Dukes county and Nantucket, and of course but thirty-nine members were chosen to the Senate and but twelve districts represented in that body; and these were the three first years after the organization of the government. Yet the Senate and House of Representatives, in which were many who had been members of the convention for framing the constitution, and who must therefore have known its meaning and felt a strong interest in its faithful and successful administration, simply voted that it was inexpedient to fill the vacancy, and did not hesitate to assume legislative authority. According to this new doctrine, however, neither they nor any of their successors were duly qualified to exercise it; we have lived without government from that day to this; our whole statute book is a dead letter, and our judges and sheriffs, under colour of unconstitutional laws, have been all along committing false imprisonment, and robbery, and murder.

But though the actual deficiency in the Senate does not disorganize the government, it certainly renders it incumbent on the legislature to divide the Commonwealth, as it now exists, into new districts in conformity with the constitution. This instrument requires that forty persons be elected, that the number chosen in the several districts be in proportion to the public taxes levied in them, and that no district be so large as to entitle it to choose more than six. This last clause is supposed by some to be not merely a limitation of the number, which any one district may send, and a qualification of the preceding provisions so far as they would interfere with it, but a regulation of the size of the districts, and is relied upon to prove that a convention is necessary; for the town of Boston alone, it is said, is already so large as to be entitled to choose more than six senators, if the number assigned to each district be in proportion to its taxes. The obvious mode of surmounting this difficulty would be to divide the town into two or more districts, which, however inconvenient it might be, would put an end to this argument for the necessity of a convention. We are told, however, that the mode of voting prescribed by the constitution is such that a town cannot constitutionally be divided. Our answer is, that admitting the assertion to be correct, it creates no necessity for changing the frame of government. The argument amounts to this; the constitution requires impossibilities, and since impossibilities cannot be done, therefore it

must be altered. But it is easy to retort such reasoning ; since impossibilities cannot be done, therefore they cannot be required. It is a solecism in terms to declare a town indivisible and at the same time direct that it be diminished; and the instrument, which does so contradict itself, is to the extent of that contradiction nugatory, though in every other respect still binding. When a constitution is carried into operation as far as it is consistent and practicable, it is faithfully and perfectly administered. The real difficulty seems to be that Boston is too large or too wealthy. The course of nature, or rather the providence of the Almighty, has made it flourish. Is this a violation of the constitution; and if it be, whose hand has committed it? Had the state never been divided, and the town of Boston gone on increasing till it paid more than six fortieth parts of all the public taxes, the same objection would have arisen, yet will any one pretend that the prosperity of the capital would have subverted the government?

Probably the clause referred to was designed simply to be a paramount limitation of the number of senators, which any one district might send, and not to determine the size of the senatorial districts. Such an opinion is supported not only by the uniform rule that every instrument should be so construed as to render it consistent with itself and give effect to all its provisons, but by the manner in which this clause was introduced into the constitution. While the instrument was under discussion in the convention, a member of that body proposed that some number of senators should be fixed which no county or district might exceed, and was himself appointed a committee to prepare such a restriction. Under these instructions the present proviso was written and reported, and it was immediately accepted as a compliance with them.

If this construction be correct, every rule of the constitution may be strictly carried into effect by making the town of Boston one senatorial district for the choice of six senators, and dividing the rest of the state so as to apportion the senators among the other districts in proportion to the taxes paid in them. And even if it be deemed erroneous, if the object of the proviso was to settle the size of the districts, and if a town be indivisible, still the same mode is a compliance with the constitution as far as it is consistent and practicable, and of course as far as it is obligatory. The number of

senators assigned to each district has never been in exact proportion to its public taxes, nor was it possible to make it so; yet no one has complained that this circumstance rendered a new constitution necessary. The act of the last session itself supposes that calling a convention is not a measure of absolute necessity; for it would be mere mockery to submit to the people a question which admitted but one answer. Had a majority of votes been against a convention, will it be pretended that the present frame of government could not have been carried into operation? and if it can be administered as it now exists, where is the necessity of changing it?

It is an imperfection in any instrument to contain contradictions, but not in every case a fatal one; nor is it always expedient to employ extraordinary means to remove it, unless it has a tendency to produce some practical mischief. Though a statute should contradict itself in terms; yet if the courts of justice in applying it construed it in such manner as to carry into effect the real intention of the legislature, it would not be necessary, nor perhaps wise, to repeal it.

Why then did the legislature undertake to submit this question to the people at all? Because its duty is to make all orders, laws and instructions, not repugnant to the constitution, which it deems conducive to the general welfare; and it is the right of the people, not repugnant to the constitution, to alter their frame of government whenever they think proper, and of course to decide at any time whether they will then alter it. Hence when the legislature judges it conducive to the welfare of the community, to submit this question to the people, it may and should do so, and facilitate as far as possible the expression and execution of the public will.

By the establishment of the state of Maine this Commonwealth is reduced to less than one seventh part of its ancient territory, and it is obviously a question worthy of consideration, by those who are competent to decide it, whether this great change of condition do not warrant some change in our frame of government, which may render it less expensive and unwieldy. Besides, the constitution is not now carried into operation according to its true meaning. It was originally designed that the Council and Senate should together consist of only forty members, and the mode established for supplying the places of those who should decline the first election was intended as an exception to the general

rule, and its object was to fill an occasional vacancy. But in practice the exception has taken place of the system, and for many years past forty-nine persons have been employed as counsellors and senators. If the Senate was wisely constituted at first, it can hardly be reasonable that it should now be so much larger, when the state itself is so much diminished. The quorum too is fixed at sixteen, the proper number while the whole body contained only thirty-one members, but not so now that it consists of forty. It is said to be inconsistent with sound principle for less than a majority of any legislative assembly to constitute a quorum; for then every quorum might organize itself separately, and thus two or more constitutional legislatures exist at the same time.

The other branch of the legislative body has also increased so much more than could have been anticipated, that from the towns contained within our present limits there may be chosen, there have actually been chosen, more than twice as many representatives as ever sat in any other legislature in the union. An enormous expense is thus incurred with no other effect, than to render the house a burden to itself, and to diminish in a surprising degree its diligence and its usefulness. How can we expect any thing like connexion or consistency in the laws when the House of Representatives may contain six quorums, and proceed to business every day in the week, yet no individual be twice present; when a bill may originate in one body, be discussed in another, and enacted by a third. The neglect of many towns to choose representatives has in general prevented the evils which must otherwise have arisen from their number. But this is evidently repugnant to the spirit of the constitution, and renders the representation grossly unequal.

For these and similar reasons many thought it expedient that a convention should be holden, many deemed it necessary, and there was good ground for the General Court to believe that the will of the people was in favour of the measure. If such were their will, it ought to be accomplished; if not, the peace and welfare of the community required that this fact should be known, so that no man hereafter might pretend, with the hope of being believed, that the government designed or desired to stifle the public voice. Should any one say that this amounts to a moral necessity, we shall not quarrel with the expression; we condemn it only when it is used as a sub

stitute for reason, an apology for acts admitted to be wrong in themselves, and a mere cover for the hollowness of a rotten

cause.

The General Court has been aptly compared to an agent, acting under special authority, and it has been asked what he ought to do if a case occurred, in which he was not empowered to act. It seems to us that he should do nothing, but refer the case to his principal, and inquire what he will have done. But suppose he has no express power to make the inquiry? This is no exercise of power, but a duty resulting from his situation as agent, and if it be his duty, surely he has a right to do it. So in government, when a question occurs, the decision of which involves the welfare of the people, and they have not delegated, but retain the power of deciding it, the legislature is bound to refer it to them as the only competent tribunal.

By the act, as first reported, it was provided that two thirds of the votes should be required to determine the question in the affirmative. In every society of equals a majority must of course decide all questions, where the society itself has not expressly adopted a rule requiring a larger number. This the people may do and have done, as in our own constitution, with regard to the question whether a convention should be holden in the year 1795; and some have contended that since the same reasons exist for the rule now as then, the people should and would have adopted it in the present case, had its occurrence been foreseen. This may be very true; but after all, the question recurs, have they in fact done it? if not, the legislature cannot do it for them. Let him, who thinks they have done it, lay his finger on the letter. We cannot find it.

The purpose for which a convention of delegates of the people is to be holden and which should be kept in view in all our speculations on the subject, is to revise and alter the constitution, not to make a new one; to remove doubts, prevent misconstructions, and correct abuses, not to polish and improve the style; to make it a better frame of government in practice, not a more ingenious, logical and connected treatise on the rights of man. We are to consider not what sort of a constitution should now be formed, but what provisions of that now existing may be usefully altered. However many excellencies our wise men might combine in a