylvania and Delaware, in which the governor exercised full executive powers, and had no council at all. The power of ap- pointments, in several states, rested principally with the Legislature. In this Commonwealth there had for forty years been a council. It was not now proposed to abolish it. This council possessed a negative. It was not proposed to take away that negative. The Convention had decided that this council should consist of seven members. Upon this state of the case the question arises, how shall these seven members be chosen ? The honorable member from Dorchester proposed to choose them in districts — and to this he (Mr. W. ) was opposed. Whatever he might think under other cir- cumstances, since the council was to consist of seven persons only, he was hostile to district election. His main objection was, that it might operate completely to paralyze the executive government. It was matter of mathematical certainty, that supposing the State to be divided into seven districts, to elect seven counsellors ; and sup- posing an election to be contested in the State, on the ground of any leading question or subject; the governor might be chosen by a ma- jority of ten thousand, and yet a majority of the council be against him ; and this though the districts be fairly and equally made, There might be, for example, four counsellors chosen, in four dis- tricts, each by a majority of one hundred votes ; and there might be three chosen, in the other districts, of opposite sentiments, each by a majority of two or three thousand votes. This was not only pos- sible, but quite probable. It had happened elsewhere, in eflfect and substance, not once only, but he believed three times in the course of seven or eight years. He alluded to a neighboring state, in which counsellors were chosen by districts or counties. This was an entire disarming of the executive jpower. To choose a governor, by the whole people, where every vote counts, and then to place round him a council, chosen in local districts, the general result of which might not express the real wishes and opinions of the whole people, was a paradox, not sasily reconciled. To vest the executive power 2.7 210 MASSACHUSETTS CONVENTION. in the governor chosen by all the people, and yet to put him under the control of seven guardians, chosen in local districts, and often with a view to local purposes, appeared to him to be acting at cross purposes. He maintained that it was taking away from the whole people, the right of choosing the executive. It was more truly a choice by the whole people when made by the immediate represen- tatives of the whole people than when made in local districts. He had nothing to say at present upon choosing counsellors by general ticket ; he had nothing to say upon the present existing mode. The question was simply on the propriety of district elections ; and he did maintain that such was not a fair or effectual mode of constitut- ing a council which should be consonant with the wishes of a ma- jority of the people. It was a mode in which a minority might, not in one case only, but in many cases, not for one year only, but for many years, possess one branch of the executive government, and hold a negative on all important measures proposed by the chief magistrate elected by the whole people. Mr. HussET considered it a valuable feature of the constitution that there should be a council, and that council should be so con- stituted that there should be a harmony between the governor and council. In the Legislative bodies the different parties and interests should be represented ; but in the executive department there was no advantage in this. If there were conflicting parties in the exec- utive branch of the government the public business would suffer. The object of having a council who would act harmoniously with the governor would be usually attained by choosing them in con- vention of the two houses of the Legislature. If they were chosen in districts, there would frequently be no choice, and when chosen there would be a want of unanimity. Mr. Apthorp of Boston was not convinced by the arguments which had been hitherto advanced, that the mode proposed by the select committee was not the best. Gentlemen who talked so much about the people's rights might as well contend that the people should choose the secretary, treasurer and major generals. The choice of counsellors was at present virtually by the Legislature, since it was the custom for those elected from the senate to decline. The people had entrusted the Legislature with the power of making the most important laws, relating to the life and property of the citi- zen ; this was a much greater power than that of choosing coun- sellors. And by the amendment itself, the resort was to the Legis- lature to supply vacancies. He hoped the amendment would not be adopted. Mr. Austin of Boston said that.when the mode of choosing coun- sellors was under consideration, the importance of the office should also be kept in view. All appointments to office and removals from office passed in review before the governor and council. The power of pardoning criminals was lodged in their hands ; questions relating to the militia, came before them ; and many other important ques- tion^ of such magnitude, some of them, as to have shaJsea the foun> MASSACHUSETTS CONVENTION. 211 dations of the political temple. The question then is, how the counsellors shall be chosen ; whettier by the Legislature or by the people ? And if by the people, whether by a general ticket or by districts? The objections to the first mode were insuperable. It was mixing the branches of the government, and it would intro- duce cabals and intrigues into the Legislature. The Legislature were not to be intrusted with this power. Why ? Because they have abused it. What was the theory of our constitution ? That nine members should be selected from the senate who should serve as counsellors. Such was originally the practice. There were ac- cidental vacancies of course. But in 1804 a majority, and in 1805 the whole of the senators selected to sit at the council board declined ; in violation of the intention of the constitution. Another great principle ; although the idea might be sneered at, he would yet in- sist, that the people had a right to choose the council, and by a direct, not a circuitous mode. It was asked by the gentleman from Boston, (Mr. Apthorp,) why are the Legislature permitted to choose the secretary, treasurer, &c. The cases were not parallel. These officers were accountable for their conduct ; it was not so with members of the council. Again, it was said that a choice by the Legislature was a choice by the people. He denied it. Men had been selected for this county who had not an inhabitancy here, and would not have been elected by the people. In regard to the two modes of choosing by the people, Mr. A. argued in favor of choosing by districts. It had been objected by the gentleman from Salem, (Mr. Pickman) that districts would be made for party purposes ; did the gentleman mean to argue from the abuse of the thing ? We have districts for senators and for representatives to Congress. Will the gentleman follow up his argument ? Will he say that his friends who have made these districts, have done it for party purposes ? He will not, because it is not true. But if the Legislature will divide the State into districts for party purposes, they will choose counsellors for party purposes. His object however was to have permanent districts. Some gentleman had said that the districts would be too large ; but if the whole people can vote for governor without inconvenience, cannot one seventh part vote for a counsel- lor ? And what reason was there for taking one counsellor from one part of the State and another from another ? To carry local in- formation to the council board — information which would be useful in making appointments, and in many other questions to be acted upon by the executive. It was said the counsellors might happen to be all of one profession ; so might all the senators, and yet the practical operation of the mode of choosing them was otherwise. Again, it was said the council might be divided in political senti- ments ; this he considered one of the greatest arguments in favor of a choice by districts. It would produce discussion — different ideas would be started — ^men would tax their ingenuity to support their opinions ; this would enable the cool presiding genius to decide with correctness, and execute with firmness. It was said by the gentle-. 212 MASSACHUSETTS CONVENTION..' man from Boston, (Mr. Webstek,) that districting would destroy the people's rights by giving to a minority of the people a majority in the council ; he could not see the force of the remark, or how the case differed from all elections by districts. One more remark ; having the minority of the people represented in the council, though it would not control, as it ought not to do, would yet prevent meas- ures from being carried with a high hand, and the bitterness of party would be allayed. The choice will thus be put on the ground the constitution intended. The choice will be by the people — it is the people's right. You may transfer this right to another body, but you may as well transfer any other of their rights. You may remove one of the main pillars of a temple, and yet the building may stand ; but it will be in a dilapidated condition and the beauty of the architecture will be lost. Mr. Story of Salem went into a full argument eigainst the amend- ment. We shall give only the general heads of his speech. He stated the immediate question to be whether the proposition of the select committee for the choice of a council of seven persons by the Legislature should be struck out, and that of the gentleman from Dorchester, to choose seven counsellors by the people in dis- tricts, should be substituted. This question had been treated as if it were a question about the rights of the people. It was not in the power of the Convention to take away the rights of the people, and no one had any inclination to do it. The question was whether the people will retain in their own hands the power of electing counsellors directly, or will delegate it to the two branches of the Legislature. And the determination of this question rests on their free pleasure. There may be a difference of opinion. But it is not a diminution of the rights of the people to delegate a part of their power. It is in this way only that civil government is founded — it is a delegation of powers to allow the senate and representa- tives to. make laws, and if the people may delegate the power of making all the laws, may they not that of making appointments ? Why do not the people reserve to themselves all appointments — the delegation to the chief magistrate is a surrender of power, but it is useful and necessaxy. Everything dear to us must be overturned if this right of delegation is not to be preserved. The question is whether the people can exercise their own rights most conveniently in one mode or in the other. He proceeded to inquire whether the recent practice in appointing counsellors was a violation of the con- stitution, and contended that the practice was perfectly conforma- ble both to the text and spirit of the constitution. He insisted that the constitution left it entirely to the option of the senators elected to the council, to decline, and that this was a wise provision. If it had been otherwise the more numerous branch of the Legislature would always have the senate in its power. Not only on political questions, but on others which might arise. They might wish to compel the senate to yield to their own views. One such question had already arisen, several years in succession. They would only MASSACHUSETTS CONVENTION. 213 have to choose nine of the most able members of the senate, or such as they believed most opposed to their views, and it would leave the senate at their mercy. Was it to be supposed that the framers of the constitution were not aware of this ? They left it to every man to judge for himself of the expediency of leaving the senate to go into the council. Besides this, there were many gen- tlemen who might be willing to give their time and talents to the public during the sessions of the senate, who would yet be unwilling to accept a seat in the council, and render themselves liable to be called to perform its duties through every part of the year. He next alluded to the argument of the gentleman from Boston, (Mr. Blake) who contended that to choose by the Legislature was rob- bing the people of their rights, and yet closed his speech with pro- posing that this part of the constitution should remain. Mr. Blake explained. He proceeded on the ground that the people had the right by the constitution to act in the election of the council, and submitted the proposition on the ground that if nothing else could be done, we should revert to the mode prescribed in the constitution. Mr. Story did not agree in the gentleman's premises, nor his conclusion. Does not the constitution proceed on the ground that the representatives are worthy to be trusted ? To suppose they are not, looks like a denial, not of right, but of good sense to the peo- ple. He alluded to what had been said of caucuses — and legisla- tive caucuses. He vindicated the practice of holding caucuses for the purpose of making nomination, as useful and necessary. If the Legislature abuse the powers with which they are entrusted, the people will choose other men who will not. He was not aware that there had been abuses. Where there were political parties it was natural that friends should consult together, and it was proper that they should. If it is the representatives of the majority, they are bound to see that the will of the majority is carried into effect, and if they do not act with concert, the minority will slip in against the will of the people. He was not aware that any injury had re- sulted from this practice. When he looked back to the illustrious mezi who had filled the chair of chief magistrate — the illustrious men in the council — when he considered the uniform practice of sending good men to the council, he denied that there could have been ciny abuse. He relied upon the fact and demanded of gentle- men to point out an instance, when men unworthy of the station had been chosen to the office. It had been his misfortune, perhaps his fault, to be a great proportion of the time in the minority in this Commonwealth, and he had always been proud of the men who under the auspices of those opposed to him had been raised to the high offices in the Commonwealth. If districts were to be formed, caucuses must continue to exist. There was no other way in which nominations could be made unless you take the nomination from an individual. They tend to conciliation and unanimity. They are no evil but the necessary consequence of popular elec- 214 MASSACHUSETTS CONVENTION. tions, and they can only be disused when we become so corrupt as to surrender our rights into the hands of some civil or military chief — a period which he trusted never would arrive. He proceeded to notice an error which had crept into the debate — that the counsel- lors are now chosen directly by the people. He then stated several specific objections to the proposition of the gentleman from Dor- chester now before the committee. First, it has on the face of it the plausible appearance, that the people choose, but robs the ma- jority of the people of the right. This had been forcibly demon- strated by the gentleman from Boston (Mr. Webster) and Mr. S. proceeded to illustrate it farther. He showed that the governor might be chosen by a majority of 10, or 15,000 votes, and yet a majority of the council chosen in districts by the same voters might be of opposite opinions to those of the governor. 2d. It would hazard the governor being surrounded by a majority of men of dif- ferent opinions. It would become the leading object of party con- tention, instead of having a governor of particular opinions, to sur- round him by a council who would thwart him in all his measures. The popular leader of a district would be the real governor. The governor chosen by the people would always find one behind the throne greater than himself It would be in effect to abolish the ofiice of governor and set seven wise men in his stead. 3d. In this way the people would lose the power of making the most judicious selection of counsellors — of adapting the selection of each accord- ing to the persons to be associated with him. 4th. It would be throwing out another lure for perpetual party spirit — it would be- come necessary to carve out seven equal districts, to be changed every ten years throughout all time ; and the formations of these districts would be the great object of political power. To suppose that the power of forming them would never be abused, would be disregarding all human prudence. Without alluding to what had already happened, it was easy to foresee that such would be the effect of the proposition. 5th. A further objection was founded on the present distribution of powers under the constitution. The senatorial districts were never to be less than ten, and the Legisla- ture were never to have the discretion to cut and carve in such manner as to unite part of one county with another. Counties were framed for particular purposes, and by the habit of association acquired a feeling of common interest. But this feeling could not be extended beyond the limits of counties. Yet to form these dis- tricts one county must be united with another, and often lose all its powers by being attached to one to which it has a particular dislike. For these reasons (which are here but briefly and very imperfectly stated) he was entirely opposed to Mr. Morton's proposition. Mr. Lincoln of Worcester opposed the amendment. He thought it would be easy to satisfy the gentlemen who were in favor of it that it was impracticable to carry the proposition into effect in a man- ner that should be satisfactory. He proceeded to a particular exam- ination of the modes in which the districting might be attempted, MASSACHUSETTS CONVENTION. 215 to show the insuperable difficulties which must be encountered. He next inquired in what manner nominations would be made in the several districts, for the purpose of showing that the result must be less satisfactory than if made by the representatives of the peo- ple chosen for the purpose. He contended that the appointment by the Legislature was the mode most consistent with the rights of the people, and argued that under the constitution the people have never dii-ectly chosen counsellors — that the mode of electing by the two houses of the Legislature has been sanctioned by the people — that it would have a most injurious effect to introduce into the council men of opposite opinions to thwart the views of the execu- tive, and that it would introduce a principle by which improper ap- proaches would be made to the executive through the counsellors thus selected. Mr. Button rose to call the attention of the committee to the precise state of the question. It was on the motion of the gentle- man from Dorchester to amend by striking out the proposition of the select committee to choose by joint ballot, and substituting the mode of choosing by districts. If the motion was rejected the question would still be open for proposing any other mode ; but if the motion was agreed to, it excluded, not only the proposition of the select committee, but all other modes. He was opposed to the amendment, but if gentlemen did not wish to speak further in sup- port of it, he was willing to waive his right to speak against it. Otherwise he should claim his privilege. Mr. duiNCY expressed his opinion against altering the principle of election already established by the constitution. Mr. Bliss rose in support of the amendment because he had been particularly called upon. He thought there would be no difficulty in forming the districts. Mr. Blake moved that the committee rise. He wished to have an opportunity to answer the arguments of gentlemen, and it could not be done without going iato the details of the subject, which he would not think of entering upon at this hour of the day. Mr. Parkek thought the question had been fully discussed and that the committee was ripe for a decision. If not he was willing to sit there until the sun went down for the purpose of bringing the discussion to a close. The motion that the committee should rise was put and decided in the negative — 97 to 256. Mr. Mitchell of Nantucket thought that the state of the ques- tion had not been correctly explained by the gentleman from Boston, (Mr. Button;) he wished to be informed. Mr. Webster said that the proposition was to amend so that the election should be in districts. All who were in favor of districts would vote for the motion, and all who were for any other mode would vote against it. Mr. Austin called for a division of the question. The Chair- man pronounced it indivisible. 216 MASSACHUSETTS CONVENTION. ' Mr. TiLLiNGHAST of Wrentham said he should vote against the resolution, because he wished to have an opportunity of moving to amend, so that the choice should be by the people on a general ticket. The question on Mr. Morton's amendment was then taken and decided in the negative, 149 to 241. Mr. Foster moved that the committee rise — decided in the neg- ative — 146 to 241. Mr. TiLLiNGHAST then moved as a substitute for the resolution of the select committee, that the constitution be so amended that the governor, lieutenant governor and seven counsellors be annually chosen by the people on one ticket, one counsellor only to be chosen from one senatorial district. The question was taken and decided in the negative — 136 to 222. A resolution was then moved by Mr. Bliss in substance, that the counsellors be chosen in the manner now provided by the con- stitution, except that there should be but gne counsellor in a dis- trict. A motion to rise was decided in the negative — 172 to 200. Mr. Bliss's motion was then put, and negatived. Mr. Blake offered a resolution providing that the choice should be by a general ticket, and stating some of the details of the mode of choice. Mr. Foster renewed the motion that the committee rise. Neg- atived, 174 to 195. Mr. Blake spoke in support of his motion at some length. Mr. Adams of duincy, who had been referred to by the gentle- man who last spoke, said he was very sorry that any gentleman of the committee should allude to him. That he was the representa- tive of a small town, and that no more weight ought to be given to his opinion, than to that of any other delegate. He had been very cautious in speaking from memory in regard to the history of the Convention of 1780, but he thought there was a great variety of opinions in that Convention, respecting the council. He believed that no member of it ever supposed that any senator, chosen a counsellor, should decline ; much less that the whole nine should decline, and retain their seats in the senate. He did not believe there was a member of that Convention, who would have wished the people to be deprived of the right of electing the counsellors. He should vote in favor of the amendment. The motion to rise was repeated and decided in the negative, 125 to 225. The question on Mr. Blake's amendment was taken and carried. 193 to 179. The committee then rose and reported their agreement to the re- solutions as amended. It was ordered that the report should lie on the table and be printed. A4}ourQ8d. MASSACHUSETTS CONVENTION. 217 ™. ^ Friday, Deckmber 8. 1 he Convention met at 9 o'clock, and attended prayers offered by the Rev. Mr. Jenks. After the reading of the journal, Mr. Ward of Boston, chairman of the standing committee on the sixth resolution, to whom the subject was committed, reported the following resolution : Resolved, That the constitution be so amended in the ninth article of the first sec- tion of the second chapter of the second part, that the governor shall have power, by and with the advice and consent of the council, to fill up all vacancies which may happen, m the recess of the General Court, in the offices of secretary and treasurer, by granting coramisions which shall expire in days after the commencement of their next session. The report being read, was committed to the whole on the report of the select committee on that part of the constitution relating to the governor, militia, (fee. Mr. Root of Granville, and Mr. Gardner of South Brimfield, had leave of absence on account of ill health. On motion of Mr. Varnum, the Convention resolved itself into committee of the whole, on the report of the select committee on that part of the constitution /which relates to the governor, militia, &c. Mr. Blake of Boston, in the chair. The report having been read, the first resolution reported was ta- ken into consideration as follows : Resolved, That it is expedient to alter and amend the second article of the said first section by striking out the words " one thousand pounds " and inserting instead thereof, " thousand dollars " ; and also by striking out the words " unless he shall declare himself to be of the Christian religion." Mr. Varnum said that the object of the first change was to accom- modate the sum stated as the qualification, to the present currency of the couiitry, and that the committee did not propose to make any material change in the amount. In the latter part of the resolution they proposed to accommodate the constitution to the principle that had already been settled by a vote of the Convention. Mr. Q,uiNCT of Boston hoped the question would be divided, so as not to put the Christian religion on the same footing with pounds, shillings and pence. Mr. Varnum said it was proposed to fill the blank with four thou- sand dollars. Mr. Parker thought it unnecessary to make an alteration merely on account of the currency, or for the sake of adding five or six hundred dollars to the present sum. Mr. duiNCY said if a new constitution were to be formed, it might be proper to pay regard to the technical accuracy proposed in the resolution ; but what were they sent there for ? Not to introduce perfectibility into the constitution, (if he might use a word that was not English) but to make such substantial alterations as were neces- sary. There would be no end of verbal alterations, and the people would only be confused, if called upon to vote uppn all the minute alterations proposed in that and other reports of the standing com- mittees. There were but two amendments which he was desirous 28 '. 218 MASSACHUSETTS CONVENTION. of making. One was to alter the senate, so as so meet the present circumstances ; and this because it was necessary. Another was to provide for maiking future amendments. But gentlemen were pro- posing to strike out this word and that word for the sake of verbal accuracy. Here it was proposed to strike out the Christian religion. Some member called the gentleman to order, the question being for filling the blank. Mr. Dawes of Boston said he thought they were talking of dol- lars and cents. Mr. Q,uiNCT contended he was in order. Mr. Dawes. The gentleman was not in order. Mr. Q,uiNCY said he had as lief be called to order as not, with re- spect to himself ; but he was contending for the rights of that as- sembly. He was contending that the making so many minute al- terations would throw the people into intellectual confusion. The Chairman said if the gentleman introduced the Christian re- ligion for the sake of argument against the resolution, he was in order. Mr. QuiNCY said he trusted that body were not to be confined by the strict rules of courts of justice where the mode of proceeding was like walking a crack, or like a cart horse on a railway. If he gen- eralized, it was to show the absurdity of the, particular proposition. Mr. Saltonstall rose to move that the consideration of this reso- lution should be postponed until certain principles involved in other reports should be settled. The propriety of adopting the first part of the resolution depended upon the mode in which the amendments were to be incorporated in the constitution and submitted to the peo- ple. The propriety of adopting the second part depended upon the decision which should be made on a report which was now laid on the table, and which would be the subject of discussion. It would be improper to go into the discussion of that subject, as it was in- cidentally introduced in this resolution, and we could not act upoii this resolution until the principle was settled. Mr. Nichols wished that the motion to postpone might be with- drawn until he should have an opportunity of moving an amend- ment to the resolution. Mr. Saltonstall having withdrawn his motion, Mr. N. moved that the resolution should be so amended as to declare that the constitution ought to be so altered, as that no pe- cuniary qualification should be required for ofiice. Mr. Dana considered this an inadmissible proposition. The re- port related only to a particular office. The proposition was to make an amendment that it should extend to all offices. Mr. Nichols so modified" his amendment that it should extend only to the office of governor. He then moved that the resolution should lie on the table. Mr. Webster said the committee could not lay the resolution on the table. A motion to postpone the consideration of the resolution would gain the gentleman's object. Mr. Parker thought the principle involved in the amendment MASSACHUSETTS CONVENTION. 219 might as well be settled now as ever. It could not be necessary to postpone it to accommodate the gentlemen who made the motion, for he apprehended that no gentleman would make a proposition to make a specific amendment to the constitution, without having well considered his reasons. Mr. Nichols said it was an anti-republican principle, to exclude from office by requiring any qualification of this kind. Every re- publican will wish the fees of office to be sufficient to support the dignity of the office. No pecuniary qualification was required by the constitution of the United States for the highest magistrate un- der it, neither was any such required by our constitution, in regard to the judges of the supreme court. There was as much reason for requiring it in these cases as in relation to the office of governor. It might happen, that the wisest and best man among us might be poor, and on that account we must be deprived of his services. He had urged the same argument, the other day, against the test, that it was anti-republican, and he hoped the relics of the bigotry of our ances- tors would now be done away. Mr. Dana of Groton spoke in favor of retaining a pecuniary quali-^ fication. Mr. D. Davis of Boston said he presumed one reason of the qual- ification was, that if the governor should be within the limits, he could not discharge the duties of his office. Mr. Nichols's amendment was negatived. Mr. Varnum moved to fill the blank with four thousand dollars. Mr. Prince of Boston hoped we should not adopt this amendment. He did not think it was necessary. The mere change of denomina- tion was of no consequence. Mr. Foster was opposed to increasing the sum above one thou- sand pounds. He should prefer inserting three thousand dollars. Mr. Sturgis of Boston thought that to insert four thousand dol- lars was not fixing the qualification higher than it was at the time of the adoption of the constitution. The depreciation in the value of money was more than equivalent to the increase in the sum proposed. The question on filling the blank with four thousand dollars was taken and decided in the negative. Mr. Prescott of Boston said he voted against filling the blank with the sum proposed, not because he thought it was too high, but because he thought that no alteration of the constitution in this re- spect was necessary. He was not surprised that this amendment was proposed. It would have been perfectly proper if we were now to make a new draft of the constitution and alter it where it was- thought susceptible of improvement in phraseology or minute details. But it seemed to be generally understood that a different mode of amendment should be adopted which would render trifling alterations- of this sort unnecessary and improper. Mr. Varnum said that we were sent here to make all necessary and expedient alterations in the constitution. We appointed committees on the different parts of the constitution and instructed them to pro- 220 MASSACHUSETTS CONVENTION. pose all such alterations as they should think expedient. On this ground, the committees had proceeded in drawing up their reports. Two gentlemen had alluded in debate to a mode of proposing the amendments to the people as settled. He was not aware that any- thing had been settled on this point. He knew there was a report which proposed a mode of proceeding, that would render it neces- sary for towns, before giving their votes for the acceptance or rejec- tion of the amendments proposed by the Convention, to go into the discussion of each peirticular part. This report had not been accept- ed by the Convention and he hoped they would not adopt that course. If the committee had proposed alterations which the Con- vention did not see fit to approve, he should have nothing to object on that subject. But he supposed that the Convention having sub- mitted the several parts to committees and they having reported, the Convention would act on each specific alteration proposed in their reports. Mr. Adams of Q,uincy rose to inquire whether pounds, shillings and pence were a legal currency ; because the national computation had been adopted, which was in a decimail ratio. Mr. Mattoon of Amherst said the standing committee had pro- posed this alteration, to agree with the national computation. Our children would hardly know the meeming of pounds. Mr. Jackson of Boston thought that this amendment involved the discussion of a question, which the House would be obliged to meet in another shape. The propriety of the amendment depended upon the question, whether the constitution was to be taken into a new draft, or whether the amendments were to be proposed to the people and adopted in the form of independent propositions. If the consti- tution were to be drafted anew, there could be no doubt that it would be proper to substitute the term dollars for pounds in this instance and others in which it occurs, and to make various other verbal al- terations, which in the other mode of proceeding would not bp of any importance. Yet he saw no objection to proceeding at present with- out regard to this consideration, and considering in committee of the whole, how many alterations it is expedient to make. The other . question may depend upon this ; and when the Convention come to reduce the amendments to form, whatever form shall be adopted, it will not be bound by the decision here. The present mode of ex- pression is not liable to any ambiguity or uncertainty, because in another part of the constitution it is provided that where sums of money are mentioned they shall be taken at the rate of six and eight pence per ounce in silver. Mr. D. Davis of Boston said that he had been, at an early period of the proceedings, of opinion that difficulties would arise from its not be- ing distinctly understood in what manner the amendments agreed to should be incorporated into the constitution. Many amendments had been proposed on the presumption that the constitution was to be Eidopted anew. His opinion had been uniformly against this course, and he should vote for no alteration which had not been MASSACHUSETTS CONVENTION. 221 rendered necessary or proper by a change of the circumstances of the country, and the propriety of which should not be acceded to with some degree pf unanimity. He thought it was time that it was settled in what manner the amendments were to be framed, and that some definite determination would be found necessary before we could act upon this report and upon some others, particularly that upon the declaration of rights. The report last mentioned proposed a number of alterations that are entirely verbal. He wished the sense of the Convention could be taken upon the propositions submitted by the committee instructed to consider in what manner the amendments shall be submitted to the people. Until some di^ gested plan should be agreed on, they would be constantly afloat re- specting particular and verbal amendments. If they proceeded to discuss verbal and minute alterations, and it should be decided against making a new draft, the time so employed would be lost. Mr. Webster was satisfied that this and other reports were such as it would be impossible to act upon. It was not from any want of care, or of ability on the part of those who have brought forward the reports, but from an ufacertainty which has existed with respect to the mode of carrying the amendments into effect. He thought that one thing was indispensable — ^that every report should contain plain, simple and independent propositions, which could be under- stood without any reference to the part of the constitution to which they apply. Propositions had been made to amend the constitution by striking out parts and changing words, as if it had been a bill before the House — in which the clerk might erase or insert with his pen at pleasure. (Mr. W. was here called to order and interrupted by some discussion of a question of order, on the supposition that the question before the committee Avas on filling the blank in the reso- lution. The chairman decided that Mr. W. was in order and he pro- ceeded to speak on the resolution. ) He said that if the House voted to make an alteration by striking out one line and inserting another, they would find themselves entangled by the form of the resolution. No committee appointed to draft the final amendment could put it into a different form. He thought it would be impossible to act on the report but by recommitting it to the select committee with instructions that they should report in a form in which it could be understood. If we resolve that we will amend the constitution by striking out an ^S in such a paragraph and such a line, and in- serting a word in such another line — ^by striking out nine in such a paragraph and inserting seven, it is not a proposition thert can be sub- mitted to the people in a form in which they can understand it. He proceeded to illustrate the difiiculty and the means of avoiding it by other exainples. The difficulty would exist in whatever form it was attempted to submit the amendment to the people. Mr. Whittemore of West Cambridge moved to fill the blank with three thousand dollars. Mr. Dana was ready to assent to this proposition, because it was provided in another part of the constitution, to which he referred, that the sum 'might be increased by 'the Legislature. 222 MASSACHUSETTS CONVENTION. Mr. Starkweather moved that the committee rise. This motion was decided in the affirmative, 242 to 94. The committee rose, and leave to sit again was refused. Mr. Webster moved to recommit the report to the same commit- tee. He meant no disrespect to the committee. He knew the diffi- culties which belonged to the subject ; but he thought they would be able to present it in the form in which it might be acted on more satisfactorily. Mr. Varnum wished, if it was recommitted, the Convention would give the committee some instructions. They had already acted ac- cording to their own opinion of what was best. The President. The committee would see what course was adopted by the Convention, in relation to the report respecting the form of submitting the amendments to the people. Mr. Varnum said it would be better that the report should lie on the table. Mr. Webster withdrew his motion to recommit, and moved that the report lie on the table. Agreed to. Mr. Jackson moved that the report on the mode of submitting the amendments to the people, should be taken into consideration. Mr. Varnum. How is it possible to determine upon this subject until it is decided what shall be the amendments ? Mr. Jackson said that the questions presented by this report, un- doubtedly depended in part upon what amendments should be made. But he did not know why the Convention were not able now to decide upon the question whether the amendments should be submitted in the manner proposed, and if decided in favor of this mode, it would save the trouble of discussing verbal amendments. Whether the amendments which involve any principle, were large or small — there would be no difficulty in acting on them in this form. 'The question was taken and decided in the affirmative, 229 to 101. The resolutions reported by the committee, were then read, and the Convention proceeded to consider the first resolution. Mr. Jackson moved to fill the first blank so that the people should give in their votes upon the amendments, on the second Monday of April next. Mr. Sturgis of Boston thought it inexpedient to fill the blank at present, as from the course they were pursuing,' the Convention might continue in session until the day which had been named. The question was taken upon Mr. Jackson's motion, and carried in the affirmative, 182 to 113. Mr. Webster said the principal object in taking up the report, had reference to the mode, and not the time of submitting the amend- ments to the people ; he therefore moved to postpone the present resolution and pass to the fourth. Mr. Prince of Boston had not expected this subject would be taken up at present, and had consequently not made up his mind upon it. The mode of submitting the amendments to the people, would depend upon their number and importance. He believed a MASSACHUSETTS CONVENTION, 223 new draft might be made, and the constitution yet remain the con- stitution of 1780, as amended in 1820. If this course were not adopted, he apprehended, that instead of one Convention here, there would be four hundred in the Commonwealth. Mr. duiNCY said all the resolutions composed one system, and they had better be taken up in their order. Mr. Webster said the fourth resolution was not at all connected with the preceding ones, and that all our committees were embar- rassed for want of knowing the form in which the amendments were to be submitted to the people. The motion to take up the fourth resolution was put, and de- cided in the affirmative, 182 to 71. The fourth resolution was as follows, viz. : Resohed, That all the amendments made by this Convention, shall be proposed in distinct articles ; each article to consist, as far as may be, of one independent prop- osition ; and the whole to be so arranged that, upon the adoption or rejection of any one or more of them, the other parts of the constitution may remain complete, and consistent with each other. And if any two or more propositions shall appear to be so connected together, that the adoption of one and the rejection of another of them, would produce a repugnance between different parts of the constitution, or would introduce an alteration therein, not intended to be proposed by this Convention, such two or more propositions shall be combined in one article. And each of the said ar- ticles shall be considered as a distinct amendment, to be adopted in the whole, or rejected in the whole, as the people shall think proper. Mr. Sturgis was opposed to adopting the resolution at this time. He could see no objection to acting upon the priaciples in the re- ports of the select committees, and letting them lie on the table till all were gone through. The principles adopted might then be put together and composed to symmetry. Mr. Jackson said, that when the committee met, three different modes presented themselves, for submitting the amendments to the people for their adoption. The first was, to make a new draft, re- pealing all the present constitution ; the second, to put all the amendments into one article. To both of these modes there was the same objection. For, if a large number of amendments should be submitted, which he hoped, however, would not be the case, the people would be obliged to adopt all of them or reject all of them. For instance, if ten amendments should be proposed, nine of which should be agreeable to the people, but the tenth not so, they would be compelled to adopt the the tenth for the sake of the nine, or re- ject the nine, on account of the tenth. It was desirable to have the people adopt such amendments as were agreeable to them and such only ; the third mode therefore seemed to be the fairest, which was, to offer the amendments singly. It was thought by the committee, that it would not be a fair exercise of the powers of the Convention and would not be doing justice to their constituents, unless every proposition were submitted separately for their adoption or rejec- tion. But here a difficulty occurred, that one proposition might have a necessary connection with another, in such a manner that if one were accepted and the other rejected, it might produce an ab- 224 MASSACHUSETTS CONVENTION. fsurdity. For instance, suppose there should be a balancing of the senate and the house of representatives — ^that the house should be reduced if the senate was reduced ; in cases of this kind, it was manifest that there should be an exception to the foregoing princi- ple, and that all the propositions so connected, ought to be united in one article. It also occurred, that there might be some amend- ments which the people would not imderstand, for want of know- ing their connection with the constitution ; it was thought expe- dient that such amendments should be pi-epared in such a manner that the people might see at once their connection with the consti- tution. It was thought by the committee, that the amendments should be presented in such a manner as to show, at the same time, both the old provision of the constitution and the alteration pro- posed. For instance, that the meeting of the Legislature shall be in January instead of May. With this would have to be coupled the amendment making a change in the time of the elections. In this manner there would be no need of altering the constitution at all, so as to say that this word or that word shall be inserted or struck out. Mr. Q,uiNCY thought there was a better mode than the one pro- posed, and that this mode was utterly impracticable. He thought it would be better to have only two articles, one of them containing the mode, for amending the constitution in future ; and the other containing all the other amendments. Mr. Webster said that when the constitution of New Hampshire was revised, the Convention submitted the amendments to the people, for their adoption, separately, and it was found at the ad- journed session of the Convention, that some were adopted and some rejected, so as to make incongruous those which were adopted. The Convention then pursued the course reported by the commit- tee, of uniting in one article all that were necessarUy connected, and no farther difficulty occurred. Mr. Varnum agreed with the gentleman from Boston, (Mr. Q,uin- CY, ) on the propriety of submitting all the amendments together for the adoption of the people. He wished for information respecting the third section of the act for calling the Convention ; he seemed to think that by that section the people were not at liberty to accept a part and reject a part of the amendments offered to them, but that they must accept or reject the whole. Mr. Foster thought it would be unreasonable to deprive the people of the power of acting upon each distinct amendment. They should have the same privilege of voting upon each proposition that the members of the Convention have. Mr. D. Davis wished to ascertain what would be the effect and operation of the report. As far as he understood it, he was heartily in favor of the resolution under consideration, because it would leave us to pxnsue a course that was clear and practicable. Distinct amendments were to be submitted to the people, for their adoption or rejection. Those adopted would form a part of the constitution. MASSACHUSETTS CONVENTION. 225 those rejected would become a dead letter. The result would be clearly understood and would accomplish the object intended by this revision. The effect of the other mode, if his opinion was correct, would be different. If all the amendments were submitted in one article, they might or might not be adopted. If adopted, there would perhaps be no difficulty ; but if rejected, the present constitution would remain unaltered — a state of things exceedingly to be depreeated. Mr. Wilde rose to make some reply to the argument of the gen- tleman from Dracut. He thought that it was an unfortunate mistake in the act, if it was a true construction which the gentleman had given it. But he contended that it was not a correct constructioji of the paragraph, that the present constitution "shall be and remain the constitution of the Commonwealth," if any one of the amendments was rejected. The act provides that if the amendments are "ratified by the people in the manner directed by the Convention, the consti- tution shall be deemed and taken to be altered or amended accord- ingly." A part of that manner of ratifying will be, that if they adopt any one or more of the amendments proposed, it shall be amended accordingly. He was satisfied that all who were in favor of the constitution, as it now stands, and against any amendment, would be most likely to gain their object by connecting the amendments in one article. This would be the most likely mode to lead to the re- jection of the whole ; but the committee were unanimously of opin- ion that this would be an improper mode. He proceeded to explain the operation of this mode of submitting the amendments. It would give the people an opportunity to adopt such as they choose, and would not compel them to reject such as they approve, because con- nected with such as they disapprove. Verbal amendments, such as the substitution of "authority of the Legislature," for "legislative authority," and "citizen " for "subject," could not be submitted to the people, in this mode. But it was not important to touch the constitution for these purposes, unless where the construction is doubtful, nor was it wise or useful to go into these alterations. Mr. Q,uiNCY said it would be in some degree to insult the people, to submit to them a proposition of this kind. It would be imprac- ticable for them to examine and discuss intelligently such a number of propositions, and it would be left to accident whether many of them would be accepted or rejected. All I contend is, make the propositions distinct and so few that the people may understand them. Mr. Lincoln expressed his entire concurrence in the proposition offered by the committee. He answered the objections of the geur tleman from Boston. He thought that the proposition was entirely practicable. The amendments might be submitted to the people in so distinct a form ' that there could be no difficulty in acting upon them. The objection seemed to presuppose a great degree of indif- ference, or want of intelligence on the part of the people. He ar- gued that if several propositions were submitted together, all who 29 226 MASSACHUSETTS CONVENTION. objected to. any one of them, although they approved of all the rest, would vote against the whole, and that, although there might not be a majority of opinions against any amendment singly, they might all be rejected, because it would be impossible to vote against one without voting against all. Mr. Holmes, in reply to the objection to submitting the amend- ments in distinct parts, that the people would not be able to under- stand them, said if they could not act intelligently upon the parts, they could not act with intelligence upon the whole. He gave his reasons for approving of the resolution. Mr. Blake thought there was an intrinsic difficulty in the subject. But Jie thought that before gentlemen objected to the mode pro- posed by the committee, they ought to be required to furnish a sub- stitute. If all the amendments were stated to the people to be ac- cepted or rejected together, and the people should reject the whole, we should be left in a deplorable state. The same objection would exist to submitting the amended constitution in a new draft. There was a like objection to the proposition of the Rev. gentleman from Boston. Mr. Enoch Mudge of Lynn, inquired if the amendments should be sent out in this way to the people for adoption, whether they would hereafter be printed and used in the form of an appendix to the constitution, or whether they could be incorporated into the body of it so that any one who should wish to read it hereafter would be able to read it without reading, at the same time, the re- jected parts of the constitution. The President explained.- The adoption of these resolutions would not preclude any proposition for effecting the object which the gentleman from Lyim had in view. Mr. Flint thought the greatest difficulty would arise in the town of Boston. If, when submitted for adoption, there should be one hundred gentlemen who wished to debate it, he was aware it would take a great deal of time. But he wished they should do it at their own expense, and that the Convention should not consume time, to avoid this difficulty. In other towns there would be no difficulty. If they should reject all the amendments but that which related to the senate, he should be glad. We should still have a constitution and be on safe ground. Mr. Williams was satisfied with the report, but asked whether it would not preclude the drafting the constitution in the amended form. If it could be done by a committee, or in any other way, he should be better satisfied. He thought it important that the consti- tution as amended should be in a form in which it could be read and understood without reading the old constitution. Mr. Parker of Charlestown thought we were not ready to act on this proposition. How could we determine in what manner the amendments should be submitted, before it was determined what the amendments were. He thought it would be impracticable to submit them in this mode, if half the amendments which had been MASSACHUSETTS CONVENTION. 227 proposed were adopted. The House had been taken by surprise the printed report had not been in the hands of members. Mr. Saltonstall, said, that the embarrassment this morning did not arise from the difference of opinion bet-ween two gentlemen, as had been intimated in the course of the debat^, but from the intrin- sic difficulties in ^le report. There could be no difficulty, on the part of the people, acting upon the amendments submitted, in the manner now proposed. If they cannot understand the parts, they cannot the whole. The amendments are not to be voted down, but to be discussed ; and if discussed, it can be much better done, by taking plain propositions in the form in which they may be sub- mitted to them, than by taking the whole constitution, and proceed- ing in it, by sections. The question was then taken upon the motion to postpone the resolutions, and decided in the negative. 111 to 250. The question was then taken on the acceptance of the fourth res- olution, and decided in the affirmative. The other resolutions, on motion of Mr. Webstek, were laid on the table. Mr. Starkweather moved that when the Convention adjourned, it should adjourn to 3 o'clock in the afternoon. This motion was afterwards withdrawn by the mover. Mr. Bliss renewed the motion for afternoon sessions, after Mon- day next. After some debate the question was decided in the negative, 92 to 234. Leave of absence was granted to Messrs. Ahey of Wellfleet, Austin of Charlestown, Bartlett of Plymouth, and Hamilton of Palmer. Leave was refused to Mr. Weston of Middleborough, and also to four other gentlemen, who applied on account of professional busi- ness, in the courts in Worcester county. The House then adjourned. Saturday, December 9. The House was called to order at twenty minutes past 9 o'clock, and the journal of yesterday was read. Mr. Prince of Boston moved to take up the report of the com- mittee of the whole on the subject of the council. Mr. QuiNCY of Boston said, that according to the understanding of a former day, all the reports of the committee of the whole were to lie on the table until all the reports of the select committees were acted upon in committee of 'the whole. Otherwise he should be under the necessity of making a motion sooner than he intended to have done. He wished to get to the subject of the senate as soon as possible, and the motion he alluded to would be that the senate shall consist of thirty-one members, and that the counsellors, shall be taken from the Commonwealth at large. 228 MASSACHUSETTS CONVENTION. Mr. Prince withdrew his motion. Mr. Richardson of Hingham proposed that the report of the standing committee on the declaration of rights should be taken up. A question was asked whether it had not been assigned for Monday. Mr. Bliss, the chairman of the committee, said it had been as- signed for Friday, but it was understood, that it should not come on till Monday, the reports on the judiciary and on the senate, &.c., both having the precedence. The President said he did not see the chairman of the commit- tee on the judiciary (Mr. Story) in his place, otherwise it might be proper to move to take up the report of that committee. Mr. Varnum of Dracut said he should wish, if gentlemen could not stay here, that the Convention should adjourn in order that other gentlemen might go home and visit their families. (A few minutes afterwards Mr. Story came into the house.) On motion of Mr. Prescott the Convention went into committee of the whole on the report of the select committee on that part of the constitution which relates to the senate and house of representa- tives, Mr. Varnum in the chair. The report was read, and the first resolution taken into considera- tion, viz. : Besplvtd, That it is proper and expedient so far to alter and amend the constitu- tion, as to provide, that there shall be annually elected, by the freeholders, and other inhabitants of the Commonwealth, thirty-six persons to be senators for the year en- suing their election. Mr. Prescott said that though the first resolution only was under consideration, it might not be improper to state generally the views of the select committee on the whole subject. This part of the constitution was referred to a numerous committee from differ- ent parts of the Commonwealth who had had it under consideration for a long time, and if the result was not such as all would approve, it was not because there had been any want of attention in the com- mittee. They felt the importance of the subject and entered upon it fully impressed with its difficulties. The subject first taken into consideratioii was the senate. They had agreed to fix the number of members at thirty-six. This was not quite so large a number as was fixed by the present constitution — ^but from the forty, nine counsellors were to be selected, of whom it might be expected some would decline, though not all, as has been the practice of late years. The committee thought thirty-six was a sufficient number to do the business. It was rather small compared with the number of the house of representatives, but was larger than formerly, when, if the counsellors accepted their appointment, they were reduced to thirty- one. Some members of the committee preferred that the number should be larger, that it might be a more complete balance to so large a number in the other branch. The next question was, on what basis it should be apportioned. Shotdd it be on property, as at present — or on population? There was much difference of MASSACHUSETTS CONVENTION. 229 opinion. Some were in favor of forming as many districts, of equal population, as there should be senators, and that the same should be districts for the choice of representatives. But a large majority of the committee were opposed to this scheme, eis not affording that check of one branch upon another which might be expected, where the districts for the two were differently constituted. Others were in favor of districts similar to those which now exist, and of appor- tioning the senators among them according to population. A large majority were also opposed to this plan. They considered that the design of government was the protection of property as well as of personal rights — that there should be a representation of property as well as of persons. This must be done, either by giving the power of voting pnly to persons possessed of property, a practice which had not prevailed in this Commonwealth, or by giving a greater representation to the parts 'of the state where there was the greatest accumulation of property. The last mode was preferred. In this manner, a security is provided for rights of both descriptions ; of rights of the person in the most numerous branch, and of property in the other. But a more important view of the subject was, that the senate, constituted in this manner, formed a more effectual check upon the house of representatives. If there were two bodies elected by the same persons, in the same districts, and in the same propor- tions, although they sat in different chambers, they would not act in an equal degree as a check upon each other. Anothar argument in favor of this mode was derived from the principle that represen- tation should be in some degree proportioned to taxation. Taxes are assessed upon the different parts of the Commonwealth in pro- portion to the valuation of their property, and if one portion of the Commonwealth should wish to avoid its due share of taxation, by an unjust valuation, it would be restrained in some degree by the consideration that it would suffer a proportionate diminution of power. It was thought too that no alteration should be made where no inconvenience had been felt. We had lived forty years under the constitution, and it was not known that any inconvenience had been experienced from this principle. On the other hand it was recollected that positive advantages had been derived from the par- ticular organization of this branch of the Legislature. It would be recollected, that the constitution contained a provision, that there should not be more than six senators from any one district, and that there should not be less than ten districts. This limitation might be thought to trench upon the principle which was adopted as the basis. Some districts would be now entitled to seven senators and perhaps to more, but in the smaller districts there would be large fractions for which there should be some compensation. It seemed proper also to provide that no one district should be so large as to have a very great proportion of power, whatever might be its amount of property. The propositions must be considered as con- nected together, and forming a system. Some of them might be approved when considered as a part of the system, which would 230 MASSACHUSETTS CONVENTION. not, if taken alone. It will be found that the large towns, which are benefited by the representation of property, in the senate, are reduced in the number of their representatives. This was an ad- ditional reason for retaining the old principle in regard to the senate. It was thought that the representatives being reduced, they should be paid out of the public treasury. This would weigh heavily on the large towns. Boston, for instance, which would have but four- teen or fifteen, would pay for forty or fifty. This was deemed some compensation to the small towns, which would be thus enabled to be represented during the whole session. He proceeded to remark on that part of the report which relates to the house of representa- tives. There was but one opinion in the committee on the ex- pediency of reducing the number of members, but on what was the most beneficial mode, there were various opinions. The present number was more than five hundred, and there was nothing to pre- vent the augmentation of the number by the increase of population, and the division of towns. It was considered that a house of five hundred was much too large a body to be able to legislate to ad- vantage — they could not compare and communicate opinions, so as to act with the united wisdom of the whole — ^they felt little re- sponsibility, and when the members were constantly changing, as was commonly the case, they could feel hardly any. Those who begin business, leave before it is finished. The whole quorum might be changed four or five times in the same session. Business therefore was not done with the same care and attention that it would be where the same members continued through the session, and kept their eye on the business from the beginning to the end. Great opportunity was afforded for carrying particular projects. It was only necessary to seek a favorable moment for bringing forward a favorite measure, and it might be carried in opposition to the sense of a great majority of the whole house. The number was more than double the most numerous legislative body in any of the states. But there was no mode of reducing it which was not at- tended with great difficulty. There were various opinions with respect to the most expedient mode. Several were proposed and discussed in the committee. One was, that the State should be di- vided into as many equal districts as there were senators ; and that each district should choose a certain number of representatives. This was not agreeable to the views of a majority of the com- mittee. Another mode -was, to form convenient districts of from 6 to 15,000 inhabitants, preserving town and county lines, and to give each district a number of representatives proportioned to its popula- tion. But the majority of the committee, considering the attach-, ment of the towns to their corporate privileges, determined to adhere to the old usage of choosing by towns. But there were 298 towns now entitled to elect a representative ; and if each town were al- lowed still to choose one, and the large towns were deprived of their r^ht to a proportionate weight in the representation, there MASSACHUSETTS CONVENTION. 231 would be Btill a very large house. It was evident, therefore, if any reasonable and valuable change was to be made, the limit of popula- tion to entitle a town to be permanently represented, must be in- creased. It was thought more convenient to assume the actual population, as taken by the census once in ten years, as the basis of apportionment, than to place it* upon the number of polls as hereto- fore. It was agreed that whatever number was assumed to entitle a town to one member, double that number should be required, as the standing ratio to authorize each additional member. On this principle the parts of the State divided into small towns would be fully compensated, for the unrepresented portions, which are likely to occur in every town ; and every county would have nearly an exact proportion of representatives compared with their population. But after making this full allowance, it was thought there was no reason for adopting any other ratio for the additional members. There was some diiference of opinion respecting the most suitable number to which the house should be reduced. Some of the committee thought it should be as low as from 120 to 150 ; others 200 to 250. A majority of the committee thought it would be best to assume a basis that would give from 260 to 300 members. Va- rious numbers were proposed as the limit of population that should entitle a town to a representative ; but 1200 was fully agreed on, it being computed that this number would give, as the population now is, a representation of about 260 members. It was computed that there were 147 or 148 towns now entitled to a representative, whose population was below 1200. What provision should be made for these towns ? No one thought that they should be de- prived of the same proportion of representation as they now have. Various modes were proposed. It was found that their average population was about 800. One proposition was to put two towns together, and to allow them to choose jointly, either at large, or from each alternately. There were objections to this : there would be jealousies ; the larger town would control the smaller. It was thought that it would be more acceptable, to divide them into two classes, putting the larger into one class, and the smaller into the other, and to give each a right to choose alternately. If there was an odd number in any county, one should choose every other year. In this manner every small town would have its due proportion of representation, and taking them together, they would have a consid- erable advantage. The average number of representatives in all the large towns,, is only one for every 2400 inhabitants. But all the towns under 1200, as well as those between 1200 and 2400, have a considerable advantage. The 148 towns which have under 1200 inhabitants, will be entitled permanently to 74 representatives, which is an average of one for every 1632 inhabitants. If their population was all in one town it would give but 51 members. There are 106 of a population between 1200 and 2400, which will be entitled to one representative each, making an average of one representative for every 1646 inhabitants. The population of these 232 MASSACHUSETTS CONVENTION. 106 towns, if together in one town, would give them, on the princi- ple applicable to the large towns, but 70 representatives ; and the population of the 253, which will now, on the principle assumed, have 180 representatives, would, if the whole were in one town; be entitled to but 121. The small towns, therefore, of under 1200 inhabitants, as well as those between 1200 and 2400, will, on an average, have a representative for about two thirds of the popula- tion which will be the average number required to give one in the large town ; so that instead of losing any share of their influence by the proposed mode of representation, they gain one third. When any of the small towns which are now to be classed, shall rise above 1200 inhabitants, they are to have the privilege of a perma- nent representative. But this privilege is not to be given to a new town, which is formed by a voluntary division of a town now ex- isting, until it shall rise to 2400 inhabitants. This scheme would reduce the house of representatives to about one half the present number. The committee were induced to agree that the members should be paid out of the treasury of the Commonwealth. They were aware of the inequality of this mode of compensation ; but they considered that the expense would be reduced ; that the busi- ness would be transacted better ; that where they are paid by the towns, the expense to the small towns is heavy, and they attend so short a period of time as hardly to be of advantage to the towns or to the Commonwealth. They thought, therefore, that it would be for the public benefit that they should be paid from the pub- lic treasury, as there was no other mode of inducing them to remain through the session. This, however, was on condition that the number should be reduced in the maimer proposed, and with some that the senate should continue to be apportioned as it now is. It was proposed that the quorum in both houses should be altered to correspond with the change in their organization. As there would be no excuse for non-attendance in the house of rep- resentatives, there could be no objection to increasing the quorum from sixty to an hundred. He stated as an additional reason for classing the small towns instead of forming them into districts, that some new tribunal would be necessary, diflferent from any now organized, to which the votes should be returned for examination. Mr. Dearborn thought gentlemen had not expected that this report would be taken up at this time, and that they were not pre- pared to act upon it. He therefore hoped it might be assigned to a future day, and moved that the committee should rise and report progress. The question was taken on the motion, and decided in the nega- tive — 117 to 195. Mr. PicKMAN rose, not to enter into a discussion of the resolution, but to express a wish that no question might be taken to-day on the resolution in the thin state of the House. In the mean time it might be debated and the views of the gentlemen upon it might be ascertained ; but it would be improper to come to a decision on so MASSACHUSETTS CONVENTION. 233 important a subject, without previous notice, and when so many members were absent. Mr. Parker thought there would be no objection to proceeding in the discussion, as it was not probable that the committee would be ready to take the question on the resolution in the course of the day. Mr. Keyes of Concord moved to amend the resolution by insert- ing after " Commonwealth," the words " of twenty one years of age, paupers excepted," and by striking out " thirty-six," and in- serting " thirty-one." His object, he said, was to take away the qualification now required, that the electors of senators should be possessed of two hundred dollars. He thought that provision was pregnant with much evil ; that it had often been the cause of moral perjury. As to the number of senators, it was believed that thirty- six were more than were necessary ; that thirty-one was the original number expected to be in the senate, as it was not supposed that those selected for counsellors would decline the office ; and that since Maine was separated, thirty-one would be enough. Mr. Freeman of Boston rose to speak only to that part of the motion which proposed to change the number of senators from 36 to 31. He was in favor of retaining 36 on account of the peculiar properties of that number. It was susceptible of a more perfect division tjian almost any other number. It was divisible by 2, 3, 4, 6, &c. It was equal to the sum of an arithmetical series of num- bers, 1, 2, 3, &c., to 8. He stated other peculiar properties of this number. But 31 was a prime number, divisible by nothing. The peculiar advantages of the number proposed would be apparent in the facility of apportioning the senators among the several districts according to property, if that was assumed as the whole number of the senate. The number of senators assigned to the several dis- tricts in proportion to their respective amounts of tax, would be, according to the following statement, apportioned on 1000 dollars : Lowest sum. Mean sum. Ab. of senators, 25 37.50 for 1 50 63.50 • .... 2 75 87.50 3 100 112.50 , . 4 125 137.50 5 150 162.50 6 175 187.50 7 200 212.50 8 He added that 36 was the number originally intended to repre- sent Massachusetts; the other 4 being intended to represent the District of Maine. Mr. Savage of Boston wished that there might be a division of the question ; or he hoped the gentleman from Concord would see the advantage of acting upon each part of his amendment by itself, and would withdraw his motion for the purpose of introducing two separate propositions, one relating to the number of the sen- ators, the other to the qualification of the electors, Mr. Kbyes said he had no objection. 3Q 234 MASSACHUSETTS CONVENTION. The Chairman said it was well enough at present, as the question was capable of division, both parts making sense. The chairman then stated the question to be on the first part, respecting the quali- fications of electors. Mr. Beach of Gloucester moved to insert in the amendment after "paupers " the words "and those under guardianship." Mr. Bond of Boston inquired of the chairman whether the ques- tion was divisible, being to strike out and insert. Mr. Prescott said the object of the committee was to present, in the first resolution, the single question of the number of senators. They had not touched the subject of the qualification of voters. If the gentleman wished to raise that question he thought it would be better for him to present it in an independent resolution, and not in the form of an amendment of this, which does not involve the subject. The Chairman, in reply to the suggestion that the resolution was not divisible, said that the first clause of the amendment, which related to the qualification of voters, should be put so as not to in- clude the striking out. The amendment would in that way be susceptible of division. Mr. Morton of Dorchester was apprehensive that the committee would again fall into the embarrassment they had so often expe- rienced, from having too many propositions blended together. The tesolution itself was a simple proposition ; the amendment contained two. The part relating to the qualification of electors had nothing to do with the subject of the resolution, and was out of order ; the other part, respecting the number of senators, was in order. Mr. Keyes then offered, as a substitute for the resolution before the committee, two resolutions embracing the two parts of his artiendment ; having first withdrawn his amendment. Mr. Mortoii said the resolution respecting the qualification ought to be first offered in convention, and there referred to a committee of the whole. The Chairman said that as it related to a new subject, not touched in the neport of the standing committee, it was out of order, and that the other resolution was in order. Mr. Keyes varied his proposition, and moved to strike out "six," and insert " one," so as to have the number of senators thirty-one. Mr. Childs thought that the principle of apportionment should be first settled. If that were settled upon the basis of property, ac- cording to the views of the select committee, he should be ready to proceed in settling the number of senators. He thought the present representation did not give a fair representation of property. The principle of representation was an important question, and it ought to be first settled. The House had not expected to meet it to day, and were not prepared for it. He therefore moved that the com- mittee rise. The motion was negatived. Mr. Foster of Littleton said he was not prepared to act on this MASSACHUSETTS CONVENTION. 235 subject, as it. was not yet determined in what manner the counspl- lors were to be chosen. They would probably be elected by a general ticket from the people at large, or by the Legislature, out of the senate. In the latter case thirty-one would be too small a pvWi- ber for the, senate. Mr. Q,uiNCY rose on a point of order. It was a very natur?,l difiiculty with the gentleman from Pittsfield how to bring forward his proposition. But if gentlemen would analyze a little, all diffi- culty would be removed. A single subject was now before t\\^, committee. All that a gentleman has to,do, is to offer a resolution, in convention, and have it referred to such committee of the ^hole a^ he pleases ; and then, when the house is in that committee, he can move to consider first his proposition. This is the parliamenta,ry and most expeditious course. It was very true, as the gentlema,ri from Littleton had observed, that there was a coimection between the present subject and that of the council ; and the gentleuian might move in convention, to have the subject of the council r&r ferred to this committee. Mr. Flint moved to pass over the first resolution, and take up the next. He thought the propriety of adopting this depended upon the decision which should be made upon the other proposition. Mr. Bond thought that the difficulty which presented itself in this resolution would occur again in the next, or at least in thp thir4, ^nd tha,t nothing would be gained by passing to the consideration of the others. It appeared to be necessary that the question men- tioned by the gentleman from Pittsfield, What should be the princi- ple of apportionment, should be settled before the committee could proceed profitably in the discussion of the remaining propositions. To come to this question it would be necessary that the committee should rise, that a proposition might be made eind brought before, the House. He therefore moved that the committee rise. Mr. Austin of Boston inquired whether the motion was in order, as the committee had made no progress since the last motion to rise. The Chairman replied that it was. The motion to rise was then put and decided in the affirmative — 192 to 62. ' The committee reported progress, and asked leave ^o sit again ; which was granted. Mr. Blake of Boston moved that a committee be appointed tq review the journal, and report what order should be pursued in taking up business. Mr. Leland of Roxbury opposed the motion ; he could see no advantage to be derived from it. Mr. Blaee said he could only say that such a committee had sometimes been appointed in Congress, and had been found useful ; an ounce of experience was better than a ton of speculation. Mr. Mattoon of Amherst opposed the motion, and inquired whether the report of the committee on the declaration of rights was the 236 MASSACHUSETTS CONVENTION. order of the day for Monday. If so, he should move to adjourn. They had done nothing yet. The President said the unfinished business of this day would be the order of the day for Monday, and would probably take up one or two days. Next in order would be the report on the judiciary, and then the report on the declaration of rights. Mr. Q,uiNCT said the rules of the Convention required that the unfinished business of one day should be the order of the day for the next. That the subject, which they had been discussing in committee, was the most important of any on which they should be called to act, and he hoped it would come on again on Monday. But if gentlemen should not wish to take it up on that day, the course would be to move that it lie on the table. Gentlemen had said we had done nothing to day. He thought they had done a great deal. They had got into the heart of the subject of most im- portance ; and particularly, was it doing a great deal, to have heard the able elucidation, which was made by the chairman of the com- mittee on that subject. Mr. Blake withdrew his motion. Mr. Webster said there was an inconvenience which arose from the numbers in the resolutions reported by the select committee being filled, instead of being reported in blank. In the resolution which had been before the committee of the whole this morning, the question could not be taken on the number thirty-six — it could only be taken on accepting the resolutions, and when accepted it could not be amended. If thirty-six were struck out for the purpose of inserting another number, it could not be again inserted. This had presented an obstacle this morning. But the object of the gen- tleman from Pittsfield might have been effected by moving to amend the resolution by adding the words, "to be chosen in districts, in proportion to their respective population." Mr. Q,uiNcy, professing great deference to the. gentleman's talents and high respect for his opinions generally on questions of order, was obliged in this case to differ from him. He said the committee ought to confine themselves to the business specifically committed to them — that new subjects ought not to be introduced in com- mittee, but should be proposed in convention and there referred to the committee. Mr. Morton said he had moved for the committee to rise, in order that gentlemen might make their motions in Convention, and have them referred. Mr. Enoch Mudge of Lynn moved for a reconsideration of the vote passed yesterday, adopting the fourth resolution reported by the committee on the mode of submitting amendments of the con- stitution to the people. He said he was not dissatisfied with it himself, but some others were, and one gentleman had intended to vote with the majority, for the purpose of moving a reconsideration, but not understanding the question, when it was put, had voted the wrong way. MASSACHUSETTS CONVENTION. 237 Mr. Leland inquired if the resolution had had two readings. The President said it was not necessary, as it did not propose any alteration of the constitution. Mr. Bond wished the gentleman, who made the motion, would give some reasons for reconsidering. The President repeated what the gentleman had stated on making the motion. Mr. Child s said he was not much dissatisfied with the resolution, and did not know that he should not like it, when he knew what amendments were to be proposed to the people. It depended on this circumstance ; and if the vote should be reconsidered, he should only want the question on the resolution to be postponed. Mr. Morton opposed the reconsideration. He said, if this resolu- tion had been adopted in the beginning, it would have saved the Commonwealth ten thousand dollars. He said it would not pre- clude any amendments to the constitution. Mr. Fay of Cambridge was as much in favor of taking a decisive step on this subject, as the gentleman last up ; but he was not sat- isfied, that the mode proposed in the resolution, for submitting the amendments, was the best. There was another mode, which he thought preferable. The intention of the committee was to give the people a fair - chance — to let them adopt such amendments as they approved, and reject such as they disliked. He thought the people would be better satisfied with a new draft. They would not want to discuss every amendment — they sent us here to do their work ;' and for himself, as one of the people, he should prefer taking his chance, in voting upon all the constitution together, in the same manner as the constitution of 1780 was adopted. Mr. Bliss said the gentleman was in an error ; the separate parts were acted upon by the people, and there were an hundred excep- tions, by different towns, to different parts. He had examined the records in the secretary's ofiice. Mr. Fay said it might be so ; he had inferred that the whole of it was taken up together by the people, from its having the appear- ance of being one work. He said the people were not so capable in their town meetings of forming a constitution as the Convention, or of seeing the connection of the diflferent parts ; and if they should adopt some, and reject others, the intention of the Convention might be frustrated. He observed, that of the amendments appended to the constitution of the United States, some were accepted and others not. This mode of submitting them tended to produce confusion, and it would require a lawyer to tell what was, and what was not, a part of the constitution. The Convention was not a court of errors to correct anything which might become amiss in consequence of the people voting on the amendments separately ; the whole must be done now. There was no necessity for the people adopting them in detail ; they would thus lose the benefit of the wisdom of the Convention. It would have been as well to have saved the ex- pense of a Convention, and have said that all the propositions for 238 MASSACHUSETTS CONVENTION. amendments, which have appeared in the Boston newspapers for the last six months, should be submitted to the people, and those which a majority should adopt, should make a part of the constitution. He thought these reeisons overbalanced the reasons on the side of the report. He added, that the mode of numbering the amendments would be likely to cause mistakes. He wished the motion for re- consideration might prevail. Mr. Foster thought it unfair to move for a reconsideration on Saturday, when the numbers were so much thinned. It looked like an attempt to smuggle a proposition through the House. He should therefore repeat the motion for an adjournment. Mr. Varnum wished the gentleman to withdraw his motion, in order that he might move to postpone the subject of reconsideration until Tuesday. Mr. Foster gave way. The question was taken to postpone and decided in the af5rma- tive — 209 to 53. Mr. Keyes offered the following resolution : Resolved, That it is expedient so to amend the constitution, as to provide that no pecuniary qualification shall be required for electors of any officers under this gov- ernment. Ordered to be referred to the committee of the whole on the senate, (fcc. — 220 to 18. Mr. Childs gave notice that on Monday he should introduce a resolution for apportioning the senate on the basis of population. Mr. Nichols offered the following resolution : Resolved, That it is expedient so to amend the constitution, as to provide that no pecuniary qualification shall be required, to enable persons to hold the offices of sen- ator or representative. Ordered to be referred to the committee of the whole on the senate, fcc. — 148 to 90. Mr. Wells of Boston offered as an amendment to the report of the select committee on the senate, &c., a resolution proposing that counsellors and senators shall be chosen as they now are, and that the persons designated to serve as counsellors shall be holden to serve as such, unless they shall give a sufficient reason for declining, in which case the Legislature shall proceed to supply the veicancies occasioned by their resignation. Mr. Webster said this amendment could not be received, as that report was before the committee of the whole. Mr. Wells said if he was not in order, he would withdraw the motion, for the purpose of renewing it at a proper time. It was then moved, that when the House adjourned, it should ad- journ to Monday at 11 o'clock — negatived — 82 to 199. It was then voted to adjourn to Monday at 10 o'clock. The House adjourned. MASSACHUSETTS CONVENTION. 239 Monday, December 11. The House met at 10 o'clock. The journal of Saturday was read. Mr. Webster of Boston moved that the report of the select com- mittee on the declaration of rights be recommitted to the same com- mittee, with instructions to present the matter of the several resolu- tions recommended by them in a new form ; so as to state the sub- stance and effect of the several alterations to the constitution therein proposed. The above motioh was adopted, the committee of the whole, to which that report had been referred, having been first discharged from the consideration of the same. Mr. Leland of Roxbury offered three resolutions, in substance as follows, viz. : that it is expedient so to alter the constitution, as to provide, 1st. That persons be elected by the inhabitants of this Gommonwisalth qualified to vote, to be counsellors and senators. 2d. That the electors shall designate-^M)f the number to be counsel- lors. 3d. That the persons so designated, shall serve as counsellors, (ceasing to be senators) and the rest shall constitute the senate. Mr. Leland moved that the resolutions be referred to the com- mittee of the whole upon the senate, &c. Negatived. They were then referred to the committee of the whole upon thb resolutions offered on a former day by Mr. Deabbori*, relating to the lieutenant governor, He had been told that it had already become a common saying — the more igno- rance the more grace. He hoped we should never give up that prin- ciple in our constitution which lies at the root of all that is valuable and sacred in society. Mr. Dean of Boston said he was not concerned, lest he should be thought to be inimical to the Christian religion ; that if Christianity had done nothing more, than to teach men that they had equal rights, it would be entitled to everlasting veneration. He venerated the class of men who devoted their lives to its services, and he wished that they might have an ample support. The question is not whe- ther we shall abolish this religion, but in what manner it can be best supported, so as to be most beneficial to mankind. He was on the side of those who were in favor of a support, by the voluntary con- tributions of the lovers of this religion ; and for several reasons. In the first place, the kingdom of this religion was different from the 384 MASSACHUSETTS CONVENTION. kingdom of this world, and ought not to be governed by the laws of this world. Civil governors do not know what belongs to the Christian religion, and are therefore incapable of bestowing rewards and imposing restraints in regard to it. He was glad to hear his col- league, (Mr. Baldwin) yesterday mention the evils which have arisen from establishing national religions. When our religion had its greatest power, and spread with the greatest velocity it was not ow- ing to miracles, or to force, but to argument. It was never intended by the author of religion, that it should be established and promul- gated by the civil power, or by compulsion. It was intended that its teachers should be supported, not upon air, but by the voluntary contributions in temporal things, of those who received from them spiritual things. Another objection to the article as it now stands, was, that it made the teachers too independent of those who were instructed. A mutual dependence was productive of mutual benefit. It was said that government had a right to levy taxes. He agreed that it had for political purposes ; but it did not thence follow, that they had a right to support public worship by taxes. It was said that religion must be supported by means. It was true ; but it should be by spiritual means, and not by the same as those by which we manage our temporal concerns. If it is left to heaven to support religion, religion will be supported. On motion of Mr. Fay of Cambridge, the committee rose — 221 to 66 — reported progress and had leave to sit again. A motion was made to adjourn — negatived, 118 to 236. A motion was made that when the House adjourned, it should adjourn to half past 3 o'clock, P. M. Mr. Foster and Mr. Martin opposed the motion, and Mr. Makct of Greenwich spoke in favor of it. The motion was decided in the affirmative. The House then adjourned. Afternoon Session. The Convention met according to adjournment, and went again into committee of the whole, on the unfinished business of the fore- noon, viz., the resolution offered by Mr. Childs. Mr. Childs spoke at some length in support of the resolution. Mr. Holmes of Rochester said that he had attended carefully to the arguments pro and con, but there were some doubts on his mind that had not been settled. It was a principle that had been repeat- edly recognized by gentlemen on both sides, that the duty of relig- ious worship is an affair that civil government has nothing to do with, and lies exclusively between God and the soul. That it was an indefeasible right of every one to worship God according to the dictates of his own conscience, was universally conceded. But it is contended that notwithstanding he has this right, the community has a right to impose upon him a tax to support what he believes to be heresy. Mr. H. wished gentlemen to reconcile these two propo- sitions. He did not see the difference between being obliged to MASSACHUSETTS CONVENTION. 385 attend on religious instructions against his conscience, and advancing money to support such instructions. He knew that money was not religion. But we were as much obliged to withhold money demanded for supporting heresy as to exercise the duties of religious worship according to our own conscience. He saw no difference in the prin- ciple ; if there was any, he wished gentlemen would show it. He pro- ceeded to notice the argimients of gentlemen against the resolution. The gentleman from Boston, in answer to the argument that religion would support itself wherever it was not interrupted by the hands of power, said that in the primitive ages, Christ was on earth and did not need the support of the civil authority. Mr. H. asked why he needed it now ; it must be either because he had' power then, which he has not now, or because he has not the inclination now to support the cause of religion. The gentleman might take which result he pleased. The gentleman from Boston had taken a view of the decalogue to show that it had been the foundation of laws since. But he omitted a very material commandment. Worship the Lord thy God and him only shalt thou serve. This was pronounced under the severest penalties. The decalogue enjoined two classes of duties, those to our Maker, and those to our neighbor. The first of these did not come within the powers of the Legislature. The gentleman from Chelsea had said that when Constantino assumed the power to establish religion it was corrupted ; but who is to judge ? Had not Constantine the same right to judge that we have ? It was proposed to substitute the word Christian for protestant in the third article. He was at a loss to know what either of the words meant. We had a right to limit our religion to either, or to the religion of the Grand Lama as much as either. There was no reason to be giv- en but that the majority of the Convention was in favor of it. An- other argument was, that the people have a right to make such pro- vision as shall be for the general good. Who is to judge what is for the general good ? If the Legislature can judge of this, there is no need of a constitution. The gentleman from Littleton had quoted the passage of scripture, they that preach the gospel shall live by the gospel — but he did not tell what it was to live by the gospel. He should have said live by the law. The same gentleman had asked, why we support missionary societies and bible societies ; was there ever a cent of the money for the support of these raised by a tax ? Gentlemen apprehended that if this resolution passed, in a very short time gross darkness would envelop the people. He asked if that was the case now, in the town of Boston ? Did they not support religion as well as in towns were it was supported by a tax ? Mr. Saltonstall said he rose with unusual embarrassment, be- cause the subject had been so ably discussed, and still more, because of its intrinsic importance ; he thought it more important than any that had been considered. It is a trifling question comparatively, how the council shall be chosen, or whether there be any council ; whether the senate be founded on valuation or population, or how the house of representatives is modified — we shall have a Legislature 49 386 MASSACHUSETTS CONVENTION. SO constructed as to insure a free government — but strike out the constitutional provision for the support of public worship, and who can tell the consequences ? As was said by the able gentleman from Boston, (Mr. Blake) we have heretofore been inspecting the super- structure — we are now examining the foundation, and he doubted not the result of the examination would be that the foundation would be found laid firm and deep, and capable of sustaining a superstruc- ture that may rear its lofty head to the skies. Two questions arise — first as to the right of government, and second, whether there is anything in the subject — religion — which should prevent or restrict this right. There is no subject upon which such inadequate views are entertained as the duty, and of course the right, of government. A stranger acquainted with this subject, would be surprised at some of our debates upon the rights of the people in framing a govern- ment. They have a right to adopt such measures as will promote the happiness of the people and the good order and preservation of civil society. Whatever tends to promote these great objects, it is the duty of government to cherish and support, because these are the objects for which government is instituted. The design of govern- ment is not merely the security of life against those who would attack it, and property against those who would plunder it, but to improve the character and condition of those who are subject to it. Mr. S. enlarged upon this point. Is it true then, that the happiness of a people and the good order and preservation of civil government, do essentially depend upon piety, religion and morality ? All seem to admit this, and yet their tendency to promote these great objects has not been sufficiently considered. The Christian religion is the great bond of civil society. It teaches us that we are all children of one beneficent Parent, who constantly watches over us for good, who notices all our actions, and will hereafter reward or punish us, as they have been good or evil. It teaches us that God is everywhere present, that he knows our most secret thoughts, that he sees us where no human eye can, and will call us to account when human laws can- not reach us. What an immense effect would the single doctrine of accountability have on the conduct, if properly realized. Our religion also contains the most comprehensive as well as minute directions for our conduct towards each other, declared under the most tremen- dous sanctions — all our hopes of happiness, all our fears of suffering ; directions, which in proportion as they are obeyed, supersede the necessity of human laws. But this is not all — " How small, of all the ills that men endure, That part which laws or kings can make or cure." It is on the observance of duties of imperfect obligation, which hu- man laws cannot reach, but which are the great care of religion, that our happiness essentially depends. Can ' the regulations of so- ciety make us kind and afi'ectionate and faithful in the relations we bear in life ? Religion extends to the heart — human laws concern actions alone. Religion cleanses the fountain that it may send forth pure streams to refresh society. Christianity also furnishes a model MASSACHUSETTS CONVENTION, 387 of the character she would form. Moreover, it reveals to us the per- fections of Jehovah, the great object of worship and source of all good, and commands us to be " perfect as he is perfect." Who then can doubt that the happiness of a people and the good order and preservation of civil government do essentially depend upon such a system of " piety, religion and morality." These are principles in which all agree — the essential principles of piety, religion and morality. The constitution then asserts that these cannot be gen- erally diffused, but by the institution of public worship and instruc- tion. Mr. S. enforced this. It then follows as a necessary infer- ence, that to promote these great objects, the people have a right to invest the Legislature with the power, &c. (as in the constitution.) And why not this as a civil institution, as well as any other means for the same end ? It provides a most beautiful and liberal system ; making it the duty of towns and parishes to make this provision, but consistently with perfect religious freedom. No denomination is es- tablished. The election is given expressly to each society, and of course to the majority of each. There is no more hardship in being obliged to contribute towards the support of a minister than any other teacher. You may have no children to send to school, or may dislike his opinions, or his mode of instruction, or may be willing to contribute to the same object in some other way — but the tax you must pay. The right of society in both cases rests on the same foundation — the right to tax for the common good ; and the reason is the same, the common benefit received, as members of society. Objections have been made to the abstract right of government, and to the particular provisions of the constitution. It is strange how much sensitiveness there is on this subject. No one hesitates to confer on government the power of inflicting any punishment, even death itself, for any crime ; but the moment you would attempt by thp influence of religion to destroy sin in embryo, an alarm is ex- cited! Mr. S. then answered the objections made against granting the Legislature any power on the subject of religion, — as, that " re- ligion is under the protection of the Almighty, who will take care of his church ;" that " his kingdom is not of this world." His king- dom is not of this world in the highest sense, because our final reward will be in another ; but in a most important sense it is, because it would make us good members of society — would prepare us for a better state by making us good in all the relations of life. We are told that the kingdoms of this world will become the kingddms of our Lord. May not governments cooperate in this glorious design ? (Mr. S. noticed other objections, which we have not room to insert. ) We are told that the constitution grants exclusive favors to one denomination. Will gentlemen read the constitution ? No language can be plainer. It is most explicitly declared that " every denon^ination shall be equally under the protection of the law." It is elevated far above all partial considerations — it regards all in the equal favor as all agreeing in the same essential principles, and leading to the same great object, the Father of all. If one pqiish alone, in some places where there are 388 MASSACHUSETTS CONVENTION. several societies, have the right of taxing non-resident lands, &c. it is because they have been left in the possession of this right. When a part of a parish (referred to Lynn) became Methodists, they sep- arated, and petitioned for an incorporation with certain powers, which were granted, have they any right to complain ? And so of the other societies, and the little remnant is left with the obligation to support public worship, and would you deprive them of their ancient rights ? Would you punish them for adhering to the religion of their fathers ? There is nothing exclusive in this — it would be the same, should the majority of a parish be of any denomination. This prin- ciple is not confined to parishes ; it is the same as to towns. When a part is separated, the remainder has all the rights of the town not expressly granted to the new corporation. It is said also to be inoperative. It is indeed too inoperative, and ought to be made more effectual ; but this objection does not well come from those who complain of it as exclusive and oppressive. Some little cases of individual hardship have been stated, and some law suits have grown out of it, in which however those who com- plain, claim always to have obtained a remedy. What general law is there, or what part of the constitution against which such objec- tions may not be made ? They prove nothing against a great principle. But it is said some do not go to meeting, and shall they pay for what they receive no benefit ? They do receive a benefit in the greater security of everything dear to them. One objection was not to be expected — " that ministers were now too indepen- dent!" The great objection that meets us at every turn is that " religion will take care of itself." Where has this experiment been tried ? Not in Europe. I know not where except in Asia Minor ; and where are now the " seven churches "? Those golden candle- sticks have long since been removed. We are referred to the sup- port of dissenters in England, and of the various denominations here, but does it appear that this support would have been given, except religion had been established in England, and provided for in our constitution ? lu this country the fearful experiment is still in process, whether religion will take care of itself, and as far as tried, it has not been successful. Mr. S. then referred to several states, where, except in large cities, very few settled clergymen of education are to be found. As to the unequal operation of this article in Boston, (fcc, by its own terms it does not operate on any place where voluntary provision is made. Its indirect influence does much everywhere. Mr. S. made objections to the report of the select committee, and showed in what manner he thought the resolution under consideration would produce the same effect as ex- punging the third article. Is it then expedient to abolish this provision ? It is for the advocates of the change to prove this be- yond all question. Show the evil it has produced. Point to the pppression it has caused. Whose rights of conscience have been violated ? Go not back a century for cause of persecution — point them out under the constitution.' If a few cases of individual hard- MASSACHUSETTS CONVENTION. 389 ship have happened in the course of forty years, cannot the same thing be said of every part of the constitution ? And is it wonder- ful, under a system extending through the Commonwealth and operating on so many thousands ? Mr. S. then argued that there had been no oppression, no general complaint — ^referred to the small vote for a Convention as proof that no great evil was pressing on the community. But from the clamor that has since been raised, one would suppose we had been groaning under an inquisition ! It is strange how men are carried away by sounds. What excesses have been committed under the name of "liberty," what excitement may be produced in a perfectly free country by the cry of " Priestcraft" — "Law-religion," and "Toleration!" This subject is closely in- terwoven with our history. We ought not to make a constitution on abstract principles merely. What arrangement it is expedient to make here, is a very different question from what it might be in some other states, where a similar provision has never existed. The support of religion has always been a great care of our government. Massachusetts is a religious Commonwealth. But for the devotion of our fathers to religion, the spot where we are assembled, might still have been a wilderness. It was this that inspired them with courage to brave the dangers of the ocean, and land on these shores. Their first care was the support of public worship. How soon did they lay the foundation of our venerable University, and " Christo et Ecclesim" was it dedicated! As the settlements extended, the little colonies of families always took with them a minister, as the pastor of the flock, and one of the first houses erected was always a place of worship. To provide religious instruction Avas always an important part of the municipal concerns of each town, and the same laws were made on the subject of schools and public worship. Through the whole period of our history, religion and education had gone hand in hand, and united in forming the character of the peo- ple. The temples of worship and instruction have been side by side. Our religious establishments are part of our system of education, schools of a higher order, to furnish instruction in " piety, religion and morality." How great and good must have been the influence of such institutions. To gather together in the house of God, and there be reminded of their common relation to our Father and to each other ; to listen to'the sublime doctrines and moral precepts of Christianity — what a great though silent influence must it have had — "it falls like the gentle rain from heaven " — "it distills like the early dew." Mr. S. then described the manner in which the State had been divided into parishes, each with its pastor, &c.; the saluta- tary efi'ect produced on the character of the people, and the cause of learning and civil liberty. Mr. S. thought the adoption of the reso- lution would end in the destruction of very many religious societies, not immediately ; the good influence of our institutions may prevent that. Our temples of worship will decay and fall around us. Those beautiful spires that now ornament our towns and villages will fall to the ground. The efi'ect on the character of the clergy will be 390 MASSACHUSETTS CONVENTION. pernicious ; the inducements to enter into the profession will be lessened, and there will be no permanency in contracts with minis- ters. The dissolution of so many religious corporations will be an act of great violence. We have heard much of the corporate rights of towns — we must not touch them, even if necessary to correct the greatest evil under the constitution, the numerous house of represent- atives — no, corporate rights and privileges are sacred things. And are not the rights of parishes quite as ancient and sacred and much more important ? If any evils, correct them — but why destroy several hundred corporations ? Allusions have been made to the errors of our ancestors. Time, which tends to the abuse of all hu- man institutions, has improved ours. The bigotry and persecution are gone — nothing remains but the good influence. Never was there a denomination of Christians less sectarian, and proselyting, and persecuting, than the prevailing denomination in Massachusetts have been under this constitution. I say it with confidence. Some have strange fears of an establishment ! But what is to be estab- lished? How is it to be brought about? Will the government undertake the work ? Have the church accumulated treasures for this purpose ? Have we a body of aspiring ecclesiastics aiming at this object ? But how can an establishment be made under a con- stitution which declares that " no subordination of one sect to another shall ever be established by law," except the broad estab- lishment of Christianity. And this without interfering with the rights of conscience of any man. The qiiestion may now be, whether a great moral revolution shall take place in the Common- wealth. If this article is struck out, what a shock will it give to the moral sentiments and feelings of thousands. — the pious, the moral part of the community, who feel that we have no right to deprive them of what was designed for the good of posterity as well as our own. I stand as in the presence of our ancestors; they conjure us not to destroy what they planted with so much care, and under the influence of which we have so long flourished ; but to transmit to posterity what is only a trust-estate in us. I stand as in the presence of posterity, calling upon us not rashly to abolish what was intended for their good — their entailed estate, their precious inheritance. Let us not in one hour destroy the venerable work of two centuries ! Above all, on this day, the anniversary of the landing of the Pilgrims — when two centuries have rolled away, and we by means of their principles and their institutions have grown up and become a great nation — let us not reject the great principles of our prosperity — let us not overthrow all that was dear to them. This will be a poor tribute to their memory, a poor expression of our gratitude. No — let us bring a better offering — let us cherish those principles and institutions, and transmit them to our children and to children's children to the latest posterity. This will be the inost durable monument to the memory — the best memorial of the character of our forefathers. Mr. Hazard of Hancock rose only to express his sentiments in MASSACHUSETTS CONVENTION. 391 favor of the resolution. He said a spectator hearing these debates would be led to think that the question was whether any person should be suflFered to worship God hereafter or not. He considered the question to be, whether the article proposed by the gentleman from Pittsfield, should be substituted for the third article of the dec- laration of rights. He hoped the motion would prevail. As far as his knowledge extended, whenever the aid of law had been resorted to for supporting religious . instruction, it had produced great dissen- sions and difficulty. If he believed that by retaining the article in the constitution it would make good men he should be in favor of it. But he thought it would make two hypocrites to one Christian. Mr. Sullivan of Brookline rose merely to state a historical fact. He had hoped that the gentleman from Salem, who had almost exhausted the subject, would have alluded to the history of this particular article. As early as the year 1654, it being found that the support of the clergy was not sufficiently provided for by voluntary contributions, a law was passed authorizing the court of sessions to levy a tax for the purpose, whenever the people did not voluntarily make suitable provision. In 1692 a similar act passed, and in 1703 another substantially the same. In this last act, Gluakers and Bap- tists were excepted from the obligation. In 1760 another act passed recognizing the power of the people to support religion in this way, and the necessity of such a power. Then came the constitution in 1780, the provisions of which are substantially the same with the laws before mentioned. This emanated from the body of the peo- ple — the source of all our laws — that with which we are all identi- fied. It has been our misfortune to see a state of feeling growing out of sectarian prejudices, very honest in themselves, opposed to this salutary principle of the constitution. Those who have these feelings are right to act according to their own conviction, and to endeavor to obtain an alteration. But considering that the great body of the people were Congregationalists, was it to be asked that they should give up what they considered an important principle ? He thought the opposition had come not from the great body of the people, but from a portion adverse in point of principle to the senti- ments of the great body. Mr. Nichols of South Reading was surprised at the course the discussion had taken. He should think that the question was whether religious worship should hereafter ever be supported. It was not so. He had looked at the proposition of the gentleman from Pittsfield, and he did not see that it departed in any degree from the law of 1811. He was satisfied with that law. It was an honor to the Legislature that passed it. He had seen no injury from that law. Mr. Savage of Boston rose only in consequence of the remarks of the gentleman who last spoke. He was in the Legislature when the law of 1811 passed ; he opposed the passing of that law with all his might. But the evils which he apprehended from it had not hap- pened. That law had given perfect satisfaction. The inconven- 392 MASSACHUSETTS CONVENTION. iences which gentlemen have complained of must have taken place before the passing of that law. It was because he was satisfied with the law of 1811 that he was decidedly opposed to the proposition of the gentleman from Pittsfield. That law provided that every person shall be classed with some religious society. But the propo- sition from the gentleman from Pittsfield is directly the contrary. It declares that no person shall be classed. He was aware it provided that persons who were now classed should continue until, &c. But it was provided for the present time only. He was willing that every one should have a right to declare what society he would be- long to, but every man, so long as he lives in civil society, ought to contribute to the support of that religion which is at the foundation of that society. Gentlemen referred to the establishment of schools. It was not until after the establishment of religious worship, that common schools were established in this country. It was not until 164.5, twenty-five years after the settlement of the country, that town schools were established even in the largest towns. The common schools are the children of religion, and religion not the child of town schools. He hoped that the children would never succeed to destroy their mother. Mr. Bannister of Newburyport said the opposition to retaining the third article rested on two grounds, one in relation to the right, the other to the expediency. And with respect to the expediency, it was urged in the first place, that inconveniences arose out of the present system, and in the next that religion would flourish better without the interference of the civil authority. What were these inconveniences? Before a good system, accompanied with some inconveniences, was exchanged for another, it ought to be shown that the inconveniences outweighed the general good resulting from it. There were cases of hardships under the present system, as had been mentioned by gentlemen, but they were single cases, and what was the character of them ? They discovered a spirit of opposition to the general good — of selfishness — to call it by the gentlest name, of too great tenaciousness of strict rights. This objection had been fully answered by the gentleman from Boston (Mr. Button.) All general rules are liable to exceptions. We should consider how extensively the general principle ope- rated, and how few were the particular cases opposed to it. A hundred thousand polls were taxed for the support of public worship. Was there any comparison to be made between the good derived from this payment of taxes, and the cases of individual hardship which had taken place ? Gentlemen had said that religion would flourish better without the present provision of the constitution. This was taking for granted a thing that remained to be proved. Such an assertion was not a sufiicient reason for overturning a long established system. And from whom did this argument come? From gentlemen who say they want no aid from the civil govern- ment, because they can get along without it. If that is the case, why then do they who are so well off and who are in a minority. MASSACHUSETTS CONVENTION. 393 why do they trouble themselves so much about the interest of the majority ? Perhaps they feel kind towards the other part of the community ? be it so ; but they say this article is to build up an exclusive sect. And this from the mouths of those who admit no one of another sect to their communion. But if these gentlemen are able to get a sufficient support, it is not so with all ; and they have succeeded because religion generally is so well supported in this State ; as was shown by the gentleman from Salem, (Mr. Sal- tonstall) who referred to the condition of religion in other states. But grant all that belongs to their argument ; it is begging us to give up the fruits of an experiment of forty, yes of two hundred years, with all its known consequences, for an experiment of a day ; and that made by a small sect. As the gentleman from Boston (Mr. Fkeeman) said, let other states try their experiments ; we are going on very well. If they do better, we can then imitate their example. He thought sufficient had been already said to establish the right. He thought the doubts on this question arose from gentlemen's considering it too abstractedly. They talked of inalienable rights and rights of conscience. What do they mean by rights of con- science ? They were so conscientious they could not take an oath. What next ? They have scruples about bearing arms. One gen- tleman, to be sure, says they are willing to pay an equivalent to be applied to the support of the poor. Next day they will have scru- ples about paying this equivalent — they will have scruples about serving as jurymen. At this rate what shall we come to ? Gen- tlemen reason very impracticably if not absurdly. We must do with religion as we do with other principles. We must make it useful to the common good. Our happiness and the secu- rity of society are dependent upon it. Some gentlemen say leave religion to heaven ; but they do not go so far as to say that they will not permit the civil power to interfere for the purpose of enforc- ing their contracts. It is asked whether we . injure religion by adopting this resolution. He thought it would be laying the axe to the root of the tree. He did not attribute wrong motives to the gentlemen who supported it, but this would be the effect. What would become of our common schools if left to voluntary contribu- tions ? of all our other institutions ? He contended that they as well as religion would all sink if not sustained by the arm of civil government. He felt, as the gentleman from Salem did, that we had received a legacy which we owed it to our ancestors, to our posterity and to ourselves to transmit unimpaired. The question was then taken on the adoption of the resolution offered by Mr. Childs and determined in the negative — 161 to 221. The committee then voted to rise — 217 to 45 — ^reported progress and had leave to sit again. The House then adjourned. 50 394 MASSACHUSETTS CONVENTION. Saturday, December 23. The Convention met, and, after the reading of the journal, pro- ceeded to the second reading of the resolutions reported by the select committee, on that part of the constitution which relates to the governor, militia, 6cc. The resolution providing that the governor and council shall ap- point notaries public, was amended, on motion of Mr. Varnum, by inserting the words, "who shall hold their offices for seven years, unless sooner removed by the governor and council, upon the ad- dress of both houses of the Legislature," and, so amended, it passed. All the other resolutions were severally read, and passed without amendment. Third article of Bill of Rights. — On motion of Mr. Moses Por- ter of Hadley the Convention then went into committee of the whole on the unfinished business of yesterday, it being the report of the select committee on the declaration of rights. The third resolution being stated to be under consideration — Mr. Newhall of Lynnfield hoped the resolution would not pass. He was sorry to differ from the committee, and nothing but a sense of duty would have induced him to rise on the occasion. It was necessary that there should be provision in the constitution for the support of religious worship, and the maintenance of the teachers of religion. The provision made by this resolution was not suffi- cient for the purpose. It provided that towns and parishes should levy taxes for the purpose, but at the same time provided the man- ner in which any person who chose it could exonerate himself from the payment of these taxes. He has only to call on the com- mittee of some other denomination, or of some other society of the same order, and pay the trifling sum that they may demand — and it is well known that there are religious teachers in almost all parts of om State, who do not ask much for preaching, and who, of course, will furnish a pass for a very small sum — and those who think the acquisition and preservation of property to be the most important object of life, will adopt this mode, and think it a valuable saving. He had no objection to paying his proportion of the necessary taxes for the support of the ministry, on the principle that it was for the public benefit — but he saw no reason why he should do more. The practical operation of this article of the constitution had been very unequal, by restricting persons from going to another society of the same order with that in which they happen to reside. This report proposes a remedy, by permitting persons to remove their connec- tions from one religious society to another. But there was a very strong objection to it, for any persons could easily evade the obli- gation to contribute their proportion. It is proposed, that when any number of persons, not less than twenty, shall have associated for the purpose of maintaining public worship, they shall not be liable to be taxed for the purpose elsewhere. Twenty persons thus associated, who may be at the expense of four or five dollar ser- mons per year, which would be a tax of one dollar upon each per- MASSACHUSETTS CONVENTION. 395 son, will thus be excused from all other taxes for the support of public worship. The tax upon these twenty persons, in the parish to which they belong, may amount to half or two thirds of the whole tax of the parish for the regular support of a public teacher, and their withdrawing may leave the town destitute of the means of regularly supporting public worship. Now if these twenty per- sons were holden to pay their proportion of the sums necessary for the support of public worship, in such manner that it should be ac- tually expended for that purpose, by being paid over to some pub- lic teacher, if not to the minister of the parish, public worship would be maintained in some form or other. If this article could be so amended, as effectually to draw from the community such sums as would be competent to remunerate religious teachers for devoting their time, talents and learning to the work of the minis- try, by an equal tax upon all the ratable polls and property in the several towns in the Commonwealth, he (Mr. Newhall) would not raise his voice or hand against it ; and he should have no objection, that after the taxes should have been paid into the town treasuries, every person should have a right to draw out the sum paid by him, to be paid over to the teacher of any religious denomination "what- ever. He wished to see nothing in the constitution that looked like giving any exclusive privilege, or showing any partiality to any one denomination. He concluded by offering as a substitute for the third and fourth resolutions of the select committee, a prop- osition so to amend the constitution, that towns, parishes, fcc, shall have power to ma,ke provision for the support of public wor- ship, by levying taxes for the purpose upon polls and estates within their jurisdiction — that every person so taxed, shall have power to designate the religious teacher to whose benefit the amount of his tax shall be appropriated, provided th«re is any one whose instruc- tion he usually attends — and that the taxes of those who do not attend on the religious instructions of any one, shall be appropriated to the use of the schools in the town or society. Mr. duiNCT wished the mover to state the precise object of his motion, and to point out the difference between the provisions of his resolution, and those of the third article of the declaration of rights. Mr. Newhall said it was not essentially different from the third article. It would remove an objection which some men make to paying taxes for the support of religious teachers, that they go to hirelings, and to support heresy. All agreed in the propriety of supporting schools. He saw no reason why all should not pay equally for the support of religion, because it was necessary for society and the preservation of government. Mr. QuiNCY said the proposition struck him agreeably enough, except the last part of it. He did not see why the taxes paid by those who do not attend public worship, should not be applied to the support of religion, just as much as that the taxes paid by bach- elors should go to the support of schools. 396 MASSACHUSETTS CONVENTION. Mr. Nichols of South Reading said, that in a town where there was a settled Congregational minister, and the dissenters from that religion were a majority, and of a sect which was opposed to sup- porting public worship, except by voluntary contributions, if the dissenters were not allowed to vote, the minority might say what sum should be raised; and if they were allowed to vote, no sum would be raised. The settled minister would then lose his sal- ary. Mr. Baldwin opposed the amendment. He said that if all the denominations in a town should assemble and vote to raise a cer- tain sum for the support of the settled minister, and then each of the other denominations should draw out from the sum raised, what be- longed to each of them, there might be too much, or there might be too little, left for the settled minister. He did not see the pro- priety or expediency of one denomination assessing taxes for another, and thought that every society had better manage its own concerns. The question was taken upon the amendment, and determined in the negative. The question recurred upon the third resolution. Mr. Baldwin moved to strike out shall, and insert may — so as to read, that the Legislature may from time to time require towns, &c. to make suitable provision, at their own expense, for the support of public worship. Mr. B. said there was not 'a town anywhere, where provision was not made. There was, therefore, no necessity for saying that the Legislature shall require, &c. It ought to be left to the discretion of the Legislature, so that if they see a town neglecting to support public worship, they may then interfere if they see fit. Mr. Foster of Littleton hoped the amendment would not pre- vail. Some gentlemen would say that shall and may mean the same thing ; if so, then let shall remain. If they substituted may, the Legislature might make it an apology in all cases fof neglecting their duty. Mr. Sullivan ot Boston asked if the word shall had not been in our constitution forty years, and if all our institutions for public worship had not grown and flourished under it ? if so, why should it be changed? Mr. Bliss of Springfield said that if gentlemen were satisfied that provision will always be made voluntarily, they need have no fears of the interference of the Legislature ; for if they would at- tend to the connection of the sentence, they would perceive that it is only in cases where provision is not made voluntarily, that the Legislature shall require it to be made. It was the general senti- ment of the select committee, and he presumed of the present com- mittee, that public worship ought to be supported. Our institutions for that purpose had been owing to this word shall. Because there had been no gross violation of the law, should we say the law was unnecessary ? We ought rather to say the law had been MASSACHUSETTS CO*fVENTION. 397 obeyed. It did not follow that the law was bad, because there had been no gross violation of it ; the object of laws was to prevent wrong, not to punish it. The silent influence of laws was a thou- sand times more beneficial than the actual enforcement of obe- dience to them. It was impossible to foresee the operation of the change proposed. If we struck out the word shall, it would amount to saying that we had not been a happy and virtuous peo- ple. If it was true that the happiness of society depended upon the diffusion of religion and morality ; and if the institution of pub- lic worship, and of public instructions in religion and morality, was the only means of diffyising them, it would be improper to leave it to the discretion of the Legislature to see that suitable provision was made for effecting the object. Mr. Hubbard of Boston said this was in his view a very impor- tant question. He was in favor of substituting Wjay for shall. He was clearly of opinion that the community had a right to make laws on the subject of public worship, on this principle, that what it is the duty of the citizen to perform, it is proper for the Legisla- ture to compel him to perform. But he preferred the word may, because the community have no power, no tribunal, to compel the Legislature to do a particular act. If the Legislature should do an act which it had no right to do, then there was a remedy, because the supreme court would determine it to be unconstitutional. The constitution would have just as much force, if it were left to the conscience of the Legislature to make provision for the support of public worship. The committee had already agreed to leave out the clause in the third article which says, " the Legislature shall enjoin attendance on public worship." The Legislature never carried it into effect and there was no power to compel them. Mr. Locke of Billerica interrupted the gentleman, to mention that the constitution does not say that the Legislature shall enjoin attendance, &c., but that the people invest them with authority to enjoin, &c. Mr. Hubbard said there was the same moral obligation on the Legislature to enjoin attendance upon public worship as there was to require suitable provisions to be made for the support of public worship. He denied that our happiness and good morals were owing to the third article ; on the contrary, that article grew out of our good morals. New Hampshire had omitted it in her constitu- tion — Connecticut and Rhode Island had no such provision ; and if we were making a new constitution, we should leave it out, if the popular sentiment was against it. No law was passed until 1800 to enforce this provision ; so that it remained for twenty years a dead letter, and we were living under the operation of former laws on this subject. He said there was nothing imperative in the word shall, where the constitution says it shall be the duty of the Legis- lature to cherish public schools ; because the same phraseology is used with respect to their countenancing sincerity, good humor and the social affections. He repeated his objection to commanding the 398 MASSACHUSETTS CONVENTION. Legislature, when there is no power to enforce the command. Shall meant the same as may, and we might safely trust to the Leg- islature to do what was proper. Mr. Parker of Boston said there was an inconsistency in his col- league in saying that shall and may meant the same thing and yet wanting one to be substituted for the other in the constitution. His Rev. colleague {lsh\ Baldwin,) did not understand them to mean the same thing, or he would not have moved the amendment. Mr. H. had objected to shall, because there was no power to coerce the Legislature. Mr. P. said there was hardly a page in the constitu- tion, in which similar phraseology did not occur ; and he under- stood it as an expression of the will of the people to which the Leg- islature were bound to conform ; and although there was no tribunal to coerce them, the people had it in theii- power to choose other legislators. He said if the word shall should be struck out, the next Legislature would have their feelings, and would repeal all the laws for the support of public worship. Mr. H. had said our institutions for the support of religion were not owing to this ar- ticle. He had no authority for the assertion. This article had been a long time an important principle in our constitution, and it was impossible to say what effects were owing to its operation. Mr. TiLDEN of Hanson thought the amendment too trivial to oc- cupy the time of the. committee. Mr. TiLLiNGHAST of Wrcutham spoke in favor of the amendment. Mr. Hoar of Concord said the gentleman from Boston, (Mr. Hubbard,) had said that if shall was peremptory, it would be of no avail, as there was no power to coerce the Legislature and that we might trust to the conscience of the Legislature. As the legisla- tors were required to take an oath to support the constitution, on the gentleman's own ground their conscience would not permit them to violate this oath, and therefore the word shall would have some validity. The amendment was negatived — 151 to 203. Mr. Williams of Beverly said he had advocated the proposition offered by the gentleman from Pittsfield. Difficulties had arisen mider the third article. With a view to unite the views of the committee, and of their constituents at large, he had prepared a res- olution which he would offer as a substitute for the third and fourth resolutions of the select committee. Mr. W's resolution contained the third resolution of the select committee, except that do invest was substituted for have a right to invest ; and instead of the fourth, it proposed that every religious society, incorporated or unincorpo- rated, shoidd have power to raise money for the purposes of the society, in such manner as they should choose, — that every person should be at liberty to unite himself to such society as he pleased, and the moneys paid by him should go to the support of the teacher of such society ; and that every person who did not class himself voluntarily with any society, should be classed with the town, parish or precinct in which he lived, and be taxed for the support of MASSACHUSETTS CONVENTION, 399 public worship in such town, parish or precinct. Mr. W. said his object was to allow freedom to every person to worship where he pleased, and to permit societies which prefer supporting their teachers by subscription, to adopt that mode instead of taxation. Mr. Thorndike of Boston opposed the resolution, and alluded to local transactions in the town of Beverly. Mr. Low of Beverly, in answer to Mr. Thorndike, went into a detail of some individual cases of hardship in that town. Mr. Wake of Boston had no doubt of the right of the community to make laws on the present subject, and as far as he understood the proposition of the gentleman from Beverly, he did not perceive that it was objectionable. Mr. GtuiNCY objected to the form in which the amendment was brought forward. Here was a long proposition differing only in a sentence or two from the resolutions of the select committee. It was difficult in this mode to see in what the difference consisted. Small amendments should be proposed in those parts of the resolu- tions where gentlemen wanted an alteration ; this was one object in having the resolutions printed. Mh Williams replied that he adopted this mode for the sake of making the proposition simple. The mode of striking out and in- serting, was apt to cause confusion. Mr. D. Davis of Boston thought that no gentleman could have a clear and precise idea of the effect of the proposition before the com- mittee until it should be printed, that they might have an opportu- nity of comparing it with the present article of the constitution, with the act of 18,11, and with the report of the committee. It was a^ proposition to remedy all the evils complained of under the present constitution, and had never seen the light until within a few min- utes. They ought not to be driven to vote on a proposition which they had no better opportunity to understand. He therefore moved that the committee rise. The motion was negatived. Mr. Wilde thought that there was nothing in the resolution be- fore the committee materially different from the third resolution of the select committee, and that the mover would better obtain his object, if instead of making his proposition a substitute for both res- olutions, he would so modify it as to make it a substitute for the fourth only. Accepting the third resolution would be only affirm- ing the vote of last evening. All the difference between it and the thii-d article appeared to be that it put incorporated and unincorpo- rated societies on the same footing. Mr. Williams then withdrew his resolution reserving the right to move that part of it which proposed the principal alteration as an amendment to the fourth resolution, when that should come under consideration. Mr. Jackson of Boston thought the time had now arrived when the amendment proposed by Mr. Saltonstall could be conveniently considered. It had been determined not to reject the general prin- 400 MASSACHUSETTS CONVENTION. ciple contained in the third article. He should be glad to adopt the amendments proposed. He would not let a non-resident with- draw the tax on his lands, for the same reason that taxes for schools and highways should not be withdrawn. It was for the interest of the persons owning lands, that public worship should be supported. He wished also another amendment, that should allow all persons to withdraw their support from the parish in which they reside, in favor of another society in which they may prefer to attend worship, though of the same denomination. But he was not so strenuous for either as to urge them so as to endanger the whole aaticle. He wished however that the sense of the Convention might be taken on these amendments. Mr. Saltonstall then moved to amend by substituting for the third and fourth resolutions of the select committee, a resolution im- porting that it is not expedient further to amend the third article of the declaration of rights, than by providing that the taxes raised upon the real estate of non-resident proprietors, shall be applied towards the support of public worship in the town, precinct or parish in which such real estate shall be situated, and also to provide that the word " Christian " shall be substituted for " protestant." Mr. Sullivan of Brookline wished it to be understood that it had been decided by the highest judicial tribunal, that the law of 1811 was not repugnant to the constitution. Mr. Bliss of Springfield would be in favor of the resolution with one alteration, but as it was, must oppose it. If it were a new sub- ject he should presume that the supreme court would give such a construction to the constitution, that he should be satisfied with it without alteration. But that court many years ago, composed then of persons who were all members of the convention which formed the constitution, decided that persons must be of a different denomination from the parish in which they were situated, to entitle them to withdraw their taxes for the support of public worship in another society to which they might choose to unite themselves. He could not see in the constitution the grounds of this decision, but he must presume that it was construed rightly. There was a great variety of opinions among persons of the same denomination which made it impossible for them to worship together with pro- priety. If the gentleman from Salem would provide a further amendment that should remove the difficulty alluded to, he would agree to it. He proceeded to make some remarks on the report of the select committee. Mr. Jackson moved to amend the resolution so that it should read in substance as follows : that it is not expedient further to alter and • amend the third article, except to provide that all moneys paid by the subject for the support of public worship and of the public teachers of piety, religion and morality, be applied to the public teacher or teachers, if there be any one whose instructions he at- tends, whether of the same or of a diff'erent sect or denomination from that of the sect in which the money is raised ; provided, how- MASSACHUSETTS CONVENTION. 401 ever, that taxes raised on the real estate of non-resident proprietors shall be applied towards the support of public worship in the town, precinct or parish in which real estate shall be situated ; and also to provide that the word " Christian " shall be substituted for the word " protestant." Mr. Whittemore of West Cambridge said this was the most in- tolerant proposition ever offered. A person might reside in a town where there was a Congregational society, and belong to a Baptist society in the next town. There were many instances of this kind. Was it right, was it just, that a man should pay a tax for every cent of property he has, to support a church he does not attend, and a kind of doctrine he does not believe ? This was tyranny in the first degree. Mr. Parker said the gentleman mistook the proposition. It em- braced only the estate of a non-resident proprietor. Mr. TiLLiNGHAST of Wrcntham said all his estate might be in the next town to that in which he resided, and he might belong to a Baptist society in which they did not levy taxes. His whole prop- erty would then be taxed to support a religion which he did not wish to support, and he would be deprived of the means to support his own religion. He hoped the proposition would not be ratified ; it would be an act of tyranny. Mr. Q,uiNCT said that the question before the committee was the amendment offered by his colleague (Mr. Jackson.) The gentle- man's remarks applied to the original proposition. Mr. Williams said he found himself in a dilemma he did not ex- pect. He had intended to withdraw only the first part of his reso- lution, intending to reserve the other part of it as an amendment to the fourth resolution. Mr. Q.UINCY said that the gentleman was not precluded. He had had the opportunity to explain all his views, and if the committee approved his plan they would not vote for the substitute proposed by the gentleman from Salem, and he would have an opportunity to move his amendment in the proper time. Mr. DoANE of Phillipston said if he understood the amendment, it gave to a subject, residing further from his own meeting house than from that of an adjoining parish, the right to withdraw, for that rea- son or for any other personal convenience, and to take with him the taxes paid by him to an adjoining parish, though it might leave his own parish unable to pay their minister. If this was to be the op- eration of it, which he believed would be, it would leave many small parishes entirely unable to support public worship. Mr. Foster thought this proposition was liable to the same objec- tion with the report of the select .committee. The situation of the different religious societies was extremely various. We might as well attempt to make a garment that would suit all sizes and shapes, as to make a regulation that would suit the condition of all religious societies. If we agreed to the third article with this amendment, we should seem to secure the object of providing for the support of 51 402 MASSACHUSETTS CONVENTION. public worship, but should defeat it by giving every one leave to give their support where they please. He was willing that every one should have liberty to worship where he pleased, but his money ought to go to the town or pai'ish were he lives, and where he enjoys the benefit derived from public religious instruction. Mr. Lincoln of Boston said he had no personal interest in the question, but he had friends who had ; and he asked if the period had not arrived when people might be allowed to pay their money for the support of the gospel where they please. He hoped the question would not be taken without much deliberation. The question was taken on adopting the amendment and decided in the affirmative — 185 to 113. On motion of Mr. Foster the committee rose — 188 to 111 — re- ported progress and had leave to sit again. Messrs. Hall of Medford, Garfield of Tyringham, Horton and Flower of West Springfield, Cobb of Orange, Hodges of Taunton, Mason of Swansey, and Hyde of New Marlborough had leave of absence. Mr. iSewhall of Lynnfield moved that when the Convention ad- journed, they should adjourn to Tuesday next, Monday being Christmas. Negatived. And the House adjourned to 9 o'clock on Monday morning. Monday, December 25.. The Convention met at half past 9 o'clock. The journal having been read, Mr. Hyde of Lenox gave notice that he should tomorrow move, that when the Convention adjourned, it should adjourn to the second Wednesday of February next. The Convention proceeded to the first reading of the resolutions reported by the select committee on that part of the constitution relating to oaths, subscriptions, &c. The first resolution which provides that certain oaths shall be taken in lieu of the oaths and declarations heretofore required having been read, Mr. TucKERMAN moved so to amend it as to require that any per- son chosen to the office of governor, lieutenant governor, or coun- sellor, or to a seat in the senate or house of representatives, shall, after accepting the office or trust, and before entering on its duties, make and subscribe the following declaration: "I do believe in the truth of the Christian religion." Mr. Prince of Boston moved that the resolution and amendment should lie on the table, and be assigned for consideration tomorrow. He said that although he was opposed to the adoption of anything like the amendment proposed, and had already expressed his views fully to that effect, he thought that gentlemen ought to have an opportunity to be heard in support of the amendment. It was now MASSACHUSETTS CONVENTION. 403 Christmas day, the house was in consequence extremely thin, and those who felt particularly interested in support of the amendment were principally absent. There appeared to be a great impropriety in taking advantage of the day, and the absence of those who con- scientiously pay a respect to it, to expunge from the constitution a provision which many of those gentlemen considered one of the essential supports of the Christian religion. The motion was negatived. The question on the amendment was then taken, and decided in the negative, 91 to 126. The question recurred on the resolution, and it passed to a sec- ond reading. The second resolution, which provides that judges of courts and United States officers shall not hold certain offices, &c., was then read. Mr. Webster moved to amend, by adding after no judges of any courts of this Commonwealth, the words " except the courts of ses- sions." The amendment was agreed to. Mr. Alvord of Greenfield moved to amend, by adding after the provision that judges of courts of common pleas shall hold no other office, except that of justice of the peace and militia offices — " pro- vided, however, that this amendment shall not operate to deprive any such judge of any office which he now lawfully holds." Mr. Webster thought that if the amendment should operate im- mediately upon any office included in it, it ought so to operate on all. He was against the amendment. Mr. Alvord said it was a different question, whether a person holding a certain office should be eligible to another, and whether such person shall be deprived of an office of which he is now law- fully invested. He could not reconcile it with his notions of justice, that persons who had accepted offices under the constitution, should be deprived of them by the creation of an incompatibility by an al- teration of the constitution. Mr. Lawrence of Groton, Mr. Lincoln of Worcester, Mr. Wil- LARD of Fitchburg, and Mr. Walker of Templeton, spoke against the amendment. The amendment was negatived. Mr. Webster moved to amend, by inserting among the persons who shall be considered as vacating their offices by accepting the trust of member of Congress, after solicitor general, the words " county attorneys." The amendment was agreed to. The second resolution then passed to a second reading. The third resolution, providing for future amendments of the constitution, was then read. Mr. Phelps of Chester moved to amend by striking, out the words " two-thirds," the proportion of two successive Legislatures who should be "required to vote in favor of any specific amendment, be- fore it shall be submitted to the people for their ratification, and in- serting "majority.'' 404 MASSACHUSETTS CONVENTION. Mr. Webster of Boston was decidedly opposed to the proposi- tion. If adopted, the whole constitution would be constantly under amendment, and every change of party would effect an alteration in the constitution. The provision that the proposed amendment should be agreed to by the Legislatures of two successive years, would furnish no adequate security. A temporary excitement might influence both, for the whole year might iu effect be but from the end of one year to the beginning of the next. He had heard an objection to requiring two-thirds of both houses, from the particular organization of the senate, it being apprehended by some persons, that certain districts might be so associated as to prevent any amendment from taking place. He did not see the weight of the argimaent, but was willing that the resolution should be so amended as to meet the objection. He would rather have no amendatory provision, than one by which changes could be effected too easily. With a view to meet this objection and to remove all obstruction on this ground to the adoption of the arrangement re- lating to the senate, he was willing to amend the resolution so as to require only a majority of the senate, but two-thirds of the pop- ular branch. Mr. Phelps said that he should be satisfied with this amend- ment, and therefore withdrew his motion. Mr. Webster then moved to amend the resolution in such a manner as to require a majority of the senators and two-thirds of the house of representatives present and voting thereon. Mr. duiNCY opposed the motion. Our ancestors, in framing the constitution, provided for one opportunity only to amend it. They wished the constitution to be steady, and thought it better to leave us to struggle, and let parties struggle, under the constitution, than to permit them to triumph over it. If you require the consent of two-thuds of the senate to effect a change, that body can protect itself : but under this provision, if it should render itself unpopular, the state of political parties may be such as to destroy the organiza- tion of the senate. Mr. Austin of Boston liked the proposition of the committee for effecting amendments. The provision very properly required that the people should not be put in excitement for any party purpose. He was sorry to hear the proposition for amendment. It was against the principle of the constitution, by destroying the equality of the two houses, Mr. Webster said that he felt obliged to make this article con- form to that relating to the senate, otherwise it would be said when we came to the senate, that we must make that conform to this. He wished to have something finished. He was satisfied with the resolution as it was, but a general sentiment had been expressed, that it ought not to be in the power of any two districts, by com- bining, to defeat any proposed amendment. It was not a principle of the constitution that the two branches are equal. No money bill can originate in the senate. In Virginia all bills originate in the MASSACHUSETTS CONVENTION. , 405 lower house. No objection was made to requiring two-thirds of the house, and he thought that this, with a majority of the senate, and for two successive years, taking the yeas and nays, with a pub- lication of the amendments proposed, would be a sufficient security. Mr. Apthorp was unwilling to have alterations too easy. He preferred the resolution as reported. Mr. J. Phillips of Boston said he understood that the proposed organization of the senate and house of representatives, was on the ground of a compromise, in which a larger proportion of power in the senate was given to the seaboard, to balance the undue influ- ence of the inland parts of the Commonwealth in the other branch. He would therefore propose, that in all amendments relating to the senate, the consent of two-thirds of that body should be required. Mr. Lincoln of Worcester said the whole power in relation to amendments, might as well be left to the senate, as to require the consent of two-thirds. If four-fifths, or nine-tenths of the people should, for two years, be in favor of any amendment, unless the senate consented, it would be all in vain. One-third of the senate might be chosen by a little more than one-fifth of the people, and might prevent the wishes of the other four-fifths. As to the danger of altering the government, whose government was it ? The people's ; and when two-thirds of the people wanted an alter- ation, they will efi'ect it in some way or other. It would be safe to require the consent, for two years, of only two-thirds of the house ; they would have the rights of the people at heart, more than those who represented property. There was no danger of a political ex- citement continuing two years, so as to have a bad influence on the frame of government. The proposing amendments was not a subject of legislation, and there was no need of a check. He was content with this amendment of the resolution, but he should have liked better to leave the subject to two-thirds of the house of repre- sentatives alone. Mr. Slocum spoke in favor of the amendment as compared with the resolution reported by the select committee. Half a loaf was better than no bread. Mr. duiNCY said that those who maintained the organization of the senate, were on popular ground, as much as those who defended the popular branch. It was for the interest of the people to main- tain the senate. The popular branch would be the all-powerful one. According to the compromise, two-thirds of a majority of one half of the people would send two-thirds of the house of represent- atives. It was all-important to the balance of the two branches, to require the assent of two-thirds of the senate. They had been making a compromise, and he was glad to see it ; but he wished the weakest branch to have the power of protecting itself When- ever there should be violent parties, they would set the principle of amendment at work. He did not wish to see the efi'ect of local in- terests ; he would rather increase the number of the senate. He liked forty better than thirty-six ; he wished it might remain ; he 406 MASSACHUSETTS CONTENTION. liked old numbers. He concluded by moving to postpone the subject until tomorrow, at 10 o'clock. Mr. Starkweather hoped the motion to • postpone, would not prevail. He should have no objection to a provision for amend- ment, similar to the one in the constitution. He should have been satisfied with the mode reported by the committee ; but he thought the amendment under consideration, guarded as it would be by other provisions of the resolution, would be safe. Mr. duiNCT withdrew his motion. Mr. Hazard of Hancock was opposed to both the resolutions and the amendment. If in order, he would move to amend the amend- ment, so as to leave the power to two-thirds of the house of repre- sentatives. The people were the ones to determine whether the constitution should be amended. The President said this was in opposition to the amendment, and was not in order. Mr. Blake said this was a very important subject, and he moved to have it postponed. His object was, to have a motion offered, to let an experiment be tried, for a limited time, say five or ten years, of the amendments they should make. It would be a pity, if, after so long a session, they should not be able to devise something that would stand the test of at least a few years. The framers of the constitution were so desirous of giving it stability, that they pro- vided that it should not be altered under fifteen years. He should bring in a resolution for the purpose of trying an experiment of this kind. Mr. Webster had no objection to a postponement; he was, how- ever, satisfied that this was the only advisable way of making amendments to the constitution. Mr. Austin said he never meant to deny that a majority of the people had a right to alter the constitution, if they had the will ; the question was only as to the mode of ascertaining this will. The amendment ofi'ered, was said to be on the ground that the house of representatives was a better representation of the people than the senate was ; he objected to that reason. Concession enough had already been made by the large towns. The remark was not correct, that the senators from two districts could prevent an amendment from being proposed to the people ; thirteen would be necessary for that purpose. When two-thirds of the popular branch were in favor of an amendment, the senate would not resist for light reasons. If these thirteen resisted, he should conclude they were doing the duty for which they were intended. The object in requiring two-thirds, was not to prevent necessary amend- ments, but such as were unnecessary ; to prevent firebrands being thrown among the people to kindle discord. A great many propo- sitions had been made for amending the constitution of the United States, and had been negatived by the people. But this was done in deliberative assemblies, in the legislatures of the several states ; which was different from submitting the propositions to town meet- MASSACHUSETTS CONVENTION. 407 ings. He would not intimate that the people in town meetings .would not determine right, but it would be inconvenient to them to be often called upon. He thought this mode of submitting amend- ments to the people, by two-thirds of each branch of the Legisla- ture, much better than the one proposed by his colleague, (Mr. Blake) of calling a new convention. Mr. Blake said he did not intend to have a new convention called, but to prevent any alteration, in any way, for a limited time. Mr. Banister said that, on the principle of checks and balances, it would be inconsistent to adopt this amendment, after retaining valuation as the basis of the senate. It was as important to the se- curity of the people to protect the senate as the house of represent- atives. The object in having the small body, was to prevent the effect of popular excitement ; and if only a majority of the senate was required, this majority would be very apt to be carried away by the same popular excitement which influenced two-thirds of the house of representatives. Mr. Webster said he could not sit qviiet under the charge of in- consistency. He stated the other day, or meant to state, that the senate was not intended as a check against the people, but against the house of representatives. He knew no principle that could pre- vent a majority, even a bare majority of the people, from altering the constitution. The object of the mode proposed for making amendments in it, was to prevent the people from being called upon to make trivial amendments, or any amendments, except when a real evil existed. A reason for requiring two-thirds of the house and only 3/ majority of the senate was, that the general sense of the people was better expressed by representatives from small districts, than from large ones. This was not an exercise of legislative power — it was only referring to some branch the power of making propo- sitions to the people. Having a senate to consist of thirty-six mem- bers, and twelve of them chosen from two districts, was very differ- ent from having fifty senators and chosen from small districts, in regard to the influence of one-third. The amendment was adopted, and the resolution, as amended, passed to a second reading. Tomorrow, at 10 o'clock, was assigned for the second reading of these several resolutions.- Mr. Banister was appointed on the committee for inquiring what business was required to be done, and when the Convention might have a recess, in the room gf Mr. Davis, who had left town. The resolution of the same standing committee, for giving the Legislature power to erect and constitute city governments, as re- ported by the committee of the whole, with amendments, was read. The amendments for regulating the returns at elections, and for giving the Legislature the right of repealing by-laws of cities, were adopted, without debate. Mr. Varnum of Dracut objected to the other amendment, which made it necessary for a town to have 10,000 inhabitants before it 408 MASSACHUSETTS CONVENTION. could be incorporated. He said it was desirable to have uniformity in the government of our towns. He therefore wished to have 30,000 substituted for 10,000. The question was taken for retaining 10,000, and negatived — 83 to 136. A slight debate ensued, in which Messrs. Rantoul, J. Phillips, Starkweather, Jackson, and Prescott took part, and various numbers were proposed. The question was taken for adopting 12,000, and decided in the affirmative — 165 to 84. The resolution as amended passed to a second reading. The resolution reported by the same select committee, that it is not expedient to make further provision in the constitution relative to the substitution of affirmations for oaths, was read. Mr. Baldwin of Boston objected to it. He said it went on the supposition that Gtuakers were born with different consciences from other men. There were some pious men who had no objections to taking an oath ; there were others equally pious, who had. No wicked man would object to taking an oath ; and he thought that a solemn affirmation of a good man, made on the presumption that God was present, ought to be sufficient. Mr. Hinckley of Northampton said he had found no reason to satisfy his mind why Quakers had been exempted originally from taking oaths ; but the exemption had existed for a long time, and no great inconvenience had arisen from it. He explained his views as to the meaning of the New Testament, where it commands not to swear, and cited a passage from the Old Testament, where God commands to swear by his name. He thought it was proper to have the oath in the name of the Supreme Being. It gave a so- lemnity to the proceedings in courts of justice, and he hoped no further alterations would be made in the constitution. Mr. Webster said that as to oaths in courts of law, the Legisla- ture had already ample powers. Gentlemen argued as if nobody had any right except the person called upon to swear ; when, in truth, he was the person who had the least right. The party who called him to testify had the right. A man on trial for his life had a right to the testunony of a witness under the sanction of an oath ; there was no security otherwise. If the reverend gentleman from Boston (Mr. Baldwin) had been much conversant in courts of law, he would have seen that the greatest scoundrels sometimes pretend to have scruples of conscience in regard to taking oaths. ' Some further debate ensued, in which Messrs. Webster, J. Da- vis, Baldwin, Austin. Nichols, H. Lincoln, and Sprague took part, relating as well to oaths of office as to other oaths ; but as the same arguments were brought forward when the subject was discussed in committee of the whole, and were reported in that part of the proceedings, it is unnecessary to repeat them. Mr. Nichols moved that when the question was taken it should be by yeas and nays. Negatived — only 30 rising in favor of the motion. MASSACHUSETTS CONVENTION. 409 The resolution then passed. A motion to adjourn was negatived — 93 to 137. Sheriffs. — Mr. Valentine of Hopkinton offered a resolution for providing in the constitution, that sheriffs, registers of deeds, and county treasurers, shall be chosen by a majority of the ballots of the legal voters in the several counties, on the day of Mr. Valentine said he was aware that registers of deeds and county treasurers were now elected in this manner '; but his object in including them in his resolution was, that all the county officers, in case the proposition, so far as it respects sheriffs, should be adopted, might be elected on the same day, whenever, according to the terms of their offices, they should happen to be chosen in the same year. Mr. V. moved that his resolution be committed to a committee of the whole. Mr. Starkweather had not had many minutes to make up his mind on this proposition, but as it was a new subject, and one of not so very great importance, he hoped it would not be committed. Mr. Savage of Boston said he had not brought forward any prop- osition himself for altering the constitution, and probably should not ; but it was the right of every gentleman making such a propo- sition, to have it considered ; and, by referring this proposition to a committee of the whole, the gentleman who last spoke would have a little time to make up his mind. The question to commit was negatived — 92 to 136. Mr. Valentine said the motion was of mcJre consequence than gentlemen might think. At present the sheriff is appointed by the governor and council. It was one of the most important and lucra- tive offices in the State. It was important, as well in respect to the creditor as to the debtor. The present mode of appointment gave occasion to many frauds and impositions, and in times of political animosity was made an engine for party purposes and for favoritism. The question was often, not who was best qualified for the office, but who had most friends in the cabinet. Much had been said about the people's rights. In the present case, the peo- ple would have a fair opportunity of judging of the merits of the different candidates, and of selecting the one best qualified. Mr. Wilde rose to a question of order. He said he had voted for committing, on the ground that the gentleman could not discuss his proposition in Convention. A member who voted in the majority on the question for com- mitting, moved a reconsideration of the vote, Mr. Varnum suggested that the gentleman from Hopkinton might accomplish his object without a reconsideration, if he would vary his motion so as to apply to sheriffs only. Mr. Valentine said he had no objection. He only wanted to have the subject considered, which he thought might be done more conveniently in committee than in conyention. He modified his proposition according to Mr. Varnum' s suggestion. Mr. Prescott said this was a proposition for making an impor- 52 410 MASSACHUSETTS CONVENTION. tant alteration in the constitution, and that it ought to be com- mitted. The question was taken for committing it to a committee of the whole, and decided in the affirmative without a division. The resolution respecting the pecuniary qualifications of voters, with Mr. Blake's amendment that every citizen, ( A munificent individual, for instance, chooses to establish a professorship, in any branch of literature, and for this purpose makes a donation to the College, and in his deed or other instrument of gift, limits the application of the proceeds of the fund to this particular object. In such case the corporation has nothing to do, but to see the fund properly invested and secured, and that a fit person be appointed professor, to receive the income of it for his support. So of funds given to aid poor scholars, to augment the library, and other similar objects. Of the remainder of the personal property, a considerable portion, viz. about eighteen thousand dollars, arises from private donations, for objects not immediately connected with the College ; such as the maintenance of missionaries, and in one instance, of a grammar school. The general unappropriate fund of the College, vested in personal property, yielding an income, deducting some debts now chargeable upon it, is fifty- five thousand dollars. The real estates of the College, except the public edifices be- fore mentioned, are derived principally from the donations of individuals ; but partly from purchases made from the College funds. The whole income of its real estates, including what it receives from the proprietors of the several bridges, amounts to five thousand dollars annually ; of which one thousand is appropriated to specific objects by the donors. The sums received from students, as rents for the apartments occu- pied by them, are usually absorbed in the repairs of the various College buildings. The income of that part of the personal property, which is not appropriated to specific objects, and of that part of the real estate, in like manner, not appropriated to specific objects, constitutes the general disposable income of the College, applicable to its general purposes ; such as paying the instructors and officers, defraying occasional expenses, and making up, in some cases, a deficiency in a particular specific dona- tion, so that the object of the donor may be eifected, and the public enabled to receive the benefit of his gift. The amount of this general disposable income still falls so far short of its object, that a large sum is necessarily raised by tuition fees. The whole annual expendi- ture of the College, including all the general specific objects, is, at this time, about thirty thousand dollars, of which seventeen thousand are paid by the proceeds of College funds, general and specific, and the residue by tuition fees, and other charges on the students. The president, twenty professors in the several departments of science,literature, divinity, law and medicine ; six tutors, the librarian, steward and oth- er officers, are paid out of these receipts ; as also the expense of books for the library, apparatus for the philosophical and chemical departments, and other daily expenses incident to such an institution. The accounts of the treasurer, of the receipt and 532 MASSACHUSETTS CONVENTION. disbursement of the moneys of the institution, are, from time to time, audited by a committee of the corporation, and also by a committee of the board of overseers. From this account of the state of the funds, it is evident that the establishment of the institution, on the present enlarged plan, is not, and cannot be kept up, but by the help of tuition fees. And donations and additions to the general and disposable funds of the College, would be highly useful to the public, as they would diminish the necessary expense of education. In pursuance of tlie opinion formed by the committee on that part of the subject committed to them, which respects the constitutional rights and privileges of the College, they recommend the adoption of the following resolution, viz. : Resolved, That it is proper to amend the constitution, by providing that tlie rights and privileges of the president and fellows of Harvard College, and the charter and constitution thereof, and of the board of overseers as at present established by law, be confirmed ; with this further provision, viz., that the board of overseers, in the election of ministers of churches to be members of said board, shall not be confined to ministers of churches of any particular denomination of Christians. For the Committee, D. WEBSTER. On motion of Mr. Webster, it was ordered that the report be re- ferred to a committee of the whole, and be printed. Mr. duiNCY moved that three times the usual number of copies be printed, in order that the report may be circulated. Ordered. Mr. Leach of Easton offered a resolution proposing that hereafter no bank should be incorporated, nor the charter of any one be re- newed, without making the 'stockholders liable in their individual capacity. Laid on the table. The Convention proceeded to the second reading of the resolu- tions respecting the senate and house of representatives. The first resolution of the select committee, which provides that the senate shall consist of thirty-six senators, being read, . Mr. Alvord of Greenfield moved to amend by adding that they should be chosen in districts as nearly as practicable in proportion to the taxes paid by the several districts, except that no district shall choose more than six senators. Mr. A. said his object was to pre- vent any ambiguity. Mr. Lawrence of Groton opposed the amendment. No question could arise on the subject, and the amendment was unnecessary. The amendment was negatived and the resolution passed. The six succeeding resolutions were severally read and passed. The eighth resolution being read, Mr. GiFFORD of Westport moved to amend it so as to make 1500 inhabitants, instead of 1200, the number sufficient to entitle a town to send a representative every year, and 2500, instead of 2400, the number sufficient to entitle a town to send an additional representa- tive. Mr. G. stated some particulars of the operation of these num- bers on the representation on the several counties. He said the operation would be more equal than that of the other numbers — that the house of representatives would be reduced still further, so as not to exceed two hundred and fourteen, and that from $5000 to f 10,000 would be saved in the annual expense of representation. Mr. Rantoul of Beverly supported the amendment, proposing however to make SOOO the increasing number. He said the opera- tion would be more equal, particularly on the county of Essex, and MASSACHUSETTS CONVENTION. 533 the house would be still farther reduced ; which many gentlemen seemed to think desirable. Mr. Beach of Gloucester opposed the amendment. He said he should be sorry to disturb the harmony of the admirable and well digested plan of the select committee, which operates so equally, throughout the Commonwealth, and particularly upon the county of Essex. The amendment was negatived — 83 to 18. Mr. Martin said he should vote for the amendment because it was better than the resolution of the select committee, but he pre- ferred the old system. Mr. Frazer of Duxbury opposed the resolution. He regretted that this plan for the house of representatives was connected with the plan for the senate. He thought the people would reject the whole. The resolution then passed. The ninth resolution passed. The tenth resolution being read, Mr. Fox of Berkley moved to amend by striking out the word "other" in the last clause " every o^Aer year" ; so as to give the small towns the right of sending a representative every year. The amendment was negatived and the resolution passed. The eleventh resolution being read, Mr. Prescott moved to amend by substituting the word " small- est" for "greatest" — his object was to make the year in which the valuation was settled, coincide with the year in which the smallest of the classed towns should be regularly represented, in order to give the advantage, if any, of extra representation to the largest of the classed towns. Mr. Lawrence observed that the smallest of the classed towns, as the resolution stands, would have one more representative, in ten years, than the largest of the classed towns. The question on the amendment was taken, and decided in favor of the amendment — 92 to 66. A new count was called for, on the ground that many members did not vote, and the amendment was negatived — 117 to 155. Mr. Prescott moved to add to the resolution the following amendment, viz. : " Provided, that if any two adjoining towns, each containing: less than 1200 inhab- itants, shall belong to the same class, and shall be desirous of belonging to diflferent classes, and shall petition the Legislature to place them in different classes — it shall be their duty to do it accordingly — and such towns shall thereafter be entitled to elect a representative every other year, until one of them, by the number of its in- habitants, shall be entitled to elect a representative every year." The amendment was adopted and the resolution passed. The twelfth resolution was read and passed. The thirteenth resolution, which requires that towns hereafter incorporated, shall contain 2400 inhabitants before they shall be entitled to send a representative, being read, 534 MASSACHUSETTS CONVENTION. A member moved to substitute 1200. He said he could not per- ceive the reasonableness of giving all incorporated towns, contain- ing a less number than 2400, the right of sending a representative, and denying it to towns of equal magnitude hereafter to be incor- porated. There was no provision in the resolutions for new towns containing less than 2400 inhabitants, being either classed, or send* ing a representative by themselves. Mr. Mitchell of Bridgewater said he had prepai-ed an amend- ment, which would more fully answer the purpose of the gentle- man who last spoke. The amendment he would propose was, that new towns should be subjected to the same restrictions, and have the same privileges, as other towns of the same number of in- habitants. Tlie former amendment was accordingly withdrawn to give place to Mr. Mitchell's. Mr. Mitchell said there were but thirty-five towns which had more than 2400 inhabitants. He was aware that it was an object to reduce the number of representatives, but he did not wish to de- prive new towns of being represented at all. He had not been very friendly to the system of the select committee, but he wished to make it as perfect as possible, as he perceived that it was the intention of the House to adopt it. He presumed that if new towns should not have the privilege of sending a representative, the Legis- lature would not forget to tax them. Mr. Lincoln opposed the amendment. In this Commonwealth there was very little unincorporated territory ; if Maine had con- tinued united with Massachusetts, and this system had been adopt- ed, there would have been some reason for a provision of this kind ; but now it would only give a facility of dividing large towns. Under the system proposed, none would want to be divided, unless there should be enough in each division to entitle it to send a rep- resentative. He had witnessed so much mischief and injury to towns from being divided for political purposes, that he would not enable the Legislature to make a division with that view. If the town of Bridgewater wished to be divided for the more convenient management of their municipal concerns, there was no need of their having a right to send a representative. Mr. L. said he was not inconsistent with himself in making this remark ; his object hitherto had been to prevent towns being deprived of their vested rights against their consent. Mr. Prescott spoke in opposition to the amendment. He sup- posed a town to have 3600 inhabitants. This number would be entitled to two representatives ; but by dividing the town into three new ones, the same number of inhabitants would according to this amendment send three representatives. Mr. Mitchell replied. Mr. Varnum said he was aware that the town of Bridgewater had applied to the Legislature to be divided, and that the Legislature had declined granting their request. He hoped we had come to an MASSACHUSETTS CONVENTION. 535 end of dividing large corporations. Bridgewater had been a large and respectable corporation for nearly two hundred years, and he hoped it would continue so for two hundred years more. He hoped the amendment would not prevail. The amendment was negatived and the resolution passed. The fourteenth resolution being read, Mr. Martin said he should feel bound to oppose the resolution all in his power, and this being the last opportunity, he should state his objections. He proceeded to argue at some length against the resolution. He Avas opposed to the whole system, and he proposed to lay on the table to-morrow a proposition to take the old constitu- tion with but one amendment. He moved to amend the resolution, so that the representatives shall be paid for their attendance by their respective towns. Mr. Flint spoke in favor of the resolution under consideration, and Eigainst the amendment. He said that the representatives came to do the business of the Commonwealth, and not of towns, and he did not consider, it dishonorable or unjust to require the State to pay for their attendance. Mr. Martin spoke again in favor of the amendment. The motion was negatived, 33 to 274, and the resolution passed. The fifteenth resolution was read. Mr. Phelps of Belchertown thought that a hundred was too high a number for the quorum of the house, and he moved to amend by striking out one hundred and inserting sixty. Mr. Varnum thought one hundred was too low a number, and the quorum ought to be equal to half the persons elected. The amendment was negatived and the resolution passed. The sixteenth and seventeenth resolutions were read and passed. Mr. Prescott, chairman of the committee to whom the subject was referred in the first reading, reported the following resolve, as taken into a new draft : Resolved, That it is proper and expedient further to alter and amend the constitu- tion, so as to provide, that when any two towns, each of which shall contain less than 1200 inhabitants, or any town, or town and district, now united for the purpose of choosing a representative, and another town, each of which towns separately, or united towns, or towns and districts, shall contain less than 1200 inhabitants, shall prefer being united for the purpose of electing a representative together every year, to choosing one every other year separately, and shall apply to the Legislature to unite them for that purpose, dtie Legislature shall unite them accordingly ; and the meetings for the election of their representative shall be holden in such town, and at such time, and the choice they shall make shall be certified by the selectmen of one or both of said towns, in such manner as the Legislature shall direct ; — and such towns shall continue so united until the inhabitants of one of them shall have in- creased to such a number as shall entitle it separately to send a representative ; or until one of said towns, by a vote of a major part of the legal voters therein, shall apply to the Legislature to separate them ; whereupon it shall be their duty to sep- arate them accordingly ; and to class them in the same manner they were classed before they were so united. Read a second time, as reported, and passed. The resolution for limiting the number of representatives after the year 1830, being read, 536 MASSACHUSETTS CONVENTION. Mr. Prescott moved to amend by striking out the proviso, and inserting the following : And if any town which now contains 1200 inhabitants, shall, at the time of tailing the census aforesaid, or in any tenth year afterwards, be found not to contain the number of inhabitants which, according to the provision aforesaid, shall then be requisite to entitle it to send a representative every year, such town shall be classed by the Legislature, and shall thereafter be entitled to send a representative every other year, until it shall have attained a competent number to entitle it to send a representative every year — and no town, or town and district, which, according to the census which is now taking, shall be entitled to send a representative every other year, shall ever be deprived of that privilege. Mr. Parker of Southborough was opposed to the amendment. It would have an unfavorable bearing on the small towns, and would do away the principle already allowed. It would deprive them of the prospect of ever attaining the right to a permanent representative. Mr. Stone of Stow and Boxborough said that no provision was made for the towns now united. Mr. Abbot hoped the amendment would not pass. It would dis- turb the arrangement after 1830, and put it in the power of the Legislature to make the increasing number larger or smaller for par- ty purposes. He thought it better to leave the system as it was reported. If the house should become too large in future, the pro- vision for amendment would furnish the means for rectifying it. Mr. Lincoln said that the one hundred and forty-eight towns not entitled to a representative, unless they increased faster than the State at large, would never have a right to a representative. Mr. Apthorp was in favor of the amendment, because there was no other way of limiting the number of the house. Mr. Story considered it as a proper and necessary part of the sys- tem. He hoped the amendment would prevail, because without it the house might go on to increase until it became as large as it is now, and a town of 1200 inhabitants, not increasing, might have a greater privilege than a town now smaller, which should increase to a greater number. The amendment was agreed to — 174 to 109 — and the resolution passed. Mr. Sibley moved that Avhen the House adjourned it should ad- journ to this afternoon at half past 3 o'clock. Negatived. On motion of Mr. Prescott the Convention proceeded to the first reading of the resolutions of the select committee relating to the councU. The first resolution was read, the amendment made in committee of the whole was agreed to, and it passed to a second reading. The second resolution, which fixes the number of counsellors at seven, and the quorum at four, was reaid. Mr. Morton ofifered a resolution as a substitute for the second and third of the select committee, proposing that one counsellor should be chosen by the inhabitants of each senatorial district, and the persons so chosen should form the council ,* vacancies in any MASSACHUSETTS CONTENTION. 537 district, if any, to be filled by the Legislature, from the two persons having the greatest number of votes in the district. The motion was decided not to be in order, it being a proposition to make a substantial amendment in the constitution, which had not been discussed in committee of the whole. Mr. Morton then moved that the Convention now go into com- mittee of the whole, on the resolution. Negatived. The second resolution then passed to a second reading. The third resolution which provides that the counsellors shall be chosen by the two houses of the Legislature, in convention, was read. Mr. Morton moved to amend it by substituting in substance, a resolution offered by him in committee of the whole, proposing that there shall be annually chosen in each district one person to be returned as counsellor, and that from the persons so returned seven shall be chosen by joint ballot, to constitute the council. Mr. Morton stated briefly his reasons in favor of the amendment. It had been his object to make it conform to the true spirit of the constitution, from which he considered the proposition of the select committee a direct departure. The amendment was negatived. On motion of Mr. Dana the blank was filled with the first Wed- nesday in January. Mr. Q,uiNCY said, that the phrase, " from among the people at large," had received a construction which he thought was incorrect. To restore what he considered the true construction he moved to amend the resolution by adding the words, "excluding members of the house of representatives." Mr. Bond opposed the amendment. He said it had sometimes been found difficult to find persons in each district suitably qualified who would accept the office ; and the persons best qualified might be members of the house of representatives. Mr. Q,uiNCY replied to the objection, and the amendment was agreed to — 160 to 31. On motion of Mr. Sibley, the resolution was further amended by inserting before " representatives " the words, " senators and." Mr. Blake hoped he should not have the appearance of too great pertinacity in favor of a principle which he had supported, if he re- newed the proposition which he had made in committee of the whole to retain the mode of election now provided by the constitu- tion. He therefore moved that the resolution should be so amended as to provide that no further alteration should be made in this part of the constitution. Mr. Austin moved that the question on the amendment should be taken by yeas and nays. Negatived — 28 to 241. The amendment was negatived without a division. Mr. PicKMAN moved to amend the resolution by inserting, The counsellors shall have the same qualifications in point of property and resi- dence in the Commonwealth as are required by this constitution for senators, and the 68 538 MASSACHUSETTS CONVENTION. senate and house of representatives may fill any vacancy that may exist in tlie coun- cil by reason of death, resignation or otherwise, in the manner aforesaid. The amendment was agreed to. The resolution then passed to a second reading. The fourth resolution was amended on motion of Mr. Taft of Uxbridge, by substituting " senatorial district " for "county," and passed to a second reading. The fifth resolution was read, the blank filled with the first Wed- nesday in January, and passed to a second reading. To-morrow at 10 o'clock was assigned for the second reading of the several resolutions. Leave of absence was granted to Messrs. Oakham of Pembroke, Geosvenor of Paxton, Dickenson of Belchertown, Gilbert of North Brookfield, and Cobb of Brewster. The House adjourned. The House met at half past 9 o'clock, and attended prayers offered by the Rev. Mr. Jenks. After which the journal of yester- day was read. Leave of absence was granted to Messrs. Dimmick of Falmouth, Howard of Bridgewater, Harwood of Enfield, Fisher of Lancaster, and Parker of New Bedford. On motion of Mr. Draper, chairman of the committee on ac- counts, it was ordered that each member of the Convention be fur- nished with a copy of the journal of its proceedings, now publishing in a volume, providing the same may be had for a reasonable com- pensation. Mr. Hinckley of Northampton, chairman of a select committee to whom a resolution on the subject of filing informations was com- mitted at'the, first reading, reported the same with amendments, and to-morrow was assigned for its second reading. On motion of Mr. Lyman of Northampton, the resolution offered by him respecting counsellors was referred to the committee of the whole to whom was referred the resolution of the select committee on the subject of Harvard College. On motion of Mr. Leach of Easton, the resolution offered by him yesterday respecting banks, was referred to the same committee of the whole. Mr. Hinckley, chairman of the select committee to whom the subject was referred, reported a resolution for regulating the pro- ceedings in prosecutions for libels. Referred to the same committee of the whole. Mr. Fisher of Westborough ofi'ered a resolution respecting the salaries of the governor, and justices of the supreme judicial court. Referred to the same committee of the whole. A member offered a resolution proposing to abolish the office of MASSACHUSETTS CONVENTION. 539 lieutenant governor, and moved that it be referred to the same com- mittee of the whole. Negatived. On motion of Mr. Webster the House went into committee of the whole on the resolution relating to Harvard College, and the other resolutions referred to the same committee, Mr. Pickman of Salem in the chair. The committee proceeded to the consideration of the resolution offered by Mr. Lyman, for providing that no counsellor shall be ap^ pointed to any other office during the time for which he shall have been elected a counsellor. Mr. Lyman said he borrowed the provision from the constitution of Maine. The design was to prevent the governor being sur- rounded by men desirous of office. He would have the counsellors above the desire of other offices. Mr. Turner of Scituate suggested that the office of justice of the peace should be excepted. Mr. Dana of Groton objected to the resolution, as its tendency would be to prevent suitable persons from accepting the office of counsellor. Mr. Starkweather and Mr. Bond spoke in favor of the resolu- tion. Mr. Webster said he thought a little reflection, would convince gentlemen of the inexpediency of this provision. Something like it was to be found in the constitution of the United States, which prohibited members of Congress being appointed to any civil office under the authority of the United States, created while they were in Congress ; but this prohibition never came to anything. A law would be passed on the third of March, and the appointment be made on the fourth. Counsellors would decline in order to be ca- pable of holding a more desirable office. If the governor had not sufficient character to prevent him from being unduly influenced, we ought not to prevent him in this way ; and we could not do it if we would. We should diminish the respectability of the council, if going into the council was going into Coventry. No evil had re- sulted from the want of such a provision in the constitution. Mr. CluiNCY said office seekers were a slippery race. They only slip off one skin and go into another. A provision of this kind would not be secure against evasions. He hoped the resolution would not be adopted. The question was taken on the resolution and decided in the negative. The committee next took up the resolution respecting libels, pro- viding that in prosecutions for libels against public men, the truth may be given in evidence, and that the jury may determine both the law and the fact. Mr. Hinckley remarked that the select committee had taken time and duly considered the subject of the resolution. Some of that committee thought the law was well established in conformity with this resolution, and some thought it would be well to have an ex- 540 MASSACHUSETTS CONVENTION. press clause in the constitution. This resolution did not go so far as the proposition of the gentleman from Boston which was referred to the committee. Mr. Blake hoped the resolution would prevail. He had thought the constitution defective in this pai'ticular. The constitution adopted the common law as it had been used and practised in this Commonwealth, leaving it uncertain what part of that law had been used and practised here. In a case twenty yeai's ago, it was con- tended that the odious common law doctrine, respecting libels, had not been adopted in this Commonwealth, but the court were of a different opinion. Great pains had been taken to render the law ©lear respecting offences, but with respect to seditious libels there had always been doubts and a difference of opinion. As the com- mon law stands the court has unlimited power in relation to the punishment of offenders. At the common law the practice had been carried to a monstrous extent ; so that the truth of the charge was held to be rather an aggravation of the offence. The present resolution proposed a useful alteration. Mr. Paeker said it had been decided that the constitution already contained the provision, and more broadly than in the amendment proposed, that the truth might be given in evidence in prosecutions for libels against public officers. And as to the other part of the resolution, the law now was that the jury were judges of the law and the fact under the direction of the court. He considered the proposed alteration to be unnecessary. Mr. Saltonstall said the amendment had been urged on the ground that the common law was adopted by the constitution. The article only provides that the laws usually practised on in the courts of law, shall remain in force until altered or repealed by the Legis- lature. If any modification of the law is necessary it is entirely in the power of the Legislature. But it is not necessary. The law now stands precisely on the footing on which the mover of the resolution would wish to place it. Mr. Morton, as one of the select committee, assented to the re- port, not from any apprehension of the law as it now is, but of the common law of England formerly — that only the fact of publication need be proved, and the court was to determine what was libel. But in this country the common law is adopted only as far as it is applicable to our institutions. He stated the law as it had been laid down in our courts. He was willing the resolution should be either adopted or rejected. Mr. Button hoped the resolution would not be adopted. It went only to establish what was now the law of the land. In the case of the Commonwealth vs. Clap, the whole law was laid down, and in broader terms than in this resolution. That the jury have the right of deciding on the law as well as the fact, is a part of the com- mon law of the country — and it is laid down in broader and more favorable terms than in the resolution. Besides, the Legislature have full power to act in the case if it were necessary. MASSACHUSETTS CONVENTION. 541 Mr. Austin of Charlestown hoped the resolution would, pass. If it was now the law of the land, he asked if it was twenty years ago, and if it might not be different twenty years hence. It was said the Legislature had power to alter the common law. But they have not done it. If in forty years they have not exercised the power, it is time we should do it for them. Mr. Blake said it had been stated that the whole subject was I well settled by law. He wished to know if it was by the constitu- tion. What was law to-day might not be law to-morrow. The books were full of cases in which the decisions of judges were over- ruled by succeeding judges, and the law of libel was more likely to be changed than any other. It was contended that it should be left to the Legislature — we might as well leave the liberty of the press to the Legislature. The constitution established the freedom of the press, and the law of libel was intimately connected with it. It was a very difRcult subject to say what was libel, and what was not, and it was as much the duty of the Convention to make the law of libel permanent as the liberty of the press. - He referred to a case in 1798, when it was decided by the supreme court of that day that the truth could not be given in evidence, but. the court al- lowed it as an indulgence which the law did not require. Mr. Jackson of Boston agreed that the resolution was unnecessary because the law already contained all that was required. The prin- ciple had been settled in this State several years ago, and had been uniformly acted upon. But he objected to the resolution, because it restrained the law and made it more narrow. The principle of the law is, that one may always publish the truth from right mo- tives and for justifiable ends. This he conceived to be the common law of England, if rightly understood, but having been corrupted, the act of parliament of the last reign was passed to bring back the law to what it was formerly. When the people are called on to elect public officers it is right that they should be informed of the charac- ters of the candidates, and it is the right of any person to instruct the public mind in relation to them. On this principle, all candi- dates are considered as putting their characters before the public, and any one has a perfect right to say anything that has any rela- tion to their qualifications for the office that is true. This right depends on the motive and the end in view. But this resolution does not go far enough. It extends only to public men. Suppose an apothecary in vending medicines sells those which are poisons, no one can doubt that it is my duty to inform. What is, the ground on which I am excused ? It is that I do it from a right motive, and for a justifiable end. But the resolution does not go to this case. If it is a part of the constitution, it ought to go to every case to which the reason of it extends. This resolution is loose in another view. It would seem to give the right to publish -everything of a public officer that is true, though it be done from a corrupt and malicious motive. If a man publishes a slanderous private anecdote of an individual, which has 542 MASSACHUSETTS CONVENTION. nothing to do with his qualifications for office, and if the jmy be- lieve that it is done for a malicious motive, and that he took advan- tage of the occasion of his being a candidate for office, to give vent to a private pique, they ought to convict him, and it should be no answer that what is asserted is true. The resolution therefore does not go far enough in one pai'ticular, and goes too far in another. Besides, the present law is on a proper footing, and if the decision should be overruled, it is in the power of the Legislature, by statute, to regulate it at pleasure. The resolution was negatived. The resolution offered by Mr. Fisher, providing that the Gen- eral Court should have power to lessen as well as enlarge the sala- ries of the governor and justices of the supreme judicial court, when they shall judge proper and expedient, was agreed to, without debate. The resolution providing that no bank should hereafter be incor- porated, nor the charter of any existing bank renewed, unless the stockholders shall be liable in their private capacity, was read. Mr. Thorndike opposed the resolution. It did not determine who were intended, the original stockholders or the stockholders at the time of any defalcation. Mr. Story opposed it. If adopted, no bank would ever be estab- lished unless by a few rich individuals, who had perfect confidence in each other, and it would be in few hands. It would besides put it in the power of speculators to establish banks and make a profit from the stock, and to shift all the burden upon the poorer and least protected class of people, to widows, minors and orphans, who have no share in the direction and no means of judging of the hazards they run. If the original stockholders are to be liable, the man who sells out will be liable to the amount of his whole estate for the acts of his successors. He may die, leaving an independent fortune to his family, and in one year after his death it may be all taken from them for a defalcation in a concern in which he had for years had no interest. It would besides produce no remedy for the evils under which we labor. Bills from other states, entitled to vastly less confidence than our own, would supply the place of those which this measure would force out of existence. Mr. Sturgis, Mr. CIuincy, Mr. Welles, Mr. Bond artd Mr. Shaw spoke against the resolution, and Mr. Hoyt said a few words in favor of it. The resolution was negatived — 126 to 173. The resolution reported yesterday, for confirming the charter of Harvard College, with a modification, was then taken up. Mr. Varnum called for the reading of the law of 1814. The law was read, and also an attested copy of the axits of the corporation and of the board of overseers, dated January 3, 1821, signifying their assent to the proposed alteration of the charter. Mr. Varnum said the law of 1814 had never been agreed to at a meeting properly notified. MASSACHUSETTS CONVENTION. 543 Mr. Webs-cer said he should prefer not to take up much time now, but wished to give the resolution the necessary passage through the committee, and to take it up to-morrow for more full consideration when the report would have been in the possession of members. Mr. Richardson said that he was happy to hear yesterday the report on the liberal principles which were now acknowledged in theory. When the subject was first introduced, the gentlemen who defended the College, took the ground that the charter could not be altered. He was happy to learn that this ground was now aban- doned, and to find that it was agreed that it might be altered so as to admit to the corporation ministers of other denominations. As far as the resolution proposed to admit the right of the corporation to elect persons of other denominations, he was in favor of it. But he could not admit that it was proper to confirm the board of over- seers as it is now constituted. That board was constituted contrary to the express provisions of the constitution, which established the Congregational ministers of the neighboring towns as part of the board of overseers. These are excluded by the act of 1814 which is now to be confirmed. Nothing was gained to other denomina- tions by this exclusion. The board of overseers had never made such a mistake as to admit among the fifteen clergymen a minister of any other denomination. It was the intention of the constitu- tion that the General Court should always keep the College under its control. The Legislature had no power to transfer the vested rights of the Congregational clergy. The act of 1814 will keep the control in the hands of CongregatiQnalists. The Congregation- alists in the State government, voting with the thirty permanent overseers, will keep the government of the College out of the power of the State. All the permanent clerical overseers must be Congre- galionalists ; no others are thought worthy, although those who are usually elected much less resemble, in their sentiments, the teach- ing elders, than do those of some other denominations. This board, so constituted, is to continue forever, without any favor to persons who have not a liberality like their own. If the resolution had only proposed to strike out of the constitution the word " Congre- gational," he should have been in favor of it ; but as it also proposes to confirm the board of overseers as now constituted, he should vote against it, that we may retain the constitution as it now stands. Mr. Webster said it would be affectation in him to express sur- prise at the opposition of the gentleman from Hingham, although the resolution was in conformity to his own proposition. If the gentleman had read the constitution, he would have perceived that the Legislature had the power, with the consent of the corporation and board of overseers, to make an alteration in the board of over- seers, according to the act of 1810, which was reestablished by the act of 1814. The select committee agreed that the present consti- tution of the government of the College was safe and efficient, and that the State goverment had as much control over the College as 544 MASSACHUSETTS CONVENTION. was necessary or proper. As far as his knowledge extended, no lit- erary institution had ever flourished by being under the immediate control and management of the civil government. If there was a settled, well regulated College government, they would feel a deeper and more immediate interest in the prosperity of the Col- lege, and would manage its concerns with more efficiency and ad- vantage to the community. He was astonished to hear the gentle- man from Hingham express apprehensions from the enormous power of this corporation. If he did not misunderstand him, that gentle- man said we should have a powerful institution built up by the State and independent of the State. Mr. Richardson disavowed having expressed such a sentiment. Mr. Webster said he did not mean to-day, but when the subject was before under discussion, and he presumed the gentleman had the written speech in his pocket, in which he might find the re- mark, if he would take the trouble to turn t6 it. He recollected that the gentleman then moved to strike out the word " Congrega- tional " from the constitution, to prevent clergymen of that denom- ination from having exclusive privileges. This is granted to him ; and now he says we are taking away the rights of Congregational clergymen. All that that can be done is to open the door to persons of all denominations ; the gentleman is not warranted in saying that none but Congregationalists will ever be admitted. In answer to the gentleman from Dracut, Mr. W. said the board of overseers might be wanting in rules to regulate their proceedings ; he would only remark that the meeting held by them, for the purpose of as- senting to the law of 1814, was warned in the manner which has been practised for a long time. Mr. Story said he had listened with an anxious desire to know the difiiculties relating to the constitution of the College, and the remedies which might be applied to them. When the report of the select committee was read, and a remedy provided for all the diffi- culties which had been' pointed out, he hoped the resolution would have passed without opposition. It appeared that the College had suffered much in the public opinion, from a misrepresentation of the amount of its funds, and the manner in which they had been appro- priated. These misapprehensions were now dispelled. What have been the practical difficulties heretofore ? that the government and privileges of the institution were not open equally to persons of all denominations. It was not pretended that the College was not es- tablished by Congregationalists ; and Congregationalists had done no more than is usual with other sects, when they found an insti- tution of this kind. Would any gentleman say that Andover Col- lege ought to be subjected to Christians of another sect ? It was said that Harvard College was the child of the State and under its pat- ronage. He was glad of it, and he was sorry that its funds had been aided so little by the State, much less than he had supposed, compared with the liiunificent donations of private individuals. In regard to the charter, had any man doubted that the constitution of MASSACHUSETTS CONVENTION. 545 1780 was right ? And had not the alterations made since by the Legislature, in the government of the College, been in conformity to the constitution ? He might have it his duty, hereafter, to keep his mind open to every suggestion which can be made against the validity of such acts of the Legislature, but with his present infor- mation on the subject, he thought that the law, made with the con- sent of the University, establishing the board of overseers as it is now constituted, was as immovable as the constitution itself. The gentleman from Hingham says that forty-six members of the board of overseers, composed of the governor, lieutenant governor, &c., may be overruled hereafter by the thirty permanent members. It was equally true that fifty can overrule one hundred and fifty. The gentleman too assumes, what is not to be presumed, that the fifteen clergymen and fifteen laymen appointed overseers, will be corrupt men. The notion that confidence cannot be placed in such men is subversive of all boards. If any wrong is done by them, the people can choose, the next year, a new board in part, which will have power to correct the errors or misdoings of the former board. A great part of the members from the State government live at a distance from the College.' It is a great object to have a permanent body to overlook the proceedings of the corporation, and a power is now given to the State to interfere when any wrong is required to be corrected. Abuses would take place if there were not a permanent body to oversee, and there might be danger from this permanent body if it could not be controlled by the govern- ment. Gentlemen living at a distance cannot conveniently attend the meetings of the overseers, but a new rule can be made, requir- ing notice to be given so many days before the time for meeting. Not a doubt had been breathed that any wrong had been done by the corporation or overseers, and if any doubt had hitherto existed, the present report showed that it was without just cause. Mr. Q,uiNCY, in reply to the gentleman from Hingham, said he was astonished at the course the debate had taken. He before under- stood that that gentleman moved to strike out "Congregational; " he now understood that he was the advocate of Congregationalists. He now objects that the law takes away from the Congregational ministers of the six neighboring towns their vested rights. Mr. Richardson explained. He said his ground was, that if "Congregational" should be struck out and the present board of overseers should not be perpetuated, his object would -be eff'ected. If the board should be perpetuated it would not. Mr. Q,uiNcy said that he understood the gentleman according to his explanation — ^as also his other objection that the fifteen laymen and fifteen clergymen placed the board of overseers out of the con- trol of the Legislature — which was just saying that thirty was a majority of seventy-seven. The whole shows that the gentleman has not analyzed political with the same attention he is accustomed to pay to theological subjects. His objection, as now urged, was to thd right of divesting the Congregational ministers of the six neigh- 69 546 MASSACHUSETTS CONVENTION. boring towns ; — whereas his former objection was to that right being confined to Congregational ministers. As to restoring the right to the six towns, as such, and striking out "Congregational," it was obviously impracticable. The effect would be that all de- nominations of every description would be introduced. This would bring, at the present moment, forty-four clergymen into the board, instead of fifteen as at present constituted. The only mode by which that liberal principle of introducing gradually other denom- inations into the board, would be effected, was that existing in the present constitution of the College, by election. If the right was ■confined to the six towns, and all denominations admitted, it would make a board in which the clerical part would outweigh all tlie other, [u reply to the objection of the gentleman from Dracut, (Mr. Varnum) Mr. Q,. read an extract from the Appendix to the College charter, passed in 1656 — which provides that the board of visitors might be formed without summoning those members whose habitations were at a distance, which had been construed to extend to the members residing in the six neighboring towns. Mr. Dearborn of the select committee on the subject, said he was in hopes that after the report which had been presented, we should have heard no more noise about Cambridge College. The government of the College acted towards the committee in the most liberal manner. They were disposed to keep nothing back. They wanted the committee to investigate more than the late period of the session would admit of. The clause containing the word "Con- gregational," being the only one to which an objection had been made, he hoped the resolution would have removed all difficulty. He asked, how could it be said that the people had not the power over the body of overseers, when they elect every year a majority of them ? What were the facts detailed in the report ? That the College had unexhausted funds, the gift of the State to the amount of £400 per annum, from different bridges over Charles river, and $7000 in wild lands, while the unexhausted donations of individu- als were $201,000. One would think that these donations should entitle the donors to a little voice in the management of the con- cerns of the College, and that the civil government should not have the whole direction. He thought it was proper that the govern- ment should have some surveillance, and the present constitution of the College gave them sufficient. No evil was experienced, and the state of the College reflected great honor on the government of it and on the Commonwealth. He was in favor of the rights of the people as well as other gentlemen ; but he could not sit quiet and have gentlemen ask one day for one thing, and say they should be satisfied with it, and then when it is granted to them, increase in their demands. Mr. TiLLiNGHAST, of the select committee, rose to express dis- tinctly that he was satisfied perfectly with Cambridge College. They showed a liberality far beyond his expectation or wish ; they were profuse in communicating information, It was as well rhan- MASSACHUSETTS CONVENTION. 547 aged as it could be with the funds it possessed. As to the particu- lar denomination of the College, he had nothing to do with it. He was entirely satisfied with their liberality, and he hoped the reso- lution would pass without a word in opposition to it. Mr. Baldwin of Boston said he was not only satisfied with the luminous report, but should wish to give both his voice and his vote in favor of the resolution. It seemed to him that the law of 1814 was the ground. on which the institution stood. The only objection to the charter was the restriction respecting the clergy. He had objected to that, but not on his own account, for he never expected a seat at the board of overseers. That restriction being taken off, he was entirely satisfied. He had known that young men of his denomination had received as much courtesy at the Col- lege as those of the Congregational denomination. If the College got into the hands of persons of diiferent sentiments from those of the original founders, that was none of his business. Mr. BoYLSTON of Princeton said the gentleman from Roxbury (Mr. Deabborn) had nearly anticipated all he had to say. He begged gentlemen to consider that about two thirds of the personal property of the College was given by private individuals ; of which he had himself contributed a small part. He hoped that some re- spect, some consideration would be given to the donors in relation to the management of the institution: He expressed his satisfaction with the resolution. Mr. Austin of Charlestown hoped the vote would be unanimous on this resolution. He said that Harvard was from the town he represented — that the government originally gave £400, and the College had grown up under the patronage of the Legislature. The alteration proposed was one in which he cordially agreed. The objection which had been made respecting the constitution of the board of overseers, had been answered by the gentleman from Sa- lem. It was necessary to have overseers in the neighborhood. The overseers had no pay — the ofiice was rather a hardship, although it was an honor, and there ought to be no jealousy respecting the board. There had gone forth jealousies, but they were unfounded. The College was the ornament of the land. If we did not encourage it, we were injuring our own interest. We should attract young men from other parts of the country instead of compelling them to go some- where abroad for an education. A suspicion had gone abroad that the College had enormous funds. There was no foundation for it. He was informed that some of the scholars were obliged to live out of the Colleges for the want of funds to erect buildings to accom- modate them. While gentlemen were paying liberally for the sup- port of a particular doctrine, he hoped some crumbs might fall a little to the westward. He had formerly entertained prejudices against the College, but they had been long since dissipated. Mr. Dana said that the resolution went to declare that the rights and privileges of the College should be confirmed with an addition. He' was ready to consent to it. He believed that if a new govern- 548 MASSACHUSETTS CONVENTION. ment were to be formed independent of existing rights and privileges, a better could not be devised. As to the corporation, the committee had disclosed one of the most extraordinary and honorable facts in the history of this institution. It had existed from 1636 to the present time, and not a single delinquency had occurred of one of its officers. The organization of this branch of the government he was unwilling to change in the smallest degree. They might have their prejudices, for they were but men. But the affairs of the institution must be managed by human agents, and nothing could be devised better. As to the board of overseers was there a suffi- cient popular influence ? Of the seventy-six members, forty-six were annually chosen by the people or by the Legislature. They must have a sufficient control and oversight of the concerns of the institution. Nothing could be done secretly, and nothing wrong could be done which they could not overrule. The seeds of repub- licanism had been sown so long, and the crop was so great, that contrary principles could not exist. No institution could exist without the support of the public sentiment. How long could the College exist without the assistance of the Legislature ? The grant of $100,000 would expire in four years, and the College would be obliged to come back to the Legislature for further grants, which could annex such conditions to their grants as they should see fit. He wished to dispel all prejudices, and to induce the whole public to love this institution, for of all institutions it was the one which we ought to cultivate the most. Mr. Hubbard was satisfied with the first report. He saw no ne- cessity of making any alteration. The constitution gives to the Legislature the power of appointing the board of overseers. This power has existed with the government ever since the existence of the College, and they have exercised the power. It is a public in- stitution, and the public ought to reserve the power of visitation, or the power of appointing the board of overseers. They retained that power to the year 1810. The board of overseers until that time con- sisted of men all appointed for public purposes, including the Congre- gational ministers of the six neighboring towns, constituting a body of men of education, and acquainted with the interests of literature. The Legislature had no control over the rights and privileges vested by the charter in the corporation, but had the right of visitation. He contended that there was no necessity for a constitutional pro- vision, relating to Congregational clergymen. There was no right secured to them which was not equally secured to the ministers of the six towns. He referred to the article of the constitution to show that they both stand on the same constitutional right. If the Leg- islature can take away the right of the ministers of the six towns, they can also take away the exclusive rights of the Congregational order. Until the year 1810, it was always in the power of the Leg- islature to change the board of overseers without their consent. There never was an act until that time when the consent of the overseers was required. The inference to be drawn hereafter is. MASSACHUSETTS CONVENTION. 549 that no alteration shall be made without the consent of the corpora- tion and overseers. By this report it is said they consent. He was not disposed to adopt this resolution. The board of overseers ought to be under the control of the Legislature. It was a public institu- tion supported by the public with the aid of private donations. Al- though the corporation and board of overseers consist of men, who are wise and virtuous, he would not take away from future legisla- tures the power to interfere. The report the other day was sup- ported by the friends of the College, on the principle that its char- tered rights are protected already. If so, they require no constitu- tional confirmation, and he hoped that no alteration would be made. Mr. Webster doubted whether the member last speaking (Mr. Hubbakd) would, on further consideration, incline to be bound by the opinion which he had now expressed, as to the legal rights, arising under the several laws and charters. He supposes that the Legislature has full power to alter and modify the board of overseers, at pleasure, without its assent, or that of the president and fellows. But on this point, there was known to have been great diversity of opinion. Legal characters of the first distinction had heretofore been consulted, and had come to a different result, from that of the honorable member. If the board of overseers were visitors, in the common legal acceptation of that term, there would be great diffi- culty, he thought, in maintaining this right of the Legislature to interfere at pleasure. The general principle certainly was, that when either the government or an individual founded a College, or other charity, and vested, in certain individuals, or in a corporation, the property and government of the charity, the power of the founder had ceased, and was at an end ; except so far as it might have been specially reserved. The power of visitation springs from the prop- erty ; like property it is transferable by the grant of the founder, nor can it, in general, be revoked, any more than the grant of the property may be revoked. Therefore, if, in the institution of the College, the government had vested the power of visitation, strictly- speaking, in the overseers, it certainly was very questionable whether it could properly revoke it, without their assent ; and as the over- seers are persons who take that trust by official succession, it might not be easy to see how they could give an assent which should bind their successors. He, (Mr. W.) was rather inclined to think that the overseers were not visitors, as the common law understands that term. Originally, they appear to have been mere public agents to superintend the public donation ; and when, afterwards, the charter was granted, and the president and fellows incorporated, and vested with powers of government, it was nevertheless provided, that all their acts should be subject to the approbation or disappro- bation of the board of overseers. This was not analogous to the case of usual visitatorial powers. It was important to observe, that here being a charter, by which not the scholars, or those who were to receive the benefit of the funds were incorporated, but certain trustees, who were to hold the funds, for the use and benefit of the 550 MASSACHUSETTS CONVENTION. scholars, no power of visitation in this case results to the founder, by the operation of law. He has parted with all, as well the gov- ernment as the property, except so far as he has expressly reserved it. In general, too, visitors inspect and regulate the actions of those who partake of the bounty, and not of the trustees. Indeed there are no visitors, where there are trustees, unless expressly provided for in the charter or statutes. The power of visitors, even where they exist by the charter, is not usually concurrent with that of the trustees or fellows. They maintain a general inspection ; in some cases make periodical visitation, hear complaints of grievances, and redress them, and entertain appeals, from the trustees or fellows, or those who possess the immediate government of the society. But in this case the overseers possess a power of approving or disapproving every act of the fellows, by the original charter. This not being a regular visitatorial power, it might seem to follow, either that the overseers were an integral part of the corporation itself; or else, a board of public agents, to whose control, in all cases, the fellows by their charter were expressly made liable. In the first case, it would be exceedingly doubtful whether the Legislature could change the board without its own consent ; and doubtful, too, how that consent could be given ; and, in the other case, it had been argued with great plausibility, to say no more of it, that as the president and fellows received their charter on condition of being subject to a board of overseers, constituted in a particular manner, one of them- selves always to be a member of it, their consent should be obtained, before an alteration could properly be made, either in the numbers or constitution of that board. He, (Mr. W.) intended to express no opinion on these questions, although he had studied them with some diligence. There was, no doubt, room for difference of sentiments. The original laws and charters were very short and imperfect ; and much was left to construction. The committee thought the course of wisdom was to examine the actual government of the College as it existed at the present moment, under the various provisions of the charters and laws, and finding that government to be a fit and proper one, to establish and confirm it. He sincerely hoped the Convention would concur in this sentiment. Nothing could be more injurious to the College," or indeed to the public, than that such an institution should rest on a litigious or doubtful foundation. The College, in both boards, had assented to the alteration now recommended. No other or further change seemed to be desired by anybody, and universal satisfaction might be well anticipated, he trusted, from the adoption of the resolution. Mr. Q.UINCY said a few words in favor of the resolution. Mr. Richardson called for a division of the relsolution for the pur- pose of taking the question on the first part of it. The Chairman declared it to be incapable of a division. Mr. Hubbard said that formerly an act of the Legislature had passed by which the board of overseers was enlarged so as to take in the ministers of Salem, Danvers, and other towns. MASSACHUSETTS CONVENTION. 551 The question was taken on agreeing to the resolution and decided in the affirmative — 227 to 44. The committee rose and reported their disagreement to the reso- lution for restricting the appointment to office of persons who were counsellors — ^for regulating the law of libel — and to restrict the power of granting bank charters — and their agreement to the reso- lutions relative to the salaries of certain officers and to the charter of Harvard College. The Convention concurred with the committee in their disagree- ment to the three first resolutions, and on the question whether a time should be assigned for the first reading of the resolution rela- tive to the salaries of the governor and judges, Mr. Story said that the necessary result of the adoption of the resolution would be a complete and entire prostration of the whole judiciary. Everything in the constitution, for securing the inde- pendence of the judiciary, was completely annihilated. Any Legis- lature without the power of removal may, by passing a law to reduce the salaries, remove the whole bench of judges. It applied to the present judges and was a violation of the contract of every judge now in office with the State ; it was a violation of the constitution of the United States, by undertaking to violate .one of the most solemn contracts ever entered into. There was also the greatest injustice in it ; there was not a gentleman on the bench who had not made great sacrifices in leaving a lucrative profession to accept this office. It would be a complete violation of their contract with the State, and take away the compensation for the sacrifices they had hiade. What man hereafter of any eminence in his profession would accept an appointment to the office, if it depended on the breath of the Legislature to say whether the salary, whatever it might be, should be reduced to nothing. Mr. Webster interrupted. He believed the object of the mover had been misapprehended. Mr. Fisher of Westborough said he had offered this Tesolution because the constitution gave the authority to increase the salaries of the officers named, and it had been doubted whether they had authority to diminish them. He thought the rule ought to operate both ways. His idea was that it should not operate on gentlemen that held an office ; he thought it was always understood, that the Legislature should not have the power to reduce the salary while the person who held the office was in. Mr. Story said it Avas in the power of the Legislature to alter the salary in relation to the governor and all officers but those who hold under the tenure of good behavior, and the salary of judges may be reduced for a future officer. All that is fait and reasonable can^ be effected now. But the objection was, when a judge comes into office, on a salary of f 3000, it may the next year be reduced to $100. He did not object merely that it applied to the present judges but to all future judges. It was enabling a popular man to 552 MASSACHUSETTS CONVENTION. hold up his finger to the judge trying his cause, and say, your live- lihood depends on your deciding this cause in my favor. Mr. Prescott again interrupted the speaker. The proposition was entii-ely misunderstood. It was intended by the mover to be prospective. Mr. Story said the proposition admitted of no misunderstanding. He could only take it as it was. If the gentleman wished to make an alteration that would apply to the case of an officer afterwards to be appointed, he could submit such a proposition." Mr. Fisher said he would withdraw the resolution. The President said it could not be withdrawn. After some further conversation the Convention refused to assign a time for a first reading of the resolution. The resolution relating to the charter of Harvard College was read a first time and passed, and 10 o'clock to-morrow assigned for a second reading. Mr. Alvord of Greenfield moved to reconsider the vote on the second resolution relating to the senate in the second reading, for the purpose of proposing an amendment wliich he stated. After some debate the vote was reconsidered. Mr. Alvord moved to amend the resolution by adding, " and that the senators be so apportioned among the said district as that no district may elect more than six." Mr. A. said that although there was this limitation in the present constitution, a true construction of the amendments now agreed to, would be to repeal that limitation. He concluded therefore that the limitation ought to be incorporated into the amendment, and for that purpose he had proposed this amendment. Mr. Prescott said, that to remove all doubt he wished the amend- ment might be adopted. The amendment was agreed to, and the resolution, as amended, passed. The first reading of the resolutions relating to the declaration of rights was assigned to half past 10 o'clock to-morrow. Mr. Sturgis gave notice that he should to-morrow move to rescind that part of the rule which requires that two readings of any prop- osition to amend the constitution, be on different days. The resolutions relative to the lieutenant governor and council were severally read and passed. The resolution relating to the qualifications for voters was read a second time. Mr. BoYLSTON opposed the resolution. He said it would materi- ally affect the elections in some towns, particularly manufacturing towns. Mr. Leland moved to strike out the word "therein" and insert " within any town or district in the Commonwealth." Mr. Dana said the resolution at present did not accord with the views of the committee who reported it. They did not mean to MASSACHUSETTS CONVENTION. 553 make it necessary that the tax should be paid in the town where the vote was offered. Mr. Rantoul of Beverly opposed the amendment on account of the inconvenience it would occasion in practice. The selectmen would be obliged to decide on the qualifications of the voter and would have no means of judging. Mr. Vabnum supported the amendment. It would be incumbent on the voter to produce the evidence of his right. Mr. Martin was opposed to the amendment and resolution al- together. The amendment was agreed to — 13 to 90. Mr. Webster moved to amend by adding the words, " to the Commonwealth." Mr. W. was willing to agree to the principle on which this resolution had been supported, that every person who contributes to the support of government shall be entitled to vote — but the principle was departed from if they were not required to pay a tax to the Commonwealth. Mr. Sibley of Sutton opposed the amendment. He hoped that we should not always have to pay a Commonwealth tax. In that case we should none of us be voters. Mr. Webster said that we always had been obliged to pay state taxes, and he presumed that until the millennium we always should. After a considerable debate, in which Messrs. Dana, Tillinghast, Nichols, Webster, Starkweather, Varnum, Blake, Thorndike, Lawrence of Leominster, Martin, Lincoln, Apthorp, Salton- STALL, Childs and Turner, took a part, Mr. Webster modified his amendment so as to read, "state or county tax of this Common- wealth." The amendment was agreed to. Mr. Saltonstall moved to amend by striking out "six" and inserting " twelve " months as the term of residence in any town as a qualification for a voter. Mr. Lincoln opposed the amendment. Mr. Lawrence of Groton and Mr. Martin spoke in favor of it. Mr. Dana said that the practical effect of the amendment would be to require in most cases a residence of eighteen months. The amendment was agreed to — 129 to 124. Mr. Lincoln gave notice that he should to-morrow move for a re- consideration of the last vote ; and At hedf-past 3 the House adjourned. Saturday, January 6. The House met at half-past 9 o'clock, and the journal of yester- day was read. The House p1:oceeded to the further consideration of the resolu- tion which was under discussion yesterday upon the second reading, relating to the qualifications of voters for civil officers. Mr. Lincoln of Worcester, in conformity to the notice he gave 70 554 MASSACHUSETTS CONVENTION. yesterday, made a motion to reconsider the vote by which the amendment was adopted, proposed by the gentleman from Salem, requiring twelve instead of six months' residence in the town where the vote was to be given. Mr. L. observed that as the constitution now stands, no term of residence was required for voters for gov- ernor, &c., and one year's residence in the town, was required for voters for representatives. As both these classes of voters were embraced in the resolution there seemed to be a propriety in taking six months, as the mean between the qualifications of voters for governor, &c., and of voters for representatives, in regard to resi- dence. The operation of the amendment which had been adopted, would be to require in many cases a residence of eighteen months, on account of the elections being held in November. This effect would bear upon a large and respectable class of farmers, who from the course of husbandry are in the habit of taking farms and chang- ing their residence in the spring. It would be hard to deprive this class of men, for so long a time, of their right of voting, merely for going from one town into another ; and he believed there was not a gentleman in the House who would not reject the proposition if it was brought home to himself; if it was proposed that he should lose his vote, or be compelled to move in November, the most inconvenient season in the year. If it was required only that a voter should reside twelve months in the Commonwealth, he should assent ; but to provide that the residence for that term should be in the town where the election is to be held, was inexpedient and unjust. ' Mr. Leland of Roxbury said it was important in providing for qualifications of voters, to make the rule as simple as possible. Whether a voter had a residence or not would be a question of fact to be determined by the selectmen, and if six months' residence only was required, as the taxes were assessed in May, and the elec- tions were to be held in November, the selectmen would only have to look at the books of the assessors for proof of the residence. It would be matter of record ; but if the time was enlarged, the se- lectmen would have to resort to a different and less satisfactory kind of evidence. He hoped the motion to reconsider would pre- vail. Mr. Saltonstall said his design was to prevent vagrants and strangers from voting, who had no knowledge or interest in our state concerns. He should however wish the vote to be reconsid- ered, in order that he might substitute an amendment, which he thought might accord with the views both of the gentleman from Worcester, and the gentleman from Roxbury. He should move to amend so as to require a residence of a year in the Commonwealth and six calendar months in the town or district where the election was held. The vote was reconsidered and Mr. Salltonst all moved his new amendment. Mr. Varntjm of Dracut hoped it would not prevail. He said that MASSACHUSETTS CONVENTION. 555 men who come into the State to let themselves out to labor, usually came in April and were taxed in May for the whole year, and they ought to have a right to vote after six months' residence. The usual term of hiring, however, was for six months, so that nine tenths of such laborers would be gone out of the Commonwealth before the time of the elections. Mr. Apthorp of Boston said he was in favor of the amendment adopted yesterday and had advocated it in the committee — but it had not been his good fortune to be in the majority in the commit- tee. It should be recollected that this resolution abolishes the pe- cuniary qualification required in the constitution. There would be some difficulty in settling the fact of residence, and the longer the time required the better would probably be the character of the voter, and the better chance would the selectmen ha,ve of ascertain- ing his qualifications. He should vote against the amendment for the purpose of substituting nine months' residence. Mr. Saltonstall said the gentleman from Dracut might not have experienced the evil which was often felt by the large towns, of hundreds of men coming in from New Hampshire in the spring and voting in our elections, just after they have voted in the elec- tions in their own state. Requiring a year's residence in the Com- monwealth was reasonable, in order that we may know them and that they may become domiciliated. No complaint had ever been made in requiring a year's residence to entitle a person to vote for representatives. Was there anything unreasonable in denying to these birds of passage all those rights and privileges belonging to a fixed residence ? The gentleman from Dracut seemed to think that the right of voting was the only equivalent for paying a tax. Mr. S. said the provision in the amendment appeared to him one of the most reasonable and best that could be devised. The year's resi- dence in the Commonwealth would give the voters an opportunity of becoming acquainted with the character of the candidates, and the six months' residence in the town would enable the assessors to become acquainted with the voters to assess their taxes. Mr. Martin spoke against the amendment and the resolution. He preferred the old constitution. Mr. HoTT of Deerfield said he hoped if the resolution should pass, that twelve months' residence would be required, but he pre- ferred the provision in the constitution. This resolution would de- prive many persons of the privilege of voting, who were possessed of but little property, whom the assessors in their discretion usually omit to assess. In regard to persons under guardianship, he said there were some who pay taxes and who ought to have a right to vote ; for instance, a man put under guardianship for intemperance, who becomes temperate, but yet requires a rod to be held over him to keep him from relapsing. Mr. Blake was in favor of the resolution as reported by the com- mittee and against the amendment. Transient persons would not. 556 MASSACHUSETTS CONVENTION. have the right of suflfrage wherever they happened to be. It was requisite that they should be citizens. Mr. B. was answered that by the constitution of the United States the citizens of one state have the rights of a citizen in any other. Mr. B. proceeded. In looking over the constitutions of the other states, he found that in most of them, nothing but an inhabitancy was required. If a person resided- here six months and paid a tax he ought to have a right to vote, as much as if he'had had a year's residence. He should be unwilling to have Massachusetts on a less favorable footing than her sister states, in regard to this fundamental privilege of a freeman. Mr. Lincoln said in answer to the gentleman from Dracut, that since yesterday he had become satisfied that a person coming from another state into this Commonwealth, to let himself out to labor for six months, with an intention of returning when his term of service expires, had no interest in the government ; that he was merely the creature of his employer. With respect to persons hav- ing a permanent residence in the Commonwealth, this resolution would permit a man going from a town in one extremity of the Commonwealth to a town in the other, to have the same right of voting in the latter, by residing there six months, that he would have had in the former, if he had not changed his residence. In answer to the gentleman from Boston, he observed that this amend- ment did not alter the principle in the resolution reported by the committee. The qualification of residence did not affect the pecu- niary qualification. In answer to the gentleman from Deerfield, who preferred the constitution as it is, he said it was riecessary to make some change in the qualification of voters to conform to the alteration adopted respecting the union of towns for the choice of representatives. He was in favor of this amendment, in whatever view he might regard the whole resolution. The amendment was adopted — 297 to 2. The resolution then passed as amended. The resolution respecting Harvard College was read a second time and passed without a division. The House proceeded to the consideration of the resolutions of the select committee on the declaration of rights, as reported by a committee of the whole. The first resolution was read as follows : Resolved, That it is proper and expedient so far to alter and amend the constitu- tion of this Commonwealth, in the declaration of rights, as to provide, that the word " citizen " or " person " be substituted for the word " subject " where it occurs in the said declaration in the sense of either of the first mentioned words respect- ively. This resolution, which was disagreed to in committee of the whole, was refused a second reading. The second resolution which was agreed to in committee of the whole, viz.: MASSACHUSETTS CONVENTION. 557 Resolved, That it is proper and expedient further to amend ^nd alter the constitu- tion so as that part which invests the Legislature with power to enjoin on individuals an attendance on public worship, may be annulled, and rendered no longer obliga- tory, was read and passed to a second reading. The third resolution agreed to in committee of the whole was read as follows, viz. : Resolved, That it is proper and expedient further to alter and amend the constitu- tion so as to provide, that, as the happiness of a people and the good order and pres- ervation of civil government, essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God, and of public instruction in piety, religion and morality : Therefore, to promote their happiness, and to secure the good order and preservation of their government, the people of this Commonwealth have a right to invest their Legislature with power to authorize and require, and the Legislature shall from time to time authorize and require the several towns, parishes, precincts, and other bodies politic, and religious societies, incorporated and unincorporated, to make suitable provision at their own expense for the institution of the public worship of God, and for the support aud maintenance of public Christian teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily. Provided, notwithstanding, that the several towns, parishes, precincts, and other bodies politic, and religious societies, incorporated and unincorporated, shall, at all times, have the exclusive right of electing their public teachers, and of contracting with them for their maintenance. Mr. Childs of Pittsfield moved to amend by substituting for the third and fourth resolutions, the following, viz. : As the happiness of a people and the good order and preservation of civil govern- ment, essentially depend upon piety, religion, and morality ; and as these cannot be generally diffused through a community, but by the public worship of God ; and as the public worship of God will be best promoted, by recognizing the inalienable right of every man to render that worship in the mode most consistent with the dic- tates of his own conscience : Therefore, no person shall by law be compelled to join or support, nor be classed with, or associated to, any congregation or religious soci- ety whatever ; but every person now belonging to any religious society, whether incorporated or unincorporated, shall be considered a member thereof until he shall have separated himself therefrom in the manner hereinafter provided. And each and every society or denomination of Christians in this State shall have and enjoy the same and equal power, rights, and privileges, and shall have power and authority to raise money for the support and maintenance of religious teachers of their respective denominations, and to build and repair houses of public worship, by a tax on the members of any such society only, to be laid by a major vote of the legal voters assembled at any society meeting, warned and held according to law. Provided, nevertheless, that if any person shall choose to separate himself from the society or denomiijation to whicli he may belong, and shall leave a written notice thereof with the clerk of such society, he shall thereupon be no longer liable for any future expenses which may be incurred by said society. And every denomination of Christians demeaning themselves peaceably and as good citizens of the Commonwealth, shall the equally under the protection of the law ; and no subordination of any one sect or denomination to another shall ever be established by law. Mr. Childs said this resolution was in substance the same as the one he had before offered, which was discussed in committee of the whole. He did not wish to take up the time of the House ; he would only say that he remained of the same opinion. It was the object of the whole Convention to have public worship supported ; members diflfered only about the means of coming at it. This reso- lution was in his view better adapted for that purpose than the 558 MASSACHUSETTS CONVENTION. provisions in the constitution. He moved that the question on the amendment be taken by yeas and nays. Agreed to — 104 voting in favor. Mr. TiLLiNGHAST of Wrentham spoke in favor of the amendment. There was a general tendency in the public mind to toleration. The country would never be happy, and enjoy pure and undefiled religion,- until every rag of this thing called superstition, bigotry, and law religion, were stripped from off the civil arm. Religion would always be supported, if it was of sufficient consequence to be supported. Religion was essential to the support of civil govern- ment, but there was no necessity for its being connected with it. Mr. Enoch Mudge of Lynn rose merely for the purpose of cor- recting an error in a statement made on a former day by the gentle- man from Boston, (Mr. J. Phillips) that the Congregationalists in this State, were to all other denominations in the proportion of 450 to 150. Mr. M. said there were of Congregationalists 373 societies, Baptists 153, Methodists 67, Friends 39, Episcopalians 33, Univer- salists 31, of other sects 33 ; making the Congregational societies to all other societies in the proportion of 373 to 335 ; and he be- lieved it would be found that there was even less difference than this, if there were means for ascertaining the numbers accurately. Mr. Lincoln of Boston said the amendment of the gentleman from Pittsfield contained the substance of what he wanted, but it was not altogether agreeable in its details. It contained the general principle of exemption from compulsory taxation for the support of religion. In the New Testament, our Saviour says his kingdom is not of this world. We had no right to interfere in the kingdom of Christ. He firmly believed that if this provision in the constitu- tion was expunged, we should have less corruption and litigation, and religion would be better supported. If he did not believe this, he should be the last to raise his voice in favor of it ; but he sin- cerely believed the political salvation of the Commonwealth de- pended upon it. It was better that the government should be sup- ported by religion than religion by the government. Our religion was a persuasive one ; and it was better to leave it to the influence of persuasion. The report of the select committee was too indefi- nite. It gave the Legislature unlimited power to say in what man- ner suitable provision should be made. He would not show distrust in the Legislature ; but it was proper that fundamental principles should be recognized in the constitution. In this favored metropo- lis, everything was enjoyed that was wanted by the proposed amendment. The consequence weis, that no people contributed more liberally, because they contributed voluntarily. He referred to the controversy between Mr. Barnard and Mr. Robinson. The latter said to the former that he wanted nothing but voluntary con- tributions. This looked like liberty of conscience. Such liberty he hoped would prevail throughout the Commonwealth, as it did in this metropolis. Mr. L. said the state of religion in Rhode Island had been unjustly represented the other day by the gentleman from MASSACHUSETTS CONTENTION. 559 Salem. He believed no part of the country was more blessed by the spirit of religion. Last year two thousand persons were added to the churches, and he believed there was as great a proportion of real Christians there as in any other part of the country. He believed that in this Commonwealth, if compulsion was not used, men would give twenty dollars where they now give five, for the support of religion. He hoped therefore the amendment would prevail. Mr. Colby of Manchester said he hoped the amendment would not prevail. A great deal of speculation would be the consequence. The town in which he lived had lost $10,000 by the law of 1811. Sectarians came there with their certificates of membership, selling them for a quarter of a dollar apiece ; and if they could not get that they would let them go for ninepence. The question was then taken by yeas and nays upon the amend- ment ofiered by Mr. Childs, and decided in the negative. Yeas — Messrs. Aldrich, E. Allen, Almy, Anthony, Arras, Atherton, Bachelder, J. Baldwin, T. Baldwin, E. D. Bangs, Barker of Methuen, Enoch Bartlett, Barrett, Bassett, Beach, S. Boyden, Brownell, Sam'l Bullock, Bugbee, Canedy, Chamberlain, Childs, J. Y. Clark, CoUamore, L. Cook, Crandon, C. Cummings, Daggett, D. Dana, P. Dean, Dearborn, Dunbar, Dunham, B. Ellis, Evans, Farnham, Farwell, Felt, S. Field, R. Field, Fish, N. Fisher, Forward, Fowle, Frink, Fuller, Gale, Z. Gates, D. Gray, E. Green, Gregory, D. Hale, S. Hall, B. Hall, H. Hamilton, T. Harris, Haz- ard, Hearsey, Hill, J. L. Hodges, A. Holmes, I. Houghton, Hull, C. Hyde, Kempton, Kent, Kittredge, B. Knight, Knowlton, J. Leonard, Lester, H. Lincoln, T. Lincoln, L. Lincoln, Lovejoy, Makepeace, Martin, Melville, Miller, D. Mitchell, Morse, Enoch Mudge, Ezra Mudge, Nelson, Nickerson, Nichols, Nye, Olney, Page, L. M. Parker, Parks, Pickens, Picket, L. Pierce, Pierson, M. Phelps, A. Porter, C. Powers, S. Pratt, Reynolds, Rider, D. Russell, J. Russell, A. Sampson, Seaver, Shepherd, Sibley, Sisson, H. Slocum, B. Smith, C. Smith, P. Sprague, J. Spurr, F. Stebbins, L. Steb- bins, Stone of Stow and Boxborough, Storrs, Talbot, R. B. Thomas, A. Thompson, T. Thompson, jr., Thurber, Tillinghast, Tinkham, Townsend, Tufts, Tyler, J. Wade, Walter, Waterman, Wheeler, W. Whipple, E. Whipple, N. W. Williams, S. Willard, Windsor, Wm. Wood- — 136. Mijs — Messrs. Abbott, Josiah Adams, J. Allen, P. Allen, AUyne, Alvord, Apthorp, W. Austin, J. Bacon, Jos. Bacon, Bailey, Banister, R. Bangs, Z. Barker of Andover, G. Barstow, G. Barstow, jr., G. Bartlett, A. Bartlett, B. Bartlett, W. Bartlett, J. Bartlett, jr., Billings, G. Blake, J. Blake, jr., W. Blanchard, jr., J. Bond, G. Bond, Bowdoin, Bowman, Boylston, Boyse, Bramhall, P. C. Brooks, S. Brooks, R. Bullock, C. Burts, Cary, Cheney , J. Clark of Ward, J. Clark of Waltham, Cleaveland, Colby, Coolidge, Conkey, Conant, Cotton, Crehore, Crocker, Cutler, S. Dana, D. Davis, N. M. Davis, J. Davis, Dawes, R. Dean, Derby, Dewey, E. Dickenson, E. Doane, J. Doane, J. C. Doane, Dodge, S. Draper, jr., J. Draper, W. Dutton, D. Dutton, Eames, Edwards, W. Ellis, R. Eels, Endicott, Estabrook, Fay, J. Fisher, L Fisher, Flint, Fobes, Foote, Foster, Fox, Frazer, J. Freeman, R. Freeman, S. Freeman, French, H. Gardner, A. Gates, Gibbs, Godfrey, J. Green, Greenleaf, Gurney, E. Hale, N. Hale, N. Hall, A. Hamilton, W. Harris, Heard, Hedge, Hills, Hinckley, S. Hoar, S. Hoar, jr., Holden, Hopkins, N. Houghton, Howes, S. S. Rowland, Hoyt, S. Hubbard, E. Hubbard, Humphrey, W. Hunewell, J. Hunewell, W. Hunt, C. Jackson, J. Jackson, A. Jewett, J. Jewett, Jones, Judd, Kasson, Kellogg, J. G. Kendall, James Keyes, John Keyes, E. King, J. G. King, Knowles, Lawson, Lathrop, L. Lawrence, B. Lawrence, Leach, Leland, M. Little, J. Little, J. Lock, John Locke, Longley, Low, J. Lyman, Marston, T. Mason, Messinger, Morton, J. Noyes, N. Noyes, Oakes, Paige, J. Parker, Parris, Pelham, Pickman, A. Pierce, V. Pierce, E. Phelps, J. Phillips, ,W. Phillips, Phipps, Pike, Pomeroy, Pope, M. Porter, S. Porter, B. Pratt, N. Pratt, Prescott, J. Prince of Boston, Quincy, Rantoul, J. Reed, S. Reed, Reeves, J. Richards, N. Richai-ds, E. Richardson, J. Richardson, Joseph Rich- 560 MASSACHUSETTS CONVENTION. ardson, Robbing, B. Russell, Saltonstall, E. Sampson, Sanger, Sargent, Sanders, Saunderson, Savage, Sawyer, Shaw, Shepley, Shillaber, A. Smith, Starkweather, Steams, Stickney, J. Stone of Hardwick, Joseph Story, J. Story, 4th, Stowell, Sturgis, R. Sullivan, Wm. Sullivan, Taft, Z. Thompson, Thorndike, C. Tilden, J. Tilden, Torrey, Trowbridge, Trull, Tuckerman, Turner, Varnum, N. Wade, Wake- field, L. Walker, Walton, A. Ward, Ware, R. Webster, D. Webster, Webber, J. Welles of Boston, J. Wells of Williamsburg, S. A. Wells, A. Whitney, J. Wliit- ney, W. Whitney, S. White, C White, A. Whitman, J. Whitman, D. Whitman, Whiton, Whitaker, Wilde, E. Williams, Willis, Winship, E. Wood, J. Wyles, Youn?. —246. The question- recurring upon the third resolution, Mr. Flint of Reading moved to strike out the words "and unincorporated." Mr. Jackson of Boston said he had been examining the resolution with a view to putting it into form for submitting it to the people, and he found that it contained nothing that was not in substance already in the constitution. It was undoubtedly the intention of the committee to make an alteration in this -part of the constitution, to make it conform to the alterations proposed in another resolu- tion ; but that resolution being negatived, the present became inoperative. The only new principle which would seem to be in- troduced was, that the Legislature should have the same power to provide for the duties of unincorporated societies, as for those of incorporated societies. This the Legislature had already ; for the constitution says religious societies, and this includes all religious societies, whether incorporated or unincorporated. Before the law of 1811, no unincorporated societies were acknowledged by the constitution ; but that law having recognized them, the provision of the constitution must apply to them. Some gentlemen might think that the law of 1811 should be incorporated into the constitution ; but in that case no power would remain to future Legislatures to remedy any grievances, evasions, or abuses, that may grow up under it. Some had praised that law and others had censured it. He had had fears of its effect, but it had not operated as he had apprehended, and no great evil had flowed from it. Ill effects may, however, take place hereafter, and it was wiser to leave the power with the Legislature to provide a remedy for them. He did not want to introduce a clause to restrain the Legislature from altering their own law or even repealing it, if circumstances should render it expedient. If he was right, however, in his first position, that this resolution made no change, he hoped the gentleman would withdraw his motion, and his purpose would be efi'ected by the House refusing to pass the resolution to a second reading. Mr. Baldwin of Boston moved to amend by inserting the follow- ing, viz : whenever any person shall become a member of any reli- gious society, corporate or unincorporate, within this Commonwealth, such membership shall be certified by a committee of such society, chosen for this purpose, and if filed with the clerk of the town where he dwells, such person shall forever after be exempted from taxation for the support of public worship and public teachers of religion in every other religious corporation whatsoever, so long as he shall con- tinue such membership. Mr. B. observed that this amendment was contained in the second section of the act of 1811. MASSACHUSETTS CONVENTION. 561 The motion was determined by the president to be out of order, not having passed through a committee of the whole. Mr. Baldwin said he would be governed by the decision of the president. The question on this amendment would try the sincerity of the gentlemen who say the law of 1811 will never be repealed. He apprehended the gentleman from Boston was mistaken in saying the constitution never acknowledged unincorporated societies until this act. The constitution did acknowledge them until the decision in the case of Falmouth. He would move to go into committee of the whole if there w'as no other way of ascertaining the sense of the House on the amendment. Mr. Blake of Boston said the gentleman from Boston (Mr. Jack- son) was correct in saying that the words incorporated or unincor- porated were adopted by the select committee, in connection with the other amendments proposed. There was another alteration pro- posed in this resolution, which had escaped the gentleman, that of substituting the word Christian for protestant, in order to put Cath- olics on the same footing with other Christians. Mr. Jackson said he intended to mention that the motion made by the gentleman from Concord on a former day, might be renewed in relation to the change oi protestant to Christian. Mr. Stokt of Salem said he should oppose striking out the words unincorporated. For thirty years there had been a construction that " religious societies " in the constitution included unincorporated as well as incorporated societies. There had been a case in which it had been decided upon solemn argument and upon a review, that this was the intention of the constitution ; and this construction con- tinued to be acted upon until the case of Barnes vs. the first parish in Falmouth, when a different construction was adopted. He did not hesitate to say the first was a reasonable and fair, if not a legal con- struction, and he chose to have the word unincorporated inserted into the constitution to bring it back to the construction originally given to it. He would not leave the subject in the power of the Legislature. As long as the law of 1811 existed, this construction was maintained ; but the Legislature might repeal the act to-morrow. Formerly there was hardly an incorporated society along the whole seaboard. Wherever public worship was maintained, he wished the members of unincorporated societies to have the same rights as those of incorporated societies, of having the taxes paid to the persons on whose instruction they attended. There were objections to the amendment offered by the gentleman from Boston, (Mr. Baldwin) — it would be liable to abuse. He would do no more than recog- nize the principle that unincorporated societies may exist, leaving the regulation of them as it was before 1810. The facts, whether there was a minister, or a religious society, would be determined by a court and jury. There would be no evil in putting unincorporated societies within the pale of the constitution. It was of vast conse- quence to satisfy a large portion of the community, that their relig- ious rights stand on the same foundation as those of other denom- 71 562 MASSACHUSETTS CONVENTION. inations. It would create great harmony. He was in the speak- er's chair when the law of 1811 was passed. He never saw greater excitement than existed at that time ; but it had very much gone down. The first section of th^ act of 1811 would not be liable to abuse, but the one proposed as an amendment was objectionable for that reason. It would not be sound policy for those who think relig- ious worship ought to be maintained, to remove all the power of regulation from the Legislature. There was a jealousy that Congre- gationalists have views of aggrandizement unfavorable to the minor- ity. He did not believe such views were entertained by the Con- gregational denomination, but he would prevent any suspicion of the kind. He would go as fai- as any one to allay the excitement which had been produced. There was reasonable ground for the excite- ment when the construction of the constitution which had prevailed * for thirty years was overturned in 1810. He asked if gentlemen were willing to have this excitement go on. Mr. Nichols of South Reading moved an amendment similar to the proposition made afterwards by Mr. Fay as a new resolution. It was decided to be out of order, not having been in committee of the whole in the same form as now moved. Mr. Hoar moved an amendment, proposing to substitute Christian for protestant. Decided to be out of order for the same reason. Mr. Baldwin moved that the present resolution should lie on the table, in order that he might move to have his proposition committed to a committee of the whole. Negatived. Mr. Varnum said if he had not been assigned to a duty which was incompatible with his taking any part in the debate, he should not have had occasion to detain the Convention at this late period. He would make no professions of his regard for religion, he was willing that his conduct should speak for itself. Nor would he make any invidious distinctions between the diflFerent sects or denominations of Christians in the Commonwealth. He wished to live in fellowship with them all as far as their principles were consistent with pure morality and the good of society. He wished that gentlemen would all unite and adopt something that would give satisfaction to all de- nominations. For this purpose he hoped they would do away all technicEd difficulties, and give a fair discussion before the Conven- tion to the proposition of the gentleman from Boston (Mr. Bald- win.) It was a subject dear to the people at large, and they had expected that it would be fully deliberated on. It was for the bene- fit of all parties that we should act with that spirit of conciliation that all might go home satisfied. If there was any difficulty in the third article, now was the time to correct it. As to the first part, all agree in what is our duty in relation to public worship. We go along together until we come to the difficulties arising from the dif- ference of sects and denominations. He wished that everything like distinction might be done away, and that we might come to- gether like a band of brothers. If there is a difficulty in the consti- tution, why not cure it ? What has been already done, only places MASSACHUSETTS CONVENTION. 563 the thing where it now stands. It has been decided by the supreme court that before the law of 1811, no society was within the meaning of the article, unless it was incorporated. It had been the practice to tax every person, in the parish where he lived, however much he might pay for the support of his own teacher. After burdening the parishes with collecting from persons belonging to other societies the ministerial taxes assessed on them, a lawsuit was often necessary to restore the money to the religious teacher, to whom it was appro- priated. He alluded to a case, in which a man was taxed four dol- lars, which he paid to the parish treasurer, and it was only after a series of lawsuits, which lasted four years, at an expense of one hun- dred dollars to him, and as much more to the parish, that he suc- ceeeed in having it appropriated to the teacher of his own society. He contended that every person should be taxed only by their own denomination, and that the parish ought not to be put to.the trouble of levying and collecting a tax, nor the religious teacher, or the per- son paying it, to the trouble of getting the money back. He thought, therefore, that the proposition of the gentleman from Boston ought to have a fair hearing. The law of 1811 had given relief, but it was only a law, and if he could judge from the opinions that had been expressed, attempts would be made to repeal it, and to place the subject on its former footing. He asked why the towns of Bos- ton, Salem, and Newburyport should have an exclusive privilege. What objection was there to making that law a part of the third article ? It had been contended by many gentlemen that it would never be repealed. Make it a part of the constitution so that it can- not be repealed — the people would be satisfied and it would do no harm to anybody. He was astonished that so many gentlemen from the town of Boston were opposed to everything that gives full relig- ious toleration. He did not know why any gentleman from Bos- ton, Salem, or Newburyport should oppose even the proposition of the gentleman from Pittsfield. But he (Mr. V.) thought that was going too far. He was surprised to hear his honorable friend from Boston on the right of the chair (Mr. Phillips') the other day, in- voke those of the Congregational order to come round and support the standard of their fathers. He did not believe that any prayers of that kind would be heard. He was sorry to hear the able, honest and candid gentleman from Concord express the opinions he did the other day. He esteemed him for his abilities and his candor. He told us fairly that the only true way was to tax every person within the parish lines and to let persons of the different denominations scramble for their share of it. He admired the gentleman but ab- horred the principle. It put the parish to the expense of getting the money, and persons of other sects to the difficulty of getting it back again. It was the same principle which in other countries had brought the guillotine, rack, and faggot into operation. The gentle- man did not mean it ; he knew,,and was willing to acknowledge the fairness of his motives, but it was his duty to judge of the principle. He never was better pleased than when the honorable chief justice 564 MASSACHUSETTS CONVENTION. and his honorable associate on the bench, the other day came for- ward and in so manly a manner advocated the rights of conscience and universal toleration. If their language on that occasion was recorded in letters of gold and written up on every man's door, it would teach a most useful lesson to the people of this Common- wealth. He was happy also to see the reverend gentlemen of the Congregational order, from Boston and Chelsea, disposed to do every- thing in their power to promote the desirable object. He thought that everything like an intolerant spirit in religion was fast doing away, and he trusted that before long, men of all denominations would be willing to worship together. He wished to do everything to promote this harmonious spirit, and to adopt a principle which would permit men of all parties to retire from this Convention satis- fied. Mr. Walker of Templeton said the subject had so long engaged the attention of the House, that he thought gentlemen were prepared to come to a decision. He hoped the resolution would pass. To put unincorporated societies on the footing of those which are incor- porated would have a conciliatory tendency, and he thought it would be for the interest of the community at large. It would set at rest the future legislation, on what should be considered a society at law. Engrafting this principle into the constitution would induce persons opposed to the article as it stands, to believe that some attention was paid to their wishes. Mr. Williams of Beverly considered it his duty to give his last testimony on this subject. This resolution met his approbation as far as it went. But he did not believe that it would conciliate the feelings of the people of the Commonwealth. It was but one step, and others must be taken before the people would be satisfied. In the former debate, gentlemen had expressed their satisfaction with the law of 1811. He thought it important that the principle of that law should be adopted in connection with this resolution. The question was. taken and the resolution passed to a second reading — 211 to 72. The fourth resolution, disagreed to in committee of the whole, was read as follows : 4th. Resolved, That it is proper and expedient further to alter and amend the con- stitution so as to provide, that all moneys paid by the citizen to the support of public worship, and of the public teachers aforesaid, shall, if he require it, be applied to the support of public worship where he shall attend, or the public teacher or teachers on whose instj uction he attends, whether of a society incorporated or unincorporated, provided there be any on whose instruction he attends; otherwise it shall be paid to- wards the support of public worship and of the teacher or teachers of the parish or precinct in which the said moneys are raised. Provided, however, that any inhabitant of any parish, or member of any religious society, whether incorporated or not, may at all times unite himself to any society within this Commonwealth, incorporated for the support of public worship, having first obtained the consent of such society with which he shall so unite himself; and having procured a certificate, signed by the clerk of such society to which he hath so united himself, that he hath become a mem- ber thereof, and filed the same in the office of the clerk of such parish or society to which he hath belonged and in which such moneys are raised, he shall not, while he shall remain a member thereof, be liable to the support of public worship or of any MASSACHUSETTS CONVENTION. 565 public teacher, except in the society of which he hath so become a member, but shall be holden to be taxed in the society with which he hath so united himself, until he shall cease to be a member thereof. Provided, also, that whenever any number of persons, not less than twenty, shall have associated themselves together for the purpose of maintaining public worship and public religious instruction and shall have made and signed an agreement in writing under their hands declaring such purpose, and shall have caused a copy of such agreementlo be filed in the office of the clerk of the town or towns to which they shall respectively belong ; they shall, in regard to the support of public worship and the maintenance of public teachers, have all the powers and be subject to all the duties of parishes within this Commonwealth ; and all persons so associated, while they continue members of such society, shall not be liable to be taxed elsewhere for the support of public worship or of any public teacher of piety, religion, and morality. And any person may become a member of such society, so united and certified as aforesaid, if such society shall consent thereto, and afler he shall have procured and filed in the office of the clerk of the town to which he shall have belonged, a certifi- cate, signed by a committee, or the clerk of such society of which he shall have so become a member, that he has become a member of such society, and attends public worship with them, shall not be liable to be taxed elsewhere for any money raised after he shall have filed such certificate, so long as he continues a member thereof and shall attend public worship with such society ; and shall, while he is a member thereof, be holden to contribute to the support of public worship and of the public teacher or teachers in said society. Mr. Sturgis moved an indefinite postponement of the resolution. The motion Avas carried, 167 to 144. The fifth resolution was then read, as follows : 5th. Resolved, That it is proper and expedient further to alter and amend the con- stitution so as to provide, that every person shall have a right in criminal prosecutions to be fully heard in his defence by himself and his counsel. The resolution passed — 184 to 70. The sixth, seventh, eighth and ninth resolutions, which were disagreed to in committee of the whole, were successively read as follows : 6th. Resolved, That it is proper and expedient further to alter and amend the con- stitution so as to provide, that armies ought not to be maintained except in conformity to the constitution of the United States. 7th. Resolved, That it is proper and expedient further to alter and amend the con- stitution so as to provide, that no subsidy, charge, tax, impost, or duties ought to be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people or their representatives. 8th. Resolved, That it is proper and expedient further to alter and amend the con- stitution so as to provide, that in time of war soldiers' quarters ought not to be made but by the civil magistrate in a manner ordained by law. 9th. Resolved, That it is proper and expedient further to alter and amend the con- stitution so as to provide, 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 legislative authority. These resolutions were severally refused a second reading without a division. On motion of Mr. Sturgis, in pursuance of notice given yester- day, the fifth rule of the fourth chapter, which required that reso- lutions proposing any alteration in the constitution should be read on two several days, was rescinded. It was ordered that the resolutions relating to the declaration of rights, be now read a second time. 566 MASSACHUSETTS CONVENTION. The second resolution weis then read the second time and passed. The third resolution was read. Mr. Flint moved to amend by striking out the words " and unin- corporated." He made some remai-ks in support of the motion, and Mr. Varnum spoke against it. The motion was lost. Mr. Fay moved to amend the resolution, so as to provide that all moneys paid by the subject, for the support of public worship and of the public teachers of piety, religion and morality, shall, if he re- quest it, be applied to the public teacher or teachers, if any", on whose instruction he attends, whether of the same, or of a different denomination from that in which the money is raised. His purpose in moving the amendment was to place Congregationalists on the same footing with persons of other denominations, and to make the third article consistent throughout. The article as it now stands compels a person to remain united with a society, differing from him in sentiment, or to become of a different sect. He proceeded to show that there are differences of opinion between persons of the same denomination, more material than those which divide most of the denominations. Mr. Saltonstall said this was one of the most important ques- tions which had be^ proposed in relation to the third article. If the amendment was adopted, it would reduce to a nullity all that had been done — it would make the third article a dead letter. It was made the duty of the Legislature to call on societies in their corporate capacity to make provision for the support of public wor- ship. But this proposition would put it out of the power of such societies to make any contract with their minister. It was the duty of parishes to support a religious teacher. Suppose they make a contract for this purpose. One man goes away to one parish — one to another — the increased burden induces another to go away, until none are left, and what becomes of the contract ? He asked gentle- men to reflect on the situation in which it would place all parishes. It has been heretofore necessary for a person who wished for any reason to be set off from one parish to another, to apply for leave to the Legislature. But this amendment would make this application unnecessary, and would destroy all permanent distinction of parishes. Mr. Abbot rose to a question of order. He said that this propo- sition had not been discussed in this form in committee of the whole. The motion was decided to be out of order. The question was then taken on the third resolution and it passed. The fifth resolution was read a second time. Mr. Shaw said that when 'this resolution passed on the first read- ing it was not well understood, and when it was discussed in com- mittee of the whole, it was in a thin House. He proceeded to recapitulate the arguments against the resolution. MASSACHUSETTS CONVENTION. 567 The question was taken and the resolution passed — 134 to 111. Mr. Jackson, from the committee for reducing the resolutions to the form in which they are to be submitted to the people, made several reports which were laid on the table.* Mr. Fay offered the proposition he had made as an amendment, in the form of an independent resolution, and moved that the Con- vention go into committee of the whole for the purpose of consider- ing it. Messrs. Sturgis, Starkweathek and Thorndike, opposed the motion, and Messrs. Baldwin, Lincoln, Dana and Stort, spoke in favor of it. The motion was agreed to. Mr. Blake moved that the proposition submitted by Mr. Baldwin be referred to the same committee of the whole. Mr Bond supported the motion and it was agreed to — 159 to 129. It was ordered that the two propositions be made the order of the day for Monday at 11 o'clock. It was ordered that when the House adjourned it should adjourn to 9 o'clock on Monday morning. Mr. Ellis, from the committee on the Pay Roll, reported the roll including Monday next, for travel and attendance, amounting to 5124 dollars travel, and 50,800 dollars attendance. It was ordered that the roll lie on the table till Monday. Mr. Walter from the committee on Accounts, reported that the volume containing a report of the debates and proceedings of the Convention could be obtained for the members at the rate of $1.37^ cents each. Whereupon it was ordered that a sufficient number of copies be furnished. Leave of absence was granted to Mr. Pope of Sandwich, Mr. Houghton of Barre, Mr. Bullock of Royalston, Mr. Mattoon and Mr. Scott of Amherst. The House then adjourned. Monday, January 8. The House met at 9 o'clock and the journal of Saturday was read. On motion of Mr. Varnum, the pay roll was recommitted with instructions to the committee to make an alteration so as to include to-morrow. Mr. Varnum offered the following resolution, which was voted unanimously, and ordered to be entered on the journals, viz.: Ordered, That the thanks of this Convention be presented to the Hon. Isaac Par- ker, for the exertions, attention, abihty, and impartiality exhibited by him whlist he has presided over their deliberations. * [The resolves and amendimenls reported at this time, are printed in the form in which they passed, at the end of the proceedings in the Convention. See page 612.] 568 MASSACHUSETTS CONVENTION. The President made the following address in reply to the vote of thanks : " Gentlemen of the Convention: "I have received, with great sensibility, the testimony of yom- approbation of my conduct as yom- president, on the motion of a gentleman whose long public services in high stations, and whose able exertions in this Convention, entitle him to the respect of his country. " I was not deceived in anticipating that faithful endeavors to discharge the duties assigned me by your choice, would be received with candor, although my inexperience should occasion errors and mistakes. " My reliance upon the advice of gentlemen, whose talents have been long practised in the forms of regulating deliberative assemblies, has not been misplaced — from them I have received powerful aid and support. To those gentlemen I tender my thanks for sharing so largely in the labor of presiding over your deliberations. " To all, I offer my respect and gratitude for that order and deco- rum which, in so numerous an assembly, could have been maintained only by individual courtesy and respect for the character of the people whom you represent. " Gentlemen — I congratulate you upon the approach of the happy termination of your arduous session. The importance of your work, will not, by an intelligent people, be estimated by its visible product in actual changes of the constitution. " We were sent here to revise a constitution dear to the people, and to amend it only where amendments should be found necessary. " The reluctant spirit with which the people sent us here, has been duly estimated. You have given the constitution a faithful revision in all its parts : and have left its great principles and its chief organization undisturbed. The work of preservation, if less difficult, is not less important, than the work of creation. " When posterity shall see that the frame of government, which was formed by the great men who composed the Convention of 1780, was carefully and critically revised by those who constitute this assembly in 1820, it will be difficult to shake their confidence in a system which shall come to them so recommended. " Gentlemen — If you have seen disadvantages in so numerous a representation of the people, for purposes like those about which you have been engaged, it should not be forgotten that they will be counterbalanced by the general confidence which the opinions of so numerous a body will be likely to inspire. " Every town and district, with one or two exceptions, within our populous and flourishing Commonwealth, has had an opportunity to be heard by its delegates, upon the interesting questions which have been discussed. These delegates will carry hpme to their constituents the reasons and arguments which led to the recommen- dation of any change as well as those which prevented the adoption MASSACHUSETTS CONVENTION. 569 of such as may have been desired by some. The people will thus be able to judge, upon a full knowledge of all the motives which have had their influence in this assembly — and will decide with an intelligence worthy of their character and their advantages. " That the harmony, good feelings and conciliatory temper, which have prevailed here, may extend through the Commonwealth, is my ardent desire and prayer. That party spirit, whose crest I am proud to say has not been, on this occasion, raised within these walls, may be found to have departed from our Commonwealth, and to have left in its place mutual good will and a genuine love of country, is, I have no doubt, .the sincere wish of us all. "I pray the Almighty Preserver of communities and men, that you may all return in safety to your families and friends — carrying with you, and finding there, health, peace and happiness ; — and that your children's children may have occasion to bless your memories, for the legacy of law, liberty and prosperity, which, having received from your fathers, you have not only preserved inviolate, but will hav? transmitted, secured, and improved, to the generations which succeed you." On motion of Mr. Vaknum, ordered that the President's address be entered on the journals of the Convention. The resolutions reported by the committee for reducing the amend- ments into form, were taken up. The first resolution was read, and passed over for the present. The second resolution was read, which contains a provision that the votes of the people on the amendments shall be given on the second Monday of April. Mr. BoYLSTON of Princeton moved to strike out the second Mon- day of April, and insert the first Wednesday in May, because of the excitement from the April elections, and with a view of giving the people more time. Mr. Lincoln of Worcester said it would be proper to have the people act as promptly as possible, consistent wjth due deliberation, upon the alterations proposed to them. The time recommended by the committee would not interfere with the business of the people in the country ; and the objection made by the gentleman from Princeton, respecting the excitement of the people, would apply with equal force to the day proposed by him, because the election of rep- resentatives takes place in May. Mr. Jackson, chairman of the committee, observed that an earlier day than the one proposed by the gentleman from Princeton was necessary, in order to give time for making the returns. It was also thought by a gentleman near him from the country, that the first Wednesday in May would be inconvenient on account of its suc- ceeding immediately after the general muster day. Mr. Apthorp of Boston remarked that the second Monday in April would give an opportunity of voting to one class of our citizens, who were usually absent in the month of May. 72 570 MASSACHUSETTS CONVENTION. On a division of the motion the question was taken for striking out, and decided in the negative. The third resolution was read, which contains a provision for ap- pointing a committee of the Convention to meet after the votes shall have been given in, to receive and examine the returns, and certify them to the governor and council, and also to the General Court. Mr. Q,uiNCY of Boston moved to strike out this provision and in- sert instead, that it shall be the duty of the Secretary of the Com- monwealth to lay the returns before the Legislature at their session next after the votes shall be returned. Mr. Q,. offered this amend- ment, because a committee of the Convention would be an irrespon- sible body. Mr. Dana of Groton wished the chairman of the select committee to state the reasons for the mode proposed in the resolution. Mr. Jackson said the committee were of opinion that the regular way would be for the whole Convention to come together again, and receive the report of the committee proposed to be appointed. But this would occasion great expense and trouble for a matter of form, as the Convention could do nothing but count the votes. The next question Avas, who should attend to this duty. It was thought that the Convention had no right to impose the burden on the governor and council. The General Court was then proposed ;■ and perhaps no great inconvenience might arise from committing the business to them ; but it was thought doubtful whether we had a right to impose this duty on them, and it was uncertain in what manner they might treat the proposition. It seemed necessary, however, to delegate to somebody ; and it was thought that we had more right, if we had any, to delegate to a part of our own body. It Avas proposed that the committee should be a large one ; — say two from each senatorial district. The select committee were aware of the objection made by the gentleman from Boston, (Mr. duiNCY, ) and it was suggested that the chairman of the committee might be empowered to call the Convention together, in case any difficulty should occur. It was considered that there would be no great risk in reposing confidence in such a committee. Mr. Dawes of Boston said if this objection to a committee of its. not being a responsible body, had not come from a gentleman for whom he had a high respect, he should have called it a fastidious objection. Mr. Dana argued that the act of the Legislature having given the Convention power as to the end, the same was to be implied in re- gard to the means, and he thought the mode pointed out in the resolution was the best. He remarked that the.y were sent there to revise the constitution. It had undergone a grand revision. There had been a grand development of the principles on which it was framed, and if not a single amendment had been adopted by the Convention, the people would have been satisfied. They would be glad that the constitution has been found so perfect. He thought it would be more satisfactory to the people to have a part of the MASSACHUSETTS CONVENTION. 571 same persons receive the returns who were appointed to make the revision. Mr. DuTTON of Boston said he apprehended that his colleague (Mr. duiNCT) was mistaken in respect to responsibility. If they had no right to impose on the Legislature the duty of receiving the returns, the Legislature would be under no obligation to perform it. The Legislature, therefore, would be an irresponsible body in rela- tion to this subject. The Convention ought not to meet again, and they must delegate the duty to somebody. A committee of the Convention would be responsible to the people, in the same manner that the Convention itself was. Mr. Lincoln of Worcester said the amendment was objectionable, because it proposed to commit the duty to an extraneous body. The people had not intrusted the Legislature with any power re- specting the amendments to the constitution, and the whole object of the Convention might be defeated by adopting the present prop- osition of the gentleman from Boston. Mr. duiNCT said the only question was, whether this committee to be appointed was a responsible or irresponsible body. Giving that committee authority to call the Convention together, did not cure the difficulty ; they might or might not do it, and were under no responsibility in relation to it. He was not convinced by the arguments in support of the resolution, but he saw the general im- pression was in its favor, and he should not urge his proposition any further. The question was taken on the amendment, and decided in the negative. The blank for the time of the meeting of the committee was filled with the fourth Wednesday of May next. A fourth resolution, respecting the mode of voting upon the amend- ments, was read. Mr. D. Davis of Boston wished that some mode might be pointed out for making known to the people the amendments which should be approved by a majority of them. The fourth resolution was recommitted, 121 to 28 — with in- structions to report on the mode of giving official notice to the peo- ple of the amendments which may be ratified. The other resolutions were laid on the table in the mean time. We have mentioned such parts only of these resolutions, as were the subject of discussion ; as we intend to give them as afterwards amended and adopted, in connection with the amendments reduced to form.* The resolution to take away the power of proceeding in criminal cases by information, was taken up. Mr. Hinckley said that the select committee had had the subject under consideration, and had come to the result presented by the resolve. They were of opinion that by the common law as it was • [See page 612.] 572 MASSACHUSETTS CONVENTION. established in the Commonwealth, the attorney or solicitor general may iile an information at pleasure against an individual for any crime by which he may be put at hazard of losing his life, liberty or property, and that this was a dangerous power, and one which ought to be guarded against in the constitution. They did not find that there had been any abuse of the power, nor did they apprehend any danger at present, but it was an arbitrary power, capable of be- ing abused, and which ought not to exist in a free government. A citizen of the fairest reputation may be brought into court for trial at the pleasure of the prosecuting officer, Avhen, if the complaint were brought before a grand jury, it would be suppressed, and the mortification and distress of a public trial prevented. It is pro- posed that the jurisdiction of justices of the peace and the law mar- tial shall remain unaffected by the alteration, and subject to the discretion of the Legislature. It is also proposed that the Legis- lature shall have authority to grant the power to the prosecuting officers of the Commonwealth, of proceeding by information in specified cases. Mr. Webster said he was doubtful, whether the resolution would not include cases of quo warranto, and some other cases, where filing an information was a proper course to be pursued. He there- fore moved to strike out the words " loss of life, liberty or property," and to insert instead, the words " imprisonment or other ignomin- ious punishment." The amendment was adopted, and the resolution, thus modified, was as follows, viz. : Resolved, That it is expedient to amend the constitution in the declaration of rights so as to provide that no person shall be subjected to trial for any crime or offence, which, on conviction, may expose him or her to imprisonment, or igno- minious punishment — but by presentment or indictment of a grand jury — except in cases which are or may be otherwise provided for by the statutes of this Common- wealth. The resolution passed as amended. Mr. Martin of Marblehead offered a resolution that it is inexpe- dient to make any other alterations in the constitution, except those which have been adopted respecting oaths and subscriptions, and respecting the mode of making future amendments. Decided to be out of order, being repugnant to almost everything that has been before determined. A resolution offered several days since by Mr. Valentine of Hop- kinton, proposing to alter the constitution so as to have sheriffs elected by the inhabitants of the several counties, was referred to the same committee of the whole to whom was referred the resolu- tion offered by Mr. Fay on Saturday. A resolution providing for counsellors being qualified in the re- cess of the Legislature, by the governor, alone, or lieutenant gover- nor, and any one of the counsellors, previously qualified, was referred to the same committee of the whole. This resolution had been agreed to in the committee of the whole MASSACHrSETTS CONTENTION. 573 on the lieutenant governor add council, but the subjects referred to that committee having been recommitted to another committee, all its proceedings became a nullity. A report of the committee for reducing amendments to form, con- taining the article relating to the political year, and to the time for holding elections, was read. Mr. Varnum said that in his opinion it would be proper to have this article go into operation in one year, instead of two. He thought it would be more congenial to the wishes of the people. He doubted the right of extending the term of office of persons chosen for one year only. He moved to amend the article, so that it should go into operation upon the first Wednesday of January, 1822, and the State officers chosen next spring should continue in office until that time. Mr. Jackson said the committee, in making up their opinion, were at first inclined to have this article go into operation immedi- ately ; so as to have the first election urlder it in November next. The reason for changing their minds was because this year the valuation would be taken. The Legislature in May would appoint the committee, and in January would settle the valuation. This would be the course whether the article should be ratified or re- jected ; if it should provide for holding the first election in Novem- ber, 1822. It was thought proper that the same General Court which began to make the valuation, should complete it. It was considered inexpedient to begin the new organization of the gov- ernment in an extraordinary year of valuation. It was suggested that the Legislature might have an extra session in the autumn, to settle the valuation, but this would be attended with great expense, and there would be hardly time for the committee to make up their returns. If the first election was to be held next November, the Legislature would have a great deal to do previously in classing the towns, and it was possible that they might not have the census, officially, in season for that purpose. It was necessary to do one or the other ; either to extend to eighteen months the term of office of the persons elected next spring, or to abridge it to six months. There seemed to be no objection to the right of the people to ex- tend the term, though there might be with some in regard to the right of abridging the term. The General Court next chosen, would go on just as if no alteration had taken place, and there would be no need of a May session in 1822. Mr. Vaknum said that every person accepting any office next spring, would know that it might expire in six months. If the term was extended to eighteen months, many people would con- sider it a dangerous precedent, and we should hazard the rejection of some of the most valuable amendments. With respect to the valuation, it was impracticable for the same General Court to com- plete it. If no alteration should be made, the committee appointed by one General Court would make their returns to the next General Court. No difficulty had ever been experienced, in regard to want 574 MASSACHUSETTS CONVENTION. of responsibility, from the committee making their returns to the next General Court, instead of making them to the body by which they were appointed. Mr. Lincoln of Worcester said he differed from the majority of the committee, though he allowed there was great weight in the arguments which had been urged by the chairman. His reasons, however, were not the same as those advanced by the gentleman from Dracut. It was admitted that we have a defective form of government ; we should therefore give the people an opportunity of having a good one as soon as possible. The objections were all founded on matter of convenience. In respect to the valuation, the same difficulty would always exist, unless there should be two ses- sions. He did not think it would be necessary to have two sessions for that purpose, or he would have opposed the proposition for having all the towns represented every tenth year, on account of the monstrous expense it would occasion to the Commonwealth. There would be no difficulty in the report of the committee on val- uation being made to a new Legislature, without having the com- mittee to explain. An invoice was a mere matter of fact, and there were always gentlemen in the Legislature acquainted with this subject. It would be necessary to class the towns before a Legis- lature could be chosen under the amended constitution, but this was the labor of a day and could be done at the next May session. Mr. Prescott hoped the amendment would not prevail. He said a valuation committee would be appointed by the Legislature next May. The house of representatives would probably be a large one. If this amendment was adopted, the committee would report either to the same General Court at an extra session, or to a Legislature under the new organization of the government. The next General Court would be in many respects differently constituted from the one to be chosen imder the amended constitution. They would prefer completing the valuation, and would probably have an extra session in October, for this purpose ; and then a new Legislature would be chosen in November, to meet in January. He should be willing to live one year longer under this defective constitution, which had served us for forty years, rather than have the expense of an extra session of the Legislature. He observed in addition, that it would take a considerable time in the May session to arrange the classification of towns. Mr. Sibley of Sutton spoke in favor of the amendment as being favorable to the small towns. He also thought it was important to have this article go into operation as soon as possible, because the defect in the organization of the senate was the principal reason for calling the Convention. Mr. Varnum's amendment was adopted — 169 to 116. Mr. Vaknum then moved to fill up a blank for the day of the first election, with the second Monday of November next. Mr. Jackson pointed out an inconsistency in saying the article should not go into operation before the first Wednesday of January, MASSACHUSETTS CONVENTION. 575 and yet requiring by it that the first election should be on the pre- ceding November. Oq motion of Mr. Locke of Billerica, the vote adopting the former amendment was reconsidered ; and after some debate, on motion of Mr, Austin of Boston, the article was recommitted, in order that the committee should make it conform to the sense of the House, that the first election should take place on the second Monday of November next. On motion of Mr. Webster, the committee had leave to sit while the House was in session, if it should be necessary. Mr. Stebbins of Granville offered a resolution so to amend the constitution, that the salaries of the judges of the supreme judicial court, after the present judges shall have vacated their offices, shall be so fixed that the salary of the chief Justice shall never be more than 2500 dollars, nor less than 2000, and that of the justices, not more than 2000, nor less than 1500. A motion to commit this resolution to the committee of the whole, was negatived. Mr. Spurr of Charlton offered a resolution 'providing that the lands belonging to the Commonwealth, situated in the state of Maine, be appropriated to the establishment of a fund, the interest of which shall be distributed among the several towns and districts, according to their population, for the support of the common schools. Also, another resolution providing that, instead of a registry of deeds for each county, all ■ deeds and conveyances of real estates shall be recorded in each town by the town clerk, who shall never be allowed more than 25 cents for recording each deed. On a motion to commit the first resolution to a committee of the whole, Mr. BoYLSTON of Princeton stated that it would be useless to take up the time of the Convention upon this subject, as the lands of the Commonwealth were at present not in a disposable state — being already pledged to the state of Maine for 30,000 dollars, in consid- eration of their assuming the debts and claims due to certain Indian tribes and others, on the separation of the State. They were to have two years to survey and locate the lands, and afterwards the Legislature of Massachusetts was to be allowed one year more to make their election whether to convey the lands for that sum, or to pay the 30,000 dollars in money. But another very important consid- eration arises. The American and British commissioners, under the treaty of Ghent, were running the line on that quarter, and it ap- peared by reports, that the American commissioners had expressed some degree of concession to the British commissioners, whereby the whole might fall within the British lines. Whether that shall be the ultimate decision, or not, would it be advisable to come to any vote upon property in a state of so much uncertainty ? A motion to commit these resolutions to a committee of the whole, was negatived by a large majority. It was moved that the Convention go into a committee of the 576 MASSACHUSETTS CONTENTION. whole, on the resolutions which were committed on Saturday and this morning. Mr. Abbot of Westford opposed the motion. He said it would detain the Convention a long time to discuss the subjects referred to the committee, and he thought unproiitably. One of the prop- ositions relating to the third article, had been, in substance, al- ready agitated, and the object of the other was already attained by the law of 1811. What was now proposed was not necessary for the organization of the government, and he hoped the Convention would refuse to go into committee upon it. The motion was carried — 156 to 127 ; and Mr. Webster took the chair. The resolution offered by Mr. Fat, for the further amendment of the third article of the declaration of rights, was taken up. Mr. Hoar was sorry that any gentleman had thought it necessary to bring this proposition before the Convention at this late period. It had been twice substantially before the House, and had been negatived when there were more than a hundred more members present than were now here. But as it had been thought fit to bring up the question, it was necessary to consider what would be its operation. It was a short and plain proposition, and at first view seemed very fair, but it would be found on examination that its effect would be to annul every parish in the Commonwealth. It puts an end to all acts of the Legislature, dividing the Common- wealth into convenient districts for the support of public worship. For what reason was this to be done ? It was desirable to some persons to have the power of leaving theii" parish minister and going to another. This, no doubt, was sometimes a very convenient and pleasant thing, but there were two sides to the question. A parish forms a contract with a minister — an individual votes in making the contract, but the next year changes his mind, and wishes to be lib- erated. He is only to say he has changed his mind and he is lib- erated. Would this be borne in any other case ? Suppose there was a banking institution in which the individual proprietors were responsible for its engagements, and an individual should withdraw from it 'and avoid his responsibility? It would be considered a breach of good faith. This provision authorizes every member of a parish, which has a contract with a minister, to go where he pleases, and no tax can afterwards be assessed upon him for fulfill- ing the contract — this gives a new inducement to another to go — and the corporation may be left without corporators. The minister may sue and get execution against the corporation, but he can get no fruit of his execution — and there is no way in which his con- tract can be enforced. If all do not leave the parish — suppose only one half leave, those who remain will be compelled to pay a double tax, or to violate their contract. It was said that this might be the effect of the present law. This did not diminish the force of the objection. The law may be modified so as to prevent these conse- quences, but if the principle is incorporated into the constitution, it MASSACHUSETTS CONVENTION. 577 cannot be. It was said that these evil consequences had not re- sulted from the law. One reason why the consequences of the law had not been felt was, that it was not generally understood. It jvas generally supposed that to entitle one to leave a parish and with- draw his taxes, he must become a member of a society of a differ- ent denomination. But the law had recently rectjived a different construction, Avhich was no doubt correct. It was true that under the law a person who becomes of a different- denomination, has a right to withdraw, but this was understood, and the contracts have been made subject to this condition. This provision might be lia- ble to abuses and frauds, but it did not follow that there might not be benefit in the restriction. There were instances in which pre- tended changes of opinion to avoid taxation, had not availed. He stated an instance of a man who left a Congregational parish, joined a Baptist society and Avas immersed — and who, on being asked if he had washed away his sins, replied that he had washed away his taxes, which was his principal concern. This declaration being proved, he was still holden to the payment of his taxes in the Con- gregational parish in Avhich he resided. The resolution, if adopted, would change the condition of all ministerial contracts. Whether it would annul contracts made by bond, he did know, but there might be doubts. It disables a parish from forming a contract which shall be binding upon both parties. Suppose a minister is settled in the usual solemn form to-day, this amendment points out the mode in which any member of the parish may avoid the obli- gation entered into. It may be all fair in relation to future con- tracts, but it is not in relation to those now existing. He asked if gentlemen were prepared to adopt such a principle in the constitu- tion. It was of infinite importance, and threatened the most per- nicious consequences. There was no adequate reason for the change in the trifling inconvenience that had been felt. He hoped that gentlemen when they considered the thin state of the House, com- pared with what it was when the subject was before under dis- cussion, would not adopt a measure which must put an end to the ancient mode of supporting ministers, for the very trifling object that is proposed to be gained by it. Mr. Story said he had listened with great care and attention to the gentleman who had just spoken, and whom he always heard with pleasure and instruction. If he had failed to convince him by his ingenious argument, it was because he had assumed some things which he, Mr. S., thought were not to be admitted. The assumption is too broad that every member of the parish is bound to contribute to the support of the minister, and that whenever you allow an exception, it impairs the obligation of the contract entered into, and you lay the foundation for destroying the parish. If this was true, the mischief was done already; the constitution now has the principle. The gentleman thought the change would be of pernicious tendency; — if he, Mr. S., thought so, he would be op- posed to it, but he -thought it would be salutary. This was only 73 578 MASSACHUSETTS CONVENTION. opinion against opinion. The reason why this alteration ought to be made, was on the ground of the indulgence already granted. Had any serious evil grown out of the present indulgence ? If there had not, would the evil be increased by giving this principle an equal operation ? No gentleman would say that the difference of sentiment was not as great between an Unitarian and a Trinitarian, as between a Trinitarian Congregationalist and a Baptist. Why should not this difference be entitled to the same indulgence ? The principle of the constitution is, that the rights of conscience shall be indulged, as far as is consistent with the right of government to re- quire the support of public worship. If the argument that the right of withdrawing from one parish to another, endangers the existence of parishes, is well founded, it prostrates the indulgence already granted. But we have lived under the constitution forty years in which the provision has existed, and it has not proved injurious. The gentleman said that parishes were to be broken up by this amendment. He, Mr. S., held that they were to be preserved by it. By the present constitution, if a person residing in a parish be- longs to a society of another denomination, and worships with them, he has a right to withdraw his taxes, but has no right to withdraw them unless he belongs to a society pf another denom- ination. The consequence is, that if a person is disaffected, you drive him to proselyting, that he may form a little society which shall forever protect him and his associates from being taxed in the parish. But this amendment permits him to go to another society of the same denomination — to the neighboring parish — and another man perhaps comes back from the other society. What is lost by one is gained by another, and the balance is nearly equal. It will induce the minister to conciliate the feelings of his parishioners, and to have a stricter regard to the feelings of the minority of the parish, where there is a division of opinion, and to pay an equal re- gard to the whole of his flock. It will prevent persons playing the hypocrite, by going over for a short time to a sectarian society, to avoid the obligation of paying taxes, and returning to another church of his original opinions. He put it on the ground of right. Why should persons of a different denomination have the indul- gence, while it was refused to persons of the same denomination, though the difference of opinion may be greater, and the reason for the indulgence stronger ? He granted it would impair the security of present contracts, but it would not prejudice future contracts. It would always be in the power of the minister to require the guar- anty of individuals, and if he is a good man there will be no diffi- culty. He did not say there would be no evils, but he did not believe they would be great. When he recollected that for two centuries, piety and religion had distinguished the people of this State — that the ministers of the gospel had generally been liberally and cheerfully supported — that the people everywhere felt a strong attachment to their clergyman and an interest in his welfare, he coulfl not believe that any parish would desert their minister when MASSACHUSETTS CONVENTION. 579 old and grey-headed, and suffer him to go down in sorrow to the grave. It was contrary to our nature, and he had never known an instance of such unnatural treatment. This amendment would have a tendency to strengthen the tie between minister and people, and so far its effect would be salutary. Mr. Foster of Littleton said, that if he believed the public good required a provision of this kind, he should cheerfully give his assent to its adoption. If the case was the same between Christians of the same denomination as between different sects, he should vote in favor of the resolution. He agreed that conscience should be res- pected, but he thought sufficient provision for it had already been made. He thought that when we said a man might do as he had a mind to, might worship when and where and in what manner he pleased, might enjoy his opinions freely, might embrace the system, of Swedenborg and all his nonsense, if he chose, or run after any visionary zealot, no person had a right to complain of the rights of conscience being under restraint. The gentleman talks about" the differences between Unitarians and Trinitarians — what have these speculative disputes of ingenious men to do with conscience ? He hoped it would not be thought indecorous in him, on account of his being a minister of a Congregational church, to oppose this resolu- tion. He was not acting as a clergyman. He stood on equal ground with other gentlemen and wished to be considered only as the humble delegate of the town he represented. If this provision was to be prospective, he said it would not be quite so objectionable. Future .contracts between a minister and his people might be framed with reference to it. Ever since the country was settled, the con- tract with a minister had been for life ; and he wished gentlemen to consider that it was not a trifling thing to a clergyman to be turned out of his living. A great proportion of the Congregational clergy, instead of receiving a large sum when they were settled, have made a contract to have a small sum annually during their life ; and if this is taken from them, they will be left without any resource. And what reason is to be assigned by a parishioner for deserting his clergyman? No reason. The constitution is my reason. I am tired of hearing this old worn-out minister. The gentleman from Salem said he had never seen a clergyman deserted in his old age — that it was not in our nature to act with such inhumanity. Unfor- tunately, the gentleman's experience did not reach to every case. He (Mr. F.) had seen a clergyman deserted in his old age and seen his grey hairs go down with sorrow to the grave. When a proposition was made for giving the Legislature authority to reduce the salary of a judge, the gentleman's sensibility was all alive. It must not be. You are breaking your contract. The faith of the community is pledged, so long as he behaves himself well. He agreed with the gentleman perfectly, only he did not go far enough. Why not ex- tend his protection to a minister of the Gospel ? No, let him spend his old age in poverty and distress. After he has spent his best days in the faithful performance of his duties, let his society turn 580 MASSACHUSKITS CONVEMTION. him off, like an old horse worn out with service. By this resolu- tion, all that a man has to say is, that he has a preference to another minister. All our parish lines aie blotted out. The clergyman may have to attend his parishioners in a dozen towns. They will be like the cattle on a thousand hills. Suppose a man should say he did not like the governor, or the judges, and it was against his con- science to contribute to pay their salaries ; what is to be done ? A man's conscience is quick in politics, as it is in regard to paying his minister. In either case it is a mere matter of money, and there is no conscience about it. He could only hope the resolution would not be adopted. Mr. Newhall of Lynnfield hoped the resolution would be adopted. He thought it the only measure that could preserve the Congrega- tional parishes from a gradual decrease — and in the small towns from annihilation. Besides the complaints against clergymen arising from fanaticism, or from personal prejudices , and ill will, there are in almost all Congregational societies persons of respectable char- acter whose sentiments on the great and leading principles of Chris- tianity are not in imison with those of the settled minister, and who for that reason are obliged to neglect attending on his ministrations, and are driven to societies of other denominations. It is well known that nearly all the varieties in the fundamental doctrines of Chris- tianity, are to be found in persons of the Congregational denomina- tion. There are therefore all the reasons for dissenting from one Congregational society and uniting with another, that there can be for going to a society of another denomination. As therefore he wished to see all religious denominations stand upon a level in the enjoyment of religious rights — as he was desirous that there should be no legal hindrance to persons removing their connections from one religious society to another of the same order — and as he be- lieved that such a regulation would tend to promote harmony and friendship among Christians of various sects, he hoped the proposed amendment would be adopted. Mr. Freeman of Sandwich said it was his misfortune to differ from the learned gentleman from Salem in relation to this amend- ment. He agreed with the gentleman from Concord, that to in- corporate it into the constitution would be about equal to an aboli- tion of the third article. He would not go into argument on the question, but would state one or two facts, which he proceeded to relate by way of showing the application and effect of the proposed amendment on certain parishes. Unitarians and Calvinists he con- sidered different sects. He had no interest in supporting this side of the question. If he had acted from a regard to his personal in- terest he should have spoken on the other side. Mr. Low of Beverly had already expressed his satisfaction with the law of 1811 ; but that might be repealed. Before that law there was an inequality of privileges. In Newburyport, Dorchester, and probably twenty other towns, all persons go to what society they please and pay where they go. He would not say how much law MASSACHUSETTS CONVENTION. 581 there should be to regulate religion, but what there was ought to be equal in .its operation. Mr. Phelps of Belchertown hoped the resolution would not pass. It was brought in at the end of the session, after many of the mem- bers were gone home, and after the subject had been fully discussed in a full house. He thought it ought not to be adopted in the pres- ent state of the house. Mr. Lincoln said that originally every parish was of one sect and entertained a uniformity of sentiment. But now there was a great difference of sentiment in almost every town. In some towns there are persons who are obliged to play the hypocrite and associate with a society they do not agree with, or contribute to the support of doctrines they do not believe. What was the condition of almost every parish in the western part of the Commonwealth ? Every person was born with the obligation of supporting religious instruc- tion of a certain kind, for the dissemination of doctrines which many did not believe. He had the happiness to belong to an Uni- tarian society, where he could worship in a manner consistent with his views of the doctrines of Christianity. But what would be the condition of a man belonging to such a society, who, by what he conceives to be the operation of irresistible grace, is brought to be- lieve in the trinity, and all the doctrines connected with it, and that his former opinions were erroneous ? Shall he be bound to adhere to his society, or to contribute to the support of a teacher who ac- cording to his new views preaches what is without a particle of religion in it, and inculcates doctrines abhorrent to his conscience ? It is only an act of justice to permit him to withdraw. As to its violating the obligation of contracts between the parish and the minister, it is done by the provision of the constitution already, and there is no mode of preventing it. If all are required to pay for the support of public worship in some society, it is all that can be done towards gaining the purposes of government. The differences be- tween persons of the same denomination are many of them more essential than those which distinguish the different denominations. The latter are principally matter of form — the other may be a dif- ference in fundamental doctrines. The learned gentleman pro- ceeded to state the practice that was begun as early as 1807 by the Legislature, of incorporating poll parishes, and the operation and effect of the practice which he contended had been favorable in promoting attendance on public worship and the growth of piety and religion. Mr. Fay of Cambridge said, if the proposition had been substan- tially discussed and acted on, he should not have brought it forward at this time. But it was brought forward in connection with other principles, and had not been fairly tried. He did not believe it would be productive of the evils which the gentlemen from Concord and Littleton, who had spoken on the subject, apprehended. The evils which they had described were the evils of the constitution, and some of them would be done away by this measure. The gen- 582 MASSACHUSETTS CONVENTION. tleman from Littleton sui-rendered the argument when he contend- ed that all which was provided by this amendment was attained by the law of 1811, which law he admitted to be right. He believed that the injurious effects of the alteration would be confined to a few cases, and that in general the only effect would be to introduce a little interchange between parishes, which would be of favorable tendency. Mr. Foster did not believe that gentlemen who differ in specu- lative opinions often differ so much that they cannot worship to- gether profitably. But this amendment permits persons without cause — without pleasing to offer any reason, to go to another society, and to desert that in which they are bound to perform certain en- gagements. He did not object to persons separating, who could not profitably worship together. This amendment would virtually dis- solve every contract existing between a parish and its minister. He knew there was a remedy in the courts of the United States, but no one would wish to resort to it. Mr. Abbot of Westford moved to amend the resolution, by an- nexing a proviso that the real estate of non-residents shall be liable to be taxed for the support of public worship in the town or parish in which it is situated. Mr. Hoar supported the amendment. He explained the opera- tion of the resolution if adopted in releasing from taxation, for this object, all the lands of non-resident proprietors. Mr. Story asked the gentleman if he should vote for the resolu- tion if the amendment were adopted. Mr. Hoar said he certainly should not vote for the resolution if amended, but he thought it his duty to endeavor to make it as little injurious as possible. The amendment was negatived — 127 to 173. Mr. Baldwin expressed his entire concurrence in the resolution. He said there were differences of opinion as great between persons of the Congregational denomination, as between Congregationalists and Baptists. It was said that a minister might be left by his people. This was true — but there ought to be no obligation that was not mutual. The minister might change his opinion, and the people would be deprived of the benefit of their contract. Were the people in such case bound to support him ? A person cannot worship with any profit with a teacher from whom he differs in the essential points of faith. The question on the resolution was then taken, and it was agreed to— 214 to 116. The committee then rose and reported its agreement to the resolution. It was ordered that when the House adjourn, it be to half past 3 o'clock this afternoon. Leave of absence was granted to Messrs. Dewet and Kellogg of Sheffield, Gates of Rutland, and Whitaker of Monson. Adjourned. massachusetts convention. 583 Aftehnoon Session. The House met at half past 3 o'clock. Leave of absence was given to Messrs. Eames of Washington ; Knight of Norwich, and Doane of Phillipston ; also, to Mr. Jones of Barre, after to-morrow. On motion of Mr. Walter of Boston the House went into com- mittee of the whole on the unfinished business of the forenoon — 119 to 94 — Mr. Webster in the chair. The committee proceeded to the consideration of the resolution oflfered by Mr. Baldwin of Boston for providing that any person be- coming a member of any religious society, and filing with the clerk of the town where he dwells, a certificate of a committee of such society, of his membership, shall be exempted from taxation to any other society, while such membership continues. Mr. Baldwin said that some amendments to the third article of the declaration of rights, had been agreed upon by the Convention, but the most obnoxious part, perhaps, remained unrepealed. The most potent objection which had been urged against incorporating this resolution into the constitution, was, that the provision was liable to abuses. Particular instances had been mentioned, which, upon examination of the facts, would be found to have been mis- represented. He was sorry that such representations should be given, because they prejudice the minds of gentlemen, unjustly, against the merits of the resolution. The principle of the resolution was contained in the fourth resolution of the select committee on the declaration of rights. The whole thing claimed was, that the money of the members of a society of any denomination, should not be paid, so as to oblige them to draw it out of other hands. It was as contrary to the tenets of the Baptists, to levy compulsory taxes, as it was to those of the Friends to do military duty. The gentle- man from Littleton had said, that seventy societies applied to the Legislature some years since, to be incorporated, only one cif which was a Congregational society. The gentleman mistook the object of these applications. It was to get rid of paying taxes to other societies ; not to obtain authority to tax their own members. He pitied that clergyman who depended on the compulsory taxation of his society to ensure him a subsistence. The exemption in this resolution lasted only so long as the person continued a member of the religious society to which he united himself. Mr. Wilde of Newburyport said that although the time of the Convention was short, he could not reconcile it to his conscience not to resist a proposition so totally opposed to his feelings and prin- ciples, as well as repugnant to what had already been adopted by the House. If the alternative were put to him to adopt this reso- lution or expunge the third article, he should prefer expunging the third article ; and for this reason, that the whole subject would then be in the power of the Legislature. Although this would be a dan- gerous power to be left to the Legislature, yet he should trust to the feelings and dispositions of the people of this Commonwealth to rec- 584 MASSACHUSETTS CONVENTION. tify any mistakes or abuses. Though many evils might arise, though the rights of conscience might be invaded by the Legislature, he would run the risk rather than accept this proposition. What was the amount of this resolution ? that any man may join any society, and on producing his certificate of having joined it, may be exempt- ed from taxation for the support of public worship in every other society. Any man may join any society, or any number of men may form a society, by which any man may be exempted from all taxation for the support of public worship in the town where he resides. The consequence will be that all who want to get rid of paying taxes will join a society. It is not necessary to support public worship — there is no need of a public teacher — the society may be in this town or in any other. A religious exemption society will be formed — exempt not only from taxation, but from all relig- ious duties. A society may consist of one hundred thousand per- sons from all parts of the Commonwealth, and all the members residing in their respective towns. If this was not totally expunging the third article, it was worse ; because by putting this resolution into the constitution, the Legislature would be deprived of the power to correct such abuses. He would make a single remark upon the manner in which this resolution was introduced. The substance of it was contained in the proposition introduced by the gentleman from Beverly, (Mr. Williams.) The gentleman from Boston, (Mr. Parker,) to correct the evils Avhich that proposition might occasion, moved an amendment by which all persons should be called upon to contribute to the support of public worship. The gentleman from Beverly acceded to this. He said he had no design to break up parishes, but wished that every society might be at lib- erty to raise moneys in their own way, without being subjected to the inconvenient mode of withdrawing from other hands the taxes paid by its own members. The proposition of that gentleman thus modified, Mr. W. conceived at the time, would be a valuable amendment to the third article, and he still thought so. It would have remedied a defect in that article. It would have put a re- straining clause upon the Legislature in regard to exempting from contribution to the support of public worship. The court were constrained to say, as there was no clause for restricting the Legis- lature, that the law of 1811 was constitutional. He believed that proposition as amended would have been a salutary check upon the Legislature. That it would have produced harmony ; and that time and experience would have removed all our fears and apprehensions of its operation. But it was in vain to speak of that now, or to attempt to restore it. He knew it was opposed by gentlemen who had nothing in view but the support of the institution of public worship and religious instruction, but he thought if they would review the subject fairly, that instead of a majority of six or seven against the -proposition, two thirds of the House would be in favor of it. The gentleman from Boston, (Mr. Baldwin) however, has not thought proper to move that proposition, but prefers moving the MASSACHUSETTS CONVENTION. 585 present resolution with all its defects. After a majority of 110 have determined to retain the third article, they are called upon by the minority to yield the principles of it for the sake of conciliation. He did not know how" the minority could call on them to yield these principles any more than they could call on them to abjure their religion. He had not praised the law of 1811 ; he only said it was made with a good intent. It was made prospectively. The abuses were not foreseen. If the abuses of which it is susceptible should take place, the Legislature would correct them ; but if this law is inserted in the constitution, it will be out of their power. They would have to sit under a church founded for the purpose of exempting from taxation. It was not the intention of the gentle- men who have brought forward any of these propositions, to exempt profligates from contributing to the support of religion and morality ; they had disclaimed it ; but such would be the effect of the present resolution. This proposition did not show conciliation; brought forward too at this late period of the session. In every instance, those in favor of the third article had made concession. He had yielded in every vote. He wished every religious person to enjoy freedom in religious worship, and they had as much without this amendment to the constitution as they would have with it ; but he did not want to help those who wished not to contribute at all to the support of religion. He had already shown that he was not bigoted ; he had no disposition to crowd any gentleman, but would yield as far as any man on a question of expediency ; but on a ques- tion of principle, he would not yield, whatever might be the conse- quences. He hoped the resolution would be negatived without much consideration. Mr. Varnum said the gentleman from Newburyport had expatiated largely on the impropriety and, he might say, wickedness of intro- ducing such a proposition at this time. He asked, was this correct ? Does any body figure to himself that any society of 100,000 persons, such as the gentleman has imagined, will ever be realized ? Mr. V. read the third resolution of the committee on the declaration of rights, which had been adopted. In this third resolution the socie- ties incorporated and unincorporated, are required to do what ? to make suitable provision for the institution of public worship of God, &c. Here they had not only bound these societies to make suita- ble provision for the support of public worship but had also bound the Legislature to see that such a provision is made. How then could such a society as the gentleman has imagined, exist ? Mr. Wilde explained. His argument was that 100,000 or any number might join one society and have public worship kept up in any one place in the State, and the members not attend it. Mr. Vaknum said it was not wonderful that he should not under- stand, he was so far behind the gentleman in learning. He said there would be no society that would not be fully under the opera- tion of law and bound to support public worship. So ought every one to be. If we looked a little further, we should find that the 74 586 MASSACHUSETTS CONVENTION. difficulty was not in the country towns but in the large seaports, where there are many persons who are never called on to contribute to the support of public worship : men of large property who do not pay a cent. Gentlemen had told them, and gentlemen in high sta- tions, who, from the nature of their offices, were capable of judging from the experience of its results, that the law of 1811 had not operated in the manner they had anticipated. It was well known that it had produced harmony and allayed the great public excite- ment which prevailed at the time when it was passed. He thought that could not be stigmatized as a bad proposition, the intention of which was to introduce into the constitution a law which has ope- rated so favorably. One denomination had been provided for this morning by the adoption of the resolution introduced by the gentle- man from Cambridge, (Mr. Fay.) The dissenters only contended to be put on the same footing. Why should one denomination be obliged to let the moneys intended for the support of their own mode of worship, pass through the hands of another denomination ? He hoped the resolution would be adopted. Mr. Sibley of Sutton hoped the resolution would prevail. As experience was the best master, he would mention that it was twenty- five years since they had had any parish tax for the support of pub- lic worship. While taxes were assessed, the society continually diminished till it had almost come to nothing ; but they adopted the method of taxing pews, and now the society flourished. No person was compelled to attend public worship or contribute to its support, but every person who had any claims to respectability contributed voluntarily. He did not like to hear so much said about the supe- rior goodness of the seaports compared with the country towns. He was a Congregationalist, but he was in favor of the present resolution. Mr. Button said he should make no apology for the few moments he intended to occupy, upon these resolutions. He was opposed on Saturday, to sending them to the committee, and he did not know upon what principle of equity or even courtesy, the indulgence had been granted ; for he had supposed that the minority were as much bound by rules as the majority. The majority of the Conven- tion, however, after one refusal, had yielded, and the resolutions were now to be disposed of ; and he should consider it an abandoji- ment of his duty, if he discovered less perseverance in maintaining the principles of the majority, with whom he had acted, than the gentleman did who assailed them. This was the fourth attempt that had been made to do away the force and effect of the great principle in the bill of rights. This principle, a large majority had determined to maintain ; and they were now called upon, again, to surrender it in the spirit of conciliation. Many moving appeals had been made to the candor and liberality of the majority ; but he would ask gentlemen to consider what was the true meaning of this language. In his apprehension it was nothing short of this — give us all we ask and we shall be satisfied — yield the principle which MASSACHUSETTS CONVENTION. 587 you have sustained in every form, and which you deem vital to the best welfare of the State, and we shall be content ; surrender, at this last trial, all that you have resolved to hold, and we shall give up the contest. Let it be remembered that the majority have a^.ted on the defensive ; that they have been compelled to defend their principles, assailed as they have been in every form that ingenuity could sug- gest, and with a perseverance which he should think praiseworthy if he thought the object so. But upon this subject it was in vain to attempt to disguise or conceal the truth. There was an irrecon- cilable difference of opinion ; and whenever the reverend gentle- man and his friends were satisfied, he was sure he should not be. The conciliation so much recommended, demanded everything and gave nothing ; and before he could become a party to it. he must know upon what terms it was to be had. The gentleman who introduced these resolutions has frankly avowed his opinion that religion ought not to be supported except by voluntary contribution ; the majority have determined, after a long and repeated discussion, that it is not only the unquestioned right of the State, but its solemn duty to compel men by law to maintain the public worship of God in all cases where it is not done voluntarily. Upon this subject there can be no compromise, no conciliation. The reverend gentleman had urged, that because a man was obliged to pay his taxes where he lived, though he might carry them where he attended public worship, it made one denomination of Christians subordinate to another. If this was ever true, the resolution passed this morning placed Congregationalists on the same footing ; but in truth it never came within the meaning of the clause referred to in the consti- tution. The amendment which has passed recognizes the existence of unincorporated societies. He had voted for this, but he could go no farther. They now stood on the same ground with incorporated societies, were subject to the same duties, and equally under the control of the Legislature. But these resolutions now propose to engraft into the constitution the second section of the law of 1811. He was wholly opposed to this, not because he was opposed to the law, but because he was opposed to making it a part of the consti- tution. The whole difference, in his opinion, lay between having these provisions in a law, and having them in a constitution. So long as they remained a law, they were subject to revision and modification. Abuses might hereafter exist, which would require to be corrected. The law had been in operation only ten years ; a much longer time was necessary to ascertain its bearing and influ- ence. He did not know that any great abuses now existed, but he was not wise enough to foresee that none would exist fifty years hence, nor foolish enough to say that the Legislature should not have the power to correct them when they did exist. It was not wise to attempt to bind by an unchanging law, the ever chaiiging interests and opinions of men ; fix forever in one place that which is in its nature mutable and progressive. Laws can always be accom- modated to the existing state of things'. As . property accumulates, 588 MASSACHUSETTS CONVENTION. as the labors and occupations of men are more divided and subdi- vided ; as new rights and interests spring up, as opinions and senti- ments change, the law keeps pace with them all. It is, and always ought to be, the index which marks the progress and the changes of society. On the other hand, the constitution is and always ought to be a body of general rules. The great outlines only ai-e drawn, the filling up ought to be left to the sound discretion of the Legisla- ture. Generad powers are granted, and general duties are enjoined ; but the incidental powers and means are to be developed and applied by the Legislature, according to the exigencies of the times. It often happens that a law does not accomplish the good or prevent the mischief it intended ; and the statute books are full of acts in alteration or amendments of acts. The inference from this is, that the foresight and the judgment of nien are fallible ; and that all such details should be within the control of the Legislature. He had opposed the introduction of all details and minute provisions, into the constitution, as well upon other subjects as this ; and as the present resolutions were merely the details of an existing law, he was, for the reasons he had given, opposed to them. In addition to the arguments urged against the resolutions by the gentleman from Newburyport, which he thought conclusive, he would remark, that if the reverend gentleman's object was to secure the right of maintaining public worship by voluntary contribution, he had it now by the constitution. It was only those who refused to support it at all, in any way, that the law would compel to do their duty ; and why should not the law compel the performance of this highest duty, as well as of any other. It is admitted to be a duty, in the discharge of which the State is interested, and if the State does its duty, this will always be exacted. If, then, the resolutions had no other object than to provide for the support of public worship by voluntary contribution, they were needless ; if they had other ob- jects, he was opposed to them, because he did not know precisely what those objects were, nor what would be the effect of such pro- visions. When he understood the avowed opinions of the gentlemen who supported these resolutions, and their perseverance in them, his fears were awakened ; and he would say of them, what Laocoon said to his countrymen, respecting a certain religious offering of the Greeks, '■ Quicquid id est, timeo Danaoa et dona fererdes t" Mr. Story opposed the proposition. It was his misfortune to be absent when this subject was before discussed, and he had taken no part in this question. It was proper to consider what was already done. The Convention had determined by a large majority that it was fit and proper that the Legislature should be invested with authority to require that towns, parishes and religious societies shall make provision for the institution of the public worship of God, and the support of religious teachers in all cases where it is not done voluntarily — they had placed the rights and duties of unincor- porated societies on the same footing with those that are incorpo- MASSACHUSETTS CONVENTION. 589 rated-— they had extended the right of withdrawing from a territo- rial parish so as to permit a person to go from one society to another of the same denomination and pay his taxes there. In adopting these indulgences they had given the greatest latitude consistent with the preservation of the general principle. So far he was not only willing, but anxious to go. But they must stop somewhere. The proposition now offered, if adopted in the constitution, would really and vitally destroy the main principle which had been estab- lished. They would establish the principle in form, but would pro- vide the means by which its object might be completely and silently done- away. They had made already such provision that the right of equality of denominations could not be sacrificed, but if they engrafted this proposition into the constitution, it would take away the power of the Legislature to compel the support of public wor- ship in any part of the Commonwealth. Its tendency would be by taking the subject out of the sphere of legislation, to put it out of the reach of law. He had no objection to its remaining as a law, and there was no probability that it would be repealed unless it was abused. If it was in the constitution, the Legislature, the courts and juries would be bound by their oaths to sanction even the abuses that might be committed imder it. Should it be repealed, the great principles of it are already adopted in the amendments agreed to — that unincorporated societies shall be put on the footirig of those that are incorporated, and that every person shall be free to go to what society he pleases, and have his taxes paid to the sup- port of religious instruction there. Mr. Lincoln of Worcester said that what the ultra liberals and the ultra royalists in religion had acquiesced in, seemed to be a point at which we ought to stop. If this proposition were made originally, before any other propositions had been accepted, it would have been entitled to a more favorable hearing ; but the Convention had adopted a principle that was repugnant to it. He had fore- warned certain gentlemen that they were yielding more than they in- tended ; but they acted for themselves, and he acted consistently in holding them to their concessions. The Congregationalists were not contending for superior privileges, but while they were willing on the one hand to extend to other denominations an equality of rights and immunities, they were not willing on the other to be bound in fetters, as they would be by this resolution. For what was the third resolution of the committee on the declaration of rights which had been adopted by the Convention ? That resolu- tion makes it imperative on the Legislature to compel Congrega- tional societies to support public worship. While by this the gen- tlemen compel Congregationalists to support public worship, why should they call upon Congregationalists to free them from any compulsion ? If the third resolution was. a part of their proceedings which it was too late to alter, it was improper to call upon Congre- gationalists alone to support public teachers. All he contended for was equal rights. He stood there as a Congregationalist to resist 590 MASSACHUSETTS CONVENTION. being put under subordination. But if the proposition of the gen- tleman from Boston should be adopted, there would be subordina- tion. And of whom ? Of the Congregationalists ; if you compel them to pay for the support of religion and exonerate every other denomination of Christians. Let the gentleman from Boston, he said, consider that by the third resolution it is provided that every society, incorporated or unincorporated, shall support public wor- ship. And what was the resolution passed in the morning ? That every citizen shall appropriate his contributions to whatever society he pleases. He asked if by these provisions all classes of Christians were not on the same footing. If then you provide that a Congre- gationalist shall support religion and compel him to support a teach- er of his denomination, it was altogether unequal to pass this reso- lution for giving an exemption to others. In this way, he con- tended, gentlemen did make a subordination. He was willing to go as far in liberality as any man, but there was a point, where he must pause ; and instead of putting all other denominations in sub- ordination to Congregationalists, he could not consent to put Con- gregationalists in subordination to every other denomination. The question was taken on Mr. Baldwin's resolution and decided in the negative — 74 to 218. The resolution providing that any counsellor may be qualified in the recess of the Legislature, by the governor alone, or by the lieu- tenant governor and any counsellor who has been previously quali- fied, was read and agreed to. The committee proceeded to the consideration of the resolution, proposing to have sheriffs elected by the respective counties, instead of being appointed by the governor and council. Mr. Lincoln of Worcester supported the resolution. He said he had received a letter from the mover, (Mr. Valentine) and he ac- corded in the views of that gentleman. The office of sheriff was a very important one. The appointment of deputies gives it great patronage, and it was the most lucrative office in the Common- wealth. The duties of it affected immediately the people. He understood from the gentleman who offered the resolution, that they should be chosen for not more than seven years nor less than five. It was found hitherto that they were the creatures of the governor. On a change of governor the people might be deprived of the sheriff, if he was acceptable to them, or they might not be able to get him removed, if he was not acceptable. This grew out of the circum- stance, in our frame of government, that a governor might be elected, against the will of a majority in any one county. Mr. Fay of Cambridge said he rose, because he saw no other gen- tleman disposed to answer the remarks of the gentleman from Wor- cester. He agreed that the office was a very important one, and that the people were very much interested in it ; but it did not therefore follow that the sheriff should be elected by the people. The sheriff was an executive officer, and ought to be appointed by the governor. If he was chosen by the people, he would be making MASSACHUSETTS CONVENTION. 591 favor for his next election. The governor would have only the good of the people in view. Mr. PicKMAN of Salem said he agreed entirely with the gentle- man who last spoke. The officers would he better selected by the governor and council than by the people. Until the unhappy year of 1808, the office was always considered as holden during good behavior. He hoped such times would not recur. The question was taken on the resolution and decided in the negative — 141 to 161. The committee rose, and reported their disagreement to the reso- lutions of Messrs. Baldwin and Valentine, and their agreement to the resolution respecting the qualifying of counsellors. The Convention concurred with the committee of the whole in rejecting the resolution offered by Mr. Baldwin. They also con- curred in rejecting the resolution of Mr. Valentine, respecting sheriffs— 179 to 82. The resolution respecting the qualifying of counsellors, was read a first and second time and passed. The resolution offered by Mr. Fay, for providing that all moneys paid by the subject for the support of public worship and of the public teachers of piety, religion and morality, shall, if he request it, be applied to the public teacher or teachers, if any, on whose in- struction he attends, whether of the same or of a different sect or denomination from the society in which the moneys are raised, was read a first time and passed to a second reading — 205 to 79. The resolution being read a second time, Mr. Baktlett of Medford moved to amend by adding a provision that the taxes raised upon the real estate of non-resident proprietors shall be applied towards the support of public worship in the town, precinct or parish where the land is situated, unless the proprietor or proprietors shall be of a different sect or denomination of Christ- ians from those by whom the said taxes are assessed. Mr. B. said the operation of the resolution was to put persons leaving their own society and joining another of the same denomination, on the same footing with those who join a society of a different denomination. He did not object to it, since it appeared to be the wish of members generally, that such a provision should be made ; but he saw there would be a great door open for litigation. Christians of the same denomination would claim against each other ; the Congregationalist against the Congregationalist. Gentlemen had complained of the difficulty and unkind feeling arising from their being obliged to draw out of the hands of the treasurers the moneys due to them. He proposed to put this little amount out of the way of dispute, only between those of the same denomination. The injury would be much greater from permitting it to be a subject of contention, than from leaving it to go to the support of public worship in the town where the land is situated. This provision will not affect the Congregational minister of the town where the taxes are raised, as he has a settled salary ; but some ministers would otherwise have 592 MASSACHUSETTS CONVENTION. an increase of their income from the taxes raised in towns where neither themselves nor their parishioners resided. For the con- struction of the resolution will be, that a minister may call for such taxes, raised in a society of the same denomination with himself. The question was taken on the amendment and decided in the negative. The resolution then passed. Mr. Webster moved as a separate resolution the amendment which had been offered by Mr. Bartlett. He said he could not resist the argument of justice. He wished to know why the men who lived in a town and raised the value of the land of non-resi- dents, by expending money for the maintenance of moral and relig- ious instructions, had not a right to call on the proprietors of the land to contribute. It was a plain and obvious dictate of common justice. Mr. Blake said he perfectly agreed with the gentleman that the lands should be taxed, but he thought there was an insurmountable difficulty how to determine whether they belonged to a person of a different sect. An inquisitorial committee would be necessary for this purpose. Mr. Flint of Reading said that if the taxes of the lands in some towns belonging to non-residents, were withdrawn from the towns where the lands were situated, the burden of maintaining public worship would be intolerable. Mr. TiLLiNGHAST Said it was not in order to debate the resolution as it had not been through a committee of the whole. Mr. Saltonstall moved that it be committed to a committee of the whole. Mr. Q.UINCY spoke in favor of the commitment. He said that there were lands lying in different parts of the Commonwealth, owned by inhabitants of the single town of Boston, to the amount probably of two or three hundred thousand dollars in value, which, although belonging to non-residents, ought to be taxed to the sup- port of the ministry in the towns where those lands lie ; and that a contrary principle would tend greatly to the injury of particular towns of the Commonwealth, by impairing their power to support religious worship. Mr. Lincoln of Worcester said he should think the adoption of this resolution a violation of all that had been done. They had voted that all the moneys paid by the subject for the support of public worship should be appropriated, if he requested it, to the sup- port of the public teacher, on whose instructions he attended. The prespnt resolution would give an advantage to other sects over the Congregationalists. Some gentlemen in the country owned estates in Boston, and this resolution would operate unequally, because taxes for public worship are not assessed territorially in Boston. The proposition of the gentleman from Salem, similar to this, had been rejected by a majority of nearly 100 to 1. There was very little land of non-residents in the country. No good reason could MASSACHUSETTS CONVENTION. 593 be given for going into committee of the whole upon this resolution at this late hour of the session. Mr. Flint said the gentleman, was not aware how much the towns near the seaboard would be affected by this resolution. It would not operate so extensively on property fifty miles back. Mr. Richards of Plainfield said that in the town in which he lived, there were six hundred acres of land belonging to one man who lived now in the city of New York. It seemed to him very unreasonable that all the taxes on this land should be carried out of the town. The intrinsic value of the land was increased by the diffusion of religious and moral instruction among the inhabitants of the town. He hoped the House would go into committee of the whole. Mr. Webster said that if they made changes in the third article, giving liberty to persons to leave their own societies and join others of the same denomination, they ought to make modifications in re- spect to taxes, in order to conform to those changes. He had no houses in town, nor farms in the country ; he contended for the principle. Every man is bound to pay for the moral principle which is raised in the community by public worship and religious instruc- tions. He asked if it was not a demonstrable truth, that the value of property was increased by the cultivation of religion and good morals among the people where it was situated. Take the case of property owned by persons out of the State, as mentioned by the gentleman from Plainfield. Have we not a right to tax it when we are raising its value ? As to the late hour at which this proposition is brought forward, he said they had already adopted a modification of the third article at a late hour — a modification for which he had voted, though reluctantly ; reluctantly, because it was in opposition to the sentiments of gentlemen whose characters and opinions he respected. Mr. J. Phillips of Boston said he was a stranger till this half hour to the nature of the present question, but if it was a fact that the inhabitants of the town of Boston could withdraw all the taxes raised upon the lands owned by them in the neighboring towns for the support of public worship, he hoped the House would go into committee of the whole on this resolution. The question was taken for commitment and determined in the af- firmative— 188 to 121. A motion was made that the House should go into committee of the whole to-morrow at 9 o'clock. Negatived. The House then resolved itself into committee of the whole, Mr. Dana in the chair. The resolution being read, Mr. Thorndike moved to strike out that part of it which excepts the estate of persons of other denom- inations. Mr. Wilde had himself no objection to striking out the excep- tion but thought it would embarrass the question and might endan- ger 'the whole resolution. He thought it would be a preferable course if the gentleman would withdraw hjs motion ^nd call for a division of the question. 75 594 MASSACHUSETTS CONVENTION. The Chairman thought the resohition was not susceptible of di- vision. Mr. Webster said the object could be effected in another mode. For the purpose of trying the sense of the House, first on the general proposition without the exception, he moved to amend by striking out the whole resolution and inserting the proposition of Mr. Ab- bott, that all real estate of non-residents shall be liable to taxation for the support of public worship in the towns or parishes in which it is situated. He said it was well known there were extensive and valuable tracts of land belonging to corporations, and to persons out of the State, and to other states. There were lands in the county of Berkshire worth more than a hundred thousand dollars, belong- ing to the State of Connecticut. It would be difficult to say of what denomination this State is. Mr. Lincoln moved to amend the resolution in such manner that the non-resident proprietor shall have power to direct the appropria- tion of the tax to the support of his religious teacher. Mr. L. said it was more congenial to his own feelings that religion should be supported by a tax than in any other mode. He had felt constrained to advocate a contrary doctrine rather in deference to the feelings of those he represented than in conformity with his own opinions. If the estate of non-residents was to be taxed for this object, it ought to be in the power of the owner to have the tax applied towards the support of the religious teacher whom he ap- proved. Mr. Thorndike opposed the amendment. It was for the advan- tage of every estate that religious worship and moral and religious instruction should be maintained in the town where it was situated. It might be presumed that in the aggregate one religious society would be as much benefited by it as another. Mr. Webster said that the amendment would do away the whole object of the resolution, and would be opposed to the principle on which it was founded. If there was anything sound in the prin- ciple on which the whole of the third article was founded, it was that the maintenance of religious worship and instruction tended to improve the state of society, and to give an additional value to every- thing in the place where it was supported. The gentleman from Worcester had told us that his votes here had been rather in defer- ence to the opinions of others, than in obedience to his own opinion. He wished the gentleman would inform the House when he gave his own opinions, and when those of his constituents, that they might be able to judge what degree of weight they were entitled to. Mr. Lincoln said that he represented the views of his constituents, and this was all he should say in reply to the remark of the gentle- man who last spoke. The other gentleman from Boston, (Mr. Thorndike, ) did not understand his argument. It was that a minis- ter may be entirely supported by taxes on lands of non-resident pro- prietors of a different denomination from himself. The resolution would operate unequally. Those born in a parish incorporated a MASSACHUSETTS CONVENTION. 595 hundred years ago, would be privileged over one newly erected, in the same town. Mr. Baldwin asked if this resolution could be adopted without undoing what had been done in giving a person power to carry all his taxes with him to the teacher on whom he attended. Mr. Webster said it was not repugnant to the resolution which had been adopted, but was a qualification ; an exception to the gen- eral principle. If the gentleman from Worcester wished to have the ministerial taxes paid to some person in the town according to the desire of the owner of the land, he had no objection. All he con- tended for. was, that they shoidd not be drawn from the town. Mr. Blake said he saw no repugnance between the present reso- lution and the one which had been adopted. The case of non-resi- dent proprietors had not been provided for. He saw no reason why a tax for a highway or for a school should not be drawn away from the town where it is raised, just as well as a tax for the support of public worship. The amendment proposed by Mr. Lincoln, was negatived. The question recurring on Mr. Websteh's amendment, Mr. Varnum said it was improper to introduce new propositions at this late period of the session, when many of the members had gone home. This amendment would do away the effect of a resolution which had been adopted. Gentlemen were going to compel societies to support public worship, but were depriving them of the means. They were requiring the full tale of brick, but were taking away the straw. If the gentleman wanted to pay his own contributions to the support of his Congregational friends, he had no objection ; but to break in and say that the taxes of all denominations shall be paid to one particular denomination — it was a most monstrous violation of everything that has been done. Mr. Hoar could not perceive the consistency of the gentleman from Dracut. In the morning he was advocating the resolution that authorizes any person to go from the parish in which he resides to any other society and to withdraw his ministerial taxes. He now complains that we are requiring of all religious societies the full tale of brick and taking from them their means by this resolution. It is the reverse. We are requiring parishes to support public worship, and we wish by this resolution to preserve to them the means of do- ing it. We have done, with the gentleman's approbation, precisely what he complains of, unless this resolution is adopted. Mr. H. con- tended that this tax ought to be placed on the footing of every other tax on real estate. It was but an act of justice to the parishes where the estate was situated. No other tax was so taken away. The proprietor of a distant estate was not allowed to withdraw the high- way tax for repairing the highway before his own door, nor the school tax for the particular education of his own children. The amendment was of greater importance than, some gentlemen might imagine. Large portions of many towns were owned by persons at a distance. The quantity of land in the Commonwealth owned by 596 MASSACHUSETTS CONVENTION. the state of Connecticut he believed was greater than had been stated. Mr. Htde of Lenox moved that the resolution be so amended that the money raised by taxes on non-resident lands be equally di- vided between all the religious societies in the town, in proportion to the valuation of the respective societies. Mr. Nichols was in favor of the amendment. The resolution at present gave to the non-resident proprietor the right to select the society to which the tax on his estate should be paid. When the minister was unpopular, very few persons would be left in the so- ciety, and they would have the power of assessing the tax on non- residents. The motion was negatived. Mr. TiLLiNGHAST movcd to amend the resolution so as to confine the right of taxing to lands, the proprietors of which lived out of the Commonwealth . The motion was negatived. Mr. Lincoln of Worcester thought the whole operation of the res- olution was not understood. It was a virtual repeal of the provis- ions of the law of 1811. The supreme judicial court has decided that the member of a Baptist society who owns lands that are taxed for the support of public worship in a town where he does not reside, may withdraw the tax for the support of his own religious teacher. Such an innovation would secure the rejection of the whole article. Those who belong to the society of Friends have been exempt from all taxation for the support of religion for forty years. The resolution if agreed to, would arm every dissenter from the Congregational order against the amendments, and would certainly be the means of defeathig them. The question was taken and the resolution agreed to — 160 to 141. The cofnmittee rose, and reported the resolution as amended. To-morrow at half past 9 o'clock was assigned for the first read- ing of the resolution. At 8 o'clock the Convention adjourned. Tuesday, January 9. The House was called to order at a quarter before 10 o'clock, and attended prayers offered by Rev. Mr. Jenks. The journal having been read, Leave of absence was granted to Messrs. Chapin of Springfield, and Mason and Waterman of Adams. The report of the committee on leave of absence, on several other applications, being under con- sideration, Mr. Martin said the Convention had been told over and over again that if members of the house of representatives were paid out of the public chest, how contented they would stay here and take care of the public business. He thought that gentlemen that had used these MASSACHUSETTS CONVENTION. 597 arguments ought to stay here until the business of the Convention was finished. Mr. Story wished that gentlemen interested in the subject before the House would give way for a moment in. favor of a proposition which, if acted on at all, must be very soon. The resolution adopt- ed last evening in committee of the whole had produced a consider- able excitement. He did not know what might be the opinion of the House with respect to finally passing it, in the state in which it was, but he hoped it might be so modified as to make it more gen- erally acceptable. The report on applications for leave of absence was laid on the table. Mr. Story moved that the resolution ofiered by Mr. Bartlett, and agreed to in committee of the whole, be committed to a select committee. Mr. PicKMAN said that he had been in favor of the resolution, but when he saw the small majority by whioh it was adopted in committee of the whole, and when he considered how thin the House was compared with what it had been, he felt unwilling to push it through the House. He therefore moved that the subject be indefi- nitely postponed. The gentleman from Boston, who supported the resolution, (Mr. Webster) had told them that he had neither houses nor lands in town or country that would be affected by the amend- ment ; but he possessed what was infinitely more valuable, talents of the highest order, which if he would condescend to apply to the acquisition of property, would enable him to possess houses and lands both in town and country. It might be supposed that he, Mr. P., was the owner of non-resident lands — but he did not oAvn a particle of real estate that would be in the least affected by this resolution. But he thought it was their duty to abandon the measure, in the present state of the House, when they saw how small a majority of the members were in favor of it. Mr. Hazard of Hancock hoped the resolution would be postponed. It contained a new principle, and many of the members had gone home under the expectation that nothing of the kind would be done. In the town which he represented, many duakers and Shakers lived, who, it was well known, supported Christianity in their own way, and they owned lands in other towns which by this amendment would be made subject to taxation. Mr. Webster was sorry that the mover of the postponement, who had been one of the supporters of the resolution, had now abandoned it. It was unpleasant to be deserted by one's own friends. The gentleman says it passed by too small a majority, and for that reason it ought to be abandoned. This was a reason for desisting from a just and proper measure, which he (Mr. W. ) had not applied to prop- ositions of his own. He had brought forward a measure which, after four days' debate, passed by a majority of seven. He says it is brought forward top late in the session. It was not introduced later than the original proposition, to which this is an accessory. They 598 MASSACHUSETTS CONVENTION. were cotemporaneous. He, (Mr. W.) had not heard a shadow of an argument against the principle of the resolution. Modifications had been suggested which might be proper; he was therefore in favor of the motion to commit. But before the proposition was rejected, he wished to see it met with an argument on its principle — to see its injustice. He hoped the motion for postponement would not pre- vail. Gentlemen had concurred in passing the principal measure late in the session, but it was too late to make the necessary modi- fications of it. If modifications and qualifications were not made, the amendments would be opposed and rejected by the people. He hoped the modifications which had been already agreed to by a majority of twenty — three times that by which the resolution direct- ing the mode of choosing the council was passed — would be suf- fered to pass. Mr. CuMMiNGs was in favor of the postponement. He said the law had been misunderstood. The lands of persons not resident in the State are now taxable' — lands of corporations are taxable where the lands happen to lie — and for lands belonging to non-resident individ- uals, the tenants are liable to be taxed. It had been said there were lands of a large amount in the country not tenanted. This was not the fact. Almost all the farms not in the towns where their owners reside, are leased. In the county of Essex he did not know of a single estate which Avas not tenanted and liable to be taxed. Mr. Blake hoped the subject would not be postponed. He did not think there was much weight in the arguments against altera- tions of the constitution founded on the present provisions of the law. He contended that this amendment was rendered necessary by the alterations which had already been made ; that the late period of the session ought not to be urged as a reason for rejecting it ; and that what had been done would be entirely unacceptable to the people, unless this resolution was adopted. He hoped it would not be postponed, but that the motion to commit would prevail. Mr. Saltonstall thought his friend and colleague last speaking could not be aware of the adoption of the resolution of the gentle- man from Cambridge, authorizing any person to apply all the moneys paid by him for the support of public worship, to the teacher on whose instruction he attends, whether of the same or of a differ- ent denomination from that of the parish in which the money is raised. This will make a great change in our religious establish- ments, Mr. S. said, and he feared the consequences under any qualification. It may, in effect, reduce all our territorial parishes to poll parishes. Of what avail will be the right to tax the property within certain limits, when at the same time we authorize the owners to withdraw the taxes, and apply them as they please, some to one minister, some to another, even of the same denomination ? He feared the effect on the permanency and validity of ministerial contracts. How much will a settlement contract be worth to a minister, when the next year his whole parish may slide from under him ? There is danger, also, that aged ministers may be deserted, MASSACHUSETTS CONVENTION. 599 should a popular young man be settled near. Many gentlemen, he said, diflfered from him, and he hoped his fears were groundless ; but some modification is necessary. By this resolution, non-resident taxes, as well as others, may be withdrawn, if the proprietor requests it. Heretofore, these have been applied to the support of public worship in the parish where the land is situated, unless the owner is of a different denomination. This is essential to the existence of many parishes, and ought to be continued. The vote of last eve- ning goes farther, and authorizes the appropriation of all taxes on non-resident lands, whether the owner be of the same or of a differ- ent denomination. This is right in principle, and no one has yet met it in argument. Why should they not be taxed for this, as well as for schools or any other purpose, which tends directly or indirectly to enhance the value of the property ? It is not for the benefit of any particular denomination, but of the town or parish of whatever denomination ; for the constitution knows no distinction, has no preference. This, however, had not been practised ; and Mr. S. said he only wished to preserve the constitution and law as it had been in this respect, and he hoped the subject would be recommitted, at the motion of his friend, for the purpose of being modified. Mr. Hoar said he believed the reason why the proposition giving every person liberty to separate himself from the parish in which he resides, and to withdraw his taxes, passed yesterday, was be- cause it was of such immense magnitude that it was not compre- hended. Its operation in destroying the parishes of the Common- wealth he thought was not seen in its true light. He would name an instance of its operation, as it respected taxes on real estate. Two-thirds of the real estate in the town of Brookline, he was informed, was owned by persons who reside in Boston, and are taxed there. If they go to Brookline in summer, it is in May or June, and they are not taxable there. He did not believe, from the well known liberality of the gentlemen so situated that they would withdraw their support from the reverend clergyman there ; but it would depend on persons in Boston, and not on the people of Brookline, whether he should continue to have a support. The effect of the alteration would be of immense extent. If the gentle- man who moved the postponement had lived in the country, and had seen, as he had, the operation of causes much more trifling than this, in breaking up parishes, he would not countenance the inconsistency of taking up and forcing through a proposition of this magnitude in one day, and refusing to consider the modifications proposed for averting a part of its evils. Mr. BoYLSTON said that he now resided in the town of Princeton ; but if he should choose to fix his residence at Roxbury, where he had sometimes resided, by the resolution adopted yesterday, he would be entitled to withdraw his ministerial taxes from the first named town. They paid a salary to the minister there of six hun- dred dollars, and a fifth part of the tax of the town was levied on 600 MASSACHUSETTS CONVENTION. his estate. He thought his estate was benefited by the support of rehgious worship and instruction to the full amount of the tax imposed upon it ; and he thought it would be unjust, and imposing an unreasonable burden on the people there, for him, in case of his not residing in the town, to withdraw the tax. Mr. Dana considered this amendment as connected with that adopted yesterday. He had fears respecting them both. This was objectionable, in extending to lands of persons of all denomina- tions. The duakers would not pay the tax, but would let the lands be sold. He should have preferred to leave the third article as it was before the adoption of the resolution yesterday. But as that could not be done, he was in favor of committing this proposi- tion, that it might be modified so as to remove his objections. The question was taken, and the motion to postpone was lost — 142 to 176. The motion to commit was agreed to ; and it was committed to Messrs. Story, Hyde, Bartlett, Childs, and Wilde. It was ordered that the committee have leave to sit during the session of the House. Mr. Jackson, from the committee for reducing the amendments to form, moved that the resolution providing that the votes on the amendments returned to the Secretary's office shall be counted by a committee, and certified to the governor and to the Legislature, be amended by adding the following ; " and all the amendments so ratified and adopted shall be promulgated and made known to the people in such manner as the General Court shall order." Mr. Jackson said it had been determined that the votes should be counted by a committee which was to meet a week before the ses- sion of the Legislature, and that they should certify the result to the General Court. The committee which had reported this resolution had thought it would be as well to let the General Court decide in what way the result should be proclaimed. The amendment was agreed to. Mr. Jackson moved to amend the article relating to the change of the political year, by adding after the provision, that the gov- ernor, lieutenant governor, and counsellors, shall hold their offices for one year next following the first Wednesday of January, the words, " and until others &re chosen and qualified in their stead." The amendment was agreed to. Mr. Dawes called the attention of the House to that part of the resolution directing the manner in which the votes on the amend- ments are to be given by the people, in which the persons voting are to express their opinion, " by annexing to each number the word 'yes' or 'no,' or any other words that may signify his ap- probation or disapprobation of the proposed amendment." He thought this latitude might lead to difficulty. It would permit a man to read a whole sermon — they had had whole sermons read in the assembly — they might read them in town meeting and put them on file, to express their dissent or assent. Mr. Q,uiNCY said his colleague had expressed a part of his objec- MASSACHUSETTS CONVENTION. 601 tion to the resolution. But he objected to that part of it which authorizes any one to " give his vote on all the articles or any number of them together, at his election, without being required to vote separately and specifically upon each of them." He said it would prevent the people from giving distinct votes on each article. The votes would not be given or returned in an intelligent form. He said they were about to give the power of deciding on the re- turns to an irresponsible body ; and if the mode of giving the votes was not made so plain that he who runs may read, they were giv- ing the whole power over the constitution to this committee. Mr. Shepley of Fitchburg moved to strike out, "or any other words that may signify his approbation or disapprobation." Persons voting might use such words that it would be very difficult to know what their opinions may be. Mr. Jackson said the object in inserting the clause was that the individual who voted, or the selectmen who certified the votes, might not be tied down to a particular expression. If they should happen to say yea or nay, or use any other words which were of equivalent meaning, there was no reason why they should not be received. Mr. Shepley modified his motion so as to insert in the place of the words proposed to be struck out, the following, " or any other words of the same import." The amendment was agreed to. Mr. Webster thought there might be a further provision which would be of use, especially in small towns. If power were given to take the sense of the inhabitants by hand-vote, or by dividing the House, it would enable them to act upon the amendments with greater facility, and more intelligently. He therefore moved to amend the resolution by inserting a proviso that any town may agree to take the number of votes, &c., &c., against any or all the articles by a hand-vote, dividing the meeting, or by yeas and nays if they shall see fit. After some debate, in which Mr. Webster briefly supported the amendment, and Messrs. Martin, Q,uincy, Fisher, Lincoln, Law- rence, Dana, and Pickman opposed it, the motion was negatived. Mr. Abbot moved to amend the resolution which directs that an attested copy of the articles of amendment shall be sent to the selectmen of every town and district, by inserting after " selectmen," the words, " and to the town or district clerk, or to the delegate or delegates." Mr. Nichols said there were two objections to the motion ; the first was that it was an unnecessary expense, and the other that it would give an undue influence to the persons receiving them. The amendment was agreed to. Mr. Ellis, from the committee on the pay roll, reported the roll with an additional day's attendance, amounting to 808 dollars, and making in all, including travel, the sum of 56,732 dollars. The roU was accepted, and an order passed, to request the governor andi 76 602 MASSACHUSETTS CONVENTION. council to issue a warrant for the payment frona the treasury of the sums found on the roll. The discussion was resumed on the resolution directing the mode of taking the sense of the people on the articles of amendment. Mr. Sullivan of Boston moved to amend by striking out all that part which relates to voting by ballot, and inserting a provision that the vote may be taken on each article by hand or by dividing the house. Mr. S. said he thouglit the easiest and most intelligible mode of proceeding in the town meetings would be, when the in- habitants were assembled, to read and discuss the articles separately, and when each had been discussed the inhabitants would be called on to express their opinion by a vote on each article. Mr. Dana hoped the amendment would not prevail, but that the voting would be required to be by ballot, and that forms of returns would be sent out to the selectmen of the several towns. Mr. S. A. Wells said it would be utterly impracticable in the town of Boston to proceed by a hand-vote, or by dividing. The voters could not all meet in any hall, and the number of votes for or against the articles could not be ascertained. Mr. Apthorp said that by one of the resolutions it was required that the votes should be all given in, on one day. If all the arti- cles were to be discussed and balloted on separately and the votes counted on each, it could not be all done in one day. Mr. Sturgis said there was nothing to confine the meetings to one day ; they might adjourn if they chose. Mr. Austin said the difficulty arose from endeavoring to force a conformity where it was impracticable. In this town it would be unpossible to poll the house on the several questions. But in small towns that would be the most convenient mode. He moved the resolution should be so amended that the votes may be given by ballot or otherwise as the selectmen may direct. Mr. Sullivan modified his amendment in such manner as to au- thorize the vote to be taken by ballot in cases where the selectmen shall so direct. Ml'. Freeman of Sandwich thought it ought to be left to the people in their primary assemblies to determine in what manner they would give their vote. Mr. Prince of Boston moved to recommit the subject to the same committee. Mr. Yarnum was in favor of the amendment. He said if the voters were to be influenced by any discussion on the articles, it would not be practicable to write their votes, after listening to a de- bate. They would not be furnished with pen and ink to write their votes, or fill up blanks if they were furnished with them. They would be compelled to furnish their votes beforehand, or to put in such as should be handed round to them. Mr. Stowell was in favor of the recommitment. They had had a long discussion, but had come no nearer to an agreement. They MASSACHUSETTS CONVENTION. 603 had been engaged in a great work, not, to be sure, building a tower of Babel, but it was likely to lead to a confusion of languages. Mr. Bond was in favor of recommitment, and proposed a modi- fication which he thought would meet the objection. Mr. Martin was opposed to recommitment. He said the peOplfe in the country understood pretty well their proceedings, and werfe now examining them. They were now discussing and making up their minds, and they would not need any discussion in town meet- ing. The recommitment was agreed to. The resolution directing that the returns shall be examined and certified by a committee of the Convention, was taken up for the purpose of determining the number of the committee and the mode of appointment. It was moved that the number should be equal to the number of senators. Negatived. Mr. Lawrence moved that the committee consist of two persons from each congressional district, together with the President of the Convention. Agreed to. On motion of Mr. Story, it was ordered that the committee be appointed in the usual manner by nomination from the chair. Mr. Story, from the select committee to whom was referred the resolution relative to the taxing the estate of non-residents, for the Support of public worship, reported the resolution amended as fol- lows : Resolved, That the constitution be so amended, as to contain a provision that all taxes assessed for the support of public worship upon the estate of any non-resident proprietor or proprietors, shall be applied towards the support of public worship in the town, precinct, or parish, where such estate lies, unless such proprietor or propri- etors shall be resident within the Commonwealth, and shall be of a different sect or denomination of Christians from that of the town, precinct, or parish, by whom such taxes are assessed. Mr. S. said that the object of the resolution, as reported, Was to reserve to persons of different denominations the same rights which they now have under the present constitution and laws, and to pre- serve to parishes the same right of taxing the estates of non-resi- dents which they now have. The resolution as amended passed to a second reading. It was ordered that the second reading of the resolution be now had, and it was read a second time and passed by a large ma- jority. Mr. Webster said that the rules of the House provided for the mode of proceeding, on the amendments proposed, until they came to the last stage, but for the form of passing the final act, no pro- vision had been made. He therefore moved the following order ; Ordered, That the final question on the passing of the proposed amendments to- the constitution, shall be taken in this form : " Shall this article of amendment be proposed to the people of this Commonwealth for their ratification and adoption ?" And on this question the yeas and nays may be called as usual. . Mr. Lawrence expressed doubts of the propriety of taking the question in this form. He had considered it settled that when the 604 MASSACHUSETTS CONVENTION. amendments had had two readings and passed, they should go to the peopk in some form or other, and all questions which should arise would be only to the form. Mr. Martin opposed the motion. All the resolutions adopted had been considered as finally settled, and with this impression many of the members had gone home. But this resolution was throwing it all in the wind. Mr. Webster said that everything that was done by the Conven- tion, ought to be done by some final act. They ought not to leave it to a committee, but must see the final form of it. It never oc- curred to him, that notwithstanding the forms the resolutions had gone through, they were not to pass a final vote on each article of amendment. They were like resolutions settling the principles for an act. They had read the resolutions, considered them with due deliberation — passed them in the form prescribed by the rules and orders, and sent them to a committee to be reduced to form. This was not to be entirely trusted to the committee. In a majority of cases the question will be merely formal, but on sonie it may be necessary that it shall be taken by yeas and nays. There may be a dift'erence of opinion respecting the combination of articles. As to throwing all in the wind, — it was not so — they had never yet been out of the wind. Mr. Q,uiNCT said there ought to be a vote in Convention, on the same questions which are submitted to the people ; and the articles ought to go to the people with the majorities given here in favor of each. The order passed. It was ordered that all committees have leave to sit during the session of the House. Mr. Sullivan of Boston from the committee appointed to draft an address to the people of the Commonwealth, reported an address, which was read.* Mr. Draper of Spencer, from the committee on accounts, reported the accounts allowed for incidental expenses, and the allowance for the pay of the oiBcers of the Convention, amounting to $3159 60, with a resolve requesting the governor to issue his warrant for the payment of the same from the treasury of the Commonwealth, which was read, and passed. It was ordered that when the House adjourn, they adjourn to half-past 3 o'clock this afternoon. Mr. Jackson, from the committee to whom the resolution direct- ing the mode of taking the votes of the people on the amendments, had been recommitted, reported the resolution, with certain altera- tions, for rendering it more intelligible, which were agreed to.' He reported also the following amendment, which, although a majority of the committee thought it inexpedient to make any further change, the Convention might be disposed to adopt : '{This addfest will be found next after ihe ameodoients adopted. See page 6C2.] MASSACHUSETTS CONVENTION. 605 " Provided, That in every town containing not more than thousand inhabi- tants, the votes may be given, on each article, by hand-vote, or otherwise, as the se- lectmen of the respective towns may order and direct in the warrant for calling such meeting." Mr. Webster moved that this proviso be adopted as an amend- ment to the resolution. He thought it would be much more suited to the habits of doing business in town meetings, that the several articles should be read separately, discussed, and voted upon, article by article. Mr. duiNCY thought the amendment unnecessjary. The voters would generally come with their ballots prepared. Mr. Varnum spoke in favor of the amendment. Mr. Saltonstall said he seldom differed from the honorable mover of the amendment, but he hoped the motion would not pre- vail. There ought to be a uniformity in the mode of voting, and he saw no reason against voting by ballot in small places, that did not apply with equal force to large towns. The opinion of the people should be taken by ballot only, throughout the Common- wealth. They are not to vote until they will have had an opportu- nity of seeing and examining the amendments proposed, — they will be printed and scattered everywhere in papers and pamphlets, and will become the subjects of conversation. The journal of our pro- ceedings has been and will be circulated extensively, and we have voted to send it to every town, and people will act more under- standingly arid correctly to prepare their own votes before they go to meeting, than to raise their hands after a warm discussion, or a popular harangue. Mr. S. thought there would not be much dis- cussion at the meetings — it cannot be necessary, and if it takes place, what is to prevent the meetings in some of the large towns from continuing as long as this Convention has ? People will have made up their opinions before the second Monday of April. Voting by ballot, Mr. S. .thought the only way to secure the free, uninflu- enced voice of the people. Many would fear to lift their hands dif- ferently from those on whom they might be in some measure dependent, whatever might be their own feelings and opinions. The voting should be perfectly free. And besides, balloting is most suited to the dignity of the occasion — that is the mode of voting in all important elections. Should there be ever so much debating, , people may prepare their own votes — the theory of our government at any rate is, that all can do this. They can fill the blanks with "yes" or "no." There is no connection between the mode of voting, and debating the amendments. There is danger also, that voting by hand-vote may occasion clamor and excite- ment, contention and animosities among those who are openly ar- rayed against each other. Mr. Webster said he differed from the gentleman from Salem. He said there were intelligent men in the towns, capable of discuss- ing the amendments, and they ought to be open to discussion in the town meetings. He asked what question had the Convention been 606 MASSACHUSETTS CONVENTION. ready to act upon when it was first proposed, without having it dis- cussed. He would never agree to compel the towns to vote by bed- lot on what ought to be discussed and determined intelligently. Because it was impracticable in Boston, on account of the great number of its inhabitants, to vote by hand-vote, was no reason for denying the privilege to small towns, where it was practicable. Gentlemen overrated the facilities of acquiring information in all the different parts of the Commonwealth. It would take a twelve- month to circulate the pamphlet containing their proceedings, throughout every town. It was the system of our government to have the people give their plain common sense reasons on all sub- jects submitted to them, in the town meetings. This amendment was the only way to get the intelligent sense of the people. If the town meetings should be continued two or three days, in discuss- ing the articles submitted to them, the time would be well laid out. A similar occasion might not occur again in forty years. Mr. Paige of Hardwick was in favor of the amendment. It would be the most easy and expeditious mode of acting on the articles. Mr. Walter of Boston said it would be impossible in a full meet- ing to count the hands, so as to return the number with any cer- tainty. Mr. Martin hoped the amendment would not prevail. The se- lectmen should have the ballots of the voters, that they might be able to make accurate returns. It would be impossible to tell how many vote by hand. Mr. Dana was opposed to the amendment. He thought the arti- cles would be sufficiently understood. Their constituents had nearly kept pace with them, in acquiring a knowledge of the sub- jects discussed here. He had no objection to their being discussed in town meetings. There could be no confusion if a particular form of a return was prescribed. One mode of voting was best, and he thought that was balloting. To give a choice of any other, was only embarrassing the subject. Mr. Richards of Plainfield was in favor of the amendment. It would facilitate discussion in town meetings, and this would be useful in the small towns, where it was more difficult to get infor- mation, than where almost every one reads the daily newspapers. Mr. Q,uiNCY said the argument had been on the ground that dis- cussion would be prevented, if the voting was by ballot. This was not the case. Every article might be discussed before the ballot was given in. The amendment was agreed to — 165 to 89. A motion to fill the blank with "one thousand," was negatived; also a motion to fill it with " three thousand." " Four thousand " was named, and carried — 96 to 91. Adjourned. Afternoon Session. The House met according to adjournment. Leave of absence was granted to Mr. Gates of Montague. MASSACHUSETTS CONVENTION. 607 Mr. Aptho»p made a motion to amend the resolution read in the forenoon, for regulating the proceedings at the town meetings to he palled for the purpose of acting upon the amendments to the consti- tution, by inserting a provision that these meetings may be contin- ued by adjournment from day to day, not exceeding three days in the whole. Mr. A. said his object was to remove any doubt with respect to the power of the towns to adjourn their meetings, and also to restrict this, power so as to prevent adjournments for too long a time, lest the inhabitants of one town should be influenced by the votes given in another. After a slig.ht debate, in which it was answered that the towns generally knew they had the power of adjourning their meetings, and that such a restriction would be unnecessary and inconvenient, the motion was negatived. Mr. Paige of Hardwick moved to reconsider the vote for filling the blank with four thousand, in the following amendment, adopted in the forenoon, to the same resolution, viz., " Provided that in every town containing not more than thousand inhabitants, the votes may be given on each article, by hand-vote, or otherwise, as the selectmen of the respective towns may order and direct in the warrant for calling such meeting." The motion was agreed to — 123 to 55. The question then being for filling the blank, Mr. Bond moved a reconsideration of the vote adopting the amendment ; upon which some debate ensued on a point of order, whether the motion for reconsidering the vote by which the whole amendment was adopted, was not previous in Selectmen F. G. ) 622 MASSACHUSETTS CONVENTION. ADDRESS TO THE PEOPLE. The following is the Address of the Convention to the People of Massachusetts, accompanying the Amendments proposed to be made to the Constitution : Fellow-Citizens, It was provided in the constitution, established in the year one thousand seven hundred and eighty, that revision might be had, after an experiment of fifteen years. When these years had elapsed, the people declared that they were satisfied ; and that they desired no change. The same satisfaction was manifested during the next twenty-five years, and would probably have still continued, if the separation of Maine from Massachusetts had not made it proper to take the opinion of the people on the expediency of calling a Con- vention. It appeared that not one fourth part of the qualified voters in the State saw fit to express any opinion ; and that of the eighteen thousand three hundred and forty-nine votes given in, six thousand five hundred and ninety-three were against a revision. We have inferred from these facts, that you did not desire any important and fundamental changes in your frame of government ; and this consideration has had its just influence on our deliberations, in revising every part of the constitution, which we were required to do, by the words of the law, under which we are assembled. We have kept in view that the will of the majority can alone de- termine what the powers of government shall be, and also the man- ner in which these powers shall be exercised ; and that it is, conse- quently, your exclusive right to decide, whether all, or any of the amendments, which we think expedient, shall be adopted or rejected. In the performance of our duty, we have been mindful of the character of Massachusetts ; and, that the profit of experience is justly valued, and that the precious right of self-government is well understood in this community. Perfect unanimity is not to be ex- pected in a numerous assembly. Whatever diff'erence of opinion may have occurred as to expediency, there has been no difference as to the ultimate object, viz., the public security and welfare. If we have not all agreed in every measure which we recommend, we are satisfied, that natural, and honest difference of opinion, must ever prevent, in a like numerous meeting, greater accordance than has prevailed among us. Every proposed change or amendment has been patiently and fairly examined, and has been decided upon with the utmost care and solicitude to do right. MASSACHUSETTS CONVENTION. 623 We have the fullest confidence that you will take these things into view, when you perform the serious duty of deciding, for your- selves, and for successive generations, on the result of our efforts. In framing a constitution, or revising one, for an extensive Com- monwealth, in which various interests are comprised, nothing more can be hoped for, than to establish general rules, adapted to secure the greatest good for the whole society. The revised constitution, which we now respectfully submit to you, can only be considered as one general law, composed of connected and dependent parts. If any one part, considered by itself, seem not to be the best that could be, its merit and the justice of its claim to approbation can be known only by its connection in the system to which it apper- tains. With these remarks we beg leave to state the amendments which we have agreed on, and our reasons for having done so. THE DECLARATION Or RIGHTS. It is known to us, that the eminent men who framed the consti- tution under which we have lived bestowed on the only article of the declaration of rights, which has occasioned much discussion among us, the greatest attention. They appear to have considered religion in a t\^^ofold view ; first, as directory to every rational being, in the duties which he owes to the Creator of the universe ; but leaving to every one to decide for himself, on the manner in which he shall render his homage, avow his dependence, express his grati- tude, and acknowledge his accountability ; and, secondly, as a social duty, prescribing rules to men in their intercourse with each other as members of the same family. They held social worship to be most intimately connected with social welfare. They believed moral excellence to be no less the effect of example, and of habit, than of precept. They seem to have been convinced, that in pro- portion as the members of civil society are impressed with rever- ence for the social rules contained in revealed religion, will they be faithful in performing those obligations on which political happiness depends. Upon such principles they rested those provisions which require an habitual observance of the Sabbath, and the support of public teachers in the sacred offices of that day. In all these senti- ments we do most heartily concur. But we have thought it necessary to propose some changes in the third article. The public sentiment on that part of the article which invests the Legislature with authority to enjoin attendance on public wor- ship, has long been definitely expressed, and is well understood ; and we, therefore, propose that so much of this article as relates to this subject, should be annulled. We are also of opinion that members of all religious societies ought to have the right and privilege to join, and worship with, any other society of the same denomination ; as they now have the right to join themselves to any society, of a different denomination 624 MASSACHUSETTS CONVENTION. from that with which they have worshipped; — ^furthermore, that the power and duty of the Legislature to require provision to be made for the institution of public worship, and for the support and maintenance of public teachers, should extend, and be applied as well to societies which are unincorporated, as to those which are incorporated. We recommend also, a provision, that all taxes etssessed for the support of public worship, upon real estate of any non-resident pro- prietor, shall be applied towards the support of pubjic worship in the town, precinct, or parish, by which such taxes are assessed ; unless such proprietor shall be resident within the Commonwealth, and shall be of a different denomination of Christians from that of the town, precinct, or parish, by which such taxes are assessed. We propose further to amend the declaration of rights, so as to provide, that persons on trial for crimes may be heard by themselves and counsel, instead of themselves or counsel, as the article now stands. We propose another amendment, that no person shall suffer im- prisonment, or other, ignominious punishment, on official informa- tion ; nor unless on indictment by a grand jury ; except in cases ex- pressly provided for by law. This amendment takes from public prosecutors the common law right to arraign, of their own authority, any citizen for misdemeanors, or crimes, without the intervention of a grand jury representing the people of each county. ALTERATION OF THE POLITICAL YEAR. We recommend that there should be ordinarily but one session of the General Court in a year. We believe that one is sufficient ; that the expense of legislation will be thereby diminished, and that it will be convenient to bring the common and the political year into conformity. A necessary consequence of this change is an alteration of the time of holding elections ; the day most convenient for this purpose, in the opinion of the Convention, is the second Monday of Novem- ber. We propose that all the elections of State officers, which are to be made by the people, shall be made oh that day. This pro- vision will lessen the number of days, which, by our present consti- tution, must be devoted to elections. It will, we believe, induce a fuller attendance of the people, and a more certain expression of the public voice, in the important duty of choosing public officers. ELECTORS. We are satisfied that the qualifications as now required in electors, produce some inconveniences, and are liable to some abuses. After a patient investigation of this subject, we have concluded that a re- sidence of twelve months within the State, and of six months in a town, or district, next preceding an election, and payment of a state or county tax, in the Commonwealth, constitute a uniform and in- telligible rule, as to the right of voting ; and we propose the adoption MASSACHUSETTS CONVENTION. 625 of this rule, in all elections of State officers, and the abolition of all other qualifications now required. We believe that the change, which we recommend in this respect, will relieve selectmen from much perplexity, and will enable them easily to distinguish between those who have a right to vote, and those who have not. THE SENATE. After the most careful and faithful examination of the principles of government, we have not found it expedient to change the basis on which the senate was placed, by the constitution which we have revised. It is an admitted principle, that the legislative power should be given to two distinct assemblies, each having an absolute negative on the other. In considering this subject, we have distinguished between the PEOPLE, of whom we are ourselves a part, and those who may be chosen to legislate. It is the people who are to be secured, in their rights and privileges, by a constitution, and not thevc public servants. This object can only be effected by a clear and permanent limita- tion of the power which is to be exercised. The PEOPLE may impart whatsoever power they see fit. Their security consists in doing this in such manner, that the trust which they create may not be abused, nor the public welfare betrayed. It is therefore wise to provide for frequent elections ; and to require certain qualifications in the elected ; and the concurrence of differ- ent legislative branches on all public laws ; and so to constitute' those branches, as that no act shall obtain their joint approTjation, which is not intended to promote the common welfare. All free governments of modern times have found it indispen- sable, not only to have two distinct legislative branches, but to place them on such difl'erent foundations as to preclude, as much as pos- sible, all such dangerous sympathy and union, as may govern and direct the will of a single assembly. If the number of inhabitants be the rule by which the members of the two branches are to be apportioned, and all are to be chosen at the same time, and by- the same electors, we think that the safety which the constitution is intended to effect, may not, always, be ob- tained. If an election should take place when very strong and general excitements are felt, (and from such, no human society can be always exempt) there would be little to choose between placing, legislators so elected in the same, or in two different assemblies. • We repeat that the people's agents ought ever to be distinguished,- in settling a frame of government, from the people themselves ; and that no more should be hazarded on the manner in which power may be used, than necessarily must be, to give power enough to do that which should be done. The mode in which the two branches should be constituted, to secure the check which we consider to be so highly important, is 79 626 MASSACHUSETTS CONVENTION. the only point, as to the senate, which has been m'lch discussed among us. In some of the states in our national confederacy, elections for two or more years have been adopted, as a security for the inde- pendence and fidelity of senators. In others of them, a senator must have a large landed estate ; in others, such an estate is a re- quired qualification in electors ; and in some, a landed estate is required, both in the elector and the senator. The basis adopted in the constitution of this State is, that sena- tors shall be apportioned, throughout the State, according to the amount of public taxes paid in districts of the State. That is, that the liability to be taxed, shall be accompanied by the right to be represented. We have not heard that this principle has been complained of by the people ; nor do we believe it is justly excep- tionable, in itself; on the contrary, the experience of forty years entitles it to the most entire respect and confidence. We have not thought it expedient, nor do we believe that you expected of us, to make any fundamental change in this department. We have done no more than to make the necessary provisions as to districts, and to fix the number of senators. We recommend that the num- ber should be thirty-six ; this number can be more conveniently distributed than any other throughout the State. A smaller number is not sufficient to perform the duty required of the senate ; nor should the power of negativing the will of the house of representa- tives, be confided to a smaller number. THE HOUSE OF REPRESENTATIVES. We have found great difficulty in amending the representative system in a satisfactory manner. We have all agreed, that whether the representatives are few, or many, representation should be ac- cording to population, in this branch. It was the general opinion, that the number should be reduced ; that town representation should be preserved ; that payment should be made from the State treas- ury. Such mode of payment has been repeatedly voted in the house, and on one occasion it obtained the concurrence of the senate. There is reason to believe that it will become the estab- lished mode of payment. But if it be so, and the present system of representation continues, the expense must soon become an insup- portable burthen. A house composed of one hundred or one hun- dred and fifty members, may be fully sufficient for all purposes of legislation ; but so great a reduction could not be made without di- viding the State into districts, and consequently giving up represen- tation by towns. We endeavored in the system which we submit to you — 1. To reduce the number ; 2. To preserve the privileges of town represen- tation ; 3. To provide for payment out of the State treasury ; 4. To insure a general and constant attendance of the members throughout the session. To accomplish these objects, we recommend that twelve hundred inhabitants should have one representative, and that twenty-four hun- MASSACHUSETTS CONVENTION. 627 dred be the mean increasing number for every additional represen- tative. But as nearly one half of the towns in the State contain on an average about eight hundred inhabitants, we propose that these towns should each choose a representative every other year, and that they should be divided,*by the Legislature, into two classes for this purpose ; one or the other of which classes will choose every year. To show the application of this system ; about seventy-fpur rep- resentatives will come every year, from the classed towns, which will be one representative for every 1632 inhabitants in all the classed towns ; from those towns containing between twelve hun- dred and twenty-four hundred, will come one representative for every 1650 inhabitants ; from those towns containing more than thirty-six hundred inhabitants will come one representative for every 2400 in- habitants. These calculations, (necessarily taken from the census of the year 1810) are not precisely accurate ; but they are sufficiently so to show the effect of the system. It is apparent that towns having between twelve hundred and thirty-six hundred inhabitants, can send but one representative ; and that there will be large fractions in some of these towns. Perfect equality is not attainable under any system. There are fewer in- equalities in the proposed system, than in any which we have been able to form, if the four objects which we have mentioned are to be provided for ; and we believe that the progress of population will constantly diminish those inequalities which may now exist. We propose that in those years in which the valuation is settled, every town shall be represented. By the proposed system the number of representatives will be about two hundred and sixty. We have thought it proper to offer to you further provisions, intended to prevent an increase, in the number of representatives, over two hundred and seventy-five, in any future time. This may easily be done, by empowering the Legislature to augment the ratio, after successive enumerations of the inhabitants. There was very little difference of opinion among us on the expediency of providing, that no town shall be hereafter incorporated with the right of sending a representative, unless it contain twenty-four hundred inhabitants. If you are not willing to district the Commonwealth to elect members of the house ; if you are not willing to continue the pres- ent mode of numerous representation, with the liability to the en- ormous expense which would accrue from paying out of the public treasury, some such system as we propose must be resorted to. We will not say that this is the best that could be ; but we may justly say, that we have spared no exertion to form, and to present to you, the best which we could devise. LIEUTENANT GOVERNOR AND CQUNCIL. We recommend that the lieutenant governor should have the like qualifications as are required in the chief magistrate, for the obvious 628 MASSACHUSETTS CONVENTION. reason, that the duties of the executive depEirtment may devolve on him. During the last fifteen years the counsellors have been chosen by the Legislature, from the people at large, after an election from among those citizens, who were returned as senators and counsel- lors, followed by resignation. Experience has shown no inconven- ience in this mode of election ; and we have deemed it to be proper so to amend the constitution, as to establish this mode. This change, which we propose, is, in effect, nothing more than doing away the useless form of choosing from the senate. We did not prefer to, elect counsellors by a general ticket, because we believe that there would be some difficulty in agreeing on candidates ; and that the electors, throughout the State, would not have such knowl- edge of candidates, as would enable them to exercise the right of sufi"rage in a manner satisfactory to themselves. We did not prefer to choose counsellors in districts, because we were of opinion that it would not be Eigreeable to the citizens to be associated to exercise the right of suffrage, on this occasion, as they would not be so united on any other. And that it would be a useless labor and ex- pense to form such districts, and an unnecessary burden on the people to meet and vote in them. We conceive that a choice by the Legislature, is a choice by the people, through the agency of their public servants. That counsel- lors so chosen, and who enter on the duties assigned to them as soon as they are chosen, will be more independent of the chief magistrate, and more independent of those who desire executive favor, than if chosen in any other mode, though not less responsible to the people, because elected by the joint ballot of the two houses. We have all concurred in the opinion, that more than seven coun- sellors are not necessary. THE JUDICIARY. In the judicial department, we think two amendments are expe- dient. An independent judiciary is a fundamental principle of a free government. We cannot so well express our sentiments on this important subject, as by referring to the twenty-ninth article of the declaration of rights. It is there said, "It is the right of every citizen to be tried by judges as free, impartial, and independent, as the lot of humanity will admit:" and therefore, "that judges should hold their offices as long as they behave themselves well." The judges have not such tenure of office, unless the constitu- tion be understood to mean, that they are not liable to removal, until they have had an opportunity to show that the alleged causes for removal are unfounded, or insufficient. The Legislature, in re- moving a judge, exercises not only a discretionary, but a judicial power. Judgment cannot justly be given, in any case affecting any interest, even of the humblest citizen, unless the cause has MASSACHUSETTS CONVENTION. 629 been first stated, and it has been permitted to him to show, what he considers to be the tmth of his case. It cannot, then, be consistent with the plainest principles of justice, that the public functions of a citizen, and perhaps his repu- tation, may be taken from him, without any other notice from those who may exercise such power, than that they have exercised it, and that his relation to the public has ceased. In whatever estimation we may hold the rights and interests of any individual who sustains a high judicial office, it is rather the public right and interest, which move us to propose the subjoined amendment. The people can have no dearer interest in anything pertaining to government, than in the interpretation of the laws, and in the ad- ministration of justice, affecting life, liberty, property, and character. The cpnstitution, with the explanatory amendment which we pro- pose, secures to the people the unquestionable right of removing the unfit, the unworthy, and the corrupt ; while it secures to them the no less valuable right of preserving to themselves, the able, the up- right, and the independent magistrate. We propose, therefore, so to amend the constitution as to require that no judicial ofiicer shall be removed from office, until the al- leged causes of removal are stated on the records of the Legislature ; nor until the individual, thereby affected, shall have had an oppor- tunity to be heard. In the second article of the third chapter it is provided, that each branch of the Legislature, as well as the governor and council, shall have authority to require the opinion of the judges, on important questions of law, and upon solemn occasions. We think this pro- vision ought not to be a part of the constitution; because, First, each department ought to act on its own responsibility. Second. Judges may be called on to give opinions on subjects, which may afterwards be drawn into judicial examination before them, by con- tending parties. Third. No opinion ought to be formed arid ex- pressed, by any judicial officer, affecting the interest of any citizen, but upon full hearing, according to law. Fourth. If the question proposed should be of a public nature, it will be likely to partake of a political character ; and it highly concerns the people that ju- dicial officers should not be involved in political or party dis- cussions. We, therefore, recommend that this second article should be an- nulled. SECRETARY AND TREASURER. We recommend that the executive should be empowered to fill vacancies occurring in these departments, during the recess of the General Court, until a constitutional election is made. MILITIA. We propose that the office of commissary general should not be filled by legislative election ; nor in any other manner, excepting 630 MASSACHUSETTS CONVENTION. as the Legislature may by law provide, if such an officer should, hereafter, be necessary. As minors are required by law to perform military duty, and have consequently a direct interest in the qualifications for office in those whom they are holden to obey, the want of discretion, which is legally affirmed of minors in other cases, is not applicable to this ; and we have, therefore, proposed an amendment, which authorizes those minors, who are enrolled in the militia, to vote in the choice of officers. To diminish expense in the militia service, and to secure able and faithful performance of duty therein, we think it expedient to empower the Legislature to provide, by law, for the removal of officers, in certain cases. OATHS OF OFFICE. We recommend that the oath of abjuration be abolished. How- ever proper this oath may have been, while this country was main- taining its conflict for independence with the mother country, the success of that conflict, and the lapse of time, have rendered that oath inapplicable to our condition. We have agreed that the declaration of belief in the Christian religion ought not to be required in future ; because we do not think the assuming of civil office a suitable occasion for so declar- ing ; and because it is implied, that every man who is selected for office, in this community, must have such sentiments of religious duty as relate to his fitness for the place to which he is called. DISq,UALIFICATIONS FOR OFFICE. Some amendments are recommended in this division of the con- stitution, founded on one or other of these principles, viz. : First. To prevent the exercise, by the same individual, of those powers of government, which the constitution ordains to be kept separate. Secondly. To preserve that distinction between the National and State governments, which the principles, on which these govern- ments are relatively founded, require. NOTARIES PUBLIC. No difference of opinion occurred, on the expediency of transfer- ring the appointment of these officers from the legislative, to the executive department. HARVARD UNIVERSITY. We have thought it proper to inquire into the present state of this ancient and respectable institution, and have done this by the Eigency of a fully competent committee. We have made this in- quiry, because this seminary has experienced the patronage of gov- ernment from its earliest foundation ; and was justly held to be worthy of appropriate constitutional provisions, by our predeces- sors. It appears that the powers conferred on Harvard University have always been exercised, and that the duties required of it have always been performed, with a sincere and ardent desire to promote MASSACHUSETTS CONVENTION. 631 the diffusion of useful knowledge ; and to establish and preserve an honorable reputation in literature and morals in this community. We have, however, thought it proper, with the consent and ap- probation of the corporation, and overseers of the University, to propose to you, that the constitution should be so amended as to make ministers of the gospel, of any denomination, eligible to the office of overseers. For further illustration of this interesting subject, we beg leave to refer to the report of the committee, which was read in Conven- tion, and ordered to be published.* INCOKPOKATION Or CITIES. It appeared to us, that it would be convenient, and proper, that towns containing more than twelve thousand inhabitants, should, on application of their qualified voters, by petition to the Legisla- ture, be incorporated with municipal or city powers and privileges. Without such powers and privileges the inhabitants of such towns must continue to vote in one meeting, however numerous they may become. This is already found to be an inconvenience in two towns, for the removal of which, provision ought to be made. Under the limitations and restrictions which we have provided, we can see no reason why the power to incorporate, should not be vested in the Legislature' And we therefore recommend an altera- tion of the constitution, so as to effect this purpose. PROVISION FOR rUTURE AMENDMENTS. \ It may be necessary, that specific amendments of the constitu- tion should hereafter be made. The preparatory measures in as- sembling a Convention, and the necessary expense of such an as- sembly, are obstacles of some magnitude, to obtaining amendments through such means ; we propose that whenever two thirds of the house of representatives, and a majority of the senate in two suc- cessive Legislatures, shall determine that any specific amendment of the constitution is expedient, such proposed , amendment shall be submitted to the people ; and if accepted by the people, the consti- tution shall be amended accordingly. We believe that the consti- tution will be sufficiently guarded from inexpedient alterations, while all those which are found to be necessary, will be duly con- sidered and may be obtained with comparatively small expense. MODE or SUBMITTING AMENDMENTS. We have determined that it is not expedient to make a new draft of the constitution ; we believe it would be more acceptable to you, to see the proposed amendments separately. We therefore send them to you in this manner ; and numbered successively ; and ac- companied by a form, in which assent or dissent may be easily ex- pressed, and made known. You will perceive that if the amendments are adopted, the amended constitution will go into operation on the fourth day of *[Pages 527-532 of this volume.] 632 MASSACHUSETTS CONVENTION. July, in the present year ; and that the first elections will take place on the second Monday of November next ; and that the state offi- cers then chosen will commence their official duties on the first Wednesday of January, next following. After due deliberation, we have decided that it is most expedient and proper that a large Committee of the Convention shall be in session on the fourth Wednesday of May next, to receive the re- turns from the several towns ; and that this committee shall exam- ine the returns, and certify the result to the governor, and to the Legislatiire, which will be in session on and -after the last Wednes- day of May next. The Legislature will then declare to the people, in such manner as the Legislature may see fit, the will of the people on the amendments, which we submit to them. We think this, fellow-citizens, a proper occasion to allude to those grateful sentiments which we feel in common with yourselves for the blessings which have been experienced in this highly favored community. That pious, virtuous, well-informed men should have been in- spired to seek a home on these shores, and should have been sup- ported in all the perils inseparable from their enterprise ; that their intelligence, and manly virtues, should have been transmitted through successive generations to descendants, who dared to will and to effect a termination of all political connection with a pow- erful kingdom ; and these descendants should have been able, in the midst of war and of civil dissention, to establish a republic so wisely balanced, as to accomplish every rational and beneficent pur- pose which they had in view, are subjects which come to our recol- lection, at this time, with peculiar interest. We do feel, and it be- comes us to acknowledge, that we are a favored and a happy peo- ple in our national and domestic relations ; — and especially that while so much of the civilized world is struggling with serious and fearful difficulties, it is permitted to this community, peaceably to assemble, and to deliberate, and decide on the best means of secur- ing and perpetuating social benefits and unquestioned rights. Among the duties of gratitude is that of showing, that we are worthy of these blessings, by conscientiously preserving them; among the obligations which are inseparably connected with these blessings, is that of transmitting them, to those who are to come, as faithfully, as they have been guarded for us. In Convention, Jan. 9, 1821 — ^read and accepted. A true copy, ISAAC PARKER, President. Attest, Ben J. Pollabd, Secretary. APPENDIX. In accordance with the second of the resolves finally adopted by the Convention, the people assembled in their respective towns and districts, on Monday, April 9th, 1821, and voted upon the fourteen amendments submitted to them. The result of the ballotting was as follows : 1x5.— iCOOCTiS^COtOS^^Otoe^CT) CO O «3 CO "C —< &* P> ^ »0 *0 ti" (M ,-, 1-, ,-1 ,-i<3i o o T:f •-■ ^- I— I irj -^ ai — o^ (T' •-(CO c^ eiM r-CO f— '-' O^-H.-tCicO'^OtDmOCTlODin iTiCTlOOCOlO'^Tf'CO^UDlOCOCO tOTfTfri GO »-l C^ C^ 01 G^ m (X) coococoi-HG^coe^cot^'-'iOM &< l> O »Q CO I— I Tft f- ^D to O CO COCOOG^OOS^CTJ-* — GOCTif-t^ tr-ios^GOtoioes-^r-cn^tr-y? Tf't£)iO'*i-iCO'-iCO(M— lTpCOf-ig3P OLDlT-OCOCO'-'O'-'OiOGOg^ COGOOO—'COCOlO'^COOOt^CO CO OIG^ t~G^ »0 COTfOOCOe^-^OlOiQiOiOCD rHs^oSat-GOtr-tot^tDCo 1-1 e^ s^ '-> 1-1 "-i <« iM(ni>^coG^iocoff5y3>oajs2 lOCOCOt£DCO**r-tCOOS^t:~CttO 1—1 1—1 1—1 &* •-< rH I— I ^_-. ^ to to CO oi a> GO > m »-< OD to O T-^ CO Q FT-l O CO o tooito^-'O'-icoomii^ot-t-- ^^OliO'iMrHaiTfiirsrJ'toyS i sip 111 if ill rS r,T S o^ M M Q ^ S ffi re Cej CO i sip 111 if ill 80 ioe^tos^co-*t-t£5-*icmcoiri otococTi— ■iQ^r-eo— iCTjcno «^OOOCOCO GOCOtDCOC-©^ ajG^e^c^coict^tot^-^CTit- coocT^cootoicjinocrjGoaio ■^■^■^C-^COi— iCOt—OCOCOi-I ©■i •-« e-t GO 1-1 t-i iOiOt-^t^«COGOiO Cl rH CD <-i Ol i-H O O "ft CO irp CO Tf 10 113 r-. CO 00 tea -^ -^ »c coiWcncococo-*c--HGOi^a)io iOOiOO»OCOi— iGOOOOC-rHtO e^ „ Ss| ,_, rH G^ r-i T-I rH r-iG^C0--rJ'i0»O'^G0C-QiO'O rHOC^'T-OG^IM'-HOOt-^COO^ G^ CO — I a^ Tf rHs-iotoc-cn ^r-i rH -*G^r-t TplOCOCOCTHOtOrHS^rHOCOO tOtO»OCOtDCOCOCOiOC^'^rHtD Tt"<*iCHOGOe^r-iOG40iOCJii-i G4 WrH rH G^ rH ^ •<# CO G^ to CO t-H to to G" O rH rH 10 to ^O 6^ .^ -i. .^ .~ J 1 1 ViJ ViJ U',' !_/ I— 1 oi ai 10 T^ i£3 coe^(o&» G^OrH(M>Or^64toOCOrHiO-^ lOCOtOCiUrSCOrnS^COOCOrHlO e^ rH G^ rH GH rH ^ ,-^ &)OtOC-OrHCOrHai"'#lf5COt- intO-^tOGOrHCOiOCOGOOGO"^ G^ to CO >o ir- e^ toeococna^o rHS^G^r-irH rH GO rH ©1 soot-t}'cot-t-' 235, 240. 242, 495 to 501, 632, 615; do. 21, 24; do. 227, 228; do. 491 ; res. on number of districts. 189. 241. 501, 603, 532, 552, 615; res. for forming districts, 189, 241, 532, 615; do. 249,258, 322, 493; do. 323 ; res. apportioning lo (he severaldisiricis, 189, 241, 323, 324, 632, 615 ; res. for substituting January for May, in this part of constitution, 189, 241, 504, 632, 614; res. on quorum oC council for examining returns, 189, 241, 604,632,616; res. on quorum of senate, 189, 241, 504, 632, 615 ; do. 493 ; res. on privilege Irom arresi, 190, 246. 519, 535,618; proposition for basis on population. 21, 24; do. 248, 257 to 322 ; do. 323; do. 497. 600, 602 ; res. on qualiScalion of senators, 240, 330 ; do. 323 ; res. for senators for two years, 495 ; res. for frame of government, 200, 207, 334 ; do. 491. House of Kepresenlalives — res. on number of inhabiiants for one rep. 189, 241 to 248, £04 to 613, 532, 533, 614; res. on the increasing number, 190, 248, 513, 633, 614; res. on small towns sending every other year, 190, 249, 513, 533, 614; res. for classing towns, 190, 249, 513, 633, 614; do. 331,519,533, 614; res. on towns increasing to twelve hundred inhabitants, 190, 249, 613, 514,533,614; res. on new towns, 190, 249, 511, 533, 615; do. 533; res. for paying rep. from treasury, 190, 249, 614 to 518, 633, 614; res. for paying by towns 609; do. 519 ; res. on quorum, 190, 249. 519, 535, 614 ; res. on privilege from arrest. 190, 246, Sl'g, 536, 618 ; res. for small towns uniting, 323 lo 331, 519, 521.636,614,618; res. on represenlation on year of valuation, 323, 330, 331, 519, 527, 614; res. for limiting the number of rep. 501. 520, 636, 614,618; sysiem for h. of rep. 242,214; do. 258, 332. 493,509, 611; do.260,323; do. 491 ; do. 259, 331 ; do. 532; res. on quali- fications of rep. 242, 332. SHAVf — banks, 542; cities, 192- defence by .self and counsel, 566; judiciary, 475; chairman of conimillee on rules, 14; reports, 15, 35; s. rules, 36. Shepley — s. and m. amendments, 601. Sheriff — res. for electing by counties, 409, 672, 590, 591. Sibley — amcndmeuls, 674; third article, 686; council, 157; m. do. 260, 343; declaration of rights, 463, 467; defence by self and counsel, 467; m. for reconsideration, 157i h. of rep. 326; rules. 19,20,36; senate, 241, 498; two sessions a day, 336, voters, 553. Slocum H. — address, 415; future amendments, 405 ; third article, 371 ; revising constitution, 26; council, 157,345; defence by sell and counsel, 4.66 ; on report on elections, 51 , Plymouth •lection. 56 ; session of General Court, 118; judiciary, 481 ; lieul. gov. 128 ; militia, 380; h. of rep. 618; rules, 18 ; senate, 240, 265 ; exemption from taxes, 469; test, 179; voters, 252. Solicitor Genekal — res. for abolishing the office, 336, 471, 487, 488. Sporr — res. for registering deeds in each town, 575 ; res. school fund, 575. Sprague — third article, 382. Starkweather — future amendments, 406; m. business required lo be acted on, 346; council, 165, 539 ; session of General Court, 95 ; judiciary, 479 ; course of proceeding, 567 ; h. of rep. 245 : senate, 498 ; sheriffs, 409. Stebbins of Granville — m. salaries of judges, 575. Stone of Stow,