
    CHARLESTOWN.
    It is the duty of selectmen, before proceeding to an election, to allow reasonable debate upon, and a fair discussion of, the question, to what extent the town will be represented, provided such debate and discussion are offered; — 'Otherwise the election will be void.
    A, decision of the presiding selectman, not dissented from by his brethren, at a meeting held for the choice of representatives, is the decision of the whole board.
   The election of Timothy Thompson, Jun., Philemon R. Russell, Peter Tufts, Thomas Harris, John H. Brown, and Richard Devens, members returned from the town of Charles-town, was controverted by Benjamin Swift and three hundred and fifty-five others, inhabitants of that town, for reasons which are fully stated in the following report of the committee on elections: — -

“ After an examination of many witnesses, adduced by the petitioners, and by the sitting members, and other evidence in the case, the committee find the following facts : that a meeting of the town of Charlestown was duly and legally warned, to be holden on the third day of May now last past, for the purpose of choosing one or more representatives to the present general court; that when the legal voters of the town, in the choice of representatives, were assembled for the purpose, the meeting was duly opened by reading the warrant for the same, and the chairman of the board of selectmen, Timothy Thompson, Jun., Escp, stated, officially, that the town was constitutionally entitled to send six representatives, and the number it would send would be the first question for consideration; that, immediately, a motion was regularly made and seconded, that the town should send two representatives, and immediately after, another motion was regularly made and seconded, that the town should send six representatives. The chairman then said, that it was his duty to put the question for the highest number first; and while he was proposing the question, Gen. Nathaniel Austin, a legal voter of said town in the choice of representatives, addressed the chairman, saying, before the question was taken, he wished to submit a few observations, and would detain the meeting but a short time; and then proceeded to offer reasons against the town’s being represented by six, and in favor of its being represented by two. He had not uttered more than two or three sentences, when he was interrupted by Mr. Timothy Thompson, Senior, who said he understood it to be against the constitution and the laws to have debate on questions of that nature, and asked emphatically, if it was not against the constitution and the laws to debate such questions, and appealed to the two lawyers on the board of selectmen, meaning Leonard M. Parker and Elias Phinney, Esqrs., if it were not so, neither of whom replied. The chairman instantly declared that it would be useless and improper to debate the question, and there could not be any debate; that he presumed, the voters came there with their minds made up to vote either for two or six. General Austin observed, he knew of no such law, and desisted from any further remarks on the subject, considering himself precluded by the decision of the chairman. Immediately after the observation of General Austin, that he knew no such law, the chairman put the question, directing those in favor of six to manifest it, and those in favor of two to manifest it, and declared the vote to be in favor of sending six representatives.

The committee further find, that not five minutes elapsed from the time Gen. Austin addressed the chairman, until the chairman put the question, and that no one of the selectmen dissented from the opinion expressed by the chairman against permitting debate, and that the voters were attentive to the observations of Gen. Austin, until he was interrupted by Mr. Thompson, Senior, and the declaration of the chairman, consequent thereon, against debate, when there was considerable clamor for the question.

The committee further find, that previous to the town-meeting consultation was had, and an arrangement made between some of the legal voters, for discussing the question of the number of representatives to be sent, and that they intended to offer their arguments in favor of sending two; and that Dr. Abraham R. Thompson, and Gamaliel Bradford, Esq., considering Gen. Austin ‘ to have been put down ’ by the decision of the chairman, and themselves, thereby, precluded from debate, did not attempt to offer any remarks on this subject.

When the chairman had, as aforesaid, declared the vote of the town to be in favor of sending six representatives, it was doubted, and a poll of the meeting demanded. Thereupon, the chairman directed those in favor of six to form on his right, and those in favor of two, to form on his left. The attempt to decide the question in this manner was unsuccessful; some supposing they were to take the right or left as they faced the chairman, and others supposing they were to be governed by the right or left of the chairman as he stood. It was then agreed upon, and directed by the selectmen, for the decision of the question, that those in favor of sending two should pass out of the town hall and be counted first, and then those in favor of six should pass out in like manner and be counted, and some of the selectmen were to be the tellers. This duty by a consentaneous arrangement was undertaken by Leonard M. Parker, Richard Devens, Peter Tufts, and Elias Phinney, of the board of selectmen. The number counted in favor of two was two hundred and nineteen, and the number agreed by three, to have been counted in favor of six, was two hundred and seven ; Mr. Parker said, the number he made in favor of six was two hundred and eight; but he was not satisfied with his ‘ count,’ as he declared to the chairman, because he had been interrupted, by two having been challenged, as having voted before, and after conversation on the subject of these challenges, he took the numbers, which his brethren of the board had arrived at, from them, and proceeded with his counting. His dissatisfaction was further increased, because there were some in the entry, desirous of an opportunity to come into the hall, pass out, and be counted. How these intended to vote was not known, nor their number. It also appeared, that some were in the hall who had not passed out, — the selectmen and two or three others. While Messrs. Parker and Phinney were conversing on the propriety of permitting those in the entry and others to come in and vote, there was great pressure for admission to the hall, and the constable, who had guard of the door, took clown his staff, and those without rushed in.

The numbers counted and the other circumstances were communicated to the chairman, and there were frequent and loud calls of the voters for a declaration of the result. The chairman answered, that, as there was no satisfactory result, there could be no declaration, and some other method must be resorted to, for a decision of the question. He then directed the voters in favor of six, to arrange themselves on one side of the hall, and those in favor of two, on the other, and remain until they 'were counted. Confusion again arose. Many went to the middle of the hall, many declared .the question had been, fairly decided, and called for a declaration of the result; they were answered, there was no result to be declared. In this situation of things, many of those in favor of sending two left the meeting, — some saying to those in favor of two, ‘ clear out! the question has been taken fairly, and we ought to have the result declared, and no other method ought to be resorted to.’ The chairman then put the question, to be deeided by hand vote, and there appeared, at this time, a large majority for six, and the voters were called upon for their ballots, of which there were two hundred and seventy-seven given for the sitting members, and twenty-six ballots for two other persons, and Timothy Thompson, Jr., Philemon R. Russell, Peter Tufts, Thomas Harris, John II. Brown, and Richard Devens, were declared to be chosen.

The committee are satisfied of the purity of intention of the chairman, in the decision he made against debate, and which was not dissented from by either of the other selectmen. But the committee are unanimously of opinion, that it was an error of judgment on the part of the chairman, to prevent debate on a question regularly before the town, and in which the corporate rights of the town were involved. It is further the unanimous opinion of the committee, that the declaration of the chairman against debate, as aforesaid, not having been, dissented from by either of the other selectmen, must be considered to have been the decision of the whole board.

And inasmuch as it hath been repeatedly decided by former houses of representatives, and by the judges of the supreme judicial court, that the right to send representatives to the general court is a corporate right, vested in the towns, and to be exercised by them at their discretion within the limits prescribed by the constitution, and it being evident, that this right cannot be fairly and freely exercised without reasonable debate, and fair discussion of the question, to what extent a town will choose to be represented, provided such debate and discussion be offered, and such debate having been refused by the chairman and selectmen in this case, as aforesaid, the committee are unanimously of opinion, that the supposed election of Timothy Thompson, Jr.,¡Philemon R, Russell, Peter Tufts, Thomas Harris, John H. Brown, and Richard Def-ens, as representatives of said town of Charlestown, was void¿ and that they are not entitled to seats in this house, and that the same be declared vacated.”

This report was agreed to, June 12th, by a vote of 128 to 53, and it was then

Ordered, that the committee on the pay roll be directed to make up the pay of the members returned from Charlestown, to that day inclusive. 
      
       40 J. H. 7.
     
      
       Same, 133, 152.
     
      
       40 J. H. 160.
     