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TUESDAY AFTERNOON, FEBRUARY 20, 1838.
There being no quorum present,
The yeas and nays were required by Mr. CLARKE, of Indiana, and Mr REIGART, and are as follow, viz:
YRAS—Messrs. Bigelow, Brown, of Northampton, Brown, of Philadelphia, Clark, of Dauphin, Clarke. of Indiana, Crain, Cummin, Curil, Darrah, Denny, Barle, Fleming, Foulkrod, Fry, Fuller, Gamble, Gilmore, Grenell, Henderson, of Dauphin, High, Houpt, Hyde, Ingersoll, Kennedy, Krelis, Lyons, M'Cahen, M’Dowell, Miller, Myers, Nevin, Payne, Read, Ritter. Rogers, Scheetz, Sellers, Shellito, Smith, of Columbia, Smyth, of Centre, Stickel, White, Woodward—13."
Nays-Messrs. Agnew, Banks, Barclay, Barndollar, Bedford, Biddle, Brown, of Lancaster, Chandler, of Chester, Chandler, of Philadelphia, Chuncey, Clarke, of Bear ver, Cline, Coates, Cochran, Cope, Crum. Darlingion, Dick"y, Dillinger, Doran, Gearhart, Harris, Hastings, Hayhurst, Hays, Hies:er, Maclay, M'Sherry, Merrill, Merkel, Montgomery, Overfield, Pennypacker, Porter, of Lancaster, Purviance, Reigart, Royer, Russe:1, Scott, Seltzer, Serrill, Sterigere, Taggart, Thomas, Weaver-45.
So the question was determined in the negative.
That the convention re-consider the vote of the 17th instant, on agreeing to the sixth section of the report of the committee appointed to prepare and report a schedule to the amended constitution.
The said motion being under consideration, .
He stated that he had no other motive but to place the residue of the judges, who also held their offices by the linsited tenure, on the same ground with the five judges of the supreme court. It was due to these judges that they should have a hearing. He desired a reconsideration, because he wished to have the question discussed, as a matter of decorum, of deliberation, in order that to all-to the judges, the commonwealth and to this convention, all justice should be done. He begged to say that justice had not been done, and that, in a similar case, the judges would themselves grant a re-hearing.
I will now (said Mr. I.) proceed to say a few words on the point of principle. There may be some apparent harshness in the application. The principle is plain and simple. There is a clause in the constitution, which, if not indefeasible, came down with English liberty. It is this :
“ 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 unalienable and indeseasible right, tu alter, reform or abolish their government, in such manner as they may think proper."
Here we are in this convention, assembled to conclude as to certain results. There are three parties in this house-I speak without reproach -I call no gentleinan's opinions in question. All the members of one party, hold all change in the present constitution to be deprecated, that if we desire hereafier to live in that security and comfort in which we have lived heretofore, we should leave the constitution untouched. The second of the parties are those who desire certain reforms. The third party consists of men who pursue a moderate course, differing, in some points, from those who are opposed to all reforms, and going against those who are in favor of all. Most valuable and benefi. cial reforms have been made, which cannot be undone except by the people-not by the convention, except by a unanimous voie. Nothing but the suffrage of the people can undo what has been done by the people. One of these parties has changed the tenure of the judicial office, contrary to my vote, and that of many others round me, establishing a new principle. Such a thing was never done in the world before. I believe that in no state has the tenure been reduced. We, I believe, are the first example of a body, that has, by force of its organic character, reduced the tenure of the judiciary to a terın of years. It has so happened in the course of our proceedings, that this change of tenure has been put into the constitution, by those who are the greatest sticklers for judicial independence. This is a fact on which we stand here.
With these simple premises, we are left with our duty to perform, and I protest, in the first place, against the argument of Judge Hopkinson. Benignity is the genius of our country. He who is not actuated by a spirit of kindness, is almost always visited by retributive justice. We ought to treat the three thousand justices of the peace with the greatest tenderness. We should do a disagreeable office with the utmost kindness.
For his own part, (Mr. I. went on to say) he did not know who was chief justice, who were president judges, or who were judges of districts ; he looked only to the priuciple as laid down in the schedule, and did not stop to inquire how it would operate. With that he had nothing to do. But such was the false sympathy of the gentleman who would throw a shield round the five judges of the supreme court. They are not to be touched. According to the elernal principles of moral justice, let all the judges be treated alike. What difference was there between the president judges and the others ? If there was any thing like plighted faith in reference to the supreme court, so there was also as to the associate judges, who had been spoken roughly of by the gentleman from Northampion, as wooden men. Had the gentleman forgotten that three of the judges of the supreme court at this inoment, were, in their day, presidents of courts ? Was there any could there be any distinction between these and the justices of the peace, three thousand of whom, had been swept at once, and not a single voice raised in their favor. He did not understand this kind of justice. He disclaimed it altogether. And further, and lastly, he would say in reference to a remark made by the gentleman from Union, (Mr. Merrill) that we should ask ourselves how this was about to act upon our party politics.
Mr. MERRILL. I hope the gentleman did not so understand me.
stripping themselves of power after power, and were now depriving thechselves of the last power.
Mr. MERRILL. I said I had long been doubtful of the sincerity of gentlemen, but I now believe them to be sincere, and that they are now raising up more and more enemies to the amendments.
Mr. INGERSOLL said, then he was right in his understanding of the gentleman. The point was dwelt on by the gentleman from Franklin in extenso.
Here vas a duty. What was it? A very disagreeable duty ; but, nevertheless, it must be done, unless we were to undo what we had already done. He wished to be informed, before he proceeded any further, what was the principle ? Every man who was sworn into the office of justice of the peace, or any other office, took the oath to maintain and support the constitution ; and if the people were not satisfied with him, they had a right to turn him out, whenever they thought proper. The doctrine of vested rights did not apply to these officers. Theỹ held their places only by the kindness and forbearance of the peoplenothing more. We had put an end to the offices of all the magistracy of Pennsylvania, if our acts should be ratified by the people, as he took it for granted they would be in October next, after which the fact would be made known to the legislature, and then proclained by the governor to the people, in accordance with the act of assembly.
Why, what would be the consequence? As stated by the gentleman from Allegheny, there would then not be a judge in the state. And he (Mr. Ingersoll) was not sure but that every justice was ipso facto, no longer a magistrate. That was the position in which we should be placed. Let genilemen contemplate it. What, he asked, was to be done? They must do something, he presumed, or chaos would come again. Something must be done to prevent a stoppage of the machinery of the government. We were not without an example on the subject.
The gentleman from the city, (Mr. Meredith) who had contrasted our proceedings with those of the wise men who framed our constitution, ought to have read more attentively the clause which he (Mr. I.) would now beg leave to read. It was the third clause of the schedule.
" That all officers in the appointment of the executive department, shall continue in the exercise of the duties of their respective offices, until the first day of September, 1791, unless their commnissions shall sooner cxpire by their own limitations, or the said offices become vacant by death or resignation, and no longer, unless re-appointed and commissioned by the governor. Except that the judges of the supreme court shall hold their offices for the terms in their commissions respeclively expressed."
Whal, he would inquire, were the commissions of the supreme judges under the constitution of 1776? Why, they held for seven years, but might be re-appointed at the end of ihal term. Now, it was to be presumed that when the constitution of '90 went into effect, a considerable portion of their terms must have expired, and which they aftewards served out, thus completing the period for which they were commissioned. Here, then, was a precedent of our own.
He would beg also to refer to the constitution of New York, Article 9, Section 1.
The commissions of all persons holding civil offices on the last day of December, one thousand eight hundred and twenty-two, shall expiro on that day ; but the officers then in commission may respectively continue to hold their said offices, until new appointments or elections shall take place under this constitution."
This is the revised constitution of New York of 1821, and in the amending of which constitution, the late Chancellor Keni, the present executive of the Union, and other distinguished men bore a conspicuous part.
I will now ask the attention of the convention to the language of the constitution of Virginia, as amended in 1830, and in which laborious duty Mr. Madison, Mr. Barbour, Mr. Monroe, and other eminent men participated.
The third section of the fifth article says:
“ The present judges of the supreme court of appeals, of the general court, and of the supreme courts of chancery, shall remain in office until the termination of the session of the first legislature elected under this constitution, and no longer.”
Thus, in the constituțion of Pennsylvania of 1790, there was a pro. vision that the judges of the supreme court shall continue to " bold their offices for the jerms in their commissions respectively expressed." Bube in the state of Virginia, by the constitution of 1829-30, they were to hold their commissions till the end of the next succeeding session of the legis lature. And, according to the constitution of the state of New York, they, together with the other officers, without distinction, were 10. bo removed from office.
In regard to the condition in which we now found ourselves, he would say that we could not go backcould not retreat. The work was done, but not by those who were called the reformers of the convention.
The gentleman from Philadelphia, (Mr. Meredith) who spoke in the morning, and called on us to do justice, seemed to have forgotten the somewhat unbecoming remarks which he made while at Harrisburg, in regard to the poor boy who stole a horse, and for which he was tried before Jadge Cooper. Neither did the gentleman appear to regard the awkward and unpleasant situation in which he (Mr. Ingersull) for one, and the gentleman from Luzerne (Mr. Woodward) for another, found. themselves. Here they were left with this tenure upon them, in spite of the fifty or sixty votes of those called “reformers," and compelled to seo. the amendment ordered 10 a third reading. And, what was the difficulty ? Why, the argument assumed, was, that there would be no government as all ! Could any gentleman, give him any sound reason why a principle should be adopted in reserence to one set of judges only, and not 10. an. other ? Why a different principle should be inserted in regard to the supreme court judges than 10 the nineteen judges of the common pleas? His ideas were precisely adverse to those of the delegate who had talked so much about justice. He (M. L.) could not see how a different princi. ple of justice could apply to the associate judges. The judges of the supreme court had been, highly extolled, and eulogiuma upon eulogiya passed upon ihem. He did not desire to detract from their merits, and abilities ; but he considered it his duty, in candor, 10. slate luis opinion
that there were many of our aldermen and justices of the peace who per. formed their duties with as much regularity, faithfulness and propriety, in every respect, as the chief justice or any of the other judges on the supreine bench. Here, then, were about fire thousand officers, who would suffer as much as the supreme judges, on account of the loss of their offices, yet they were to go out! If equal and exact justice were due to every man, why, in this instance, should there be such a departure from it?
What, he would ask, was to be done ? Either the motion of the gen. tleman from Beaver, (Mr. Dickey) must be reconsidered ; that was, all the judges ni ust either be compelled to vacate their offices, or be allowed to hold then-not the judges of the supreme court alone, according to the amendment of the gentleman from Northainpton, (Mr. Porter) but all the associate judges. All the judges should be put on the same footing. That was the only course that could be adopted, if they were governed by strict justice.
He had no hing further to say in regard to the proposition of the gentleman from Luzerne, (Mr. Woodward) except only io remark that as far as he did undersiand it, he did not like it. But, the fact was, there had been no time to make a modification. We had acted only in behalf of five judges, because they happened 10 constitute the supreme court excluding three thousand justices of the peace, and many hundreds of other officers of the law, if he mistook not, holding under the same tenure, and upon no other principle. Il appeared to him flagrantly unjust. He thought the vote should be reconsidered for that very reason, and he would give no other. The reason why he had voted for the sixih article was, because he could not vote for a different tenure, or for any thing else which went to make a distinction between the judges of the supreme court and other judges. He was for pulling hardship and sympaihy aside, and acting with forbearance and digniiy. But as was said by the gentleman from Luzerne, (Mr. Woodward) he would pursue an indepen. dent and statesmanlike course,
The question which presented itself for consideration was--should we dispose of all the judges al once? The objection 10 that was, it would raise up a host of formidable enemies to the ne:v constitution. Were they, he inquired, lo be all lelt in office? What would gentlemen recommend? Would they adopt some scale-some means by which the judges' tenures should be graduated fairly and satilactorily ? For himself, he conlessed that his inind was not exacıly made up on the subject.
He could not assent to the doctrine laid down by the gentleman from Allegheny,(Mr. Forward but he regarded what had fallen from the genteman from the city, (Mr. Meredith) as persecily round. He (Mr. I.) conceived that this convention had no right 10 arrogate iu themselves the power of appointment, but they could, if they thought proper, put an end to the services of the existing officers. What we had to do, was, to take care that the administration of the laws and of justice, should not be impeded or come to a stand still; but that they should go forward-be carried out by the new constitution. All that he desired, was the adoption of some rational principle, which would operate equally and fairly in regard to all the judges. Bui, with respect to the principle proposed to be adopted, he would only repeat what he had already said, that it was