time to time appointed or elected in and for each County, in such mode, and for such term of office as the General Assembly may direct, and shall possess such jurisdiction as may be prescribed by law."

These extracts fix with certainty the intention of the Convention, so far as the general construction of the Judicial department of the Government is concerned. They show that the Constitution vests the Judicial power of the State in certain tribunals of its own creation; that it distributes jurisdiction to the Supreme Court, Circuit Courts and Courts of Equity, and expressly confers upon the General Assembly power to distribute jurisdiction to Justices of the Peace, and to a limited extent, to Corporation Courts. They show that the Courts are the creatures of the Constitution, and derive their powers and jurisdiction, except in the instances above specified, directly from that instrument. The Legislative department is a coordinate department of the Government, deriving its powers from the same source, and unless specially authorized, can have no power to raise or create a tribunal or tribunals, in conflict with those created by the Constitution; nor can it vest judicial power in conflict with that vested by that instrument.

To create the tribunals and assign them their powers, may, however, be one thing, and the appointment or election of those charged with the administrstion of these powers quite another. The tribunals may be the creatures of the Constitution, and the officers charged with the administration of their powers, the creatures of the General Assembly; and this fact brings up for consideration one of the most important questions involved in this investigation.

To determine correctly how far there is such a distinction existing, in the case under consideration, we must ascertain what the Convention meant when it used the terms Court and Judge-whether it intended to treat the Judge as a part of the Court, and make him, like the tribunal, the creature of the Constitution, or, whether it intended to commit him to the Legislative department of the Government, and make him the creature of the General Assembly. Information on this point can only be obtained in the Constitution itself, and to that tribunal this question should be referred.

The first section of the fifth article quoted above vests Judicial power in the Supreme Court. The 2d section fixes its jurisdiction, and the 3d section provides that "For the term of five years from the election of the Judges of the Circuit Courts, and thereafter until the General Assembly shall otherwise provide, the powers of the Supreme Court shall be vested in, and its duties performed by the Judges of the Circuit Court."

Now if it is conceded, as I believe it is, that by virtue of the powers conferred by the first and second Sections of the 5th Article, the Supreme Court is made the creature of the Constitution, it can hardly be denied, that by virtue of the third section, in which these identical powers are vested in the Judges of the Circuit Court, when acting as Justices of the Supreme Court, they were also made the creatures of that instrument. And if they, having no powers conferred upon them by this section, except those legitimately pertaining to the Justices of the Supreme Court, were treated as part and parcel of the Court, and placed upon the same footing with the tribunal itself, it would be difficult to assign a good reason, why the Justices of that Court when elected should not occupy the same position. If they do, then the distinction suggested does not apply in this case, because the tribunal and the Justice are alike made the creatures of the Constitution.

To show that such was the intention of the Convention, we are not limited, however, to the fact, that it vested the same powers, and jurisdiction in the Circuit Judges as Justices of the appellate Court, which it had vested in the Court itself, for the same section goes on to charge these Circuit Judges with the performance of the duties of the Supreme Court. Now if we suppose that the Constitution intended to make a distinction between the Court and the Justice, and that in using the term Court it simply meant the tribunal, we make the Convention guilty of the absurdity of charging these officers with the performance of duties that had no existence. The Court as a tribunal has no duties. The Constitution, as we have seen, confers powers upon the Court, in common with the Justice, but the duties attach exclusively to the Justice, and pertain to the administration of the powers conferred. If this be true, it must follow as a necessary consequence that in speaking of the duties, the Constitution embraces the Justice as part and parcel of the Court. If so, the General Assembly must show a special agency or grant of power in its favor, or it can have no more authority to supersede or change the Justice than it would have to supersede or change the Tribunal itself.

If any such agency exists under the Constitution, it must be found either in the third, eleventh, or twelfth Sections of the fifth Article.Let us examine them. The 11th Section requires that the "Justices of the Supreme Court, Chancellors, and Judges of the Circuit Court shall he elected by the concurrent vote of a majority of both Houses of the General Assembly." The duty here enjoined is purely ministerial-as much so, as the duty enjoined upon the Governor to commission them when elected. Suppose the General Assembly had

concluded to dispense with the concurrent vote, and had elected the Judges by the joint ballot of the two Houses. Would such election have been valid? Would such Judges have been constitutionally chosen? Would they have been Judges? I think not. I hazard little in saying, that no Judge could have been found who, under his oath to " preserve, protect and defend the Constitution," would have accepted the office under such an election. Now, if the General Assembly, under a Constitution which authorized it to elect Justices, could not vary the manner of election in so small a particular, how can it, under a Constitution giving the election to the qualified electors of the State, remove the Justices elected by them, and devolve their powers and duties upon others not so elected?

Having now seen the manner in which the General Assembly was required to elect the Justices, Chancellors and Judges of the Circuit Courts, let us ascertain, if possible, the time at which these elections were to be made. The 12th Section requires that "The Judges of the Circuit Courts shall, at the first session of the General Assembly, to be holden under this Constitution, be elected for the term of five years, and shall hold their offices for that term, unless sooner removed under the provisions made in this Constitution for the removal of Judges by address or impeachment; and at the expiration of five years, the Justices of the Supreme Court, and the Judges of the Circuit Courts, shall be elected for the term of, and during their good behavior."

Beyond a simple choice between individual aspirants, this section certainly confers no discretionary powers upon the General Assembly. Indeed it would be difficult to employ language that would go further to exclude all presumption in favor of such powers. The duty required is plain, simple and ministerial. The General Assembly is instructed at its first session to elect the Circuit Judges for the term of five years, and at the expiration of that time, to elect the Justices of the Supreme Court, and the Judges of the Circuit Courts, for another and different term. So far as the election of Circuit Judges is concerned, no discretion, as far as I know, has ever been claimed for the General Assembly. All have conceded that the instruction was peremptory, and could not be disregarded without the violation of a Constitutional duty. And yet, when the identical language, which makes this so plain in reference to the Circuit Judges, is used in regard to the election of Justices of the Supreme Court, discretion is claimed. It is not claimed, however, under the section above quoted, but under the third section, which is supposed to control and modify the peremptory character of the 12th section, by conferring upon the General Assembly discretion, as to the time that the appelfate jurisdiction of the Circuit Judges should be terminated, by th election of the Justices of the Supreme Court. How far such sup position is well founded, may be ascertained by examining the sec tion relied on. It provides as follows:

"For the term of five years from the election of the Judges of the Circuit Courts and thereafter until the General Assembly shall oth erwise provide, the powers of the Supreme Court shall be vested in and its, duties performed by the Judges of the Several Circuit Courts."

By this section the Judges of the Circuit Courts are required to perform the duties of the Justices of the Supreme Court for five years, and until the General Assembly "shall otherwise provide," and by the 12th Section of the same Article it is provided that the General Assembly " shall otherwise provide" at the expiration of the five years. The two sections must be construed together, and in such manner, if possible, as to make them harmonize. In this there is fortunately no difficulty, as there is no discrepancy. The effect of the two sections, taken together, is simply to provide for an election at the expiration of five years from the date of the first election; and to require the Judges of the Circuit Courts to exercise the powers, and perform the duties, of the Justices of the Supreme Court for five years, and until their successors (the Justices) should be elected and qualified. Such a provision is very common. It is found in the organization of the Executive department of our own State Government. The Governor is required to be elected for the term of four years, and to "remain in office until his successor is elected and qualified." Will it be contended that this provision authorizes a postponement of the election to a period beyond the time fixed by the Constitution? I think not. Where then is the difference? The one authorizes the Governor to serve four years, and until his successor is elected and qualified, and requires the election to be held at a certain time. The other authorizes the Circuit Judges to exercise certain powers for five years, and until the General Assembly should otherwise provide, and requires the General Assembly to make such provision at a certain time. To my mind, there is, practically, no difference. The duty of the Legislature to elect at the time appointed is plain, and is, I think, in no way controlled or modified by the third Section. So far from it, that section relates entirely to the powers and duties of the Judges, and seems to have been specially designed to enable them to continue to the State the benefits of an appellate tribunal, even should the General Assembly fail or refuse to discharge its Constitutional duty.

But if there exists a doubt as to the duty of the General Assem

bly on this subject, it will be removed by an examination of the amendment of the 12th clause, adopted and made a part of the Constitution on the 12th day of December, 1848. It provides "That at the expiration of the present term of office of the Judges of the Circuit Court, with the exceptions hereinafter mentioned, the Justices of the Supreme Court and the Judges of the Circuit Courts shall be elected for a term of eight years." (The "exceptions" relate only to the classification.) Here it is expressly made the duty of the General Assembly to elect Justices of the Supreme Court at the expiration of the then " present term of office of the Judges of the Circuit Courts." These Judges were elected in July, 1845, and their terms of office expired in July, 1850. That, then, was the time at which the Constitution required the General Assembly to elect Justices, but the duty was not discharged until the month of Januany, 1851-six months thereafter, and this fact shows the wisdom of the Convention in giving to the Circuit Judges the powers conferred by the 3d section.

In these elections, the General Assembly rendered a tardy obedience to a mandate of the Constitution-an obedience, however, which, in accordance with the provisions of that instrument, terminated forever the appellate jurisdiction of the Circuit Judges. The powers vested in, and the duties devolved upon them by the 3d section of the 5th article, were then vested in and devolved upon the Justices elected by order of the Constitution, and they became the creatures of that instrument.

A further amendment was adopted which became a part of the Constitution on the first of January, 1853, the 1st Section of which provides as follows:

"That on the first Monday in October, in the year one thousand eight hundred and fifty-three, and on the first Monday in October, every six years thereafter, there shall be elected by the qualified electors of each of the respective Judicial Circuits of this State, one Judge of the Circuit Court, who shall reside in the Circuit for which he may be elected, and continue in office for the term of six years, from and after the first day of January next succeeding his election, unless sooner removed under the provisions made in this Constitution for the removal of Judges by address or impeachment," &c. The 3d Section of this amendment provides, "That whenever the General Assembly shall create a separate Supreme Court, or Chancery Court, under the provisions of this Constitution, the Judges thereof shall be elected in the manner provided in the first section of this act, and shall hold their offices for the same term, and be subject to all the provisions of said first section: Provided, however, That the Judges

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