them often an unpleasant duty, where there is in the man himself independence enough to do so, to make any sacrifice in the discharge of that duty.

This tenure during good behaviour, I consider, Mr. Chairman, to be a question of very grave importance, so far as it has influence in securing the proper qualifications in those who present themselves as candidates for the office. If there is one subject which, more than another, is of deep and vital interest to the people, it is the judiciary of your Commonwealth. It is a department, as has been truly stated by a gentleman who preceded me in this debate, which comes home directly to the people; it is a department of which they have daily cognizance. The legislature of your state may be in session for a whole winter, and may pass a whole volume of laws, without, perhaps, so many as one hundred of your people knowing, or caring, any thing about what they contain, unless those laws may chance to operate directly on their own peculiar interests. Your executive may go through his term without the people feeling the effects of any of those acts, and without the great body of the people knowing even so much as what they are. But, sir, your judiciary is at all times before the eye of the people. Your people are continually participant in the exercise of the power of this department. They are brought, day after day, to act with it, either in the character of jurymen, parties, witnesses, or spectators. The matters upon which it is the duty of this department to pass, are matters of interest immediately within their knowledge. They are passing upon the rights of their fellow citizens; and upon the rights of property, within their own immediate neighborhood. It is then, Mr. Chairman, a department of infinite interest to the people; and, as has been also said, it is also the weak department of our government. It has indeed always been acknowledged to be the weak department in every republican government. It has no patronage to bestow-it has no presses at command. The very exercise of its duties, important and delicate as they are, instead of making it friends, is calculated to raise up enemies. What then do you want, Mr. Chairman, in the qualifications of men who are to fill the high places of that department. It is an office established for the protection of individual right-to maintain the public peace, and to redress the public wrongs. In such an office we require men of undoubted talents, of great legal acquirements—men of experience men of integrity-and men possessing, in an eminent degree, the confidence of the public.

Qualifications such as these are not to be found in many; and when you do meet with them, you find that they have been mainly obtained by the study and the labor of years. A voluminous code of laws belongs to a republican government. In a country where a people are attentive to their rights, and tenacious of their liberties there will be litigation. Questions spring up continually in the government of a free people, which are altogether new in their character; and in no country in the world are men more exposed to these questions, than we are under our republican government, connected as it is with, and dependent as it is on, the action of the federal government. If then men are to be procured who possess the requisite qualifications for these high judicial offices, where do you seek them? You must, of necessity, seek them from among the pro

men in the possession of a lucrative practice at the bar-and who are enjoying a remuneration much greater than that which the people are willing to allow for the services of their judiciary. What then are the inducements to such men to take this office? Not merely the honor of the place. I think few men would take a judgeship in the Commonwealth of Pennsylvania, or out of it, for the mere honor which is attached to the office. It may do very well to talk about this honor, but it will not extend beyond the first quarter. Men look for something more than honor. The situations certainly are honorable in themselves and dignified and, on that account alone, they would be desirable to men whose worldly means are so ample as to admit of their accepting them.

But what, Mr. Chairman, are the inducements to accept these offices; if that of honor alone should not be found sufficient? They are to be found in two considerations; the first of which is, the remuneration -and the second, the tenure of office. The remuneration ought probably to be extended-but you cannot, I believe, extend that far enough to supply the place of the tenure during good behaviour. You can not extend it so as to induce men who are qualified for the office, to take it for a term of years. What then would be the effect of this tenure for a term of years? A man who is in the enjoyment of the public confidence, who is in the possession of a large practice, as a professional man, would be unwilling to relinquish that practice, lucrative as it is, for a place which he was to hold only by the uncertain tenure of a term of years. That very situation, if he should accept it, would unfit him to return to the practice of the law. The very duties which belong to a judge are so different in their characters, from those which belong to the active life of a lawyer-that a member of the profession is rendered unfit to return to the active duties of the bar when he is so disposed, or in case necessity compelled him to do so. If then, Mr. Chairman, you are to have men who are thus qualified to administer the laws of the land, to decide on the rights of your citizens, and to maintain your constitutional government, then they say that you must hold out competent inducements to men who are qualified to take the place--and those inducements, in my estimation, are nothing less than the tenure during good behaviour-coupled with a proper responsibility in case of misbehaviour or malfeasance in office. I do not believe that any inducements which you can hold out, short of this, will be sufficient to secure to the state the services of such men, as ought alone to occupy these high judicial places in your Commonwealth.

I have thus endeavoured, Mr. Chairman, to present to the committee the reasons which influence me in the belief that the tenure of office during good behaviour, is essential to the independence of the judicial department of our government.

I shall beg leave, in the next place, to turn the attention of the committee for a short time, to the experience which we have had in relation to that department, and in relation to that tenure. I was very forcibly struck, Mr. Chairman, by a part of the advice which was given by the father of his country, in his Farewell Address to the people of the United States, when he was withdrawing from power and place, as we heard it read from that chair, on the 4th July last. I allude to that part

TON.

no eulogy—it is enough to know that the advice came from WashingThat great man who had done so much to obtain our independence, and to give stability to our republican form of government, and our institutions, gave this emphatic advice-which is now deserving of our notice and regard; "You ought, says he, to resist with care the spirit of innovation upon the principles of the government, however specious the pretext."

"Time and habit are at least as necessary to fix the true character of governments, as of other institutions. Experience is the surest standard by which to test the real tendencies of the existing Constitution of the country. Facility in change, upon the credit of mere hypothesis and opinions, exposes to perpetual change, from the endless variety of hypothesis and opinion."

This, resumed Mr. C. was the admonition of a patriot and a sage. The proposition which we now have before us, is a proposition to change the existing Constitution of the government, which we have had as our rule and guide for a period of nearly fifty years-and, in relation to this very important branch, to introduce an entire change of

tenure.

Notwithstanding what we have heard about the tyranny of this government, of its opressions, of the abuses which exist in the various departments, I, for one, am free to express my belief that, as a people, we have prospered under it-and that the Commonwealth of Pennsylvania, since the establishment of the Constitution of 1790, has flourished to an extent which has not been surpassed by any of the free states of this Union. There may, indeed, Mr. Chairman, be some cases of individual wrong; there may be some cases of official abuse. I do not doub, that such may be found. But where, I would ask, in what age of the world, in what government on earth, are they not to be found? Where, among the institutions of man, will you search for an exemption from these abuses of office and of power? What has been our own experience in the Commonwealth of Pennsylvania, in relation to this very department? We have had before us, sir, the history of the movements of the people of Pennsylvania, from the time of the first charter to the present, in reference to this department. The tenure of good behaviour was sought by the freemen of this State in the very first year of the establishment of the government. So far back as the year 1683-the year after the charter-at the instance of the freemen of this state, then a province, there was a concession made to them, on the part of the proprietor, of this very tenure of good behaviour for the judges. A difficulty arose in the administration of that government, and the charter was surrendered in the year 1700. In the year 1706, only a brief interval of six years, we find the same freemen in their conference, again claiming this right. In the year 1759, we have them actually providing for the tenure of good behaviour, by a legislative enactment. That law having been repealed by the king in counsel, we have again an expression of opinion on the part of the committee of the legislature, of which Benjamin Franklin was the organ-complaining that they had not got what had been promised to them-namely, the tenure during good behaviour, for their judges. I will again trouble the committee, by reading

lucid argoment I listened with much gratification, and to whose research I am indebted for much useful information, with which that gentleman furnished us, in relation to the history of Pennsylvania.

The value of that information, must satisfy all who heard it, how desirable it would be that there should be published a portion of its documentary history, which is now to be found only in MSS. in the office of the secretary of state. Every thing connected with it is dear to us now, and will be dear to those who shall come after us. I read, Mr. Chairman, from the second volume of Franklin's works, at page third. It is an extract from the report of the committee of the assembly of the Commonwealth of Pennsylvania-of the date of February 22, 1757— and is from the pen of Thomas Franklin :

"Fifthly, by virtue of the said royal charter, the proprietaries are invested with a power of doing every thing, which with a complete establishment of justice, unto courts and tribunals, forms of judicature, and manner of proceedings, do belong :" "It was certainly the import and design of this grant, that the courts of judicature should be formed, and the judges and officers thereof hold their commissions, in a manner not repugnant, but agreeable to the laws and customs of England; that thereby they might remain free from the influence of persons in power, the rights of the people might be preserved, and their properties effectually secured. That by the guarantee, William Penn, (understanding the said grant in this light,) did. by his original frame of government, covenant and grant with the people, that the judges and other officers should hold their commissions during their "good behaviour, and no longer."

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Notwithstanding which, the Governor of this province have, for many years past, granted all the commissions to the judges of the king's bench, or supreme court of this province, and to the judges of the court of common pleas of the several counties, to be held during their will and pleasure; by means whereof the said judges being subject to the influence and directions of the proprietaries, and their Governors, their favorites and creatures, the laws may not be duly administered or executed, but often wrested from their true sense, to some particular purpose; the foundation of justice may be liable to be destroyed; and the lives, laws, liberties, privileges, and properties of the people thereby rendered precarious and altogether insecure; to the great disgrace of our laws and the inconceivable injury of his majesty's subjects."

Here then, continued Mr. C. we find the legislature of Pennsylvania, in the year 1757, complaining, through their committee of grievances. And what were those grievances? They were that they had not got what William Penn promised to them-namely, that the commissions of the judges should be during good behaviour, but that they were appointed during the will and pleasure of the Governor. And, at that day, this tenure was considered as a matter of interest to the people, and as requisite for the security of the people, and for the independence of the judiciary.

Mr. C. here gave way to Mr. FORWARD, on whose motion, the committee rose, reported progress, and obtained leave to sit again; and,

THURSDAY AFTERNOON, NOVEMBER 2, 1837.

FITFH ARTICLE.

The Convention again resolved itself into a committee of the whole, Mr. M'SHERRY in the chair, on the report of the committee to whom was referred the fifth article of the Constitution.

The question being on the amendment of Mr. WOODWARD, as amended on motion of Mr. DICKEY.

Mr. CHAMBERS resumed. Mr. Chairman, when the committee rose this morning, I was exhibiting to the committee the evidence of the acts of the freemen of the province of Pennsylvania, in complaining of the proprietary who had withheld from them the rights which had been granted, and that the right which they complained of had been withheld from them, was the tenure of good behaviour to their judges-complaints commencing with the year 1683, the year after the charter, and extending to the year 1757 and 1759; the act of 1759 being no other than an act claiming this tenure, by legislative provision, as a right, and proposing to give effect to it as such. The last act of the assembly of Pennsylvania, under the proprietary government, was repealed, as I have before stated, by the king in council; and we have no record after that period. Why have we not? Because it was a period of trouble between the colony and the mother country, when no concessions were allowed, and when not even conferences were admitted on the subject. The next step which was taken on the part of the colonies, by whom complaints had again and again been made in vain, was the declaration of independence. At the period then of 1776, we come down to what has been called the revolutionary government of Pennsylvania, which was established by the Convention in the year 1776. That Constitution has been extolled by gentlemen who advocate the proposed change of the existing tenure under the Constitution of 1790. It is a Constitution which has served its time --a Constitution, which no doubt, in the view of the men who framed it, was temporary and provisional. It was framed under the exigency of war, with an enemy in the country. It was formed at a time when it was necessary to build up a Constitution which might serve for a season. The people, only a week or two before, by virtue of the declaration of independence, had separated from the mother country. Having united with their fellow citizens of the other colonies, in declaring themselves independent, it was necessary that a government of some kind or other, should at once be established. The government then was formed at that time with reference to a state of war. It was-and it must be considered as a government clearly provisional and temporary; for it was not known, and it could not be known, where the revolution would land us, or what would be our relations to the other states of the Union. We had then a bond of union-articles of confederation which were no more than a rope of sand. In eulogy of this Constitution, it has been said, that it