My object is to get along with the business, fore the jury law was passed-it is true-it was for which we came here, and I have urged gen-appropriately made the duty of the county attlemen to vote more, and talk less. I think we torney to attend to prosecutions for breaches of are spending much time uselessly, and if gen- the peace occurring in his county, because the tlemen will proceed to vote upon the propositions now before them, I will agree not to make a speech for the next three weeks. Mr. NESBITT. I find by reading the twenty third section of the third article of the constitution, these words: "An attorney general and such other attornies, for the commonwealth as may be necessary, shall be appointed whose duty shall be regulated by law. Attornies for the commonwealth for the several counties shall be appointed by the respective courts, having jurisdiction therein." I think it is possible that the gentleman from Knox may be mistaken in supposing that there is any county that has no county attorney. The language of the constitution is imperative upon the county court, and they have carried it into effect. Mr. WOODSON. I would ask the gentleman if attorney for the commonwealth" there, includes attorneys for counties? fines went to lessen the county levy; but since the passage of that law, those fines are a part of the jury fund, and that duty should be diverted from him, as a matter belonging rather to the state at large than the county. This would make the duties of the office merely advisory. It is proposed now to change the county court system entirely, to elect a county judge, and the individual chosen to fill that office, it is reasonable to suppose, will be so far learned in the law, as not to need the advice of a county attorney. Under all the circumstances, I think it will be the best to strike out. Mr. CLARKE. I am not very much wedded to the retention of the provision for the appointment of the county attorney in the constitution, and I have thought that I would submit a compromise to the gentleman from Knox and Harlan. There may be some counties in which county attorneys may be necessary; and I submit whether it will not be best not to Mr. NESBITT. I presume they are included. make it imperative as this bill does-upon Mr. WOODSON. It is not so in the region of every county court to appoint a county attorcountry where I live. That section of the con-ney; but leave it discretionary with the court, stitution has never been so interpreted or understood, and in various counties they have no attornies. Mr. NESBITT. However to obviate the difficulty of the gentleman from Knox I would propose that these officers shall be elected, and that no qualification should be required, and I am of opinion that we would save time by taking up this report, and obtain the sense of the committee upon it. I agree with the gentleman from Jefferson, that by the time these three committees, acting conjointly, get a report prepared and presented to the convention, they will have done as much as they are able to do. If every thing is to be referred to this joint committee, it would be better to add every member of the house to it, and begin over again and take up the old constitution, section by section. I was for that at the start. If every thing is to be referred to this committee of thirty, it ought, I think, to be increased to a hundred. The question being taken on the motion that the committee rise, it was decided in the negative. Mr. MITCHELL. I do not understand, as the gentleman who was last up, that the office of county attorney as it now exits in our county courts, is a constitutional office. I apprehend that the attorney of the commonwealth for the county referred to in the existing constitution, discharged his duties at the quarter-session courts; but as the county courts are at present organised, being deprived of original common law jurisdiction, I apprehend that the county attorney is merely a lawyer employed by the court, and is not a constitutional office. The creation of such an officer, to act upon the part of the commonwealth, is of very questionable utility, and I would not like to see inserted in the constitution, an imperative provision for his appointment. The duty of the county attorney is merely advisory. It is very rarely that any duty devolves on him as a practicing attorney. I look upon the office as almost a sinecure. Be by substituting the word "may" for the word "shall." There are counties where such an officer may not be necessary; and I would leave it to the judges to determine whether one should be appointed or not. They would very rarely, I think, employ a county attorney, and thus increase the taxation. They would employ them only when absolutely necessary, and the appointment would be approved by the people. I am in favor of allowing the court a discretionary power, and if my friend fron Knox and Harlan will so modify his proposition, I will vote for it. Mr. MAYES. As it is not a matter of very great moment-if the gentleman from Knox will permit me-in order to meet the views of the gentleman from Simpson, I will move, by way of amendment to his proposition, to strike out the words "county court attorney," and insert the following: "the county court may appoint a county attorney, whose duty shall be regulated by law." Mr. WOODSON. I accept the amendment. Mr. MAYES. I do not think it should be imperative on the county court to appoint a county attorney; it should be left discretionary with the court to appoint or not, as they shall think the business and interests of the county require. Mr. PROCTOR. I do not see any necessity for the appointment of a county attorney; but if we are to have that description of officer-as the principle has been settled I believe that we in. tend to elect all other officers-I hope that this officer will also be elected by the people, and that his duties will be specified in the constitution, because in some counties in the state under the existing state of things, there are doubts as to what the duties are. In some counties where the duties are not defined, the county attorney has prostituted his office for sinister motives. I am not anxious that the appointment of this class of officers should be provided for, but if it be, it is better that they should be required to prosecute, in all cases in which the commonwealth is interested within the counties in which they reside. It is a very difficult matter sometimes for the commonwealth attorney to carry through a prosecution successfully-not being a resident of the county, and not being cognizant of the facts attending a case that may arise; hence, if a county attorney be appointed at all, he should he required to prosecute in all cases in which the cominonwealth is interested, whether civil or criminal. And as we are about to adopt the principle of making all other officers elective, I hold that the county attorney should also be elected by the people. Mr. TURNER. In the aspect in which the question is now presented, I have no great solicitude whether it prevail or not. There was nearly an equal division in the committee upon the question whether this officer should be elected, or appointed by the court. I voted in committee in favor of the appointment by the court. There were two or three small officers, that really appeared to me, too unimportant to trouble the people about. Mr. CLARKE. If it be in order now, I will move to amend the first section, in the third line, by striking out "county court attorney," and at the end of the section insert the following; "that the qualified voters of the different counties in the state may elect a county attorney, who shall hold his office for the same time as the presiding judge of the county court, whose duties shall be prescribed by law." Mr. WOODSON. There is no one who would go further for the elective principle in every department of the government, than myself. My object is to give to the people as much power as possible as far as the election of all officers is concerned-and if I shall ascertain that the constituents whom I represent here, are in favor of electing county attorneys, I shall vote to give them the power to elect them. My impression is, that neither of the counties I represent is in favor of having a county attorney at all. In the county of Knox there has not been a county attorney for fifteen years, and perhaps they may not choose to have one for the next twenty years. I want the county courts to have it left to their discretion whether they will have an attorney or not, and I am willing to accept the amendment of my friend from Simpson, if he will insert, "that a majority of the qualified voters of the county may elect an attorney if they think proper." ing to the twelfth section of the report of the committee on executive and ministerial officers, for counties and districts, to provide for the appointment of such officers as may, from time to time, be deemed necessary and proper. Mr. CLARKE. I would like to test the question whether the county attorneys shall be eleeted or appointed by the court. Mr. WOODSON. The motion which I made was simply to strike out the words "county court attorney;" and my object was to.prevent making it the imperative duty of the county court to appoint, in each county, an attorney. If those words are stricken out, I am willing that the committee shall substitute any provision they may think proper, provided it does not impose upon the court the duty of appointing such offi cers. Mr. PROCTOR. I have no particular objection to the proposition of the gentleman from Knox, but I hold that the county court attorney is an officer that should be elected by the people. Hence I will vote against any proposition that will give the appointment to the county court. If elected by the people, he will be responsible to them, for the proper discharge of the duties of his office. Mr. MITCHELL. I rise merely to suggest a modification of the amendment, which will obviate all difficulty on the subject. It is, "that the general assenibly shall authorize the election of county attorneys, in such counties as may request it." Mr. CLARKE. I accept it. Mr. KAVANAUGH. I do not agree with the gentleman from Knox (Mr. Woodson) as to his view of the necessity of county attorneys. We have commonwealth attorneys in every district, and I wish to call the attention of this committee to their duties. It is their duty, in the first instance, to take up and prosecute cases in the circuit court, where an offence has been committed against the peace of society and the public safety. When any felony has been committed, the commonwealth attorney of the district has nothing to do with it, until it comes up into the circuit court. In every county there are courts of enquiry established, in order, after a felony has been committed, to guard against the escape of the offender before he has been returned to the circuit court. Now, unless it be provided by law that every county in the state shall have a county attorney, the most outrageous felonies may be committed, and as the county has no vidual would escape. Therefore, there are strong representative in the court of enquiry, the indireasons why we should have a county attorney. Mr. MAYES. I believe that my amendinent Again, in every county in the state, there are was accepted by the gentleman. I regard laws operating which relate to the state revenue, this as an important question. From the read-in regard to tavern licences, and to peddling ing of the proposition of the gentleman from clocks, watches, and other goods, which it is Simpson, I do not know how the people are to the duty of the county attorney to enforce. In determine that they will elect a county attorney. such cases the whole state is interested. There The court may very easily determine; but if are cases in which the county attorney is to proleft to the people, they will first be obliged to tect the rights of the state, and it is important, take the question whether they will have an at- therefore, that each county should have a practorney. I would greatly prefer to have the ticing attorney. As to leaving it to the counties amendment which I proposed acted upon and to decide whether they will have these officers or adopted or rejected. If rejected, then I would not, it will be unwise, inasmuch as the people propose to strike out the words "county court or the courts could never decide in advance when attorney," and leave to the legislature, accord- the necessity for the officer would arise. Mr. CLARKE. I will put the amendment in that shape. Mr. MAYES. The difficulty in my mind in relation to the election of the attorney, arises from the fact that the people could not determine whether they would have the county attorney or not, until they had had a special election for the purpose. It is a matter, therefore, which should be left to the county court to determine. It is impossible for any county to say whether the services of such an officer would or would not be required in advance. It is essential that in every case of felony the state should have a representative to act on the subject, in the person of the county attorney. Besides, in regard to county matters, it is his duty to see that the sheriff pays over the revenue, and to prosecute motions to recover it; and it is impossible for any county in advance to say whether or not he would be required to exercise these duties. 1go, therefore, for requiring every county to have such an officer, and for his election by the people. We are electing all the other officers in the state, and we may as well elect him. If there were any officers, in regard to whom there are stronger reasons against their election than others, it seems to me they are the practicing attorneys, whether of the districts or the counties. I shall vote for their election by the people, however, as I do not consider the reasons against it to be sufficiently strong to induce me to pursue a contrary course. Mr. CLARKE. As I am determined to vote for the section as it stands, I withdraw my amendment. which our action will not require to be undone, and time lost. Mr. MCHENRY. The gentleman can obtain his object by moving to pass over this report. Mr. G. W. JOHNSTON. I make that motion then, and also to take up the report on the subject of new counties. Mr. TURNER. I am satisfied myself from the experience we have had during the session, of the results of the practice of requiring every thing to be discussed in committee of the whole, that the best course is to consider these matters at once in the convention. I suggest, however, that we take the vote first on the proposition, whether we shall have a county court or not. And then we may rise and report, and have the subject in the convention, where these protracted discussions may be cut off by the previous question. Mr. G. W. JOHNSTON. I am disposed to accommodate, and will withdraw the motion. The question was then taken on striking out the words "county attorney," and the motion was rejected. Mr. DAVIS. It seems to me that if this convention means to do anything, it ought, when it takes up the report of any committee, to settle for itself its leading features and principles. For instance, as regards the institution of the office of county attorney, the committee ought at once to make known whether it proposes to have such an office. In relation to the matters which were referred to the grand confederated committee this morning-one question being, whether Mr. G. W. JOHNSTON. I regret that the there shall be four or three judges, and another motion made some time since that the commit- whether the court shall be branched or not-all tee rise, did not prevail, as I desire to get clear these and similar questions should be decided of this report for the present. I think we are by the convention, for itself. They should not acting hastily in providing for officers, before be referred to any individual or associated comwe have created the offices they are to fill. This mittees for their decision, that they may come in report provides for the election of a county at- and instruct the convention. Are we to do any torney, and county court clerks, and if we go on thing, or get away from here at all? If so, some in this way, we shall either have to undo what method of proceeding must be adopted, and the we are doing now, or the committee upon the best in my judgment, is to take up these reports courts will have to make their reports conform seriatim, either in the house, or in the committee to our action to-day. Suppose we vote now for of the whole, and at once decide what shall be the election of county court clerks, and the con- done, without waiting the opinion of any comvention should provide for a probate court hav-mittee. When a report is thus acted upon, the ing testamentary jurisdiction in each county, convention knows at once its settled opinion and a commissioner's court, what would we be and decision in relation to all its principal feaobliged to do? Why, to reverse our previous ac- tures. It makes no difference how, but it ought tion, and make provision for the appointment of to be done in some mode. This report under the clerks of such courts. It is provided in this consideration, should be taken up and read by report that a judge and sheriff shall be elected, sections, either in committee of the whole, or in and at the same time the associate justices are the house-and probably that would be best, as elected. I believe, on the motion of the gentle- then a stop could be put to this eternal talking, man from Madison, associate justices have been and the convention brought to a vote-and then stricken out of the report. This report should decide upon its features. The objection of the either go back to the committee or lie on the ta- gentleman from Shelby (Mr. G. W. Johnston) ble until we have advanced a little further, and was more specious than solid. He says if we created some offices to be filled, before we pro- decide now, in regard to these officers, it will be vide for the appointment of the officers. I do perhaps before this confederated committee has not desire that we shall be obliged hereafter to decided whether the offices shall be established go back and undo what we have done to-day. or not. But the decision of this question here, Therefore, if it is in order, I move that the com- will decide this point for them, and on this or mittee rise and report the bill to the convention, any other proposition it would be the proper there to be either referred back to the committee, course to pursue. But all I desire is that we or to lie on the table. We can then take up some shall get to work in some form or other. Let us of the reports from other committees the prop- do something. Let the convention decide upon osition for instance of the select committee in the great principles and features of the constituregard to the establishment of new counties-on tion for itself, and then let it be referred if ne cessary, to sub committees to frame and put in form. stood as referring to a county court attorney, county court surveyor, &c. Mr. TURNER agreed to the amendment as right and proper, and The section was so amended. Mr. MAYES said that as the convention had refused to strike out, he would withdraw the balance of his amendment, proposing to insert. Mr. CHRISMAN moved to strike out the Mr. BRISTOW suggested that there was words "coroner and jailor." This would leave nothing in the report which provided how it to the legislature to provide for the appoint- these officers were to be appointed. The term ment of these officers as they might deem neces-elected was used, but he preferred to have the sary and expedient. words added" by the qualified voters." Mr. TURNER explained, that they were to be The motion was rejected. sible. Mr. LINDSEY moved to amend the first sec-elected as the bill stated, in the same manner as tion by adding the following words: "whenever the circuit judges, &c. The object was to keep the county court of any county deem it to the the constitution as free from verbiage as posinterest of their county to dispense with the office of county attorney, they shall, at their court next preceding a regular election for the county, make an order discontinuing the office, and at any time thereafter, at a court next before a regular election, the county court may, by an order, restore the office; and the duties of said officer shall be regulated by law." The first section was then adopted. The second section was then read: "No person shall be eligible to the offices mentioned in this article who is not at the time twenty four years old, a citizen of the United States, and who has not resided two years next preceding the election in the state, and one year in the county or district which he offers his services. Mr. TURNER. This is about the same mo- No person shall be eligible to the office of comtion the gentleman from Knox made. Every monwealth or county attorney, unless he shall county is intested in having those persons who have been a licensed practicing attorney for two violate the laws punished, and if they do not years; no person shall be elected clerk unless he have the proper prosecuting attorney to prose-shall have procured from the court of appeals a cute them, they will escape into other counties. certificate that he has been examined by their If you intend to punish crime at all, you should clerk under their supervision, and that he is begin at its very incipient stages, otherwise, qualified for the office for which he is a candifrom a commencement with small violations of date; but the office of sheriff or constable may the moral law, the individual, if unchecked, be filled by persons who have attained the age of soon becomes hardened and scruples not at the twenty one years." commission of greater and more heinous offences. A prosecuting officer is therefore necessary in each county, to see that these lesser crimes and misdemeanors are at once punished. And it is an office, which, for the common safety of the state, every county should be required to possess, otherwise the duty might be thrown upon only a few counties who might desire his appointment. The absence of them in the border counties would also be an inducement for of fenders to come in from other states to commit their depredations. The old constitution required that there should be a county attorney in each county, and yet I understand there are some counties which have no such officers. Let us however do our duty, and provide for these officers, and if the counties do not carry out the provisions of the constitution, the blame is with them, and not with us. Mr. CLARKE. I move to amend the second section, by striking out the words "no person shall be elected clerk unless he shall have procured from the court of appeals a certificate that he has been examined by their clerk under their supervision, and that he is qualified for the office for which he is a candidate;" but, When the report of the committee on the court of appeals was under consideration, I took occasion to assign some reasons why I thought no certificate should be required from a candidate for the office of clerk of the court of appeals. I heard no argument which satisfied me that I was not right. I will not now detain the committee. I am willing the vote should now be taken. Mr. GHOLSON. I had the honor to introduce a resolution covering that point as well as some others, and I suppose this motion will test the Mr. HARGIS. The only difficulty I can see matter which I had in view. I want to know in this matter is, that in some counties there is how many honorable gentlemen are in favor of no man whom the court can appoint. If this laying a tariff of from five to one hundred and should be the case, and it is made an imperative fifty dollars, to operate upon all applicants for duty to provide for such an officer, what will be the office of clerk. It has been shown that a the situation of the court? They could not com- certificate is no protection to the people, and is ply with the law. I prefer to leave the mat-not even prima facie evidence of fitness. This ter optionable with the court. As to its elec-provision can have no other effect than to opetion by the people, it is a little trifling office, of rate as a tariff for the protection of those who no account, and the people care but little about now have certificates, and it is imposing unjust it. Nor do they care about electing the coroner, restrictions upon those who shall be candidates. jailer, and other little petty officers. They will It is making invidious distinctions in society. It have enough to do in the election of the judiciais circumscribing the number from whom the ry, and other important officers. people may choose, and is thus violating their freedom. At a proper time I shall call for the ayes and noes. Mr. LINDSEY'S amendment was rejected. Mr. APPERSON moved to strike out the words "county court" before the word "attor Mr. TURNER. We had this debated the other ney." Otherwise the section might be under-day, and I would ask that the remarks made by Mr. KELLY. I believe in this case, the examination will be a mere farce. No length of service at the bar will make a competent clerk. I have been a clerk for fifteen years, and I think I can judge in respect to this matter. I have no idea that the certificate will be of any use to the people; they are as competent to judge of the fitness of a person for this office as the judges of the appellate and circuit courts, and therefore I am opposed to the restriction. I do not think the requisition that a clerk shall be twenty four years old is necessary. I know young gentlemen fifteen years old, who are as well qualified as many of the clerks in this state, or the clerk of the court of appeals, though there is none better than he is. I know too, that the examination is not thorough. The duties of the clerk of the appellate court are not as extensive as those of the circuit court. On that account the bare certificate will be of little consequence. I hope the restriction will be stricken out. men, who wanted a certificate as a lawyer, say "I'll not go to this judge, for he will ask me too many questions. He will take me through Coke; I'll go to another judge who will ask me but few questions, and sign my certificate directly.' I want a judge to give an answer of the character that was given to me. I asked the judge, how long shall I have to read, and his reply was until you understand it. Now, I want a clerk to serve till he can answer all the hard questions that may be put to him. The report of the committee has not been acted on in the convention, and I intend that the circuit judges shall be struck out of that report. The committee then rose, reported progress, and obtained leave to sit again. LEAVE OF ABSENCE. On the motion of Mr. COFFEY, leave of ab- MONDAY, NOVEMBER 5, 1849. LEAVE OF ABSENCE. On the motion of Mr. TAYLOR, leave of absence to Wednesday next, was granted to Mr. Proctor and Mr. Lashbrooke. On the motion of Mr. FORREST, leave of ab sence was granted to Mr. Pollard to this day week. The convention concurred without a division. sion. Mr. TURNER. I have no anxiety whether the circuit judges are added or not. I said nothing when the bill was before the house. I know that in many instances when a candidate finds a difficulty in getting a certificate from one judge he will go to another who may be more ready to grant it. I think we had better confine this matter where it was in the old constitution. The PREAMBLE, AND DEPARTMENTS OF GOVERNMENT. appellate judges are not likely to be influenced by local matters in different parts of the state, question of concurrence in the report of the comThe first business was announced to be, the for they will not be acquainted with the coun-mittee of the whole, on the Preamble, and Artities except those immediately around them. I cle I, concerning the distribution of the powers do not say that the judges would give certificates of the government. from any improper motives, but I know there have been those who would give a certificate to any one who desired to practice law. If you want the certificate to amount to any thing, let COUNTY AND DISTRICT OFFICERS. us confine it to the judges of the court of apThe convention resolved itself into committee peals. I believe there is nothing more essential of the whole, Mr. BOYD in the chair, and reto preserve the great interests of this common-sumed the consideration of the report of the comwealth than to have a competent clerk, and we mittee on the executive and ministerial offices should have every restriction which we can put for counties and districts. upon it. Every man's life, reputation and property, and every thing else is occasionally in the power of these officers. And if there is any part of this constitution conservative, I want this part to be so particularly. I have said, and I repeat again, that the requisition of this certificate, instead of giving the prospect of wealth to the sons of those who are already wealthy, it will secure it to those who are in lower circumstances as to wealth. It will go to the sons of the yeomanry of the country. At an early day, in this government, the sons of the wealthy performed this service, but now you cannot find half a dozen individuals in these offices whose fathers are wealthy, except in those cases where the father was a clerk. I say, therefore, it secures a better prospect to the great body of the community. I have frequently heard young The pending question was on the motion of the gentleman from Ohio (Mr. McHenry) to insert in the second section after the words "court of appeals" the words "or any circuit court judge of this commonwealth.” The amendment was rejected. Mr. McHENRY then withdrew another amendment which he indicated on Saturday, and which was connected with the amendment now rejected. Mr. C. A. WICKLIFFE moved to strike out the word "four," and insert "one," so that the section should read-"no person shall be eligible to the offices mentioned in this article who is not at the time twenty-one years old," &c. Mr. TURNER. I think it should be shown that a man has fixed habits, and that those habits are known to the people, before he is entrusted |