the indictment and proceedings or a transcript thereof, into the supreme

court.

The question was taken and the motion was lost-twenty-seven only voting in the affirmative.

The committee then passed to the sixth, to which no amendment was reported, and it was read as follows:

SECT. VI. The supreme court and the several courts of common pleas shall, beside the powers heretofore usually exercised by them, have the powers of a court of chancery so far as relates to the perpetuating of testi mony, the obtaining of evidence from places not within the state, and the care of the persons and estates of those who are non compotes mentis ; and the legislature shall vest in the said courts such other powers to grant relief in equity as shall be found necessary; and may, from time to time, enlarge or diminish those powers, or vest them in such other courts as they shall judge proper for the due administration of justice.

So much of the report of the committee as declares it to be inexpedient to make any alteration in this section, was agreed to.

The committee passed to the seventh section, which was read as fol lows:

SECT. VII. The judges of the court of common pleas of each county, any two of whom shall be a quorum, shall compose the court of quarter sessions of the peace, and orphans' court thereof, and the register of wills, together with the said judges, or any two of them, shall compose the register's court of each county.

So much of the report of the committee as recommends that no amend ment be made to this section, being under consideration.

Mr. BANKS moved to amend the report, by adding thereto the following, viz:

"In case of the absence of the associate judges of the court of common pleas, or either of them, the president of the said courts may hear and determine the causes and questions pending in said courts, with like effect as if two of the judges were present."

Mr. BANKS offered this amendment, he said, to obviate what may often occur in the organization of the court. He knew that great inconvenience had occurred to persons having cases in the orphans' court, because the president could not deterinine a cause by himself alone. It was absolutely necessary by the constitution, that two of them should be present. He had witnessed one case of inconvenience under this rule which he could never forget. A man whose business he had done for a number of years, came in and settled an a 'ministrator's account in Mifflin county. The persons interested filed objections. Some of these persons were brought from Armstrong county to have their objections passed on. There were six from different parts of the country. When the time of hearing came, the president only was present, and he could not act. The president of the court told the parties that he could do nothing. It was such a hardship that relief ought to be given, but the legislature could not give it, because the constitution required the presence of two judges of the court, in order to form a quorum for the court of quarter sessions and the orphans' court. Therefore, it seemed proper to alter the provision of the

constitution in this respect, in order to save time, inconvenience, and expense to persons having business with the orphans' court. It often happened that many of these persons came from a distance to transact their business with this court, and the delay was to them very inconvenient.

Mr. READ, of Susquehanna, said, the gentleman's amendment would be equivalent to the rejection of the section. It would evade the whole power and effect of it. He could, therefore, get at his object much better by rejecting the whole section. Several of these sections consisted of details which were equally useless.

Mr. DUNLOP said, the gentleman from Mifflin would not reach his object in the way proposed by the gentleman from Susquehanna, because the section would not be rejected. Every one must see the propriety of the alteration proposed in the amendment. When the judge is ten miles off from the place where the court is to be held, it is not easy for him, at all times, to get there. Great inconvenience, to his knowledge, often arose from the provision requiring the attendance of two judges. He moved to strike out the word "two" and "shall," and insert " may," thus leaving to the legislature to say whether one or two should compose the court. In this way of amending the section, fewer words would be employed, than in the manner proposed by the gentleman from Mifflin. Mr. MERRILL said it was true that every possible inconvenience to those who sought justice, should be removed and guarded against. The way to obtain justice ought to be clear and unobstructed. But here, in this section of the constitution, we have provided means to secure justice to the widows and orphans-to those who cannot attend to their own causes, and who seldom appear in the courts, and to protect the rights of whom it is the duty of the legislature. He would ask whether it was safe and proper to abandon the rules formed for the protection of this class of persons, in order to suit some case of temporary and casual inconvenience in Mifflin county. Are we prepared to leave the facts and the law in cases of this kind, to the decision of one man? Would we thus deprive the widows and orphans of the security and protection hitherto afforded them, by committing their cause to the decision of two judges? Why should we not have a chancellor at once, if this course should be adopted? We were unwilling to create a court of chancery, because we would not leave to one man the decision of cases, which involved personal liberty and property. The witnesses brought before the judge of the orphans' court in these cases, might be persons with whose credibility he was unacquainted. Should it be said that, in this uncertainty, he should go on to decide upon facts involving the estates of widows and orphans? The provision that there should be two judges, was required for these very cases. But the amendment of the gentleman from Mifflin, would put it in the power, and make it the duty, of one associate judge, to decide finally on all these cases, just as he pleased. He could open the cause at any time, and close it when he chose, and administer justice just as it pleased him. He submitted whether this was not opening a door to the destruction of rights, which it was the object of the constitution to secure. It was very true that one witness might live a hundred miles off. And it might be very inconvenient to him, as, when he came, he could not be certain of finding the two associate judges. But what was that inconve nience, in comparison with the security, which the law ought to afford to

VOL. V. M

the great interests involved in cases which came under the cognizance of the orphans' court. He would ask whether we should not lessen the security which was afforded to justice, by adopting this amendment? In cases, too, where the court sat as the quarter sessions of the peace, there might be many trials for petty offences, in which one judge would not know so much of all the persons who were brought in as witnesses, as two judges would know. Should one judge, then, decide upon such cases? Such a course would render the courts unsafe. If we must leave facts to the decision of courts, then surely we ought to have more than one man to act as the court. We must not suffer injustice to be done, in order to prevent inconvenience to one man.

The hour of one o'clock having arrived, the committee then rose; and, The Convention adjourned.

THURSDAY AFTERNOON, NOVEMBER 9, 1837.

FIFTH ARTICLE.

The Convention again resolved itself into a committee of the whole, Mr. M'SHERRY in the chair, on the report of the committee to whom was zeferred the fifth article of the constitution.

The question being on the motion of Mr. BANKS, of Mifflin, to amend the seventh section, by adding to the end thereof the following words, viz:

But in case of the absence of the associate judges, or either of them, the president of the said courts may hear and determine causes and questious pending in the said courts, with like effect as if two of the judges were present."

Mr. FULLER, of Fayette, expressed his hope that the amendment would not prevail. He was more disposed to increase the business security for the public, than diminish it. He would rather have three dges on the bench than one judge. The views of the gentleman from Union, (Mr. Merrill) on this subject were very clear. He had set the matter in a right light, and must have satisfied every one. There had been no complaint from the people on this subject and amendments, which were not generally called for by public opinion, ought not to be made.

Mr. BANKS, of Mifflin, said he had already stated to the committee the reasons which had operated on his mind, when he offered this amendment. It must be obvious to all that there may be delays in the course of gestice, in relation to the settlement of accounts of trustees, guardians &c. in which the interests of a class of innocent and helpless persons were volved. While others, who could give personal attention to their business

in court, disposed of it quickly, those were compelled frequently to suffer from delay. The amendment was intended to be added to the section. He wished the section to stand as it now is, whether the amendment was attached to it or not. Then the committee could judge of the propriety of rejecting or accepting the proposition. As to security, the president and judges of the court of common pleas, have now the power of sitting in the court of common pleas, and persons are prosecuted there to trial and judgment, without any of the associates being present, as was known to gentlemen conversant with the business of the courts. In such case, if injustice be committed it is without relief or remedy. But the president judge, sitting as chancellor, passing on creditors or guardianship accounts, if he should prejudice any one, an appeal can be made to the supreme court, where the error will be corrected. So that there is no security taken away. He did not wish to be tedious in giving his views. Although he was desirous of making improvements, he was unwilling to interpose his amendments against the sense of the convention. He only wished to introduce such amendments, as he believed might be of service. He was as unwilling to interfere, and to trample under foot the rights of persons, as any could be, or to do any act which could have a tendency to prejudice the interests of the commonwealth. The organization of our courts, he regarded as a valuable one, and he was unwilling to disturb it. The supreme court, he stood up for as one; so also the courts of common pleas, and every other court in this commonwealth. In reference to them, he would adopt the language of Randolph in relation to the convention in Virginia.

In the matter of the organization of our courts, the framers of our constitution hit on a happy expedient. One of these fortunate contrivances the ramers of the constitution hit upon, which enabled them to snatch a grace beyond the reach of art. To prevent injustice, and to assist in administering justice, it is the duty of every man to do all he can. If the gentleman from Fayette was not satisfied with this amendment, let him offer any thing more advantageous. I (said Mr. B.) am not tenacious of my own composition, but would be ready to accept any modification which would not injure the spirit of the proposition.

Mr. REIGART, of Lancaster, asked what would be the effect of the amendment of the gentleman from Mifflin, in practice. It would be to create a court of chancery. It would be to confer on the president judge alone a tremendous power of adjudication over the property of the state and community, to the amount of millions. To be sure his decisions would be subject to an appeal, but that was a tedious and expensive process. There was, to be sure, some inconvenince in the present system in the case put by the gentleman from Mifflin, but there would be no loss. No loss could occur. He (Mr. R.) would not agree to the amendment, because there should be a connecting link between the court and the people. Sparsely populated districts ought to feel some connecting link. The associate judges form that link. What would be the consequence of its destruction. The president judge is unacquainted with a county. A recognizance of bail is required. The president judge is not acquainted with the recognizer or the recognizee, for the associate judge will stay away when not obliged to attend. The president judge, a stranger, without the means of forming a correct judgment, would be entirely at a loss how

to act.

At the orphans' court, the accounts of administrators and executors can be presented at any time, and no injurious delays are likely to occur. The gentleman from Mifflin says, we trust a tremendous power in the hands of the judges. They try causes, administer the law, instruct the jury. But here he would confer a power ten times as tremendous, because without the medium of any jury, they could exercise their own will, and do what they think proper. It was scarcely to be expected that, because some such inconvenience may have occured, as was stated by the gentleman from Mifflin, we are to make an alteration in the constitutional law. There is the orphans' court, which may at all times be resorted to, and there are always two or three judges there. Believing the adoption of the amendment would be productive of great evil and injury, he should feel himself constrained to vote against it.

Mr. FLEMING, of Lycoming, said, if the committee would agree to dispose of the associate judges altogether, and not have any, he would willingly go for the proposition. But he could not receive the arguments of the gentleman from Lancaster, as evidence of the injurious tendency of the amendment. The gentleman had put his opposition on the ground that the president judges have to pass on the rights of individuals, and would have no means of making up a correct judgment. He never wished to see the time when a court, without council or parties at hand, could make up a judgment on any litigated question. He thought courts should not have any such power. But he did not understand how associate judges could be more competent to come to a correct judgment on facts relating to the settlement of the accounts of administrators and guardians, than the president judge. Is the legal acquirement of the associates able to bring a question to a more proper conclusion than the learning of the president judge? No. The whole evidence being with the president judge, he ought, at any time, to be able to form his decision. If not satisfied with the testimony, he has the means at hand to obtain such material as will enable him to determine on his own responsibility, without taking the opinion of the associate judges, which the parties interested may have no means of counteracting. For much information was given in this way. All parties ought at all times, to know on what evidence a court, as well as a jury, makes up its opinion. He wanted the whole evidence before a jury. The parties could then be able to know that no other opinion, was made up, but that which was authorized by the evidence adduced before the jury. So courts should bring before the parties every thing within their knowledge, all the facts on which they form their opinions, and as to any advantage derived from the presence of the associate judges, he was willing to forego it, and to go for the amendment, because it leaves us a place to creep out at, and a hope that we shall one day get rid of the associate judges altogether.

Mr. AGNEW of Beaver, did not agree with what had fallen from the gentleman, who had just spoken.

These associate judges had a more extensive knowledge of local matters in their counties, than the president judges could have, and for this reason, he was opposed to the amendment. Will any man pretend to say that a president judge who does not reside in a county, is a proper person to judge, in relation to a tavern license, when the petition has been got up perhaps by some agent employed for the purpose, and we all know