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has suggested itself to my mind, against having | any provision of this kind, and that is this: There are cases-very strong cases sometimes-which require the incorporation of new towns where there may not be this number of inhabitants; and there will be a very great tendency, if a provision of this kind is ingrafted into the Constitution, to include inhabitants who would not choose to go to the new towns, to enlarge the limits, and thereby inflict an injury upon those who are thus taken in. It appears to me that we gain nothing by this proposition. I do not see any advantage in it. I regard the legislature as the proper judge, whether there is a good cause or not, for the incorporation of a town, because they will have all the facts before them; they can better judge whether a town ought to be incorporated, with twelve or thirteen hundred inhabitants, than we, sitting here without any facts before us, possibly can do. I think, therefore, that if we leave the Constitution as it is, we shall do the best thing that we can do.

Mr. CHURCHILL, of Milton. I am certainly in favor of some restriction of this sort, and shall vote for the amendment proposed by the gentleman for Wilbraham, (Mr. Hallett). I think it is essentially necessary that a restriction should be placed upon the creation of additional towns, for this reason: It strikes me, that one of the evils which may grow out of the basis of representation for the lower House, which we shall probably adopt, is a large increase in the size of that body. That evil, every gentleman must see, is liable to be increased by the cutting up of large towns into one, two, or three additional towns, having between one and four thousand inhabitants, which are now entitled to send one representative to the legislature. In that way, your House of Representatives may be, by political parties, and influenced by political motives, increased, year after year, to a size which every one will regret to see. For that reason, I shall vote for some restriction.

Mr. HALLETT, for Wilbraham. I wish to suggest, for the consideration of the Convention, whether the gentleman's amendment ought not to go farther, so as to prevent the possibility of one town dividing itself into two or three towns, and thus multiply its representation? It is proposed, in the basis of representation, that no new town shall be created, with a right of representation, having a population of less than fifteen hundred inhabitants. Now, if this provision should pass, or if there be no limitation in that respect, will not this state of cases arise all over the Commonwealth? For example: Here is a town with two thousand five hundred inhabitants,

[July 18th.

which is now entitled to send one representative, and, remaining a town, intact and undivided, by no process under the basis of representation could it be entitled to more than one representative, until it had nearly doubled its population. Yet, that town of twenty-five hundred inhabitants, by taking off fifteen hundred, may make a new town, and, in such case, the new town at once acquires the right of representation; because, according to the proposed Constitution, the new town, with fifteen hundred inhabitants, will be entitled to a representative, while you cannot possibly take away the representation from the cld town, with one thousand inhabitants; and thus, by this division, such town with twenty-five hundred inhabitants, will obtain two representa¬ tives. Now carry this rule to a town having forty-five hundred inhabitants, and, by taking out twice fifteen hundred inhabitants you will enable the town, so divided, to send three representatives instead of two.

It seems to me that by such a course you place the House of Representatives somewhat in the position the British Constitution places the increase of the House of Lords, by which the crown, whenever it is desirable to carry any measure in the House of Lords, and the lords being refractory and opposed to it, may create a sufficient number of additional peers, so as to obtain a majority. Even the threat to make new peers, carried the Reform Bill. And, Sir, may not any party in this House that desires to carry a particular measure at a future election, manufacture new towns out of old ones, and go on in this way and send forty or fifty additional representatives? I want therefore to guard against this, by a provision that new towns shall not add to the representation of the old towns, or one similar to that existing in the Constitution of the United States, which provides that no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the jurisdiction of two or more States, or parts of States, without the consent of the legislatures of the States concerned. I want a provision of some kind here, so far as to say that no new town shall be created within the limits of an existing town so as to increase the representation of the old and new towns, put together-so that if the legislature makes a new town with fifteen hundred inhabitants, out of an old town, leaving one thousand, they shall not do it so as to multiply its particular representation within that territory; because I regard the basis we propose, and which always has prevailed, (and that is the only principle upon which I can stand,) as a representation of communities, in the town or towns, and in that capacity as all copart

ners entering into an arrangement in regard to their representation in this House; and I do not want any new partner to come in until I know on what terms, and with what capital he is to be admitted. Although there may be cases in which it will be necessary to incorporate new towns for convenience, with fifteen hundred inhabitants or under that number, I am convinced that there ought to be a provision incorporated into the Constitution, determining that these towns, thus divided, cannot multiply their representation, because, as we have seen, it would be the easiest thing in the world for any town, with over 2,500 inhabitants, to divide itself into two towns, and have more representatives than its just proportion, and which could not be done by the smaller towns or larger cities. The city of Boston, perhaps, could not do it very conveniently-but, upon the same principle, she might divide her twelve wards into one hundred towns, of fifteen hundred inhabitants each, and thus multiply her representa- | tion indefinitely. I wish to guard against any such objection to the proposed basis.

Mr. GRAY, of Boston. I do not think that we can adopt this restriction without injustice to the people of the Commonwealth. The gentleman for Wilbraham, (Mr. Hallett,) will not suspect me of being very much in favor of a large House of Representatives, or of thinking that the House the Convention has already provided for, is not large enough; but I do think that to insert a provision preventing towns from being formed for fear of having too large a House, is inflicting upon them an evil which ought to be guarded against in some other way—that is by some provision as to representation. I do not hold-and I suppose that no gentleman holds-that the sole purpose of the creation of towns is, that they may be represented as towns in the legislature. I had supposed that the greater part of the benefits which result from town government, result, so to speak, from what may be called their operation downwards from the people of the town, and not from their operation upwards in this House of the legislature. In this, I believe, is the greater part of the benefits which accrue to the towns from their particular organization as such. It is enough, I think, to say that many benefits result from the operations of these town governments in their internal structure, and I agree with the gentleman from Worcester, that we may deprive them of great advantages, and inflict upon them many positive evils by a provision of this kind. I think the whole matter can be safely left where it has always been-in the hands of the legislature.

Mr. HALLETT. Is it in order to offer an amendment to the amendment?

It is in order.

[July 18th.

Mr. PRESIDENT. Mr. HALLETT. Then I move to amend the amendment by adding to it the following:

"But the incorporation of any new town shall not thereby increase the whole number of representatives."

Mr. EARLE. I wish to hear the amendment read as it is proposed to be amended.

It was accordingly read, as follows:

Resolved, That the Constitution be so amended, that no town hereafter shall be incorporated with less than fifteen hundred inhabitants, but the incorporation of any new town shall not thereby increase the whole number of representatives.

Mr. WILSON, of Shelburne. It seems to me that such a provision as that involved in the amendment of the gentleman for Wilbraham, (Mr. Hallett,) will amount almost to an entire prohibition in regard to the formation of any new towns. As I understand the matter, it would, in some instances, operate very hardly. Let me suppose a case. Suppose, for instance, that just upon the border of any town having fifteen hundred inhabitants, some manufacturing establishment shall be originated, forming a nucleus for a new population. Suppose, farther, that the manufacture flourishes, and the people gather together in that vicinity in sufficient numbers to warrant them-taking a very small portion from the old town-in applying for a town organization, their convenience and prosperity being thereby greatly promoted. Will anybody say that it shall be refused? On what grounds? It may be all very right and proper, but I must confess that I do not see it so. To say that there shall be no new corporation granted unless the population of the town from which the new one is to be taken amounts to fifteen hundred, I think is unreasonable, and that no such provision should be adopted. I think it would be unsatisfactory to the people. There are large sections of the country and various interests which are anxious to have new towns; and, with such a provision as this in your Constitution, I think they will be very likely to vote against it, when the question of adoption or rejection comes to be tried.

Mr. KINSMAN, of Newburyport. The proposition of the gentleman for Wilbraham, is one which I cannot but regard as unequal and unjust, and it will be found, that if we once commence this course of injustice, it will follow throughout. It appears to me that nothing can be more unjust than the proposition now before the Convention. I have, in my mind's eye, a town about ten miles in length and three in breadth, a portion of

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which is largely engaged in manufacturing, and there is very little doubt that it is soon destined to be a city. Now such being the case-this establishment being in the centre of the town neither extremity will have population sufficient to make a town of fifteen hundred inhabitants, and consequently, after the city is set off, neither of them will have a town organization. What then is to become of these extremities? The farming part of that town do not want to pay for gas, and other matters appertaining to a city; they do not want to pay for that class of schools from which they receive no benefit. These appear to me to be reasons why the matter had better be left to the legislature to arrange, as circumstances from time to time may require. I shall, therefore, vote against the amendment.

Mr. EARLE, of Worcester. It will be recollected that we have already adopted a provision, that towns shall not be incorporated with less than fifteen hundred inhabitants with the right of representation, and that is also naturally a provision against the incorporation of any town which shall leave another town with less than fifteen hundred inhabitants. It appears to me that that is going quite as far as we ought to go in regard to the restriction. The case which has been stated by the gentleman from Newburyport, is much in point, showing that cases of great hardship may arise, by any provision of a kind like that which it is now proposed to insert. From my own observation, I know that there would be many similar cases.

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

The question next recurring on the amendment offered to the Report of the Committee, by the gentleman from Fall River, it was decided in the negative, and the amendment was rejected.

The PRESIDENT. The question now recurs on the motion of the gentleman from Natick, (Mr. Wilson,) that the farther consideration of this subject be indefinitely postponed.

Mr. HOYT, of Deerfield. Before the question is taken on that motion, I wish to offer an amendment. It is as follows:

Strike out all after the word "incorporated," and insert "without the consent of the town or towns, from which the territory shall be taken." So as to make the proposition read as follows:

Resolved, That the Constitution be so amended, that hereafter no town shall be incorporated without the consent of the town or towns, from which the territory shall be taken.

Mr. FROTHINGHAM, of Charlestown. I do not know that it is necessary to say a word about

[July 18th.

the amendment. I am strongly opposed to the principle that no new towns shall be incorporated unless the old ones consent to it. Why, Mr. President, the strongest reasons for the incorporation of new towns, are often the very reasons which the old towns allege against it. The reason is, that the new town has grown up with an interest about it which is distinct and separate from the interest of the old town, and, in view of those interests, it comes to the legislature, and asks as a right, that this new collection of people shall enjoy town privileges-that is to say, that they shall not be taxed for things which they do not use. You can find a great many instances, in the history of even a few years past, of this kind. Take the instance of the town of Charlestown and Somerville, in which we of Charlestown were much opposed to being divided, and nevertheless there was in Charlestown a commercial interest, and in Somerville an agricultural interest, and it was not right, upon any principle of justice, that the people of Charlestown should tax the agricultural interest of Somerville for those things which the commercial interest wished to enjoy, but which the agricultural interest stood in no need of. But I will not enlarge upon this point. It must strike every one that the principle is radically unjust, and I hope the amendment will not prevail.

Mr. SCHOULER, of Boston. I move to amend the amendment by striking out the words "town or towns," and insert the word "legislature."

The PRESIDENT stated, that if the amendment was adopted, the resolve would stand as follows:

Resolved, That the Constitution be so amended that hereafter no town shall be incorporated withterritory shall be taken." [Laughter.] out the consent of the legislature, from which the

Mr. ADAMS, of Lowell, moved the previous question.

Mr. SCHOULER withdrew his amendment. Mr. HOYT, of Deerfield. I am not in the habit of troubling the Convention, and I ask their indulgence a single moment.

Mr. ADAMS. I withdraw my call for the previous question.

Mr. HOYT, of Deerfield. In reply to the remarks of the gentleman from Charlestown, (Mr. Frothingham,) I would say that I have no doubt there may be cases of injustice under this provision,-instances in which the old town will object to setting off the new town, in cases where it is perfectly proper that the new town should be set off. All agree that the multiplication of new towns is an evil; and that it may affect the system of representation which this Convention has

adopted, any one may see with half an eye. But neither will the legislature, if it is left to them, always do justice in every case. The real evil is the multiplication of small towns, and there must be some limit upon it. I do not believe that the inhabitants of the towns themselves will always judge rightly and justly; but if it is true, as has been said and reiterated, again and again, in this Convention, that the people will decide more correctly and justly, in regard to matters concerning themselves, than any other body can, then the people, who are more directly interested in this particular question, will be likely to decide justly upon questions of this nature. I do not believe, if there should arise a case of this nature, which should operate with great injustice upon a particular body, that the people will sanction it. I do not believe that the people will be actuated by such motives as will lead them to the commission of such injustice. I hope the Convention will adopt the amendment-no, I do not hope that, for I think the sense of the Convention is not in favor of it-but I wish they would adopt it.

Mr. UPTON, of Boston. I propose to make but one single remark upon this proposition. I think that the suggestion of the gentleman for Wilbraham is worthy of consideration, and entitled to weight before this Convention. There are eighty-five towns in the Commonwealth now entitled to one representative, and if the Convention propose to leave the basis of representation as it is now, and to make no modification in the Constitution, restricting the incorporation of towns, at the very next session of the legislature, after the next census shall have been taken in 1855, you will have eighty-five more representatives from those towns than you now have. A state of things which will allow this, ought not to exist; but it is not for me, as one of the minority of this Convention, to point out how the evil should be remedied. Yet I suggest that after your basis is changed, under the census of 1855, these eighty-five towns may be divided, and there will come up here, from these towns, eighty-five representatives more than they are now entitled to send. I state this in order to bring the attention of the Convention to the consideration of its effect.

The question was then taken upon the amendment offered by the gentleman from Deerfield, (Mr. Hoyt,) and it was decided in the negative. So the amendment was rejected.

The question then recurred upon the motion of the gentleman from Natick, (Mr. Wilson,) that the consideration of the subject be indefinitely postponed.

[July 18th.

Mr. BRADBURY, of Newton. I understand, then, if this subject is indefinitely postponed, it will be in the power of the legislature to increase the number of the towns in the Commonwealth at pleasure, and that every town, according to the present basis of representation, that shall hereafter be created, having one thousand inhabitants, will have the right of constant repre

sentation.

Mr. EARLE. I would remark that we have already restricted that right to towns having fifteen hundred inhabitants.

Mr. BRADBURY, of Newton. Then every town which shall be created, and having fifteen hundred inhabitants, will be entitled to constant representation.

If I understand the basis which the House has established, in 1860, every town, whatever may be its present rights, which shall not contain fiftyfive hundred inhabitants, will have but one representative; and in 1870, every town in the Commonwealth not possessing eighty-three hundred inhabitants, will have but one representative. As I understand it, the town of Nantucket is now entitled to three representatives, and by the ratio of increase in the basis, which we have adopted, she will have but two representatives in 1860, and but one in 1870. There are towns in the Commonwealth that will have about 16,000 inhabitants in 1870. Such is the town which you represent, Mr. President, and the adjoining town which I have the honor to represent, and they will be entitled then to two representatives, whereas they now have two representatives upon four thousand of population.

That being the basis established by a majority of this House, it affects very materially the question before this Convention, at the present time; and to postpone, indefinitely, action upon it, is equivalent to a rejection of it, and will leave it in the power of the legislature to increase this difficulty, and to increase the disproportion which now exists.

Another thing, it most manifestly increases the political motives which have ever existed for the creation of new towns. There is a political motive, every-body knows,-and parties here have been charged with being governed by such considerations,-for the increase of the number of towns, and so far as political considerations have had any weight heretofore, they have been increased by the decision of this Convention, most manifestly.

I think the consideration of the question ought not to be idefinitely postponed, but that some action should be had in reference to it. An indefinite postponement is equivalent to a rejection of all action.

Resolved, That there be paid out of the treasury of the Commonwealth, to the several persons whose names are borne on the accompanying list, for each and every day's service, as follows: to the two secretaries, ten dollars each; to the chaplain, three dollars; to the messenger, five dollars; to the two assistant messengers, three dollars each; to the door-keeper and three assistant door-keepers, three dollars each; to the postmaster three dollars; to the four pages, two dollars each: and the governor, by and with the advice and consent of the council, is hereby requested to draw his warrant on the treasurer for the same, on an order of this Convention.

List of officers embraced in the above resolve:

William S. Robinson, James T. Robinson, Secretaries; Warren Burton, Chaplain; Benjamin Stevens, Messenger; Issachar Fuller, Tilson Fuller, Assistant Messengers; Alexis Poole, Door-Keeper; David Murphy, William M. Wise, John A. Sargent, Assistant Door-Keepers; William Sayward, Postmaster; Joseph P. Dexter, Jr., Charles A. Murphy, James N. Tolman, Jr., Thaddeus Page, Pages.

Negligence of Railroad Corporations.

Mr. HALLETT, for Wilbraham, from the Committee appointed to consider the subject, made the following Report :

COMMONWEALTH OF MASSACHUSETTS.

In Convention, July 18, 1853. The Committee to whom was referred the order relating to remedies to the representatives of persons killed by the negligence or misconduct of railroad corporations, have considered the same,

and report, that there should be added to the eleventh article of the Bill of Rights, the following clause :—

Where death is caused through negligence or misconduct, by means of railroads, steamboats, or public conveyances for hire, the same remedies shall be open in a suit at law, as for like injuries to the person resulting in disability and not in B. F. HALLETT, Chairman.

death.

The Report was referred to the Committee of the Whole, and ordered to be printed.

The Late Member for Concord.

On motion by Mr. BUTLER, of Lowell, it

was

Ordered, That the Committee on the Pay Roll, make up the per diem of the late delegate from Concord, including the entire session.

Judiciary.

The next subject on the Orders of the Day, being the resolves in relation to the Judiciary, on motion by Mr. BUTLER, of Lowell, said resolves were laid upon the table for the present, for the purpose of going into Committee of the Whole, on the subject of Elections by Plurality. On motion by Mr. BUTLER, the Convention resolved itself into

COMMITTEE OF THE WHOLE,

Mr. Hillard, of Boston, in the chair, and proceeded to consider the resolves on the subject of

Elections by Plurality and Majority. They were read, as follows:

1. Resolved, That it is expedient to provide in the Constitution that a majority of all the votes given shall be necessary to the election of a governor, lieutenant-governor, secretary, treasurer, auditor, and attorney-general, of the Commonwealth, until otherwise provided by law; but no such law providing that the governor, lieutenantgovernor, secretary, treasurer, auditor, attorneygeneral, and representatives to the general court, or either of them, shall be elected by plurality, instead of a majority of votes given in, shall take effect until one year after its passage; and, if at and the same shall have taken effect, such law any time after the enactment of any such law, shall be repealed, such repeal shall not become a law until one year after the passage of the repealing act; and in default of any such law, if at any election of either of the above-named officers, except the representatives to the general court, no person shall have a majority of the votes given, the House of Representatives shall, by a majority of viva voce votes, elect two out of three persons who had the highest, if so many shall have been