The Convention was opened with prayer by Rev. W. W. Campbell, of the Presbyterian Church of Fairmont.
Journal read and approved.
THE PRESIDENT. When the Convention adjourned it had under consideration the adoption of the third section of the report of the judiciary committee.
MR. SINSEL. I wish to offer a resolution:
"Resolved that the clerk call the roll each morning at nine o'clock and record the absentees."
MR. VAN WINKLE. I would like to know what is the object of the resolution.
MR. SINSEL. The object is this: Having adjourned, and insisted on adjourning, to nine o'clock, we meet here without a quorum; and if gentlemen insist on this early meeting I want it to appear before the country- who are here and who are not here.
MR. POMEROY. I think that is entirely unnecessary. There was far more than a quorum at nine o'clock. The rule establishes that fifteen is a quorum, and I think that if gentlemen are detained by necessary business a few moments it is not necessary that their names should go on record as absent.
The resolution was rejected.
MR. HARRISON. I propose to strike out "five" in the fifth line and insert "three." My object is: we are attempting, sir, a new plan or system for our courts and throwing into the circuit all the business of the county court. From my knowledge of the business in my own county and the others composing that circuit I doubt if one judge will be able to discharge the duties that will be incumbent on him. As the section now stands it would be five years before that difficulty could be removed if that difficulty should be found to exist. The section provides that the legislature may, if it should so turn out on three years trial that the judges cannot dispose of the business before them, it seems to me it would be wise to relieve the legislature then if they in their discretion see fit to make the changes which they would be authorized to make as this section now stands, at the expiration of five years. The gentleman from Marion told us his civil docket had not been called for five years. Suppose that thing should exist five years more, valuable property would rot before it could be disposed of. It seems it would be better to enable the legislature to make these changes at the expiration of three years if they see fit.
MR. VAN WINKLE. Was there an amendment pending when we adjourned?
The Secretary stated that there was none, that this was an original amendment.
MR. HAYMOND. I am opposed to striking out five and inserting three. I do not think the gentleman need apprehend any danger but what the present judges will be able to get through their business. I have not any idea that there will be half the business in the circuits as there is now, as those townships will do most of the business, and when we cut down the county courts there will not be half the lawing that there is. I am here to cut down the number of courts as low as possible. My people are all tired of courts. My colleague was very correct in saying we had too much law in Marion. Sir, we have had in that county 28 justices, 28 constables and about 12 lawyers; and with all the courts we have had, they have nearly ruined the people, and the people are getting tired of it; they are coming to the rescue of the country. Now, sir, the gentleman from Harrison need not apprehend any danger but what the courts will be able to get through the business, for most all will be in the townships. I hope the amendment will not pass.
MR. BROWN of Kanawha. While I have no particular objections to the amendment of the gentleman from Harrison limiting the time to three years instead of five years before this change could take place, I think upon a due consideration, it were better to permit it to stand as fixed by the committee. It is true that information might be derived within three years sufficient to enable the legislature to see that this arrangement was onerous and ought to be changed; but then looking at the circumstances of the country, it is not likely to be so, and I do not think we should hold out inducements to change, or encourage alterations in this Constitution before it can have a fair and satisfactory operation. We are now engaged in a war, the country torn upside down; the business of the country is deranged - the judicial as well as every other - and it is scarcely to be supposed that the return of peace, even were it to occur today, could bring about such an ordinary state of events as will enable the legislature at the end of three years to determine that this whole thing as arranged here is wrong. Five years is the shortest time that can reasonably be expected for the legislature to have proper information before it. When business assumes its ordinary course, facts to determine from what actually does take place how far this arrangement is unequal to the requirements of the situation. I hope therefore the Convention will stand by the report as it is.
MR. DERING. In reference to this matter of the courts, I for one, sir, would be willing to defer to the opinions of the bar on this subject and so far as I have heard an expression from members of the bar in this Convention, at least from my own section of the country, they think the legislature should in their discretion rearrange the districts as soon as the gentleman from Harrison has indicated by his amendment. I know, sir, in my own county the civil docket is very far behind. There are a good many cases that have been on that docket for years, and the same is true, I believe, in all the surrounding counties. It seems to me, sir, that there will be an accumulation of business until this intolerable rebellion is put down, and there will be a great deal of litigation in the courts; and while we have cut off litigation on the one hand for controversies under a hundred dollars in the courts, yet, sir, there will necessarily be a large amount of increased business in the circuit courts from the fact that we have abolished the county court. Now, sir, it seems to me but just and proper that we should leave it discretionary with the legislature at an early period to rearrange the judicial circuits of our State. It seems to me it would be wisdom to do so. If the demands of the people and courts do not require that they should be re-arranged; if it is found that they have time and that the workings of this system are producing proper results, why, then, there will be no necessity for a rearrangement of the districts. But if, on the other hand, it is found that justice is retarded and that our dockets are crowded, that the judges of the various courts cannot do the business so as to meet the wants of the people, it seems to me that it would be entirely proper to let the legislature re-arrange the judicial circuits. With these views, sir, I shall go for the amendment of the gentleman from Harrison.
The amendment offered by Mr. Harrison was rejected; and the question recurring on the third section, it was adopted.
MR. BATTELLE. I believe it has not been amended.
MR. BROWN of Kanawha. I believe all the amendments offered were voted down.
The Secretary reported section 4:
"4. For each circuit a judge shall be elected by the voters thereof who shall hold his office for the term of eight years unless sooner removed in the manner prescribed by this Constitution. He shall, at the time of his election, be at least thirty-five years of age. During his continuance in office he shall reside in the circuit of which he is judge."
MR. SOPER. I move to strike out "eight" and insert "six" in the second line. By the vote just taken, sir, the legislature have the power of reorganization of these circuits, increasing or decreasing them, at the end of five years. With that provision, sir, I think it proper that the term of the circuit judge should be limited to six years.
MR. BROWN of Kanawha. I believe no reason that I was aware of sufficient has been assigned for the change proposed. The committee in this, I believe, have followed the provision of our present constitution, which has been in operation now some ten years and in this particular has never been found fault with. It may be questionable whether the time already there is not too short, and I think the argument if not is rather against the limitation under ten years. We have had some experience in frequent changes of the judiciary, and I think it has clearly shown that the more frequent the change the greater the evil. If there is objection to the officer, failure to discharge his duty, there are provisions proposed here to meet the case, and in other provisions of the constitutions to provide a speedy and easy mode of removal, so that the defaulting officer is always at command to be removed. When you have got a good officer, when you have got one qualified for the duties, this frequent change will not better the case. It has been found by experience, too, that the continual return of judges to the people for election is a great evil. Every change of court or judge necessarily involves an expense and is a detriment to the business of the circuit to an extent that is little known to the people except the suitors and the bar. When Judge Summers was elected to the bench in the Kanawha circuit under the constitution of '52, he had perhaps the largest practice in the circuit. The result was that all his clients were standing on the docket with a possibility of a trial of their cases. That involved him in almost every case on one side or the other. The result was the state was put to large expense in procuring special terms to be held by other judges and allowances made them to do it. That system was continued for a number of terms and through a number of years, and the result was that not a special term but had something out of the ordinary course of business. People had been in the regular terms attending to their business, and special terms found them unprepared. The result is in all special terms three-fourths of the cases to be tried at special term are continued for some cause or other arising out of the circumstances of the case. Well, sir, after the election of Judge McComas for the same place, he was precisely in the same condition the judge had been before him. He had come back to the bar and was then in full practice on the circuit; and the result the whole court's business was brought to a stand-still in another set of special terms and judges brought from various counties and circuits in the county in order to hold these special terms to try these cases the judge could not try. Then another provision has been resorted to, to send these cases to the circuit court and the witnesses into their circuit courts to be tried by the judges. We have sent them to the different courts and wherever they have been sent it has been extra business crowded on another judge and in other courts where they had their own business to do and they were always shoved to the tail of the docket and are there yet untried. Well, now, try it in any way you please, the more frequently you bring about these elections the greater you increase these evils. It always will be the case because generally you will select the men that practice at the bar to go on the bench and thus you cannot avoid this evil. I think, therefore, every argument is against reducing the term to six years; and the report of the committee, both by the example set us in the present constitution and by the reason of the case, should in this stand as it is.
MR. BATTELLE. I am opposed to the amendment offered by the gentleman from Tyler. I would rather personally have a time fixed here for the office of circuit judge twelve years than six years; and I believe the Convention know that I have thus far been in favor of the liberal features of this Constitution, and I expect still to do so; but in reference to the office of circuit judge I wish to see such provisions adopted as will remove it as far as it is safe and practicable to do from the perpetually recurring effects of party strifes. I think, for one - and I take pleasure in saying it here now - that according to the result of my limited observation that among the things of which the State of Virginia have reason to be proud before the world it is in her past history in reference to this feature of the operation of her government. The general purity, integrity and elevation as exhibited in the character and acts of her circuit judges; and I would not see any provision inserted here which would tend to belittle the office and which will make it depend on the chances and exigencies of necessarily frequent political, and perhaps, party elections. I am satisfied with the report of the committee. I am no lawyer and by no possibility can be either now or hereafter an aspirant for judicial honors. I think I represent, or at least I speak as the representative of the people in this, or I might speak solely as one of the people, in opposing the amendment proposed by the gentleman from Tyler, with very great deference to his superior wisdom and years, and experience in this regard. I think we ought not to lessen the term of the office fixed here by the provision in the report of the committee. If any alteration, I for one would be in favor of increasing rather than lessening it.
MR. STEVENSON of Wood. Mr. President, I am sorry that I shall have as the gentleman from Doddridge says, to take the parting hand of my friend from Ohio. We have voted together on what he calls the "liberal features" of this Constitution, and as he expresses a desire to do so still I hope after I have made my short speech he will be all right again.
MR. BATTELLE. One word. I do not hold that I have left that track in adhering to the provisions of the report of the committee.
MR. STEVENSON of Wood. No, I only supposed that he intimated he was about leaving it. That is all.
Well, I will state, Mr. President, that so far as I have observed the working of long terms in judicial positions, it has led me to rather a different conclusion from that arrived at by my friend from Kanawha. I think that if anything has been proven in the history of this country, and about which there ought to be very little dispute, it is that long continuance in any office has rather a corrupting more than a purifying effect on the holder of that office. And what is true in reference to other offices is true in reference to the judiciary where the term is made very long. I know there is a likelihood, of course, that you may cut down the term too short, and run to the other extreme. But we will find that in this, as in everything else, probably, that the medium is pretty generally where all the good is found. If that is a fair deduction, sir, from such observations as I have made I wish to apply it as an argument in this case. Now, sir, six years is long enough, it seems to me, for the term of a good judge, and six years is just six years too long for a bad one. I know there is a mode provided by which you can get rid of this incompetent judge, but it is full of formalities and will probably scarcely ever be resorted to - be put in that class as in cases where offices are filled by incompetent and bad men in other cases; would rather bear the difficulty till the end of the term than resort to the measures prescribed. I think, sir, I have seen probably within the last year or two some of the effects growing out of the long continuance in office by politicians, or, if you please, by judges. I allude now particularly to the rebellion which is in our midst. The projectors of that rebellion; its aiders and abettors - the men who led the masses to engage in the rebellion - are men who occupied positions, either as judges, or as executive or legislative officers nearly all their lifetimes. That seems to me to prove the assertion which I made a while ago, as far as I go. The question now is here: whether this term of six years as proposed by the amendment of the gentleman from Tyler is not sufficiently long to enable any person filling the office of judge to perform his duties, and whether eight years will not be too long, as leading to the difficulties which I have intimated. I think the latter will be true; and I think that in the states - for there are a number of them where judgeships have been sustained within the last few years the result is such as I have stated. It has outlived the office rather than the contrary. There is another principle, then, peculiarly a Virginia principle - at least it is an American principle, and I think a correct principle because a republican and democratic principle - and that is that all men who represent the people in any capacity, whether legislative, judicial or executive officers or agents, shall be frequently returned to the people and that the right to rise to occupy an office shall be a principle observed in all the regulations of this country. The principle is a correct one, I do not care whether you apply it to a judgeship or any other position, with a frequent return at intervals of these agents or servants back to the people again has a purifying and exhilarating effect on the people and on the men who fill the places. For these reasons I shall have to part with my friend from Ohio for a little while and vote for the amendment of my venerable friend from Tyler.
MR. HAYMOND. I am with the gentleman from Tyler. I am opposed to anything like a life estate in this government. A few days ago we were fixing the time for the justices of the peace. We all said it would be dangerous to allow them over two years. Now, sir, what is the difference between a justice of the peace and a judge of the circuit court? The most difference is the pay. The judge gets his pay and the justice does not. If you extend the time of judges from eight to twelve years, would it not be a very great disadvantage to the young men of the country who are preparing themselves for lawyers, who are looking up to be judges some day? I think, sir, it would. You may recollect, Mr. President, some years ago we elected a President of the United States four years with the right to be re-elected. That time has been changed. It was thought four years was enough. There were other men who wanted to be President. There are other men who want to be judges; and I am opposed to a life estate in the government.
MR. BATTELLE. There is no proposition to make the term of office twelve years. The question is, I believe, on reducing it from eight to six. It seems to me the same principle ought to operate here as in other cases. An office is not for the good of the individual; offices are filled for the good of the people. This, or ought to be, the sole controlling motive. The question before us is simply, which is the better for the interests of the community? Not as providing a place for this man or that man. We do not make places for the sake of the individual but for the good of the community. Now, there is a reason in my mind very clear and palpable why the term of the office of circuit judges should be longer than that of the ordinary local magistrate. The office requires great learning, great research, and great experience for the purpose of properly discharging its duties; and by limiting the term to six years, about the time a man has by experience and research become fully qualified for the discharge of his duties you oblige him to vacate the office and subject him to the temptations during the latter part of his term of preparing the way among the people again for his re-election. I wish to avoid a recurrance of that sort of thing any oftener than is absolutely indispensable. I do not wish, by any means, to give to any man a life tenure in office; but my reason for opposing the amendment is based on what I conceive to be, not the good of the individual - for that whatever weight it has is a minor consideration - but my reasons are founded on what I conceive to be the interests of the community. I would have this officer, in whose hands to a very great extent is suspended all our liberties and fortunes and lives - I would have him so placed that he may hold the scales of justice equally but firmly and remove from him as many temptations as possible to have those scales preponderate unjustly either to the one side or the other.
MR. POMEROY. Mr. President, I am not in favor of short terms for offices where it is actually necessary for them to be long, but the view I take of this question is just this, that if a judge is fit to be judge at all he will undoubtedly, unless it is by feebleness of health or something of the kind will be a candidate for re-election; and that is the reason I am in favor of the amendment of the gentleman from Tyler. I think twelve years is enough for a man to be on the bench. I agree with the gentleman from Marion in regard to giving them a "life estate." If a man was not to be re-elected, I would favor the longer term. But re-elect him after eight years and give him sixteen is too long, and I think every man will feel so; that at the age at which a man is elected judge he ought not to be elected for sixteen years. I believe it is a very general sentiment of the people that if a judge acts anything like he ought, he should be re-elected. And therefore I would be in favor of this amendment because it will give the man in almost every case time on the bench which I think is sufficient. If the friends of the measure and those that have had it in charge are opposed to this short system, then if they would be willing to say that men should not be re-elected, then I would go for ten years - but I think ten years - twelve at the most - is long enough for a man to be on the bench. I could very clearly show that the long term is a corrupting influence on the men, but it has already been done by the gentleman from Wood. We find there is far less charges made on the governors where they are elected for only one year than where they are elected for a longer time; and I think that would hold good in regard to charges on all these officers. It is said the judge ought not to use his position at all to promote his re-election; but leaving it eight years as reported by the committee and let him be re-elected and it does not do away with that. He will be just as likely to electioneer after having been on the bench eight years as six. So that that evil would not be done away with. And I really think twelve years is long enough. The office is lucrative. It is not every man that can be a judge; and therefore I would be in favor of this amendment if it is understood we are to reelect a judge. If not, I am in favor of about ten years.
MR. SINSEL. It has been my lot to be about a court-house a good deal in my life and I have seen the practical workings of the two systems. Now, before the last constitution, our judges were elected during good behavior; and I am fully convinced and satisfied that so far as our county was concerned it was better than it is now. I am opposed to shortening the term from eight to six years. If you elect for six years, judges are only men after all; they wish to be re-elected; and they will devote more or less of the last two years to electioneering, preparing for a re-election. Well, then, they would to a certain extent neglect their business for one-third of their term - two years at least before-hand - to shape their course to be re-elected; and this is done very frequently at the expense of some suitors. There may be a land suit or some one involving a great deal that they dread to decide for fear of incurring the displeasure of either one or the other of the parties where they have a great influence so that as much as possible they will stave that off until next term. Well, now, if you elect for eight years instead of devoting one-third of their time to re-election they will only devote one-fourth of the time to re-election, especially if they commence two years in advance, as they are very likely to do. Well, then if a judge has given satisfaction for eight years and the people desire his re-election I see no reason why they should not re-elect that man; so I am opposed to the amendment and shall vote for it as reported by the committee.
MR. HERVEY. I am in favor of the amendment of the gentleman from Tyler. A man to be elected judge must be, generally speaking, between forty-five and fifty years of age, say forty years of age; by the provision as it comes from the committee may be reelected. That may make his whole term sixteen years, a difference of four years if regarded the term should be six. He may be a man well capable of discharging his duties at the time of his election and re-election, and yet by the .ordinary course of events he must become feeble in health, as it is hardly likely that any one man can stand sixteen years of laborious service as judge. Besides, our policy is not to invest men with life estates in office. We have been pursuing a different policy heretofore. We have reduced the office of justice of the peace two years from four and prosecuting attorney the same. The general policy of this Convention has been to reduce instead of increasing terms. This is the constitutional provision. Now, the argument that we should elect a man for a long term because you get able men does not meet the case. Can you get able men for six years with the possibility of reelection? I cannot see the force of that. Suppose a man is elected for six years; he discharges the duties well. Will the people not most likely re-elect him? I am in favor of giving in this respect the largest possible liberty to the citizen. Besides long terms of office take away the responsibility of the holder of the office from the people and away from the agents of the people. They are not responsible to the people, and if re-eligible there is an impulse always resting on him to discharge the duties and be faithful so as to make a re-election. I am in favor of the amendment of the gentleman from Tyler.
MR. BATTELLE. I have spoken twice but appeal to the indulgence of the Convention to say one other word I forgot to say before, and that is this: with the responsibilities, as I understand it of a merely representative officer and of a judicial officer to the people are very distinct and different. Or rather they are responsible in different ways. A merely representative officer, one who is elected, for example, to the house of delegates, or senate of Virginia, or the Congress of the United States, is responsible only to the laws of the land; but according to our theory of government he is responsible, and wisely so, to the will of his constituents, but, if you please, above all their caprices or prejudices. He comes under our organic laws which wisely provide for the frequent return of that sort of office to the people. It is their right that they should be frequently returned to the people and that they shall pass upon them, not only in reference to their conduct as touching the law either constitutional or statute but as touching their obedience even to their will or, if you please, to their prejudices. Now, sir, according to our theory of government, if I understand it, a judicial officer is responsible also to the people but in a different way. He is responsible in the eye of your written law, whether his term of office be long or short, his responsibility should be clear, distinct and emphatic in reference to his removal from office as you please to make it. And he is responsible - wisely so - for the proper discharge of the duties of his office, not to the caprice, prejudice or whims of people, but he is responsible to the written law as you yourselves have put it down and nominated in the bond. Now, sir, a judge, in obedience to the dictates of his high office, may sometimes feel himself, in vindication of the principle of justice in the person of one citizen of your county, compelled to violate the wishes and prejudices and the caprice of every other man in the county. If he does so unjustly, let it be written in your law that he shall be subject to impeachment and removal from office. But if a judge be compelled, while vindicating the law in the person perhaps of one of the humblest citizens of the community though he may run counter to the feelings and desires of every other in the community, we ought to so put it into our law that by frequent returns to popular elections that man may not be tempted to swerve from the requirements of his duty though those requirements lead him in the face of a large majority of his constituents. I do not know whether I have succeeded in clearly expressing the idea that is in my mind. Perhaps I am like a judge I once read of. A man was made judge who had no legal knowledge at all and very much to his own surprise and mortification. His first impulse was to resign at once. He said he did not know anything about the duties of judge. A friend with whom he consulted told him by all means to accept the position and go on and always do right and be very careful never to give the reason why he did it. The idea which I wish to express is, I think, distinct in my own mind. Perhaps I have not succeeded in clearly expressing it on the minds of those who hear me. It is then on account of this difference in the way judicial and other officers of government are responsible to the people that I oppose shortening the term of office. I do not care what you put in the Constitution, and the more the better, to make these officers responsible to the properly constituted tribunals, I would increase rather than shorten that responsibility. But when we have got a good officer let us keep him, and let us remove as far as possible those temptations which perhaps few men in the land are capable of entirely resisting or pandering to and debasing their high functions - of perhaps the highest offices we have - to the mere prejudices and whims and unreasonable caprices of the people.
MR. STEVENSON of Wood. Mr. President, the argument of my friend from Ohio is unquestionably a good one but I think upon a little reflection he will discover it applies with equal if not greater force against his position than in favor of it. The whole argument is based on the supposition that the position of judge is something very different from all the other positions in society, that it must be regulated upon an entirely different principle. That is not more true than it is of any other office. There is a difference between a legislative office and an executive office. In fact, there is a difference in almost all the offices to some extent, and in some cases the difference is the very opposite to that condition of things that is found in the other offices; so that it seems to me the argument of the gentleman does not apply there. In what respect is the judge less responsible to the people than an executive officer, or an officer who makes the laws of a state? Why, I take it the responsibility in one case is just as great as it is in the other; and if this argument of pandering to the whims and prejudices of people is true it is just as true in regard to executive and legislative offices as in regard to the office of a judge. I think there is a fallacy in the whole argument. I have heard it urged here twenty times. It seems to be based on this principle, that the great public tribunal, the people themselves, is less to be trusted than somebody just constituted by that tribunal to act for them.
MR. BATTELLE. The inference - for I said nothing of the kind - the inference the gentleman may draw from my remarks that I wish to make the judges responsible to any other source than the people is a very erroneous one. I have said that I think the people as well, indeed, better qualified to elect their judicial officers than as we used to have it, the legislature. I make no objection whatever to that, but to the frequent re-election.
MR. STEVENSON of Wood. There is no difference between us there; we agree exactly. But it seems to me in the application of that principle there is a difference. The difference is just this: that I say when a judge performs the duties that attach to that office with fidelity and industry and impartiality the great bulk of the people are better calculated to judge of that fact than any lesser number of people. And therefore if you make re-election - if it is so that a judge is to be re-elected, if he performs his duties impartially, if he even strikes down some favorite in some particular community, or a number of favorites the people themselves at the end of that term will appreciate that impartiality and sternness of his justice, and that will be an argument not against the man but in favor of his re-election and will operate so. Why, sir, the principle is a correct one as suggested by the gentleman from Tyier if it applies at all. Why not give them the term during good behavior, as under the old constitution, if the principle is true? No, sir, I say the principle that has prevailed in this Constitution and every one that has been made within the last few years has been this: that the frequent return to the people of the persons who fill all the offices of every kind is the correct principle, and they have acted on it; and the sense of this Convention so far has incorporated that principle in every vote which has been taken here; and I tell you, sir, that in the working out of the end you will find that that is the right principle after all. Talleyrand, I believe it was, who said once it was a common saying that "everybody knows more than anybody." The people - the aggregate public mind - will arrive more speedily and correctly at a conclusion on any great question in reference to any man or principle than any small body of men will; and I base my whole argument in favor of the amendment, or a considerable part of it, on that fact.
MR. BROWN of Kanawha. The gentleman from Wood has given his views as predicated on principle, and that that principle is the popularization of the government; that it is the fundamental principle and should be carried into action. Now, sir, the gentleman has failed to draw the distinction I think in that principle in its application. We predicate popular government on the idea that power derived from the people is to make the laws and therefore they ought to be made by the agents in conformity with the wishes of the people. The more frequently you return your agents back to the people who make those laws the more plainly will you have impressed on the law the popular idea. But when that idea has been carried into a law and has become the law, then the rational presumption is you want that law faithfully carried out and applied, and not by any other influences to warp or change its execution, but to carry it out faithfully and fully in its application to all the people. The question then arises of selecting the agencies. In this view of the case in this department of your government what idea is to prevail? Are you then to select your agencies with the view to attain the best qualifications and from experience? He who guides not his pathway by the law of experience will find himself in a labyrinth of error. To secure by your agencies the more faithful execution of that object by bringing to your aid the necessary wisdom, and experience and independence. Well, now, gentlemen have given us something of the probable workings of judicial systems. It is not a departure from the most popular idea in human government. If they give us the experience of the past - and I must add my experience with that of those who look over the experience of the past - we will see that the judiciary of Virginia stands second to none in this country; and that if there is a distinguishing mark in the characteristics of the judiciaries of any country in the world I know it is in behalf of the judiciary of this commonwealth; that they have no superior either in this country or out of it - characterizing for integrity, for uprightness of purpose, for firmness of character and decision in all their transactions. That judiciary has been one that has held its office for life until very recently; and I believe the universal testimony of those who have had occasion to look over the subject of the judiciary within the last ten years that it has gained nothing over the old judiciary by the elective feature for a short term; that if there has been any change it has been for the worse; and many and loud have been the complaints throughout the country people on account of this very defect.
Well, sir, the gentleman appeals to this fundamental principle laid down in the bill of rights. It is a principle which I adhere to as strongly as he does, that government should be based on the popular will, and public agents should be frequently returned to the popular will for approval or reform. But I will call his attention to the fact that the great statesmen and philosophers of that age who eliminated this principle and published it to the world, when they undertook to act on it did not carry out the idea of now-a-days in its application. The very men, the Revolutionary fathers, who laid down this principle applied it on correct methods of business to legislative, executive and ministerial departments, themselves established a judiciary for life. They discriminated in the application of the principle which the gentleman now seems to fail to do again, sir. Look at the fathers who framed the Constitution of the United States. I think that I would receive one universal sentiment of approbation when I say in this convention - Virginia convention - that the convention which framed that Constitution was composed of the best and wisest men, sir, that ever sat in this or any other land; that they entered on their labors with deliberation and calmness, with the high sense of the responsibilities and duties with regard to the future welfare and best interests of their common country; and that in framing an executive department they placed the President of the United States at the term of four years, the Senate of the United States at six years, Congressmen at two years; and when they came to the judiciary they fixed it during good behavior, for life. As long as the judge should discharge the duties of his office faithfully amenable only to the tribunals they arranged there to try and test his fidelity. And what now is the glory of the judiciary of the United States from all states in the nation? It is the fact that those judges hold their office and are above the turmoil and confusion of those warring elements below them; that they can survey the whole field of the Union in respect to the Constitution and laws in any case unbiased and unprejudiced, unterrified by anything that surrounds them. Turn them back and make them elective for a few years and how soon you would destroy that court's usefulness in the future government. I ask gentlemen if they would be kind enough to do themselves the justice to read an article published many years ago in defense of the judiciary of the United States written by Mr. Horace Binney, of Philadelphia, in reply to some criticisms of English lawyers on that judiciary and that bench. It is one of the ablest documents on that subject that has ever fallen from pen of man, in which he defends the judiciary as the foundation of the state, the groundwork of American liberty and independence.
These departures from this principle the gentlemen tell us have been carried into all the new state constitutions framed within recent years; but they do not tell us that nowhere have they been found to work well. I do not know of any instance - if other gentlemen know they can tell us - where this term has been reduced below eight years in any state constitution; and if there is any such instance, I do not know an instance where it has been found to work better than when it was eight years and longer. On the contrary I will have to deny that there is a state in this Union whose judges serve for less than eight years are better than those of Virginia who served for eight years or longer; that they had better or purer judges anywhere. But that their short terms have never improved either the attainments of the bench, its integrity, its decision and character. Then, why do you offer it? Why cast aside the best experience of our fathers; why abrogate the fundamental principle under which we are living without reason, when every reason is against it? And for what? for the simple change, or to shorten the term by two years. We have adopted, I believe, the rule of four years for magistrates, and is it too long to double that term for a judge? We have adopted a term of four years for sundry officers; and if there is reason or experience on either side it is all in favor of the longer term. I can very heartily concur with the gentleman from Ohio in saying - while I am not prepared nor is it my duty as chairman of the committee to offer to change this report - that had the term been fixed at twelve years it would have improved the bench and thereby benefited the people.
MR. HERVEY. The gentleman from Kanawha has passed a beautiful eulogy on the judges and courts of this country. Well said. But, sir, it is a poor ship that will only sail in fair weather. It is a poor ship that when the storms come that will not ride the storm. The gentleman stands here an exemplification of that fact. He has recently been elected to fill a vacancy occasioned by the dereliction politically of a judge of his circuit. Why, sir, what is the fact? Is it not notorious that the southern judges, literary, able, as they are, have been the very leaders, were the van, of this rebellion? Why, sir, even away up here in the panhandle, away from these influences, did not that thing occur? Where is your Camden, and others that might be mentioned? Gone to Dixie. Some of the members of your supreme court have taken the same course. Have they proved that in the hour of their country's danger they are to be rallied round and lauded and extolled and supported and invested with life-estate, because they betrayed their country? God deliver me from such judicial fruits as that. I think, sir, the fact has been conclusively proved that these terms ought to be reduced; these life-estates ought to be taken away; and the principle has been triumphantly vindicated that they ought to be returned back to your people from whence they have sprung and whom they have basely betrayed. I do not detract a word from the literary capacities and talents of these men. I say amen to all that argument of my friend from Kanawha; but "by their fruits shall ye know them." They have been the file leaders in this rebellion. They proved themselves untrustworthy, and the gentleman himself is an exemplification of the fact.
MR. VAN WINKLE. Mr. President, I take or feel very little of practical interest in the precise question that is before the Convention; but in my opinion it is entirely a practical question which gentlemen can decide for themselves according to their view of the circumstances which enter into the problem. It is very true, sir - and it is the case with all officers - that if you get saddled with a bad one you would like the time to come very quick when you could make a change; and if you have a very good one, it does not matter if he is not changed at all. The object of all these regulations is to endeavor as far as possible that the public shall be well served in these different offices and still have the control of them. Shakespeare says "there's a divinity doth hedge a king," and the doctrine seems to be here that "divinity doth hedge" a judge. I do not believe any such talk. I believe there is no more reason why a judge should be guarded and hedged around than a member of the legislature. Both of them are open to solicitation and corrupt influences around them. I do not know that it is more dangerous in the one case than in the other. We have heard, sir, often of this old maxim about the "independence of the judiciary and bar." We adopt it as meaning anything at this time of day. We who have looked into this region to what it does mean; was intended to mean. It is one of the principles of constitutional liberty of our forefathers in the mother country. It was adopted there because the courts stood between the crown and the people. The judges being appointed by the crown, and being - as has been admitted, I believe in all generations, that notwithstanding they were made life-estates and so removed from the fear of the crown. The lawyers were always found sufficiently submissive to the crown. I do think one of the most contemptible curs in history is Sir Edward Cooke - the father of all the lawyers (Laughter). A more servile scoundrel never stepped, perhaps on the face of this earth. The same conditions exist here as there. Do the people want to interpose this sovereignty of life-estate between these judges and themselves? For that is the whole question. The judge is their officer, as much as any officer accountable to them, appointed by them; and he is moreover made by the very terms of the report under consideration, made amenable for neglect of duty - I suppose he will be; all officers may be - for incompetency and neglect of duty. I thank the gentleman from Doddridge very much, for I believe it was he, who introduced that word "incompetency." I think the remedy lies there, if they will give us a way of punishing these judges and of getting at them to remove them if they do neglect their duty for any reason, I think the people have a great safeguard.
But, sir, to follow down this principle, in establishing the Supreme Court of the United States there was a reason there why that should be made to some extent an independent tribunal; and the reason is this: that it stands between the executive and legislative departments of the government and has charge, as it were, of the protection of both, and therefore ought to be subject to the whims of neither. Again, it stands between the states as independent sovereignties to the extent that they are, and the general government. And there is another reason why those judges ought not to be subject to the whims of either: it stands, as it were, perhaps to some extent, between the people and the general government. It has functions to perform such as no other court in the whole nation can be said to have. Why, sir, our courts have no such powers. Our courts, it is true are charged with the duty of interpreting our Constitution and they are called on to perform the most important functions in questions affecting person and property rights of the people, where it is exceedingly desirable we should have the best men to administer; but there is nothing that would bring that principle that was established, as I say, in England to apply especially to our circuit courts in this country or to our court of appeals. I do not see it, at least. The true point here is, and it has been asserted by those who have advocated a longer term, that in order to get a good lawyer, a man entirely competent to take a seat on the bench, you must hold out sufficient inducements. One of these is to be found in adequate compensation and another in the long term. As the gentleman from Kanawha very justly observed, a lawyer who had a business by which he is earning in many cases a good deal more than any salary you are likely to give any judge is required to abandon that practice which after he has been out of it even two years he cannot resume at once under scarcely any circumstances because services to the public pay less money than he could earn by continuing his profession. Now, you cannot get such a man to come forward for one or two years. There is no inducement. As he begins to advance in life, he has laid up a little money and his work is becoming a little tiresome and he may be willing to go on the bench to serve for what he may consider an adequate salary provided he can be assured he can be kept there a sufficient time to make it an object to him. If he was limited to two years there would be no inducement whatever. But two years is manifestly too short, and twelve years would be too long; and it is for the good sense of the Convention to fix a term intermediate somewhere between the two. I should have very little choice myself and should hardly know how to vote between eight and six years. It is a matter, of course, which my practice of the law does not aid me much in determining. The question is about the inducement that is to be held out to a competent person to take the office. Well, between the danger that you may get saddled with a bad one and the chance that you may get a good one you are to choose between the shorter or the longer term. I hope when we come to fixing the salaries of this office the Convention will perceive that the arguments that have been urged here in reference to the long term all apply to the question of salary as well as any other. Depend upon it, a judge in any one of these circuits or on this court of appeals, if he does not attend to his duty has no sinecure; that according to the way legal services are paid, he will earn every dollar of any salary you will be disposed to give him; and, gentlemen, a good judge, one who is competent, has a good legal knowledge, would richly earn double what in all probability you will be willing to pay him; and it would be a saving if you could insure the occupancy of your judgeships by such men. I have no doubt of it because when you come to consider the costs of law - by the way, a friend of mine used to say it was a luxury and ought to be paid for as such - but when you come to consider the costs, the mere costs taxed in the appeal are not the consideration or but a small portion of it - I believe I may say, a very small portion of it. The time that is spent in preparation, in attending the courts, the juries, the witnesses that have to be called at every court - it is these things, and such as these, that make up the expense of the law to a community. The mere sum in dollars and cents reported by the auditor as the expenses of the judicial system cannot represent one-half of it in its cost to the people. And, therefore, the question of filling the bench with the best men that you can get there is one that is a real question of economy. The paying of a few dollars more salary is a small consideration if that can be effected. I, sir, for one, with the gentleman from Kanawha, admire the judiciary of Virginia. There is no necessity for me to bear any testimony to that. We know the decisions of our courts in former years are received in every state and abroad, always with respect. The decisions of Virginia are referred to everywhere with respect.
But I cannot agree with the gentleman that the fact that we have made our judges elective has had any tendency whatever to reduce and detract from the respectability of the courts in later years, if such has been the fact. I think the gentleman will agree with me, air, and perhaps every gentleman here will if he will look into the subject closely, that there was another cause that has tended to affect the judiciary a great deal more than that fact of making them elective by the people. Perhaps the very thing that induced the people to call out and require those judges to be made elective was the evil to which I am about to allude. In ancient times in Virginia and in most of the other states when a judge was to be appointed by the legislature, the fitness and qualifications were carefully looked to. And if they often took from their own side of the house they looked to get the best man they had and appointed generally a man of good judgment, correct habits and having every other qualification as far as they were to be obtained for the filling of the place; and doubtless, sir, we had on our circuit bench even at that time judges who were themselves fully equal to occupying the bench of the court of appeals. I apprehend the general court, which consisted of all the superior and circuit court judges, contained a large proportion of men who were abundantly capable of being sent from there to the court of appeals at any time. It is the court of appeals whose decisions are reported that give character to our judiciary abroad, and what I am saying now is that the state quarterly circuits contained many men equal to those on the court of appeals.
But what, sir, was the evil? These appointments when made by the legislatures of the several states, I can myself lay my finger on the time when the change took place in this country, if it were worthwhile to back such matters in a discussion here, could point out cause and men that led to it. And then former considerations were left out of the question. Men were appointed to judgeships, as to anything else, simply because they were noisy politicians or useful politicians. I do not mean to say previously to that a man's politics had been disregarded. But between two men, one of opposite and one of the same politics, those who were called on to select would take the man of their own politics. There is no objection to it in that point of view; but when it becomes but a mere partisan matter, with partisan leaders, and to fill the offices simply because they made the most noise at the polls, then the evil culminated. And, now, sir, if you say the people themselves have abused this privilege of electing their judges in the same way, I would say in reply that if the office was brought down to this partisan level in the legislature you had better put it in the hands of the people directly. The remedy will come soonest when in their hands. Experience, they say, is an excellent schoolmaster. While the thing was new and first appointments of judges were to be made it may be the people were careless about it; but after they have tried once or twice they will be more careful. I do not say, sir, by any means, that the judges selected here in 1852 were very good judges. So far as my observation extended, while they were younger men in many cases, yet I think I will say this, and I think the experience of most gentlemen will agree with me: they did dispatch business faster than their predecessors, at least I speak of my limited experience. There is a want perhaps in selecting men to fill these offices not so much of mere judicial ability, legal potentiality, as to find united in the same person not only legal ability but industrious and business habits. Or take even that legal ability and industry, yet to wade through the business of a trial, to dispatch it, to give everything its proper chance and yet to be pushing the business requires a systematic mind - a business mind we may call it - which is not always united in the same person. And when I say this, I only admit the truism that something is never perfect. We have got to do the best we can.
The considerations that will come up under this section of the report and under various other sections will be the practical question, what is best under the circumstances? And while I have given perhaps the views that will govern me as to how I shall vote, I may not be able to apply them correctly even according to my own authority. But I think it is a practical question worthy the consideration of every member as to, first, the effect that the long or short term will have in inducing proper men to take the office; and, second, whether there are remedies sufficient to get rid of a judge who should not answer the expectations of the people, so that you would be safe in making the term a long one. As I have already stated, between six and eight years I certainly have very little choice. I trust, however, that this is a matter of so great importance and so very near to us, that due consideration and reflection will be given to it by every member free from prejudice, seeking only to see what is best to be done under all the circumstances.
MR. DERING. I do not rise to make a speech on this question, but merely to suggest an amendment which I think will have a considerable influence on the vote of this Convention on the pending question. My amendment will be of this character, in the 43rd line, after the word "constitution" to insert: "but he shall be ineligible after having served two terms." Now, Mr. President, if one term is to be fixed upon by this Convention, I would certainly advocate the longer period; but if he is to be eligible for a second term, why then I should go for the shorter period. And while I concur in the arguments that have been adduced in favor of the shorter term, yet, sir, I think a judge, if he is a good one, should be kept in office for at least twelve years. If he is a bad one, we had better get rid of him at the end of six years. I will leave this amendment of mine to be thought of and discussed by the Convention and shall vote for six years if they conclude to make him ineligible after two terms; but if, on the other hand, for one, to make him eligible to a second term, I shall vote for the long period.
MR. SMITH. This is a subject in which, as a citizen, I feel some interest. My own opinion is that the judiciary have a wider influence - a quiet influence - than that of any other body in the country. Their operations are quiet but none the less felt. And a pure judiciary and a learned judiciary have a great and beneficial influence on the morals of the country, and upon its prosperity. People do not without first considering the subject see the great importance that belongs to this branch of the government. I regret that a prejudice to some extent exists in the country towards them. One of the best judiciaries the world has known - the ablest and the most pure and upright, is the judiciary of England for the last two hundred years. We are all in the habit of looking to it for its wisdom, its purity, and its just administration of the laws of the country. In this country, law is king. We have no monarchy before whom to bow but the monarchy of law; and that law is administered by the judiciary. That monarchy ought to be pure and learned, he ought to be, but for the prejudices of the country, lifted up to independence. I know it is a position that will rather startle the public mind; for I say it is the interest of the poor and humble that he should be so. The great and powerful need no protection; their influence in the country - their wealth buys them protection, secures it to them; but to the weak and humble it is far otherwise. They are the subjects of oppression, but give power and independence to the judiciary and there is their shield, their protection. I go for the independence of the judiciary. I am in favor of it as an original principle, not on account of the rich and wealthy but on account of the poor and humble who may ask protection from it and ask it in safety. Our distinguished Chief Justice Marshall in the later period of his life when in the Convention of Virginia in 1829-30 makes the remark that "of all the ills that heaven can inflict on a weak community, the worst is a too dependent judiciary." I concur in the sentiment. There is a judge to be elected; he comes in for office; he has served one term and he seeks re-election. Every man who is his elector may be sued in court; and however just and righteous he may be, he will be swerved more or less by interest. It will control the best; and when a man who has a hundred votes at his beck and a poor humble dependent that can hardly control his own vote come in collision in his court, how does the poor and humble man stand? Here the judge says I decide in favor of the humble man and lose a hundred votes. I decide against him, I gain a hundred. Now I ask you, considering the frailty of human nature, its inability to stand against temptation whether justice is secure under such a contrariety of interest on the part of the judge? To make him independent, to place before him no temptation but the desire to do right and to be upright and honorable with a high reputation in his position, where the humble can stand on the same pedestal as the rich - the man with his two hundred or three hundred and the man with his million - so there shall be no difference between them. He stands his equal in every respect before the judge. I admit that in the former convention I was for submitting the election of judges to the people; and I was led to that from the fact that party had had such a powerful influence in the election of judges that I thought perhaps the people would be more honest and would make better selection if one party were entirely excluded from all participation in the office. But I must confess that the effect produced by the operation of this rule upon the public has greatly disappointed my expectation.
Sir, I undertake to say that the judiciary of Virginia has declined in learning and wisdom and purity. I have had some experience of it in my own country; I know how it operates there. There is a man now who is fleeing to the South in pursuit of his "rights" who has been elected to that office but is unworthy to untie the latches on the shoes of a competent man. He has neither learning nor integrity; yet he takes the stump for four months; he prods about his neighbors' log cabins, kissing every dirty child he meets to secure this office. I maintain that he who will prostitute himself to secure an office by electioneering for a judicial office is unworthy of the position. He should not have my vote. But it is done. I recollect in the convention I said I did not believe that any man who aspired to this office would dare to take the stump to electioneer for it; but now, sir, at the cross roads every sort of maneuver and trick is resorted to by those who aspire to that part of the judiciary. I am disgusted; I claim to have no interest in this matter; but I have a love for my country, and I desire to do that which will promote its great interests. I am here defending the rights of the poor and the humble. I will not undertake to defend the rights of the rich. They can defend themselves; but I say that the poor and humble, the unenlightened, the weak - they are the parties whose interests we ought to look to. And yet when this is the case, unfortunately for the country and if this view is taken of it, we are looking out for a return of election to this office to the destruction of that other community whom we claim to desire to protect, the poor. I am a democrat in feeling from the very sole of my feet to the crown of my head. I go for the humble, not for the rich and yet in maintaining the doctrine I now maintain I am denounced as an aristocrat. I have not a drop of aristocratic blood in my veins. I come from a county where an aristocrat is held in contempt; and I hold it in contempt. In this great confusion which has sprung up in this country - which I regard as an effort of those who have precipitated this revolution to establish an aristocracy, and it is that which I abominate and resist. It is the idea that is inculcated in the South that a man with his hundred negroes and thousand acres of land ought not to be placed on an equality with a man in the hills here with his fifty acres. When he goes to the polls he must have political influence over and above him. I denounce the sentiment. I go for political equality; and when I come to the judiciary I go for the protection of the rights of the poor. And when I maintain an independent judiciary I think I am serving the object I have in view, the protection of the poor. Yet I say it is unfortunate that such direction has been given to the public mind that he who stands for an independent judiciary is the supporter of aristocracy. Good Heaven! How can it be alleged that he who seeks to give independence to the judge to decide for the poor as well as the rich and give security to the poor, is maintaining an aristocracy! I may maintain democracy in its most thorough purity if I maintain the cause of the poor and those who have not political influence themselves.
These remarks are not entirely, I know, relevant to the issues; but it is an auxiliary to the issue that is before us. The issue is what period shall a judge be elected for? I say the longest term. If you extend the term you remove that much farther from the elective body the transfer of this office; and the longer period you adopt the better it is for the poor. I dislike to see a frequent recurrence of this office to the people because the more frequent the less security is given to the uninfluential community. I say therefore so far from striking out "eight" and inserting "six" you are consulting the interest of the great mass of the country, and the poor and humble here constitute it by retaining the longer period or even increasing it. Let us have as infrequent recurrence to the elective power as it is practicable. I do not believe it is possible - for when the people resume power they part with it with the utmost reluctance; but if they should rise superior to their prejudices and adopt a judiciary for all time to come during good behavior I say it would be the greatest blessing you could confer on your community.
But here is a clause to which I have no objection, which would relieve it of all its difficulties: "Judges may be removed from office by a concurrent vote of both houses of the legislature: but a majority of all the members elected to each house must concur in such vote; and the cause of removal shall be entered on the journal of each house." Where a judge is incompetent; where he fails to perform his duties; where he is lazy and idle and negligent, there is cause. Where he becomes corrupt, there is cause. Where he turns out a public politician, he violates all the decencies and proprieties of life by going on the stump and making speeches. Until recently; until the whole country has become demoralized by secession, such a thing as a judge going on the stump has been unknown in Virginia. But I am sorry to say the first example of it occurred in the country in which I reside. I speak of Judge Ward, and then followed Judge Brockenbrough. He descended, as I think, to tread under his feet the ermine that surrounded his office. Judge Brockenbrough, I say, became a stump speaker in this great rebellious canvass, whilst he was acting under the solemnity of an oath. Whilst Judge Ward was acting under the solemnity of an oath to observe the Constitution and maintain it in violation of that oath and bringing down Heaven upon his own conscience, he committed perjury every day of his life in trying to break up that Constitution which he had sworn to support. Yes, sir, your judge (turning to Mr. Hagar).
MR. HAGAR. We don't claim him.
MR. SMITH. He is your judge, and he is one that was elected by the people.
MR. HAGAR. A disgrace to them, too.
MR. SMITH. That is what I fear of your elective judiciary - that there will be disgrace upon disgrace heaped upon the country.
I am an old man and have had much experience in the judiciary, and I pray you, in the name of Heaven, if you do make a judiciary, make it independent - as independent as you can. Forget all these narrow little prejudices that grow up in the public mind and come up magnanimously to the issue; to the question of the interests of those who are involved, and do your duty fearless of consequences. If I sustain a measure that I cannot justify before my constituents, I go by the board; and that is a good rule for every member of a legislative assembly to adopt. Seek what is right, looking to the right and do it and take the consequences. That is a good rule. But too many of us stop and look back to see what his constituents will say. What will the influential men say about it, and how will it operate on my future election? He who does this does not perform his duty - his whole duty to his country. I want this Convention in framing this measure to look to this result: what plan of a judiciary most advances the interests of the country? The mass of the country; the humble class to which I have referred. What form of judiciary; what term of office; what mode of election will best serve the great public interest? Ascertain that and then, though the heavens fall pursue it. That is the true policy; and whenever I hear men get up and ask for short terms I am very much afraid they are looking back to see how their constituents will regard it.
I, therefore, of course, shall oppose striking out "eight" years. I would prefer - and I say it from long experience - that I would be subserving the very best interests of the country - to make it twelve years and make him ineligible to re-election. That has two sides also. I agree with the gentleman from Monongalia that there is an objection to this. You approach nearer an independent judiciary by making him ineligible. You do approach it. For I do not care for the judge; I care for the people. And there is another reason on the other side. As a judge learns, and improves and becomes capable of doing business to the satisfaction of the country - an honor to himself - why, he is to get off. He is out of the ring and you cannot select him again. But then the question is whether you do not better serve the interests of the great mass of the people by giving him one long term and then make him ineligible. I think of the two, I would rather give him twelve years and let him be ineligible than adopt the other. But while he is elected by the legislature I would not care whether it was eight or twelve, especially as we have so admirable a safety-value in this very Constitution, that the legislature by concurrent vote may remove him. But I pray gentlemen in coming to their conclusions on this question to look to the. people - not the rich, but the interests of the poor people. I claim to be the advocate of the humble, the honest, the industrious laboring community, not those who are running from precinct and from township to township, going to cross-roads, giving out liquor and leaving money to electioneer with. I go against all that. I go for a judiciary that are in a condition not of temptation but to do justice to all.
I came in very hastily without much consideration of this question. I hope my views are understood. I hope what I have submitted to the Convention will be deliberately and calmly considered.
MR. VAN WINKLE. Before the gentleman sits down, I should like to ask him one question.
MR. SMITH. Yes, sir?
MR. VAN WINKLE. Who are these judges to be independent of?
MR. SMITH. They are to be independent of everybody but their own duty.
MR. VAN WINKLE. I suppose the gentleman remembers in England, where the crown could not say, Go down there, but could say. Come up here.
MR. SMITH. They managed the crown; they controlled the crown; they were superior to all power; and hence we derive from that very operation the supremacy of civil law. Civil laws is above the military. When they come to administer the law, they administer it justly and independently and may call down the dominion of the crown in England. But the crown cannot crush them; they can maintain the civil law. But if they are guilty of misconduct they may be impeached and removed. We have a much more extended power granted here. We have the power of removal by concurrent vote of the two houses of the legislature, not even in the form of impeachment but by merely voting; and wherever a judge is corrupt he may be removed. I want a judge to be so independent that he may be at liberty to do justice, and that if he acts corruptly he may be brought before the legislature. I say every judge has a character himself to form. There is no man so free from corruption that he will not study to protect his own interest and give his name to posterity by the wisdom and virtue which he brings to bear in the administration of justice. He has every motive to integrity and justice; every motive that can influence the human mind to be just and to be accurate in his judgment, because it is on that alone his future fame depends. But if he is an elective officer, then he has another interest much greater; he has the interest of an election to subserve and he has to cultivate the affections of the cross-road politicians, the rich men and all that class of people he has to contend with. But make him independent, there is no interest to subserve but justice, a just administration to high and low, rich and poor. That is the way I want it to be. But I have despaired of doing this, and I desire to approach that which comes nearest to it. You may put it eight years, or make him ineligible, or two terms and then make him ineligible. I would prefer taking the middle ground, giving him twelve years and ineligibility. I do not see that there is force in the interrogatory propounded by the gentleman from Wood. On the contrary it occurs to me like pandering to public prejudices. I do not seek it. I care nothing about public prejudice where I am right; and if I cannot control public prejudice, let me sink under its baneful influence.
MR. POMEROY. I do not design saying much. I believe if I understand my friend from Monongalia he is in favor of the shortest term unless made ineligible.
The Secretary read the motion: After the word "constitution," in the 43rd line, insert "and he shall be ineligible after having served two terms."
MR. POMEROY. Did the gentleman understand that to apply to the amendment of the gentleman from Tyler, that if six years is carried then after two terms he shall be ineligible?
MR. DERING. I said after. If the gentleman will allow me to explain, if they were elected for six years - if the six year term carried - they should be ineligible after having served two terms. As to the eight years, that is a matter for the Convention to consider. I do not think you should continue a judge in office sixteen years. I think twelve would be a sufficient length of time under all the circumstances.
MR. POMEROY. I conceive that it is one of the subjects that comes before us which as a Convention we can discuss with the very best feeling on all sides. The reason I am in favor of six years in preference to eight is that if they are to be re-elected it will give a judge a long enough service. I will venture to say this, that in seven districts out of nine if you make it eight years, you do not re-elect a man, while if you make it six years it will be the other way. By making it six with eligibility you will get twelve years service out of your judges instead of eight. Because however truthful the remarks of the gentleman that has just taken his seat (Mr. Smith) and I accord great weight to them, men will not be re-elected after they have served eight years, because there is a strong prejudice in the minds of the people, right or wrong, against long service. Now the question is, will you give the judge twelve years and do away with the objection of the member from Kanawha? If you put the term six years and re-elect, if the judge is anything like a good judge he will be re-elected, making his service twelve. But I am in favor of a slight modification of the idea suggested by the gentleman from Logan, that he ought to make it ten years and make it ineligible for re-election. But if we are to reelect, I say sixteen years is too long.
MR. SMITH. The term I fixed was twelve years, but I greatly prefer a longer term and ineligibility.
MR. POMEROY. So do I; but as the matter stands I am in favor of six instead of eight. You can re-elect a man who has held an office but a short term easier than if he has held it for a long term. Therefore it would be much better, in my opinion, for us to say ten years or twelve years and not be re-elected.
But it is a foregone conclusion that we cannot place this matter in the hands of the legislature. The people demand that it shall be in their hands. If there is any virtue in the theory that a man will mature in the six years and his services be more valuable in the next two years, becomes a better man by holding for the longer term - how does it happen that not a solitary man of them elected under this provision for eight years but has gone into the rebellion? Not a solitary exception is found but what they are either in active or to some extent aiding this rebellion. I tell you the fact is that having a man as judge for eight years does not make him an angel or make him stand by his country in the hour of its peril, but it does appear to make a man fit to aid in this rebellion.
MR. SMITH. For the credit of our judiciary there is one man who has not run off into the rebellion - a very worthy and estimable man and an able judge, I mean Judge Lee. He has adhered to his integrity.
MR. POMEROY. I said I did not know there was a single exception. I am glad to hear that there is one in this section of country where we might have expected they would stand firm.
MR. SMITH. Also another, Judge Pitts, of Accomac.
THE PRESIDENT. The question is on the amendment of the gentleman from Monongalia.
MR. POMEROY. Well, I am in favor of this amendment and the amendment of the gentleman from Tyler, not that I have any particular prejudice in favor of that period but because I am in favor of giving the judge twelve years of office, and if you make the term eight with re-election you lessen the probabilities that a man will serve longer than the eight years.
MR. SOPER. I have been very much gratified, sir, as well as instructed by the able arguments which have been given to us on the question before the Convention by gentlemen holding various opinions. Having made the motion to amend, to which an amendment has been proposed it may become necessary for me to offer a few words in behalf of it. I was induced to move to have the term six years because I found the Convention had adopted the five years in the preceding section under which the legislature shall reorganize, increase or diminish, the number of circuits. Probably if the legislature saw fit to take action under that section it will be done at about the time of six years from the time the judges were elected. The object of limiting the term of office to six years, if alterations may be made in the district, especially if the districts should be diminished or increased, there will be no incumbents in office who would in any way interfere with such arrangement as the legislature might see fit to make. That is the reason I fixed the period at six years. I believe myself that the country would be safe if the term was fixed at four years. We all know that the policy of the country is one of progress and improvement, recognizing at all times that the power rests with the people. Until we have tried this principle thoroughly, we ought not to condemn it. It has grown up in opposition to the order of things in former times which has been so much eulogized by some gentlemen. Let us see what are some of the objections. In the first place, the gentleman from Kanawha tells us it was inexpedient to change that because of the expense of frequent elections of judges; because if you put a new judge on the bench he would have a large number of clients and would be so interested in their cases and the questions to be determined in the court you would have to go elsewhere and get some person to decide those cases. I apprehend there is nothing very objectionable in this argument because you will find provision is made in this report requiring judges to interchange the holding of circuits, I apprehend without any increase of salaries. I do not know what the practice has been in Virginia when a judge has been called from one district to try a case in which the resident judge is interested, but I suppose he received no pay aside from his salary. If he received any benefit at all, it would be in the traveling expenses. I suppose that to be so. If this interchange of judges, this right of interchange which is provided for in the report, is carried into effect what objections arise from the fact that a lawyer is elected and cannot act on cases in which he has been interested as counsel are obviated? But I hold it would be the true policy for every judge in the State to interchange and go from county to county, all of them inter-changing, one with the other throughout the whole State. It would prove beneficial not only in the circuits where the courts are held but it would enable a large portion of the electors when they come to elect him they should consider the most talented and competent man for the vacancy in the court of appeals. So I apprehend there is no objection to the motion I have made from that point of view.
It is said you are tempting this judge to shape his course as to obtain popularity with a view to his reflection. The gentleman from Logan gave us a pitiful and mournful description of the mode and manner which judges in his portion of the state pursued to secure an election to the bench. I know very little of the character of the people in that portion of the state, but I venture to say that if a judge should come before the people of Tyler and show the least disposition to act in that kind of a way, I do not believe he would get five votes in the whole county. He would be utterly despised. If there is any argument in favor of frequent elections it is the very argument which the gentleman has put before the Convention when he describes the character of his constituency in view of the election of judges in the hope that such small influence might be brought to bear upon them that they would have some respect to the office, to their interests and to the reputation of the country in which they live. If that was the character of this people, I would have a judge elected every year and I would go to work and urge every man in the community to aid and assist me in trying to improve the minds and conscience of such a constituency (Laughter).
Who are we likely to put on the bench? All the gentlemen here have lauded the integrity and intelligence and the purity of Virginia judges. Well, so far as my knowledge has extended, I heartily concur in everything that has been said in that respect. You will find that hereafter the men elected judges in my section will be men of that description. Let me say further, you take a young man of thirty-five and place him on the bench of the circuit court, he has every motive to devote all his energies and abilities to the discharge of his duties with zeal and purity of purpose. In addition to that he is placed in a school where he will improve and it will be beneficial to him throughout in this respect. The great difficulty with lawyers - and the older they grow the greater, is to look at one side of a case, and when they come to study out the law applicable, it is the law that favors one side. It grows into a kind of habit; and you will find them wherever they are called to act very often running to extremes on one side. But you take this young man who is just about maturing his mind and place him on the bench, he is benefited by his study and experience. He is instructed by the briefs of the lawyers who appear before him. He goes to work and so disciplines his mind so that he sees a thing just as it is without feeling or prepossession on one side or the other; and thus he is fitting and preparing himself for the discharge of his duties, and for the discharge of any other duty in life he may be called on to meet, in case he should leave the bench.
In regard to pandering for popularity in view of election, I have never found a judge in Virginia that would take the stump. The bench is the most popular position a man can be placed in. If he is a cool, deliberate, industrious, careful man, looking out for the rights of all parties, he will be looked up to by the community with respect, and hence you find that where a judge has thus discharged the duties of his office and he comes before the people again for another election, it is the worst thing in the course of events to take and remove him. It requires the very strongest kind of political influence and power; and even there it is very rare that you can bring a majority of even a prevailing party to go against a judge who has thus demeaned himself. I know when a judge has decided a case in the heat of feeling, men may attribute to him improper motives because of this consideration and upon the moment before he leaves the court may use some expressions against a re-election of the judge; but when that individual returns home, when he becomes cool and looks at his case on its merits and when his intelligent counsel assures him there is no remedy for him because no right of law has been violated, no improper decision made, and there will be no relief to him to go further, when he comes to view that, sir, he will have feelings of regret at the expression he threw out against the judge in the heat of the moment. It will have the effect of reacting upon him and he will become more in favor of that judge than he ever was before, because he is pure and disinterested and fairly discharges that duty. I am confident that no man that is fit to fill the bench has anything to fear from letting his name be submitted to the people for re-election. On the other hand, if he is a passionate man of strong prejudices, if that can be seen and traced in his conversation and acts when on the bench, the cry will go up that such a man is unsafe to be trusted; and I submit to this Convention whether or no it would not be best to have a short term instead of a long one to get rid of an individual of that kind. Most assuredly it would be, sir. If any influences should prevail in the mind of a judge in view of a future election it would have precisely a different effect from what gentlemen have anticipated. Sometimes judges grow tired, possibly indolent towards the heel of a term, and grow uneasy to get home, and they are liable under influence of this kind of a feeling to put business over to another term that ought to have their attention now. If by making the term short it would have a tendency to make judges industrious, to remain patiently and quietly at work to try cases that are ready and await their action, it would be a strong argument in favor of the short term.
Now, we come down to the amendment proposed by the gentleman from Monongalia, limiting the election of judge to two terms. I am opposed to that amendment, for this reason: Here we are to authorize a judge of thirty-five years of age to take the bench.
MR. DERING. Will the gentleman from Tyler wait a moment to let me modify my proposition. I will submit to him a proposition to strike out in the 41st line the word "eight" before "years" and insert "twelve" and the words: "and thereafter to be ineligible."
MR. SOPER. I am opposed to that limit. My friend from Hancock seems to think -
THE PRESIDENT. Is there any objection?
MR. HERVEY. I would object, so far as I am concerned. I had intended to vote for his proposition. It suited my views exactly, I cannot go for twelve years.
MR. SMITH. I hope the gentleman will permit the gentleman from Monongalia to offer such form as he chooses and then he can strike out the amendment. The objection I hope is withdrawn. I am opposed to that for this reason, perhaps it is right as it stands, as the gentleman from Tyler is opposing the modification.
MR. SOPER. Not satisfactory, but I am not going to own it. That is what I meant, sir.
THE PRESIDENT. The question would be on the adoption of the proposition of the gentleman from Monongalia as modified.
MR. SOPER. You place a young man of thirty-five on the bench.
He is so situated as to care very little about the salary because it will not be the prevailing object of the gentleman. He discharges his duty to the satisfaction of the people. He grows with the feelings and affections of the people and becomes what we call one of the most popular and influential and beneficial of the judges we ever had. If we are so fortunate as to get an individual of that kind at the age of thirty-five I venture to say he is competent to discharge the duties of that office for thirty years to come. He will then be sixty-five, and I believe that is not too old an age in order to have the duties of a judge in high position well discharged. Why not leave the officer with the community in which he lives ? If a man grows in knowledge and in the affections of the people and if the duties are discharged to their satisfaction let him have a life-lease of his constituency in short terms, because every re-election is an approval of his course. If there is to be no re-election, then I would adopt the proposition of the gentleman from Monongalia. But I believe the safety of the country is to leave this whole matter with the people themselves. That is what I believe.
And now, sir, I am opposed to that amendment to the amendment. I am in favor of making the term six years with a right of re-election so long and so often as a majority of the people approve of it. And I believe we shall best test this good principle which is now so prevalent of the growing age by adhering to this course. I know it has been said about judges that they have gone off under secession influences. Well, it is to be regretted, but I apprehend there is none of us living here or none of our children that will ever live in this country to witness such another era in the history of the land. I hope not; I trust not; and I think, sir, the great body of the people in their strength, integrity, honesty and love of country will rise up and give us such a character by putting down this rebellion and putting it down so effectually that there is no person on this earth living that will ever live to witness such another era as we are now passing through.
I hold to short terms of office because so far as my experience has led me I am satisfied that a man that is depending on the public even for a short period will be found easily approached, affable, attentive. He will not consult his own feelings and put himself above the people and tell you when you go to have your business transacted to wait till some other day. Nothing of that sort. He will always be at his post; he will discharge his duties with promptness and impartiality, giving satisfaction to all around him. That is a reason I am for short terms. I have briefly stated why I shall support the amendment I have offered myself and why I am against the amendment to the amendment proposed by the gentleman from Monongalia.
MR. DERING. I am decidedly, sir, in favor of the amendment. As modified by myself at this time it will read thus: "for each circuit a judge shall be elected by the voters thereof who shall hold office for the term of twelve years unless sooner removed in the manner prescribed by this Constitution, and thereafter be ineligible." That is the manner in which it will read after it is amended if adopted. I am in favor of the one term principle for judges from this fact from the considerations which were so cogently and forcibly presented by the gentleman from Logan. I desire to keep the ermine pure, sir, that the office of judge shall be above the common offices of the day and that there shall be no temptations laid before them to prostitute their offices by pandering to the popular prejudices in their decisions or by having to stoop for the office of judgeship. It is a high office; on which much depends; and in the exercise of the functions of that office they should be kept as independent as the nature of things would allow. When the convention of 1850 determined that judges should be elected by the people, I was opposed to the doctrine, but it is useless to oppose it now. It is a foregone conclusion that the judges in the State of West Virginia shall hereafter be elected by the people. I am in favor of one term for various considerations but more particularly from this fact that they will be above the lower influences that are brought to bear in seeking a re-election. If bad judges, bad men, should be elected to this office they can be removed, for this, of course, provides for removal if they prostitute their offices by any acts unbecoming the position. Allow the office, then, to be for twelve years, because in all human probability a man will never be elected judge before he is forty years old, or forty-five. One term would then bring him up to fifty-seven, and when a man arrives at that time of life his mental energies are impaired to some extent and he can retire with credit and honor to himself if he has done his duty. It seems to me this proposition is a mid-way proposition. It will meet hearty concurrence, I hope, and therefore I submit it, trusting it may be the pleasure of the Convention to accept it.
MR. HAYMOND. Mr. President, the gentleman from Monongalia tells us that he is decidedly in favor of his amendment for twelve years. I am, sir, as decidedly opposed to it. When up before, I told you I would oppose a life-estate in this government. I desire to see a new state of affairs. I desire to see a stop put to this thing of politicians hunting offices. If you make your terms long and your salaries high, the politicians are always in the field. If you want good men, put your salary low and your term short. Good men will come to the rescue of their country. Where are the men that have been in office all day? My friend from Brooke told us where Judge Camden was. Where are Floyd and Wise? At the head of the armies pulling down this country. I am opposed to anything like this. The gentleman from Kanawha told us we had in Virginia the best judiciary of any country in the world. The gentleman from Logan tells us we have been degenerating ever since the legislature made the office of judge elective; that our judges have been seen going about the country kissing the dirty children. Sir, if the judges desire to kiss the dirty children, why let them do it (Laughter).
MR. LAMB. I am strongly in favor of adopting but one term for our judges. The peculiar character and province of the judiciary is to defend unpopular rights. The majority ought to defend the rights of minorities and the rights of individuals peculiarly in the case in which these rights are proved to be unpopular. It should therefore be our effort to so establish your judiciary that a man who occupies the judicial office shall not while he occupies that office become a candidate for any other office. It is impossible if you allow him to be a candidate, during the latter portion of his term at least, that his decisions will not be influenced by his personal interests. A question comes up before him between A and B. B is a man of great influence throughout his district. If he offends him by the character of his decision of the case he jeopardizes his re-election. You will be exposing him continually to influences of this kind. I would say to the men whom you are disposed to put into the office of judge, take the office for the term for which you are elected. We cannot allow you to sully the character of that office by pandering to any party. As long as you continue in that office, you must hold yourself free and independent between the parties which may agitate the country for so long you shall have nothing to expect from them. I have seen, or at least I have thought I saw signs of this influence in the judiciary which has been elected under the present constitution. But the important principle I think you ought to recollect is that the judiciary is to defend rights against power; that one more object of your judiciary is to defend the rights of minorities. One more object of your judiciary is to maintain the rights of individuals, where the exercise of those rights or the securing of those rights to them may be unpopular. One great object of your judiciary is to have a tribunal to which we can all appeal with perfect confidence that it cannot be influenced by party. I would elect your judges for a suitable term; for if you render them ineligible, in no other way can you secure the proper qualifications for the office. But I would cut them off from all the influences of party. I would leave them there under an interdict that they should not become candidates for office; I would leave them there under such regulations, as far as possible, as to secure their independence of party.
MR. HAGAR. As I expect to oppose the amendment to the amendment, of course, it is important that I should try to determine what ground I do it on. I shall try to condense what I have to say into as few words as possible. In the first place, in reference to the term of the judge, for twelve years, why we might just as well - and it would meet the approbation of the people throughout West Virginia better - to take it out of their hands entirely and put it in the hands of the legislature and make it for a life-time. If we want to represent their wishes, as far as my information extends on that principle, in speaking for myself, let us take it out of their hands entirely; better do it if we want to represent the wishes of the people. We are fully willing to submit to their judgment to elect their Congressmen every two years, to submit to their electing senators every two years; we are willing to admit they have sense enough to elect their representatives every two years; but for that office of judge - circuit judge - don't let them have a word to say unless once every twelve years. That is enough. Now, there is inconsistency in the like of this. The Senate of the United States, I believe, can be elected for the term of six years. One of the arguments why they should be elected for a long term is that we will not get good men, competent judges, smart men, if we only elect them for a few years; then that they will be corrupt if we leave them eligible for another term. I don't believe a word of that. You make the term six years and end with that and eligible no more, and we would have just as good men as we have got in the district. These lawyers that want such a long time will be in the field, I will insure - enough at least to fill the positions.
But in the next place, they cannot possibly get through the business. In six years there is considerable. There is to be a great deal left for their successor. Well, if they cannot get through it in six years the probability is they will have more at the expiration than at the start. That is the probability if you judge from the past.
The next objection I have, or another, to the amendment of the amendment is that they will have nothing specially to influence them to act right that they may have at least the good wish of the average or common class - the poor people, the humble, as my friend from Logan would say. He doesn't like this way of tempting men again into the poor-houses to kiss the dirty little children; he doesn't like that palavering around the poor. It is too condescending. I will agree to that. The judge ought not to electioneer. He might at least put in the papers that he was a candidate. That would be sufficient. I would be glad if this electioneering was done away with entirely and with all classes; but electioneering, to some extent, I suppose, will be kept up while the people have the right to elect the men necessary to serve for any of the various offices in this State. But we must follow up the principle by which we have acted thus far in this Convention. Then I contend if we put the term six years we will still get good men as are in the district - men as well qualified; for we do not know any man until we try him. We have elected some men that I thought very good that turned out very bad. A heap of men have better heads than hearts. If we find the man is not right six years is long enough to be bothered with him; and if he is bad enough there is a provision in the Constitution under which he may be turned out. Now, who are the least likely to be favored? Is it the poor man, the "humble man," or the man of power and influence, if they are biased at all to do wrong? Past experience and observation say it is the man with property and influence, and if any one is in disfavor it is the poor man. The poor man doesn't know how to go about turning them out of office. Take the power out of their hands to vote for them and they will stay in a life-time. If we have a bad judge we can turn him out and put another in at the expiration of six years. If he is a good one we can keep him six more. The great danger is he will grow corrupt by keeping him in office too long. There must be a long time to a judge; not less than eight, twelve or sixteen years. Then he must have a good salary - $2500 or $3000 a year. The best men in the districts will be candidates for judgeships. It is all folly to talk about a long time and big salaries. I go in for them having a respectable compensation, enough to justify them, to induce the best men we have got. We have always candidates enough for these offices. Don't be scared that you will get nobody without giving them twelve years. You will not have some gump. You will have Judge Brown or my friend from Logan, and if their time is only six years they will be all the better judges; be on their good behavior. Judges are not perfect men; they are not angels. Perhaps they go astray as often as other men, not for want of judgment but for the error of the heart. We have evidences enough of this in the last two or three years. I have no objection if a man serves us well for six years to vote for him again. I am against the amendment for twelve years; in favor of the amendment for six years.
MR. STUART of Doddridge. I must confess, sir, when the proposition of the committee and the amendment of the gentleman from Tyler was before this body, I took no interest in the question; but now when I find it is sought to be engrafted on our Constitution a principle which in every respect I am opposed to, I have to raise my voice in opposition to it. I stand here, Mr. President, an advocate of the honesty and integrity of the purposes of the most of the people at all times. I have been tolerably consistent in my course here, and that is that these terms of office should be short; that there should be frequent returns to the people from whence they are derived; and I believe every vote I have cast has been looking to that thing. Why say a judge shall be ineligible after serving one term? Where is the argument and where is the reason for the ineligibility? Is not this casting a reflection on the integrity and honesty and judgment of the people whom you hold office from? Are they capable of electing judges and presidents and senators and Congressmen? If so, let them do it. If they are not, take it from them in the name of common sense. Do not let the people have that privilege. If the people are not the proper judges whether an officer who has held a position for six, eight or twelve years is or is not competent to fill that office again, why they are not proper to judge in the first instance whether he is a capable or competent man to take the office. This principle that has been carried out heretofore will cut off some of our best judges - some of as good men as have ever filled the bench - to say that they should not be eligible to a second term. Where would have been such men as your Marshalls?
MR. DERING. He was appointed.
MR. STUART of Doddridge. Was he? Well, suppose he should have been elected, where would he have been? We may have Marshalls in our mountains, but the people are the men who are to judge of these facts, to be affected by them. It does seem to me the argument of the gentleman from Logan was most felicitous when he gave us a history of a certain judge in his county, the advocate of carrying liquor to the crossroads and kissing the dirty children. Suppose this Constitution had given that man twelve years, what remedy would the people have had to correct the evil? There would have been an incompetent judge holding the office for twelve years, where under the proposition before us it would have been cut off in six years. We never would have had the opportunity of correcting it, and if he had proved himself an incompetent man they would have remedied the evil. But they would be debarred of that privilege if you give a man what is almost a life tenure of office. The very thing the gentleman seeks to avoid would have been fastened on the people. If you elect a judge for one hundred years, the same course might be pursued by him. He might carry his liquor to the cross-roads; he might go around kissing the children, and where would be the remedy? If the Constitution provided for a term of a hundred years they could just as easily be elected for that term as for six or eight or twelve. The only way to correct that evil is to let it go back to the people. I have the utmost confidence in the integrity and honest purpose of most of the people; and when they see they have done a wrong, let them have an opportunity to correct it at as early a period as possible. If they were competent of judging at one time they are at another. But says the argument of the gentleman from Logan, you let this thing go back to the people again and a judge is eligible to re-election and it will influence his decisions. My conscience is easy about that. Is it to be supposed or argued that a gentleman who arrives at a position of this kind that he is to be influenced in this way? Are we to look upon our judges in this manner? I stand here as a defender of the honesty and integrity of our judges. I do not believe they are to be influenced in this way; and my course will not be influenced with the expectation that they will be influenced by such impure and improper motives. But supposing they are, let us see how the argument of the gentleman will bear the test. He supposes a case where the parties are a poor man on one side and a rich man on the other. The latter may be able to influence a hundred votes, the former hardly controls his own; that the judge when called to decide the case looking to his future election will be inclined to give judgment in favor of the rich man contrary to law, contrary to right. Now, let me say, if we have a judge of that kind, a man disposed to give judgment for the rich to oppress the poor, against law and against right, with that man we could pursue but one course on the face of the earth, to sweep him from the bench and forever disgrace him. In such a case the favor of the public would lean towards the poor man; because, I do assure you, that the majority of the people are of this class, the poor people, and they are always watching their rights, and whenever it is ascertained that a judge is disposed to oppress them he would be swept from the bench if he was disposed to favor the rich. But judges are not going to risk anything of that kind. They will not do it, sir.
Then, Mr. President, if the people are competent to judge as to who shall fill these offices at one time - competent to judge as to the capabilities and qualifications of the officers who are to exercise the duties of this office - they are competent to say whether he should be re-elected or not; and if competent let him go back at as early a period as practicable. The people are the purifiers of all these offices. Let them recur back to the people. But if you give a man a life tenure of office, he will perhaps curry the favors of the rich because the rich can bestow on him favors the poor cannot. Do you want to avoid, and ought every man desire to avoid the oppression of the poor and always give them their rights? Then by no means anywhere invest these life-tenures of office. Now, that is my opinion, my experience through life; and I have been observant as I went along and have read a little and reflected some. Consider, deliberate and you will see if I am not correct. The poor is never looked after; for in these matters you are looking for some purpose. But you will always see the favor of the rich curried, I don't care where you go. Give men these life-tenure offices and they would hardly condescend to speak to a common man, hardly recognize a poor man - these life-tenure office holders. When that system prevailed, you must recollect that a common man was afraid almost to approach a judge; they thought he was some kind of a man superior to a common man and he was not hardly to be approached at all. I used to be afraid of them myself (Laughter). But since I have got to mingling with them, I have found out they are nothing but men at last.
I am utterly opposed to the amendment of the gentleman from Monongalia.
The hour for recess having arrived, the Convention took a recess.
The Convention reassembled, the President in the chair.
THE PRESIDENT. When the Convention took a recess it had under consideration the adoption of the substitute offered by the gentleman from Monongalia.
MR. SMITH. I would suggest to the gentleman from Monongalia, being one of this kind who if he cannot get the best is willing to take the next best, believing that ten years would be more acceptable to many members of the Convention, I would suggest to him propriety of so amending his proposition as to make it ten instead of twelve years.
MR. DERING. I will accept the suggestion. The Secretary reported the motion as modified.
MR. STUART of Doddridge. I would just desire to call the attention of the members of the Convention to the fact that it is now proposed to make the term ten years and ineligible thereafter. Suppose we elected a judge thirty years of age and he serves ten years, he is then forty years of age - just in the prime of life, perhaps when he is capable of rendering good service as a judge. It seems to me strange that you want to make him ineligible.
MR. SOPER. The latter part of that amendment, to elect for ten years and be ineligible after that, the people have got no hold on him whatever. He will be an honorable man, I suppose, but if he is subject to failings and impulses like other men the result will be that your docket instead of being cleared up will never be touched hardly. The dockets are accumulating. Take Tyler, for instance: There are cases on that docket now that were there when I came into the country fifteen years ago, and when a man knows he is not required to adjust as to his time when his time is out - has no further expectations in relation to the office, why, sir, he will in the first place be looking around for other business, to engage in other transactions, and will be figuring in oil wells or something of that kind. As some of our judges here have been, and the performance of the duties of his office of judge will be attended to only just enough to entitle him to his salary. Our circuit judges now are not occupied one-half their time in holding court. He is not like a judge on the bench, because at general term they hear arguments and retain the papers and return home, review the authorities bearing on the different points; and they write out their opinions in vacation. They are thus continually occupied. Not so with your circuit judge. He goes to the circuit, is occupied there a few days; and I believe there is not a judge in this vicinity that I ever became acquainted with that has spent quite half of his time holding courts. Now, I want all these things taken into consideration. If you make him ineligible and give him a long term and make him perfectly independent of the people, he will do nothing more than just enough to occupy his office. Because it is understood the salary we give here is a great object. We are making a man rich, and for that very reason he will be turning his attention to other pursuits in a pecuniary point of view.
MR. VAN WINKLE. I wish to second, with slight exceptions, the remarks of the gentleman from Doddridge, and some he made this morning. I think this ineligibility after a single term, even if it is twelve years, is a wrong feature. I see not what good is to come of it. I see not what evil is to be prevented. If a judge has held his office twelve years and given satisfaction, he is not the man I would suspect of entering into petty intrigues for the purpose of procuring re-election; because I do not think he who was given the place primarily would descend from the high eminence in order to do so. If at the expiration of either of these periods, if he had taken office at the age limit fixed in the Constitution, he would be deprived of it in the very prime of life, with his intellect at its best and long before it would begin to fail in a healthy person and would be the very man we would want. I apprehend some of the evils gentlemen speak of as a want of temper. I hope the gentleman from Monongalia will at least so far modify his motion that a judge shall not be ineligible, and make it so that he may be eligible in another district. I am told there are several of these circuits that will not afford a person suitable for their own judge. I do not mean owing to the way in which they have been laid off but because counsel of ability are apt to center around places where the business is best. I suppose the gentlemen would hardly pardon me if I would say that where the carcass is, there the crows will be gathered together. But the situation of our country in that respect is well known. We have not yet the state of society to be found in older countries which gives us men of the highest educational or intellectual stamp; and therefore I think we should be a little cautious in excluding men from office unless there is a sound reason for it. Now, in the case of sheriff, there does exist such a reason why they should not be immediately re-eligible; but so far as I have noticed at least other reasons may have been assigned at other times I see none sufficient to justify the exclusion of judges who have served one term, such as the fear that a judge may electioneer for his own re-election. When they talk about his electioneering, of his neglecting his own court, they must remember that every question has two parties, and if he decides for one he disgruntles the other. Cases are not decided by the circuit judges but by juries. I think this fear of the corruption of judges is carried a little too far. I think we should be willing to make the terms of a reasonable length so that if a judge, without being liable to impeachment, should not be suitable to the people - they might desire to have some one who would move a little faster, and the people would wait until the term expired, and if satisfied there was some inherent wrong in the man, they could drop him and put another in his place. If this term is so long, I think evil would be inflicted, and if the result of making it so long is to make the office ineligible, then I am opposed to it on that ground.
Some states have fixed a limit of age. I think it was fixed at sixty years in the Constitution of New York. I forget the date - 21 or 20; but at any rate it turned Judge Kent out of office at that age who had been the chancellor of the state and who continued to get paid for opinions for at least twenty years afterwards and retained the full vigor of his intellect. I could mention names by the score of men who retained all their intellectual powers to the age of eighty. Mr. Madison wrote one of his best papers after he was eighty. John Quincy Adams continued in the House of Representatives until he was upwards of eighty. So that this would strike directly at and exclude perhaps the very best men from serving as judges if they had once been judge. A judge is a sort of journeyman. He must be trained and equipped when he begins his work. It is not so with the professions. A lawyer is not always read. He must make a beginning it is true. But after he has taken his place on the bench the judge must be ready and equipped to meet any question that comes before him. His acquired knowledge has cost him years of preparation and study and it may fit him to continue in service many years longer. Yet no matter how much people may desire to continue him; no matter how much more competent he may be than the person named to succeed him or than anybody else, by making him ineligible to re-election you deprive the people of his services.
I would again suggest to the gentleman from Monongalia to modify his motion so that the exclusion does not apply to any but the district in which the judge has already served; to leave it open; if one district cannot re-elect him, let another district be open to him.
MR. DERING. I will accept the modification, for I desire to be accommodating and suit the thing to the gentleman.
MR. VAN WINKLE. I would prefer it in that form, but I am not disposed to vote for it.
MR. HERVEY. I still have my objection to modification. My objection to placing this long term in the Constitution is the unsettled state of the country. It is impossible in many places in this state for the people to meet together and hold their elections.
I understand the original proposition as now modified to be a compromise. In other words, the report of the committee is eight years. But, sir, this compromise runs first to twelve years. I cannot see the compromise there. Now ten. If the practice of other states is of any effect, it seems to me - 1 am sure, indeed - that the term of ten or twelve years is far above the average. In the last half hour I have taken the trouble to look over a number of constitutions of other states. I find Minnesota, supreme court 7 years; other courts 7; Iowa and Wisconsin, 5 years each; Iowa, supreme court 6, district court 4; Arkansas, district 8, circuits 6; Florida, circuits 5; Missouri, supreme court 12, circuits 6; Alabama, 7; Illinois, supreme court 9, circuit 6; Mississippi, 4; Indiana, supreme 6; Ohio, not longer than 5; Tennessee, supreme 10; Kentucky, court of appeals 8, circuits 6; Georgia, superior 3, inferior during good behavior; Virginia, 12, circuits 8; New Jersey, supreme 6; New York, appeals 8, county 4. Now, here is a long list falling far below twelve. I cannot see the propriety of running up to such a long term. I prefer the proposition of the gentleman from Tyler to anything that has been before the house, except, perhaps, that I would not continue him to two terms.
MR. BROOKS. I have listened during the day to the discussion of this question and I have come to the conclusion that to insert, we will have to go to make a man ridiculous and how that is to be done, I am not able to tell. In the first place, the report of the committee would not do from the fact it would prevent the corruption of the judgship. Hence it must be amended and he must be assigned over to the will of the people in six years to make him a pure man. Then he must be retained for a term of twelve years for the same purpose. Now my own experience has taught me that neither will have the desired result. I do not care if you extend it during life, you could not make a good man of him for he is not naturally so. But I do not care if you submit to the people every two years, it will not do it. I will tell you now some of my acquaintance with the workings of this matter. Under the old constitution where men were made judges by the legislature and during good behavior, a gentleman of my acquaintance, one of the first lawyers I ever knew anything about, was promoted to the office of judge. That man has been referred to by gentlemen on this floor in rather an obscure manner. I think in the history of that man both these results will be shown to be ineffectual. You will remember that his first appointment was for life or good behavior, and that is the very man that one gentleman hinted at vomiting on the pavement, not only so but there was a young man arrested in our county for theft, having stolen the pocket-book containing $120.00. The young man acknowledged and the money was found. And he acknowledged where the pocket-book was, and it was found according to his acknowledgment. With all these facts in evidence, he was brought before a jury; but prior to this, having gone through the preliminaries. When the court came around and he was to have his final trial, a brother of his father, who resided in another county, came there to that court. He said to him, "John, are you very uneasy about your son?" "No, Jim, I am not uneasy about him; I was until I saw the judge. You know Jim that when we went to school together, he and I were great cronies. He tells me I need not be scared." The result of the trial was, the boy was found guilty sentenced to three years in the penitentiary. When the verdict was rendered the judge said, he must allow the boy another hearing. He gave the jury long instructions, another court was held, and the young man acquitted in the face of these facts. Hence this was an impure man, incumbent of the office of judge for a long term. He passed on and I could, if it was necessary, give you another one or two more instances that seem to set forth the same facts; that although the legislature appointed for life, he was not the right kind of a man. But the constitution is changed and that man was removed from office by the new constitution.
Well, with all these facts that have been alluded to, and that I know was known by the people, that man was elected to office by the votes of the people. Now, which is the great safeguard, long or short terms? The legislature - or the people? I ask you where the safety is to be found, when to my own knowledge both have so actually failed in accomplishing the design for which the gentlemen have been contending the whole day? I feel disposed myself to say that it will be a great saving of time to cast away these safeguards, one on the one hand, and the other on the other, and fall back on the report of the committee, and do the best we can; and if we can.
MR. DILLE. I have some trouble in reference to the position that it is proper for me to take in reference to this question. There is part of this substitute that with some modification, I desire; there is part of it I am wholly opposed to, and if it be proper, I would ask before a vote is taken that the question be divided as I find a difference of opinion prevailing among the members of the Convention if I am a judge from the speeches made. I think it will be proper to divide the question. My friend from Monongalia and then I think the members of the Convention could all be accommodated and vote their sentiments. That proposition as it now stands, is to change this term of office to ten years. Some are in favor of ten years, some in favor of eight years, and some in favor of six years. Some upon the other part of the proposition are in favor of judges being eligible as to a second term and others are opposed to it, and I think under the circumstances it would be proper that the question be divided.
MR. BROWN of Kanawha. I desire to say a word before this.
THE PRESIDENT. The Chair would have some doubt about the suggestion of the gentleman from Preston being in order.
MR. BROWN of Kanawha. I was in hopes that it was in order, because it seems to me that there is some diversity of sentiment about this, and as that proposition of the gentleman embraces two distinct ones upon which sentiment differs unquestionably, while I myself should have no objections to increasing the term to ten years, I think it is still more objectionable to make the judge ineligible. We had similar differences no doubt on the committee, for that committee was composed of gentlemen representing almost all the differences and diversities the Convention would feel. The result of their labors is eight years, and re-eligibility. I confess, sir, in looking at this matter upon principle at the time perhaps eight years, while not as long as many of the committee might desire and think best, yet it is more than others think best, and, therefore, may be a compromise and is about an equilibrium between the two. And furthermore as the wisdom of the convention that framed the present constitution, and the endorsement of a very large majority of the people of Virginia - for it was adopted, perhaps by the largest majority of any constitution ever submitted in the state in its favor - it has therefore, wisdom and experience on its side; and a few years one way or the other is no great matter, so far as principle is concerned, and the truth is principle is not materially affected, whether you adopt six, eight or ten years. I can see no great principle involved in it one way or the other. Reasonable time is certainly desired by all. I have therefore, determined to support the report of the committee and take eight years as its stands, though I should not object if the Convention should see fit to make it ten. I am content with eight. On the other hand the report prescribes that these officers should be re-eligible. The proposition now is that they shall not be. I think there is a principle; and I think that this very exclusion is predicated on a hypothesis that is at war with the fundamental principle on which the government rests, and that is the competency of the people to rechoose as well as to choose. I understand that one of the highest incentives, it seems to me, apart from the high considerations that ought to actuate every man to discharge his duty in an office, would be the re-approval of the people that elected him to that office. It seems to me if you take away from the incumbent that consideration that you remove a great deal of the inducement to a faithful discharge of the duty that the people impose on him. Now I admit to the upright judge, who will be guided in his duty by a sense of right to do that which he is required to do no matter whether it pleases or displeases, the motive of future success would have little weight. But the argument is predicated on the idea that the man is so corrupt that he will not from a sense of rectitude discharge his duty but will seek to aggrandize his office or abuse it and prostitute it for the purposes of election. Now, if he be of that debased character the question is which considerations will have most influence with him to promote his chances of succeeding in afuture election by prostituting his office or by an upright, open and proper course of conduct before the world. I believe here as I do in the purity of most of the people; and I believe that the man who pursues the even tenor of his way with an eye single to his duty will find that in the long run the surest road to re-election. I therefore believe the greatest security here is to leave this open to the people to judge at the end of the term whether the officer has discharged his duty and answered their expectations.
I believe on the whole it will be more wise in this case to stick to the report as it stands, with eight years for the term and reeligible.
MR. DILLE. I desire if practicable and in conformity with the rules that the Convention should determine whether in this substitute, or this amendment to the amendment, ten years or not it being the highest number the number specified in the substitute. When the Convention had determined that it would have determined so much of the amendment as had reference to the time. The balance of the question then would be open for the determination. It seems to me in looking at it as though it was one of those questions that might be very easily divided; and I especially desire it as I notice during the progress of this debate that almost every one differed in reference to those matters, even those that agree in some things disagree with others in reference to one or other of these propositions. If it can be done I desire to have it.
THE PRESIDENT. The Chair would not have any doubts about dividing so far as striking out is concerned. The division on the number of years, though, the Chair would admit if there would be no objection to it. But there would be grave doubts as to the effect on the readmission by taking the vote on the ten years in this shape.
MR. DERING. It amounts to an amendment, and therefore I object to it.
MR. BATTELLE. A word in reference to this question of order, if you please, sir.
"Any member may call for the division of a question, and it shall be thereupon divided if it comprehend propositions in substance so distinct that one being taken away a substantive proposition shall remain, etc."
I read from the 34th rule. It seems to me that this is clearly susceptible of division and I should like to see it divided that the house may first vote on the proposition to make this officer not eligible for a second term. There does a substantative proposition remain then which reads that he shall serve ten years, or eight.
THE PRESIDENT. The division called for by the gentleman from Preston would have the preference.
MR. BATTELLE. Do I understand the Chair to decide that the suggestion made by the gentleman from Preston would not be entertained ?
THE PRESIDENT. The Chair expressed doubts about it but expressed the opinion that it could be put in that way, unless a point of order was raised.
MR. LAMB. I suppose the question is clearly divisible. The proposition of the gentleman from Monongalia certainly involves two distinct propositions, one of which is to insert ten instead of eight, the other is to establish the principle of ineligibility of judges. Very distinct propositions. That I understood to be the division as the gentleman from Preston contemplated to have these questions put separately.
THE PRESIDENT. The Chair will entertain the proposition unless it is objected to.
MR. LAMB. I was about to say, Mr. President, before the argument made by the chairman of the Committee on the Judiciary that I too, concurred in the principles of this report in regard to this point as in regard to most others; but where the principle is adopted in the report and applied in one case the principle should be fairly acted upon in other cases coming within the same reasons. If you will refer to the 11th section of this report, you will find that they have reported there that the judge shall not be during such term eligible to any political office. What is the principle then involved here? It is that you should keep your judges clear as far as possible from political influence. It is that this thing of a judge being a candidate during his term of office, is a dangerous and improper privilege to be conferred upon an officer occupying such a position. Here is the same principle which the committee have applied in other cases; and what I contend for is that the principle should be carried forward to its proper and legitimate application in the case now under consideration of the Convention. It is the declaration of that committee that it is not proper that your judges should be subject to the political influences to which they are necessarily subject if allowed during their terms to become candidates soliciting the favor of those influential men in order to secure their election and get in office. If you are to recur back to to the report of the committee, carry out the principles of that report to their fair and legitimate result. Why this exclusion existing in one case if it were not applied in the case now in hand, seeking the man and that it is dangerous to subject your judges to such influences? The appeal to the present state constitution which contains this same provision and which as the gentleman said, had been ratified by a large majority of the people, who then ratified this principle among others; and if this principle is thoroughly applied it will apply as much to any case as to the one comprehended in this 11th section. I must confess, Mr. President, that I attach great importance to this principle. I would, if it were possible, place your judges in a situation in which they will not have this temptation before them. If a man without political influence is plaintiff or defendant before them and a man of great political influence is interested on the other side of the case, I would have nothing to prevent them even during the last term holding the scale of justice even, if a man offered a bribe to a judge, even a hundred dollars, you would send him to the penitentiary. But when the judge is a candidate for re-election, influences that are invisible to others may be brought to bear on him that are far more potent and effective than any direct bribe. It is the possibility of such things as this that we want to fortify the judiciary against. I know we cannot make our system perfect. We will have men in office that are not fit for office under any system we can possibly devise. But is that a reason that should prevent us from making our system as nearly perfect as we can? Is that a reason that will prevent us from endeavoring to place these imperfect men in such a situation that there will be nothing to warp their judgment and decisions as far as we can accomplish that object? No, sir. With a conviction that our system, with all the care we can devise, will frequently lead to the selection of unfit men for office, let us still make it as good as we can. That we cannot make it perfect is no reason why we should not make it as near perfect as we have the means of doing. The gentleman from Tyler, who addressed the Convention a short time since in regard to this subject seemed to be very apprehensive that if we did not adopt the suggestion which he made, business would be altogether neglected, while if we adopted this principle of ineligibility the amount of business on the docket would accumulate year after year; and yet he told us that under the present system where this eligibility does exist these evils are peculiarly onerous. Under the former system judges held their offices during good behavior, and while I was practising at the bar I heard no complaints of this kind. Here at least in Ohio county, I know we had a judge that would work through any quantity of business and with most perfect impartiality. I recollect particularly one instance, in which I was employed in the defence of a man who had committed no crime under your laws, but overwhelming public opinion existed against that individual; and he owed his safety from the penitentiary to the independence with which the judge of that day administered the law according to the facts. That man I believe would have been sent to the penitentiary had his case come before a judge that was a candidate for re-election. I think so far as experience goes - so far as the past may have any influence upon us, that we have every reason to suppose that this accumulation of business will be much better prevented where the judge has not to employ his time in looking out for influence in the securing of his re-election; where he has nothing to look after but the proper disposition of the business which is before him.
It is true, sir, there is an objection to this system of ineligibility; but that objection would be greatly obviated by the suggestion of the gentleman from Wood and that suggested by the member from Monongalia. You may sometimes be deprived of the services of a very competent man; but you will have, I trust, other competent men to take his place; and in order to secure the advantage, which will very seldom be placed within your power by this system, you are called upon to subject your judge to these improper influences. We have adopted the same principle exactly in regard to the election of sheriff, and for the same reason; that it is improper for the sheriff in performing the duties of his office to be looking out constantly to the influences which may be brought to bear on his election at a succeeding term. I do not consider that it is in any respect an invasion of public right. You have a right to say that this man or that man shall not present himself as a candidate to the people. You have no right to say the people shall not vote for any candidates presented they may please. How are these candidates usually presented before the people? Look at the manner in which your nominating conventions are usually constituted. Look at the petty intrigues and petty management which is resorted to to get up these nominating conventions for the purpose of placing one man on the track or the other. These nominating conventions, as they have enlisted heretofore, have effectually prescribed to the people whom they should vote for. And has not this Convention, representing the people, the right to say in certain cases who shall not be presented as a candidate where a great public good is sought to be obtained by it? What right have you to say the sheriff shall not be eligible on this principle? What propriety is there in saying a sheriff shall not be eligible and yet subjecting your judges if they want a renomination to all the intrigues that are necessary to getting up these nominating conventions in order that they may be placed fairly on the track again? The gentleman from Kanawha told you that this proposition was a violation of the fundamental principle on which our government rested. And yet the gentleman from Kanawha himself is the reporter of the principle involved in the 11th section of this report. If it is a violation of the fundamental principle on which our government rests that the judge should not be a candidate for reelection to the same office, is it not equally a violation of the fundamental principle to prevent the people from re-electing him to another office? Is not the principle which you have adopted in regard to sheriffs as much a violation of the fundamental principle of our government as the principle which is here proposed? It strikes me, Mr. President, it certainly is just as much in one case as in the other. But why in either case is it a violation of any proper and correct principles? The effort to place your judges above the party strifes of the day is not a violation of principle. It is not a violation of principle, the effort to place your judges in a position where they can hold up the scales even and decide with perfect impartiality without being subject to undue influence whether the plaintiff be a man of great political influence or of no influence whatever. It is not a violation of fundamental principles to endeavor to place your judiciary on such a foundation as will secure - if you can secure - as far as possible their perfect impartiality in all cases whoever may be the individuals that present themselves before him.
MR. PRESIDENT. The Chair remarked to the gentleman from Preston that he entertained doubts as to the order of division. The rule furnished by the gentleman from Ohio (Battelle) would govern the Chair; but the difficulty which arose in the mind of the Chair at that time is this: the proposition is to insert "ten" where nothing is yet stricken out and would not be by the motion to divide. If the motion had been carried further it might have been entertained.
MR. VAN WINKLE. Was not the first motion to strike out "eight" and insert "six?" After that, the substitute was offered by the gentleman from Monongalia; and it was to divide the question on the substitute.
THE PRESIDENT. The Chair thinks it would be policy for the Convention and for the gentleman from Monongalia to permit the division to be made to save time, and yet strong doubts exist in the mind of the Chair as to the propriety of the course.
MR. DERING. I do not desire to occupy the time of the Convention in any way. My object is to facilitate business. If it is thought desirable and it would save time and bring the Convention to a conclusion. I will waive the point of order.
THE PRESIDENT. The object of the gentleman from Preston is to test the sense of the Convention on the ten years.
MR. STUART of Doddridge. Just two or three minutes. I desire to refer to an argument made by the gentleman from Ohio. As there appears to be considerable tenacity about this thing and as it was rather a new argument, and as these arguments have two sides to them, I desire that this thing should come up fairly and squarely. The gentleman says we disqualify these judges from holding political offices. It is true we disqualify them during their term of office; but if you say they shall be ineligible to the office of judge after their first election, then all they have to do in the world -
MR. LAMB. The only portion of that clause which I referred to in the 11th section is the latter clause of it which provides that during his term the judge shall not be eligible to any political office.
MR. STUART of Doddridge. I understand it, sir. That is all true. I understand the gentleman exactly; but now look at the operation of this thing. He is not going to qualify himself for the office of judge - he is not going to make himself a good judge - if he knows that at the end of his first term he is to be debarred from the office. If he is looking for a political office, he will be qualifying himself for that. Now you see how the argument will go.
MR. LAMB. If the amendment is adopted he could not be a candidate for anything, either political or anything else. He would have to go back to the practice of the law.
MR. STUART of Doddridge. "Nor shall he during such term, be eligible to any political office;" but the very moment his office expires he becomes eligible. You say he shall not be judge. He can take a political office. You are not holding out any inducements for him to qualify himself as judge, to perform the duties of judge; and he has no more motive in the world to qualify himself for that office; but he will be looking to a political post and qualifying himself as a politician. I think that might be the case. Now, I do not know why this should say "shall not hold any political office" at all; and as the gentleman from Upshur remarked that it seemed a long term of office would not make these men good men, I do not know any other way unless you say they shall be excluded after they fill the office of judge one term and be required to render an account at the final tribunal, for it is pretty much saying so to say he shall fill no office, or to say he shall be executed at the end of his term (Laughter). Then, sir, if he is eligible to receive a political office at the end of his term, why, as a matter of course, if he is any kind of a man he will go on electioneering for a political office and qualifying himself to fill it. Now, it does seem to me it will have that effect. I only wanted to refer to that argument of the gentleman from Ohio.
MR. BROWN of Kanawha. I hope I, not more than any other member of the committee, will be held responsible for everything that is in the report; for I desire it to be understood that there was some diversity of sentiment on this report in the committee as well as in this house; and that while I shall not disclose how I voted or how any other gentleman voted, I do not want to father every inconsistency that may be found in the report. My duty is simply to maintain the propositions contained in the report as presented and one word as to the argument drawn from section 11. I desire to say if this construction be correct, that the judge can hold no political office during his term and then the construction be correct that he seeks to introduce into this clause, then we would have that anomaly of a man taking an office which would exclude him from both a judical and political office thereafter during the continuance of his term. It seems to me that would be to preclude almost every man that would have the office at all or be fit for it, and the result would be nobody would have the office. It seems to me a schooling in any sort of calling is the best to fit an individual for it. If you are going to learn to be a village blacksmith you would not go to a silversmith's all your life to qualify yourself for it, or to be a shoemaker to learn to be a tailor. So in this judicial office. I would not go to the politicians for the best judges. I would not go to the judges for the best politicians; but look for each in their line. Those men whose business and calling leads them more directly to discharge the duties of an office are ordinarily and generally the best school to select from. It is on that account we generally find the judges chosen from the bar. While there is nothing in the laws or constitutions to prohibit any gentleman from holding the position of judge, or any other office, I have never known gentlemen in any of the counties of this commonwealth who professed to be no lawyer running for the prosecuting attorney, or any of the ministry, or doctors or politicians offering to run for the office of judge. The only question is, where will you ordinarily find men whose business and calling seemingly fits them for the office. It may be you will find many superior men at the bar who do not offer for judges. And yet there is no law to exclude them. Where, then, these men having served in this capacity, why at the end of the term should they be excluded more than every other individual, those whose qualifications do not ordinarily fit them at all for the position? There is no exclusion of any other class of mankind from this office. I cannot see, therefore what reason would operate to exclude the one who has discharged the duties faithfully, educating himself, always qualified and competent, with the qualifications necessary in a judge.
MR. LAMB. The provision offered by the gentleman from Monongalia will prevent the judge during his term from becoming a candidate for re-election. The provision of the 11th section would prevent him from being a candidate for any political office. But as soon as the term was over he could become a candidate for what he pleased.
MR. BROWN of Kanawha. Would his term be over if he resigned his office ?
MR. LAMB. No, sir, the expression here is different from what I thought it was. I thought it was during the term for which he was elected. The language is his "term of service." His term would be over in case of resignation, of course. That terminates his office. I thought it was for the term for which he was elected. But is just during his term of service. Still while he held the post he could not be a candidate.
MR. BROWN of Kanawha. That is right.
Mr. Stevenson of Wood called for the yeas and nays.
MR. DERING. I desire to say one word, sir, and I do not desire to detain you but a very few minutes. I desire to advert to the argument of the gentleman from Doddridge. He says that he is for the people; that he believes in their intelligence and honesty. We on this side of the question believe, I think, quite as much as the gentleman from Doddridge in the intelligence and honesty of the people. I am sure in that respect there can be no difference between him and us; but I am for the people in this, that when you invest a man with all your rights, your property, your life and character that he should be kept pure and independent of all the surrounding influences which would be calculated to warp his judgment and control him. I am for the people as much as the gentleman and I desire in this to protect the people's lives, their rights, their characters, their property, so that on that score we are equal. I am not for the people in some ways, sirs, but I decidedly am for protecting people in all those great rights, properties and lives they hold. I think in doing that a man will best serve the people, will best protect the people while he protects the judiciary so that the judge in ruling on questions affecting the rights and interests of the people may make his decisions proper and right. Judges are but men; they are liable to be tempted and led astray by the hopes of office. They are human and subject to all the influences that human-nature is subject to. Hence, I am for placing them in an independent position, making them ineligible for an office in their own district at least after they have once occupied it. The gentlemen who have argued this question on the other side seem to predicate and base their whole argument on the principle that we are taking the right of election away from the people. Why, it is not so, sir. That we are creating judges for life. Why, twelve years is not a lifetime of a man by a long ways. You are not taking away the rights of the people; we are permitting them to select their judges and for the term of ten years. Upon that hypothesis they based their arguments. It is not correct. We are for electing them only for a certain term of years and making them thereafter ineligible. There are six or seven states of this Union that elect their judges for life, so desirous are they to keep a pure judiciary, to keep the ermine from being stained by the muddy water of politics and keeping it above the influences that usually surround a candidate for office. I would not be in favor of that principle, but I am for electing them for a specified term of years and then enabling them to retire. New Hampshire, Rhode Island, Connecticut, Delaware, Georgia and Florida appoint their judges, or have them appointed by the legislature for life.
MR. STUART of Doddridge. South Carolina.
MR. DERING. South Carolina, I think, elects for four years.
MR. HERVEY. Georgia elects for three years.
MR. DERING. The gentleman from Doddridge says if you elect a man when thirty years of age his term will expire when he is just in his prime. Well, if he made a good judge again, let him go into another district, and if he has been an eminent judge, and we are to have proper and necessary qualifications, he will be called for from other circuits. So that answers the question. If he desires to enter high and important positions he can take them; but he will have made himself so popular by the discharge of his duties properly that he can get almost any position he desires in the gift of the people.
MR. BROWN of Kanawha. I was aware of having said we were scarce of timber in West Virginia.
MR. SMITH. It was the gentleman from Wood.
MR. DERING. The gentleman from Wood. I am informed by a member of the bar in this hall that Judge Camden was accustomed to work ten months out of twelve. If he were our judge now he would be pretty well worn out by the time he had served ten years. He would be almost totally disqualified for the discharge of his duties. It seems to me it is important in every way that we should throw all the safeguards around this high and distinguished office that it is possible for us to do. It seems to me the rights of the people demand it. We should not get a trifling politician on the bench who would square his decisions to suit the popular favor in order to be re-elected. Let the judiciary be kept pure the office of judge at least pure and independent. I am clearly in favor of making a judge ineligible in one district after having served one term and of electing him for ten years. When his time shall have expired let him return to the people and occupy some other position if he has the qualifications necessary to recommend him to the people.
MR. HERVEY. I merely desire to place South Carolina right on the record; don't want her misrepresented. The gentleman from Doddridge suggested that the judges from South Carolina were elected for life and the gentleman from Monongalia replied "four years." The South Carolina Constitution provides all the judges ahall hold during good behavior.
MR. BROWN of Kanawha. That is the old constitution. Several members called for the "Question."
MR. LAMB. It is suggested by the gentleman from Wood that "good behavior" in South Carolina means four years; that no man behaves himself down there longer than that time.
MR. CALDWELL. Before the call of the house, I do not understand exactly the question, before the Convention. I rise merely to say it places me in this position. I am not willing to vote for ten years unless I can couple with it the ineligibility of the person who may be elected judge. I understand the question before the Convention is on the ten years. But if the other branch of the question is connected with it, I might vote "aye" to. I merely desire to call the attention of the Convention to the difficulty that may be met.
MR. DERING. I ask that the question shall be first taken on the ineligiblity feature, and then on the term of years.
MR. VAN WINKLE. Gentlemen will remember that they have no vote on the years. This is a substitute. They can vote on it and then the question will recur on the other.
THE PRESIDING OFFICER (Mr. Hall of Marion). I do not understand definitely the action of the Chair in reference to the proposed division of the question; but on coming to the chair, the President explained to me he had entertained the division. Thus it was I stated the question being on the striking out of eight and inserting ten.
MR. DERING. I had waived the point of order with a view that we should first take the question on the ineligibility and afterwards on the other.
THE PRESIDING OFFICER. If there is no objection, the question will be first taken on the ineligibility.
MR. DILLE. When I asked for a division of this question it was for the express purpose of having the first part of this proposition taken first; and I stated that as the reason why I desired the question divided. If the question is taken the other way, I do not care anything about a division. I shall vote against the whole of it.
MR. LAMB. I hope the vote will be taken on the question of eligibility first. I do not know how to vote on the other question until this is decided. If the judge is to be re-elected I should be in favor of a very short term; and I want the question of eligibility decided, and then I will know how to vote on the other.
THE PRESIDING OFFICER. The Chair in deciding this question would decide that it is not competent of division at all without destroying the preceding amendment, and would decide that the question must be taken all together. If that is voted down any question embracing part of it will be perfectly in order.
MR. VAN WINKLE. It must be divided: the one proposition as that the judges shall be elected for eight years, the other, that they shall be ineligible - these are distinct propositions. Whoever calls for it has a right to it.
THE PRESIDING OFFICER. The opinion of the Chair is that one is so dependent on the other that you must know how you pass on one. That is the decision of the Chair - unless appealed from.
MR. HERVEY. This proposition has got into the present form by two propositions. How could it get in that way if it cannot be got out the same way?
THE PRESIDING OFFICER. If the object of the gentleman is to object to the decision of the Chair, he must do it by an appeal. It will save time.
MR. STUART of Doddridge. I ask for a division of the question, to be taken on striking out first.
THE PRESIDING OFFICER. The division in that form is proper.
The Secretary reported that the motion before the Convention being to strike out "eight" and insert "six," Mr. Dering moved to amend that by striking out "six" and substituting "ten," and to make judges ineligible.
MR. DERING. I call for the question as modified by myself which has been before the Convention: to insert "ten" and make them ineligible to the same office in the same district.
MR. BROWN of Kanawha. I want to see what the striking out is to refer to. Strike out eight. If we are called on to vote on that question it will be to strike out eight. I understand the gentleman from Tyier moves to strike out eight and insert six. The gentleman from Monongalia moves to strike out six and insert ten. But if the vote is now taken to strike out six and insert ten the question on the report of the committee will be a question for subsequent vote if we insert ten instead of six. All I want to know is to be prepared to vote, if the question be on striking out six and inserting ten. If I am voting for striking out eight, then I shall vote against.
The Secretary stated Mr. Dering had moved to strike out six and insert ten.
MR. STUART of Doddridge. We are voting whether we will strike out eight.
THE PRESIDING OFFICER. The amendment to the amendment proposes to strike out what is in the amendment of the gentleman from Tyler - to strike out six and insert ten.
MR. DERING. My original motion - and the Clerk has it there written by me - is to strike out eight and insert ten. You will find that recorded there by the Clerk.
THE PRESIDING OFFICER. The understanding of the Chair is that it was otherwise.
MR. STUART of Doddridge. I recall the call to divide the question if it is to be on striking out six, but I do not understand it so.
MR. LAMB. I will suggest to the gentleman from Monongalia to withdraw his motion for the present and let the question be taken on the motion of the gentleman from Tyler. Whatever the result will be on that question, the motion of the gentleman from Monongalia can then be made and present the question fairly and distinctly.
MR. SMITH. I would suggest to the gentleman from Monongalia to withdraw his motion for the present and vote on striking out the eight and inserting six, and then his amendment will be in order, and the Convention could vote understandingly. It seems to me the way the question now is it involves some difficulty about voting.
MR. DERING. In order to save difficulty, I will do that, sir, to facilitate voting.
THE PRESIDING OFFICER. The amendment proposed by the gentleman from Monongalia having been withdrawn, the question before the Convention is to strike out "eight" and insert "six" on the motion of the gentleman from Tyier.
Mr. Van Winkle asked that the vote be first taken on striking out "eight." The vote was taken accordingly and resulted:
YEAS - Messrs. Brown of Preston, Dering, Hansley, Hall of Marion, Haymond, Hervey, Hoback, Hagar, Lamb, Mahon, O'Brien, Powell, Parker, Paxton, Pomeroy, Simmons, Stevenson of Wood, Stuart of Doddridge, Soper, Taylor, Van Winkle, Walker, Warder, Wilson - 24.
NAYS - Messrs. Brown of Kanawha, Brooks, Battelle, Chapman, Caldwell, Carskadon, Dille, Harrison, Irvine, Montague, Mc- Cutchen, Parsons, Robinson, Sinsel, Stephenson of Clay, Stewart of Wirt, Sheets, Smith, Trainer - 20.
So the motion to strike out was agreed to, and the vote was then taken on the insertion of "six," with the following result:
YEAS - Messrs. Brumfield, Cook, Hansley, Haymond, Hervey, Hoback, Hagar, Mahon, O'Brien, Parsons, Powell, Simmons, Stevenson of Wood, Stuart of Doddridge, Stewart of Wirt, Sheets, Soper, Taylor, Van Winkle, Walker, Wilson - 21.
NAYS - Messrs. Brown of Preston, Brown of Kanawha, Brooks, Battelle, Chapman, Caldwell, Garskadon, Dering, Dille, Hall of Marion, Harrison, Irvine, Lamb, Montague, McCutchen, Parker, Paxton, Pomeroy, Robinson, Sinsel, Stephenson of Clay, Smith, Trainer, Warder - 24.
Mr. Dering then renewed his motion, to insert "ten" with the modification in regard to ineligibility.
MR. STUART of Doddridge. I offer to amend that by asking to insert eight, because I voted to strike out eight and insert six; and now I prefer eight to ten.
MR. POMEROY. I hope my friend from Doddridge will not urge that now unless the judge be made ineligible on the long term.
MR. BATTELLE. I feel desirous that the question be divided. I am voting blind without it. I am utterly opposed to the ineligibility, and I would like to have the privilege of voting on that distinctly. I should be constrained to vote against the whole proposition as it stands.
THE PRESIDING OFFICER. Allow me to say that the question was decided just as it struck my mind, not that I had any very well defined opinion, and it would take much less time to decide by an appeal.
MR. BATTELLE. I have no disposition at all to appeal from the decision of the Chair.
MR. BROWN of Kanawha. The gentleman from Hancock suggests a difficulty, that his vote does not express his wishes, and I find myself in precisely the same difficulty on the opposite side. On this question I must say the Convention is voting without a chance to vote its sentiments; and I therefore would much prefer the question of ineligibility should be put distinctly before the Convention and let us vote for or against it. If you determine the judge shall be eligible, then we will fix the time accordingly. It does seem to me that is the first proposition we ought to determine. Like the gentleman from Ohio I think that is a violation of the principles on which we are basing our Constitution; and that I desire to put my veto on whatever form I can get at it; and I do not wish to vote in such way as to be compelled by my vote to do that which I am trying not to do.
THE PRESIDING OFFICER. The Chair seeing the difficulty that exists will entertain the division of the question.
MR. BATTELLE. Then, sir, I call for a division of the question, and that the vote be first taken on the question of eligibility.
MR. POMEROY. I think I see a way I can get out of that dilemma by not voting on this question of eligibility at all. I can be excused by general consent. I hope no person will object.
MR. HARRISON. On that question I believe the 9th proposition in the fundamental provisions provides that every person entitled to vote shall be eligible to any office in the gift of the people. If we stick to that principle I do not see how we can vote against eligibility.
THE PRESIDING OFFICER. I was overlooking the fact that the gentleman, from Doddridge had proposed an amendment. He was asked to withdraw but I do not know whether he did it or not.
MR. STUART of Doddridge. I want to see that question -
MR. VAN WINKLE. The Convention has just voted to strike out eight. He cannot move to insert it.
MR. POMEROY. I ask to be excused by general consent.
MR. SINSEL. I want every man to vote.
There being objection the request of Mr. Pomeroy was submitted to the house, and the Convention declined to excuse him.
MR. HERVEY. The question is on the re-eligibility?
THE PRESIDING OFFICER. Yes, sir; on that clause.
MR. STEVENSON of Wood. Would it be in order to offer the number seven now to be voted on?
THE PRESIDING OFFICER. It is in order.
MR. STEVENSON of Wood. Then I propose that.
MR. LAMB. I call for the question.
MR. STEVENSON of Wood. There seems to be a necessity, sir, amongst the members to get a vote on the question of eligibility. I will withdraw the amendment of "seven."
THE PRESIDING OFFICER. It will not affect the question at all.
The Secretary read the pending question: "but thereafter to be ineligible to re-election in the same circuit."
THE PRESIDING OFFICER. That is the question before the Convention.
The vote was taken and resulted:
YEAS - Messrs. John Hall (President), Brown of Preston, Caldwell, Carskadon, Dering, Dille, Hall of Marion, Lamb, Parsons, Parker, Paxton, Sheets, Smith - 13.
NAYS - Messrs. Brown of Kanawha, Brooks, Brumfield, Battelle, Chapman, Cook, Hansley, Haymond, Harrison, Hervey, Hoback, Hagar, Irvine, Montague, Mahon, McCutchen, O'Brien, Powell, Pomeroy, Robinson, Sinsel, Simmons, Stevenson of Wood, Stephenson of Clay, Stewart of Wirt, Stuart of Doddridge, Soper, Taylor, Trainer, Van Winkle, Walker, Warder, Wilson - 33.
So the Convention refused to make the judges ineligible to re-election.
The question recurring on the length of the term.
MR. PAXTON. Is the question now on ten years? There is a proposition now on ten and seven.
THE PRESIDING OFFICER. It is customary to vote on the largest number first.
MR. DERING. I withdraw the number "ten", sir.
MR. POMEROY. Is it proper to make any number we see fit?
THE PRESIDING OFFICER. You are entitled to propose another number.
MR. POMEROY. I move to reconsider the vote by which "six" was lost.
MR. STEVENSON of Wood. I withdraw my motion for the sake of the motion to reconsider.
MR. BROWN of Kanawha. I move to amend the motion and move the reconsideration of the vote striking out "eight."
MR. LAMB. How did the gentleman vote on that question? - against striking it out?
MR. BROWN of Kanawha. I voted against striking it out (Laughter).
Mr. Pomeroy's motion to reconsider the vote by which the Convention refused to substitute "six" for "eight" was agreed to; and the question then being on the substitution of "six" years for "eight" as the number of years for the judges' term, the proposition was agreed to by the following vote:
YEAS - Messrs. Brown of Preston, Brumfield, Dering, Dille, Hansley, Haymond, Hervey, Hoback, Hagar, Lamb, Montague, O'Brien, Parsons, Powell, Parker, Paxton, Pomeroy, Simmons, Stevenson of Wood, Stewart of Wirt, Stuart of Doddridge, Sheets, Soper, Taylor, Trainer, Van Winkle, Walker, Wilson - 29.
NAYS - Messrs. John Hall (President), Brown of Kanawha, Brooks, Battelle, Chapman, Caldwell, Carskadon, Hall of Marion, Harrison, Irvine, McCutchen, Robinson, Sinsel, Stephenson of Clay, Smith, Warder - 16.
The question recurring on the section as amended, it was adopted.
The Secretary reported the 5th section:
"5. A circuit court shall be held at least four times a year, unless otherwise provided by law, made in pursuance of section 3, by the judge of each circuit, in every county wherein a circuit court is now or may hereafter be established. But the judges may be required or authorized to hold the courts of their respective circuits alternately, and a judge of one circuit to hold a court in any other circuit."
MR. VAN WINKLE. I believe there was a portion of the 4th section not acted on. The motion made was to adopt the whole section. That seems to have been the understanding. I do not know myself what the fact is.
THE PRESIDING OFFICER. The Chair not having the report before him cannot say.
MR. VAN WINKLE. Unless the vote is called for, there is no use of taking it over.
THE PRESIDING OFFICER. If there is any desire that the vote should be taken on the second and third sentences, it will be entertained; if not, the vote taken on the section will stand.
MR. BATTELLE. Mr. President, I do not want to adopt it, and do not care - shall be content with just a simple vote, but I feel disposed to make the motion to strike out "thirty-five" and insert "thirty" as the minimum age of a judge.
THE PRESIDING OFFICER. The proposition is to amend the second sentence of the 4th section, in the 45th line, by striking out "thirty-five" and inserting "thirty."
MR. SINSEL. Just strike out the "five."
MR. BATTELLE. Yes.
MR. BROWN of Kanawha. This is a mere question of discretion. Some men may be as well qualified at thirty as others at thirty-five; but take the general run of men who have attained that experience that qualifies them for the bench I think you will find a much larger number of them at thirty-five than thirty. Very few lawyers are prepared to practise law at twenty-one and an experience of less than ten years is not safe in selecting a bench. I think the time adopted in the report is decidedly preferable and will be found much safer, and especially when we have diminished the number of years there ought to be some other securities.
MR. LAMB. I would merely remark that thirty appears to be the time almost universally adopted in other constitutions. It is the time fixed in our own constitution. According to my information in regard to the matter if a man is not lawyer enough at thirty to make a judge, he never will be.
MR. BATTELLE. I would just say one word, and that is that I think the greater latitude you give the people in these matters the better it will be for them in our peculiar circumstances in some sections of the new State. I might say, sir, that though I do not know whether Gen. McClellan would make a good judge or not he makes a good commander of our armies. This rule as it stands here, if I am not mistaken, would exclude him from a judgeship, provided he lived here.
The question was taken and the motion lost; and the remainder of the section, and the section as a whole, adopted.
The question recurred on the first sentence of the 5th section.
MR. VAN WINKLE. I would call the attention of the chairman to one word. In line fifty, instead of "now" say "hereby." I do not think the word "now" is proper.
MR. BROWN of Kanawha. That is intended to refer to the operation under this Constitution. I had not observed it. Yes, sir, it ought to be "hereby."
I do not propose to suggest any modification of this section only as to that word "hereby." It will be perceived that this section provides for the number of courts to be held in the several counties shall be four in each year. There might be some doubt as to whether that is too many in the minds of some, of others perhaps too few. I do not know what would be the sense of the Convention. My own impression is, however that experience will find it will be all that can be held, owing to the extent and character of much of the country to be traversed by the judges in some parts of the State. It is also provided that the number of these courts may be increased or diminished and the circuits altered as experience may show to be advisable or necessary.
MR. STEVENSON of Wood. I do not propose to offer any amendment, at least not now; but I wish to ask for my own information, not being very well acquainted with these judicial matters whether it would not be better to lessen the number of courts that shall be held in a year, as there is ample provision made by which the number can be either increased or diminished by the legislature.
MR. SINSEL. It cannot be done for five years, though.
MR. STEVENSON of Wood. "Unless otherwise provided by law." I do not think this third section has reference to the number of courts.
MR. SMITH. Yes, sir, it does.
MR. STEVENSON of Wood. Only the re-arrangement of the districts.
MR. SMITH. And the courts also.
MR. STEVENSON of Wood. That it is considered then it might be well enough to retain that if it is thought the four courts are really necessary in some of the districts. My impression was that that would probably be too many for some of the districts; that two or three courts might probably be sufficient, to do the amount of business. I merely wanted to inquire myself, to be satisfied about the matter.
MR. BROWN of Kanawha. It will be seen by reference to the section that after five years the legislature may increase or diminish the number of circuits, and the number of courts in a year as necessity may require, thus leaving it to the legislature as a question for their discretion as they alone may determine. There is in the second sentence of this section another provision where the judges may be required or authorized to hold the courts of their respective circuits alternately and the judge of one circuit to hold the court in any other circuit. Much necessity has been found for that provision. A judge is elected and finds there is scarcely a case on the docket he has a right to hear; that is he can preside in nothing that is on the docket because in almost every case he happens to be retained on one side or the other as counsel. The necessity therefore of this part to exchange and let one come and discharge the duties while he goes to another circuit.
The first sentence of section 5 was adopted.
MR. BRUMFIELD. I move we now adjourn.
MR. BROWN of Kanawha. I would suggest to the gentleman -
MR. BROWN of Preston. I was about to remark I do not understand very clearly the sense of this sentence: "but the judges may be required or authorized to hold the courts of their respective circuits alternately, and a judge of one circuit to hold a court in any other circuit." Now I can very well understand the judges may alternate, but how the courts will alternate I do not understand. Perhaps light will not be thrown on the subject by the additional language including the sentence, but I would propose to strike out all after the word "authorized" and insert this: "alternate with each other in holding their respective courts." Then it would read "but the judges may be required or authorized to alternate with each other in holding their respecting courts."
MR. VAN WINKLE. Would not it be better to say "the judges of two contiguous circuits" might do that? In the old constitution they were divided into districts and the districts into judges; and then the judges of two districts might alternate. But this would imply that the whole of the judges of the State might alternate.
MR. BROWN of Preston. I have no objection to accept the suggestion of the gentleman from Wood.
MR. SMITH. I should prefer the power to be general, because as it now stands they must exchange in four circuits, whereas judges may only wish to change two or three counties. The amendment proposed would authorize an exchange for one or two, three or four counties wherein the other cannot hold.
MR. VAN WINKLE. As this will evidently require some consideration and probably by morning the chairman would be glad to suggest something in the language which does not seem to be explicit, I move we adjourn.
The motion was agreed to and the Convention adjourned.
Chapter Eleven: First Constitutional Convention of West Virginia
