SPEECH OF MR. INGERSOLL, OF PHILADELPHIA, On the Judiciary, delivered in the Convention to Amend the Constitution of Pennsylvania, November 1, 1837. Mr. INGERSOLL said, his intention was to listen to the instruction he expected to derive from the discussion of this most important subject, and take no active part till he got from others their better digested views; but, the unexpected turn given to it, by the vote of yesterday, placed him, and probably many others, in a false position, and precipitated him upon the debate before he was, by any means, prepared to do it justice. Yet, he would attempt an argument, addressed alto gether to the reason and candor of the committee, studiously avoiding personality and all excitement. If he were even able to be eloquent, he would not on this occasion, and he must take the liberty to say, that the name of Washington,, to overawe us, was as much out of place, as introduced by the venerable and learned Chairman of the Judiciary committee, as it would be in a charge to a jury or other judgment of a court. Let us areason together, as if we were not in formal session, but sitting under the mild moderation of the gentleman in the Chair, (Mr. M'Sherry) we were considering this all-important topic, in free and unreserved conversation. I shall be thankful to any gentleman for all inquiries made of me, as I proceed, and, instead of complaining of interruption, will rejoice in opportunities of endeavoring to make myself perfectly understood. do believe that the Convention is open, as I profess to be, to that conviction which may result from a frank interchange of opinions, and there are, probably, many members attached, as I am, to some cardinal principle, but undetermined as to its mode of application, and ready to unite upon whatever free discussion may ascertain to be the best issue. and punished, as guilty of defamation. And, even if that should not be so, still he must make enemies of the most dangerous kind, for the learned Judge, the chairman of the committee (Mr. Hopkinson) has told us, that there is no man who does not, some time or other, fall within the power of the Judiciary. Judges, he says, are quite as liable as other men to unworthy passions and influences, and I must confess, that I do not feel while discussing them, the natural and proper freedom of debate, in the effort to expose a system by views unavoidably personal. I agree with that respectable gentleman, in all he says of the importance of the subect, which it is impossible to overrate. The Judiciary is our Providence of this world. All other political elements are but elements; but this is, so to speak, the representation of Divinity on earth. I concede also, that judicial independence is indispensable to good government; but, I deny, that, in order to be independent, Judges must be irresponsible, or beyond the reach of whatever is the sovereignty of the State. The view of the learned chairman was first historical, and then argumentative; and, I will follow his method. First, with some notice of antiquity; secondly, of England, and thirdly of our own country. First-No such tenure as that during good behavior was ever known, until after the English revolution of 1688. Let us, therefore, in the first place, do all ancient and modern nations, except England, the justice to recollect that all those wise and established systems of administering law which have obtained among them, together with their celebrated codes, come down to us without that tenure of judicial office which I feel all the disadvantages under which our Constitution prescribes. And, while I I address, even a forbearing argument to the freely acknowledge, that English justice committee, on this peculiar occasion. Scarce protects personal liberty, much better than an unworthy motive can be imagined, that that of other nations; yet, as to property, it has not already been suggested, as impelling is at least questionable, whether it is not as those who plead for reform. On the other hand, it is impossible to speak any thing like the whole truth in its advocacy. In the first place, the utterer of offensive, however, honest truth might be indicted, convicted, well provided for by the administration of it in Italy, and Germany, and France, and Spain. We have beenreminded to discredit responsible tenures, of many instances of arbitrary judicial proceedings in English State trials, before the revolution of 1688, which there is no need of controverting. But this committee will not forget, that the great foundations of our laws of property, those noblest monuments of English jurisprudence were laid by Coke, Hale, and other Judges, whose judicial office was mere tenancy at will,under arbitrary and capricious monarchs. The gentleman from Union, (Mr. Merrill,) said something disparaging of the French law, till, by charter, the Judges were rendered irremovable. But, I call his attention to the fact, that the most splendid accomplishment of Napoleon's reign, which will outlive the renown of all his victories, was the code of laws called by his name, framed by Judges and Lawyers dependant on his will. Secondly-Leaving antiquity and continental Europe for Europe, let us come at once to the act of 1701, which, for the first time, conferred upon Judges, the tenure of good behavior; a vast improvement in their situation, and that of all those who look for impartial justice. But, after all the eulogy bestowed on this amelioration, it was nothing more than a transfer of Judicial dependence, or responsibility, from the Crown to the Parliament, which, in England, represents the sovereignty of the people. In like manner, the French charter contains nothing more than a similar improvement; a great one, to be sure, because it substitutes the nation for a monarch, as the power controlng the judiciary. Since the British revolution, the constant tendency of mankind has been to greater freedom; to take from the sovereignty of one, and confirm that of the community; until, both in England and France, by reforms and revolutions, greater liberty, in some respects, has been established, than many Americans think compatible with even our free government. Voltaire, speaking of Queen Elizabeth, says, she loved her people, and then asks, with a sneer, who loves the people? But, whether loved or feared, the people of many nations have now become their acknowledged sovereigns. We have been warned against their mastery, by historical illustrations of its arbitrary excesses, drawn from Grecian, from Roman, and from English history, The delegate from Union even reminded us, that when the author of our religion was accused before Pilate, who was disposed to enlarge him, and told the people, he found no fault in him, that, by their clamorous threats, the Judge was compelled to sacrifice the Saviour of the world. That gentleman must recollect, however, that Pilate, if a Judge, acted from no fear of popular violence, but inti midated by the threats that he would be George the Third propitiated the people, "On Friday, April 14, being Good Fri So, added Mr. Ingersoll, this wise man was prepared, and predisposed for the best judgment. "He entered upon the state of the na tion, and thus discoursed: "Sir, the great misfortune now is, that government has too little power. All that it has to bestow, must, of necessity, be given to support itself. Our several ministers, in this reign, have out bid each other, in concessions to the people. Lord Bute, though a very honorable man-a man, who meant well-a man, who had his blood full of prerogative L -was a theoretical statesman-a book minister and thought this country could be governed by the influence of the crown alone. Then, sir, he gave up a great deal. He advised the King to agree, that the judges should hold their places for life, instead of losing them, at the accession of a new king. Lord Bute, I suppose, thought to make the king popular, by this concession; but the people never minded it; and it was a most impolitic measure. There is no reason, why a judge should hold his office for life, more than any other person in public trust. A judge may become çor rupt, and yet, there may not be legal evidence against him. A judge may become froward from age. A judge may grow unfit for his office, in many ways. It was desirable, that there should be a possibility of being delivered from him, by a new king. That is now done, by an act of Parliament, ex-gratia of the crown.' If I do not misunderstand the English system, it is, in every respect, an improper standard for ours. Notwithstanding the acts of 1701 and 1762, and, abstemious as the crown is, from interfering in private controversies, its influence with the judiciary, is still, all-powerful in state prosecutions. When I was in England, Colonel Despard, and his associates, were condemned and executed for treason, upon proof, so slight, that upon expressing my surprise, to our minister, Mr. Rufus King, at what I considered the injustice of the result, he told me, that I must have a very imperfect idea of the power of the crown, if I supposed it could not procure, by judicial instrumentality, a conviction in such a case. About the same time, Peltier was prosecuted for a libel, on the first Cons.1 of France, on which occasion again the subserviency of the Judiciary to the Ministry, was abundantly apparent. Thus, controlled by the crown, English Judges, are still more completely controlled by Parliament. Their official tenure, is really, that of good behavior. The moment a judge becomes superannuated, or disabled, by any incapacity, for the performance of much severer duties, though better paid, than ours, he is got rid of. He is pensioned off; which relief, is altogether unknown, and probably will be, in our system. The ministerial in fluence over the judiciary, is, also, very great there, and I have understood, that no one is selected for a judge, without taking care, that he is of the right party politics. When it is recollected, moreover, that English judges do not exercise that political jurisdiction, which is considered a principal function of ours, that the House of Lords, by appelate cognizance, superihtend all the judgments of the courts within the kingdom, and the king in Council, as I be lieve, all those of the foreign provinces, it is plain, that the English system differs otally from ours, both as to tenure and jurisdiction. There, the Judiciary, influen ced by the Executive, is strictly responsible to the Legislature, and the kind of independence, attempted by our Constitution, which was an experiment, altogether untried, is unknown in England, or any other country, as it has proved, on trial, in ours, a vicious system, and a failure. THIRDLY.-I come now to America, and will examine, first, our Colonial, and secondly, our independent Judiciary in Pennsylvania; thirdly, with some notice of that of the United States, which has been pressed into the argument, as vindicating in principle, that of Pennsylvania. Judge Hopkinson's mistake in supposing, if he did, that there ever was a Judiciary in the Colony of Pennsylvania, commissioned during good behavior, was shown in the excellent speech of the gentleman from Union, (Mr. Merrill,) which displayed researches, and developed facts upon this interesting inquiry, as honorable to that gentleman as the candor with which he treated the subject, and may be deemed among the important advantages which this Convention should confer on the community. It is quite clear that no such tenure ever obtained in Pennsylvania, till the present Constitution. In page 24, of Shunk's collection, there is a. note which might lead to a different conclusion. But, besides the refutation for which we are indebted to the gentleman from Luzerne, (Mr. Woodward.) a passage or two, which I will read from the 1st volume of Proud's History, p. p. 305, 6, 8, prove, beyond doubt, that Penn, while he lived, never suffered any such Judicial authority, but maintained his own, in the most absolute manner. That it was the constant anxiety and endeavor of the people of this State, to enjoy the advantages of an unshackled Judiciary, is conceded. But their solicitude was, for Judges, like those of the mother country, independent of all influence or control, except that of the people themselves. They wanted Judges responsible to them, and not dependant on those in Europe, over whom they had no power, and with whom they had little sympathy. In 1684, it has been shown by the gentleman from Union, that the Judges were appointed for two years, and so continued until 1706, when the dispute occurred between the Deputy Governor and the Assembly, which has been read from the curious manuscript obtained by that gentleman, out of the archives of the State. The Colonial act of 1727, for which we are also indebted to him, provides for nothing but the jurisdiction of the courts, without reference to the Judicial tenure. In "Let the future appointments of Judges 1743, when the Governor removed all the be for four or six years, and renewable by Judges of Lancaster county, it is certain the President and Senate. This will bring they could not have held their commissions their conduct, at regular periods, under reduring good behavior. The document pro- vision and probation, and may keep them in duced from the second volume of Franklin's equipoise between the general and special Works, in the year 1756, which seems to governments. We have erred in this point indicate his attachment to that tenure, im- by copying England, where certainly it is a plies no more than his solicitude, which, I good thing to have the judges independent have no doubt, was common to all the in- of the King. But we have omitted to copy habitants of the province, that their Judges their caution also, which makes a Judge reshould hold office, as the English Judges did, movable on the address of both Legislative independent of all control, but that of the Houses. That there should be public funcpeople. And the act of 1759, the manuscript tionaries independent of the nation, whatever copy, of which we owe again to Mr. Merrill's may be their demerit, is a solecism in a relaudable industry, puts this matter beyond public, of the first order of absurdity and all question, by rendering the Judges re- inconsistency.” movable on address of a majority of the two This retrospect brings us to the ConstituHouses of the Legislature to the Governor. tion of 1776, by which the longest Judicial The difference between that system of im- tenure was seven years. Having, on a formediate responsibility, and the irresponsi- mer occasion, spoken somewhat at large of bility of the present constitution, is exactly the Judicial features of that Constitution, I what is now in controversy in this Conven- shall not dwell upon them now. And I tion. Let us go back to the provisions of yield, without reserve, what was labored by that Colonial act, giving the people complete the honorable chairman of the Judiciary control over a Judiciary, commissioned dur- committee, that a large majority of the fraing really good behavior, and I see no great objection to the system. If gentlemen are disposed to compromise for some such principle as that, they may not find me very tenacious of any other. mers of the present Constitution, as well as of those who framed the Constitution of the Union, partook of the sentiments so well maintained in the Federalist, No. 78, to which that gentleman refers, that a tenure The petition of the United Colonies to the of good behavior, according to the American King, in 1774, to be found in the Annual experiment, was the best. On the other Register, p. 203, and the remonstrance of hand, I earnestly insist, that it was an unthe Americans in London, p. 230, cited by tried experiment, of which mankind, under Judge Hopkinson, are of the same character, any form of government, had no former exand do not, I submit, prove what he pro- perience; and, upou that postulate, I produced them for. They are Colonial com- ceed to show that the experiment has signalplaints of metropolitan tyranny. Their ly failed, and that we must go back again whole strain is, that instead of leaving Ame- to something more like the British Constiturican Judges responsible to the American tion, and more consistent with the acknow. people, they were rendered independent of ledged sovereignty of the people. We are them, by either Royal or Parliamentary in the midst of a revolution. Certainly we Abuse of Government. The only complaint are. It is the element of our political exisalways was, that popular control was taken tence, a revolution which I trust never will away by royal usurpation. There is no end, yet be always bloodless, a peaceable question of tenure in these complaints, from contest with antiquated establishments, and first to last. They had no reference to that considerate trial of new ones, popular, ecosubject. Doubtless the American Colonists nomical, fiscal Jurisprudential Legislative, desired their Judges should be appointed Executive and Judicial. I wish that James during good behavior, as English Judges Wilson and Thomas M'Kean, two of the were; but they had no idea of a tenure be- first and most distinguished signers of the yond the power of the ordinary action of present Constitution, had voices in this aspopular sovreignty, represented in a Legis- sembly. For I feel confident that they would lature. That the Declaration of Indepen- be among the foremost to declare the failure dence should be quoted for the Constitutional tenure, infers a dearth of authority for it, since it is well known, that the author of that Declaration is the Apostle of the opposite doctrines, and condemns the life tenure in the following strong terms, which I read from one of the letters published by his family, since his death: of their Judicial experiment, and to second that reformation of it which is to reinstate the rghts of the masis to control all departments of government. Distilled to a result, what are all the objections of Messrs. Hopkinson and Merrill, but apprehensions of the people, whom they fear to trust with perfect self-government? Montesqueir is cited to warn us of the dangers of extreme democracy, Marius, Cromwell and Napoleon are paraded as the Gorgons of a demagogue licentiousness. Even when the constitutional right of petition is appealed to, by the memorial from Fayette, couched in respectful terms, and praying for none but temperate, and I should say judicious reforms, we are told to deprecate town meeting authority, tavern instructions, and idle resolutions, signed by we know not whom, written no one can tell where. Like the General of an army, some unprincipled leader gives the watchword, and immediately his followers decry the best members of a Commonwealth as Aristocrats in one country, or Federalists in another. Lord George Gordon, at the head of a mob, is made to cry no Popery, and rush upon destruction on the one hand, while disappointed suitors, impertinent lawyers, and noisy partizans, on the other, are clamoring against the administration of justice. All this is nothing more than an apprehension we do not feel, and a want of confidence we disown. It can hardly be called argument. It is indeed warning, perhaps wise warning; but it is advice we cannot take, because we have no faith in it. We trust the people. We believe in self-government. Thus far the experiment has never disappointed us. On the contrary, the further it has been carried, the better it has worked; and avoiding all rash, wild, and visionary undertakings, we cannot now be deterred, as experience teaches, to carry out, still further, the great principle of popular sovereignty. We have seen, within the last few days, that in matters of conscience, and of honor, (brought under consideration by the provision against duelling) there are sentiments, and those perhaps among the strongest in human nature which cannot be argued down, or hardly reasoned with at all. Love and politics belong to this category. All that we can do, therefore, is to agree to differ with the venerable chairman of the Judiciary committee, (Mr. Hopkinson,) because our faith is totally different from his. We confide, without fear. He mistrusts, without confidence. We are for reforming back the Judicial tenure to something like the English exemplar, and that of our Colonial forefathers, satisfied that the first experiment of a less popular tenure has entirely failed, and that we must try another. I agree that we must demonstrate its failure, that we must show how the system may be improved by renovation, and that we do nothing unless we act with the will of the people. For my part, I religiously believe, that the voice of the people is a Divine voice, which, once fairly ascertained, is unquestionable, not only in its power, but its good sense and good feeling. I only trust, therefore, because I have implicit confidence. I think it stands to reason, and is an ordinance of the Creator, that a mass of men must be more rational and less selfish, than any one man; that they are less liable to bad passions, than any individual, and better endowed with instincts of salutary regulation and self-preservation. A community must be, a higher oracle of wisdom than any individual, even though that individual, come to be canonized for his virtues, as the father of a country, like Washington himself. And so do my respected friends, the members from Philadelphia, Union, and Chester, (Messrs. Hopkinson, Merrill, and Bell,) in all matters of law, for it is only when they come to politics, that they gainsay popular sovereignty. The common law, to which they are all so much attached, is nothing but the common sense of the common people, whose canons and very rudiments every lawyer is obliged, by his professional religion, to prefer, to whatever may be said to the contrary, by the wisest man that can be appealed to. All Government is but relative to good. Much of it is positive evil. Wisdom is often mere foolishness: and, among the little we know, with any certainty, if there be one thing which, above all others, we may be assured of, from the lessons of Christianity, of the art of printing, and of America, it is that too much Government is an evil, and too much self-Government little to be feared. The learned and venerable member from Philadelphia, with many others, whose superiority I unfeignedly confess, deny or doubt this doctrine, and I cannot say they may not prove to be right at last. He says that man must be a slave, who in his Representative capacity, suffers others to think for him; and to him political pledges are, as he says, inconceivable. Yet, said Mr. I., the 20th section of the 1st article of the Constitution of Michigan, one of the last and best that has been framed, consecrates what is to be found in equally explicit terms, in many of the Constitutions of New England, the right of popular instruction, which that gentleman denies to be a right at all. When, therefore, he warns us not to attempt to be wiser than Aristotle, Cicero, Bacon, and Locke, we differ upon a dividing principle, for I insist that my friends, the three youngest_members of this body, (Messrs. Purviance, Butler, and Rogers,) are better informed politicians, more practically conversant with the principles of free Government, than any of those celebrated personages. In short, we reformers go by the mass, when their opinion is well astertained, while the learned and venerable Judge goes by the man, and relies on his individual wisdom. He is for self-confidence. We are for |