Ordered, That they be referred to the committee to engross the sams for the question of final passage.

FIFTH ARTICLE.

The amendments to the fifth article of the constitution, as amended on second reading, were read the third time; and,

Ordered, That they be referred to the committee to engross the same for the question of final passage.

SIXTH ARTICLE.

The amendments to the sixth article of the constitution, as amended on second reading, were read the third time.

A motion was made by Mr. Bell,

That the convention resolve itself into a committee of the whole for the purpose of amending the amendments made in the third section of the said article on second reading, that the said section may read as follows, viz:

"SECT. 3. Prothonotaries of the supreme court shall be appointed by the said court for the term of three years, if they so long behave themselves well. Prothonotaries and clerks of the several other courts, recorders of deeds and registers of wills, shall, at the times and places of election of representatives, be elected by the qualified electors of each county, or the districts over which the jurisdiction of said courts extends, and shall be commissioned by the governor. They shall hold their offices for three years, if they shall so long behave themselves well, and until their successors shall be duly qualified. The legislature shall provide by law the number of persons in each county who shall hold said offices, and how many and which of said offices shall be held by one person. Vacancies in any of the said offices shall be filled by appointments to be made by the governor, to continue until the next general election, and until successors shall be elected and qualified as aforesaid."

Which was agreed to. Whereupon,

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The convention resolved itself into a committee of the whole, Mr. DENNY in the chair, for the purpose of making the said amendments. Mr. REIGART moved, that the committee rise, and that the chairman report the amendments agreeably to instructions.

Which was agreed to.

The PRESIDENT resumed the Chair, and the chairman reported the third section of the said article agreeably to instructions.

And the report of the committee of the whole was agreed to.

And the amendments to the said section as amended were agreed to; and,

Ordered, That they be referred to the committee to engross the same for the question of final passage.

SEVENTH ARTICLE.

The amendments to the seventh article of the constitution, as amended on second reading, were read the third time.

Mr. EARLE moved,

That the convention resolve itself into a committee of the whole, for the purpose of amending the fourth section of the said article, by adding to the end thereof the words "the legislature shall not grant any exclusive privilege whatsoever."

And on the question,

Will the convention agree to the motion?

The yeas and nays were required by Mr. EARLE and Mr. REIGART, and are as follows, viz:

YEAS-Messrs. Ayres, Butler, Cummin, Curll, Darrah, Dillinger, Earle, Keim, Mann, Martin, Miller-11.

NAYS-MSssrs. Agnew, Baldwin, Banks, Barclay, Barndollar, Bedford, Bell, Bigelow, Bonham, Brown, of Lancaster, Brown, of Northampton, Chambers, Chandler, of Philadelphia, Clapp. Clarke, of Beaver. Clark, of Dauphin, Clarke, of Indiana, Cleavinger, Cline, Cochran, Cope, Cox, Crain, Crawford, Crum, Denny, Dickey, Dickerson, Donagan, Donnell, Fleming, Forward, Foulkrod, Fry, Fuller, Gamble, Gearhart, Gilmore, Harris, Hastings, Hayhurst, Hays, Helffenstein, Henderson, of Allegheny, Henderson, of Dauphin. Hiester, Hopkinson, Hyde, Ingersoll, Jenks, Kennedy, Kerr, Konigmacher, Krebs, Long, Maclay, Magee, M'Sherry, Meredith, Merrill, Merkel, Montgomery, Myers, Nevin, Overfield, Payne, Porter, of Lancaster, Porter, of Northampton, Purviance, Reigart. Read, Ritter, Rogers, Royer, Russell, Saeger, Scheetz, Sellers, Seltzer, Shel ito, Smith, of Columbia, Smyth, of Centre, Snively, Sterigere, Stickel, Sturdevant, Taggart, Thomas, Todd, Weaver, Weidman, White, Woodward, Young Sergeant, President-95.

So the question was determined in the negative.

A motion was made by Mr. PORTER, of Northampton,

That the convention resolve itself into committee of the whole for the purpose of amending the fourth section of the seventh article, by striking therefrom, in the second line, the word "appropriating" and inserting in lieu thereof the word "taking;" and by striking therefrom in the third line, the words, "it is," and inserting in lieu thereof the words "for public;" and by striking from the end of the section the word "appropriated," and inserting in lieu thereof the word “taken.”

Mr. PORTER said: If I can get the attention of the convention for a few minutes, I think I shall be able to demonstrate to their entire satisfaction, the propriety and correctness of the proposition which I now offer. Neither by the constitution of the United States, nor by the constitution of the commonwealth of Pennsylvania, has ever any right existed to take the private property of one individual and to give it to another individual or set of individuals for their private use, and I hope I shall not live to see the day when such a doctrine will be countenanced either by the constitution or the laws of the land.

Heretofore, whenever the legislature has authorized a corporation to take the private property of an individual, and to appropriate it to works of internal improvement,-for these are the only instances in which it is allowed-it has been only tolerated when the improvement was for the benefit of the public. In other words;-that although the corporation has a right to take the tolls accruing on that improvement, still that the public should be granted the use of it or payment of toll.

When this section was last up before us, I voted against it, because I found then, as I do now, that if it was adopted, the inference might be

drawn that private property may be taken, and given to the use of a private corporation created for private purposes only. I am sure that this was not so intended, and therefore it is that I am opposed to this amendment. Then the legislature will only have the power to grant the private property of individuals to corporations, in those cases in which the public will have an interest;—such, for instance, as a canal; a public rail road; a bridge, or navigation-or any improvement of which the public should be granted the use on payment of a stipulated toll. As the section now stands, it seems to me that the inference might be drawn that this convention sanctioned the idea that the legislature might take private property for private use. The distinction is now well settled, that the right to take private property, exists only in those cases where the public will have an interest.

Mr. WOODWARD, of Luzerne, said: I do not suppose there is any gentleman here who is disposed to take the property of a private individual and give it to another individual, or to a corporation, for its own private use. And if this amendment now before us-I mean the fourth section— which denies the power to take any property without compensation, should have the effect to give the legislature that power, it would certainly be a very unfortunate circumstance. I do not think it would be so. The corporations for which private property can be taken, are turnpikes, rail roads, canal companies, bridges and the like; and if the gentleman from Northampton (Mr. Porter) will look to the acts of assembly incorporating them, he will find that the legislature inserts a provision that the said companies shall have power to occupy such land as may be necessary for THEIR Purposes. The question whether these are private or public corporations, is a different matter; and I believe our courts have decided that all such corporations are of a public character. The legislature are now habitually giving to these companies, power to take real estate for their purposes.

Well, sir, if corporations of this kind are created hereafter, the legislature must have the same power to take private property for public use. Will you say in the constitution that the legislature shall not have the power to take private property for public use? The object is, simply to make the language intelligible to the people. And will the people understand you, if you tell them that the legislature shall not have the power to take private property for public use without compensation. They will not understand you at all. Be assured they will not. The courts have trouble enough in doing it. I would rather say what is exactly true, that when you charter a company for a thousand years, you give that company power to take the land for its use. It is for the use of the company; but it is also, for many purposes, for the use of the public; but still it is the company which, under the act of assembly, takes the property to be used for itself and for the public. This is the literal truth in relation to the matter. Now, if you retain the words "its use," what will be the understanding of the constitutional provision? Will it be even understood by any legislature that they may take away private property and give it to another individual?

Mr. PORTER, of Northampton, said, he would modify his motion by striking out therefrom that part which related to the words "its use."

Mr. WOODWARD. That obviates all the difficulty, and I wil agree to the motion.

Mr. BANKS, of Mifflin, said he was of opinion that this amendment would not prevent the legislature from appropriating private property to any use although the language intended they should not.

Mr. MEREDITH, of Philadelphia, regretted that the gentleman from Northampton had modified the section in the manner he had done. If we strike out the words "its use," then we leave a public body to apply to its use, private property. He did not suppose that there was any one in this convention who would advocate the taking of private property for public use.

Mr. PORTER said that he was very unfortunate

In the shape in which he had offered his amendment, it did not meet the approbation of the delegate from Luzerne, (Mr. Woodward) who he believed was the author of the section.

Mr. WOODWARD said: "No."

Mr. PORTER said, that he did not apprehend that the striking out of the words to its use,' ," would be followed by the consequences stated by the gentleman from Philadelphia, (Mr. Meredith.) With regard to what had fallen from the delegate from Mifflin, he would say that the provision he (Mr. P.) had proposed, gave authority to the legislature to delegate pow. er, if they should think proper, to a corporation to take private property for public use, on condition that they make compensation to the owners of it, or give proper security therefor. He did not think that a corpora tion could take property for their private use. It could not be done. But, the government, in virtue of its sovereignty, might take property for its use, because, quo ad hoc, its use is for the public use. This was the law, as was to be found in all the decisions made on this subject; and, in no case had it been more elaborately gone into than in the case cited some time since by the delegate from Luzerne (Mr. Woodward) of "Bonaparte vs. the Camden and Amboy rail road company." In that case, the principle was laid down by the court, that if an improvement was strictly monopoly-if it was for the private use of the corporation-they would have no right to take the property of an individual. The court also set tled another principle, and that was-that a corporation is private, although it be authorized to construct an improvement, in which, when completed, the public have an interest.

He believed that the word "appropriating" would be better changed to taking." He would therefore modify his motion, so as to instruct the committee to make that change, and also to omit the words "to its use."

Mr. WOODWARD said that he was willing to vote for the amendment of the gentleman from Northampton, except in so far as the word "taking" was connected. He could not approve that term, and hoped it would not be inserted. There was no power here to pass a law that private property shall be taken for the public use.

Mr. STERIGERE, of Montgomery, thought the amendment was very well as it now stood, and could not be made more acceptable. We had now provided that no man's property could be taken for public use, with out compensation being made; while, as to private use, it was provided that it could not be taken unless in payment of damages. To change the words to "public use" was unnecessary, as the amendment might be con strued simply that property could be taken for private use, without this

security. That would, in his opinion, be the construction given to the amendment. He reiterated his hope that the delegate from Northampton would allow the amendment to remain as it now stood.

Mr. MEREDITH said, he regretted that the gentleman from Northampton would not accept his suggestion not to withdraw his proposed amendment in the words "its use." He (Mr. M.) would feel it his duty to move to amend the gentleman's motion, so as to obtain, if possible, the insertion of the words "public use," in lieu thereof. He was not willing to recognize by any clause in the new constitution, the right to take private property against the will of the owner, without saying also that it is not to be taken for public use. Now, he would ask how the constitution would stand, if this section was to be left in the manner the delegate from Northampton (Mr. Porter) proposed. Why, it would stand precisely as the gentleman from Montgomery said it would. Is it our intention to submit such a proposition to the people?

Mr. PORTER, of Northampton, said he would accept the modification. Mr. MEREDITH resumed, then I will finish the few observations I was submitting, as briefly as I can.

The legislature never had a right under the old constitution, to take private property for any but public use. They took it for high ways; but that was for the public use. But if the amendment of the gentleman from Northampton should not prevail, what would be the consequence? The legislature may authorize a rail road through the commanding parts of the country, and may give the absolute monopoly of the line to a company. I am sure none of us intend that this should be so, and, therefore, I would attach to every clause that speaks of private property, the words “for public use." I hope the amendment will be agreed to.

Mr. STURDEVANT, of Luzerne, said: This section of the seventh article was offered by myself, from the circumstance that in the section of country in which I reside, there have been many complaints of private property having been taken by private companies for their own use, and not for the use of the public.

I will call the attention of gentlemen to the tenth section of the ninth article of the constitution of 1790; the latter clause of which is in the following words:

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Nor shall any man's property be taken, or applied to public use, without the consent of his representative, and without just compensation being made."

This, sir, is the provision of our constitution, but it has not been found strong enough to save my constituents from much trouble. For instance; a man having a coal mine, gets up a company, who procure a charter with the privilege of making a rail road through a neighbour's farm, in order to enable them to carry the coal to market. The object of this corporation, therefore, is solely for the benefit of the individual or individuals composing the corporation. The public have no manner of interest in the

matter.

These cases, sir, have occurred repeatedly. I know that a hundred of such instances might be cited-cases occurring in the coal valleys of this region of country. Thus private individuals have their private property out up and destroyed, merely for the purpose of giving to some other indi