Mr. Noggle thought the committee he had named the proper one and to which the subject properly belonged.

Mr. Ryan: This subject has once been before the convention and decided, and he thought it could not again come up.

The President: There is a parliamentary law to that effect but this is not the same proposition that has been passed on. Mr. Parks had been voted down on several propositions, and this among the rest, and having been so voted down he should now vote to let the matter rest.-Argus, Nov. 3, 1846.

Pending the question thereon, Mr. Bevans moved that the further consideration of said resolution be postponed until the first Monday in January next. And the question having been put, it was decided in the negative. And the ayes and noes having been called for and ordered, those who voted in the affirmative were [affirmative 39, negative 45; for the vote see Appendix I, roll call 39].

Mr. Ryan moved that the further consideration thereof be postponed until Monday, November 10, and that it be made the special order of the day for that day, and that it be printed, which was agreed to.

Mr. Bevans moved to postpone the subject till the first day of January next, which motion was lost by ayes 39, noes 45. Mr. Judd moved to refer the resolution to a select committee of seven.

Mr. Hackett should vote against all such motions, but hoped the convention would meet the question at once, on its merits. Mr. Ryan moved to postpone the whole subject till the tenth of November next, and that it be made the special order of the day.

Mr. Hunkins hoped the resolution would be sent to a committee that it might be perfected.

Mr. Ryan asked Mr. Randall if he had not copied the proposition submitted to the people of New York by the late convention of that state.

Mr. Randall: I did.

Mr. Ryan: Then it does not need the aid of a committee to perfect it.

The motion to postpone to the tenth proximo prevailed.Argus, Nov. 3, 1846.

Mr. Baker, from the committee on the organization and functions of the judiciary, reported, No. 13, "Article on the organization and functions of the judiciary.'

"The committee to whom was referred the subject of the organization and functions of the judiciary respectfully report that they have applied themselves to the subject they have had in charge deeply impressed with the conviction that next to the existence of good laws nothing tends more to the stability and prosperity of a state than their impartial and efficient administration. The people will not long be content with a government where, however excellent the laws, they cannot avail themselves of their benefits. Despairing of justice in the constituted tribunals, they will seek it by such means as lie within their own reach, and the measure of their judgment will be the impulses of their own will. In order that a wise system of laws should be so administered as to produce the greatest good it is not only necessary that the judiciary should be able, impartial, and efficient, but it must also possess the confidence of the people.

"In drafting the plan of a judiciary, which the committee have the honor herewith to submit, they have kept constantly in view those great truths and have endeavored so to combine them in one system as to meet the matured views of this convention, and to realize the best hopes and wishes of the people. The leading features of the system proposed for adoption by the committee are briefly these:

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'First, a supreme bench composed of three justices, distinct from the circuit judges.

"Second, five circuit courts, subject to increase or modification as the legislature shall deem expedient.

"Third, the union of law and equity powers in the judges of the supreme and circuit courts, reserving to the legislature the right to establish a distinct court of chancery whenever it shall be deemed expedient.

"Fourth, interchange of circuits by the circuit judges, so that no judge shall preside in the same circuit more than one year in five successive years; and

"Fifth, the election of the supreme and circuit judges by the people, the former by general ticket, the latter by districts.

"The necessity for a distinct tribunal of ultimate resort that shall be a limit to litigation, a uniform standard to determine what is the law and which shall regulate and control inferior courts is apparent to all. Whilst the organization of a supreme court on the nisi prius system, technically so called, has many excellencies which commend it to our favorable regard, yet in our peculiar circumstances, and with the sentiments prevailing in this community, there are very serious if not insuperable objections to its adoption, upon which the committee cannot now enlarge. One of the chief excellencies however of that system is secured in the plan submitted, by having the circuit judges interchange circuits, whilst the greatest objection to its adoption, the possibility of the judges sustaining the prior decisions of each other without regard to the true merits and strict right of the case, is effec

tually avoided. With a supreme bench possessing appellate jurisdiction only, whose judges are placed above the power of temptation by ample and permanent salaries, whose tenure of office is sufficiently long to render them independent and yet not induce inactivity or make them forgetful of their responsibility, composed of the best legal talent in the state, as we may justly hope it will be, and clothed with a power and dignity which the voice of the people can alone impart may we not look to it with pride, with confidence and respect as a tribunal admirably adapted to secure the highest ends of justice and the stability and permanence of our institutions. But the committee have not been unmindful of these truths that to render any judicial system popular and highly useful it must secure the services of the best men for judges, it must administer justice without delay, and as nearly as may be at every man's door. With this view, they have provided in the plan proposed for a judicial force sufficiently large for the prompt dispatch of all business which may arise in the several courts; they recommend salaries which, though not extravagant, are sufficiently liberal to secure the best legal talent, and they propose that a circuit court shall be held in each county at least twice, and the supreme court in each circuit at least once a year. Thus constituted, our judicial system will be simple and efficient, and we may therefore hope popular. County courts and side judges the majority of the committee conceive would with us prove a cumbrous machinery and useless appendage, unsuited to our condition and uncalled for by the wants and wishes of the people. They therefore propose the establishment of no other courts, except courts of probate and justices' courts, whose jurisdiction shall be extended to one hundred dollars; but they submit a provision allowing the legislature, if hereafter in the progress of society in culture and business they shall deem it expedient, to establish a distinct court of chancery. For the present, at least, they would not recommend its organization, as they conceive that law and equity powers may for a long time to come, if not permanently, be safely confided to the same judge. The committee have also deemed it expedient to submit, not as a necessary part of the plan proposed but as a distinct proposition worthy of consideration, the propriety of establishing by law a tariff of fees on all suits or process in the supreme and district courts, to be paid into the state treasury, and applied in part payment of the judges' salaries. The proposition is founded on the equitable principle that each man should pay individually for services rendered himself and not the public at large; besides it might in a measure tend to check a spirit of litigation. But it is unnecessary to enter into the details of the plan for organizing the judiciary contained in the report herewith submitted; if expedient they will commend themselves to the adoption of the convention; if otherwise, they will be rejected. "But there is one feature in the judicial system proposed for adoption by a majority of the committee so prominent and important and upon which so decided a difference of opinion exists that it demands a more minute and extended examination. It is the election of the judges by the people. This principle lies at the foundation of the

whole superstructure, and it is of the first importance to ascertain whether it is sound and correct. It is conceded by all that government naturally resolves itself into the three branches, executive, legislative, and judicial, and that their appropriate spheres of action are so diverse that there is both a propriety and a necessity for keeping each not only distinct from but so far as possible entirely independent of the other. It is also an axiom of government in this country that the people are the source of all political power, and to them should their officers and rulers be responsible for the faithful discharge of their respective duties. But for the most part, whilst the different states of the Union have admitted the correctness of these principles in the organization of the executive and legislative branches of their governments, they have denied them in that of the judiciary. Whilst the people have been permitted to elect officers to fill the two former departments, they have been deprived of this right as to the latter. The great and most important privilege of choosing the men who were to sit in judgment upon their rights of property, their lives, and liberties is denied them and is exercised by the other two branches of government, separately or conjointly. Thus have two fundamental prin. ciples of our government been violated. The judicial power, a distinct coequal department, which should be wholly independent of the others, instead of emanating from the people, the true source of all political power, has been dependent for existence upon the executive or legislative will, or perhaps both. The necessary result, in a measure, must be the dependence of the judiciary upon one or both of the other branches of government and its independence of the people. And the reason why this system, so erroneous in theory, has not proved more injurious in practice is owing to the intelligence of the people and the integrity of our judges.

"The plan of appointing judges adopted in this country is plainly traceable to Great Britain. There, all judicial power is presumed to reside in the king; in theory, justice is administered in his presence, and as a consequence the judges are appointed by him. In adopting the common law with its many conceded excellencies, together with the forms and practice of England, in a measure, we have very naturally imbibed the doctrine that the judicial power should emanate from the executive instead of the people. Had our forefathers been as op pressed by this branch of government as they were by the executive and legislative powers of the mother country, is it not fairly to be presumed that they would have repudiated the principle of appointment of the judiciary and founded it as they did the others on the true republican basis, election by the people. But whatever of caution may have influenced the opinions of the great statesmen who laid the foundation of our government, unguided as they were by the lights of experience, shall we, after more than sixty years' experience of the happy workings of our institutions, shall we, in this day of progress and of light in political science, frame a constitution that shall sanction a principle so far behind the spirit of the age, so opposed to the genius of republican government as that of distrust of the ability of the people for self-government, a desire to save them from themselves?

"But an elective judiciary is not only in accordance with the theory and analogy of our government; it is in harmony with its spirit and genius. Confidence in the people and a belief in the political perfectability of man are the basis of our institutions. To elevate mankind you must confide in them. You must make them feel that they are something above the brute and the slave-that they have rights and powers, a capacity for improvement and self-government. You must inspire them with self-respect, a desire to better their condition, and awaken the soul to arise and assert the nobility which God stamped upon her, when he created man in His image. Every man should be made to feel that he is a citizen, a part of the state, and that a portion of its sovereignty resides in him. He should be treated by his government in the same manner that Infinite Wisdom deals with him as a distinct individual, and not part of the mass, as a free agent, responsible for his actions, and yet who can do as he will. This is the true theory of government; it emanated from the Deity and is founded in the nature and fitness of things; it ennobles man and elevates and betters his condition. Now it is proposed to carry out these principles in the election of our judiciary, as well as in the other departments of government. And why not? Are not the people as competent to choose in one case as the other, and are they not equally interested to make wise and judicious selections? Why prohibit the exercise of the elective franchise in a single department of government? If it be true that all power resides in and should flow from the people, it is true not only in part, but in whole. If false, let us discard the principle entirely; let us at once proclaim to the world that our political theory is a delusion; let us no longer seek to cherish in the hearts of the down-trodden and oppressed millions of Europe the fond hope of freedom and equal rights, a hope doomed to wither and perish like untimely fruit. But for ourselves we have no such fears. We believe that the electors of Wisconsin will judiciously exercise the right of suffrage, however liberally extended, and that they ought to exercise it in the selection of all their officers wherever practicable.

"It is objected that the candidates for judgeship, if elective, will be selected by irresponsible conventions as party men, and elected because nominated, irrespective of their merits. The last of these objections is untrue in fact and unsound in conclusion. It is founded on the presumed ignorance of the people of the character and qualifications of prominent men, on their supposed disregard of their own true interests, and would prove, if anything, that the people should be excluded from voting for every important officer of government. Admitting that conventions would select candidates with reference to their political faith, though this is by no means certain nor always even probable, the people would not therefore necessarily confirm the choice; especially would they not if unwisely made. The election of judges to administer the laws in the high tribunals of the state, who may sit in judgment on the rights, the lives, and liberties of each elector, on a day expressly set apart for that single object, is an act too solemn to admit of undue bias from the heat of partisan feeling or the efforts of demagogues.