ARTICLE - next, in order that we may take up the report to which I have referred, to-morrow. When the SEO. 1. The militia of this commonwealth committee of the whole shall have this subject shall consist of all the free, able-bodied male again under consideration, the gentleman can persons (negroes, mulattoes, and Indians exceptfinish his discourse. I will make the motioned,) resident in the same, between the ages of eighteen and forty five years, except such perThe motion was agreed to, and the committee sons as now are, or hereafter may be, exemptrose and reported progress, and obtained leaveed by the laws of the United States, or of this to sit again on Monday week. which I have indicated. The convention then adjourned. WEDNESDAY, OCTOBER 17, 1849. Prayer by the Rev. Mr. LANCASTER. Mr. MERIWITHER, who has been detained from the convention for several days by severe indisposition, this morning resumed his seat. EXPLANATION. Mr. TURNER rose to correct a misapprehension of the remarks he made a few days since, on presenting the report of the committee of which he was chairman, with which the commit tee were dissatisfied. What he intended to say on that occasion was, that there were several members of the commit tee who did not concur in the report so far as it affected the election of several of the minor of ficers, such as surveyors, coroners, and jailers, but that a majority was in favor of electing those officers-and also, that one member of the committee did not concur in the proposed restriction as to age to be required of the candidates for of fice, as the people ought to be the sole judges, and had a right to elect a man of any age they thought proper. Mr. GAITHER was glad the chairman of the committee had made this explanation, but did not think it went far enough to meet the imputation which his reported remarks had cast upon at least one member of the committee. The gentleman had said that one member of the committee was not disposed to have any restriction as to the age, qualification, or any thing else of candidates for office. That was an awkward position to be placed in, and one which he did not wish to be charged with having assumed. It was his lot to differ with the gentleman and others of the committee, in relation to what is called the conservative principle; but he wanted mature age to be required, although he was opposed to some other restrictions. State; but those who belong to religious societies whose tenets forbid them to carry arms shall not be compelled to do so, but shall pay an equivalent for personal services. SEC. 2. The governor shall appoint the adjutant general, and his other staff officers; the majors general, brigadiers general, and commandants of regiments shall respectively appoint their staff officers; and commandants of companies shall appoint their non-commissioned officers. ed by persons subject to military duty, within the bounds of their respective companies, battalions, regiments, brigades, and divisions, under such rules and regulations as the legislature may, from time to time, direct and establish. SEC. 3. All other militia officers shall be elect POPULAR ELECTIONS. tion, and called for the yeas and nays thereon: Mr. GHOLSON offered the following resolu monwealth are fully competent to judge of, and Resolved, That the good people of this comfor any office whether the same be legislative, decide upon, the qualifications of all candidates certificate of election, according to law, is the executive, judicial, or ministerial; wherefore, a only certificate of qualifications that shall ever be required to enable any citizen to enter upon the discharge of the duties of the office to which he may be elected. Mr. TRIPLETT. Are we to vote upon that resolution without discussion or forethought, and adopt as a constitutional provision now, instantly, unhesitatingly, a matter of as much importance as probably any other provis ion that is likely to be submitted to this House? Do any of our rules authorize the calling of the yeas and nays before we have had any time to ascertain the full length, and breadth, and depth of a proposition like this? For one, I am not prepared to vote for it throughout, or against it throughout. I want time for reflection; and let me say to the honorable mover of the proposition, that I am rather inclined to think he himself wants time to reflect upon the subject. Is he prepared now to say that the judges of the court of appeals shall have no qualifications whatever; and whether they are twenty-one Mr. TURNER had understood the gentle-years of age or not, or learned in the laws of the man's position to be as he (Mr. T.) had before stated, but if he was mistaken he would be happy to be corrected. Mr. GAITHER. You are mistaken. Mr. TURNER was very glad then that the gentleman had corrected him. After some other observations the conversation dropped. REPORT FROM A COMMITTEE. Mr. DESHA, from the committee on militia, made the following report, which, on his motion, was referred to the committee of the whole and ordered to be printed: land or not, is immaterial, because the people are competent to judge of all these qualifica tions? That may be so, or it may not be so.The gentleman from Ballard must bear in mind it is a physical impossibility, that in the very nature of things, all the voters who are to vote for or against the election of judges of the court of appeals can be acquainted with their qualifications. The present proposition is to elect four judges of the court of appeals, one in each district; but suppose it is not adopted by the convention, but that the four judges shall be elected by all the voters of the state-does the gentleman intend to lay down the proposition that the voters of the county of Daviess are not throwing back all the power to where it originally belonged, (the people), but let us not run the thing too far. Let us not go too far. We are pressing it too far if we say that men shall be elected clerks, who perhaps were scarcely ever in a clerk's office in their lives. We have prejudices to encounter in establishing this new system; and indeed one of the very objections I have heard urged against the elective system, was in regard to this very subject of the election of clerks. So far as I was concerned, I always gave it the go-by, by saying it was time enough; but I always intended to guard against it, when the opportunity offered. I was striking at the great offices of this commonwealth-and when I go out to hunt such game as the grisly bear of the Rocky Mountains, I do not stop to trouble myself about the little bears that arise around me, but leave them to be attended to at my leisure. And that is the way I got rid of the election of clerks in the election; but I never did intend, so far as I could prevent it, that a man should be elected clerk without the proper qualifications. I hope we may give the subject the go-by at present, and that the resolution may be printed. I know that my friend from Ballard labors to the same end that I do-to give the great elective franchise to the people, where it naturally and of right belongs. But let us labor to make a good system, without running into too much detail. When I have done that, I shall feel as Barney Edwards' negro did, when he saw his master after a long absence. Said he, "I have seen the face of my master, my God let me die." When I have seen such a system secured, I shall be willing to go. Mr. IRWIN. I rise, sir, simply to make a motion. I am unprepared to vote for the resolution of the gentleman from Ballard, (Mr. Gholson,) not that I am unwilling to trust the people-not that I do not feel that they are competent to select proper officers-but that I conceive it necessary that the resolution should be considered. I am willing to trust the people when they desire to be trusted, but surely every officer should have some qualifications. I move that the resolution lie on the table for the present and be printed. Mr. HARDIN. I concur in all that was said by my friend just up, except in his compliment to myself, and to that I dissent. I do not want to vote on this resolution at this time, nor is it necessary, for we are showing in our reports every day, that we are willing to return the election of officers to the people. And when the committee on circuit courts, of which I have the honor to be a member, and of which my worthy friend from Ballard is a most worthy member, shall report, and I hope it will be in a Mr. CLARKE. I barely desire to remark that day or two, we shall show that we too are deter- upon general principles, I am inclined to concur mined to trust them. We came here with that with my friend from Ballard, and think that view, and it is not worth while to make a general ultimately I shall support his resolution. It indeclaration of it. The report of the committee volves a great principle, and one that perhaps on the court of appeals, as well as those that ought more deliberately and more maturely to enhave been made from other committees show, gage the consideration of the convention. I am that we are in favor of restoring to the people willing to concede that the clerks ought to be their rights. As to this sweeping resolution qualified to the discharge of the duties of their proposed by the gentleman, I suppose if it respective offices, because the clerk of the cirmeans anything. it intends to strike at some cuit court, the county court, and the court of apof the details of the report in reference to peals have very important and responsible duties circuit and county courts, it may be, the pro- to perform. But there is nothing connected with vision that no man shall be run as a candi- the discharge of the duties of a clerk in which date for the office of clerk unless he is qualifi- the people, among whom he lives, are not directed and that he must be examined and get a cer-ly and immediately interested. I hold it to be tificate of his ability. I think it is a very valu- equally important that a legislator should be able requisition to say to a man who comes for-qualified to make laws, when he is called upon ward as a candidate, you shall have the testi-to take a seat in either branch of the legislature, monial of your qualifications, and you shall and have gone through a thorough examination. not be elected because you are a succesful dema- Is there any gentleman on this floor who proposes gogue on the stump. I am greatly in favor of that when a candidate presents himself for elec ing the yeas and nays on the resolution submitted, it would be more consistent with the present disposition of this body to refer it to the committee of the whole, and select some early day for its discussion; for, if I am not mistaken, it is one of the gravest questions that has been submitted to this convention. tion, there shall be a tribunal created by the constitution through which he shall pass and be favorably adjudged before he is considered competent to take a seat in either branch? But when he is elected by the people, and takes his seat, he has then one-third of the sovereignty of the state in his own hands. He becomes a part of the law-making power of the state. It is not Mr. HARDIN. I am always gratified when I insisted upon that he shall undergo an examina- hear from the honorable gentleman from Simption before he takes that position, but it is insist-son, for he is certainly a very eloquent man, and ed that a clerk shall be so much more qualified it is to guard against that very kind of thing to discharge the duties of his office, than a leg- that we require some qualification, now and islator, that a tribunal must be established to then, on the part of a candidate for office.judge of his qualifications. If the principle be Take up the report of the committee on the true, that all political power is inherent in the court of appeals, and is there not some qualifipeople that the people are competent for self- cation required for a judge of the court of apgovernment-and that they are the safest depos- peals? He is to be thirty years of age, and that Itories of political power, why not leave with is one of his qualifications, and it is one of those the people, who are directly interested in the restraints upon the rights of the people so highsubject, the power to judge of the qualifications ly commented upon. Is it not furthermore proof a clerk? You strike at the great principle vided that he shall live in the district where he that the people are competent for self-goverment; is chosen? Yes. Is it not furthermore provided and you strike also at the principle that the peo- that he shall have been eight years a practicing ple are the safest depositories of all political pow lawyer? Yes; because the committee very proper, when you attempt to withhold from them the erly took up the idea that it was not the best exercise of that power, unless you can show a speaker who would make the best judge. Is good and sufficient reason for withholding it. there not a qualification necessary for a governI can myself perceive no reason, either potent or or? To be sure. Is there not a qualification as powerful, or more satisfactory to my mind, why to his age? Yes. And we must now and then the power should be given to the people to judge impose those kinds of restraints, to guard against of the qualifications of a candidate for the sen- that very volume of eloquence that we have ate, or the lower branch of the legislature of heard to-day, or our government runs into what Kentucky, or of a judge, if you please, and is called a mobocracy, instead of a free repreat the same time, the power should be withheld sentative republic. It is to guard against that from the people, to judge of the competency of a state of things that these qualifications are necandidate for a clerkship. Now, I doubt not cessarily required. Do we not know that it is there is a majority on this floor who will ulti- of vast importance that none but a man learned mately maintain that the judges, as well of the in the law should be a judge? And should not circuit and county courts, as of the supreme the candidate be learned in his profession becourt of the state, shall be elected directly by the fore you make him a clerk? Is not one just as people. I understand that question to have requisite as the other? And shall we elect the been decided in the recent contest for the elec- best stump speaker, if you choose, or the man tion of delegates to this convention, and I ap- who can organize and "dicker" the most voters at prehend there are from seventy to ninety mem- the polls? Is it possible that we are going to do bers here who are prepared to concur in giving any thing of this kind? I have run this thing back to the people the power surrendered in the as far as I can, but the gentleman out Herods old constitution, of electing all those officers. me. Let us impose some wholesome restraints When it is decided that the people are compe- as to qualifications upon all the officers put betent to judge of the qualifications of judges of fore the people. Let our governor be qualified the court of appeals, or of a district judge, or of as to age and residence; let the judges of the three judges of the county courts, of judicial courts of appeals be qualified as to age, resiofficers, in whose hands are placed the lives, lib-dence, and legal attainments; and let our judges erties, property and reputation, of the people of of the circuit courts be qualified in the same rethis state upon what principle is it that this spects. Yes sir, and there is another class of same people are not competent to judge of the men, who are called the Queen's solicitors, and qualifications of the other and minor officers? it would be more tasteful to the country if we Upon what principle is it that the same people should require some qualifications before they who are competent to decide upon the qualifica- throw themselves before the majority of the peotions for office, of those at whose hands and will ple. I have seen many a young man of two or and fiat, all the dearest rights of the citizen can three and twenty years of age, who could adbe either crushed or elevated, are declared in- dress himself very kindly to the sympathies of competent and unable to decide on the qualifica- the people, and yet possess no qualification betions of a clerk? The people are just as com-yond that. I hope, therefore, we shall not vote petent to judge of the qualifications, the competency, the moral character, and the honesty of a clerk, as of a judge of the court of appeals. I maintain that we ought to make no exception to the rule, unless the exception is predicated on some reason more powerful than any I have yet now on this resolution, as the subject will soon come up in its appropriate aspect. Mr. CLARKE. I am aware that it is owing to the over-flowing kindness of the gentleman from Nelson, rather than to any merit of my own, that I have received the compliment which he has just paid me. I am not opposed to qualBut I would suggest that, instead of demand-fications, nor did I assert such a principle. I heard. did not say that a clerk or a judge should not be qualified, but I maintained this ground, that the people were competent to judge of his qualifications, and it was predicated upon the idea, that in the exercise of their sound judgment and well matured discretion, they would make a proper selection. That is the ground I take. I have never argued that a judge or a clerk should not be qualified to discharge the duties of his office; but I assumed the ground which is assumed in the resolution of the gentleman from Ballard, that the people alone are qualified to judge of his qualifications. If they are qualified to judge of the qualifications of a President of the United States, in whose hands are thrown all the diplomatic relations existing between this country and foreign nations, and who wields more patronage and power than any other officer, or ten officers in the United States, I maintain they are competent to judge of the qualifications of a clerk, whether of the circuit court or of the court of appeals. I have assumed, and that is the reason I made the suggestion to my friend from Ballard, that there may be reasons interposing to exclude the election of a clerk by the people, unless he has undergone some examination. As yet, however, they have not occurred to my mind, and it is to hear such reasons, if there are any, that I suggested to my friend from Ballard, the propriety of referring his resolution to the committee of the whole, with the assignment of some day for its discussion. on the qualifications of that lady before you am prepared now to vote on this proposition. It Mr. MITCHELL. With the gentleman from Mr. GHOLSON. I certainly most cordially reciprocate the kind sentiments expressed with Ballard, I am always ready to vote on a quesregard to myself. I certainly have no disposition involving the rights of the people, and I tion to introduce anything here that shall produce unnecessary debate, or lead to an unprofitable consumption of time. But maintaining as I do having maintained it before those who sent me here, and that sentiment being, as I believe almost unanimously entertained by them that the people are capable of self-government, and seeing, as I think, a disposition here to deny this great fundamental principle that all power is inherent in the people, and that they alone have the legitimate right to exercise that power, I desire to test the question at once. What light does any learned gentleman need on this subject? Is any gentleman prepared to say that the people are not capable of self-government? or that they are not competent to choose a clerk? Is any gentleman here prepared to say to his constituents, I fear yon will take up some ignorant man who is unfit for the office? That you are so vicious and so ignorant that you will palm upon the country an unqualified officer? Why, I hold it to be a self-evident truth that in the absence of interested motive to do wrong all mankind would do right. And where is the motive that shall prompt the people of any county in this state to do wrong in a matter of this kind? There can be no motive; hence they will do right, and in doing right they will make the best selection. If they make a bad selection they alone are the sufferers; it will be their fault, and perhaps one bad choice may be necessary to put them on their guard, and to make them more careful in future. You might as well undertake to stand between a man and the wife of his choice, and say to him let me decide The resolution was then made a special order for Tuesday next and ordered to be printed. COURT OF CHANCERY AT LOUISVILLE. Mr. RUDD offered the following resolution, which was adopted: Resolved, That the committee on circuit courts be instructed to enquire into the expediency of permitting the Louisville chancery court to exist under the new constitution, and giving au thority to the legislature to establish other chan- | people in our state legislature, or that he was apcery courts in the commonwealth. THE COURT OF APPEALS. The question then came up on the proposed additional section to the article, as follows: SEC. 15. "All elections of judges of the court of appeals, and the clerks thereof, shall be by ballot." The independence of the judge does not depend upon the source of appointment. Whether a judge be appointed by the governor, the legislature, or the people, if he be a bad man he will make a bad judge, and if he be a good man he will make you a good judge or good officer, and the people must take the chances of selecting between the good and the bad. And they are just as competent, if not indeed more so, to make the selection themselves, than any intermediate delegated agents according to the present mode. pointed by the executive under the confirmation of the senate-but that when he is appointed the constitution of '99 secured, at least on paper, and The convention resolved itself into com- I hope in reality, the independence of the judimittee of the whole, Mr. G. W. JOHNSTON ciary, because he was made by the tenure of his in the chair, on the article reported by the com- office only responsible under the forms and prinmittee on the court of appeals. ciples prescribed in the constitution. I do not The verbal amendments proposed by the stand-now understand that there exists in this body or ing committee in their supplemental report were out of it, whether among the advocates of a adopted, with a view of perfecting the re convention for constitutional reform or against port of the committee. it, any one who is an advocate for life tenure in office. All of all parties are in favor of surrendering the principle of tenure during good behavior, or in common parlance, life estates in office. Upon all sides the question has been given up. All yield to the principle that the officer Mr. C. A. WICKLIFFE. It will be remem- should at some time short of his life, be returned bered, when the committee made the report now back to the appointing power, wherever that under consideration, that under their sanction I power may be deposited. We propose by the announced to the house that the mode in which the bill to deposit the power in the hands of the peoelective franchise should be exercised by the peo-ple, to whom we believe it belongs. ple in the choice of judicial officers had not escaped their attention. They did not, however, feel it incumbent on them to express what was understood to be their opinion, by any specific proposition as to the mode in which it should be exercised in the choice of judicial officers, waiting, out of respect, the action of other committees, who had kindred subjects under advisement. The committee, however, upon a further consultation and reflection upon the subject, and looking forward possibly to a division of sentiment in this body in reference to a radical I do not propose at this time, to enter into the change in the mode of voting prescribed by our discussion of the importance of this change, and present constitution, and as long practiced by the benefits which will result from it, further our people in the choice of political representa- than is necessary to explain the object of the tives and officers, have thought that between the committee in the amendment they propose.advocates of the priciple of viva voce voting, and They were unanimous and unhesitating in their those who are in favor of the ballot system, and opinion of its importance, and in their desire of introducing this new and important principle that it should be engrafted upon the article now in our government of electing all our officers, under consideration, and if you will allow me to political as well as judicial, we might attain say it, upon all other articles which have refersomething at least, in the freedom of the exer- ence to the election of judicial officers. I becise of the privilege where it is brought to bear lieve that a majority of the States of this Unionin the choice of a judicial officer; at all events, I speak but from a general recollection and not that it might operate to relieve the elective prin- from minute recollection-have adopted and are ciple of one objection which I have heard-I will now in the practice, in all elections of every kind not say in this house, because it has not been as and description, of the ballot system. There is yet avowed here, but outside of this house-the much to say in favor of the ballot system, and danger of placing a judicial officer under the in- especially in communities differently organized fluence of personal feelings in his course toward and constituted in some respects from our own individual suitors and litigants who might either State. I have not understood that a change in have voted for him or against him. I do not re- the mode of casting the votes of the people of gard however that as at all assaulting the principle Kentucky, for officers heretofore elected by them, which lies at the foundation of the elective sys- has been a cause of constitutional reform, or that tem. The independence of the judge has never it was a cause of complaint or grievance. I do been regarded in any age or country as being se- not believe that the time now exists, or is likely cured by or dependent upon the mode of his ap- to exist in this country, so long as we shall cherpointment. It is supposed to rest on the princi-ish our domestic institutions-if I am understood ple which was one of the results of the revolution in England, one of the fruits of which was the change in the tenure of this description of office-prior to which revolution the judge held his office at the will of the crown or the pleasure of the prince, not by the tenure of good behavior. That was the principle, and it is the one from which we have derived, as heretofore entertained, all our notions of an independent judiciary. Not that the officer derived his appointment either by election, from the representatives of the by that phrase-that there will be the same necessity for the mode of exercising the elective franchise that other States and communities have believed, or found to exist among them. But in the choice of a judicial officer by the people— to meet the argument or the objection to the system that I have heard alledged—that is, that the judge who is elected, finding A, who has cast his vote against him, a suitor in his court, may feel disposed to visit upon him, in some of his judicial acts, vengeance for this exercise of priv |