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ried out precisely in the same way as any other great principle which we have established.
Are we to be to told, it is true you have laid down a great principle, but you have screened men from the execution and the operation of that principle ? Are we to be told that when we limit the judicial tenure, we limit it only in reference to certain subordinate magistrates-say, the president judges and the associate judges—but that when we come to touch the judges of the supreme court, our sympathies are to be appealed to in their behalf, and that they are to claim especial mercy at the hands of this convention. I deny the position; and it is a matter of some sur. prise how those gentlemen in this body who are in favor of the limitation of the judicial tenure, and who voted in favor of that principle, can satisfy their own minds when, upon the very next day, they vote not to carry that principle into operation. . . .
Let us look at this matter. It is said that the judges of the supreme court have peculiar claims on the people of the commonwealth-that they are aged--that they are far advanced in life that they have served their country faithfully in their jodicial capacity, and that therefore they ought to be protected. Now, I ask those gentlemen who use such arguments (I speak of the friends of reform in this body,) whether they are willing to extend the same mercy to the magistrates, the justices of the peace, the president judges of the courts of common pleas and tlie associ. ate judges ? Are they willing to do so ? Because if they are not, there is an inconsistency in the whole matter, as a matter of principle, which I am not able to reconcile. Are there no sympathies for those officers of Pennsylvania who, as the gentleman from Chester (Mr. Bell) has said, have a vested right in their offices.
Mr. Bell rose to explain. He had never said that the judges of Pennsylvania had a vested right in their offices. Mr. M’DOWELL resumed.
I am perfectly satisfied now that I was mistaken in the term I made use of. The term was plighted faith—not vested rights. I do not know exactly what the difference is between the plighted faith of the commonwealth and a contract such as the gentleman spoke of, and a vested right in the contract. If faith is plighted, I suppose the right of the party is vested.
But how does this mattter stand ? If there is faith plighted in reference to the judges of the supreme court, there is also faith plighted to every judicial magistrate in the commonwealth. There is the faith plighted, and of course, there must be the broken vow in regard to every justice of the peace. Am I to be told that the justices of the peace are small men that the president judges are not so great as the judges of the supreme court, that the associate judges are common men, and that, therefore, in relation to them, this plighted faith which is spoken of, amounts to nothing at all? Let us examine this question of faith, and let us see what there is in it.
In the first place, then, let me ask, did the men who accepted these offices, accept them upon the condition that they should never be changed, or did they accept them under the constitution? If they look them under the constitution, then I will ask the gentleman from Chesser (Mr. Bell) to turn to that part of it which holds the following language:
“ That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness. For the advancement of these ends, they have, at all times, an vnalienable and indefeasible right to alter, reform, or abolish their government, in such manner as they may think proper.”
Now, I should suppose that the venerable judges took their positions under the constitution. They were not ignorant that the people had the power to change the constitution, and they knew, therefore, that the tenure of their offices was limited by the will of the people. That very will is about to be visited upon these judges, and yet our sympathies are invoked in such a manner as to prevent its execution. There is no faith, there is no vested right about the matter. There is no injury, there is no wrong about it. If the people choose to amend their constitution as they have done here, if they choose to settle a great principle, no human being has a right to gainsay or thwart their design. If it is the will of the people, it must be submitted to. The principle is settled, and the operation of it cannot be made accountable to any man.
It seems to me that there is a great mistake here. Gentlemen on this floor who have so much regard for the judges, argue upon the assumption, that when this convention fix a period at which the duties of each judge are to terminate, that judge, as a matter of course, is to go out of office that he cannot be re-appointed. I believe that if a man is a good judge he will be re-appointed ; and those who do not Jeserve to be reappointed probably will not be. But the whole argument, from first to last, is based upon the supposition, that whenever the judicial tenure expires, no man is to be re-appointed. That there is a misapprehension in this respect, I think no man can doubt.
The gentleman from Northampton, (Mr. Porter) has spoken of the chief justice of the commonwealth, and of other men, and has spoken eloquently of their services, as if he believed that there was no possibility of the re-appointment of these men after their term of service has once expired. I do not believe any thing of the kind. I believe that if their judicial tenure expired this day, or next month, they would be re-appointed.
As regards the judges of the supreme court, I will say that there is not a man in this house, however much he may worship them, who entertains a better or more exalted opinion of them than myself.
Mr. Porter begged to correct the gentleman from Bucks, (Mr. M'Dowell.) He (Mr. P.) worshipped nothing in the shape of huma. nity.
Mr. M’DOWELL resumed.
Probably not; but whether it be worship or not, I know that the gentleman from Northampton serves a friend with fully as much zeal as he opposes an enemy; and I know that when he serves a friend, he does so with as warm a heart as any man in this commonwealth. When the feelings of such a man are brought out in a matter of friendship, they come very near to worship, if not quite.
I say, however, that the argument is not a proper one—that it is not right to appeal to our sympathies and to say that those judges must be turned out of office.
Are we to exercise the power of impeachment? Are we to be the judges and to say, that these men 'shall be turned out at a particular day? No, sir ; we are not about to say any such thing; and it would be as absurd for us to do that as to attempt to re-appoint any judge. I deny the power of this convention to re-appoint. What have we done by the vote of Saturday? We undertook to resolve ourselves into the appointing power, and to re-appoint the judges of the supreme court for the term of fifteen years. And it has been done mainly on the ground of sympa. thy. Look at the course of the gentleman froin Northampton. See the beautiful consistency with which he acts. His sympathies have induced him to ask us to be an appointing power in relation to the judges of the supreme court, but in relation to none other. And how is this justified ? We have been told that it is necessary to place the judges of the supreme court beyond the operation of this principle, because it is necessary that their decisions should be permanent and consistent. Let us examine this argument.
In the first place, how is the consistency of the decisions of the supreme bench to be destroyed? There are at present five judges ; and say that one of them, for instance, is to go out in three years. That leaves a majority of the present judges still on the bench. Well. Another is to go out in three years more. That still would leave a majority of the present judges for the purpose of initiating, if you choose, the new members into the habits and customs of the old.
At the end of three years more, another is to go out. So that no inconsistency in the decisions can possibly arise. I ask gentlemen whether, when they vote to graduate the termination of the judicial tenure, they do not vote with a view to keep the decisions of the court consistent with the present; and not with a view to introduce new decisions? But, independent of this, I am at a loss to understand these new systems of decision. My experience as a lawyer has taught me to believe, that the judges of the supreme court decide abstract questions of law, and I do not understand this idea about change in the principles of law. The laws remain in the commonwealth as they have remained. The judges construe the acts of assembly, and I do not see what change is to come about even if a sudden change were made in regard to the incumbents. These gentlemen who contend that it is right to keep the present judges on the bench of the supreme court do so upon two grounds. First, upon the ground of sympathy, with which we have nothing to do; and next, on the ground that the decisions should be permanent and without changé. And yet the gentleman from Northampton introduces his amendment, which says, that this convention shall re-appoint all the judges and let all their commissions terminate at one moment. Does the gentleman care nothing about the consistency of the decisions beyond fifteen years ? Give us consistency for fifteen years, says the gentleman, and give us what you please afler that time. He may indeed tell us, that there is no reasonable probability that all the judges wil live so as to go out of office at the same time ; but he has no right to assume any such position. I call upou him to prove it. I say they won't die.
Mr. Porter said, he would refer the gentleman for proof to the life insurance offices.
VOL. XIII. A
Mr. M'DOWELL resumed.
Well, if they get insured probably they may die. I say that the judges will not die in fifteen years, not one of them-and I ask him to prove it. I say they will continue there until the expiration of fifteen years, and I will prove it, because they are alive now. If they are all bad judges they will die. If they are good judges, they will never die. If any judges die within fifteen years, it will be the bad, and not the good and therefore this is a ruinous measure throughout.
I regret the course I have been obliged to take on this question. I have as much true sympathy and as much regard for the rights of the jugdes as any man in or out of this convention : but I can never consent that the judges of the supreme court shall be re-appointed by this body unless, at the same time, we consent to re-appoint all the judges and magistrates of the commonwealth. I know of no principle that is to govern the one case, which ought not also to govern the other. I have exercised my mind on this subject. I have been desirous to save the judges of the supreme court, if gentlemen call it saving ; but I could not do it without being guilty of what I deem to be an act of serious inconsistency; be· cause I see neither principle nor reason in exempting the judges of the
supreme court from the operation of this new provision. They are, it is true, great and learned men ; but I suppese it will not be asserted that they are more so than many of the judges of the court of common pleas. There are as sound and as great jurists in the court of conimon pleas as on the bench of the supreme court, and I can not see the force of the only reason which has been brought forward-except that of sympa. thy—that there should be no revolution in the administration of justice. But I do fear that difficulty may arise, if, as the amendment of the gentleman from Northampton, purports, that the tenure of all the judges is to terminate at the same time; and I, for one, will not give power to the governor and senate to re-appoint all at the same time.
I regret the course I have felt obliged take the more, because some of my friends have voted against me. I have voted to limit the term of the judicial ienure, and I am determined, so far as my course is concerned, to carry out this principle in the most cautious and judicious manner that we can. I am free to say that, to be entirely consistent with ourselves, we ought all to have voted for the amendment of the gentleman from Beaver, (Mr. Dickey) as being the most consistent proposition which has been offered. At the same time, I did not feel myself exactly at liberty to go for it, because it throws upon one governor and one senate the whole appointing pown But so far as regards the principle, I say it is the only consistent proposition which has been offered.
As to the amendment of the gentleman from Northampton, I would rather have it carried that the judicial tenure of the present judges should not be touched at all. I object to resolving ourselves into an appointing 'power, and to say we re-appoint these judges and they shall continue in office for fifteen years.
For these reasons, I must vote in favor of the motion to re-consider.
MONDAY AFTERNOON, FEBRUARY 19, 1838.
There being no quorum of members in attendance, a call of the house was ordered, which was proceeded in for some time, when the further proceedings were dispensed with, a quorum having appeared.
The question recurring on the motion of Mr. EARLE, to re-consider the vote given on Saturday, on agreeing to the amendment to the amendment to the sixth section of the report of the committee appointed to prepare and report a schedule to the amended constitution, in the following words, viz:
so 'The judges of the supreme court who shall be in commission at the time of the adoption of the amendments to this constitution, shall hold their offices for the term of fifteen years thereafter, if so long they shall behave themselves well.”
Mr. Porter, of Northampton, rose and said that he would not detain the convention long with what he was about to say. By the vote which had been taken on Saturday last on his amendment, he should suppose that the convention regarded it as improper lo turn out all the judicial officers in February, 1839, as was proposed by the amendment of the delegete from Beaver, (Mr. Dickey.) He considered that an important principle had been established by this decision of the body, viz : that by the new constitution, it would be unfair and unjust to deprive men of the offices they had held under the old. If this position had been estab. lished, he would ask is gentlemen had not, consequently, put an end to the judicial tenure of the commonwealth ? If any thing could be said to have been settled by this convention, and by an almost unanimous vote, too, it was the principle, that by the adoption of a new constitution every man who held under the old was ipso facto turned out of office. He wished to know what tenure they have under the new constitution ? what tenure they are entitled to ? The convention had decided that they ought to be turned out. If principle was to govern in anything, this body had declared thai those men who are in office shall continue under the new constitution. What, he would ask, was the tenure ? Why, in regard to the judges of the supreine court, they are to hold their offices for fifteen years. He would call again-for he had already called in vain,--for the reason, if any there were, why the men at present in office should have the tenure they have now. The convention had decided that they shall held for a limited time-that they shall not be turned out. With regard to that symmetry, of which the gentleman from Fav. ette (Mr. Fuller) had spoken, we knew only of that which is fixed in the constitution. But, some gentlemen had said, if we adopt this tenure in regard to the supreme court, we should do so as respects the judges of the common pleas, the associate judges, and justices of the peace. Now, he begged to remind gentlemen that the supreme court is a creature of the constitution that cannot be changed. It is provided for, and grows out of that instrument.