The yeas and nays were required by Mr. DICKEY and Mr. Grenell, and are as follow, viz:

YEAS-Messrs. Agnew, Ayres, Banks, Bedford, Bigelow, Bonham, Brown, of Northampton, Brown, of Philadelphia, Clapp, Clarke, of Indiana, Cleavinger, Cline, Crain, Cummin, Darrah, Donnelly, Earle, Foulkrod, Fry, Fuller, Gamble, Gilmore, Grennell, Hastings, Hayhurst, Helffenstein, Hiester, High, Houpt, Hyde, Ingersoll, Jenks, Keim, Krebs, Lyons, Maclay, Magee, Martin, M'Cahen, M'Donnel, Meredith, Merrill, Nevin, Purviance, Read, Riter, Ritter, Rogers, Scott, Shellito, Stickel, Sturdevant, Taggart, Weaver, White, Woodward-56.

NAYS-Messrs. Baldwin, Barclay, Barndollar, Barnitz, Bell, Biddle, Brown, of Lancaster, Chambers, Chandler, of Philadelphia, Clarke, of Beaver, Clark, of Dauphin, Cochran, Cope, Cox, Crawford, Crum, Cunningham, Curll, Darlington, Denny, Dickey, Dickerson, Donagan, Dunlop, Fleming, Harris, Hays, Henderson of Allegheny, Henderson, of Dauphin, Hopkinson, Kennedy, Kerr, Konigmacher, Long, Mann, M'Sherry, Merkel, Miller, Montgomery, Overfield, Pennypacker, Pollock, Porter, of Northampton, Reigart, Russel, Seager, Scheetz, Sellers, Seltzer, Sill, Smith, of Columbia, Smyth, of Centre, Snivley, Sterigere, Todd, Weidman, Young, Sergeant, President-58.

So the amendment as amended, was not agreed to.

A motion was made by Mr. Dickey,

To amend the amendment by adding thereto the following, viz:

"The governor shall nominate, and by and with the advice and consent of the senate, appoint two associate judges in each county, who, during their continuance in office, shall reside in the county. A president judge shall be nominated, and by and with the advice and consent of the senate, be appointed in each judicial district, who, during his continuance in office, shall reside therein. The president and associate judges, any two of whom shall be a quorum, shall compose the respective courts of common pleas."

Mr. DICKEY said, he would merely observe to the convention that the amendment he had now proposed was part of the fourth section of the old constitution, which was struck out in committee of the whole—so far as concerned the appointment of the associate judges and their residence in the county in which they may be appointed, and 30 far as concerned the appointment of the judge for each judicial district, and his residence therein. The amendment also, like the fourth section, made it imperative for the president and judges or any two of them to be a quorum, to compose the courts of common pleas; thus qualifying the amendment which has been adopted, and which left this matter discretionary with the legislature.

It appears to me to be necessary that we should re-enact the provision, requiring that the associate judges should reside in the counties, and the president judges in the judicial districts for which they shall have been appointed; and also that the presidents and associate judges should be a quorum to compose the courts of common pleas.

A motion was then made by Mr. BELL,

That the convention do now adjourn.

Which motion was agreed to.

And the convention adjourned until half past three o'clock this after

noon.

TUESDAY AFTERNOON, JANUARY 30, 1838.

FIFTH ARTICLE.

The convention resumed the second reading of the report of the committee to whom was referred the fifth article of the constitution, as reported by the committee of the whole.

The question being on the motion of Mr. DICKEY, of Beaver, to amend the amendment by adding thereto the following, viz:

"There shall be two associate judges appointed for each county, and one president judge for each judicial district, who shall, during their continuance in office, reside in the counties and districts respectively for which they shall have been appointed. The president and associate judges, any two of whom shall be a quorum, shall compose the respective courts of common pleas."

Mr. DICKEY, asked for the yeas and nays on his amendment, and they were ordered.

Mr. READ, of Susquehanna, said, he did not discover any thing which was objectionable in the amendment, except that it contained a repetition of half of what was already in the fifth article. It seemed to him, that it would be proper to leave out all that related to the manner of appointment. This was all the change that was necessary. It was objectionable to repeat what had already formed a part of the article.

Mr. DICKEY had no particular objection to modify the amendment. But he was desirous that there should be no misconstruction, and he was not aware that any injury could result from repetition. Under the old constitution, the appointments were made by the governor. He had substituted that the governor should be the nominating power, and the senate the confirming power. He had no objection, however, to any modification, if the principle were retained. The first principle was that the associate judges should reside in the county: the second, that the president judges should reside in the district: and the third, fixing the number of associate judges.

It

Mr. HIESTER, of Laneaster, was in favor of the two first principles, and he was also in favor of fixing the number of associate judges. was provided by the old constitution, that the governor shall appoint the judges. Here, that provision is repealed so far as relates to the appointing power. He saw, therefore, no necessity for repeating the language of the old provision. And he would suggest the propriety of so modifying the amendment, as to obviate this objection.

He thought it important, that the judges of the courts of common pleas, should reside in the county. In the orphans' court, and the court of quarter sessions, the associate judges ought to be present. But when civil suits are on trial there is no necessity for their presence. He intended, therefore, to move to strike out the latter clause.

Mr. DICKEY, expressed his willingness to accept this amendment as a modification to the first part of his proposition, but he could not consent to strike out the last part. The gentleman from Lancaster might call for a division.

Mr. HIESTER, then moved to amend the amendment, by striking therefrom all the words, after the word "appointed," where it 1 st occurs, viz: "The president and associate judges, any two of whom shall be a quorum, shall compose the respective courts of common pleas."

Mr. DICKEY expressed a hope that these words would not be stricken out. He was anxious to test the principle, whether the president judge could be permitted to sit alone, without the aid of one of the associate judges.

Mr. PORTER, of Northampton, said, he would like to know why the gentleman wants the associate judges on the bench to decide on questions of law. When we want a coat, we go to a tailor. When we want boots, we go to a boot-maker. When we want questions of law decided, we do not want to go to judges who use the broad-axe.

Mr. HIESTER Suggested the propriety of increasing the salaries of judges. There were persons of respectibility who were now ready to bring their services on the bench. If not, let the salaries be increased. He saw no advantage likely to arise from the concluding clause, and he hoped it would be stricken out.

Mr. M'DOWELL, of Bucks, regarded this as a very important matter. He liked the proposition of the gentleman from Beaver. But, in order to carry out the beauty of the system, it would be proper to have an associate judge on each side of the president judge, or there would be danger of his becoming lopsided. There ought, therefore, to be two associates, to keep up the balance of power.

Mr. DICKEY said, he would readily accept the suggestion: and would say that it was always the policy of Pennsylvania, to surround her judges with common sense, so that those about the judge might infuse into him some of those plain principles of equity which he might not otherwise be able to discern through the obscurity of law. Sometimes, men not so learned in the law, had overruled a president judge learned in the law, and in the court of errors their decisions were suffered to overrule. case of disagreement, he would leave the president judge the power to call in the aid of another man of common sense to aid the learned in the law. He believed it was the policy of lawyers to clear the bench of men not learned in the law, and to place there men learned only in abstractions.

In

Mr. CHAMBERS, of Franklin, said that he had been in the habit of at tending the courts of law for many years, and he had always thought, that the holding of the court of common pleas by the president judges, was not only a convenience to the public, but to the associate judges themselves. We know, that generally, the associate judges resided in remote parts of a county, and that they had frequently to attend court for the trial of issues, and to argue questions of law also. It was desirable that the court should be held with as little inconvenience as possible to

the judges. And. as it happened, that the president judges lived in county towns, it was to the convenience of saitors that they should attend to their business. This arrangement was also for the convenience of the associate judges, otherwise they would be required to attend court. He had never heard it complained of as an abuse, or an encroachment upon the rights of other judges.

Mr. C. referred to the act of Assembly, of 14th April, 1834, authorizing the president judge to hold the court of common pleas, which was adopted as a part of the Revised Code, which had under a previous legislative enactment, been the law of the state for many years. There was no complaint against this provision. which operated to the convenience of suitors, and the judges, and without injury to the public. He was opposed to the proposed change that two judges shall compose a court, and thought it would be better to adhere to the present arrangement until the legislature should think proper to change it. He hoped the amendment would not be agreed to.

Mr. BANKS, of Mifflin, said that if the amendment as modified by the gentleman from Franklin (Mr. Chambers) prevailed, we should not be able to have justice administered by men of common sense or any other sense. There would be an entire failure of justice in many instances. And, he would tell gentlemen why.

We have associates of good common sense, as well as in the county of Beaver, or elsewhere, but they were engaged in other pursuits, and do not devote themselves entirely to reading law and dispensing justice. They did not always attend the courts, being engaged in carrying on their business as connected, perhaps, with the canals, or rail-roads, &c. unless it suited their convenience. They would not give their services for a small sum, when they could make ten times as much other ways. His opinion was, that we ought to leave it to the legislature, to say, whether the president judges shall reside in the district, and the associate judges reside in the county.

Mr. FLEMING said, that he could not see the necessity for the adop tion of the amendment, proposed by the gentleman from Beaver, (Mr. Dickey) when he looked to the character of the section adopted as proposed by the gentleman from Susquehanna. That section provides, that until otherwise directed by law, the court of common pleas shall continue as at present established. Now, the gentleman wished to make it obligatory on the associate judges to be present at all times. If the president judge was holding a court of common pleas, he (Mr. F.) would ask,

for now was the time to bring the matter fairly to issue-a matter upon which he had so much set his heart-whether it was necessary, or not, in order to the attainment of justice, that the associate judges should be on the bench with him?

This was a question which he would leave to the judgment of this body. He believed, that no man acquainted with law, would say it was of any use their being present. This he knew to have been the universal sentiment of the bar, for years past. And we all know, that for very many years past, there had been an express legislative provision, setting forth that the president judge should be authorized to hold his court alone, without the assistance of his associates. This had been the decision of the

legislature, which was required by the people, and it had since been universally acquiesced in. Subsequently there had been no complaint-no demand that the law should be repealed, and that the associate members should be present. He maintained that a president judge was sufficient in a court of common pleas, without the assistance of associate judges. Universal acquiescence had shown, that the people did not desire the insertion of a clause requiring that the associate judges should be present at the holding of the court of common pleas.

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Mr. PORTER, of Northampton, said, that he thought the amendment which the gentleman from Beaver had offered, was a most singular one, viz that there should be two associate judges always on the benchon each side of the president judge in order to keep him straight, and to assist him in deciding questions of law. The provision which the gentleman from Luzerne, (Mr Woodward) had proposed was entirely dif ferent it ran in these words: "Until otherwise directed by law, the courts of common pleas shall continue as at present established. Not more then five counties shall at any time be`included in one judicial district, organized for said courts."

Although the president judges of the common pleas for thirty years past had been in the practice of sitting alone, where, he asked, had there been any complaint of injury having been done, or that the system had not worked well. For more then thirty years had it been in force in accordance with a law, passed by the legislature of Pennsylvania. And, why should there be this change?

The gentleman from Beaver remarked, that it was as well to have a little common sense to overbalance the common law. Now, that delegate possessed common sense, but whether he knew as much of common law, was a matter of doubt. He, Mr. P., confessed, that if he wanted a canal made, or any legislation of an intricate character done, he would consult that gentleman as soon as any body he knew. But, with regard to matters of law, he would go somewhere else for it. He would rather go to those who had been in the practice of law all their lives-who had had much experience. Where he repeated the question--had there been any complaint that the system had not worked well? Who was it that had asked us to make this change? What, he would inquire, did the amendment of the delegate from Beaver and that of the gentleman from Lancaster (Mr. Hiester) amount to? Why it amounted to nothing, but was so much verbiage added to the section. The provision we had already adopted was as follows:

"Until otherwise directed by law, the courts of common pleas shall continue as at present established. Not more than five counties shall at any time be included in one judicial district, organized for said courts."

Now, to wish to add to this all the details that were proposed was something like the desire which animated the New England man, who would have the whole world and half of Nantucket besides. Here we had got all at the beginning, and yet gentlemen wanted something more to it. The gentleman from Beaver (Mr. Dickey) had triumphantly maintained that there had not been an instance, where the associate judges had overruled the opinion of a president judge, but what their decision .had been sustained in the court of errors. It had also been said, that