where the prisoner is told to look upon the jury, I submit to the good sense of this convention, whether there is any thing of mockery about it. What is the ceremony? It is an evidence, that he is the man against whom the charge is brought-that he submits himself to the court-and acknowledges himself to be under its jurisdiction. Must not the court ascertain whether the prisoner submits himself to their jurisdiction? And whether he is, or is not the man? There must be some method of iden tifying the man, and of ascertaining whether he submits himself to the jurisdiction of the court; and I can see no more simple way than that of holding up the hand, in the manner we are accustomed to see.

As to the ceremony of looking upon the prisoner, the gentleman from the city of Philadelphia, (Mr. Biddle) has ably answered the objection against that. And, let me remark, that in one case at least, the life of a prisoner has been saved by looking upon a juryman. [Mr. M. here alluded, inaudibly to the reporter, to the circumstances of a case in which the prisoner, by the act of looking on the juryman, had elicited a discov ery which was the means of saving his own life.] Is there, then, any thing ridiculous, any thing absurd, in such forms as these? I think not. And it is no argument to say, that cases such as that which I have refer red to, occur only once in a great number of years. If, but one solitary life is saved, how can we speak of this as an absurd and ridiculous cere mony? But when we look farther, and ascertain what serious evils, what positive danger, may be incurred from disregarding these ceremon ies, they become all important.

As to the courts: the difference between the courts of oyer and termi ner and the other courts, have been made manifest; and I think that we ought still to retain such a court. It has come down to us from our ancestors-it has worked well in practice-and yet gentlemen ask us to strike it out, but do not offer any thing as a substitute for it. If they prefer to make a system by which our courts shall be re-organized, let us know what it is. Let them bring it forward, and I pledge myself that if it is better than that which we now have, I will give it my support. But I will not consent to strike out any thing, simply because it is old, or simply, that we may be enabled to embrace a novelty, for the sake of novelty. And I am opposed to this amendment. It will leave the arti cle defective.

Mr. READ rose to explain. He did not, he said, intend to express the opinion, that this amendment would be inconsistent with the first section of this article, if that section should finally stand; but he intended to say, that not to strike out that section, would be inconsistent with his own pro ject. The fifth section was a matter of detail, and was unnecessary, even if the first section should remain.

Mr. MERRILL resumed. He understood the gentleman now. He wished to strike out, in the first place, by which means he hoped to obtain a modification, or the introduction of some provision hereafter, relative to making the organization of our courts, more simple, and the administration of justice more easily and better rendered, than it was at the present time. Now, when such an amendment should have been adopted, he would have no hesitation in voting for the proposed alteration. But, he conceived, that inasmuch, as that had not been done, no necessity existed for striking out the article. The gentleman had said it

was surplusage. The question, in his (Mr. M's.) opinion resolved itself into this: shall the organization-the creation of that court, depend upon the legislative will alone? He believed that no gentleman had advanced such an argument.

The gentleman from Susquehanna, (Mr. Read,) himself even admitted, that the organization of our courts should rest on some constitutional provision, and not depend upon legislative action at all. The existing section set forth the courts in which certain offences should be tried. This was all right and proper enough. If, then, the section were to be stricken out, as the gentleman desired, there would remain no constitutional requisition for the existence of these judiciary tribunals. How, he wished to know, were courts to be brought into existence? Why, the administration of justice must depend entirely upon legislative action. The legislature would have to create courts. Their existence would rest solely on the legislative enactment. He really was astonished to hear it said that the article should be laid aside-that it was merely surplusage to make a provision in reference to the constitutional existence of our courts of justice. The argument was of a novel and extraordinary character. Indeed, he was utterly at a loss to comprehend it. He had supposed that this body had been convened for the purpose of settling the great principles of human rights; and now, it seemed, that we were to strike out as many constitutional and organic restrictions as we possibly could. For the reasons which he had already given, at such length, he was decidedly and unequivocally opposed to striking out the section. Gentlemen were at perfect liberty to laugh and talk as they might, but he could ass ure them that neither course of proceeding, would prevent him from advocating and contending for that which he felt convinced had worked well. It was in vain for them to attempt any such thing. He knew very well that the most solemn thing might be turned into ridicule; but it did not necessarily follow that it was ridiculous, unwise, or absurd. As he had just observed, he was opposed to striking out. If, however, the first section should be changed, this might be done. He did not see how we could part with any of these sections which he deemed so important to defend life and liberty. None could laugh him out of his respect for old forms, merely because their abandonment would save ourselves some little trouble. If the convention were determined not to adhere to them, he trusted that they would, at least, pursue such a course of proceeding as would give security to life and liberty, and the rights and privileges, we had already obtained. He hoped that the section would not be stricken out, as it ought not to be, unless we change the whole form of our judiciary.

Mr. DUNLOP, of Franklin, said it seemed to him that there was more real foundation for the objections urged by the delegate from Susquehanna, against the section in question, than many gentlemen, who had spoken in reference to it, seemed to imagine. One strong objection to it, was that "the judges of the court of common pleas, in each county, shall, by virtue of their office, be justices of oyer and terminer, and general jail delivery, for the trial of capital and other offenders therein; any two of said judges, the president being one, shall be a quorum; but they shall not hold a court of oyer and terminer, or jail delivery, in any county, when the judges of the supreme court, or any of them, shall be sitting

the same county. The party accused, as well as the commonwealth, may, under such regulations as shall be prescribed by law, remove the indictment and proceeding, or a transcript thereof, into the supreme

court."

Now, (continued Mr. D.) at the time when this clause of the constitution was adopted, the judges held their sittings at nisi prius, and tried offenders in oyer and terminer, and rode through the country for that purpose. But now they do not hold oyer and terminer, except in the city of Philadelphia. Under the existing constitution, it would be found that the judges of the courts of common pleas are forbidden from holding a court of oyer and teminer in any county, when the supreme court is in session. A serious question now presented itself for consideration, and that was, whether one court sitting in banco, was a valid objection against the other courts sitting? Formally, there might be a very good reason for a provision of this sort, when the judges of the court of common pleas, held their court of oyer and terminer in each county, for the trial of capital and other offenders. But, when that jurisdiction was almost entirely withdrawn, the objection raised by the delegate from Susquehanna. (Mr. Read,) was certainly entitled to some weight. It was, indeed, deserving of grave and serious consideration. It appeared to his mind a very doubtful question whether a court of oyer and terminer could be held, when the supreme court was sitting in banco. The decision of the question, however, would depend upon what was the meaning of the word "sitting." The language of the section was not "when sitting as a court of oyer and terminer," but "when the judges are sitting, or any of them." Now, supposing the two courts to be sitting at the same time, and in the same county, the consequence would necessarily follow, that the trials of criminals would have to be postponed until the judges of the supreme court should be sitting elsewhere. The language of the section was" but they shall not hold a court of oyer and terminer, or jail delivery in any county, when the judges of the supreme court, or any of them, shall be sitting in the same county." Sitting-for what? Why, sitting for any thing: there was no restriction. No court of oyer and terminer can be held in the county where they are. He understood it was so ruled at Pittsburg, after the subject had undergone full consideration. Now, this fact was sufficient to make gentlemen pause as to whether or not they would strike out the provision, or not. The reason which existed at the formation of the constitution for the insertion of this provision in it did not now hold. The necessity for it was done away with, as the practice had changed. He regarded this, then, as a strong reason why the section should be negatived. Why, he asked, should they retain a section which was exceptionable? Was there any thing to redeem it? Was there one particle of merit in it? What was the language of the section?

"The judges of the court of common pleas, in each county, shall, by virtue of their office, be justices of oyer and terminer and general jail delivery." &c.

Now, this was as much as to say, in the language of the gentleman from Bucks, (Mr. McDowell,) that the county courts, shall try criminal cases. It might be necessary to insert some phrase of that kind in the amended constitution, and if so, it would be as well to put it in intel

ligible language. The delegate from Bucks, said that he could not understand what was meant by "oyer and terminer." He, (Mr. D.) thought he could define the meaning for him, if he were to attempt it; but the necessity for courts of this character was done away with. It had been deemed important that great offences, involving a man's life, should be tried in courts of oyer and terminer, because in them there was always present, an additional number of judges, and the right of challenge existed. But, the system was now changed: and no offences, but those of treason and murder, were punishable with death. When a man was placed at the bar, to be tried for his life, it was but just and humane, that he should have thrown around him those guards which would secure to him a fair and impartial trial. The change which had been wrought in our judicial system, however, rendered all this paraphernalia unneces sary. He saw no reason why we should say that the judges of the court of common pleas should be also justices of oyer and terminer. Nothing more was required than to use plain language, and to say that county courts may be held, or some language of that kind. He was surprised and regretted to have heard, in the course of this debate, (for it was by no means essential to it,) the delegate from Bucks, (Mr. McDowell) a trained and practiced lawyer, and who ought to be wedded to the forms of the law, condemn one of the most beautiful relics of the law-the arraignment of a prisoner for a capital offence. For himself, he regarded it as one of the most beautiful ceremonies which was to be found in any human tribunal. Did the gentleman from Bucks supposes, that when a man was placed at the bar to answer for his life, there should be no form of arraignment?-that he should not stand up, and be asked to hold up his hand, and plead to the indictment, and acknowledge his guilt, and to say that he would be tried by God and his country? It was a little more than a ceremony, and there was certainly nothing about it deserving of ridicule. For a man arraigned, to be tried, to look on the jurors and the jurors on him, did not admit of sarcasm or ridicule. On the contrary, these forms were worthy of respect and regard. And, if the gentleman from Bucks had ever seen the trial for life, conducted according to the forms of trial in England, he would not have been disposed to ridicule these ancient, solemn, and impressive forms. As managed in the English courts of justice, the arraignment of a prisoner, was one of the most solemn and impressive scenes in any human tribunal. But that, however, was a subject which had nothing to do with the present question. The striking out, as proposed, of the section under consideration, would have nothing to do with the capital punishment, any more than the discovery made by the gentleman from Beaver, (Mr. Dickey) that the orphan's court always sits on a Monday. The gentleman reminded him of a person who said he always knew the difference between the co-plaintiff and the co-defendant, because the co-plaintiff's counsel spoke last. The delegate from Beaver's discovery was something like it.

Mr. MEREDITH, of the city, said that he had listened attentively to all that had fallen from gentlemen on both sides, and had not yet heard any sufficient reason given why the convention should strike out the section under consideration. He had heard many reasons alleged, and pretences given for it, all of which only went to show that many parts of our legislation had not been brought into active operation. We knew that the judges of the supreme court were not in the habit of holding courts of

oyer and terminer, but we knew not that the time might not arrive when the legislature might make it their duty to hold courts at stated periods. We had heard numerous complaints as to the constitution of the county courts in many parts of the state, and they had now become general. Ít was said that they had failed in their operation. He did not know but the time would arrive when the public might have more confidence in the judges of the supreme court holding courts of oyer and terminer, than the other judges. There were other parts of the section, besides those already mentioned, which were not in active operation. His friend from Franklin county, (Mr. Dunlop) had stated one instance that was as to the holding of a court of oyer and terminer-even when the judges of the supreme court were sitting at the same time. The gentleman was mistaken in supposing that the section was liable to a construction susceptible of any inconvenience. The construction that he had put on it relative to a court of common pleas, and the court of oyer and terminer, had been long repudiated. The court of oyer and terminer sat in Philadelphia at the same time with the supreme court. In 1821-22, this matter became a subject of inquiry. The president of the court of common pleas wrote to the supreme court, to ascertain their opinion on this important point, (and the letter was published at the time in all the news. papers,) and he received an answer, stating that there was no difficulty about it that the supreme court understood, and would act, according to the uniform construction which had been given to the section ever since the adoption of the constitution, and that was, that the court of common pleas could not sit as a court of oyer and terminer, at the same time that the supreme court was acting in that character. If the clause in question was ambiguous at that time, it had since obtained a clear construction. and was now perfectly well understood. Now, he would ask gentlemen of the committee what they imagined the delegate from Susquehanna proposed that we should do? He (Mr. M.) did not think it a proper question to put, whether or not we should establish a district court of oyer and terminer. He did not conceive that the time had yet arrived when it would be necessary to make such a decision. He should be sorry to do any thing that would impair or detract from the solemnity of the various forms observed in our courts of justice. But, the question upon which we were to decide was of far greater consequence than the mere question of continuing the courts of oyer and terminer. The gentle man from Allegheny, (Mr. Forward) Susquehanna, (Mr. Read) and Bucks, (Mr. M'Dowell) based their arguments on the ground that it was intended to make a change in the different functions of the county courts. The only reason which he had heard alleged against the section, was, that if a man wished to present a petition against a road, or any thing else, on Wednesday, Thursday, or Friday, and does not choose to employ counsel who goes to court on Wednesdays, he is debarred from presenting it in person, as they are not quarter sessions' days, as every lawyer knew. Now, he asked, was it not a hardship upon the individual that he could not present his petition without employing counsel? He could not be admitted into the court without employing counsel. Now, if the rejection of the section was asked, on the ground alone that the laymen, that was, the people of the commonwealth, as contradistinguished from the bar, should be entitled to open appearances, without being under the necessity of employing counsel, he would freely declare it to