ÆäÀÌÁö À̹ÌÁö
PDF
ePub

therefrom the word "and," before the word "having," where it occurs the last time.

Which was disagrded to.

And on the question,

Will the convention agree to the amendments made in the said article?

The yeas and nays were required by Mr. CURLL and Mr. CRAWFORD, and are follow, viz:

YEAS-Messrs. Agnew, Banks, Barclay, Barndollar, Barnitz, Bedford, Bell, Bonham, Brown, of Lancaster, Brown, of Northampton, Brown, of Philadelphia, Butler, Chambers, Clapp, Clark, of Dauphin, Clarke, of Indiana, Cleavinger, Cline, Cochran, Cox, Crain, Crawford, Crum, Cummin, Curll, Darrah, Dickerson, Dillinger, Donagan, Donnell, Doran, Dunlop, Fleming, Foulkrod, Fry, Fuller, Gamble, Gearhart, Gilmore, Grenell, Harris, Hastings, Hayhurst, Henderson, of Dauphin, Hiester, High, Hopkinson, Hyde, Ingersoll, Keim, Kennedy, Konigmacher, Krebs, Long, Lyons, Magee, Mann, M'Cahen, M'Dowell, M'Sherry, Merrill, Merkel, Miller, Myers, Nevin, Overfield, Payne, Porter, of Lancaster, Purviance, Read, Ritter, Rogers, Russell, Scheetz, Sellers, Shellito, Smith, of Columbia, Smyth, of Centre, Snively, Sterigere, Stickel, Sturdevant, Taggart, Todd, Weaver, Woodward, Young-87.

NAYS-Messrs. Baldwin, Carey, Chandler, of Philadelphia, Chauncey, Clarke, of Beaver, Coates, Cope, Cunningham, Darlington, Denny, Dickey, Earle, Farrelly, Forward, Henderson, of Allegheny, Maclay, Meredith, Montgomery, Pennypacker, Reigart, Royer, Saeger, Scott, Serrill, Thomas, Weidman, Sergeant, President—27. So the amendments were agreed to.

A motion was made by Mr. FRY,
That the convention now adjourn.

Which was agreed to.

And the convention adjourned until half past nine o'clock to-morrow morning.

FRIDAY, FEBRUARY 16, 1838.

FIFTH ARTICLE.

The amendments made to the fifth article were taken up on third reading. The second section having been read a third time, as follows, viz :

2

SECTION 2. The judges of the supreme court, of the several courts of common pleas, and of such other courts of record as are or shall be established by law, shall be nominated by the governor, and by and with the consent of the senate appointed and commissioned by him. The judges of the supreme court shall hold their offices for the term of fifteen years, if they shall so long behave themselves well. The president judges of the several courts of common pleas, and of such other courts

of record as are or shall be established by law, and all other judges required to be learned in the law, shall hold their offices for the term of ten years, if they shall so long behave themselves well. The associate judges of the courts of common pleas shall hold their offices for the term of five years, if they shall so long behave themselves well. But for any reasonable cause, which shall not be sufficient ground of impeachment, the governor may remove any of them on the address of two-thirds of each branch of the legislature. The judges of the supreme court, and the presidents of the several courts of common pleas, shall at stated times receive for their services an adequate compensation to be fixed by law, which shall not be diminished during their continuance in office; but they shall receive no fees or perquisites of office, nor hold any other office of profit under this commonwealth.

Mr. STERIGERE, of Montgomery, said there was a defect in this section. Any judge commissioned for a period of years, as the section now stands, may, when the political hemisphere suits, and the governor and senate are friendly, resign his office before the expiration of his commission, and be re-appointed for a new term, and may thus hold his office longer than the provision of the constitution intended he should. Or, it may thus lead to the transfer of offices. He would move to amend the section by unanimous consent.

Objections being made, the motion to amend was out of order.

Mr. STERIGERE then moved that the convention resolve itself into a committee of the whole, for the purpose of amending the second section by adding to the end thereof the words following, viz:-" But no person appointed to any of said offices shall be re-appointed to the same office, or appointed to any other judicial office of the same grade, during the period for which he was previously appointed and commissioned.

Mr. WOODWARD, of Luzerne, expressed his hope that the motion to re-commit would prevail, and that the section would be amended so as to carry out the principle which had been laid down by the convention. Otherwise, disgraceful scenes may occur. He had thought to make a provision in the schedule to remedy the defect, but found that he could not do it with propriety. Suppose that the term of a jndge expires in March, and the governor goes out of office in the preceding Jauuary. A new governor would make such appointment as would suit the people. But the judge might go to the previous governor, and give in his resignation three months before the expiration of his time, and be re-appointed. He hoped the subject would be considered.

Mr. DICKEY, of Beaver, could see no reason for the recommitment. He wondered that his friends from Montgomery and Luzerne had not thought of this thing before. The motion is, in effect, to restrict the cxecutive in the exercise of the appointing power. The executive and the senate are not to be allowed to appoint at their discretion. Appointments must be made to suit particular individuals. Suppose a case exactly the reverse of that stated by the gentleman. Suppose a new governor should appoint an improper person, and remove a proper one, In either case he would impose no restriction and if a judge should resign before the expiration of his term, he would be willing to leave it to the governor and senate to re-appoint him, if they should think proper to do so

:

Mr. DUNLOP, of Franklin, expressed his hope that the friends of the independence of the judiciary would agree to this proposition. The offices were not made for the individuals, but for the public; and if we desire that the judges shall be free from extraneous influence, we should refuse to re-appoint them. He hoped, therefore, that every friend of an independent judiciary would vote for this proposition. He would then feel reconciled to this amendment to which he was himself opposed. He cared not about the tenure, so that the judge was free from any extraneous influence. If a judge were to hold office for the tenure of a single year, he would be as independent as we could desire so long as he did not look to a re appointment, but so long as he should be bowing to power for a re-appointment there would be no independent judiciary. But when a judge could know no object but a fair administration of justice, it is all the independence we should require,-not an independence of the people, but a freedom from all those influences which could have the effect of operating on his decisions. We may then well say we have an independent judiciary. He was astonished at the remarks of the gentleman from Luzerne, that the object was to limit the tenure, and not that judges should be turned out. We had always feared lest a judge might trim his sails to catch the political breeze, and be more assiduous in seeking popularity than in the infusion of equity and justice into his decisions. We have a sufficient number of persons to fill the offices if the judges vacate. We have abundance of lawyers of learning. Let it be understood that judges are not to be re-appointed, and there will be no longer any inducement to swerve from justice.

Mr. WOODWARD said the gentleman from Franklin had misunderstood him entirely, when he supposed that he (Mr. W.) would prevent the reappointment of a good judge, by the introduction of a constitutional provision. This he would not wish, but he would desire that a judge should not be re-appointed to the same, or any other office of the same grade, while he was actually holding office. The provision did not contemplate a disqualification for re-appointment after the expiration of the term, or he would go against it.

Mr. FORWARD, of Allegheny, did not know if he exactly understood the object of the amendment, but he believed it was that no judge should be re-appointed during the term of his original tenure to the same office, or to any other office of the same grade. Now he looked on this as morally impossible. That a judge would take advantage of favorable circumstances and resign his office for the purpose of being re-appointed? He would not believe that any judge would so degrade himself and his office, or that any governor and senate would participate in such an act. We may imagine subtle contrivances to evade every law, but it was not likely that any such case as this could occur. He wished for a clause to provide against re-eligibility. Introduce a principle which would prevent the re-appointment of a judge, and his objection to the limited tenure would be, in a great degree, removed.

Mr. MERRILL, of Union, said the question was if any judge holding his office had a right to resign. It is proposed to exclude him from the right of re-appointment, if he does. He does not, therefore, return to private life with his rights as a citizen, but is shorn of some of these rights. He can not be re-eligible, because he has been in office for the ten

years previous, and has resigned. If gentlemen would agree to prohibit all re-appointments, it would be well enough. But, because a judge may have been in office ten years, and has resigned, to say that he shall not be re-appointed appeared, to him to be a little too hard.

Mr. DUNLOP, for the purpose of testing the sense of the convention, and preserving the independence of the judiciary, said he would move to strike out the following words at the end of the amendment, "during the period for which he was previously appointed and commissioned." The reformers in this convention were opposed to every thing like life offices. Some were willing to carry out the wishes of their constituents by limititing the judicial tenure to fifteen years, Then why would not these go with him to preserve the integrity of judges, by preventing their re-appointment, so that they may have no inducement to shape their decisions according to their own interests. He asked gentlemen to recall to memory some important decision. Governor Snyder's estate at Shinsbrook, hung on a decision of the supreme court. How would the judges decide on such a case if they were dependent on the will of the executive? How could citizens hope for justice if the judges were dependent on the will of the executive? They have none to rely on for justice but the Lord of Hosts, and the honesty of the judiciary. What hope of success would there be for the adverse party in a case in which the executive was concerned, before judges dependent on the will of that executive. Would it not be to put into the hands of the executive the power of oppression? He hoped gentlemen would be induced to agree to give this subject their sincere consideration, and that they would endeavor to prevent the judiciary from being made the tools of the executive. Did not every gentleman know that Governor Hiester had a cause before the supreme court, and that while the supreme court were in doubt as to their decision, he selected a judge to sit on the bench of that court, whose preconceived opinions in his favor he was aware of, and that by this means he obtained a decision propitious to his wishes?

He asked if the gentleman did not suppose that under such circumstances a judge would be left out by the casting vote of the supreme court? What prospect had a private individual under these circumstances? He had better go to the feet of the executive; he had better apply to that officer, and beg that his cause might be allowed to stand over till his influence should have ceased; or else, to have it submitted to some tribunal he could trust, and which both parties believed to be independent. There was not a member of this convention but what might find himself in a like position-dependent upon the will of the executive. He (Mr. Dunlop held this to be one of the most important questions that had come before this body-a question, indeed, which involved the life and liberty and property of an individual. All these were in danger. We all know what judges are made of. They are like ourselves-influenced and operated upon by their feelings and wishes and interests. Was it possible, then, he would inquire, that an obscure individual in this commonwealth could have any thing like fairness and impartiality dealt out to him, when he had for his opponent, as plaintiff, a man of some consideration, and possessed of powerful influence? He might not have the governor himself, as plaintiff, but his friend by consanguinity, or by party. Every body knew that when a man's mind was balanced-when

it was difficult for him to decide a question-when, after a laborious argument and examination of the subject, a judge found great difficulty in forming a judgment, although a grain of sand might be sufficient to determine the case either way-when, too, a judge might be looking to a re-appointment, his character, reputation and family being at stake, was it not natural to suppose that when the judge knew the governor himself had an interest in the case, that he might be swayed by the fear or favor of the executive? If any one thought otherwise, then he did not understand human nature. To expect firmness under such circumstances, was not viewing man in his true character as he is. It was throwing away the light of history, and shutting our eyes against the truth and the frailties of humanity.

He implored gentlemen to look more attentively to their biographies and other works from which they might learn the real character of men, or else, to lay them aside, and give to this important subject the attention it deserved. The day was fast approaching when those who smiled now on the ruin of their country would bitterly feel the effects of their folly. And this attempt of theirs to overturn the independence of the judiciary would be turned on themselves. He would have gentlemen to bear in mind that his motion did not conflict with the principles which attached to the proposed amendment. He insisted that the effect of reducing the judicial tenure would be to throw more power into the hands of the executive than he now possessed. The very object which some gentlemen had in view-that was to abridge the power and patronage of the governor, would be defeated. Indeed, they were about to bestow upon him more power and influence than he already had. There was not a district of the commonwealth of Pennsylvania on which it would not be brought to bear. He (Mr. D.) would ask every gentleman to consider what would be the condition of his own judicial district. Supposing a judge to be appointed for ten years, and after having served six or seven years of that term, another governor is elected, and new appointments are to be made, so that no judge would be independent of executive influence under such circumstances. A judge would look to the party in power during the preceding years, to the party likely to carry the next gubernatorial election.

Now, he (Mr. Dunlop) would ask whether any man desired to have his life, his liberty, or his property depend upon a judge whose tenure of office rested with the executive, for he might turn him out of office, and thus would his family be deprived of support, and thrown on the cold, unfeeling charity of the world, at an age too, when, perhaps, they would be unable to earn a living. He freely confessed that he would rather that the judicial tenure should be dependent upon the popular will than on the executive. Mr. D. then moved to strike out of the amendment all after the word "grade," being the words "during the period for which he was appointed and commissioned."

Mr. PORTER, of Northampton, thought the gentleman from Franklin, was in error with respect to what he had said concerning Governor Hies

ter.

He (Mr. P.) believed that Governor Hiester did not appoint any judge of the supreme court. He was not a friend nor a supporter of his; but he wished to corret the error into which the delegate had fallen.

Mr. REIGART, of Lancaster, had always thought that the gentleman

« ÀÌÀü°è¼Ó »