of the Supreme Court shall be elected by general ticket," &c.

The third Section above quoted is certainly ambiguous, and in construing it, we should conform as far as possible to the intention of the body which adopted it. Could that body have intended the section to be construed literally? Let us see.

Provision is made for the election of Justices of the Supreme Court, by the qualified electors voting by general ticket, "whenever the General Assembly shall create a separate Supreme Court****under the provisions of this Constitution." If it is true that the Constitution created the Supreme Court, and did not authorize the General Assembly to create any other, or "separate" Supreme Court, and if we undertake to construe the language of this section literally, we shall be forced to conclude that the General Assembly, acting as a constitutional Convention, was strangely obtuse, and in adopting the amendment, intended simply to provide for an election by the qualified electors, whenever the Legislature should perform an impossibility by creating a separate Supreme Court under the provisions of a Constitution having no such provision in it. To charge the Convention with such folly, would be doing it great injustice.

But this is not all. The consequences which would result from adopting such a construction, would be most embarrassing. An election was held under this amended section on the first Monday in October, 1853, for one Chief Justice, and two Associate Justices. They were elected by the qualified electors voting by general ticket, and entered upon their duties on the first day of January, 1854. In doing so, they superseded the Justices who had been elected by the General Assembly, under the former amendment, and before the terms for which they had been elected had expired. Now if we are limited to a literal construction of the language of this amendment, it must be shown that the General Assembly had, prior to the date of that election, created a "separate Supreme Court under the provisions of this Constitution;" or the time had not arrived when the amended section was in force, and consequently that election was void. If so, the present Justices are usurpers-their adjudications have all been unauthorized; the amendment of 1848 is still in force, and the Justices elected under it, whose terms have not expired, are still the Justices, and only Justices of the Supreme Court of the State of Florida.

Such embarrasments would necessarily result from a literal construction of the language of this amendment and furnish unmistakeable evidence, that it does not represent the intention of the Conven tion. A further evidence that it does not, is found in its own action on this subject. The amendment under consideration was passed on

the 23d day of December, 1850, and the same body, on the 6th day of January, 1851, and at the same session, passed a bill entitled "An Act to organize the Supreme Court of the State of Florida," and as a doubt existed on the minds of some whether this act created the Supreme Court, or simply organized a former creation, the official opinion of the then Attorney General, the Hon. D. P. Hogue, was requested by the General Assembly, and promptly furnished. An extract from that opinion is here given, as follows: "With respect to the restraining operation and effect of the ninth Section of the same article, I am of opinion that a Senator or Representative in the present General Assembly of this State, is eligible to a seat upon the bench of the Supreme Court. He would not be eligible to any civil office of profit created at the present session. A bill has been passed at the present session organizing a Supreme Court, but not creating it. The Supreme Court is the creature of the first Section of the fifth Article of the Constitution, and the law lately passed on. ly provides for the organization of a constitutional creation." This official opinion from the State's law adviser, was placed upon the Journals, and went to the people in company with the proposed amendment, and was considered conclusive as to the creative power of the Legislature. Such, too, was its effect upon the General Assembly; for the Hon. Walker Anderson, a member of the House of Representatives, was elected Chief Justice, and several other members were voted for as Associate Justices, notwithstanding the ninth Section of the sixth Article, which declares that "no Senator or Representative shall, during the term for which he shall have been elected, be appointed to any civil office of profit under this State, which shall have been created, or the emoluments of which shall have been increased during such term," &c. This election may therefore be considered a most solemn decision on the part of the General Assembly a decision made under their oaths of officethat the Court was created by the Constitution, and leaves no room to doubt, that when that body, in the amendment under consideration, uses the words "created by the General Assembly," it only intended to use them as synonymous with the words "organized by the General Assembly."

But we are not confined to legislative decisions upon either of these points. They have both been decided in the most solemn manner by the highest Judicial authority known to this State. If the Court was not created by the Constitution, then it was created by the General Assembly, and if so, Chief Justice Anderson was disqualified for a seat upon that bench. Therefore, in taking the oath of office, he, in the most solemn manner, decided that the Court was

the creature of the Constitution. Associate Justices Semmes and Thompson, subsequently elected, made the same decision when they accepted their offices, for they could not have sworn to "preserve, protect, and defend the Constitution of this State," when they intended to aid in its violation by associating with a Chief Justice who was constitutionally disqualified for his office.

The question of the construction of the amended section has, if possible, been still more authoritatively adjudicated. In a former part of this argument, I attempted to show that if we adopt a literal construction of the language of this amendment, then the time had not arrived on the first Monday in October, 1853, when the third section could be in force, and that the election then held was without Constitutional authority. The Supreme Court had, prior to that time, been organized-the Justices had been elected, taken the oath. of office, and entered upon their duties. These distinguished jurists were incapable of countenancing a deliberate violation of the Constitution which they had sworn to " preserve, protect and defend." And yet they, each and all, became candidates under this amended section for re-election. This they could not have done, without deciding that the election was constitutionally ordered. They failed to receive a majority of the votes, and promptly retired from office. This they could not have done, and at the same time "defend the Constitution," without deciding that their successors were constitutionally elected. In assuming, then, the powers and duties of the Supreme Court, the Justices first elected, decided that the Court was the creature of the Constitution, and in retiring from their offices, they decided that their successors were constitutionally elected.

The present Justices, elected under the third Section of the amended Article, took a solemn oath that they would "preserve, protect and defend the Constitution." This they could not have done without deciding that they were themselves Constitutionally elected.

The Judges of the Circuit Courts have all sworn to "preserve, protect and defend the Constitution," and each of them has rendered a cheerful obedience to the mandates of the Supreme Court, whether issued by the former, or present Justices. In thus acting, they have recognized the Court as the creature of the Constitution, and the present Justices as Constitutionally elected.

The Executive, acting under the same oath of office, commissioned Chief Justice Anderson, by which he recognized the creation of the Court by the Constitution, and commissioned the present Justices, by which he recognized their election as Constitutional.

Thus it is seen, that all the departments of the Government have uniformly declared by their acts that the Court is the creature of

the Constitution, and that the present Justices were elected in accor dance with its provisions. If these decisions have been sanctioned by the Constitution, then there can be no power in the Legislative department of the Government to reverse them, nor in all the departments combined, to abolish the Court, or supersede the Justices, except by amending that instrument in the manner authorized by its framers.

I have now shown, or attempted to show, that the Supreme Court, and its Justices, are alike the creatures of the Constitution, deriving their powers and jurisdiction directly from that instrument-that the General Assembly was a ministerial agent, appointed by the Convention to organize the Court, and elect the Justices-that in performing these duties it acted under peremptory instructions as to time, manner, &c.—that the amended Constitution deprives it of all agency in the election by transferring it to the qualified electors of the State -that the present Justices were elected by such qualified electors, under the authority of the Constitution, and without the agency of the Legislature that the Constitutionality of their election has been decided by their immediate predecessors, by the Judges of the Circuit Courts, and by themselves, in the most solemn manner-that the other departments of the Government have sustained these decisions, and that the General Assembly has no power to abolish the Court, or to remove, supersede, or transfer the Justices, except by amending the Constitution in the manner authorized by the Convention.

I will now examine the bill under consideration, and attempt to show in what particulars it is in conflict with the conclusions at which I have arrived, and assign the reasons which induced me to withhold my signature. So far as it relates to the Supreme Court, it provides as follows:

Sec. 12.- "Be it further enacted, That from and after the passage of this act, the Judges of the Circuit Courts, elected or chosen in pursuance of the Constitution, shall compose the Supreme Court of the State, and shall exercise all the powers and perform all the duties of such Court."

Sec. 13.—" Be it further enacted, That the Act entitled 'An Act to organize the Supreme Court of the State of Florida,' approved January 11, 1851, being inconsistent with this Act, and all other acts and parts of acts inconsistent with this act, be and the same are hereby repealed."

Sec. 14.-"Be it further enacted, That it shall be the duty of said Circuit Judges, and they are hereby required as Justices of the Supreme Court, to hold annually at least one session of said Supreme

Court at Tallahassee, one at Marianna, one at Jacksonville, one at Newnansville, and one at Tampa; beginning at Tallahassee on the first Monday in January, in each and every year, and holding its other sessions at such times as they shall determine upon, and the said Justices shall have authority to hold such other special terms as they may deem necessary, and shall receive therefor, for each and every session, three dollars per day for every day they shall be detained by their Judicial duties, as also ten cents per mile going to, and returning from said places, computing the distance from the respective homes of said Justices."

It has been shown in a former part of this communication, that the Constitution requires the Justices of the Supreme Court to be elected by the qualified electors, voting by general ticket. They were so elected for the term of six years from the first day of January, 1854, and were commissioned by the Executive. These Justices, except the venerable and lamented Douglas, who has been called to enjoy the reward of a well spent life on earth, are still in office, protected by the Constitution, and exercising the powers vèsted in them by that instrument.

The 12th Section, above quoted, undertakes to create another Supreme Court, separate and distinct from the one created by the Constitution; for it declares that it shall be " composed" of the Judges of the Circuit Courts. These Judges were elected to another, and different office, by the qualified electors of their respective Judicial districts, and derived from the Constitution only original jurisdiction. In providing that they shall "compose" the Supreme Court, the General Assembly confers upon them all the powers of such Court, and requires them to perform all its duties. ing no authority in the Constitution for an appellate Court so posed," there is no warrant for its organization by the General As sembly, and consequently, the Court is the creature of that body, and in direct conflict with that created by the Constitution itself.

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But suppose that the tribunal was created by the Constitution, and that this law is to be regarded only as an organization, where does the General Assembly get its power to confer jurisdiction upon these Judges? The first and tenth Sections of the fifth Article of the Constitution do authorize it to confer jurisdiction, not, however, upon Judges or Justices of the Supreme Court, but upon corporation Courts, and Justices of the Peace. So far from these grants raising even a presumption in favor of the possession of the power claimed, they negative such presumption in the most direct terms; for there is nothing better settled than that the grant of a part of any particular power, operates as a reservation of the balance. In this