ABSENT. Messrs. Ainey, Andrews, Baker, Bannan, Bardsley, Bartholomew, Bowman, Calvin, Cassidy, Church, Collins, Craig, Cuyler, Dodd, Ewing, Fell, Gibson, Harvey, Hazzard, Hemphill, Heverin, Hunsicker, Knight, Littleton, MacVeagh, M'Camant, M'Murray, Metzger, Minor, Mitchell, Mott, Patterson, D. W., Porter, Runk, Russell, Struthers, Woodward and Meredith, President-38. Mr. STEWART. I offer the following as a new section:

"SECTION No election to fill a vacancy in any court of record shall be for a longer period than the unexpired term." Mr. President, the Convention seems to have definitely determined to leave to the Legislature the business of districting the State. Now, the purpose of this amendment is to have all the commissions of the judges expire at the same time, so that when the Legislature does come to district the State judicially it will not be embarrassed by any such consideration as the unexpired terms of judges, but may district the State with such freedom of action as it ought to have when it undertakes a business of this character. I think the amendment ought to commend itself to the judgment of the Convention.

Mr. ARMSTRONG. A section of this importance ought not to pass without consideration. The principle involved in it has been very often considered; and, without being able to speak rrom the record, my impression is that it is not adopted in any of the States, or, if in any, certainly in very few. It is evident that an appointment for an unexpired term may be for any time greater than two months and any time between two months and the entire length of term. The effect of it will be that men of such character and saanding as would adorn the position would refuse to take it for so small a term. There is no advantage in it, and it is inconsistent with the provision which we have already made as to the Supreme Court. Its judges hold their office for the entire term. There is no advantage in in this idea unless it be as a mode of laying the ground work for the cumulative vote by having the terms of two or three or more necessarily expire at the same time so as to create the necessity of electing two or three or more at the same time. I may say that the question is one of those which were deliberated upon and passed upon by the Judiciary Committee with

very great care and with a conclusion that it was not a judicious section to adopt.

Mr. ANDREW REED. Mr. President: I am in favor of the section proposed by the member from Franklin. It places the judges in accordance with all the other officers of the State. We elect a Senator for the unexpired term, and so on. It is well known that we cannot legislate a judge out of his office. That has been tried in the district from which the chairman of the Judiciary Committee comes; and if we do not pass this, just see the effect that will be produced. The Legislature will never be free to district the State on account of the different times at which the terms of the judges will expire.

Owing to the development of some parts of the State in wealth or from some other cause, there may be a great increase of population in those parts which will require a districting of the State; and yet there may be a judge there whose term of office will not expire with the rest of the judges of the State. You cannot legislate him out; and there is a bar to the free districting of the State. I can see that it may be a question of great moment, and this will leave the Legislature free every ten years to district the State in accordance with the necessities of population or the judicial business of the people.

Mr. BROOMALL. I desire to say only that this question was fully discussed when the amendment to the Constitution providing for the election of judges came up before the Legislature and before the people. It was then thought advisable that the terms of the judges of the Supreme Court should be adjusted just as this provision requires those of all the judges of the courts of common pleas to be; but the disadvantage of allowing a judge to be elected for so short a time as two or three months under certain circumstances, the disadvantage of allowing such unequal terms to men of equal capacity, was such that whatever conveniences might arise from the plan were waived then, and I believe we have no new lights upon the question that would induce us to try now an experiment which was not considered judicious then. The Committee on the Judiciary debated this question and, I think, were unanimous in concluding that our predecessors in 1850 were right in what they did, and I trust that this Convention will conclude the same thing.

Mr. TURRELL. I cannot see any reason for this amendment. Why should

we limit the term of a man who goes into a president judgeship simply because his predecessor's term has been shortened by his decease? What reason is there in that for shortening the term of the successor? If you want to elect a good man, a competent lawyer learned in the law, he would often be willing to take the of fice for a full term when he would not accept it for a year or a few months. Therefore there is no reason in the case. There is no reason why we should not elect every man to a full term on the bench as well as his predecessors. This section is founded on a fallacy.

Mr. ANDREW REED. I would move to amend the amendment by making it apply only to judges of the court of common pleas and not to the Supreme Court.

Mr. STEWART. I accept that modification.

Mr. TURRELL. Then I wish to say further that there might be some possible reason for such an amendment, where the court is constituted as the Supreme judges are, all going out at different periods, so as to keep the equality between them in their time of service. But the president judges of the courts of common pleas are not so constituted; they do not start at one time; and therefore the reason for this section, as far as they are concerned, does not exist.

Mr. SIMPSON. If I am not very much mistaken in the article reported by the Committee on Suffrage, Election and Representation, there is a section which provides that all vacancies in the offices of

the State shall be filled for the unexpired term; and if I am not mistaken in that it settles this whole question, and

this section is unnecessary.

Mr. CAMPBELL Allow me to explain; that section was reported by the Committee on Suffrage, Election and Representation, but was voted down when the report of that committee was considered in committee of the whole, with the intention of taking it up again after the other reports had been gone through with.

Mr. SIMPSON. Then I am to understand that the section was voted down. Mr. CAMPBELL. It was voted down temporarily.

The PRESIDENT pro tem. The question is on the amendment of the delegate from Franklin (Mr. Stewart.)

The amendment was rejected, the ayes being twenty-four, less than a majority of a quorum.

Mr. ELLIS. I offer the following amendment, to come in as a new section: SECTION The Legislature shall not create any court, other than those expressly authorized in the Constitution, with civil jurisdiction in cases exceeding $300, or criminal jurisdiction and powers in crimes the punishment of which exceeds a fine of $100 or imprisonment for thirty days.

I will not detain the Convention with any lengthened remarks, but simply desire to say that this restriction is the substance of the first section of this article and what the committee itself reported to the Convention, with a slight difference in limiting the power of the Legislature to create criminal courts. We should not have high courts of any other character or nature than constitutional courts. Wherever the Legislature has undertaken to create other courts the experiment has in almost every instance been a failure. During our experience of one hundred years there has not been one instance in which a high court was created by the It Legislature that it was not a failure. may be answered that the district court of Philadelphia and that of Pittsburg was not a failure. Measurably they were not, but still, notwithstanding these courts have served a useful purpose, the present Convention have determined to do away with them; and the fact that the district

court of Philadelphia had equity powers one year and the next year had not equity powers illustrates that these courts, been at the beck and nod of the Legislathough performing high functions, have

ture at all times. In order that we should

preserve the balance of judicial power in the Commonwealth the judiciary should be as independent as possible; and under the present system, if we allow it to continue, the Legislature will have the power to dot the whole State with legislative courts superceding the powers and juris. dictions of the constitutional courts. shall not urge the matter further than this. It ought to be evident to the judg ment of this Convention that such a provision ought to be established in the Constitution.

I

Mr. ARMSTRONG. The section places a restriction on the power of the Legislature which under the Constitution, as we are now framing it, I think would not be judicious. It is demonstrated beyond all doubt that the Convention will not relieve the Supreme Court in any other manner or to any other extent than it has already

nays.

Mr. HANNA. I second the call.

The PRESIDENT pro tem. The section which it is proposed to reconsider will be read.

The Clerk read the section as follows: SECTION "The Legislature shall have authority to abolish the office of associate judges after the term of office of the present incumbent shall have expired."

Mr. COCHRAN. I do not know whether it would be in order, but I should like to have the gentleman from Fayette permitted to state his object in moving a reconsideration.

The PRESIDENT pro tem. That is not in order. The yeas and nays have been ordered, and the Clerk will call the roll. The question was taken by yeas and nays with the following result:

YEAS.

Messrs. Addicks, Baily, (Perry,) Bailey, (Huntingdon,) Black, J. S., Brodhead, Broomall, Buckalew, Carey, Clark, Curry, Curtin, Darlington, Davis, De France, Edwards, Elliott, Ellis, Gibson, Green, Hanna, Horton, Kaine, Lamberton, Lilly, Long, Mann, Patterson, T. H. B., Read, John R., Ross, Sharpe, Smith, H. G., Wetherill, John Price, White, David N., White, Harry, White, J. W. F. and Wright-36.

NAYS.

Messrs. Achenbach, Alricks, Armstrong, Baer, Baker, Barclay, Biddle, Bigler, Black, Charles A., Boyd, Brown, Bullitt, Calvin, Campbell, Carter, Corbett, Corson, Cronmiller, Dallas, Dunning, Ewing, Fulton, Funck, Gilpin, Guthrie, Hall, Hay, Howard, Knight, Landis, Lawrence, Lear, MacConnell, M'Clean, M'Culloch, M'Murray, Newlin, Palmer, H. W., Parsons, Patterson, D. W., Patton, Pughe, Purman, Purviance, John N., Purviance, Samuel A., Reed, Andrew, Reynolds, Rooke, Simpson, Smith, Henry W., Smith, Wm. H., Stanton, Stewart, Temple, Turrell, VanReed, Walker, Wetherill, J. M., Wherry and Worrell60.

mant, Mantor, Metzger, Minor, Mitchell, Mott, Niles, Palmer, G. W. Porter, Runk, Russell, Struthers, Woodward and Meredith, President-37.

Mr. ARMSTRONG. Yesterday I called the attention of the Convention to the fact in reference to a clause in the fifth section, which will be found on the third page, that the position in which it stands renders it doubtful, whether it is not limited to the cities of Philadelphia and Pittsburg, which is not the intention of the Convention. I then moved to transpose the clause to the end of the twentyfifth section. Objection was made by the gentleman from Schuylkill (Mr. Ellis) and the gentleman from Indiana (Mr. Harry White.) Both of those gentlemen inform me that they have no further objection, and the gentleman from Indiana that he objected under a misconception of the proposition. I now move, and I trust it will be done by unanimous consent, to transpose to the end of the twenty-fifth section the clause which I shall ask the Clerk to read. Before it is read I will call the attention of the Convention to the language as it stands now in the fifth

section:

"And the Legislature is hereby prohibited from creating other courts to exercise the powers vested by this Constitution in the judges of the courts of common pleas and orphans' courts."

I propose to transfer that to the end of the twenty-fifth section, striking it out in the fifth.

The CLERK. The numbers of the sections have been changed. At the end of the section beginning "All laws relating to courts shall be of general and uniforin operation," it is proposed to transfer from the fifth section the following clause:

"And the Legislature is hereby prohibited from creating other courts to exercise the powers vested by this Constitution in the judges of the courts of common pleas and orphans' courts."

The PRESIDENT pro tem. Will the Convention unanimously agree to this transposition? The Chair hears no objection and it is agreed to.

ABSENT.-Messrs. Ainey, Andrews, Bannan, Bardsley, Bartholomew, Beebe, Bowman, Cassidy, Church, Cochran, Collins, Craig, Cuyler, Dodd, Fell, Finney, Harvey, Hazzard, Hemphill, Heverin,

call attention to the apparent inconsistency between this proposed addition to the twenty-fifth section and the prior section, in which we provide expressly that the Legislature shall or may make two orphans' courts in various parts of