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of the state. I would beg to ask, sir, on what principle this can stand; especially in the judgment of those who regard population as the only just basis of representation? But sir, I have a preliminary objection to this system; which is, that it reverses all our common notions, and constitutes the popular House upon anti-popular principles. We are to have a popular Senate of thirty-six members, and we are to place the check of the system in a House of Representatives of two hundred and fifty members! All money bills are to originate in the House, yet the House is not to be the popular branch. It is to exceed the Senate, seven or eight to one, in point of numbers-yet the Senate is to be chosen on the popular principle, and the House on some other principle.
It is necessary here, sir, to consider the manner of electing representatives in this commonwealth, as heretofore practised, the necessity which exists of reducing the present number of representatives, and the propositions which have been submitted for that purpose. Representation by towns or townships, (as they might have been originally more properly called) is peculiar to New England. It has existed however, since the first settlement of the country. These local districts are so small, and of such unequal population, that if every town is to have one representative, and larger towns as many more as their population, compared with the smallest town, would numerically entitle them to, a very numerous body must be the consequence, in any large state. Five hundred members, I understand, may now be constitutionally elected to the House of Representatives; the very statement of which number shows the necessity of reduction. I agree, sir, that this is a very difficult subject. Here are three hundred towns, all possessing the right of representation; and representation by towns, is an ancient habit of the people. For one, I am disposed to preserve this mode, so far as may be practicable. There is always an advantage in making the revisions, which circumstances may render necessary, in
a manner which does no violence to ancient habits and established rules. I prefer therefore, a representation by towns, even though it should necessarily be somewhat numerous, to a division of the state into new districts, the parts of which might have little natural connexion or little actual intercourse with one another. But I ground my opinion in this respect on fitness and expediency, and the sentiments of the people; not on absolute right. The town corporations, simply as such, cannot be said to have any right to representation; except so far as the constitution creates such right. And this I apprehend to be the fallacy of the argument of the honorable member from Worcester. He contends, that the smallest town has a right to its representative. This is true; but the largest town (Boston) has a right also to fifty. These rights are precisely equal. They stand on the same ground, that is, on the provisions of the existing constitution. The honorable member thinks it quite just to reduce the right of the large town from fifty to ten, and yet, that there is no power to affect the right of the small town; either by uniting it with another small town for the choice of a representative, or otherwise. But I do not assent to that opinion. If it be right to take away half, or three fourths of the representation of the large
towns, it cannot be right to leave that of the small towns undiminished. The report of the committee proposes that these small towns shall elect a member every other year, half of them sending one year, and half the next; or else that two small towns shall unite and send one member every year. There is something apparently irregular and anomalous in sending a member every other year; yet, perhaps, it is no great departure from former habits; because these small towns, being by the present constitution compelled to pay their own members, have not ordinarily sent them oftener, on the average, than once in two years.
The honorable member from Worcester founds his argument on the right of town corporations, as such, to be represented in the legislature. If he only mean that right which the constitution at present secures, his observation is true, while the constitution remains unaltered. But if he intend to say that such right exists, prior to the constitution, and independent of it, I ask, whence is it derived? Representation of the people has heretofore been by towns, because such a mode has been thought convenient. Still it has been the representation of the people. It is no corporate right, to partake in the sovereign power and form part of the legislature. To estab lish this right, as a corporate right, the gentleman has enumerated the duties of the town corporation; such as the maintenance of public worship, public schools, and public highways; and insists that the performance of these duties gives the town a right to a representative in the legislature. But I would ask, sir, what possible ground there is for this argument? The burden of these duties falls not on any corporate funds belonging to the towns, but on the people, under assessments made on them individually, in their town meetings. As distinct from their individual inhabitants, the towns have no interest in these affairs. These duties are imposed by general laws; they are to be performed by the people, and if the people are represented in the making of these laws, the object is answered, whether they should be represented in one mode or another. But, farther, sir; are these municipal duties rendered to the state, or are they not rather performed by the people of the towns for their own benefit? The general treasury derives no supplies from all these contribu tions. If the towns maintain religious instruction, it is for the benefit of their own inhabitants. If they support schools, it is for the edu cation of the children of their inhabitants; and if they maintain roads and bridges, it is also for their own convenience. And therefore, sir, although I repeat that for reasons of expediency I am in favor of maintaining town representation, as far as it can be done with a proper regard to equality of representation, I entirely disagree to the notion, that every town has a right, which an alteration of the constitution cannot divest, if the general good require such alteration, to have a representative in the legislature.-The honorable member has declared that we are about to disfranchise corporations, and destroy chartered rights. He pronounces this system of representation an outrage, and declares that we are forging chains and fetters for the people of Massachusetts. "Chains and fetters!" This convention of delegates, chosen by the people within this month, and going back to the people, divested of all power, within
another month, yet occupying their span of time here, in forging chains and fetters for themselves and their constituents! "Chains and fetters!"-A popular assembly, of four hundred men, combining to fabricate these manacles for the people—and nobody, but the honorable member from Worcester, with sagacity enough to detect the horrible conspiracy, or honesty enough to disclose it! "Chains and fetters!" An assembly, most variously composed;-men of all professions and all parties; of different ages, habits and associations—all freely and recently chosen by their towns and districts; yet this assembly, in one short month, contriving to fetter and enslave itself and its constituents! Sir, there are some things too extravagant for the ornament and decoration of oratory;-some things too excessive, even for the fictions of poetry; and I am persuaded that a little reflection would satisfy the honorable member, that when he speaks of this assembly as committing outrages on the rights of the people, and as forging chains and fetters for their subjugation, he does as great injustice to his own character as a correct and manly debater, as he does to the motives and the intelligence of this body.
I do not doubt, sir, that some inequality exists, in the mode of representatives proposed by the committee. A precise and exact equality is not attainable, in any mode. Look to the gentleman's own proposition. By that, Essex, with twenty thousand inhabitants more than Worcester, would have twenty representatives less. Suffolk, which according to numbers would be entitled to twenty, would have, if I mistake not, eight or nine only.-Whatever else, sir, this proposition may be a specimen of, it is hardly a specimen of equality. As to the House of Representatives, my view of the subject is this. Under the present constitution, the towns have all a right to send representatives to the legislature, in a certain fixed proportion to their numbers. It has been found, that the full exercise of this right fills the House of Representatives with too numerous a body. What then is to be done?-Why, sir, the delegates of the towns are here assembled, to agree, mutually, on some reasonable mode of reduction. Now, sir, it is not for one party to stand sternly on its right, and demand all the concession from another. As to right, all are equal. The right which Hull possesses to send one, is the same as the right of Boston to send fifty. Mutual concession and accommodation, therefore, can alone accomplish the purpose of our meeting. If Boston consents, instead of fifty, to send but twelve or fifteen, the small towns must consent, either to be united, in the choice of their representatives, with other small towns, or to send a representative less frequently than every year; or to have an option to do one or the other of these, hereafter, as shall be found most convenient. This is what the report of the committee proposes, and, as far as we have yet learned, a great majority of the delegates from small towns approve the plan. I am willing, therefore, to vote for this part of the report of the committee; thinking it as just and fair a representation, and as much reduced in point of numbers, as can be reasonably hoped for, without giving up entirely the system of representation by towns. It is to be considered also, that according to the report of the committee, the pay of the members is to be out of the public treasury. Everybody must see
how this will operate on the large towns. Boston, for example, with its twelve or fourteen members, will pay for fifty. Be it so; it is incident to its property, and not at all an injustice, if proper weight be given to that property, and proper provision be made for its security.
To recur, again, to the subject of the Senate-there is one remark, made by gentlemen on the other side, of which I wish to take notice. It is said, that if the principle of representation, in the Senate, by property, be correct, it ought to be carried through; whereas, it is limited and restrained, by a provision that no district shall be entitled to more than six senators. But this is a prohibition, on the making of great districts, generally; not merely a limitation of the effect of the property principle. It prevents great districts from being made where the valuation is small, as well as where it is large. Were it not for this, or some similar prohibition, Worcester and Hampshire might have been joined, under the present constitution, and have sent perhaps ten or twelve senators. The limitation is a general one, introduced for general purposes; and if in a particular instance it bears hard on any county, this should be regarded as an evil incident to a good and salutary rule, and ought to be, as I doubt not it will be, quietly borne.
I forbear, Mr. Chairman, to take notice of many minor objections to the report of the committee. The defence of that report, especially in its details, properly belongs to other and abler hands. My purpose in addressing you, was, simply, to consider the propriety of providing in one branch of the legislature a real check upon the other. And as I look upon that principle to be of the highest practical importance, and as it has seemed to me that the doctrines contended for would go to subvert it, I hope I may be pardoned for detaining the committee so long.
IN THE CONVENTION, UPON A RESOLUTION TO ALTER THE CONSTITUTION, SO THAT JUDICIAL OFFICERS SHALL BE REMOVABLE BY THE GOVERNOR AND COUNCIL UPON THE ADDRESS OF TWO THIRDS (INSTEAD OF A MAJORITY) OF EACH BRANCH OF THE LEGISLATURE, AND ALSO THAT THE LEGISLATURE SHALL HAVE POWER TO CREATE A SUPREME COURT OF EQUITY AND A COURT OF APPEALS.
REGRETS are vain for what is past; yet I hardly know how it has been thought to be a regular course of proceeding, to go into committee on this subject, before taking up the several propositions which now await their final readings on the President's table. The consequence is, that this question comes on by surprise. The chairman of the select committee is not present; many of the most distinguished members of the convention are personally so situated, as not to be willing to take part in the debate,—and the first law officer of the government, a member of the committee, happens at this moment to be in a place (the chair of the committee of the whole) which deprives us of the benefit of his observations. Under these circumstances, I had hoped the committee would rise.-It has, however, been determined otherwise, and I must therefore beg their indulgence while I make a few observations.
As the constitution now stands, all judges are liable to be removed from office, by the governor, with the consent of the council, on the address of the two houses of the legislature. It is not made necessary that the two houses should give any reasons for their address, or that the judge should have an opportunity to be heard. I look upon this as against common right, as well as repugnant to the general principles of the government. The commission of the judge purports to be, on the face of it, during good behavior. He has an interest, in his office. To give an authority to the legislature to deprive him of this, without trial or accusation, is manifestly to place the judges at the pleasure of the legislature.
The question is not what the legislature probably will do, but what they may do. If the judges, in fact, hold their offices only so long as the legislature see fit, then it is vain and illusory to say that the judges are independent men, incapable of being influenced by hope or by fear; but the tenure of their office is not independent. The general theory and principle of the government is broken in upon, by giving the legislature this power. The departments of govern