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The Convention met at the appointed hour and was opened with prayer by Rev. David E. Hervey, of Wellsburg.
Journal of previous day read and adopted.
Mr. Parker called attention to an error in the record made a week ago yesterday in regard to a question of order raised by him. At the President's request he had reduced his point to writing and now handed it to the Secretary with request that the correction be made.
Mr. Sinsel, from the Committee on Credentials submitted the following report.
"The Committee on Credentials having had under consideration the petition of citizens of Mercer county, asking that Richard M. Cook be admitted to a seat in this Convention; also the petition of citizens of McDowell county, asking that J. P. Hoback be admitted to a seat in this Convention, are of opinion that the said Richard M. Cook and J. P. Hoback should be admitted to seats in this Convention.
Harmon Sinsel, Chairman."
The report was adopted.
The unfinished business, being the substitute offered by Mr. Stuart of Doddridge in lieu of the motion of Mr. Dering to increase the amount of jurisdiction of justices of the peace from $50 to $100, section 7 of the report of the Committee on County Organization, was taken up.
MR. WILLEY. Mr. President, this is a question in which I feel some interest, not because I am a lawyer. If I were to consult my interests as such alone I would go for the amendment and against the substitute. But because I think I know from personal experience in matters of litigation that if that portion of the section fixing the jurisdiction of justices of the peace shall remain as it is it will lead to, I may say, infinite litigation. I will venture to say it will multiply the practice of members of the bar ten-fold beyond what it is now; that it will lead to constant difficulties - perpetual conflicts between the law and the Constitution unless matters are better defined than they are now.
But that is not what I rise specially to notice on the present occasion. I wish to correct a very fundamental error into which my friend from Taylor fell on yesterday in regard to expenses. This seemed to be the great bugaboo. Well, now, sir, I have to say in the first place in regard to that, it is a matter perfectly within the control of the legislature. If the expenses in prosecuting to judgment and execution, an action of debt where there is no defense be too great, let the legislature provide a remedy. But does my friend know a remedy has already been provided? He ought to know before he denounces the expenses of prosecuting an action of debt where there is no defense to judgment and to execution as onerous on both parties that he has a right now himself, and I have a right, under the provisions in our code to file a notice in the clerk's office, written by himself, at any time and in a short time procure judgment without any declaration, without any writ, without any rules at all - simply to file my notice; prepare my notice and have it served on the defendant. Let it be filed in the office; and on the coming in of that notice judgment is executed and execution issued against the party. No attorney employed, no fee, no rules, no filing of papers, no sheriffs fee beyond what there would be in the case of a constable for something of that kind, simply the serving of notice. But, sir, in a case of that kind all this cost to which he alludes should be avoided, and a process more summary, more definite, more conclusive is entered on the record at the county seat where the whole proceeding is ever preserved in the records of the county. Fifty cents for serving the notice - the same as a justice of the peace would have for entering up judgment and issuing an execution. And that is all the cost about it.
Now let us look at this provision in the Constitution. It applies to actions of debt where there is no defense, to all cases of detinue and of trover up to $100, where the very fact that you are bringing the action implies that there is a defense, and you must go to the justice in the country to try these matters of high import involving intricate legal operations, submitting to a single man the question of unliquidated damages up to $100. Five or six of your cattle are taken, your horse is taken, or sheep of the value of $100 taken, and to submit the estimate of unliquidated damages as well as the intricate operation of law to a single justice in the country. And you are bound to do that. He decides against you and against the law, and what have you got to do? Then you must take an appeal and bring it to the court at last. Now, sir, you go into the country, and as my friend from Lewis argued yesterday, to avoid surprise they carry the whole neighborhood on their side to cover all imaginable defense that may be made by the other party you carry up a multitude of witnesses. They must be examined, their costs must be certified to the court. If their appeal is taken then you go into the court and make up your issue; because it is true you may try it with a third of your witnesses; but then you have double costs and double and treble, and instead of getting speed and prompt administration of justice you prolong it, and you aggravate the cause of complaint on the party that is aggrieved by compelling him to submit to all this inconvenience, heaping on the party that is beaten at last an immense amount of cost that might and ought to be avoided. Now, sir, the only ground of complaint that can possibly exist against bringing these matters into court is that of expense, and that objection can only apply in cases where there is no defense. But we have already provided in our code a summary remedy in the hands of the party himself without the necessity of applying to a sheriff and without the necessity of incurring the cost. That is to say, he would get his judgment where there is no defense and clear his money in a manner as summary and as speedy, and certainly more secure and safe, than he could before a constable under a justice of the peace.
Now I submit to this Convention most respectfully whether it is not prudent, whether it is safe to compel men to litigate important legal rights to the extent of a hundred dollars before a single justice. Why, sir, what is the use of your courts at all? What is the use of providing that men learned in the law shall be called on the bench if we are to be driven to men in the country who know nothing of it to decide on these matters? Why not dispense with your courts altogether and let justices of the peace have jurisdiction? I ask if it is not a dangerous principle? I ask if we are not imperiling the rights and interests of the citizen; if we are not imposing the unbending obligations of constitutional law, fixing a grievance, on the citizen that he cannot escape; that he must go through the process of a suit before a justice of the peace in the country before he can reach his rights according to law in the courts provided by law? And when we show that under existing provisions of law we have a remedy as summary and cheap where there is no defense as it is possible to have before a justice in the country, why will we incur this inconvenience and dangers to the rights, and I may say to the liberties, of the citizen, by having matters adjudicated before justices in the country who cannot be expected to be learned in the law and who at best will keep but meager records of the proceedings?
Allow me to repeat, sir, we must allow the people to have some capacity to manage matters themselves. Our old government is based on the fundamental idea of the capacity of the people to govern themselves. As I said yesterday I say today in all soberness and sincerity that while I have a profound respect for the intelligence of this Convention. I have an equal respect for the intelligence of my fellow-citizens at home. We do not combine all the wisdom in this new commonwealth. We do not possess all the intellect past, present and to come; and we have no right to impose these unbending legislative rules - not fundamental principles of constitutional law - but this unbending legislation - on our posterity for all time to come. The circumstances of the country may alter; the mind of the people may alter; and it is a possibility that we may commit an error in what we do; and if we fix these unbending rules in the Constitution we may impose grievous restrictions on the people that cannot be amended. Why not then allow the legislature to have some discretion in these matters? Why not allow ourselves to have the benefit of experience. Are you going to incorporate all the duties of justices of the peace in this Constitution? Look at your code, sir. It will require twenty or thirty pages from the code to contain all the provisions that are now there prescribing the duties of justices of the peace. You wish to put it in one little short paragraph here? Exigencies may arise which are necessary hereafter showing the necessity of additional legislation. Up comes the implication: the duties of justices of the peace are defined in the constitutional law, and we have no right to go outside of the duties there laid down. The legislature has no authority to impose on them any duties not designated in the Constitution. Or the operation of the provisions in reference to them may turn out not to work well in our new system. But then we are bound by the Constitution and are bound to submit to the grievance. I beg gentlemen to pause and consider. I will co-operate with them as far as possible - as far as it may be prudent to go in all measures for simplifying our judicial proceedings, making the administration of justice and the collection of debts summary and prompt as gentlemen may desire. I will do that, but I submit at the same time whether we may not go too far. At the same time we are not all creditors. I submit, sir, that debtors in this community have some rights as well as creditors, and that we may go too far in clothing our judicial authorities with this summary process of pouncing on the creditor without leave or license in all circumstances and hastily prosecuting debts to judgment and execution. Let us be governed to some extent by the wisdom of the past, and in our eagerness to redress what may be acknowledged to be existing grievances, let us not run into the other extreme. I hope the Convention will pause in this matter. I really believe we will do great detriment to the interests of the people if we incorporate this provision.
Now, as it regards the question of a thrust at the township system, I have no such desire at all, sir. So far as I am concerned, I would be perfectly satisfied if we confined this substitute to that portion of this section which has reference to fixing the jurisdiction of justices of the peace as to how they shall operate within their townships and all that sort of thing. That is a matter I have not considered, and am willing to submit to the better judgment of those who have. It would seem to me, however, the legislature are perfectly competent to adjust all these matters of legislation. But if those who have considered this matter think it necessary to the perfection of this new system that some rules and regulations be laid down in the Constitution to preserve it, why let it be done. All I am objecting to at present is that I believe that these constitutional provisions in this section in regard to the jurisdiction of justices of the peace will work disastrously. Disastrously, sir. And it will saddle the people with cost and produce interminable delays, stir up litigation just as certainly as it has done elsewhere, and instead of promoting justice it will promote injustice. Let us leave this matter to the discretion of the legislature. Why, sir, is there any danger that the people cannot control the members of the legislature so as to give jurisdiction to a hundred dollars - to certain alterations if it be deemed necessary? We have already done it. And, sir, there is not a state in this Union that has such a provision in the Constitution as this. Not a single state, sir. We give jurisdiction here for actions of detinue and for trover and conversion; in actions founded on unliquidated damages. We give such jurisdiction that it may go arbitrarily in the first place to the justice of the peace. There is no constitution in the Union, in my humble opinion that contains such an arbitrary provision as that. You may give justices of the peace jurisdiction, but there are some modifications and restrictions. In actions of detinue I know it is so where there is no defense. What do we gain by incorporating that principle in our Constitution, now practical law? We have it already in our code. Let us try it a while there, and if it works well it will be kept there.
Gentlemen ask here, will we not give some rights to the people? I say, yes. I stand here for the people having some power in their hands to regulate their own concerns. We provide in one part of this Constitution for a legislature, giving them authority to legislate, and in the next chapter we take out of the hands of that legislature the essential principles of legislative authority, legislating ourselves for the people for all time to come.
Sir, I am manifesting some degree of warmth and earnestness in this because I derive my reflections from absolute experience. I would pause before I would rush into this untried experiment in constitutional law. Why, sir, what would a merchant think if I were to go into his store and begin to denounce him and dictate to him and tell him he ought not to venture here and there in matters I knew nothing about. Sir, I am speaking from the honest results, the dictates of law and experience in connection with this matter, and I give it as my most deliberate opinion that if we adopt this principle in the Constitution, instead of making justice easy and summary you will make it prolix, you will still encumber it with costs and embarrassments that will be grievous and oppressive to the people in the end and instead of discouraging litigation will multiply it ten-fold, when we have the remedy in our hands in the legislature to provide additional remedies for all the evils of which I complain, why will we incurr all these dangers? I hope the Convention will not do it.
MR. PARKER. The gentlemen from McDowell and Mercer are now in.
MR. STEVENSON of Wood. Mr. President, I wish to make a few remarks on the amendment of the gentleman from Doddridge, and also in reference to the amendment made by the gentleman from Monongalia, as I believe the entire subject has so far been discussed in that way. I am opposed to striking out the provision as it is in the report of the committee. The very reasons which I would urge against striking it out are the very reasons which have been urged in favor of striking it out as a general thing. There is something like a paradox there, but the difference is between our legal friends and not between the outsiders. Some of these gentlemen tell us that to increase the jurisdiction of the justices of the peace beyond fifty dollars and to a hundred will increase litigation. Other gentlemen of the profession tell us that unless we increase it it will cause litigation. Some of them tell us that it will cost more for court cases, tried in the circuit courts; others tell us it will cost less to have them tried there. Now, sir, when lawyers differ who shall agree? Let me say - and I hope I can say it, as I think I can, with candor - that the people, at least outside of the profession, favor the idea or the principle set forth in the provision of the committee. Now, however it is, whether people are right or not, one thing is unquestionably true: that they believe the increase of the jurisdiction of justices to amounts of not less than one hundred dollars will decrease the price or cost of obtaining justice and decrease the number of suits that will be carried into the courts. They unquestionably have that idea; and I am willing to make the prediction that if you were to submit this question of extending the jurisdiction of the justice to one hundred dollars to the people, three out of every four would vote in favor or it. So that -
MR. WILLEY. My argument was based on the fact that the people have a perfect right at any time to do that, and they have done it.
MR. STEVENSON of Wood. I am not aware, sir, that the law has been changed so as to give justices the right to try cases exceeding fifty dollars. It is a very new matter - so very new that some of the members of this Convention told us they had never heard of it. But suppose the legislature are not of the temper and do not conceive it to be their interest to fix this jurisdiction, are we to have all these evils because the changes in the legislature are such that we can have no stability in this office of justice of the peace? I am opposed to striking out.
And while I am on this matter of increasing the jurisdiction of the justices of the peace I will say what I have to say on it and then speak in reference to the other. I have said, sir, that I base the argument not so much on the opinions of the gentlemen in the legal profession, because they differ, as I told you, but equally, it appears to me, on the facts growing out of this matter. I base, therefore, my argument upon the opinion of the people themselves; and I say, sir, that I have so much faith in public opinion that I believe that where the public have fairly, calmly investigated any matter, even a question of law, or any other matter, that they will come to a more correct conclusion than any small number of men, the wisest in the world, that we can get together. Their conclusion will be the more just and correct one. I do not suppose, of course, that all the wisdom in the world, is in this Convention. I am very well satisfied that there is a large amount here, and I am equally well satisfied that all the wisdom of the world will never be concentrated in one legislative body in this new State or in any other body; and therefore I would impress all the wisdom we have in this Convention on provisions of this kind in the Constitution, so that any lack of wisdom or superabundance of wisdom which may be found in any legislature will not render unstable and uncertain what we have fixed in this Constitution. It is said, sir, that our very government here is based on the idea of the capacity of the people to rule. Why, sir, everybody knows that is true; but does any gentleman pretend to say here that there are not restrictions, that there are not limits to the jurisdiction to the exercise of the functions of every officer under and in and about this government? That is true, sir, notwithstanding the fact that the government itself is based on the capacity of the people to rule themselves.
Another matter, sir, before I forget it. It is said that men may obtain justice more cheaply by going directly to the courts instead of having their cases brought before a justice. There is another thing about which the lawyers differ; but let me say, sir, that if there is such a condition of things existing in regard to the law - if this simple and cheap mode of obtaining justice in the courts, the people in my region of country, at least, have never discovered it. It is a dilemma there, I can assure you. And the opinion prevails almost universally that if a man enters the courts with even a just claim and has to go through the process of trials which may be fixed by the attorneys on either side and by the court, even if he wins his case he comes out a poorer man than when the suit was commenced. Now, sir, the people believe that and I believe people generally who have business in the courts experience it. I give that as an offset to that argument. It seems while the theory may be true, the practice is not. Another consideration, and an important one. In order that the position of justice of the peace may be made such as we desire it is important that it be filled by good men, men of proper capacity to perform the duties that belong to that office. The person who fills that must be a man not only of good judgment but of fair abilities; a man who must, or ought to, understand the law as far as it applies to hia official duty. You make the sum to which the jurisdiction of that justice of the peace extends to fifty dollars, or twenty dollars; make the sum such as that it will appear insignificant, what will be the result? Why, men unfit for the office will seek it and men unfit for it will get it, because no man who has the capacity to discharge the duties of that under such circumstances, as a general thing, will accept it. Well, then what have you done? Why, sir, here is a large class of men in the community - probably the largest - come under the amount that gives them the right to appeal, poor men who have just as much right to justice and equity as any other class of people. They are at the mercy of a man totally, or nearly, incapacitated for the discharge of the duties of the office because it is filled by an incompetent man. They have no remedy, that class of persons, no right of appeal. The decision of the justice in their case is final in civil cases and there the matter must stop and injustice be done to a very large class of the community. Now, sir, I take it that here is one thing that will be acknowledged: that all the suits between ten and a hundred dollars that are settled finally before justices of the peace a large number is prevented by that process from going into the courts at all. There is so much less business to be done in the courts because so much has been finally settled right at home amongst the parties themselves and before the justice. Now, sir, that will be cheaper, certainly, for the parties; it will be cheaper for the people; it will keep a large amount of business from getting into the courts; and I am willing to admit it will prevent a large amount of business from going to the lawyers. If we strike out this provision and leave this matter exclusively with the legislature, why you have unsettled the position of a justice of the peace, which is an important part of the county system. You have broken the back of one of the most important features in the system of county organization. Why should they lay down some limits here within which the jurisdiction of a justice shall operate? Why have you done it in every other report of this Constitution so far that you have passed? Take this report on the judiciary; why, sir, here are some ten or eleven sections that are taken up almost exclusively in defining the qualifications, the time for which these judges hold their offices, their residence and their jurisdiction in certain cases which shall have jurisdiction, and in certain cases in which they shall not have jurisdiction.
MR. WILLEY. So far as circuit courts are concerned, what report provides shall be the jurisdiction of the circuit courts?
MR. STEVENSON of Wood. I am speaking now of the courts generally. The first one that attracted my attention is the Supreme Court of Appeals. It specifies that the judges shall be thirty-five years old; that they shall hold their office twelve years. Why, you go so far even as to prescribe the amount of money these men shall receive for all time to come or until this Constitution is altered.
MR. WILLEY. I was speaking of the jurisdiction.
MR. STEVENSON of Wood. Why, sir, I would have to read eleven sections if I were to tell you all that is said about the jurisdiction. Any member has the report and can read it, and he will discover the fact to be as I state it. I refer only to such as my eye has fallen on here in reading the matter over hastily. I find that these courts shall have no jurisdiction in civil cases where the amount is less than two hundred dollars except in certain cases which are specified here, I am only showing you that you have adopted the principle of stating jurisdiction and prescribing qualifications and fixing salaries in part of the courts and if a principle is good in that case it is far better in the case of the justices of the peace. That is my argument. In reference to the justices of the peace, let me tell you, sir, that the duties of that officer I will venture to say are better known, are better settled and fixed in society than probably the duties of any other public officer. Why, sir, from time immemorial almost there are certain cases upon which it is supposed the justice of the peace is eminently qualified to act and ought to act. I say usage has settled that fact better than it has to any of the higher courts - the duties and prescribed limits within which justices shall act and these have been as a general thing specified when the duties of that office have been set forth in a constitution or in any law for that purpose.
I will state to you how I think the matter will operate if you strike out this provision. If you wish that justices of the peace . shall have actions except such as the legislature in its wisdom may hereafter prescribe, why, sir, I take it you have just about destroyed the office of justice of the peace. There is no stability, there is no certainty, no knowledge of what the duties of that officer shall be or whether he shall have any duties to perform. Probably he may be allowed to sit on dead bodies, as Shakespeare says - to perform the duties of coroner in his township or in some parts of the county where they may be required. Do you expect that any man qualified to act under such circumstances in the different townships? It will depend altogether on the mere change of the temper of every succeeding legislature. There is no great principle of duty upon which that office can be anchored and said to be stable and steady. Everything is left at sea.
These reasons, sir, in opposition to striking out the section and inserting the one offered by the gentleman from Doddridge, and others - are some of the reasons which I urge in favor of increasing the jurisdiction of justices of the peace from fifty dollars to one hundred. I say the mode will be cheaper; parties interested can obtain justice more cheaply. I say it will induce parties in many cases - I will venture to say a majority - to settle their cases right at home amongst their parties before it has extended to the county and created an excitement amongst a larger circle of people. More than that - although I have not the statistics - a majority of the causes that go into the courts or before justices are between ten and a hundred dollars - probably a larger amount under than over one hundred dollars. At all events a very large proportion comes to one hundred dollars and between fifty and one hundred. If you can settle even one-half finally before the justice of the peace, why, sir, you have accomplished a very important matter, it seems to me, in the way of cheapening justice and preventing litigation from being extended to the county seats in the different counties.
THE PRESIDENT. The Chair would call the attention of the Convention to the 28th rule:
"28. While a member is speaking, none shall entertain private discourse, or shall otherwise disturb him, or pass between him and the Chair."
There has lately been a great deal of conversation and want of attention while members have been addressing the Convention. I hope the Convention will give that rule some attention.
MR. SINSEL. I wish to refer to a few remarks of the gentleman from Monongalia where he said I had gone off into that great error. Now, in reference to obtaining justice by judgments by a notice filed in the Clerk's office, who ever heard tell of the like without the intervention of counsel? As a general thing, Mr. President, that remedy is only resorted to when there is a kind of a collusion between debtor and creditor in order to defraud another creditor who has instituted his suit regularly. In all other cases, sir, they are like angels' visits, few and far between; scarcely ever hear tell of them; whereas, what member of this Convention, outside the legal profession would know how to institute such a proceeding to recover his debt? Not one, I presume; not one. And if he undertook it and the defendant was opposed to it, he would meet the same obstacles and the same objection from the legal profession in the shape of delays and non suits that he would in any other form of litigation. And besides that, would not the parties have the very same remedy then that they would have if the jurisdiction of the magistrate was extended to one hundred dollars? They might go into court then if they choose with their notices instead of going before the magistrate. I see nothing to prevent that.
And I will just give notice here that if this section should be stricken out, I will offer an amendment or a substitute in this form:
"The justice of the peace within his township shall have concurrent jurisdiction with the circuit court of all sums where the matter in controversy, with interest and cost, does not exceed one hundred dollars of value. If the matter in controversy exceeds twenty dollars in value the defendant may have the case certified to the circuit court for trial."
MR. BROWN of Kanawha. I desire to say but a word on this subject. In framing a constitution, I imagine the great object is to secure the public good and not provide for the benefit of any individual or class of individuals. The question, what is for the public good, is one important consideration. I confess I have listened to this argument impartially, but I cannot, for the life of me, escape the conclusion that gentlemen seem to be actuated by a sort of apprehension that lawyers oppose the extended jurisdiction of justices of the peace from motives of interest or class. A gentleman who advocated the extension of jurisdiction seemed to apprehend that they have discovered a great "mare's nest" in the legislation and constitutional construction; that by the extension of this jurisdiction they are going to diminish suits and costs and please the country. And the gentleman from Wood bases his argument not upon the divisions that he says exist between lawyers on the subject - not upon the facts of the case, but upon what he understands to be the will of the people. Well, the gentleman seems to have great faith and reliance on the people; and I confess I am one of those who will never yield in loyalty to the people to him or any other. I have as high an admiration for the will of the people and wants of the people as any gentleman; but, at the same time, sir, I stand here to question the fact as alleged by the gentleman that he represents the will of the people in this matter. He speaks of the will of the people as if by some mode he was apprised of it. I wish to be understood, sir, that we represent a few people on the other side of the house and that we controvert the fact that he represents the people or more than a very small minority of them. How does the gentleman arrive at the fact that he represents the will of the people, and that it is the wish of the people that this clause should be inserted in the Constitution? Has there been any expression of popular opinion on the subject? Has it been a question made before the people and presented in such form that the people could form and express any opinion on it? Will you take the votes for delegates to this Convention to frame a constitution as any indication of what the wishes of the people are on this particular topic? Why, sir, in every view of this case the argument is groundless. I profess to have had some little experience and intercourse in life with the people, and that experience has taught me something of their wishes and feelings on this subject. I have been for many years, sir, bringing suits at the request of the people to enforce their just demands against their debtors. A large number of these claims are under a hundred dollars, beneath the jurisdiction of a justice of the peace and beneath the fifty dollars as heretofore. I have said many and many a time and again to my clients, "Why don't you go before a justice with this claim? Sir, I am not going to trust this claim before a magistrate. I want to test it in the proper tribunals of the country. I want no tribunal which I do not regard as sound to decide the question and transfer the case to the court, to be referred at a double expense." Now, sir, here is a little experience, actual practical experience of a man that brought him in contact with the people about the identical question in controversy here. How much of the kind has the gentleman from Wood given us on his side? I have had some little experience in our neighboring states. Living, sir, in that corner of Virginia where I have had frequent access to the people of counties in Kentucky and Ohio. I have had some experience in intercourse with people on the Kentucky side and it has been my fortune to have opportunities to practice to some extent in the courts of Ohio from my own residence in early life, and I have seen in Ohio and in the courts of common pleas, where their jurisdiction of a justice of the peace was a hundred dollars, when nearly one-half the suits on the dockets were appeals from the justices, with the transcripts of the records of the magistrates made out there to bring the cases into court; and I have seen the pettifogger come up as a witness to prove the cause; have seen the court, and the jury and all, and the cause to some extent placed in the attitude of ridicule by the criticisms of counsel on the conduct of the witness of pettifogging the case for the justice of the peace.
Instead, then of diminishing litigation you have the practical facts of crowding the dockets of the courts of common pleas with appeals and transfers of these cases from the justices' jurisdiction to that of the courts, with added expense of going first through the justices jurisdiction. What then is gained by it? Here is its practical operation as I have seen it in Ohio. Here is the practical operation that many of us have witnessed in Virginia.
It is useless for gentlemen to try to cry down the lawyers. It is as utterly impossible as it is to break down the government; because lawyers are an inevitable necessity to humanity. You cannot have a government without them, and there has never been one since the world began when there were not lawyers to execute the laws. I believe this from conviction derived from experience. I have seen and talked of it, this very law that stands on the statute book, that has been there ten or fifteen years or more, alluded to by the gentleman from Monongalia. It was an attempt of the legislature to enable the people to bring their own suits without the aid of a lawyer, and it is made so plain and simple that he who runs may read. The worst simpleton in the land can understand it; and if the gentlemen of this Convention will write from now till doomsday they cannot make it more so. It is simply that any man who has a debt due to him may just write a notice to the debtor giving him notice when he must pay and file it in the clerk's office, and the trial comes on and that is sufficient.
MR. VAN WINKLE. Has the defendant nothing to say?
MR. BROWN of Kanawha. He has if he wants to.
MR. VAN WINKLE. And the thing has been found inoperative on that account; that after you begin, you are thrown back just where you began.
MR. BROWN of Kanawha. The plaintiff has nothing in the world to do but just write a notice and send it by anybody in the commonwealth - or out of it. Anybody but a negro that can make an affidavit can give him a copy. That is all that is required to obtain a judgment on a note. I know, sir, in the county of Logan when the law first came out. It was an argument against lawyers before the legislature. It was the result of an agitation against the domination of lawyers in the legislature, against their shaping legislation in their own interest, as it was claimed, so that their services were indispensable to the people. It was claimed that by simplifying the processes of suits, people could bring their own suits and save the intervention of lawyers. But it was found, as all experience shows, that in all civilized countries, where the machinery of the laws is employed to settle controversies over rights of property or person, a knowledge of the law is indispensable; and since it is impossible the body of the people can have acquired the necessary familiarity with it to be their own lawyers, the profession is a necessity that cannot be dispensed with. That is why this old law has been found inoperative. It is impossible to carry on a lawsuit without the aid of counsel who are learned in the law. It is therefore unwise to attempt to take your judicial proceedings out of the courts of record where things are done in order and entrust them to tribunals unacquainted with the law which they are required to administer.
One gentleman proposes to make this jurisdiction concurrent with the jurisdiction of the court. I confess that strikes my mind with much greater force than the proposition in the report of the committee. If you do extend this jurisdiction to the justices of the peace and also give the same to the courts, then as the law now stands any attorney in making up his case could choose one or the other, and if he chooses to make his bed with the justice he must lie down in it. The other party has the right to have the case transferred to the tribunal he desires to decide the case. That relieves the case of very many of the evils attendant on the plan proposed in this report and is infinitely superior to my mind to anything that has been adduced on the other side. I then must, on principle, under any circumstances, oppose this proposition as it stands in the report of the committee.
MR. VAN WINKLE. As I have already addressed the Convention once on this subject, if no other gentleman desires to do so, I feel it incumbent on me as the chairman of the committee, charged, to a certain extent, of course with the defense of this report, to make a few remarks in conclusion, at least so far as I am concerned. I do not know from the remarks of the gentleman who spoke last and I would hardly know from the remarks of the gentleman from Monongalia whether they favored or not an amendment offered by the gentleman from Doddridge. The remarks of both have, as it appears to me been mostly confined to the simple question, not whether this jurisdiction should be raised from fifty to one hundred dollars or not. The motion offered by the gentleman from Doddridge, while it may be technically correct was offered at an unusual stage of the case, offering to supercede the whole report before there had been an opportunity to amend it; and the arguments now come forth from the gentlemen who have addressed the Convention as if the sum of one hundred dollars had been actually inserted here. So the gentlemen who might favor the report in other respects but are opposed to the one hundred dollars might be induced to vote for the motion of the gentleman from Doddridge. I, therefore, sir, take the liberty of calling on members to note that there are two questions pending before us. In fact, according to the straight and technical rule of order, the motion to insert one hundred dollars is superceded, if I understand it; and a motion now to amend the proposition of the gentleman from Doddridge would, I apprehend, be in order if there was any desire to make such motion. But I wish to call the attention of the Convention to the questions in the order in which they will be presented. The first question will be as to striking out the whole of this section. If the one meets an affirmative and it is stricken out, of course the other motion falls; but if it should be in the negative and the section is retained, it will then be in the power of the Convention to make this any amount they may see fit and amend it in other respects if it is defective. I may have something to say in reference to the difference between fifty and a hundred dollars, which is more of a practical question and one in regard to which I would cheerfully defer to the opinions of others if I could understand them distinctly - if I could understand what the wisdom of the country, through its representatives here, would indicate in reference to that, it would afford me only pleasure to follow it. My own impressions, as I have before said, are in favor of one hundred dollars; but I am not so wedded to any opinion on the practical question that I cannot alter it if I see reason to do so.
But what I wish to do is to defend this report as it stands. I do not mean to say or to claim that every word of this report is correct; that amendments may not be introduced even by friends of the measure, or the opponents either which will improve it. It is very possible, sir, that such amendments may be introduced; and I would think it was a better way to try by amendment to make it more acceptable than to strike it out at one fell blow, especially for the reasons that have been stated.
It commences, sir, by saying that "the civil jurisdiction of justices of the peace shall embrace all actions of assumpsit, debt, detinue, trespass and trover." I should like to know if there is anything improper in that. When you are establishing these courts for the trial of summary causes - these courts that are to sit in the country and among the people; that are to do their business without all the formalities of the higher courts, it is certainly wisdom to take into consideration the fact, that has been so reiterated here, that there are certain classes of cases, certain kinds of action which do need the manipulation that they receive from the higher courts - admitting at the same time, as candor requires every one to admit, that there are a class of actions which can be tried without these formalities. We have heard, sir, all this that has been said about pleading. What I said in reply to that last night ought perhaps to be sufficient, that the tendency of legislation in this State for many years past - 1 do not know how many but certainly thirty or forty, altogether in favor of simplifying that pleading - cutting off many of those intricacies and leaving it where it was equally as beneficial perhaps and without all the confusion and trouble and delay usually attending it. And now, sir, in these actions, to talk of pleading as applied to them and unless there are such circumstances in the case as would of themselves tell the plaintiff it would not be proper for him to bring his action before a justice - there should be no pleading except the general issue, not guilty, or payment, or something to simply answer to the claim; and, indeed, unless there are matters that come in, as it were, into these suits sidewise, there is very seldom any other plea even when you come into the court with your pleas. If to be tried simply whether the man owes the money or not, there is an issue at once; the clerk makes it up and not the lawyers. If it is to be tried in connection with assumpsit, the simple answer is that he did not assume, and then there is a direct issue. If it is in trover or detinue I believe the common plea is "not guilty." In actions of trespass, the answer is not guilty. That brings up the whole question involved in it. Now, if another party comes in to claim property involved, or something of that sort, further pleadings may be necessary - or not pleadings, but something of that sort. But if the committee have included actions that are really intricate, let us then amend it and strike out any such action, as we struck out "trespass." It will be with my hearty concurrence, because trespass might involve the title and boundary of lands. It is said detinue is objectionable because the right of property is to be tried; but that is a much smaller matter, for it is limited to personal property and can be more easily tried. But where it presents the simple question as to whose the property is I apprehend the justice of the peace in the country, with the aid I propose to give him, of a jury, to which gentlemen have not adverted in their remarks - although I gave notice of it last evening as being among the intentions of the committee - a jury of twelve men, if you please; I might propose six believing that to be sufficient. The question arises whether these are the only questions in the list; whether it is not better to put down here all they are to try than to leave it at sea. If we have an idea of creating courts of a certain character to sit in the country, we must at least put so much in the Constitution as shall be a guide to the legislature in filling out the details and carrying them out. There will be a general clause here limiting jurisdiction, say to one hundred dollars. There must go into this Constitution somewhere a general clause that the legislature shall pass the laws necessary for carrying this into effect. And now where does it circumscribe the legislative, executive or judicial powers?
The next clause is that this jurisdiction shall exist "where the defendant resides, or, being a new resident of the State, is found, within his township, or where the cause of action arose therein." Under the present law every citizen of the state is entitled to be sued in his own county. The object here is - and I apprehend one the Convention generally will coincide with - to give to the citizen the right of being sued in these summary actions in his own township. It is the same provision that is found in the code and has been in the practice of Virginia for a great many years in reference to the county of a man's residence. It has this additional clause of exception so that a stranger who may come in and contract a debt may be sued in whatever township he happens to be found. It is the same thing in reference to state laws; a non-resident may be sued in any county where he is found, to be served with process, or wherever the cause of action arose therein. If the debt was contracted in the township, then he may be sued in it; just as the state law provides that if the debt was contracted in a county he may be sued in the county.
Now, I would ask whether if we are to preserve this township system, to give it a fair chance; if we intend that this system shall have a trial before it is condemned - if it is not proper that we should confine the jurisdiction of the magistrate at least to this extent, the township? Now, sir, even those provisions may f be defective for aught I know. I do not think so, however; but if so they are open to amendment. However, as you notice, the substitute there sweeps all these provisions away and leaves everything to the legislature. If we could preserve this provision that suits be brought in the township I should be satisfied.
Now, we come to the sentence, and the only one, that is obnoxious at all to the objections made here: "when the value in controversy exclusive of interest does not exceed fifty dollars." That number is not to be considered as in any way trenching on the peculiar views of the legislature. The gentleman from Monongalia admits he does not wish this question of territorial jurisdiction. This seems to be the only clause on which this talk about confiding things to the legislature is to arise. I think, from the discussion that has been had here this morning and last evening, judging from what has been said here on both sides of the case it is a matter of some importance where this jurisdiction is limited whether it shall be fifty or one hundred dollars. If gentlemen think one hundred is going too high, then fix it at fifty. Gentlemen have shown that they take a great interest in this, and that is an indication that their constituents also take a great interest in it. Then why should it not be fixed here in this Constitution? You thus not only control action here but that of the legislature hereafter. You make it permanent. This is then made "subject to an appeal to the circuit court of the county." By order of the committee this was reported "an appeal in all cases however small the amount." I should be disposed myself to limit the appeal, as it has been heretofore limited. We must fix a limit somewheres below which there shall be no appeal. That is a matter that should come up before this question is decided about striking out.
Then follows a clause which is rendered necessary by the previous provisions: "but a justice of any other township of the same county may issue a summons to the defendant to appear before the justice of the proper township, which may be served by a constable of either township." Restricting jurisdiction to townships, this clause is introduced to avoid the difficulty that it may not be, convenient for the party to go to the township where the defendant resides, in order that the summons issue by or that he may go to his own justice but have it returnable in the township where the defendant resides. If that is an objectionable provision, strike it out; but it seems to me it is necessary and follows directly on the other. It is explanatory of what ought to be introduced further; that is to say, if the Convention is going to give this township system a fair trial. If we are opposed to this system, if we want to strike it out, render it nugatory, deprive it of the benefits which the friends of it apprehend from it; make it in fact as if it were not thrown out at all, why these provisions should be stricken out and those who are opposed to townships are acting perfectly consistent in endeavoring to strike them out.
It then goes on with further matters that follow of necessity; "executions issued by a justice may be directed to and executed by a constable of the township where the judgment is rendered or in which the property to be levied on is found." Is not that necessary as a sequence? If we make this justice of the peace jurisdiction a township instead of a county jurisdiction, is it not necessary that these provisions should follow in order that the demand do not operate unequally or with hardship? Now I put that to the Convention. If you are to have a township system, are not these provisions necessary? And if they are necessary, what objection is there to putting them into the Constitution? If they are matters that you wish to leave entirely at sea for the legislature to put in one and leave out the next; if you are willing to risk the trial of the township system on this conflicting legislation, then strike them out; but if you wish it to go long enough to have a fair trial, to be decided fairly and on its own merits, then leave these provisions in and remember this, that if, as argued here, we should through inadvertence, oversight, want of knowledge of the subject, or from some other cause either-put provisions in here which will operate badly or entirely omit necessary provisions, in such a case it is provided that the legislature shall propose amendments to the Constitution to remedy such faults. Now, if this particular provision should be found to work unjustly, or any provision not administer to the convenience of the inhabitants - as I think they will - or from any other cause it is desirable to change it, it stands precisely on a par with everything else we are to put into the Constitution. If found defective or superfluous, the legislature has it in its power to propose the necessary amendments. When a general overhauling of the Constitution may become necessary, fifteen, twenty or more years hence, as changes and experience may then render necessary, another convention will come together for the work; but single amendments are required, as will doubtless be found occasionally necessary for some years, the legislature can propose them separately and the vote to ratify or reject them understandingly.
Why then shall not these provisions in reference to these townships, that have been introduced with a view of giving them a fair chance, be tried? See how they suit and adapt themselves to the peculiar situation of our people - the same chance that is to be accorded to every other provision we shall insert in this Constitution? I do not know - can scarcely imagine - a provision unless it related to the very Constitution and legislature itself on which the argument would not be as strong to leave it wholly to the legislature as on this. Why not? If the legislature is so capable of judging in this matter - so much better capable of judging in this matter than the Convention, why not leave all these matters to the legislature? Why not leave them to say how often your governor shall be elected, when and where? Why, gentlemen, there is a principle involved in all these things. These are not strictly legislative functions. They are fundamental. They give class and turn and direction to the operation of our institutions, and therefore they should be made at least so permanent that they cannot be changed on the mere whims and notions of the hour; but having wisely provided that if found burdensome they may be changed in a constitutional manner.
Another provision is that: "in case of a vacancy in the office of justice or constable in any township having but one, or of the disability to act of the incumbent, and any other justice or constable of the same county may discharge any of the duties of their respective offices within said township." That is another necessary provision following from the other. It is to exclude a conclusion. Taking the first part of the section alone it might seem that no exception was to be allowed; that if a justice is not there to discharge the duties they cannot be discharged at all. Having fixed that as his duty, we must introduce the exceptions. Gentlemen tell us that in these states where this township system prevails they find nothing to do. Why, gentlemen, the township is there with them as common law. They take it for granted a township there has a definite meaning, as much meaning as a county; and there are many things as to the county that we do not need to provide for in the Constitution, because it has become a sort of common law - what are its functions, why it is created, why it exists. Here we are introducing a new feature. It becomes doubly important that we should make it plain and palpable what we do mean in reference to it. But, sir, I have burrowed in these constitutions, and the gentlemen who usually sit before me have. I know the important provisions of most of them in reference to the more important matters and know the principle that lies at the bottom of the whole. I have not been so studious in reference to the subject of a jury to act before the justice of the peace. I have looked into a few codes and constitutions and find the rule laid down something in this way, that all those cases shall be tried by jury except as has been otherwise the custom. In reference to pettifoggers, I have seen gentlemen who afterwards filled the offices of governor and Senator of the United States pleading before a jury and magistrate in the country. I know that men who have filled high stations in other respects were constantly in the habit as lawyers of going before these justices and their juries. And why not here?
Gentlemen tell us it is an untried scheme. But gentlemen know that it is not untried elsewhere; and if it succeeds there, why not here? Are our people less capable of administering their own affairs than the people of other states; less intelligent in the trial of these plain, matter of fact proceedings? I think not, sir. I say seriously and without any disposition to flatter that I believe that for sound intelligence our people are equal to any other in this country. I am not a native, and I can say this with propriety. They may not have all the smartness of a Lincoln; he may have certain qualifications which they have not; but for good hard common-sense, sir, I will put them against even him. And I say if the great advantages of education enjoyed in other states - not for a few years, but for a half century in some of them, had been enjoyed by our people, I believe our people would be superior to any of them. I say that deliberately. At any rate, if they were not as intelligent as I esteem them; if they were far below that rank of intelligence in which I would place them; if they were below perhaps the average of intelligence, yet, sir, this grand principle comes in here, that a man does not have to have great book-learning nor high intellectual qualities - nothing but a common-sense appreciation of his own interests, such as every man of sound mind has, to enable him to employ the simple machinery of the township system for the management of his own business. There is nothing after all but the interests of men represented in the government; and according as we take a higher or lower view of those interests - morally, intellectually, religiously, politically - and be governed by them, will the general level of our government be on a correspondingly higher or lower plane. A man's interest is not always wrong - not necessarily wrong. I say if we have a due degree of self-respect and a proper degree of self-interest, we would avoid the commission of a great many offences by the indulgence of that vice which was reproved here the other day and provision introduced in the Constitution to put it down. No, sir, no man takes a proper view of his own interests that would indulge in that way, because in seeking gratification and not looking ahead to what our real interest demands we fall into so many errors. Then I say, sir, that our people are just as competent to manage this system as any people can be. I say that setting aside a higher intelligence, greater soundness of opinion and stronger common- sense - which I claim they have in the same degree - they would still be capable, because these are matters that come home to their own business and bosoms, and there is the true test; and that is where I get my devotion to this principle of placing everything as nearly in the hands of the people as you can. Because I believe if a man has to appoint an agent he will give to that agent no more power than is necessary, but will retain the control in his own hands. So when we appoint political agents I would act on precisely the same principle; retain all I can, give only what my business or interest demands. I, sir, have been a lawyer. I think it is some thirty years since I commenced reading law; but I have not got my mind up to that point of such very profound admiration for it. I think there is considerable humbug about it anyhow. And I think sometimes the effort is, in the words of a distinguished poet, to "tangle justice in the web of law," and that it is frequently effectual. I have no wish to degrade or undervalue the profession; but because I find the intervention of law, and lawyers and courts is necessary in certain cases, I am not to be misled into the opinion that it is necessary in the simplest and plainest cases. I believe these justices of the peace are fully competent to discharge all the duties that this section proposes to impose on them. I know, sir, gentlemen tell us about this new law - about a man going into court and filing a notice and all that sort of thing. Why gentlemen, this is just one of the subterfuges from the east - one of those palliatives always intended to keep up that obnoxious institution. And when I say "obnoxious institution," I am warranted by the book. I say that in going around through the district as a candidate for the convention of 1850, I do not remember to have seen a single individual who did not say to "down that county-court system." Not a man who was for the court. The delegates were so instructed then; they are so instructed now. I did then, and am doing now, my best to effect it, sir, I have a little record of some remarks I made on that occasion and that some other gentlemen made and I propose condensing what I have to say on that head. I allude now to the course of legislation to which I have already adverted. The argument had been for the alleged measure in favor of the county court that "it would bring justice to every man's door." I asked them:
"What did your legislature do some years ago? Finding that they either did not bring enough justice or that they did not bring the right kind of justice 'to every man's door,' or for some other cause, they established the circuit courts in every county and brought justice in that way and perhaps a better kind of justice 'to every man's door.'"
Again, I remarked, sir, that these courts, except in the cases alluded to, were not to be trusted with the trial of felonies; "and why, if they are so very competent to administer public justice; if they have peculiar qualifications elevating them far above the judges of the circuit courts and placing them on a par with the judges of the Court of Appeals, why" I asked "has the legislature taken away from them the trial of felonies?"
"Take another question: the jurisdiction of the circuit courts was at first confined to controversies involving upwards of fifty dollars, but by the code which became the law about a year since it has been reduced to twenty dollars, or made concurrent with that of the county courts. Now if there was so much faith in these county courts as gentlemen would have us believe entertained throughout the community and those who represent the public opinion of that community, would the governmental majority in the legislature - a majority of eastern members have thought it necessary to bring down the jurisdiction of the circuit courts to a level with that of the county courts?"
Then I sought to instance this, that while their legislation was gradually educating the opinions of the people under these institutions, the county court were perpetuating them - and why? That whatever the county courts have been here in the west, in the eastern counties they are an institution that a certain part of that population cherish and will maintain in spite of all objections. So we found it then. But in reference, sir, to the circuit courts, I find one clause here alluding to a distinguished gentleman who was in that convention. It says: "It is proposed in the substitute submitted by the gentleman from Monongalia (Mr. Willey) to raise the jurisdiction of a single justice to fifty dollars, etc." The gentleman's proposition proposed then to raise it to fifty dollars in a specified class of cases involving rather questions of fact than of law. The reason for it, in my own language, as they were borne in on my mind at the time, were:
"As to cases involving more than twenty dollars, which it is alleged must according to the Constitution of the United States be tried by a jury, there can be no difficulty, as a magistrate will have a jury summoned and arrange to try such cases in the country."
I have cited above the gentleman from Monongalia in the convention of 1850 in aid of some plans I was endeavoring to enforce on that convention, and which I have been endeavoring to enforce on this. The proposition there was not precisely, I believe, but very nearly what it is here. I think detinue and trover were in it. Here is the proposition of the gentleman from Monongalia:
"Justices of the peace, elected as aforesaid, shall have jurisdiction of all actions of debt, detinue and trover where the value in controversy shall not exceed .............................. dollars."
Assumpsit, which afterwards we endeavored to fix at fifty dollars, was supposed to be included in "debt." So I believe it stands precisely as we have it here - assumpsit, debt, detinue and trover.
I do not wish to detain the Convention any further. I have not felt it my duty to speak altogether as chairman of the committee but also as a friend of the township system to try to present this section to the Convention in its true light. I say again I am ready to accept the judgment of the Convention on this section whether it fails or not; but if it fails it must be taken out bodily; and if no substitute of the same or similar effect is introduced in lieu of it, I shall consider that the whole township system has received a blow in its vital parts and we shall not derive from it the benefits we anticipated.
Before I sit down I should like to call attention to the comment of the member from Marshall, who I regret is not present here, who tells us about the complaints made out of doors about the enormous number of officers we were creating with this system. The gentleman from Preston told us on that occasion how many justices they had; and I find that, as far as we have got, in this report we have cut off twelve officers in the county of Preston. Things are stated just in that inconsiderate way. It is reported that we are increasing the number of officers and the expense. I apprehend in both complaints, or in the complaint as to increase of expense, it will turn out as it has in reference to the increase of officers. Instead of increasing, we have diminished the number in the county of Preston. I apprehend the same ratio may obtain to the whole expense of administration. I do not know with so much certainty what may be the comparative cost of bringing a suit for one hundred dollars; but if the suit for one hundred dollars, or any other amount, for a plain case is before the magistrate in the country, it will be this much cheaper, that this array of witnesses the gentleman conjured up, who would be as necessary in one case as in the other, will not have, in the first place so far to go and thereby the expense will be less to them. If they should even have to go as far, they will not have to go so often. The case will be decided within a reasonable time; and there will be that other saving which quick justice is worth over slow justice. In this way, while the actual plaintiff and defendant, according to their success in the case, may have more or less to pay - which is not so important - yet the general public are to be saved money by the institution of these courts and by allowing them a reasonable jurisdiction at whatever sum the Convention may choose to fix it.
I again call the attention of the Convention to the fact that the first question to be taken is on the striking out of this whole section; and the second question will arise then on limiting this jurisdiction. If the proposition of the gentleman from Doddridge to strike out is defeated the section will again be in the power of the Convention for amendment; but if there are any particular things in this as reported by the committee which gentlemen object to, as particulars, why, just defeat the motion to strike out and let us go to work and amend it as best we can. When the wisdom of this Convention has acted, I apprehend very few will be found to object to it as a whole.
MR. SOPER. I ask the indulgence of the Convention a few moments. I would not do it, but that the issue I made was voted down last night and if it is in my power to advance any idea or state a fact it will set the gentlemen of the Convention to thinking so that they will arrive at a just conclusion as to the performance of their duties in relation to this jurisdiction of justices of the peace, I shall have attained the object I have in view. I have no prejudices, sir, for or against lawyers, and I am sorry to see intimations of that kind thrown out on the part of members within this Convention. I am ready to concede, sir, and I believe the fact to be, that among the legal profession are some of the most honorable and useful men in the community, while at the same time I must confess that there are within that class individuals who are without principle, who are the worst kind of pettifoggers and who are productive of misery wherever they are so unfortunate as to fall. I attribute to that a great deal of this cry in the community against the profession of law. They are the exception to the general principle or rule. They are not the rule or the principle itself.
Now, sir, let us look at this matter as it has been presented by the gentleman who has addressed the Convention this morning. He began by saying that on promissory notes, plain claims a judgment might be attained without the intervention of lawyers. That is true, sir. There is such a provision in the Code, and I learned the other day that it originated on the part of laymen for the purpose of dispensing with the aid and assistance of the lawyers in attaining judgment. If so, sir, I concur with some gentlemen who have spoken here that whenever men who are not lawyers undertake to legislate for the purpose of diminishing their business they must inevitably fall into difficulties that have a tendency to increase it. I believe that to be true from the experience that I have had myself. But, sir, that is probably one of the subjects which, necessarily result out of this continual trying to remedy what is considered inconveniences. The gentleman from Kanawha gave a full answer to the proposition made by the gentleman who first addressed us in order to show that that attempt to get a cheap judgment on a plain promissory note, when it came into the court it was by the ingenuity of the lawyer entirely upset. Well, now, sir, the lawyer that would go against a layman on a plain promissory note is what I would call a pettifogger, unless in the first instance he had informed his client that if he honestly owed the money he ought to pay it. But I find, sir, that although you may go into Ohio and if you please Kentucky you will find your pettifoggers in justices' courts; you will find them also when you go into the county court. Why, sir, here the individual presents the plain note of land; the signature cannot be denied, unless you take advantage of few words, throw him out, put pleas of proceedings on him and compel him to go and employ a lawyer and bring a suit. I only show you, sir, that in this system of going into the circuit courts where there is the largest accumulation of cost when the citizen attempts to go there without the aid of a lawyer in a plain, palpable case and lays his note before the man, if a quibble of law is raised he is thrown out of it all, sustains a great injury, and that ought to defeat the proceeding. Now, as to the expense. One gentleman says your notice must embrace your claim and it must be served and it will cost probably fifty cents, which is the sheriff's fee, I suppose, for serving. Another says you can go yourself and collect the sum and then get an affidavit of service drawn up, I suppose costing twenty-five cents. But, sir, I start as to the expense by saying you can get it into court for less than fifty cents. Still when you appeal it there you have got to pay your fees. This is not applicable as yet to cases in justices' courts. That is a dollar; and then there is the list of your clerk's fees, and when you get your judgment on your note, you have got something like fifty. Well, now, sir, you go into a justice court and if there is no defense there you will get your judgment on that note for one dollar, embracing all the costs. But that is not the chief advantage in the matter. According to the provisions of the code you cannot get a judgment there short of sixty days. Well, now, I have got a note, if you please, of fifty or a hundred dollars against an individual and he is in embarrassed circumstances; some doubt about the security of it. How shall I get a completed judgment? If I have got to resort to the courts of record, county or circuit, under your Code of Virginia here, why I shall be thrown back at least forty days, and upwards of forty days inevitably thrown back. If I can be permitted to summon him in a justice court I can obtain my judgment if the same law is to guide as to the notice within thirty days. But I have known a party to summon a man in the morning and collect in the afternoon. I believe that to be wrong myself, but why, that is the law. I can obtain my judgment - my test copy of it - go to the county clerk's office, file it and there make it a lien on his real-estate, and if I get it through I can issue execution on it. Now, there is the advantage. The mere costs are nothing compared with the advantage that will result to the individual in getting his speedy judgment and getting it secured as it possibly can be by all the aids the law will give him.
Well, now, sir, as to litigated cases, we have heard a great deal spoken here. I admit my friend sitting before me, from Lewis, gave us excellent dissertation yesterday on the value of special pleading; but, gentlemen, special pleading has gone out of date; and I am very glad of it, for I saw the evil consequences of it. I know shrewd and astute lawyers are advocating it; but it has, in a majority of cases, I venture to say, proved injurious. I bring my suit; my friend from Lewis appears and puts in a special plea. Whether it be true or untrue makes no difference. I am called upon to put in a replication. He turns and rejoins to my replication. I am called upon again to answer another set of facts and put in a rejoinder, and then a third rejoinder and rebuttal, and all this kind of process which the special pleader understands all about. What is the result? Instead of a material issue you are met by a demurrer, or if you go to trial on that material issue you appeal and go to court. Now, sir, in trying to get rid of that, we get into other difficulties, because when we come to the learned judge on the bench. We get the most distinguished men among us, men of age and experience. But they are wedded down to the system they have always studied and they are not the greatest opponents of anything like reform that may be met; and hence, with all their learning and ingenuity on this new system and oftentimes lead off into a great deal of entanglement. Here is where the difficulty is. Not that I am going to blame; for we are so constituted that we cannot resist these biases, and predilections, favoring projects and business we have been accustomed to.
Now, sir, a good deal has been said about going to your legislature. When I first became acquainted with law in Virginia I found the jurisdiction of justices amount to twenty dollars. Well, it was but a short time before it was raised to thirty; and then again it was raised to fifty. Now, what does this show? Why, that in the minds of the community there is an unsettled feeling on this subject and desire to increase the jurisdiction of justices of the peace. Now I learned here that the committee adopting the amount established by the Legislature of Virginia had fixed this amount at fifty dollars and that the present legislature had increased it to one hundred dollars, showing this feeling is yet influencing the community.
MR. WILLEY. Will the gentleman allow me to ask him whether that is the only legislation in regard to the subject? As the jurisdiction has been extended, has not also, what I conceive to be absolutely necessary appendant to it, the right of the party, if he sees proper, to have it certified to the court?
MR. SOPER. I suppose that portion of it has not been changed; and it is this, sir, that where a party comes before a magistrate with a claim exceeding twenty dollars has a right to direct that to be certified to the county court for trial. That undoubtedly is the provision.
MR. WILLEY. This constitutional proposition makes no such provision.
MR. SOPER. We are not through yet with it and the legislature will direct the mode of proceedings, I apprehend, under it.
Now, sir, about leaving this thing to the legislature. When I first became acquainted with the law on this subject in Virginia, it was as the gentleman from Wood has informed us the jurisdiction of justices of the peace was confined, as we find it in the report Of the Committee on the Judiciary to actions of debt, detinue and trover. There is where they were confined. I do not wish now to go in to show what I have discovered as denials of justice under the exercise of this jurisdiction by the action and conduct of magistrates. I would not, on this account, were I ever so opposed to this section, I would not leave this matter to the legislature. Let me call your attention to what the Code now is as to the jurisdiction of justices of the peace, not what it was ten years ago. It is this: I beg gentlemen to take notice and particularly this: we combatted the proposition as to the danger resulting from putting the action of trespass in your report here. Now, sir, it is this: "Any claim to property," first. The justices shall have jurisdiction as to any claim to property. Now, I ask legal gentlemen whether that claim to property, unqualified, does not extend to real estate as well as personal? Real estate is property; personal goods is property; money is property. And there is the expression: "Any claim to property," the value of which does not exceed fifty dollars the justice is given jurisdiction to try. Now, sir, will not that embrace all the actions of trespass you can possibly imagine? Now, further included after property: "or to any debt"; "fines limited to twenty dollars." Now, you will take those general expressions, and what would they not embrace? First, all controversies about property; second, all cases of debt; third, all cases of fines; and lastly, as if there should be anything indefinite, "any other claim for money." Now, if that is the kind of legislation we are to have at the hands of our legislature, I humbly submit to this Convention that they ought to be tied down within certain bounds over which they should not go, for the safety and protection of the rights of the citizens. Now, gentlemen suppose this proceeding before magistrates. Gentlemen talk here as if it is to be a kind of wrestling match, a kind of lottery. Why, that is not so, gentlemen. If your legislature do their duty, it will prescribe a course like this: a summons shall be issued returnable at a certain hour in the day - not returnable on a day. A man may come early in the morning and have to remain till night. He may come in the middle of the day and be told that judgment has been rendered against him and the next news will be a justice away and a constable coming with an execution. But they are now returnable on a day; and I have known men waiting all day, running around to try to find the magistrate. Now, I would do this: I would have, by legislative provision, the summons made returnable at a particular place, at a particular hour; and then I would make a provision giving the parties one hour to appear, so that they would understand it and come at the time.
I am for having the jurisdiction of the magistrate not exceeding one hundred dollars, including the interest to be added to the principal and made part of the debt. The legislature can reduce it whenever they please. They may say in litigated cases the magistrate shall not try a case exceeding twenty dollars, or fifty dollars. The legislature will have the whole control over it to rectify any evils that may arise.
MR. HERVEY. Where does the gentleman find the authority for the opinion that the legislature may reduce the jurisdiction as to amount?
MR. SOPER. Why, whenever you qualify by the word "not exceeding." If you simply said it should be one hundred dollars, the legislature could not reduce it; but if you say "not exceeding" a hundred dollars, they are at liberty to make it any amount from one hundred dollars down.
I see the hour of our adjournment draws nigh, and I will not detain the Convention any longer. I have hastily called the attention of the Convention to what I suppose some of the leading considerations in this matter which, so far as I am concerned have satisfied me that I should vote against this motion to strike out, at all events until we get our report completed; and then, when we can look at it as a whole and cannot fix it to suit a majority of the Convention, they must dispose of it as they in their wisdom see fit, and I shall be satisfied. I agree with the chairman of the committee that the friends of the report should be allowed to amend it and put in acceptable shape if they can do it.
MR. STUART of Doddridge. I do not wonder that these gentlemen desire to go into detail, because they are most felicitous in detail; but if we are going into these details, I desire to know and we will move our families here, for we shall be here for the next three years. That is one reason I submitted the motion I did to strike out. But if the Convention overrides that motion and insists that we shall go into these details as indicated by the gentleman from Tyler and I have got to discuss the details, which would be proper for legislation, I want to bring my family here and stay here twelve months at least.
MR. WILLEY. Would it suit the views of the gentleman from Doddridge to modify his motion so as to make it applicable only to matters of jurisdiction and leave the township arrangement as it is? My only objection in point of fact is to the jurisdiction of the justices as to how they shall operate, or within what limits.
MR. STUART of Doddridge. As to their territorial privileges I do not want to interfere with it at all but only in fixing the jurisdiction of the justices of the peace; and if the gentleman from Monongalia would indicate what amendment he would desire to propose, I would certainly agree to it, because that meets my views exactly.
MR. HERVEY. I hope the question will not be pressed, but that every member on this floor will have due courtesy extended to him. I hope the question will not be pressed.
MR. WILLEY. So far as I am concerned, I am very willing to allow the friends of the measure to perfect it to the full extent. That is the ordinary mode. But at present we have to abide by the motion as it stands. It would suit me, and seems to suit the gentleman from Doddridge also if his proposition could be so modified as to make it have reference only to matters of jurisdiction given to the justice. I confess in looking at this section it seems to me they have jurisdiction here to any amount, ten thousand dollars to fifty thousand dollars. It is only in cases of appeal; where the matter is over fifty dollars, subject to appeal. As to the amount of the jurisdiction, I cannot see that there is any objection to it.
MR. VAN WINKLE. It is intended, at any rate, to be subject to appeal in all cases to the circuit court.
MR. WILLEY. Be that as it may, I would like, if the motion is to be pressed by the gentleman from Doddridge, meeting his concurrence, that it be confined entirely to matters of jurisdiction and not to the residue of the section, territorial authority and so forth. To that I have no objection at all. If it be necessary to the township system it ought to be there. I have not had the benefit of the discussion at all and have no opinion upon it; but I have confidence in those who have. My only objection to this section is to giving these matters of jurisdiction to justices. How and within what limits he should exercise whatever authority may be given to him is not the matter of objection to me. I will just add a word of personal explanation. I had hoped that the recollection of my friend from Wood would have relieved him in his quotations from me in reference to my position in the convention of 1850, to have mentioned to this body that I had nothing to do with that report as he very well knows. He was called very suddenly to the legislature on the day of the passage of the Northwestern Virginia Railroad Bill, as a lobby member, I believe there, and entrusted to me his own production - his own offspring entirely. He will remember that I took good charge of it, nursed it well, had it baptised in the convention and even gave it the name as the records of the debates will show, as having been propounded by the gentleman from Wood (Merriment). Although I so offered it myself, it went on the record as the proposition of the gentleman from Monongalia.
The hour having arrived, the Convention took a recess. .
The Convention reassembled at the appointed hour.
Mr. Dering rose to a point of order, that Mr. Willey's proposed amendment was not in order.
MR. POMEROY. I think the section can be amended after the vote is taken. We are certainly prepared to take the vote on the question before us, and then any other amendments will be in order.
MR. STUART of Doddridge. I merely desire to accommodate myself to the views and wishes of the gentleman's colleague here. It is not very material to me, because I can vote here intelligently on the question now before this body.
MR. HERVEY. If I understand the question before the house, it is this: I believe the motion of the gentleman from Doddridge was an amendment -
MR. POMEROY. A substitute.
MR. HERVEY. It seems to me perfectly competent to offer an amendment to that amendment.
THE PRESIDENT. The Chair would be disposed to change its opinion. The Chair is of opinion that time would be saved very much by allowing a modification and would be glad to see the Convention adopt a course in all its proceedings that would effect a saving of time.
MR. DERING. I think we would save time by taking a vote, and if the gentleman afterwards wishes to submit any modifications and substitutes it would of course be competent to do so but not at this stage of the proceeding.
THE PRESIDENT. The question is on the substitute.
MR. STUART of Doddridge. I do not intend to argue this question or detain the Convention. I desire to say that it does seem to me that the gentleman from Wood is trying to get up what I call a false issue, trying to impress on. the minds of this body that we who are friendly to striking this section out are making war on the townships. I know the gentleman takes it considerably to heart; it is quite a pet of his, and I must assure him that I am not making war on the township principle. I desire to see it perfected as much as possible. But I understand these townships are in various states here - neighboring states and that the very provision I propose to insert is in the constitutions of those states which have these townships. Consequently, sir, it cannot be asserted we are making war on the townships and that we are seeking to destroy this report. That is not my intention; but I think that section ought to be stricken out and the powers and duties of these justices should be prescribed by law, as it has been in our state heretofore and as it is in nearly all the states of the Union. That is my understanding. I do not want to get up a false issue trying to impress the members of this body that we are making war on the principle. Now, sirs, I do not see that I am either committed or non-committed to this provision of townships, but I may be permitted to say, as I said in regard to the law, that it was considerable of a humbug in many instances; and I really am inclined to think this system is a considerable humbug, but it may do all right. I am willing to investigate it; but I just return the allusion of the gentleman back and give it as my opinion that it is right smart of a humbug. But so far I have not objected to it, and the object of this amendment is not seeking to destroy that provision of the report - not in the least. My only object in offering to strike out was to reach the jurisdiction of the justices as fixed in this section. I had no intention of reaching anything else; and I think the question to be decided could fairly come up and we could take it first on the striking out and then, if the Convention was in favor of striking out, we could put in its place whatever you please. I hope this body will not think so badly of the lawyers as they have heretofore. Some of them are honest. We have found one honest lawyer at least - that is the gentleman from Tyler. He when clients come to him thought the lawyer ought to investigate whether they owed the debt, and if he did told him to go and pay it. I must admit that I cannot plead guilty to the charge of being an honest lawyer, because when my friend comes to me and says his neighbor is seeking to get a judgment against him and if he obtains the judgment it will be a great injury to his property - that he wants delay - I do not believe there is a lawyer in this broad land that will not seek any remedy he can to get the delay desired.
Now, sir, let me say, in corroboration of the statement of the gentleman from Kanawha, that the law as it now stands gives the justice of the peace jurisdiction to sums of one hundred dollars. That bill was passed, not at this session but at our last session. That bill was framed by myself. Now, I must say that I am not opposed to the jurisdiction of justices of the peace even to a hundred dollars, for I went for it. I am in favor of it now, but I do not want them to put a< provision in our Constitution which is unalterable and gives justices of the peace exclusive jurisdiction of plain matters. Where there can be no question of law arise, I do not know but the justice might have jurisdiction even exceeding that amount, but I do not want to force a man to go before a justice of the peace to seek a remedy there for unliquidated damages and on questions of law, the facts to be determined by that justice, because even the law as it existed prior to this last session of the legislature gave jurisdiction of fifty dollars. Well, sir, even then, in nine cases out of ten, parties never brought their cases before justices of the peace.
MR. VAN WINKLE. It was not the intention to exclude the concurrent jurisdiction. The committee thought that would be fixed by the report of the judiciary committee in the jurisdiction of the circuit court.
MR. STUART of Doddridge. Please your Honor, sir, we have to take things as we find them. You may adopt this and may not adopt something else, and if there is anything here objectionable, we ought to correct it at once, because we may adopt it and it may not thereafter be altered. You want me to accept a thing I am utterly opposed to from the fact that hereafter, at some future time, we will modify it. Then, sir, I say that in nine cases out of ten, even the jurisdiction extended to only fifty dollars, the parties, where question of law and fact arose, never brought their suits before justices of the peace, and if they did it was always done in such form that the party who brought the action when he got up to court was the sufferer. He was thrown out for some informality. Now, this section here gives the right of appeal; but let me illustrate how it will operate against even plaintiffs who bring these actions. The party comes to the justice of the peace and gets his warrant, and say the amount involved is fifty dollars, in action of assumpsit. The defendant goes to a lawyer, as lawyers heretofore have been called in. I have often been counsel and desired to go before a justice of the peace. I say, no, sir; it is not necessary to go there; that this justice of the peace is not acquainted with the law and that facts that should control this case, and I am not willing to act where there cannot be a proper investigation and understanding. Well, sir, I would tell him, you have the right to appeal, and if they will carry this thing on go before the justice and take an appeal, and we will always reverse it in the appellate court. I believe I never failed in my life, because there was always some informality. Upon an appeal the case is heard de novo before the appellate court. They do not investigate the facts brought before the justice in the country, but as though it never had been heard. They hear the testimony and the judge renders such a judgment as the justice should have rendered. He either confirms or renders such a judgment as should have been rendered. Well sir, if the defendants make no defense before the justice, all they have to do is to reverse the judgment below. But then there is that below, and he has to pay all the costs of that suit. I would say to my client who wanted time, I will counsel you to make no defense; let the gentleman take his appeal and then come in and make his defense and reduce his judgment and you will have just as much time as you want, and make the plaintiff pay the costs. Unless the gentleman from Tyler will go into details and legislate, you will have to leave these things to the legislature.
These are my views on this question. I do not desire to detain the body, for they have been detained too long, and the arguments of the two gentlemen who have spoken on this subject are conclusive and satisfactory to my mind.
MR. SOPER. The gentleman made rather a personal allusion. I do not profess to be more honest than my neighbors; but in the course of my profession, when quite a young man, I happened to be in attendance at a county circuit where there were some very distinguished gentlemen of the bar, and among the rest Gen. James Talmage. I recollect hearing him remark that he had a client for whom he put off his cause, that is twice from two circuits. He came to him and wanted him to put it off again on another time. This had to be done on an affidavit of facts. The General said to him: "you cannot put off this cause; there is no ground for it." The General recapitulated the facts and told him the truth of the matter was he could not get it. "Well," says the man to him, "Gen. Talmage, you sit down and write like a lawyer and I will swear like a man." The General told him to go and employ another man, and he had to employ another counsel. I suppose my friend's clients were of that description: He wrote like a lawyer and they swore like a man!
MR. DERING. I know the Convention is wearied with this debate. It has been long and elaborately discussed and I do not expect to add any light in the present discussion by the few remarks I shall submit on the present occasion. But it seems to me that the gentleman from Doddridge has left it, for when I offered my proposition I inferred from what he said that he was with me; and I know very well from the remarks made by the gentleman heretofore on other questions that he is one of the people's men. Now I ask him to co-operate with us in benefiting the people by giving us this extended jurisdiction. But I do not rise to object to the modification my colleague wishes to substitute for the purpose of being captious at all; but I am very well aware of the ingenuity and eloquence of my colleague; I am very well aware that his substitute may kill this whole thing, and we would then be deprived of having the benefit of a vote on the pending proposition. Now, sir, it is singular that the gentlemen around us will make so many objections to the extension of the jurisdiction. Because this is the main point at issue, after all. That is the point to which my colleague objects and the gentleman from Doddridge objects.
MR. WILLEY. I am not making one particle of objection to the extent of the jurisdiction. Not from the beginning. I say it ought not to be in the Constitution.
MR. DERING. Now the gentleman, my colleague, said this morning - and I always pay great deference to his opinions - I know, sir, that he knows better about these matters than I do - my colleague, sir, meaningly said that this Convention had not all the wisdom of the world. That fact is patent to us all; and I am willing to acknowledge here that I am one of the humblest members of this Convention, to acknowledge my poverty in wisdom; but, sir, we are all the representatives of the sovereign people of West Virginia, and we have to stand up and answer our constituents on our individual responsibilities, and we are to them responsible for the course we shall take. I do not doubt the pureness of motive and the honesty of my colleague. Not for a moment. I have known him too long and well to entertain any doubt about the purity of his motives or the honesty of his intentions. I have the most unlimited confidence in his integrity and intelligence; and, sir, when he draws upon this fact to say that this Convention should not extend the jurisdiction of magistrates: I hold it is an impeachment of the intelligence of the community, the legislature or any other body of men that may assemble in this country. Why, sir, the legislature of Virginia has adopted, as the gentleman from Doddridge tells us, the doctrine that magistrates shall have jurisdiction up to one hundred dollars. We have endorsed that action and assented to fixing it permanently in the Constitution, that the people of West Virginia may see that that is to be one of the permanent regulations. The Legislature of Ohio also has endorsed this action. They have extended jurisdiction to that amount and perhaps more. It is prescribed by law. The legislature of Pennsylvania, New York, and, indeed, almost the whole number of the free states of this Union have adopted this matter of extending the jurisdiction of magistrates up to that amount, and some of them still more. Then this Convention has the endorsement not only of our own legislature but of Ohio, Pennsylvania, New York and all the various states coming in and endorsing us in fixing permanently in our organic law the clauses that will fix this for all time to come. Let us then follow in the wake of these distinguished gentlemen in the various state legislatures. Let us carry out this project, and I am sure from what my colleague says he will not object to it. It is true he and other gentlemen object that this thing of extending the jurisdiction of magistrates to one hundred dollars is carrying out in detail in the Constitution matters that had better be left to the legislature. Let me put an estoppel entirely on this whole doctrine of legislative detail in the Constitution. The gentleman from Ohio, who is not now in his seat, offered an amendment which was adopted by this Convention to the report of the Committee on the Legislative Department authorizing the legislature of West Virginia in all time to come to amend this Constitution when they in their wisdom saw proper to submit amendments to the people for ratification. Why, sir, did not that put an estoppel on this whole doctrine that this is a fixed fact when it is once in the Constitution under no circumstances can we change it? I admit we may not have to change it until we have another convention. It comes precisely within the provisions of the very legislative body that the gentleman asks it to be referred to. Whenever under the operation of this system it is found to work badly - whenever the people get tired of its workings, why then they will instruct their delegates in the general assembly to submit amendments, and it can be done. That is the complete estoppel to the doctrine that this thing will be fixed irrevocably for all time until we assemble another convention. The judiciary, of which my colleague is a member ha^ brought in a report, part of it drawn up by him, contains a clause that goes as fully into details as this for justices of the peace. Listen for a moment to the reading of the 7th section of the judiciary report and see if that does not go into details in reference to that branch of the judiciary as much as ours does in reference to the justices.
"Section 7. The Supreme Court of Appeals shall have appellate jurisdiction only, except in cases of habeas corpus, mandamus and prohibition. It shall have no jurisdiction in civil cases when the matter in controversy, exclusive of costs, is less in value or amount than two hundred dollars, except in controversies concerning the title or boundaries of land, the probate of will, the apportionment or qualification of a personal representative, guardian, committee or curator; or concerning a mill, road, way, ferry or landing, or the right of a corporation or a county to levy tolls or taxes; and except in cases of habeas corpus, mandamus and prohibition, and cases involving freedom, or the constitutionality of a law."
There is detail, gentlemen, that goes into the whole system of our legislation. That enters into the whole system and policy of this government. Why, sir, it is a bill almost as long as my hand of details; and yet the gentleman is excepting to details in reference to justices of the peace. It seems to me, sir, that if they would be a little more consistent they would not object to this little necessary detail in reference to magistrates. Sir, the intelligence of the Convention can very well see that we are consistent in this and that we are only following it in the lead of the distinguished gentlemen who have introduced the judiciary report into our midst. I am in favor, sir, of giving the people the right to go before the magistrates with all their small debts and of controverting there and not being put to the trouble of riding to their county towns and consulting lawyers and being involved in long tedious lawsuits for the purpose of protecting their rights. I am in favor of bringing justice right to their doors and making it as cheap as possible and of giving it to them in the most speedy manner possible. I hold, sir, that in giving magistrates jurisdiction to one hundred dollars you are accomplishing all this. You make justice cheaper and make it speedier and bring it right to the doors of your fellow-citizens in the various townships. Why, sir, we have had a signal illustration here to-day of what befalls a man when he goes into court. He goes to his counsel, who in most cases tells him his case is a good one. His adversary goes to another and these counsel go before the court and get the case so mixed up and so much dust thrown in the eyes. of the jurors that they do not know which is right and which is wrong. A justice of the peace is selected for his intelligence and his integrity and desire to promote the ends of justice. In ninety-nine cases out of a hundred he will decide the case so that all parties will be satisfied. And then, further, if he thinks he has been aggrieved by the magistrate he can take an appeal to the circuit court, there to try whether he can get justice or not. I hope we shall yet have the vote of the gentleman from Doddridge, and I shall not despair of my colleague that he will yet be found voting with us for the extension of the jurisdiction of magistrates. And I trust that this Convention will weigh well the proposition before them. I rely on the intelligence of this Convention to look at the question and vote on the proposition as it shall be presented to them after a little. If you, gentlemen, vote for this proposition you strike down one of the most important sections of this report of the Committee on County Organization. If you strike this out you may as well strike out the whole organization, for upon this, in my opinion, much does it depend. And I think it will be a test vote as to the sentiments of this Convention in reference to the county organization presented by the gentleman from Wood. I trust, sir, that we are all in favor of giving the people justice cheap and of putting it as close to them as possible, and making it as speedy as possible. Let that be our motto. Let us look straight at this question and not be drawn aside by side issues. I know the legal gentlemen have great advantage of us; but I look to the bar to help promote the ends of justice. As I stated on this floor nine-tenths of the people of Monongalia county and of West Virginia are in favor of extending the jurisdiction of magistrates to one hundred dollars. As the gentleman from Wood says, this jurisdiction is concurrent with the courts. The distinguished gentlemen who have been opposing us, I hope with that assurance from the gentleman who drew up this report, we will have their concurrence and support in extending this jurisdiction to that amount.
MR. HAGAR. It does seem to me there has been a great deal of unnecessary argument. The whole strength of it seems to have been with regard to the extension of the jurisdiction of magistrates. I understand it is in reference to the amendment of the gentleman from Doddridge. Now if so, all this is almost lost. There will be another time that this may be discussed to the satisfaction of the people. It is like my friend that has just spoken said in reference to cases that come before the juries when we have the most celebrated lawyers. They will talk back and fore until they get the jurors confused until themselves cannot decide.
By and by the question will be taken on this amendment, and after it is voted down the extension of the jurisdiction will come out in its proper place.
MR. SIMMONS. I call for the yeas and nays.
MR. HALL of Marion. I was unfortunate in not getting a recognition from the Chair.
THE PRESIDENT. With leave of the house.
MR. HALL of Marion. If the President please, I desire in future to exercise my rights here without "leave of the house"; and if I am told I am out of order, however much I desire to speak I will not avail myself of that kind of leave.
MR. VAN WINKLE. The question is open to discussion until the negative is called.
MR. HALL of Marion. I had not intended to say anything on this question. I do not design now to make a speech but to refer to one or two points in this matter that strike me that in the labored and lengthy arguments we have had - the very able arguments - have not struck me as being brought to the attention of the Convention - or, rather if brought to their attention, this, as suggested by the gentleman from Doddridge, has been most effectually smothered, covered and concealed. I concur with the gentleman from Boone in the idea that an immense amount, a large portion, of the argument on this question has certainly been aside from the question at issue. I understand the question to be simply whether we shall fix this matter in the Convention or whether we shall leave it to be fixed by the legislature. If I apprehend this question after the debate we have had, that is the question. It occurs to me, sir, that in that view of the case, unless we knew that the legislature would not fix the jurisdiction as contended and desired upon one thing or the other, there is no force in any argument on that question whatever. That the question rests upon this principally; whether it is judicious, whether it is wise, whether it is necessary and proper, that we shall fix this thing in the Constitution. And by that means turmoil arises without reference to what may be its practical workings; or whether we shall allow the legislature, who I presume will know something about the will and wishes of the people on this question, when they find its practical workings inefficient to unfix and rearrange this question. The latter is what I desire to do for that reason. Unless we are to sit here from twelve to twenty-four months filling in every sort of matter we can imagine, and close up by adding to that a code of Virginia or Congressional Globe, and a London Punch, I say unless we do that it is absolutely nonsensical for us to attempt to go into these details. If we cannot trust the legislature, let us abolish it. All power is in us - and all wisdom if we are to judge and estimate ourselves by our acts on a preceding occasion. And therefore why not incorporate all these things and abolish the legislature and tell the people we have legislated for them down to all time? There is no use of having this assembly of silly persons come here and talk about what we have done when we have legislated them through, if they have come right from the people. The gentleman from Monongalia says that his colleague knows more about this than he does, and yet he fights him with all the pluck and courage possible and leaves him no loophole to get out.
MR. DERING. I beg your pardon -
MR. HALL of Marion. It is a deduction. I know he does not feel it in his heart, and he is driven from that point and he cannot avoid it.
MR. DERING. It is not a fair deduction.
MR. HALL of Marion. When he admits the one fact, he is bound to follow or be driven to take hold of either of the horns of the dilemma. But he says there is no objection to incorporating everything in the Constitution because you can change it whenever you please. You don't have to come in a convention; and yet the statement is made in another quarter that it is very important to incorporate it in the Constitution to have it fixed so it shall not be changed. But if you incorporate it in the Constitution it is not fixed. It does leave it to shuffle and deal, as I would term it. Now, in the name of conscience, what do you want to incorporate it for, unless it is to give this useless body something to quibble about? Nothing else could grow out of it. Fix it permanent, and don't fix it permanent. Because you have provided it so the legislature can change and unchange it. Well, now, there is no objection to this, for whatever they do you will have to harass the people from time to time; and you will present the Code, and the Congressional Globe, and whatever else we can rake up, in about a year, to the people to vote on. All the amendments can fight on them ad infinitum. Our people are tired of these things. They want regularity in this matter; and when they enter on a new matter, they want things so arranged that without harassing the people they can correct these evils.
It is said this 7th section is not designed to limit or prevent the jurisdiction of the circuit court; that it may be concurrent. Now, I care not what you make the jurisdiction of a justice. I am a lawyer - that is, a sort of a lawyer - an apology for one. But I am not yet such a hungry one as to be under the necessity of making any litigation; but if I were, I would vote for this proposition. I claim to know something about the practical workings of like propositions; and I think there is a concurrent testimony of everybody who has had any opportunity of knowing. The gentleman from Monongalia says he has no knowledge of these things, but we know he has such knowledge as his every-day business gives.
MR. DERING. Why do not they repeal the laws in the various states where they have tried it for a long series of years?
MR. HALL of Marion. I understand that under the Pennsylvania law they have concurrent jurisdiction. I apprehend, however, whilst they have the extension of jurisdiction, they have a provision that remedies it; and I have not heard anybody objecting to the jurisdiction; I do not care if you extend the jurisdiction of a justice to ten thousand dollars, and I am one of those who will vote to extend it to fifty thousand if you will not compel people to use the inefficient tribunal and will leave them to elect. We are told this section does not prevent jurisdiction of the court. I do not know what the intention was, but evidently the section does. And it does more. I believe the gentleman from Monongalia (Willey) referred to the fact by way of a question; and I have looked at the thing and I think it will bear but one construction and that is that this section gives the court no jurisdiction, excludes all other jurisdiction, opens up the way to abolish all other courts. Not only so, but it provides that if the amount in controversy does not exceed fifty dollars you may have an appeal, but if it does, there is no appeal. That is, if you get enough in the controversy before the justice, he cannot err; or if he does, it must remain so. The section, I am satisfied, was intended otherwise and might be so modified.
MR. VAN WINKLE. The report of the judiciary committee, as I understand it, says that they shall have such jurisdiction as the legislature gives them. I will say that they should have jurisdiction down to fifty or twenty dollars or any other sum. But the report says they shall have such jurisdiction as the legislature bestows on them. The fact is the very forbearance of the Committee on County Organization until they learned the Committee on the Judiciary would not report according to their wishes, in leaving it to them, ought to be commended instead of found fault with.
MR. HALL of Marion. I do not design to find fault, because, as I before said, I know what the intention was, and whether it is here by a misapprehension or not I do not undertake to say. But I do undertake to say this, that if you give absolutely to the justices of the peace jurisdiction to the amount of a hundred dollars and provide elsewhere that the jurisdiction of the courts shall be such as the legislature may prescribe you have excluded them from prescribing anything below that amount. And whilst they look at one part of the Constitution, which says they shall have such jurisdiction as may be prescribed by law, you say in another that all jurisdiction to a certain amount shall be given somewhere else. Then you have placed it in the Constitution beyond the power of the legislature to prescribe anything below that amount. Now, so far as jurisdiction, whenever parties have their election to go before a justice or into court as heretofore, I have no objection whatever. The people can then be accommodated; they will have two tribunals, and whichever is the more efficient is the one they will prefer. And each party has a chance, because if one brings his suit before a justice the other may carry it to the court. It can work no injury, and I do not care what the amount is. But what I do object to is this: I do object to go into all this legislation. If we do it in this case, we are to do it always, everywhere. I trust if we are to have a standing constitutional convention, as suggested, that we will not go to work now to make business for it, to annoy our people every time they are to vote on any question by requiring them to vote on amendments to the Constitution.
I have heard some such expression as a "people's man," used in this Convention. The people's man! I cannot comprehend just what is meant by that. I trust we are going to do our duty here in the exercise of the best wisdom and discretion we can bring to bear, looking to the interests of the people without pandering, without crouching or hunting about for what may be supposed to be the popular whim or idea. If we do not, I think our production will not be worthy of the body. That may not be the idea. It may be looking to the interests of the people. Now, if that be the idea I would place that construction on it. We can best subserve the interests of the people by leaving it to each man to elect and determine which tribunal he will take; and when you do that I care nothing about this question about jurisdiction. Because I think it would be destructive of the peace, prosperity and harmony of every community in which you would find the justices. These little vexatious squabbles would arise between neighbors; actions before the justice of the peace; some man has slandered another; some man has assaulted another; or they have got up some little squabble or something. And if, as the idea is here, we must carry the remedy to every man and tender to him - as it were, to his own door - the effect of that will be to encourage and get up these cases to the destruction of the peace, prosperity and best interests of the people in every community; to overload all your courts by appeals taken from the action of the justices. Now, that will be the effect of it. I would not encourage that thing. I heard gentlemen here argue, on the question of the formation of new counties, they were opposed to that thing; and that argument was used because they said it was establishing a court-house, places to hold your court all over the country and making it so convenient to people that you increased litigation. Well, there is some force in that argument. But when you carry justice around to every man's door - come, go now and pitch into your neighbor while you are mad; do not give him time to get cool; and once he begins he will follow it up to the last. The great object then is the victory, and he will expend any amount of money, create any amount of destruction, any amount of ill feeling; and as I have suggested, the thing will almost invariably get to your circuit court or whatever court you may have. That would be inevitably so. Whilst there are some things that I would not wish to see brought before a justice at all, yet upon plain actions in mere matters of debt or those summary questions of a claim of one man against another, I see no evil that could arise from giving the justice concurrent jurisdiction, by giving whatever jurisdiction any gentleman may desire in the premises.
I trust it may be the pleasure of the Convention to strike out this section and leave all this, as proposed by this amendment, to the legislature. The legislature, after this Constitution goes before the people, will be sent here by the people; and I presume they will send men who will represent their interests; and they will be more likely to know their interest than even this body on that question; because it is a fact that will be admitted that we come here without knowing the opinions of our people on many of the questions that come before us in this Convention. And whilst that is the fact, and whilst we have a legislature - which I believe it is contemplated we will have - I see no reason for distrusting their wisdom or to conclude that they will not represent the interests of the people. Because if there is an apprehension that the country is to be eaten up with lawyers, why, I would say as some one else suggested that you cannot do without them, they will be there in spite of you, yet you may send other men here - keep them all out - and they will be enabled, coming right from the people, to know the practical workings and operations of these things; and wherever it is oppressive they will correct that thing through the regular rigmarole of constitutional amendment which has to be voted on by the people. I therefore trust that it may be the pleasure of the Convention to leave this matter as the section read by the gentleman from Monongalia as incorporated in the report of the judiciary committee, that the jurisdiction of justices shall be such as shall be prescribed by law.
MR. BROWN of Preston. I do not desire that gentlemen of the Convention shall be alarmed. I do not intend to make a speech; but I am a little in the fog this morning. I knew pretty clearly what was before the Convention, but the clouds have been gathering since; and I rise to ask the Chair to state the precise question before the house.
The Secretary reported: Mr. Dering moved to strike out "fifty" and insert "one hundred;" Mr. Stuart of Doddridge moved to strike out the whole 7th section; the Chair ruled that the latter motion was in the nature of a substitute. The question is on the substitute offered by Mr. Stuart.
MR. STUART of Doddridge. We had better have a division of the question - first on striking out. I expect the house desires such a vote. I know some members do. I ask to divide the question.
The vote was taken on striking out the section and the motion was rejected by the following vote:
YEAS - Messrs. John Hall (President), Brown of Preston, Dille, Hall of Marion, Harrison, Hervey, Irvine, McCutchen, Parker, Stuart of Doddridge, Smith, Taylor, Willey - 13.
NAYS - Messrs. Brumfield, Battelle, Chapman, Cook, Dering, Hansley, Haymond, Hoback, Hagar, Montague, O'Brien, Parsons, Powell, Pomeroy, Robinson, Sinsel, Simmons, Stevenson of Wood, Stewart of Wirt, Sheets, Soper, Trainer, Van Winkle, Walker, Warder, Wilson - - 26.
The question recurred on the motion of Mr. Dering, to increase the amount of a justice's jurisdiction from fifty dollars to one hundred, and the motion was agreed to.
The question recurred on the first sentence of the section as amended.
MR. WILLEY. Mr. President, as I understand that clause, sir, its proper grammatical interpretation is that it gives unlimited jurisdiction to justices of the peace. There is this extraordinary fact connected with it, that while it gives justices of the peace a jurisdiction to any amount - a hundred thousand dollars - it does not allow an appeal from his judgment where the amount is over one hundred dollars. It gives him jurisdiction to any amount, where the value may be a hundred thousand dollars and yet does not allow an appeal from his judgment where the amount in value is over one hundred dollars. It reads: "The civil jurisdiction of a justice of the peace shall embrace all actions of assumpsit, debt, detinue, and trover, where the defendants reside, or being a new resident of the State, is found, within his township, or where the cause of action arose therein, when the value in controversy, exclusive of interest, does not exceed one hundred dollars, subject to an appeal to the circuit court of the county, &c." It gives him all jurisdiction. It abolishes courts. There is no use for a court. The argument of the gentleman from Marion just now is a conclusive one, that where you give positive jurisdiction to one tribunal in the Constitution, with a clause giving authority to the legislature to fix the jurisdiction of another, prescribed by law, it cannot come within the limits of the jurisdiction absolutely prescribed in the Constitution to another tribunal. Then, sir, you give to justices of the peace all jurisdiction of assumpsit, debt, detinue and trover with no rightful appeal where the amount is over a hundred dollars.
MR. VAN WINKLE. The defect here is a very slight one. The language is liable to that interpretation. It only wants the word "but" previous to the word "subject." That would remove any such inference, I suppose. "Subject, however," - that would be better still. It is very likely the word has been in. I will move to insert the word "however" after "subject," in the 93rd line.
MR. WILLEY. It seems to me if you would strike out the word "and" in the 92nd line, it might do it. "The civil jurisdiction of a justice of the peace shall embrace all actions of assumpsit, debt, detinue and trover, where the defendant resides, or, being a new resident of the State, is found, within his township, or where the cause of action arose therein" - now there is a statement. Then you have a copulative conjunction, going on and making another proposition: "and when the controversy, exclusive of interest, does not exceed one hundred dollars, subject to an appeal to the circuit court of the county." It says "when the value" (in all these actions, of course,) does not exceed $100, you can appeal; but if it is $1000 you have no right of appeal at all.
MR. VAN WINKLE. It says "when" in one case, "where" in the others. I am satisfied one might have been mistaken for the other by the printer. But I am satisfied I wrote "when." This can be changed, too, by the Committee on Revision. I would ask, then, to strike out "all" before "actions" in the 89th line and insert "however" after "subject" in the 93rd line. But if it leaves it in doubt, I would prefer the doubt should be removed.
MR. WILLEY. The main objection I urged is that if this section stands as it is, the legislature cannot in actions of assump- sit, debt, detinue and trover, confer any jurisdiction on the circuit courts at all. For this shows the justice's jurisdictions shall embrace "all actions." Having given jurisdiction in express terms to one tribunal, the question is whether the legislature has any authority to give jurisdiction to another power.
MR. VAN WINKLE. There can be no doubt if we put it in the Constitution, because one part of the Constitution is as strong as another. But it would further remove the objection to say "extend to" instead of "embrace all."
MR. HERVEY. I move to strike out "detinue and trover," in the 89th and 90th lines.
MR. SOPER. I offer an amendment, sir, that will embrace the gentleman's, if it is in order to put it in.
The Secretary read:
"The jurisdiction and duties of a justice of the peace in civil actions, and especially cases wherein the amount claimed does not exceed one hundred dollars, shall be regulated by law, to be exercised within the township in which the justice resides and the defendant is found or the cause of action arose."
THE PRESIDENT. The Chair would remark that the proposition of the member from Tyler, from its very nature, would not be an amendment to the motion made by the member from Brooke. The question will first be on the latter.
Mr. Hervey's motion was rejected.
MR. SOPER. I would like to offer that amendment because I want to have this matter as satisfactory as we can to all the gentlemen, and by the adoption of this amendment we will retain the details.
MR. VAN WINKLE. Is that to be an addition to the section? It sounds like a substitute for the whole of it.
MR. SOPER. It is only for the first three or four lines.
MR. VAN WINKLE. The house have refused to strike out.
THE PRESIDING OFFICER (Hall of Marion). A motion would be in order to strike out a part of the section.
MR. SOPER. Strike out to the word "dollars" in the 93rd line and insert my amendment. If this amendment is adopted it will save the necessity of moving to add the action of "trespass," and leave the whole matter probably for the determination of the legislature. I am anxious to retain the principle contained in the report specially and how this jurisdiction is to be exercised. I have added there, you perceive, "in special cases." I mean by that to be understood to be given jurisdiction in cases of landlord and tenant, to issue a landlord's warrant for the collection of rent. I believe under the Code of Virginia it is necessary that a justice of the peace issue a warrant. I hope the legislature will so amend the law as to give jurisdiction to justices of the peace to remove the tenant when there is no question about expiration of his term. There are cases of bastardy which might be disposed of by a single justice. There is another class of cases which I will denominate as supplementary to execution, allowing the courts to have a suggestion to reach money of the creditors to stay the debt. These are some of the causes, I suppose, brought before the legislature where it would be safe in all matters before justices of the peace to give them jurisdiction in relation to it.
The amendment was submitted to vote and was rejected.
MR. WILLEY. Mr. President, I propose to amend the sentence by inserting after the word "county," in the 94th line the following:
"But in every case where the sum or thing in controversy exceeds the amount or value of twenty dollars, the justice shall, upon the application of the defendant, at any time before trial, remove the cause to the circuit court of the county wherein the same shall be brought, and the clerk of the said court shall docket the same, and it shall be proceeded in as if it were an original motion, made in said court."
MR. VAN WINKLE. I move to amend the motion by inserting instead simply the words: "where the value in controversy exceeds twenty dollars" - to use those words instead of that long rigmarole, so there will be no appeal below twenty dollars.
MR. IRVINE. I do not think the gentleman understood.
MR. WILLEY. The object of my amendment is that if a party is brought before a justice of the peace to give him the privilege of going to the court if he wants to in all cases over twenty dollars.
MR. DERING. It seems to me, sir, that if you pass that amendment you negative the very clause of the section we have just passed to give the defendant the right to take his case out of the magistrate's hands and put it into court and thus keep the plaintiff out of his money for a long time. I am sorry that I cannot go for the amendment of my colleague because I think it negatives the very clause we have just passed.
MR. SOPER. That amendment unqualified will destroy the whole beneficial object of this section. If the Convention should adopt it, there has been an amendment moved to it, but I shall move to add: "in case the defendant shall file an affidavit and the justice of the peace shall believe there is a substantial defense against the claim."
MR. WILLEY. We see at every step the difficulties I anticipated. You cannot investigate this matter one inch that you will not see the propriety of fixing the unbending constitutional rules that shall bind down parties before the justices of the peace in the country. Sir, there are two parties to every suit. We stand here not to look to the rights of the plaintiff alone. Defendants have rights, debtors as well as creditors; and it is more essentially the object and duty of this body to protect the debtor as the weaker party in his rights than to give power to crush him by these summary processes of justice without plea or law in the country to an unlimited extent of jurisdiction. We are building up an unbending tribunal to oppress the people, sir, that will be prejudicial to the community. We will not progress in our amendments without seeing at every step the error of enumerating by constitutional provision the safeguards that ought to be thrown around the administration of justice to the citizens of this commonwealth. Well, then difficulties meet us at every turn. I wish members of the Convention to remember that debtors have rights as well as creditors; that the heel of the creditor is not to be put on the neck of the debtor in this country without the ordinary processes of law or adjudicature; that we are to protect his right. Sir, the man who has leisure may read it over and judge of the proportion of this community - poor men - who will be without redress. I say we ought to look at both sides of this question. And let me tell you, gentlemen, who have appealed here to what is the popular will that if this section be adopted it will not be long until popular curse will rest on the acts of this body by an overwhelming majority all over this community. It is the duty of this body to protect the rights of the weaker party, and we are more essentially bound to ordain constitutional provisions for the debtor classes than to arbitrarily institute summary measures for the collection of debts in the hands of the creditor. Justices may be too speedy sometimes; may have men to execute their judgments too promptly; and, sir, if we give this arbitrary power to justices in the matter of this question of jurisdiction to sit on matters of unliquidated damages to decide on questions involving the character and interests of the citizen, we must go into every detail and we must be very careful in inserting the provision and have provisions in this Constitution that will protect the debtor class, the poorer class of the community that are not so well able to defend themselves. We have now adopted the principle, and as long as I stay here I shall take this Code and not be satisfied until every provision that I believe to be necessary to protect the debtor and every prevention to arbitrary decision. I think the defendant ought to have the right to carry his cause to the court if he is willing to incur the expense. That is all I ask, not by way of delay but by motions as other motions are made, or ten days' notice. I do not believe in giving the power all into the hands of the creditor to select alone the tribunal in the country in secret, but where legal gentlemen will scrutinize the acts of the justices, a man not learned in the law. I do not believe in giving creditors the right to drag poor men before the community; I do not believe in giving the poor wholly into the hands of iron-heeled creditors to crush a vast majority of this community by these summary proceedings. Sir, the law's delay is the liberty of the citizen; and after all, as much as you may cry out at the delays of the law, it after all is the safeguard of the citizen. Whereever you have a summary justice you have despotism and tyranny. You may call it by one name or another, it is the same in fact. I hope to have this language incorporated in the Constitution, that with the principles we will also incorporate all the safeguards that the experience of legal gentlemen may indicate is necessary to protect the rights of the citizen.
MR. DERING. I must still persist in opposing the amendment of my colleague. I am as favorable to protecting the poor man as any gentleman on this floor; but I am for protecting the great ends of justice, and that shall be my polar-star here and everywhere else. I, sir, am representing my people, and without any reference to the people in any demagoguical spirit. I say it is my duty as their representative to carry out their views in reference to this and every other question presented here for consideration. And I tell this Convention now that I solemnly believe that this amendment will cut off and negative the section they have just passed after this long contest. Sir, to place in the hands of the defendant the summary power, the arbitrary power, of taking this case out of the justice's hands and putting it in the court in the hands of the lawyer, there to be held till the lawyer can stay the proceedings against him. Sir, our duty is equally to plaintiffs and defendants. It is but just that an honest man should pay his debts, and we should have laws to make him do it. The more speedily you can make a man do justice, the less injustice is done to the plaintiff. I admit the defendant has his rights, and he can go before the magistrate and there make his defense, and if the judgment goes against him it is but in accordance with the eternal principles of justice that it be made up in a speedy and summary manner. Sir, it is but justice that a man should live up to his contract. It is but right, and no gentleman will dare say for a moment that the ends of justice will not be promoted by making a man live up to the very letter of his contract.
MR. WILLEY. I hope my colleague did not understand me to say anything to the contrary.
MR. DERING. No, but you go for delay, and that defers it to a considerable length of time after you place the matter in hands of the courts. I tell you, gentlemen, who have voted for the former section, that this amendment will negative the whole of it, take it out of the hands of the plaintiff and place it in the hands of the defendant, who will arbitrarily remove it to the courts of law. I trust this Convention will stand firm and sustain the section they have passed by a conclusive vote.
MR. STUART of Doddridge. I wonder if it is recollected by this body that a vast majority of the claims litigated will never come before any of the courts, will come before the justices of the peace and will embrace perhaps the value of property that is owned by the greater portion of the community. Now, sir, you are dealing with a majority of the citizens of the country because the great majority of the cases that will come up, that will affect the interests of our citizens, will be for claims not exceeding one hundred dollars; and to say that a man shall bring suit before a justice of the peace, let him be qualified or otherwise, and enforce his opinion, bar him arbitrarily against the defendant, would be such an absurdity as I think would prevent our people adopting the Constitution on that account, as much as we want a new State. I presume every man here has read the Bill of Rights of Virginia, the great author of which, Jefferson, is cited by the gentleman from Wood as authority for his report here. We read in the bill of rights that in all controversies respecting property either part has a right to trial by a jury of twelve men, as preferable to any other. Well, now, gentlemen, we are growing so wise that we are going to trifle with this great constitutional right of man. Are you going to make provisions here that these justices of the peace shall summon jurymen in all these cases in the country? Is not the purpose of this body now the saving of cost to the citizens of our country? Before a justice of the peace, who knows no law, and say it shall have a trial here by a jury of twelve men? And if you say it shall not be done, then you violate this great principle laid down by your revolutionary sires, men who were equally as wise as we are, although we are a very intelligent body, indeed. The poor men whose cases would involve less than a hundred dollars would embrace the majority of your people. To say that they shall be brought arbitrarily before a single justice, and shall have no remedy except by appeal - which is no remedy at all - for the poor man could not give the security - then, sir, if you say a majority of your people shall have no remedy, and rights at all before these justices of the peace if the plaintiff chooses to bring his action there? Is that the motive and object of my friend from Monongalia?
MR. DERING. I will go his security.
MR. STUART of Doddridge. Let us have it endorsed here, then that the member from Monongalia will always go the security of these men who will be sued for a hundred dollars.
MR. DERING. If they are sued wrongfully.
MR. STUART of Doddridge. Yes; but who is to judge of that? My experience has always been that as much as possible we always sought to avoid litigated cases of this kind although the controversy might be under a hundred dollars and in many cases embraced everything a man was worth. We did not want even to go before the county courts because we did not like to stake everything our client was worth before such a tribunal. A hundred dollars to a man who has no more than that is as much as ten thousand to a man who is worth a hundred thousand. A man who is worth a hundred thousand may sue a poor man before the justice and give him no other remedy and that justice of the peace may render judgment against him contrary to all law and every principle of law, and yet he has no remedy. This is the kind of a Constitution we are going to rest our action on. If so, I think I know what will be the voice of the people. The proposition of the gentleman from Monongalia meets my object exactly. I have no objection to these details if you just say that the party shall have the right to move his case to the circuit court.
MR. DERING. When he gives the security he will have the right.
MR. STUART of Doddridge. When he gives the security. The gentleman from Preston has just called my attention to the principle here embraced even in the Constitution of the United States. I thought I had given you Virginia authority that is endorsed - whom the gentleman from Wood gives as his authority for his township principles. Well, here is the Constitution of the United States. Why was this adopted by the framers of the Constitution of the United States? Had they no object in view? Had they no experience in these matters? "Where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved and no fact tried by a jury shall be re-examined by any court, &c."
MR. VAN WINKLE. I read that very clause from the constitution yesterday. I gave notice then that I had drawn up a provision providing for a jury to aid these magistrates in decisions. I did not then state the reason but I will now. It refers both to civil and criminal proceedings but will come in after we have passed both those things. I stated then that that clause of the United States Constitution is not generally held to apply to the states but only to the courts of the United States.
MR. STUART of Doddridge. How do I know that this body is going to adopt the provisions that will be offered by the gentleman from Wood? I must take the thing as I find it. Now, whether this Convention be disposed to take the provision the gentleman intends to propose is a question I am not now prepared to determine. But that appears to be a thing I think that this Convention should know before they adopt this provision. You may not want to adopt it, that these juries be called before the justices of the peace. And there would be the additional expense of summoning these jurors. There would be the additional cost, which in nine cases out of ten would have to go up and finally be settled. At the same time it is a cumbrous machine and one that will cause me to vote against this township principle if it must be adopted. Then I will oppose it with all my power, and I think my people will do the same thing.
MR. SOPER. The gentlemen in behalf of this motion have manifested a good deal of warmth under a profession as though we were attempting here to oppress the poor. I try to look on both sides of this question, and certainly my sympathies are with the poor, and they never will be oppressed by any act that I shall do. This amendment is taken from the Code of Virginia. It was incorporated in that Code after it had confined the jurisdiction of justices to twenty dollars. They then extended it to thirty and incorporated this provision in the Code. Gentlemen remarked this forenoon about public men here in Virginia extending this jurisdiction beyond thirty dollars, to eighty, now up to a hundred. It shows the people have confidence in these justices' courts. And why should we retain in our present report a provision or insert in the present report a provision such as rejected in the State of Virginia as giving to justices' courts an increase of ten dollars in jurisdiction? There might have been some propriety in it then; but subsequently the people have shown that there was no necessity for it. It is this, that on return of a summons a party may go to court for no other purpose in the world than to gratify feeling and annoy the plaintiff, and request the justice to certify it and send it up to the county court where the plaintiff's costs is increased a considerable amount. Now, that I am opposed to, because we have given here definite power of appeal. Does that take away any right? Certainly not. But it is said he cannot appeal until his case is decided. He ought not to appeal before. Both parties are then better prepared to try the case, because they have had a hearing, know what the facts are in the case and if there is nothing more than a desire to get justice you will find in nineteen cases in twenty the decisions of our justices would be satisfactory. I think my friend from Doddridge is entirely mistaken when he proposes that every cause tried in a magistrate's court shall go up to court on appeal. No, sir; after both parties have had their claims before him, in nearly all cases there will be perfect satisfaction.
But the poor man! Now, let us look and see how we are going to take care of the poor man. You have now - and I was going to compliment the Legislature of Virginia on the spirit of improvement that has been manifested here for a few years. When I first came into this state scarcely anything was exempt from execution. There have been additional exemptions from time to time. I saw two members of the legislature looking over it and they estimated the value of the property now exempt at three hundred dollars.
THE PRESIDING OFFICER. The argument must be on the proposition before the Convention, not with reference to the proposition giving concurrent jurisdiction.
MR. SOPER. I am arguing it. The objection to it is, we are taking away the rights of the poor man if we do not adopt it. I am going to show that there is no disposition to do that, and I have shown the Legislature of Virginia are improving in looking out for the interests of the people; that they have within a few years increased exemptions and have now on the statute-book an exemption of property of three hundred dollars; so when any man who has not that amount of property can always get the requisite amount of security to bring an appeal. But further, sir, this very legislature have now got a bill before them exempting not only three hundred dollars worth of personal property but five hundred dollars worth of real-estate. This shows that there is something at work in the public mind to look out and take care of all parties, particularly the poor. How would I take care of the poor? It is an answer to the remark of the gentleman from Monongalia who said here was an attempt to oppress the poor. I would give power to the magistrate whenever he renders judgment against a poor man, if he has no more property than is exempt by law I would give him an opportunity of staying execution by paying a dollar and fifty cents a month. He should have authority to pay his debt by installments not exceeding that. I would go further. If I had to give judgment against him I would protect him from the issuing of an execution for thirty, sixty or ninety days - six months if it became necessary. If by giving my judgment and having property docketed and having a lien on his property, then I could afford to give him time.
THE PRESIDING OFFICER. It does occur to me on a motion to amend by inserting what would amount to concurrent jurisdiction and a motion to amend that by inserting a qualification limiting the appeal, that it is not in order to enter into a long detailed account of how you may avoid a seeming evil.
MR. SOPER. I am answering the argument that they were wanting to protect the poor man.
THE PRESIDING OFFICER. If it was a reply to the details of the the gentleman from Monongalia, it would be in order. I understood the gentleman from Monongalia to refer to no hardships but what grow out of the direct act. It would not be in order beside that, by traveling around into other matters to show how you may avoid the hardships that grow out of the direct act by a proposition that is not before the body.
MR. DERING. I appeal from the decision of the Chair.
MR. POMEROY. I hope my friend will not do that. I move the gentleman proceed by general consent.
MR. SINSEL. If the gentleman has a right to go on, he ought to be allowed to go on without such a motion as that. This voting him leave is an admission on the part of the Convention that the gentleman is wrong. Now if he has a right to go on, he ought to go on.
MR. DERING. I withdraw the appeal.
MR. POMEROY. I have no doubt at all of his right to go on, but I do not like this thing of appeals.
The motion was put and leave given Mr. Soper to proceed.
MR. SOPER. I was going on to say that there would be no proceeding before the magistrate but what would be so guarded that any poor man would be protected much more than under the law now. I briefly stated, sir, that he would probably make the affidavit as to the three hundred dollars worth of property. If so and a judgment was obtained against him he could easily appeal if he was dissatisfied with it and he could get the necessary security. If he did not see fit to get an appeal on a judgment before a magistrate an execution would not issue against him and under certain circumstances I would give him the right of paying that judgment by installments to save him cost and expense upon an execution. At all events on a judgment depending on its amount, I would give him thirty days to six months before an execution could issue in cases where I had obtained the security which a judgment and the aid of the legislature would give him on his property effects. Now, that is my answer in relation to the poor man. There is no difficulty in taking care of the interests of the poor; but the great difficulty is in taking care of the rights of the plaintiff. You have got a claim against a man here for one hundred dollars, and he is in failing circumstances. He wants to get reference or something of that kind, and you want security which he declines to give. In this short and speedy mode you can get your judgment and make it a lien on his property and then you are secure. Hence you will find without doing any injury to the poor man you are protecting the man who has got the claim. After you have got your judgment and lien, the interests of the poor man may be taken care of. But I do protest against this amendment now, because it gives - 1 do not care whether poor or rich - it gives a dishonest man the power of putting and keeping off the man he owes without a single cent of security and driving him where he must of necessity expend a number of dollars giving security. I would not give that poor man the right just to direct the magistrate without a single excuse to send it up to the court. I would not countenance the man who is so poor that he derives no advantage from it except to drive his creditor to expense. I hope that amendment will not prevail.
MR. WILLEY. I have forborne to notice the argument repeated time and again, of delay, because I suppose that this intelligent body could see and would see that there was just as much to be said on one side of that question as on the other. Let the rogue get his honest neighbor before the justice in the country, and how long will he delay him - how long will he manage a justice in the country, especially if he be an adroit man of some influence? Just as long as he pleases; and then if he is beaten he will take an appeal and bring it into court and have a second edition of the same delay in court. Why, sir, it is easier to delay a case before a justice than before a court. This thing is now to go before the county courts that we have been worried by so much and so long. But the matter is to go before the circuit courts - before men learned in the law, men who it must be supposed will have their own interest aside from the obligations of the oath they have taken and the position they have assumed, always desire to expedite justice as greatly as possible. I do not intend to go into the argument beyond this; but so far as the delay is concerned it is but making two sets of applications for witnesses, two processes of delays, one before the justice in the country until the justice is worried into granting delay and overrules the last application and gives his judgment and appeal is taken by this wily designing man, and the matter is brought to court and then he delays it as long as he can thereafter. Instead of expediting business, so far as that class of men is concerned, it will not do it at all. Because men who simply wish to delay without any just grounds for it can certainly accomplish their purposes in the country before the justice better than they can in court. Inevitably so, sir. The hardship falls on those honest men who do not want to litigate.
MR. POMEROY. I have taken no part in this discussion and do not rise now to enter into the argument, but I think we ought to bear this in mind. The motion has been discussed at great length as the motion was a short time ago and was voted down by a large majority. I do not think gentlemen ought to bring up the same kind of motion again. I would infinitely prefer the motion of the gentleman from Doddridge to that of the gentleman from Monongalia. There is no delay before a competent and wise justice. If there is delay, who will pretend to say it is taken with the same expense as in the county or circuit court? I cannot conceive why gentlemen are disposed to spend so much time on this 7th section. This system of bringing cases before justices of the peace has been found to work well in all the adjoining states with which we are surrounded. The question is never mooted in Pennsylvania. I think it is venturing nothing to say that there nineteen cases are tried before the justices to one in court. The justice in a large and populous township in that state has as much business as he can attend to. So that in regard to the argument about the amount of cases tried why it is decidedly in favor of the justice of the peace. They are elected by the people there with reference to this fact that they are to try important cases; and the case is as a general thing settled there. A gentleman on this floor here today tells me that he has rendered judgment in at least a thousand cases, and that in that number there has never been a solitary case of appeal. Not one case in a thousand before one magistrate. Well, now, if that is good in the case of one magistrate, may it not hold in the case of many others? There may be incompetent men elected as circuit judges. They are not prepared to try a case right; or there may be very incompetent men who are jurymen before a circuit court, as incompetent as one before a justice. So I think the argument in one case is as good as in another. The jury must be composed of men of a certain kind of qualified citizens. Why would not the justice in the selection of a jury get as good a jury as the man on the bench? Under your old county court system well qualified men had little inducement to be justices, but under this new system the people will see to it, if the men do not seek it themselves that the best men are selected. These justices will become very important under this new system and therefore the people will select their best men.
If this Convention did right a few minutes ago in voting down the motion of the gentleman from Doddridge they certainly ought to vote down the amendment that is now offered. Some have never seen this system tried. But there are a number here who have lived in states where it has been tried and can testify to the fact that there is no more litigation than where it has not been adopted.
Adopt the amendment of the gentleman from Monongalia and you completely destroy this section. I have been anxious to have this section settled; and therefore it would not be consistent for me to occupy time in speaking.
The Secretary reported the amendments before the Convention.
MR. HERVEY. It has been said that the Convention is now called upon to decide precisely the same question it has decided heretofore. Now, Mr. President, I deny that emphatically. The one was a question of jurisdiction. How high shall the jurisdiction of justices of the peace go? This is a question of the right of appeal from the judgment of a justice. The gentleman from Hancock told us of a justice who had tried a thousand cases without an appeal. Does that prove anything? Has not the party the right to appeal? The proposition now before us is to deny that right.
MR. DERING. It is reducing the jurisdiction of the magistrate to twenty dollars.
MR. HERVEY. The amendment of the gentleman from Monongalia says the defendant shall have the right to carry it or not on appeal. If he has a case he prefers shall be tried before the circuit court, this gives him the right to carry it there. It requires the consent of the aggrieved party.
But the proposition of the gentleman from Monongalia and the argument of the gentleman from Brooke amounts to this, that you tie the hands of both parties; you put the party defendant in the power of the party plaintiff, and drag him nolens volens before a justice and he has got no right of appeal. I have been a justice of the peace myself, but I say, sir, that the act of this Convention if carried through invests despotic power in the person of the magistrate, from which the party defendant cannot relieve himself. He is at the mercy of the party plaintiff and you give him no right of appeal. I care nothing about the jurisdiction, but give each party equal rights, Is it not known to every man that there are neighbor quarrels and bickerings and that the sharper knows that fact? Drag the party defendent before him and get judgment, and where is his remedy? The gentleman proposes a homestead bill to exempt him; to say that he shall not collect his debts. Very well. Wait till that homestead bill comes up and then we will deal with it. I repeat I care not to what extent the jurisdiction goes; but give the party defendant equal rights, not confer all the rights and powers on the party plaintiff.
MR. POMEROY. I never desire to be misunderstood. If I did convey to any man's mind the idea that the proposition of the gentleman from Monongalia was the same proposition as that of the gentleman from Doddridge, it was in this sense, that both propositions were intended - or whether intended or not the effect of both, was to destroy the first part of this section of this report. The gentleman from Doddridge moved to strike out. That motion fails. What I did say was that in my humble opinion this manner of destroying the section was, unfortunately, worse than the other. It does virtually destroy it. I distrust it from ever being of any practical benefit to any man, woman or child in the universe and therefore it was the worse way of destroying it than the other way. I hope I make myself distinctly understood, that the plan of my friend from Doddridge was not as savage a way of destroying it as the method of the gentleman from Monongalia; that in either case the section was destroyed; and while I would have preferred the plan of the gentleman from Doddridge I had no particular preference. The fact that appeals are not carried up from the justices docket is not on account of a paltry sum of dollars and cents but because the decision of the justice has been correct and that it ought not to be reversed before a higher tribunal. The man fails because he was in the wrong and the justice was not swerved from the path of rectitude by any special pleading before him, but having both the parties before him he holds the balance of justice with a steady and equal hand and metes it out to the man that deserves it. Why not let a man take his claim before his own fellow man in his own township? Why not let that man decide the case? It was not the extension of the jurisdiction at all that we decided in voting on the motion of the gentleman from Doddridge. The vote we gave there was on striking out. A man might differ in regard to extending their jurisdiction to a hundred dollars. Why should we hand over everything to this coming legislature? There may be some wise men in that body - and may not. Why hand over the proper business of this Convention that ought to go before the people? When they vote, they ought to know what they are voting for. I know the people of my county are in favor of extending the jurisdiction of justices of the peace. I know what they want put into this Constitution about justices of the peace. They say every state around us has this township system and we know it is a good system. They have no such tax as we have and they demand relief. We want these justices to be the most honorable and best men in the community, and if you vote down this amendment there will be no cry coming out demanding a change in this Constitution.
Another thing you will find: your circuit court will have very little more business than it had before. The circuit in our county met in the forenoon and adjourned in the afternoon. I judge it will be so hereafter. Merchants sometimes place an account in the hands of the justice of the peace for collection, and if he is a good man he tells them the accounts are there and he would like him to come in and pay without cost. What difference is it to me whether I pay to Mr. A. or to Mr. B ? If a man has the right principles as justice of the peace, when an appeal is liquidated in that way he would spurn the idea of receiving a copper of compensation. And hence I believe this a good system. I want it understood that while the propositions of the gentleman from Monongalia and from Doddridge are not identically the same that they both virtually and effectually and completely and for all practical purposes now and forever kill the section in this report of the committee, and I would, if it has to be killed, have preferred to kill it in the way proposed by the gentleman from Doddridge.
MR. HERVEY. I will give five, ten or twenty minutes to the gentleman from Hancock if he will elucidate that proposition. I maintain they are separate and distinct propositions. Most undoubtedly. One is a question of jurisdiction; the other of appeal.
MR. HARRISON. Mr. President, I move this Convention now adjourn.
The motion was agreed to and the Convention adjourned.
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Chapter Eleven: First Constitutional Convention of West Virginia