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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 felters 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 bricate 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
ment are not equal, coordinate and independent, while one is thus at the mercy of the others. What would be said of a proposition to authorise the governor or judges to remove a senator, or member of the house of representatives from office?—And yet, the general theory of the constitution is to make the judges as independent as members of the legislature. I know not whether a greater improvement has been made in government than to separate the judiciary from the executive and legislative branches, and to provide for the decision of private rights, in a manner, wholly uninfluenced by reasons of state, or considerations of party or of policy. It is the glory of the British constitution to have led in the establishment of this most important principle. It did not exist in England before the revolution of 1688, and its introduction has seemed to give a new character to the tribunals. It is not necessary to state the evils which had been experienced, in that country, from dependent and timeserving judges. In matters of mere property, in causes of no political or public bearing, they might perhaps be safely trusted; but in great questions concerning public liberty, or the rights of the subject, they were, in too many cases, not fit to be trusted at all. Who would now quote Scroggs, or Saunders, or Jeffries, on a question concerning the right of the habeas corpus, or the right of suffrage, or the liberty of the press, or any other subject closely connected with political freedom? Yet on all these subjects, the sentiments of the English judges since the revolution,-of Somers, Holt, Jreby, Jekyl, &c., are, in general, favorable to civil liberty, and receive and deserve great attention, whenever referred to. Indeed, Massachusetts herself knows, by her own history, what is to be expected from dependent judges. Her own charter was declared forfeited, without a hearing, in a court where such judges sat.
When Charles the second, and his brother after him, attempted the destruction of chartered rights, both in the kingdom and out of it, the mode was by judgments obtained in the courts. It is well known, that after the prosecution against the city of London was commenced, and while it was pending, the judges were changed; and Saunders, who had been consulted on the occasion, and had advised the proceeding on the part of the crown, was made chief justice for the very purpose of giving a judgment in favor of the crown; his predecessor being removed to make room for him. Since the revolution of 1688, an entire new character has been given to English judicature. The judges have been made independent, and the benefit has been widely and deeply felt. A similar improvement seems to have made its way into Scotland. Before the union of the kingdoms, it cannot be said that there was any judicial independence in Scotland; and the highest names in Scottish jurisprudence have been charged with being under influences which could not, in modern times, be endured. It is even said, that the practice of entails did not extensively exist in Scotland till about the time of the reigns of the last princes of the Stuart race, and was then introduced, to guard against unjust forfeitures. It is strange indeed, that this should happen at so late a period, and that a most unnatural and artificial state of property should be owing to the fear of dependent judicatures. I might add here, that the heritable jurisdic