WEDNESDAY AFTERNOON, JANUARY 24, 1838.

The convention resumed the second reading of the report of the committee to whom was referred the fifth article of the constitution, as reported by the committee of the whole.

The amendment to the secend section of the said report being again under consideration ;

Mr. BELL, of Chester, rose and said, that he would not trouble the convention with any remarks at this time, if the proposition which was now before the convention, had ever been considered, discussed or decided.

I was not present at Harrisburg, said Mr. B., during the discussion in committee of the whole on this important topic of the independence of the judiciary; and it was not until I had consulted the journal of this body that I found that a direct action on this proposition had been evaded by another proposition which was introduced by the gentleman from Beaver, (Mr. Dickey) and upon which, at last the previous question was called and sustained. Notwithstanding the momentous character of this question-its important results-the immediate effect which its decision must have, for good or for evil, upon the whole mass of the people of this commonwealth-still I would not obtrude myself on the notice of the convention, but that I think that some of the arguments that might be brought to bear upon the decision of this question have been omitted, and others of them not sufficiently pressed.

Before I proceed to the discussion, permit me to say that, standing here as a member of the democratic party,-proud to be so-always from my youth upwards supporting its men and measures-ranking myself here as a reformer-a rational reformer-because, from some sentiments which have been expressed here, I must draw the line of distinction, though I trust, not very broad or deep-and intending as I do, to vote in favor of the amendment of the gentleman from Philadelphia, (Mr. Meredith) I feel that it is done not only in justice to myself, but with reference to the constituents whom I represent-and who on this subject, I think, nay, I may speak with more confidence and say, (so far as I know,) have formed no opinion, I owe it, I say, to them, although at so late a period in the debate, to express the opinions I have entertained from the first agitation of this question in the state of Pennsylvania. This I will do with as much brevity as possible; at all events, I will contrive to keep within the hour prescribed by the rule.

I have said in reference to my constituents, or at least, in reference to a large portion of them, that there has been no expression of opinion in regard to the tenure of the judicial office; and when I recur to the limited knowledge which I possess of the sentiments of the people in relation to this convention, and to the causes which brought us here together; to the amendments which are most desired by the people, I am of opinion that any proposed change in the tenure of the judicial office had nothing to do

with the call of this convention. For what purpose then were we called together? why, the only subject on which there has been no dissenting voice, in which the speaker and the listener have been unanimous, has been the subject of the reduction of executive patronage-that which has filled the state of Pennsylvania with corruption and moral intrigue from one end to the other, until the people were led to believe that the introduction of this vast engine of power would finally lead to their destruction. It was this, probably I should not say alone, but it is this mainly, which led to our assembling here and not to any question as to a change of the judicial tenure. Since the call of this convention has been sanctioned by the people, there has been, and I speak with sincere contrition, as I always do when I speak of the errors of my own party, upwright and pure, as I believe it to be, and having in view, as its leading object, the good of the whole people, I say there has been an outcry encouraged, if it did originate in the city and county of Philadelphia, against the judicial department of our government. No man, (and I say this with fear and trembling,) no man can look at the city and county of Philadelphia, at its people and their opinions, and for an instant run counter to them without endangering himself in public estimation, here and elsewhere. But I must say, that this outcry has been originated in the city in which we are now assembled. There is no spot on the face of the earth where more honesty, more refinement of intelligence, or more learning are to be found than in the city and county of Philadelphia. Yet here, in the midst of this city, a cry has gone forth against what has been termed the life office. Yes, sir, the war cry has been "life offices;" and, taking advantage of the known opinions of the people of Pennsylvnnia against any thing which has a tendency to elevate one man over another, those who have raised this ery, have, with great adroitness, induced a portion of the people, without looking at the question presented, or at its details-without understanding its results and without regard to the good or the evil which was to result from their movements-I say, a portion of the people have been induced to seize hold of this idea, and to hold up life offices as odious.

A portion of the people have thus been induced to shut their eyes to light and truth; and we are here assembled within these walls by the inconsiderate and unconsidering resolutions adopted at county meetings for to subserve the ends of particular and local party politics. I speak not of one party alone; the fault is with all parties and a most lamentable fault it is; for its tendency is to lead to great errors. For my own part, I put away for the present time, and I trust forever, all feelings which may have been generated by this party cry-and yet not a party cry, because it has been raised among all parties in our state-among the democrats as well as among those who are known by the title of whigs and anti-masons.

All parties have raised this cry of life office, and all have assumed the ground that those who held these offices lived in the enjoyment of privileges which are not known to the mass of the people of Pennsylvania. I begj'ease to say to my friends on this floor, solemnly. that this is a great mi: take- -a mistake to which the indulgence of an undue feeling has led them -a mistake to which they have been led by a desire to alter some of the organic features of the constitution. I ask gentlemen, I pray of them, now to step boldly forward with me, and to divest themselves, so far as it is in their power to do so, of all party considerations, and all party feelings,

and so to give their final votes upon a question which is not only agitating this body, but for months and years has been agitating the public mind of Pennsylvania. I ask them, ere they give that final vote to reflect whether, in the views they have taken of this matter, they have not subjected themselves to the false and clamorous demands of party, rather than to the suggestions of reason and the voice of truth!

What then is the question before us? When I reflect on the result to which the gentleman from the county of Philadelphia, (Mr. Ingersoll) has arrived-after a speech fraught with learning-and when I remember A that, after repudiating the idea of what he was pleased to denominate life offices-when, I say, I remember that, after all this, I heard him express the conviction he entertained that there was no such thing as the independence of the judiciary without the tenure of good behaviour-and when I saw him actually offer resolutions to that effect, I fear lest, before I shall have ended, I may myself also commit some great error.

What then is the question which we have to decide? It is nothing less than the question whether one of the co-ordinate branches of the government of this commonwealth, as it has existed since the settlement of the country, and before any of our constitutions were formed, should be merged in another; whether it should be utterly obliterated and stricken out of the statue book; whether it should be expunged from the constitution of Pennsylvania. Upon this subject, although the idea has now, I believe, been given up, a gentleman (Mr. Doran) proposed to introduce a distinct declaration, as a leading change of that sacred instrument, that hereafter the powers of the goverment of this commonwealth should be distributed between three distinct, separate and independent branches. Did not the gentleman make such a proposition? The gentleman who, according to the statement of his colleague, is pledged to interfere with the independence of the judiciary of Pennsylvania-that gentleman, I say, first introduced a resolution declaring that the three branches of the government should be forever distinct and separate-that is to say, the executive, the legislative, and the judicial. Up to this time, we have been in the habit of thinking that the independence of the judiciary was necessary to the community in which we live. I ask gentlemen to say, these ideas are now to be cast aside as worthless theories; and whether they are now of opinion that, in practice, this wholesome distinction of power should not be preserved. I would like any gentleman to answer, are we wil ling to say that this has been all a dream; that it has had its existence only in our imagination; and that although we have been taught by our constitu tion, and have listened with veneration to our jurists who have instructed us to cultivate it in our youth, and to practice upon it in our manhood-are we, I ask, about to say that this which we have regarded as the corner stone of all our free and glorious institutions is nothing worth-that it is the mere "baseless fabric of a vision," existing merely in the fancies of men, and having no existence in fact? Why do I say so? What is the proposition which has been adopted in committee of the whole? It is to reduce one of the independent branches of the government to a subordinate condition. It is to merge it in the executive and in the senate. That which heretofore we have been taught to believe was essential to the preservation of the rights and the liberties of the people, not less than to their happiness, it is now to merge, and merge forever; for if the judiciary

is once made subject to the executive, it is in vain for us to hope that it will ever recover its ground.

The question which we have now to meet and to decide is, whether by this new constitution which we are about to send forth for the govern ment of the people of this commonwealth, we are willing to merge, and to merge forever, one of the three co-ordinate branches of the government. This is the issue, and this issue it is for us now to determine.

Are

The change here proposed, changes the form of our government. gentlemen aware of this? or, have they reflected upon it? Have they reflected that, if this amendment of the committee of the whole should be engrafted into the constitution, we shall hereafter have two branches of the government, and not three, as we have heretofore been accustomed to have? Have gentlemen reflected that this proposition is, in fact, a proposition to destroy-to blot out of existence one of the branches of the government of Pennsylvania?

The gentleman from the city of Philadelphia, (Mr. Scott) who so eloquently addressed the convention yesterday said and said with truth,— although the figure was a bold and strong one-that this was a proposition to change our government from a republican form of goverment to an oligarhey so far as one arm which ought to be the strongest, but which I regret to say, is the weakest, -was concerned. So far as that branch is concerned, this is a provision to change our republican form of government to an oligarchy. That such is its tendency, must, I think, be clear to every mind.

It is a matter of sincere regret to me, that the committe on the judiciary to whom this important article of the constitution was referred, and at the head of which stands the highly respectable judge from the city of Philadelphia, (Mr. Hopkinson) should, in their deliberations upon this subject, have abandoned a principle. Yes, sir, that they should have abandoned a principle! for there can be no doubt that that committee did abandon a principle, when they consented to give to the people-for whom I entertain as much regard as any other gentleman in or out of this house,-the right to elect justices of the peace. They abandoned a principle; there is no sophistry under which this fact can be disguised.

In a former debate at Harrisburg, I listened, as I always do, with delight and pleasure to the venerable gentleman from the city of Philadelphia, (Mr. Hopkinson) when he undertook to make an apology for that with which he had been taxed in private--that is to say, with the abandonment of a principle in requiring that the appointment of the justices of the peace should be given up to the popular will. And, Mr. President, if I stand here alone in my opinion in relation to the justices of the peaceknowing as I do the vast influence which they exercise at all times, for good or for evil, upon the mass of the people, over those who are not able to protect themselves,-I now give notice that, when that question shall again come before this convention, I will use my utmost exertionshowever unavailing they may be--to rescue that humble but highly important branch of the judiciary, from the influence of popular election. If I am to place confidence in the opinions I have heard in different parts of the house, it is supposed that the majority of the people of Pennsylvania, without looking at the results which must inevitably follow from such a

provision, are in favor of the election of justices of the peace, yet I trust that, even if I am in error in my views, I shall at least be able to give such reasons for those views as will bear examination, and that I shall be acquitted of any desire ignorantly to change the current of popular opinion.

But, with reference to the magistrate, he exercised a more pernicious influence over the body of the people than the judges of the supreme court. He would be found in every township, every ward, and was ever ready to carry into effect his authority. He would have occasion by and by, when he came to refer to the judiciary of Pennsylvania generally, to examine how far a judge might be influenced in the decision he might give, and judges are but men.

From the first settlement of these colonies-now called the United States-down to the present time, we had been in the habit of considering the judiciary as one branch-an equal branch of the government-as a co-ordinate branch- -as one entitled to be regarded as independent of all the other branches of the government. It had been always so considered. No man would deny it. The judicial power, then, ought to be independent of the executive and legislative branches of the government. The happiness of the people of Pennsylvania depends much on where the power of appointment is vested. Let these judges be appointed by the executive of this state, or the legislature of the state, he, (Mr. B.) cared not where the appointing power was placed, so long as the happiness of the people was consulted in the choice. But he would ask the question in all candor-was it proper ?--was it consistent with our ideas of right?— was it consistent with the happiness and welfare of the commonwealth of Pennsylvania, that the judicial power should be made an independent power? Upon whom, then, should it be made to depend? He asked the question.

Supposing, (said Mr. B.) it cannot be answered. Upon whom will you make it dependent, because you must make it dependent upon something, -you cannot make it independent. Upon whom, then, will you rest this arm of your government? Upon what loop will you suspend it? Will you trust it to the executive ? Will you trust it to the legislature ? Will you make it dependent on the popular will? Let us see how far it will be wise, and see how the people are instructed upon the question, and how far they depend on one power, or the other. The proposition of the committee of the whole is to give the appointment of the judges to the executive. Who, I ask, is the executive? A man, it may be, selected for his talent. It may be, on account of his political party. It may be, for the good of public affairs.

Mr. B. went on to say that if the judges were made appointable for a limited term, by the executive, it might happen that cases would arise in which we could scarcely expect the judges to act independently, as, for instance, in passing upon the conduct of the governor himself. They would have to take one of two courses, either to justify it, or to condemn it. Now, this would be placing the judges in a very unpleasant position, say the least of it. Justice, under such circumstances, could scarcely be expected. What, he asked, would be the condition of a judge entirely dependent upon the governor? Why, on the one hand he must either act to please him, or on the other, if he honestly discharged the duties of his office, especially in cases that were opposed to the political power of

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