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Mr. THOMAS. That can be done in a separate independent section.
Mr. THRUSTON. That is taking a whole section to do the work which two words will do in this section.
Mr. THOMAS. It looks to me as if it were providing for both appointment and election. Mr. THRUSTON. It is.
Mr. THOMAS. That is what I object to. It looks like submitting both an elective and appointed judiciary to the people.
Mr. THRUSTON. I have no such object. Mr. JONES, of Somerset. The gentleman from Baltimore city (Mr. Thomas) is mistaken. It merely prescribes that when there is a vacancy, which the governor will be authorized to fill by appointment, the one so appointed shall have these qualifications herein prescribed.
Mr. THRUSTON. I will modify my amendment so as to insert after the word "election," the words " or appointment by the executive, in case of a vacancy by death, disqualification, or otherwise.''
Mr. SANDS. I would just like to suggest that the proper place for this amendment would be in the third section. If the members of the convention will look at the report, they will see that it being based upon an appointive system, there is no section in it in regard to vacancies. And we will have to incorporate in it a section providing for the filling of vacancies occasioned by death, resignation, or disqualification. And in that section would be the proper place to include the idea of my friend from Allegany (Mr. Thruston;) that in case of the death, resignation, or disqualification of any of the judges, the governor should appoint for the unexpired term a person learned in the law, as judge of said circuit; and said person shall have all the qualifications heretofore prescribed for the judges of this State.
Mr. STIRLING. That is what the present constitution says, but it says what is a technical absurdity. It says that a man shall possess "the same qualifications." And when we look back to the section prescribing the qualifications, we find that he must have resided in the State for five years preceding "his election." Now a man not elected but appointed cannot have resided in the State for five years before his "election." I know that the proper construction would be that he must have resided in the State five years preceding his appointment. But why not make this section read properly while we have it under consideration?
Mr. SANDS. We must have a section in this report providing for the filling of vacancies. And when we do that, we can prescribe the same qualifications for the judges appointed that we prescribe for those elected. What are those qualifications?
Mr. STIRLING. It requires a residence of five years before election.
Mr. SANDS. Certainly; you fix the age, and the number of years that he must have been a citizen of the State. You will want an additional section in regard to filling vacancies. And this amendment certainly does impair, it seems to me, very much the phraseology of this section.
Mr. THRUSTON. This is the only and the proper place for it.
Mr. JONES, of Somerset. I would suggest to the gentleman to add the words inafter provided." Mr. THRUSTON. I desire to read for the information of the convention, this section as I propose to have it amended:
"The judges of the several courts, except the associated judges of the orphans' courts, shall be citizens of the United States, and of this State, not less than five years next preceding their election or appointment by the executive, in case of a vacancy by death, disqualification, or otherwise," &c.
We are here prescribing the general qualifications for any one to be a judge; and here is the proper place to prescribe the qualifications for appointment or election to the office of judge, whether you have another section for filling vacancies or not, the judges must all possess these qualifications,. and this is the proper place to prescribe these qualifications for all judges, whether ap. pointed or elected.
Mr. STIRLING. I will also add that this very question has already been raised under the present constitution. And while it was not decided, because it was finally determined that the judge had the proper qualifi cation as to residence, the question was actually raised that because the present constitution said that the judge shall have resided one year next preceding his election in the judicial district for which he was elected, that was not binding upon the governor in case of appointment. And I know that in the case of the appointment of the present judge of the criminal court, the governor took the ground that he had a right to appoint a man to fill the vacancy without any reference to the fact of his residence, because the constitution said one year before he was elected, and that if a man was not elected but appointed, that did not apply to him.
The question then being taken upon the amendment of Mr. THRUSTON, upon a division— ayes 32, nays 18--it was adopted.
Mr. ABBOTT. I move to strike out the words "appointed" and "appointment, wherever they occur in this section, and insert the words "elected" and "election."
The question being then taken, the motion to so amend was agreed to.
Mr. STIRLING. I move to strike out the words "and not less than one year next preceding their election resident in the judicial district or circuit, as the case may be, for
Mr. DAVIS, of Charles, moved to insert the word "five" after the word "thirty." Not agreed to.
which they may be elected." If the people have the right to elect the judges, they should have the right to go outside of the judicial districts if they desire. It may be a matter of practical convenience in some districts to do so. Mr. SANDS. Will that enable the people to go outside of their own judicial district for a judge?
Mr. STIRLING. Yes, sir.
Mr. MILLER. I move to strike out the word "circuit" and insert the word "county," in the clause of the section which now reads, "resident in the judicial district or circuit.' The convention had determined by a very large vote to adopt the elective instead of the appointive system. They have refused to allow any judge of the court of appeals to be taken outside of the judicial district. Now, if there is to be one judge for each county in the State, who shall be one of the judges of the circuit court of the three counties of the circuit, and also to be placed upon the bench of the orphans' court, then properly to carry out that provision each county should elect its own judge. It will be found that by the nineteenth section of this report the State is to be divided into eight judicial circuits, providing that each circuit shall consist of three counties. In each of those circuits are to be elected three judges; that is, one judge for each county. He is required by the provisions of this report to reside in the county for which he is to be the judge, and if the elective system is to be carried out, it is but proper that the people of the county should be the proper constituency to elect that officer, and not permit the counties of St. Mary's, Charles and Prince George's, for instance, to elect three judges, all three of whom may be elected from one of those counties, and require two of them to remove to the other counties to reside. You should let the local bar of each county furnish a man to be the judge in that county.
Mr. CHAMBERS. They may not be able to do it.
Mr. MILLER. I think they can.
Mr. SANDS. I am opposed to that. Mr. RIDGELY. The amendment of the gentleman from Baltimore city (Mr. Stirling) refers also to the circuits, and allows a judge from one county to be elected to serve in another county.
Mr. STIRLING. If you are going to give the election of judges to the people, let them have that power to the fullest extent. In the present condition of affairs in this State it may be very necessary to take a man from one county to be judge in another.
The question being taken upon the amendment of Mr. STIRLING, it was rejected.
Mr. THRUSTON. I now move to strike out the words "or district," so as to allow the judges of the court of appeals, who are to be elected on general ticket to be selected from any part of the State, and not to be confined to their special districts.
Upon this question Mr. MARBURY called the yeas and nays, and they were ordered.
The question being then taken, by yeas and nays, it resulted-yeas 18, nays 43-as follows:
Yeas-Messrs. Annan, Chambers, Cunningham, Daniel, Davis, of Washington, Hopper, Keefer, McComas, Mullikin, Negley, Russell, Schley, Schlosser, Stirling, Stockbridge, Todd, Thruston, Wooden-18.
Nays-Messrs. Goldsborough, President; Abbott, Berry, of Baltimore county, Billingsley, Blackiston, Bond, Brown, Crawford, Dail, Davis, of Charles, Dent, Duvall, Earle, Écker, Edelen, Galloway, Harwood, Hodson, Hopkins, Jones, of Cecil, Jones, of Somerset, Kennard, King, Lansdale, Lee, Marbury, Mayhugh, Mitchell, Miller, Morgan, Parker, Parran, Peter, Pugh, Purnell, Ridgely, Sands, Smith, of Carroll, Smith, of Dorchester, Smith, of Worcester, Swope, Thomas, Turner-43.
Mr. SANDS. I would suggest to the gentleman from Anne Arundel (Mr. Miller) that his amendment is premature. The subsequent action of the convention upon other subjects may require us to come back to this section and reconsider it. If the convention determine against the three-judge system, we would have to go back and strike this out.
Mr. MILLER. I will withdraw the amendment now, but shall probably introduce it at some other time.
No further amendment was offered to this section.
The next section was then read as follows: "Sec. 3. The judges shall be appointed, commissioned and designated as chief or associated justices, by the governor, with the advice and consent of the senate. Each judge shall hold his office during good behavior, or until he shall attain the age of sixty years, when, in the discretion of the governor, by and with the advice and consent of the senate, he may be re-appointed for a term not exceeding ten years, after which he shall not be re-appointed."
Mr. CHAMBERS. I would suggest to the gentleman who has offered this proposition, that it is not at all cognate to the subject under consideration. If I recollect aright, there is no other provision in this report for this purpose.
Mr. THOMAS. I propose to offer another section for that purpose.
Mr. CHAMBERS. If the idea of the gentleman is to have the tenure of office changed, then let us understand it.
Mr. THOMAS. I do not know what the convention may want to do about that.
Mr. CHAMBERS. The tenure of office is another subject. This section applies to the tenure of office. Strike it out here, and then it is not in the report. The matter of his amendment is entirely different from the matter of this amendment.
Mr. THOMAS. I understand the gentleman to make the point of order that my amendment is not in order. If the president decides that question, I will be satisfied.
On motion of Mr. STIRLING,
Section three with the pending amendment was informally passed over.
Mr. SANDS. I would suggestThe PRESIDENT. The president has heard so many suggestions, that hereafter he will require all matters to be reduced to writing.
Mr. SANDS. I merely wish to save time. We have settled the elective feature of this report. We better decide now whether we shall have three judges for the bench or not. The PRESIDENT. Does the gentleman from Howard (Mr. Sands) submit a motion?
Mr. SANDS. No, sir.
The following sections were then read, and no amendment was offered thereto :
"Section 4. Any judge shall be removed from office by the governor, on conviction in a court of law of incompetency, of wilful neglect of duty, misbehavior in office, or any other crime, on impeachment according to this constitution, or the laws of the State, or on the address of the general assembly, twothirds of each house concurring in such address, and the accused having been notified of the charges against him, and had opportunity of making his defence.
"Sec. 5. All judges shall, by virtue of their offices, be conservators of the peace throughout the State, and no fees or perquisites, commission or reward of any kind shall be allowed to any judge in this State, besides his annual salary or fixed per diem for the discharge of any judicial duty.
"Sec. 6. No judge shall sit in any case
wherein he may be interested, or where either of the parties may be connected with him by affinity or consanguinity within such degrees as now are or may hereafter be prescribed by law, or where he shall have been of counsel in the case.”
Section seven was then read as follows: "Sec. 7. The judge or judges of any court may appoint such subordinate officers for the respective courts as may be found necessary, but none other; and no crier shall be appointed in any court, but clerks or assistant clerks, sheriffs, or their deputies, or bailiffs, as the court directs, shall, without additional compensation, perform the duties heretofore performed by criers."
Mr. STIRLING. I desire further time to consider this section, and therefore I move that it be informally passed over. The motion was agreed to.
Section eight was then read as follows: "Sec. 8. The clerks of the several courts created or continued by this constitution, shall have charge and custody of the records and other papers, shall perform all the duties and be allowed the fees which appertain to their several offices, as the same now are or may hereafter be regulated by law."
No amendment was offered thereto. Section nine was then read as follows: "Sec. 9. The legislature shall provide for the trial of causes in case of the disqualification of all of the judges of the circuit, but the parties to any cause may, by consent, appoint a proper person to try said cause, and may try any cause before the court without the intervention of a jury."
Mr. MILLER. This section embraces a new feature in the judicial system of this State, and I would like to hear some reasons assigned why it should be adopted. It provides that parties by consent may appoint a proper person to try any cause, ignoring entirely the judge, if I understand the section aright, even if he is not disqualified. And if the section is not susceptible of that construction, then it is liable to another objection. "And may try any cause before the court without the intervention of a jury.". That applies as well to civil as criminal cases. It seems to be a sort of invasion of the right of trial by jury, by allowing parties by consent to take a case before the judge and try it upon the facts as well as upon the law, without a jury. It seems to me that is imposing upon the judge a duty which has not hitherto been devolved upon him. It may devolve upon him the trial of a long case in which, besides the construction of the law, the facts may be complicated I think the trial of facts in all civil cases should be left to a jury, under such instructions as the court may give them in reference to matters of law. I can see no good reasons for the change here proposed. Mr. CHAMBERS. Persons familiar with the practice of courts, will readily recollect a
great many cases where the facts are perfectly simple, dependent upon the testimony of one witness, or two at the best. Hours might be occupied before a jury, while the matter would be disposed of before the court in a
few minutes. The putting labor The putting labor upon the judge is a consideration, I think, hardly to be regarded as worth estimating in such cases. It is only where both the parties desire it, that they are to have this privilege And if it was an onerous case to the judge, think the principle of common delicacy would lead them to forbear exercising this privilege. I know that has been the practice. I know that the judge of the court has repeatedly urged counsel not to submit cases of a very serious criminal character, to his decision, when they expressed a desire to do so. as gentlemen would always do, they have courteously acceded to the judge's request, and have gone before a jury. Now, where there is a very simple case, where much time may be saved, and where both parties desire it, why forbid parties from exercising their option? I confess, that I can see no objec
tion to the section.
Sec. 3. The adjutant general shall be appointed by the governor, by and with the advice and consent of the senate.
He shall hold his office for the term of years, and receive for his services an annual salary of dollars.
JOHN S. BERRY, Chairman,
H. W. DELLInger,
brigade inspectors, by the field officers of their respective brigades; major generals, brigadier generals, and commanding officers of regiments or separate battalions, shall appoint the staff officers of their respective divisions, brigades, regiments or separate battalions.
Sec. 5. The governor shall nominate and, with the consent of the Senate, appoint major generals, an adjutant general, and other members of his staff, and their commissions shall expire with the time for which the governor shall have been elected.
Sec. 6. The general assembly shall, by law, fix the time and manner of electing militia officers, and of certifying their election to the governor, who shall grant their commissions and determine their rank, when not fixed by law.
Sec. 7. In case subalterns, captains or field officers shall refuse or neglect to make such elections, the governor shall have power to appoint such officers, and to fill all vacancies caused by such refusal or neglect.
Sec. 8. No commissioned officer shall be removed from office but by the sentence of a court-martial, or by the senate, on the recommendation of the governor, stating the grounds on which such removal is recommended.
Sec. 9. In case the mode of election and appointment of militia officers hereby directed, shall not be found conducive to the improvement of the militia, the general assembly may abolish the same, and provide by law for their appointment and removal. J. WICKARD. Mr. SMITH, of Worcester, renewed the motion that the convention take a recess.
Mr. DANIEL called for the yeas and nays on the motion, and they were ordered.
The question being then taken, by yeas and nays, it resulted-ayes 26, nays 37-as follows:
Yeas-Messrs. Berry, of Baltimore county, Billingsley, Blackiston, Chambers, Crawford, Dail, Davis, of Charles, Davis, of Washington, Dent, Duvall, Harwood, Lansdale, Lee, Marbury, May hugh, Mitchell, Miller, Morgan, Murray, Parran, Peter, Purnell, Smith, of Worcester, Thomas, Thruston, Wickard-26. Nuys-Messrs. Goldsborough, President; Abbott, Annan, Brown, Carter, Cunningham, Daniel, Earle, Ecker, Edelen, Galloway, Hopkins, Hopper, Jones, of Cecil, Jones, of Somerset, Keefer, Kennard, King, Markey, McComas, Mullikin, Negley, Parker, Ridgely, Robinette, Russell, Sands, Schley, Schlosser, Smith, of Carroll, Smith, of Dorchester, Stirling, Stockbridge, Swope, Sykes, Todd, Wooden-37.
The motion to take a recess was not agreed
eration of the report of the committee on the judiciary department, which was on its second reading.
The ninth section as follows, was under consideration:
"Sec. 9. The legislature shall provide for the trial of causes in case of the disqualification of all of the judges of the circuit, but the parties to any cause may, by consent, appoint a proper person to try said cause, and may try any cause before the court without the intervention of a jury."
Mr. NEGLEY. I move to strike out the words "all of the judges," and insert the words "any judge," so that it shall read "in case of the disqualification of any judge of the circuit," &c.
Mr. SANDS. I think that amendment is entirely out of place as to time. We have not determined the main features in this report upon which will depend all these details. I think the convention will save a great deal of time by first acting upon the controlling features of this report and afterwards it will be easy to provide for the minutiæ. We have decided to have an elective system. Now let us determine the number of the judges; then the tenure of the office, and we can then very soon fill up the details. If this amendment is adopted we may have to go back and strike it out.
Mr. STIRLING. I hope this question will not be pressed, unless the house is going to investigate this subject. If we go on making amendment after amendment without due consideration we may abolish the half of this report right off by incidental motions. This report provides for three judges in the circuit court. If we are going to decide that we are to have a one-judge system we ought to have our eyes open. I confess that I am now in favor of the one-judge system.
On motion of Mr. NEGLEY,
The ninth section with the pending amendment was informally passed over.
TAKING OF TESTIMONY.
Mr. DANIEL. I move to insert after the ninth section, the following as an additional section:
"Sec. 10. The testimony in equity cases shall be taken in like manner as in cases at law."
I think this is the proper place for this section. I have copied it in exact terms from the New York system. I have done it because I believe it will save a great deal of time in the taking testimony by commission as is now practiced. Cases are frequently delayed day after day under the present system in this State. One party may be placed almost in the entire control of another party, who wishes to delay a case and put it off by the taking of testimony day after day before a commissioner. I call to mind now a case,
The convention then resumed the consid- an important case of injunction, where the