have exclusively the powers of juftices of the peace in criminal matters, &c. &c.

Here then is no diftinction made in the conftitution between the powers of the prefident and affociate: and if the conftitution recognizes no diftinction, the legislature can make no dif tinction; and certainly no act of the judges themselves can poffiely overleap the conftitution and the law, to create a distinction, by bartering, or furrendering rights, which they poffefs for the public benefit. We must not be misled by words or names. A prefident does not mean a person who is to direct, influence, control and command the court; but in this, as in all publie bodies, from neceffity, there must be an organ to declare its fenfe. Thus, in the fupreme court there is a chief juftice; in the fenate a speaker; and on the grand jury there is a foreman, they all mean the fame thing, and nothing more. The prefiding perfon is defignated as a fort of certifying officer, to declare the fenfe of the majority of the court, the fenate, or the jury. It may happen, and often does happen, that this organ is obliged to declare a refult, to which he had been opposed, and of the propriety of which, at the moment of announcing it, he may not be convinced. The foreman of a grand jury is often obliged to fign a bill he voted against; and you, Mr. Speaker, have had to fign a law, which, in its progrefs you had unfuccefsfully combated. So a prefident of a court, in cafe there are three or more judges, who concur in opinion against him, may have to deliver, as the fenfe of the court, opinions cóntrary to his own.

Nor are we to be misled on account of a distinction made in the act of affembly, for organizing our courts, by which a profeffional character is required to be placed as prefident of a court of common pleas. The prefident does not by this dif tinction acquire any additional power, nor is he raised to any greater degree of eminence. You find nothing in the con, ftitution that prescribes, that the prefident fhall be a legal character, though the act of affembly enjoins it; and although it might be a question, whether the legislature had the power under the conftitution to place this refraint on the appointments of the executive, it has nothing to do with the present difcuffion. In point of convenience, however, the introduction of a law character on the bench might be well; he may unquestionably be useful; but he cannot be fuppofed entitled on this account to abridge the rights, or to prevent a performance of the duties of his affociates, as declared in the conftitution. He no doubt will have an influence on points of law,

in the minds of gentlemen, who have not made the law their study; but I trust no one is prepared to fay, that fuch influence could extend to authorize the prefident to deprive his affociate of their equal rights and authority. That he is there as a legal character, arifes from the accidental course of his purfuit of profeffion; but that circumftance cannot affect the conftitutional equality of the judges. His having read and practifed law, cannot enlarge his rights as prefident, nor diminish those of his affociates. No question of law or fact can arife but what the affociate may entertain and express an opinion on as well as the prefident. Nor is there in the conftitution to be found any difcrimination between grand, and petit juries, or between civil and criminal cafes, or to the powers and duties of the judges; but in every cafe, where the judi cial office is employed, we find the powers, the rights, and du ties the fame.

This conftitutional enquiry is neceffary, becaufe, I think, after establishing that the conftitution gives equal power, and equal rights, and impofes equal duties, on the prefident and asfociate judges, we shall require fomething more than an outdoor agreement of the judges, to deftroy this conftitutional equality, not only as to the parties to the agreement, but as to their fucceffors for ever.

On this occafion, I will quote an authority, which the defendant will accept as entitled to confideration. It is from a volume of his own reports, to which are annexed a number of charges, many of which do him honor; and one of which he delivered in September feffion, 1791, foon after the establishment of the judiciary, under the prefent conftitution, viz.

"Law is a fcience, the right understanding of which requires general knowledge, much study, and close reflection. Without thefe, it never can be known. And, to know it intimately, will require the labors of half a life.

"A court of law, without the knowledge of law, might, had we never known it to exift, have appeared to us an abfurdity too glaring, to have place in a free country. For freedom cannot fubfift without law. And law, ignorantly, partially, or uncertainly administered, like every abufed conftitutional power, is the worst kind of tyranny.

"In framing the present conftitution of the county courts in this ftate, both former ufage and a defire of an improved and enlightened adminiftration of juftice, had an evident influence;

and thus, like a body impelled by two forces, moving in dif ferent directions, it has taken the course of neither, but a midde one, as nigh to each, as the force of the other would per

mit.

"To have compofed these courts entirely of men, lawyers by profeflion, would, unless fuch judges had been few, have appeared a measure too expenfive. If they had been few, they might have poffeffed lefs confidence, or been liable to more ca, fualties. At all events, this arrangement might have been con fidered as too great a deviation from the former fyftem; and, therefore, to conftitute even a profeffional judge for each county, was not attempted.

"To leave the courts unaltered, was liable to fo many objec, tions, that no doubt could exist, that some improvement was ne◄ cessary.

"It was eafily agreed, that one man, by profeffion a lawyer, fhould be allotted to a circuit of feveral counties, as prefident of the courts in all. And it then became a question, whether one man, not a profeffional lawyer, in each county of the circuit, fhould be affociated with him, and all be judges in every coun ty therein, or whether three or four fuch men fhould be affociated with him in each county, as judges for that county only. The first method would have been the best. The laft was con ceived to be the most acceptable; and was accordingly adopted.

"Thefe judges, befides integrity of heart, and decency of demeanor, are prefumed to poffefs firmnefs without obftinacy, modefty without flexibility, discretion without timidity, knowledge without conceit, and judgment without prefumption. These qualities, blended with that skill of the law, which the prefident is fuppofed to have acquired, from study and practice in his profeffion; and which the affociate judges are supposed to acquire, by their future attention and experience, may, it is prefumed, conftitute a tribunal, from which the benefits of a court of juftice may be expected, and in which the powers of a county court may be lodged.

"Thefe powers are important. Under the former conftitu tion, fome juftices of the court of quarter feffions and orphans' court were not juftices of the court of common pleas; and fome juftices of the court of common pleas were not justices of the court of quarter feffions and orphans' court. Now the prefident, and all the judges of the court of common pleas are, under that name, and by virtue of that appointment, alfo judges of the court of quarter feffions and orphans' court; and,

together with the register, judges of the register's court, within their refpective counties." Add. Rep. Charges, p. 2, 3.

Again the learned gentleman fays

"Each state, whether of nature or civil fociety, has its advantages and disadvantages. In a state of civil fociety, courts of justice are neceffary. Being not only neceffary, but import, ant, they ought to be made as perfect as poffible; and to attain this degree of perfection, and enfure a regular and proper exercife of their powers, expence is necessary.

"The county courts having immediate and important influence upon our interefts, it was thought, that every obligation and inducement ought to be laid upon the judges, to do their duty, and to do it well. And this, it was prefumed by the prefent conftitution, would be effected, by reducing them to a small and fixed number, giving them commiffions during good behavior, and allowing them falaries,

"The judges now allotted to every court are not more, perhaps, than are fuppofed neceffary, to enfure confidence in their decifions. They are fo few, that they can be easily, diftinctly, and generally known, and that the absence of any one will be inftantly observed. Each of them will have reafon to fuppofe, that his prefence may be neceffary at court; and, being there, will be ashamed to be abfent from his place. Thus every one will feel himself a neceffary member of the court, and be prompted to do his duty.

"But every one will be prompted alfo to do it well. For feeing no other end of their commiffions, but the end of their lives; and being no longer bound to bestow their time and fervice, for the benefit of the public, without a compenfation; but receiving falaries, to compenfate for their time and labor devoted to the community; their office becomes a calling or occupation; and, as fuch, their particular attention to its duties is expected and required; and not immediate attention only, but a competent preparation, by ftudy and reflection, for an intelligent difcuffion, and right decifion of the queftions which may come before them." Add. Rep. Charges, p. 6, 7.

Such is the legitimate expofition of the fubject, given by the learned judge at the first court held in his district, under the prefent conftitution. It is expreffed in language which every man understands: It fays, what we concede, that every affociate judge ought to lend a willing ear, a refpectful attention, to the opinion of the prefident, on abftract points of law:

But it does not infinuate, that on questions of politics the like deference is due; and, in fact, a man of sense, experience, and general information, will often be better qualified to dif cufs and decide a political question, than one who has confined himself to mere legal ftudy.

If, however, the doctrine, now contended for, is correct, let us afk, why the conftitution contemplates the appointment of three or four affociate judges in each county? Why are we encumbered with fo fruitlefs an expence? Or, why are the affociates rendered independent of the executive, in theory, to become dependent, in practice, on an inferior magistrate? If the prefident only is to fpeak on all fubjects to a grand jury, where is the boundary to prevent his extending the ufurpation to cafes before a petit jury; or, in fhort, to every object of judicial enquiry? The nature of the judicial character, does not warrant the pretenfion, any more than the pofitive provifions of the conftitution. The firft idea of the judicial character which prefents itself, is, that a judge only exifts in the exercife of his own judgment. A judge cannot act by deputy, for he cannot delegate the powers of his judgment to another: He cannot, for the purposes of judgment, receive information through the eyes, ears, or understanding, of another. The very nature of the judicial character, I repeat, requires that he should fee, hear, and understand for himself. He violates his truft, if he fubftitutes the judgment of another for his own; or even if, by his filence, he permits a jury to infer, that he is fatisfied with the opinion of another, at whofe opinion he revolts; nay, he is more bound to give his opinion and to affign the reafons for it, if he is diffatisfied, or even doubts, than when he concurs in the fentiments of a colleague. What fort of a judge would he be that should fuffer it to be understood, that he agreed in a charge from which in fact he diffented? No man will affert, that fuch conduct would furnish the mind with an idea of the judicial character. Different circumftances, faid the defendant, will ftrike the minds of different perfons, in a different manner. True, it is fo in the moral, and in the phyfical world; and, emphatically, it is true, in the fcience of the law, which is a department of the moral world. There is fcarcely a topic of legal inveftigation, which does not produce contrariety of fentiment, and fometimes of decifion. It is not a difference among lawyers merely; but you fcarcely find an argument at any bar, that does not occafion a diverfity of opinion on the bench. But this very view of the fubject, leads to the conclufion, that every one ought to affign his reasons, whether he agrees or