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Day 40 of the Convention

Friday, February 28, 1868

The Convention was called to order on Friday at 10 o’clock, Mr. Pres. Cowles in the Chair.

Mr. Ellis provided a resolution in relation to the mail matter raised on Thursday. Laid over.

The judicial report was read by sections. Most sections were read and adopted without change.

The convention revisited the decision made on Tuesday February 25 to provide terms of 16 years to supreme court justices and 12 years to superior court justices. The following is part of this debate*:

Mr. Heaton: I move to strike out “sixteen” and insert “eight.” If the elective system is adopted, it might be as well to say twenty-five years or twenty as sixteen. If the popular system is to be adopted the term should be shorter. In Ohio, it is five, in Iowa six years. Eight years seemed perhaps the best term suggested. In New York a feeling was growing for a longer term of the Judges of the Supreme Court, and perhaps prevailed here. But the section had as well be abolished, if a term of sixteen years is retained.

Mr. Tourgee: The prejudices of those unacquainted with the popular system have been consulted. In New York, it was extended from eight to fourteen. Long terms under the elective system are the safeguard of the judiciary.

Mr. McDonald, of Chatham: I oppose the amendment. I favor frequent elections of the Judges and not put a man in for life.

Mr. Heaton: I was astonished when I found the term of sixteen years had been reported. Icould show by numerous precedents, that it was unexampled. It was in reality putting a man in for life. True, nominations had been made already eminently fit, but this term was too long, and destroyed the popular system.

Mr. Welker: I favor the elective system, but not for such short terms. My proposition has been for twelve years. Now would the best Lawyers give up lucrative practices for a short term? But if the terms were made somewhat longer than the amendment, then the best jurists could be obtained.

Mr. Rodman: I endeavored to press on the Convention the other day my objections to the elective system, but as it seemed to be the sense that the terms would be long, I yielded my objections. If terms were short; then the Judges would become the slave of party, for they are but men.

Mr. Tourgee moved to insert twelve for eight. After further debate, the amendment was adopted.

When the convention reconvened in the evening it took up the report on the legislative department. Sections were read and adopted with some minor amendments. The Chair ordered the call of yeas and nays on the final passage and the yeas had the majority.

On motion the Convention adjourned.



Ferrell, Joseph, ed., Compilation of the Official Report of the Proceedings of the Convention (Chapel Hill, N.C.: unpublished manuscript 2007). (See day 8 for fuller explanation of this resource.)


*The debate and other quotes are close to verbatim from the reported resources with some adjustment to put all comments in first person, present tense.


Ann McColl

Ann McColl is an attorney and state constitutional scholar.