the appellate bench until he had practiced president of the United States was elected withlaw at least eight years, and was it any more improper to require that he should possess these qualifications than those to which he had first referred. They were all prerequisites and had the same object in view-that the people shall know something of the qualifications of the candidate presented to them, and it was a knowledge which they could not very well obtain in any other way. It was to prevent the men who had no qualifications for this office from troubling the people with their claims-and the people were annoyed enough in that particular, as the number of rejected candidates to the convention testified. These restrictions, with the addition suggested by the gentleman from Jefferson, of a residence of five years in the district or state, were, it seemed to him, most proper. Mr. TRIPLETT said that a judge of the court of appeals was to be a judge of the law, and the practice, and how was he to learn law without study, or know what the practice was unless he had practiced in the courts. Every man knew that the practice becomes a necessary part of the law, and if eight years was too long a time to require for that, then diminish it. He would say to the gentleman from Ballard, that although perhaps, his (a rich alluvial) county might produce men different from the balance of the state, yet he ought to have some degree of compassion on those in other parts. Our lawyers did not take up law by absorption but only by hard study, and they must have eight, ten, or twelve years before they could become possessed of such qualifications as would fit them for a seat on the appellate bench, and enable them to decide favorably on all the rights of the citizen, arising under the constitution and the laws, and he could not believe gentlemen to be in earnest when they desired to leave the possession of the proper qualifications on the part of those who were to sit on its bench to mere accident. Mr. CLARKE had once before in some remarks assumed the same position as that contained in the amendment of the gentleman from Jefferson. It does not propose to destroy all qualifications, and there were very good reasons why a candidate should be a citizen of the United States. An elector must be. But even if it was required, he did not believe that any man who did not possess that qualification would ever be elected by the people. He had no objection to the candidate being required to be a resident of the district in which he run, for a certain time, but he did object to the requisition of the eight years practice of law, the thirty years of age, and the having been a judge of some court for eight years. No one believed, he apprehended, that any person would be elected to the court of appeals who was not a lawyer, and familiar with both the law and the practice. Would any one undertake to say that the people would not know this fact and whether the candidate possessed these qualifications as well as any one here? Mr. TRIPLETT. Give them the means and they will. Mr. CLARKE asked, by what means it was that any one in that committee learned what it was that constituted a good judge? Whatever they were, those the people would possess. The out any requisition of qualification whatever, and yet he had the appointment of all the officers in the nation-the judicial ones included. Might he not sometimes be mistaken in his appointments, and if so would not the consequences be as disastrous to the country as if the people should chance to be mistaken in their selection of a judge? He had no fears that the people would ever select any other than a competent lawyer of distinction and standing in his profession. And if it was necessary to say that a man should not serve as judge before he had reached the age of thirty years, was there not an equal necessity existing to prohibit his eligi bility after a certain age. There was just as much danger to be apprehended from imbecility in the office of a judge, as from incapability. He thought there was just as much reason in the one case as in the other. Mr. MCHENRY said there was a principle involved in this matter which gentlemen seemed to have overlooked. The great objection urged against the election of judges, by those opposed to that reform, was that it would lead to the selection of incapable men, and under improper influences. To this it was replied that the people were capable of judging in these particulars, and that the class from which these high functionaries were selected, would be those who were qualified by their study of, and experience in, the practice of the law. Any constitution made here must therefore clearly be the result of compromise. He called on gentlemen on the one side therefore to yield the question, as to the election of judges, and on those on the other, to yield to those restrictions which seemed to be desired to be thrown around the people in the exercise of that power. They could do it more especially as the opposite side required but those qualifications, on the part of the candidates, which all of them agreed the people would themselves require, whether it was in the constitution or not. He hoped gentlemen would bear in mind, that there must be some compromise of opinion on both sides. Mr. HARGIS said the question here was best presented in the proposition, were the people competent to the election of the judiciary, or were they not. Any restriction upon the people in the exercise of that power was tantamount to a declaration that they were not competent to the task. He was opposed to restricting the selection of candidates to lawyers, as he did not believe it would secure any better judges. There would be perhaps some two to five hundred lawyers in any district which might be made, and yet out of them, not more than one tenth would be capable of drawing a declaration, and force the case to an issue. Many men too had been in the courts who were not qualified to pass judgment on a case involving twenty dollars. These restrictions therefore would not secure the people any better judges. As to the fear that the people would be troubled with candidates, he did not regard that as any reason at all for the imposition of these restrictions. If the people were qualified to elect their judges at all, they were competent also to decide upon the qualifications of the candidates before them, and he was therefore opposed to the imposition no offensive spirit-that some gentlemen were approaching that spirit. The committee had thrown restrictions around the legislature in regard to the great natural and inalineable rights there proclaimed, and what purpose, other than to prevent their being infringed upon? What ob in the constitution. upon their free exercise of the appointing power. If they were not competent for the task, say so openly and directly, and let the present system be sustained; but do not seek covertly to convey the impression that they were not, by these various restrictions upon them. They are competent, or they are not-jection, then, could there be to carrying out this there is no middle ground on the question. principle further, and require that those who Mr. MAYES would not have been surprised were to decide upon and to guard those rights, if this amendment had emanated from some gen- those who were to sit upon the appellate bench, tleman who was opposed to the election of should possess the requisite qualifications for a judges by the people, as it then would have been discharge of their duties? And besides, was plainly seen that the object was to render the not every one aware that attachment to and constitution as ridiculous to the people as pos- confidence in the new constitution, by the peosible. Such certainly would be the result, if it ple, was to depend on the manner in which the was declared, as the adoption of that amend-reforms introduced were to be carried out? If it ment would declare, that every man in the state, was desired then to bring the instrument down without the evidence of any qualifications save so low as to be almost beneath contempt itself, that he resided in the district and attained the just allow a man without qualifications to get age of thirty years, should be considered qual-on the appellate bench, merely from the circumfied for the office of judge of the highest court stance that this body failed to require the requiin the state. They might as well declare that a site qualifications for a candidate for that stajury on the trial of a man for murder, would be tion. Those who believe that the people have fully as able to decide upon his innocence or the intelligence and capacity to select proper guilt, by the mere hearing of the reading of the judges of the court of appeals, and that they indictment, as if they had heard all the evi- would select none except such as were experidence on both sides in regard to the transaction.enced lawyers and fully qualified for the duties, The restrictions were reported by the committee. should not object to these restrictions. If the not because the ability of the people was at all people were thus qualified they could do no doubted, but because it was deemed proper and harm, and it may do good. It was an apt renecessary that the people should be guarantied mark, that the first duty of the legislature was that the candidates presented to them should to see that the people were free, and their next possess the necessary qualifications for the of duty to see that they so remained. Acting upon fice. The people in the districts could not per- that principle, he should vote for the insertion in sonally be acquainted with the qualifications of the constitution of the restrictions reported by all the candidates who might come before them, the committee. and the candidates therefore, should be reMr. MERIWETHER here withdrew his amendstricted from presenting themselves, unless they ment, for which Mr. Root had moved a substidid possess those qualifications necessary to cis-tute, and then moved to strike out the first word charge the high duties of a judge of the appellate court. And certainly no gentleman would desire that any other than such a man should be elected. He came here not to represent lawyers, mechanics, farmers, or any one class, but the whole people; to do that which in his weak judgment was best calculated to promote the interest and happiness of all; and these were the motives which governed him in his action on this subject. in the 8th section, any, and inset no, so as to make the section read no person. He wished barely to remark, that the section as it now stands, is an extension of the right to become a candidate, instead of a limitation. Without some alteration such as he had indicated, a lawyer who was a citizen of Indiana or Ohio, (and there were several within his knowledge,) who practiced in the courts of Kentucky, together with every justice of the peace who had been on the bench of the county court for eight years, would be eligible to a seat on the bench of the court of appeals in Kentucky. He would barely call the attention of the human ingenuity lawyer of this house, and the one who appeared to be so familiar with the practice in the courts of that renowned judge, Sancho Panza, to the absurdity of making lawyers who were citizens of other states, and even justices of the peace, eligible to our supreme bench, to the exclusion of our own Mr. TAYLOR said that the position occupied by gentlemen here could not better be illustrated than by an anecdote, which the committee would pardon him for relating: "A gentleman went into a lawyer's office, and saw around it but two chairs, a pack of cards, and a bottle of whiskey. Said he, how do you get along without any law books, I don't see any here? Said the lawyer, looking at him full in the face, and with a great deal of emphasis-I always go on the broad principle of human ingenuity." (Laugh-citizens. ter.) And (said Mr. T.) if you want an appellate court that will go on the broad principle of human ingenuity, just go for striking out all qualifications reported by the committee, and you will be gratified. Some gentlemen seem to think, with Dogberry when he said that reading and writing came by nature, that the great and necessary qualifications for the court of appeals were of spontaneous growth. It has been said that whom the gods would destroy they first make mad, and it appeared to him-he said it in Mr. C. A. WICKLIFFE thought the gentleman had made his retreat upon a very small battery. Mr. MERIWETHER. The attack came from a very small one. Mr. C. A. WICKLIFFE said that the direct expression of one thing, in law, excludes the expression of another. The expression of qualifications, therefore, clearly excluded every body who did not possess those qualifications. The amendment, therefore, was wholly unnecessary. Mr. HARDIN said the requisition of the qual-yers who had attained sufficient standing and ceifications necessary was not expressed so clearly lebrity in their profession before that age, yet the as it ought to be, or as it would be if the nega- committee, in looking back to the distinguished tive form had been adopted. It was the natu- men who had filled the appellate bench not only ral qualification of every man to be fit for the in Kentucky but the supreme court bench of the office unless certain restrictions in regard there- United States, found that some of its brightest to, were imposed upon him. The negative prin- ornaments had been called there at an age not ciple was the one adopted by the committee on greater than the period the committee had thought the circuit courts, and the two articles ought proper to adopt. He was satisfied from what he to harmonize in expression as far as possible. knew of the life of judge Story, that he was not thirty when he was appointed judge, and was assured also that the late governor Clarke was not thirty years of age when he was appointed judge, and he could give other instances. Thirty years was the meridian of a man's life, and the committee thought that instances might occur where indivividuals of that age might present themselves possessing such maturity of mind and power of intellect as would command the confidence of the people among whom they lived, and they concluded to fix the requisition Mr. C. A. WICKLIFFE preferred the present form, and thought it to be clear that it could not be misapprehended by any who understood the force and meaning of language. Mr. BROWN offered the following substitute for the eighth section: "No person shall be elected a judge of the court of appeals, who is not a citizen of the United States; and who has not attained the age of thirty years at the time of his election; and been a practicing lawyer eight years; and resided in the district, immediately preceding his elec-of age therefore at that period. For himself, he tion." He thought it necessary that the candidate should have resided in the district for a certain time, so that the people might have an opportunity of judging of his qualifications and fitness for the office. had no choice on the subject, though he should regret very much to deprive a district of the services of a competent man, merely because he did not happen to be born six or eight months earlier than he happened to be. Mr. HARDIN was not weded to thirty five or thirty years as a requisition of age. As to judge Story, his impression was that he was at least thirty three years of age when he was appointed on the bench of the United States supreme court. He was the youngest judge he believed ever placed on that bench. So far as his knowledge of the history of England was concern Mr. C. A. WICKLIFFE had intended, as soon as an opportunity was afforded, to have offered an amendment in regard to this qualification of residence, but he had been in doubt as to the number of years that should be required. The object would be attained, however, without the adoption of an entire substitute for the section. Mr. HARDIN was in favor of some amended, he knew of no man who had ever been made ment requiring a residence of some length of time in the district. Otherwise, lawyers from Ohio and Indiana who practiced in the courts of Kentucky, might remove into the state just previous to the election, for the very purpose of being candidates for office. He again urged that in these matters the terms of expression in this article and in that reported by the committee on circuit courts should be harmonious, and instanced the action in that committee as having been governed by such a consideration as applicable. Mr. BROWN then filled the blank in his substitute, with the words "two years," so as to require a residence of that period of time in the district, to qualify a candidate for the office of judge. The question was then taken on the motion of Mr. MERIWETHER to strike out the word "any" and it was negatived. Mr. C. A. WICKLIFFE then moved to amend so that it should read "any citizen of the United States, who has attained the age of thirty years, and who has been a resident of the district for which he may be chosen, for at least two years next preceding the election," &c. The amendment was agreed to. Mr. NESBITT moved to add the word "five" after the word thirty, so as to require the candidate to have attained the age of thirty-five years, before he should be eligible to an election. Mr. C. A. WICKLIFFE desired to explain the opinion of the committee on this subject. It would perhaps rarely happen that a candidate would be presented or chosen younger than the age proposed by the amendment, as there were very few law a judge in any of the courts there under the age of thirty five, and very rarely until they had reached the age of forty or fifty years. The committee on the circuit courts, by a vote of eight or nine to one, had fixed upon the age of thirty five. As for himself, it would not apply to him, or even to his colleague, and he was not particular whether the age of thirty or thirty five should be agreed upon. Mr. APPERSON wished to state, as due to the chairman of the committee, that the gentleman had proposed to limit the period of age beyond which a judge should be ineligible, but was voted down unanimously by the committee. In regard to judge Story, he was just informed by the gentleman from Bourbon that judge Story was appointed to the bench in 1812, when he was about twenty seven or twenty eight years of age. Such an instance however, would rarely occur, but if such an opportunity should again occur, the committee did not wish that the constitution should be a bar to the people availing themselves of it. Mr. NESBITT remarked that the present constitution required that a senator should be thirty five years of age, and as he supposed for the purpose of securing men of matured minds, to operate as a check upon the lower branch, where, he believed, the only qualification was that the members should be twenty four years of age. The court of appeals was a check upon the circuit courts, and revised the errors that the circuit judge might be lead into by his youth and inexperience. As a member of the committee on circuit courts, he had been in favor of requiring those judges to be thirty years of age; but he believed that the judge of the court of appeals should be a man of more mature age. And if there should an instance occur, as that of judge Story, the people would not be entirely deprived of his services, they would merely have to wait five years before they could avail themselves of them. He was not tenacious however, of his amend ment. The amendment proposed by Mr. NESBITT, was then rejected. Mr. ROOT called for the question on his amendment, to insert in the third line after the words "practicing lawyer," the words "in the circuit courts or court of appeals," in lieu of the words, "in the courts." The question was then taken, aud it was rejected. Mr. PRESTON moved to strike out in the first line of the eighth section, the words "citizen of the United States," and to insert in lieu thereof, the words "qualified elector of this commonwealth." The words in the section would seem to give the power to congress under its naturalization law, to make the basis of the qualification of the judge of the appellate court of Kentucky. The words "citizen of the United States," were not used in the present constitution in regard to the right of suffrage. There the phrase is used "every free male citizen." There were some important questions which had sprung up as to whether a naturalized citizen of the United States, was necessarily invested with all the rights of a citizen of Kentucky by coming here. He believed such not to be the case. In Illinois, a residence of six months was all that was required to become a citizen of the state, even from an alien to the United States. He preferred that the basis of the suffrage in Kentucky should be taken. Mr. C. A. WICKLIFFE suggested that the object of the gentleman could be accomplished by moving to strike out of the section the words "of the United States," so that it would read, "any citizen who shall," &c. This would leave this vexed question of double allegiance undis turbed. Mr. C. A. WICKLIFFE here stated that a friend who had been at the trouble to make an examination in regard to the matter, had just informed him that judge Story was thirty-two years and two months old when first appointed. Mr. TAYLOR moved to strike out the words, commencing in the fourth line and ending in the sixth line, as follows; "or whose practice at the bar and services upon the bench of any court in this state, shall together be equalto eight years." The section as it stood would allow a man who had been on the bench of a county court seven years and six months, and had practiced law for six months to be eligible to the bench of the court of appeals. He apprehended this was not desired by any and that it was perhaps an oversight by the committee. The amendment was rejected. The question was then taken on the eighth section as amended, and it was adopted. The nineth section was then read. Mr.DIXON offered as a substitute for the section the following: "the court of appeals shall hold its sessions in each appellate district, unless the people on the petition of a majority of the qualified voters of such districts shall otherwise direct, and then at such time and places as may be otherwise directed by law." His object was to give the people of a district who might desire not to have a branch of the court of appeals among them an opportunity to get rid of it. He did not doubt however, that all would desire to have the branch in their district. Mr. MACHEN had objections to the manner in which it was here proposed to get at the sense of the district. He proposed therefore that the following should be added to the end of the section. "Provided that any one or all of said districts may by a majority of the qualified voters therein decline having a branch of said court, and in such event theappellate business for such district or districts shall be transacted at the seat of government." Mr. DIXON withdrew his proposition and accepted that of Mr. Machen in lieu thereof. Mr. TURNER said that he should at a proper time move a substitute for the whole section leaving it to the people of the entire state to say whether they would have the court branched or not,and to the legislature to provide for carrying out their will in case they should decide in the affirmative. He had as yet heard no expression from the people on the subject-nor had it, so far as he had ever discovered, at all entered into the canvass for the convention. Mr. HARGIS had an amendment which he believed would obviate all the difficulty. It was as follows: Strike out all the first line after the word sessions, and insert in lieu thereof the words, "at the capital in Frankfort, at such times as may be provided by law, provided that the legislature may at any time provide for said court to be held at such other place or places not exceeding three as they may think proper." This subject was a proper one for legislation, and had no business in the organic law. Mr. C. A. WICKLIFFE had no idea that the people of any district would ever refuse to have a branch of the court of appeals come among them, and he preferred therefore, the section as it stood, without amendment. Mr. MACHEN was himself fully satisfied as to the propriety of branching the court, and had full confidence that the district of country from which he came would sustain the constitution of the convention on that subject. His proposition was intended merely to obviate the difficulty, which seemed to exist in the minds of some gentlemen, as to the probability that some of the districts preferring not to have a branch of the court among them. The amendment could do no possible injury while it might tend to satisfy gentlemen who entertained the apprehensions to which he had referred. However, he felt no particular interest in the matter. Mr. MAYES opposed the amendment as being calculated to destroy the proposition to branch | tional reform, and he had no intention to make the court, and because it would have a tendency any proposition which would embarrass the acto keep each district in a state of continual excitement. tion of the convention. He still believed the amendment to be proper and right, but the con sultation which he had had with those for whose opinions he had a great regard, had induced him to ask for its withdrawal. The amendment was accordingly withdrawn. Mr. C. A. WICKLIFFE said, he understood that those who opposed the sitting of the court in different districts, yet were in favor of electing the judges by districts and not by general ticket. It would be necessary therefore to preserve the equality of the voting population as nearly as possible in each. It had been suggested by the gentleman from Daviess, (Mr. Triplett,) that these districts should be so formed as to preserve the balance of power, that the place at which the court would be located, might be inconvenient to some of the counties in the district. He would, therefore, with a view to obviate that difficulty, offer an amendment as addition to the ninth section, as follows: 66 The legislature may authorize a writ of error or appeal to be tried in another county than that to which such district may be attached." Mr. HARDIN was opposed to the amendment. When the districts were arranged and the proposition came up before the people as to what point in the district the court should be located, it would lead to continual excitements among the people. In some of the districts the location might be such as to induce a majority of the people to reject the court, rather than to have it continued there. It was emphatically the proposition with too much machinery-if it was intended to branch the court it was better to do it at once. He should have preferred that the whole matter should have been left to the legislature, for them to branch the court or not as the people might desire. To insert the provision in the constitution would, he was confident, insure forever fifteen to twenty thousand votes against the constitution. Who believed that the vote in this, and the adjoining counties, would not be very heavy against any constitution containing such a provision. He was against branching because it would increase the expenses of the state. It was among the great reasons which induced him to advocate a convention, that some provision should be made in the constitution to guard against that wasteful extravagance in the administration of the government, which had so largely increased the ratio of taxation since the year 1834. To branch the court, to add an additional judge with other necessary expenses incident to such a change would add to the expenditures of the state at least $4000 yearly. Gentlemen might say what was $4000? Nothing. But those who "SEC. The court of appeals shall hold its were farmers knew that when a thousand bushels sessions at the seat of government, unless otherof corn was put in a crib an armful or a ear ta-wise ordered by law, and the power is hereby ken from it was nothing, but these little noth-given to the legislature, from time to time, to fix ings would leave the crib bare by spring. What on and regulate the times and places for holding was one of the little springs that fed the Missis- the sessions of the court of appeals." sippi? Nothing. But when they were all united they formed the broadest and most majestic river the world ever saw. The CHAIR announced that the gentleman's time had expired. And then the committee rose and reported progress. Leave was granted it to sit again, and then The convention adjourned. WEDNESDAY, OCTOBER 31, 1849. COURT OF APPEALS. If it would be more convenient to take the business of one county or district to another county, this would give permission to do it, leaving the county in the district, so as to preserve the equality of the voting population. The amendment was adopted." Mr. HARDIN said he had an amendment which he should offer in the convention, in lieu of the ninth section, which he thought would meet the objection of the gentleman from Henderson. He would only read it now: He did not desire any present action upon the amendment. He wished not to encumber the constitution with the subject; he wished the power in this case to be left to the legislature. They would make more friends by leaving it to the legislature than by putting it in the constitution. Mr. C. A. WICKLIFFE was fully aware that that was the last point to which the opponents of the district system were to retreat and fight its battle. He was not to be alarmed from doing what he thought right by the idea which he considered a fallacious one, that they should make enemies to the constitution by the insertion of such a provision. Gentlemen were in the practice of getting up and saying, that unless their favorite measures were carried, there would be such a weight of opposition to the constitution that the people would not receive it. Other gentlemen said the people cared nothing about districting, and that it was a lawyer's project. He had heard and read similar language from persons out of the house, coming from the mountains around the seat of government. Between the proposition Mr. MACHEN suggested that his object in of his colleague, who would leave the subject of presenting that amendment was to prevent some branching the court to the legislarure, and the diffulties which he thought had arisen in the one of his friend from Madison, that the court house. He was a thorough friend of constitu- | shall be held at the seat of government, he had The convention resolved itself into committee of the whole, Mr. HUSTON in the chair, and resumed the consideration of the report of the committee on the court of appeals. The question before the committee was the amendment offered yesterday by Mr. Machen, to the 9th section. |