Resolved, That the committee on the legisla- | of the second line these words-"the district in tive department be instructed to enquire into the which he may be elected," and inserting in expediency and propriety of so amending the con- their place the word "state." stitution as to prohibit the legislature from passing any bill, or resolution, for the appropriation of money, or creating any debt against the state, or for the payment of money in any way whatever, unless such bill, or resolution, shall be voted for by a majority of all the members then elected to each branch of the legislature, and said vote to be spread upon the journals of each house.

I understand that it is the order of proceeding in convention that propositions in relation to the judiciary shall be submitted to the house and have a reference to the committee of the

The motion was agreed to. Mr. NUTTALL said he also had an amend-whole, and be printed, that they may have a ment of which he wished to make the same disposition. It was designed to be inserted at the foot of the eighth section.

The Secretary read it as follows: Provided, however, That if any candidate for the office of judge of the court of appeals, or any

proper consideration. I did suppose myself that a different mode would have been adopted, but I shall not object to any mode, provided it will enable each member to present his views tion which he may deem it important to present and have a just consideration of any proposi to the convention.

of the circuit courts to be established in this commonwealth, shall engage in public speaking This affords a more deliberate consideration to or treating, during his candidacy for such offi- the convention, and gives the advantage of havces, or either of them, upon information, in wri-ing it in print, so that the members of the conting, supported by the oaths of two or more re-vention may examine it more carefully and despectable witnesses, to the attorney general of liberately. In conformity to that course, and to the state, he shall, in the event of the election of what has been adopted by several members this such candidate, thereupon cause to be issued morning, especially by my friend from Henry from the clerk's office of the circuit court, at the (Mr. Nuttall) I will submit a proposition which I seat of government, a caveat against such judge, intend to offer as a substitute for the report of which shall be returnable to the succeeding gen- the committee, in relation to the appellate court; eral assembly of the commonwealth of Ken- and in doing so I do not propose to make any retucky, who shall try him according to the rules marks at large; but I will say to the gentleman and regulations by this constitution provided from Henry, that he is striking but at some, at a for the trial of judges for other offences, and up-small portion of the inherent evils which will on conviction thereof, he shall be adjudged dis- attend the new system of submitting the election qualified from holding said office, and the gov- of the judges to the popular vote. ernor shall not, before the trial nor after the conviction in such case, commission such judge.

I think myself, sir, as we value an able, Mr. NUTTALL said it was very evident that timate the value of the rights of persons, of propa learned, and an impartial judiciary-as we esthe judges were to be elected, and, although his erty, of liberty, and of reputation-and as we amendment was not couched in the language he expect to secure to the citizens their enjoyment could wish, if it were printed the convention of these rights through the intervention of laws, would be enabled to see the idea which he just laws, properly administered by wise and inwished to embody, and some gentleman might dependent tribunals, that that innovation upon be induced to take some steps to secure a provis- the present system ought to be resisted. I may ion which shall prevent the judges from enter-stand alone in this body, or in this state, in vining into the election contests which would take place under the new constitution.

The motion to print and refer was agreed to. Mr. DAVIS. I think the convention is now engaged in the most important business upon which it will be called to act during the session. I think the judiciary department is a matter of infinitely more interest than that of any other department or all other departments of the gov

dication of that position; but whether alone or whether I have allies enough to enable me to maintain it, of which I have no hope, still I intend to maintain it, because I believe that every duty which I owe to my state and to the government of my state, requires that I should attempt, as far as in me lies, to prevent the establishment of any such principle in the constitution of the state of Kentucky.

ernment besides. Now I conceive that an innovation on that department is about to be made I will submit and ask that it be printed, a subby this convention which will be in my judg- stitute in support of which at a proper time I ment fraught with consequences of the greatest may say something in committe of the whole. mischief to the country. No government-no I regret exceedingly that I am called upon to constitution, that does not secure an able, say anything in its support. I regret exceedinglearned, and impartial judiciary, is worth pos- ly that the mind that conceived such a proposisessing. And when any principle is about tion as has been offered to this convention, and to be introduced into the constitution which which pointed out so justly and so forcibly its would be subversive of those great ends of gov-weakness, and the attacks to which it was perernment and of the judicial department itself, itpetually accessible-that that mind did not conseems to me it is the duty of every person thus convinced to offer every opposition to the introduction of such a monstrous principle.

I had hoped that the minds of men whose ability and experience in connection with the courts of the country, and with the framing of constitutions, and the introduction of great constitutional principles into such an instrument, would have taken a part in resisting that great and mischievous innovation, which in the absence of a better champion I feel somewhat disposed to offer myself.

ceive it to be its duty to have entered upon the vindication of the present principle in the constitution which stands sanctioned by time and experience. And I had hoped that if that mind had not felt bound to perform such a work that have come up to the work. I regret beyond any some other and more experienced mind would arduous and so difficult. But still unequal as I language I can use to have to perform a task so feel to the task, I feel bound to undertake the work myself in the absence of a better champion.

The secretary read the amendment as follows:

ARTICLE.

Concerning the Judicial Department.

SEC. 1. The judicial power of this commonwealth, both as to matters of law and equity, shall be vested in one supreme court, which shall be styled the court of appeals, and in such inferior courts as the general assembly may, from time to time, erect and establish.

for which purpose he would offer the following resolution:

Resolved, That a committee of five members be appointed, whose duty it shall be to prescribe the mode and manner in which new counties shall be established, so as to prevent the unnecessary increase of counties

The resolution was agreed to, and the chair appointed as the committee, Messrs. C. A. Wickliffe, Mayes, G. W. Johnston, Boyd, and Apper

SEC. 2. The court of appeals shall have appellate jurisdiction only, which shall be co-ex-son. tensive with the state, under such restrictions and regulations, not repugnant to this constitution, as may, from time to time, be prescribed by law.

HOUR OF MEETING AND ADJOURNMENT.

Mr. RUDD offered the following resolution: Resolved, That this convention will meet from and after this day at 9 o'clock, and continue in session until two o'clock.

He said in support of this resolution that there had been three amendments offered this morning to the report which had been for some days under consideration in committee of the whole, in relation to the court of appeals, and as much more time would be required to discuss these amendments he thought the sittings of the con

SEC. 3. The judges of the court of appeals shall hold their offices for the term of eight years, and until their successors shall be duly qualified, subject to the conditions hereinafter prescribed; but for any reasonable cause, which shall not be sufficient ground of impeachment, the governor shall remove any of them on the address of two-thirds of each house of the general assembly: Provided, however, That the cause or causes for which such removal may be requir-vention should be extended so as to afford more ed, shall be stated at length in such address, and on the journal of each house. They shall, at stated times, receive for their services an adequate compensation, to be fixed by law.

SEC. 4. The court of appeals shall consist of four judges, any three of whom may constitute a court for the transaction of business. The judges shall, by virtue of their office, be conservators of the peace throughout the state. The style of all process shall be, "The Commonwealth of Kentucky." All prosecutions shall be carried on in the name and by the authority of the commonwealth of Kentucky, and conclude, "against the peace and dignity of the same."

SEC. 5. That the governor of the commonwealth shall, from among the judges of the inferior courts, and such persons as shall have been judges thereof, nomínate, and by and with the advice and consent of the senate, appoint the judges of the court of appeals.

time to gentlemen to discuss them than they had had heretofore. Another reason was that he saw manifested in this house a disposition to hold evening sessions. If, however, this resolution were adopted the convention would be five hours a day in session, which would afford the convention sufficient time to do its business. For these reasons he submitted this resolution, and if there were to be any difficulty about it he would call for the yeas and nays.

The PRESIDENT suggested that it would be necessary that the resolution should lie over for one day under the rules.

Mr. DIXON said the resolution was entirely out of order. The gentleman could not propose to deprive this house of its right to adjourn at any time.

Mr. RUDD was perfectly aware of that. He knew the house had the right to adjourn at any time, and even for three days at a time, but if this resolution were passed it would hold the SEC. 6. That the court of appeals shall ap-house to a responsibility which they would not point its clerk, who shall be a citizen of the state disregard by adjourning at one o'clock or even of Kentucky, and who shall hold his appoint- sooner. ment for and during the term of years, subject to be removed by said court, upon specific charges, filed by the attorney general. And whenever there may be charges pending against the clerk, the said court shall appoint a clerk to perform the duties of the office for the time.

SEC. 7. That all fees accruing for services rendered by the clerk of the court of appeals, shall be collected from the proper parties under the direction of the auditor of public accounts, and be paid into the treasury of the State, and said clerk shall receive for his compensation an annual salary of $ The number, appointment, and compensation, of his deputies, and the other necessary expenditures of his office, shall be regulated by law.

The PRESIDENT explained that by the rules of the house 10 o'clock, A. M., was fixed as the hour of meeting, which could not be changed without a two third vote. That portion of the resolution in relation to the adjournment he held to be out of order.

Mr. RUDD had no desire to be out of order, and therefore he would amend his resolution, so as to embrace that part that was in order, on which he desired the yeas and nays.

Mr. BOYD suggested that as a similar resolution had been heretofore offered, the consideration of which was postponed to Monday next, it would be desirable to postpone this resolution to the same time. He would therefore make that

motion.

The motion was agreed to; ayes 42, nays 34.

LEAVE OF ABSENCE.

The motion to refer and print was agreed to. Mr. C. A. WICKLIFFE said, in consequence of some remarks thrown out a few days ago re- On the motion of Mr. MERIWETHER, leave specting the increase of counties, he felt bound of absence was granted to Mr. Wright, for an into ask for the appointment of a select committee, definite period, that gentleman having been

called home in consequence of sickness in his | ernment, but in some measure of the appointing family.

COURT OF APPEALS.

the

power itself after the appointment has been bestowed. Is any man's life and liberty secure, The convention then resolved itself into com- where he has a judge to try him, who is the mittee of the whole, Mr. HUSTON in the chair, mere index of popular excitement and prejudice, and resumed the consideration of the report of and whose decisions vary as it varies? Would our the committee on the court of appeals. rights and property be safe under judges of that Mr. TURNER. I understand that although description-the mere index of the way popuwe are restricted in our action to one proposi-lar breezes are blowing-and what would be the tion at a time, yet we are permitted to embrace consequence to all investments of property and in the discussion the entire merits of the sub-capital, under a judiciary system which every ject. I have listened to this debate, the ablest 1 six or twelve months should hold a different have heard in any deliberative body, with a doctrine in regard to the rules and contracts in great deal of interest, but still I think there are views of the subject which as yet have not been fully presented, and it is under this belief that I now trespass on the 'patience of the committee to express my views on the various propositions touching the judiciary. And I hope the fact, that as the profession in the pursuit of which I have expended the best part of my days, is intimately connected with this subject, will be my excuse for so doing.

What but utter ruin and derelation thereto? struction? There can be no security or confidence in any thing that relates to such a judiciary..

I have had great doubts about the propriety of appointing a judiciary for a term of years, but the public opinion of the country is so entirely unanimous in favor of it, that, as a matter of course, my own feeble voice hardly ought to be heard as expressing doubts in relation to the I came here determined to remove the power subject at all. Yet, I have greater doubts about of appointing the judges from the governor, and it than I have as to the propriety of their electo go for their election by the people-although tion by the people-much greater. I believe it was with great hesitancy that my mind was that an elective judiciary, with proper guards, brought to that point. But I believe the country such as to hold their offices during good behavior, has settled down in favor of the elective princi- to be rendered independent by the constitution ple, and that the majority of the people of my own by fixing their salaries, and to be removed by county, although there is considerable division two thirds, and not a bare majority, may be betof opinion there, are decidedly in favor of it; ter than any system we have ever had. But, un and there is such a prejudice now existing less we can have all these points secured, the against executive appointments, as would, in a government cannot get along. Look at the govgreat measure, do away with their usefulness. ernment we are about to pull down. I supposed There is an opinion prevailing throughout the to use a farmer's simile-that when we came country, whether right or wrong, that almost here to perform that work, we were going to every executive that has been elected in this leave to the old government, at least, three rails, commonwealth of either party, has collected but I think now the chances are that we shall around him from one circumstance or another a scarcely leave it one rail. And really a constigreat many individuals who keep the great body tution is a fence, a wall thrown around to guard of the people from having any influence with the liberties and rights of property of the peothe executive department of the government. I ple. If the people desired all power in their do not believe this myself, but there is an im- hands, they could have it without a constitution pression abroad that the executives have been and without a legislature. The very object of influenced by favoritism and by cliques, and making a constitution, and for which they sent not by considerations of qualification and caus here, is to guard the people against the repacity in their appointments to office. And sults of an unchecked exercise of their own there have been many appointments made with-power, and to protect the rights of every citizen in the last twenty years which would at least in the commonwealth. And, the constitution, give a color to such an impression. I have there-instead of being solely for the benefit of the arfore determined to go for an elective judiciary, istocracy and wealthy, is for the great security but in doing that, I must have those guarantees of the poor man, of the weak against the powand safe-guards thrown around it that I think erful and the mighty. are necessary and essential to secure its indepen- The poor and the weak have no security in dence. It is the judiciary of every country any government, where the constitution does not which gives character to its government-and it restrain within their proper spheres and proper is in their honesty and purity, their intelligence limits, the great and powerful men of the counand independence, that the safety of the life, try. It is the poorer portion of the country liberty, and property of the citizen depends. The who are the most interested in having a stable executive or legislative department to-day may and independent judiciary who is to carry the govhold one language, and the change in the current ernment into effect? Who, when the legislature of public opinion may cause them to speak an- or the executive are disposed to trample down other to-morrow. In the congress of the United the rights of the great body of the community is States, there will be at one election one party, to protect them? They appeal to the judiciary and at the very next election another party in to come to their aid and to say to these other depower. It is the same in the governments of the partments-thus far your power goes and no various states of this union. But the judiciary further. Gentlemen talk to me about the people,. should speak the same language in all times and and of their possessing all power in themselves. I countries, and to do that must be independent am aware of that, and the people have sent us not only of the other departments of the gov-here to take away a portion of that power, to

confide it to their agents, and to put restraints | was proposed here was to be carried out the on those agents. And one of the great prin- office would be a mere shadow. ciples which they desire shall not be invaded, is that each department is to be confined in its action, to its own particular duties.

The

Well, instead of adding strength to the judiciary, we are going to provide for its election, and to change the tenure of their offices from Well, I have indicated that I am going for an good behaviour to a term of years, and then as a elective judiciary. In going for it, I regret sep-matter of course bring them nearer to the political arating from my friend from Bourbon, because I power, and more under the influence of the legis believe him to be one of the ablest and lature. purest The legislature is composed of indimen in this body. I have had my doubts viduals mixing with the people, constantly gowhether in separating from him I was right, ing back to them, and having perpetual connecbut yet I have determined at this point to do so. tion with them. The judiciary, from the necesI will do it on certain conditions. What have sities of their avocations, are aloof from the peowe come here for? And why have any of us de- ple, and do not associate with them. Indeed it sired a seat in this convention? Was it to secure would be considered unbecoming and undignia momentary popularity among the people, to be fied for them to go into those circles which swept away by the first adverse breeze that the political portions of the government go into. comes along? Or was it not to do that which Moreover, every decision of a judge makes him will endear us to posterity for the benefits we one enemy for every friend; and it must also be have conferred upon them, and give to our recollected that the recollection of an enemy is names fame and veneration among those who an hundred per cent. more retentive than that of come after us, and at the same time furnish an a friend. Then you have all the power of the example in the modeling of a government bar in opposition to the judge. I wish to which other states would be proud to follow. speak of my profession with respect, but it is in If the first set of officers that are appointed accordance with human nature. But the whole under this new constitution we are about to corps of lawyers will be candidates in opposicreate, are not men of the highest standard of tion to the judge, and being therefore interested intellect, integrity, and purity, then will that in rendering him unpopular, will be continualnew constitution become obnoxious to the peo- ly striking at him-those of them at least who ple. It will be said by every body, you have desire his situation. The result may be that the made a government that cannot be administered, country may be influenced to believe him an inand which is neither practical nor right. You have competent judge, and as wanting in all the redone away with the old constitution made by quisites that enter into the composition of an inour fathers, and you have given us one in its telligent judicial officer. You weaken him stead, that does not work well, and that does therefore in his position, and in the very points not realize that amount of benefit to us that we where he is now most strongly sustained. expected when we sent you here to make it. judge now holds his office during good behavWe may get thereby an ephemeral popularity of a iour, and what is the effect? Every lawyer is defew months or year's duration, but its beneficial sirous of being friendly with him-for a great and practical operation for years to come is many people think, that the best way to gain a what we are sent to secure. And how shall we cause, though not the best way to act, is to have secure that? We must do it by making the ju- your judge like you-and the bar ar genediciary the great pillar of the government-erally disposed to sustain the judge. Again, that branch of the government which is the it must be remembered that there will be an evguardian of liberty and of every right that is erchanging current of popular opinion and pardear to man. Its action should always be uni- ties in the country. Elect, at the first election, form, and based on principles the same in all a judge of one particular party, and by the time ages and at all times. We must make the judi- he is ready to go out, the popular current will ciary stable and independent, and then only have changed, and another party will be in powshall we make it a benefit to the community.er. Then political prejudices will begin to be Now, twenty five years ago, when men were excited in the choice of a judge, and the influstruggling with the old and new court ques-ences of party will be brought to sustain and tion, was it not then manifest that the judici- oppose him. With all those influences to which ary was the weakest department of the govern- I have referred against him, it seems to me that ment? As then organized it was weaker than we should sustain him in every way that we the legislature or the executive? And in fact can. When we look at the great power that will the legislature was then more powerful than both be brought to bear against a judge, the influence of the other departments together. And in that the bar will be inclined to use against him, what we are now doing we must, in some way, and the fact that his duties claim his whole and supply those props that support the weakness of undivided attention, prevent him from shaking the judiciary, which we are now about to take hands with and making friends, giving parties, away. We are stripping away all power from etc., we are undoubtedly called upon to give the executive, and giving it to the people, so him some power to sustain himself against all that that department of the government when these influences. If we do not, the government we get through will not amount to anything. will go down the first year of its operation, or The man who would then take the office would to use a more homely phrase, it will stick in the merely have a right to be called governor, and mud. have every old lady and tippler in the country petitioning him to remit fines, and, perhaps in addition, the power to pardon. But he would have no patronage in his hands, and if all that

I voted yesterday for the two thirds requisition to remove the judge, and I am now in favor of still further sustaining him, by allowing the governor to have a discretionary power after two