The opinion of the Court was delivered by
Kennedt, J.
Under the constitution of 1790, the tenure .of the judges of the courts therein specially mentioned was during good behaviour. By the amendments, however, as they are called, which, were agreed on and proposed by the convention of 1838, and approved by a majority of the electors, who voted on the question whether they should become part of the constitution or not, at the general election in that year, the tenure of the judges of the supreme court was changed to a term of fifteen years; the president judges of the several courts of common pleas, and of such other courts of record as were or should be established by law, and all other judges required to be learned in the law, to a term of ten years, subject still, however, to the condition of each behaving himself well. And further, instead of being appointed by the governor, as under the constitution of 1790, they are, under the amendments, to be nominated by the governor, and by and with the consent of the senate, appointed and commissioned by-him. By the second section in the schedule, which forms part of the amendments, it is; [336]*336declared that the alterations and amendments shall take effect from the first day of January, eighteen hundred and thirty nine; and though it is declared by the third section of the schedule, that the clauses, sections, and articles of the constitution of 1790, which still remain unaltered, shall continue to be construed and have effect, as if the said constitution had not been amended; yet the judicial tenure being expressly altered by the amendments, the constitution of 1790, therefore, became null and void as to this particular; and all the judges within the state, on the first day of January eighteen hundred and thirty-nine, who then held their offices and commissions under it during good behaviour, ceased to be judges, by reason of the tenure whereby they held their offices having become terminated, unless some provision can be found to have been made in the amendments to counteract and prevent this effect. The seventh section of the schedule is the only part of the amendments, then, which contains any provision whatever in relation to this point, that can by any possible construction be made to apply to the defendant’s case. It is in the following words: “ The commissions of the president judges of the several judicial districts, and of the associate law judges of the first judicial district, shall expire as follows: the commissions of one-half of those who shall have held their offices ten years or more, at the adoption of the amendments to the constitution, shall expire on the twenty-seventh day of February, one thousand eight hundred and thirty-nine; the commissions of the other half of those who shall have held their offices ten years or more, at the adoption of the amendments to the constitution, shall expire on the twenty-seventh day of February, one thousand eight hundred and forty-two; the first half to embrace those whose commissions shall bear the oldest date. The commissions of all the remaining judges, who shall not have held their offices for ten years, at the adoption of the amendments to the constitution, shall expire on the twenty-seventh day of February next after the end of ten years from the date of their commissions.”. All the judges mentioned in this section have their commissions, which were granted under the authority of the constitution of 1790, extended by necessary implication beyond the first day of January, one thousand eight hundred and thirty-nine, when otherwise they would have been determined; some to the twenty-seventh day of February, one thousand eight hundred and thirty-nine, some to the twenty-seventh day of February, one thousand eight hundred and. forty-two, and the rest to the twenty-seventh day of February next after the end of ten years from the date of their commissions. Now, according to the plain reading of this section, it would seem as if no commissions were provided for or continued in force by it, excepting such as were in being at the adoption of the amendments to the constitution. Hence, it becomes necessary to examine and ascertain, in the first place', at what time the amendments must be considered as having been adopted, agreeably to the meaning [337]*337of the phrase, “ at the adoption of the amendments to the constitution;” or at least to see whether the commission of the defendant was in being at or before the latest point of time at which the adoption of the amendments to the constitution must be considered as having taken place. The counsel for the defendant, aware of the important bearing which the answer to this question would have upon their client’s case, endeavoured to show that it must be taken to mean the first day of January, one thousand eight hundred and thirty-nine, otherwise the amendments would have a most unreasonable, unjust, and oppressive operation. It was alleged that it was reasonable, if not necessary, to suppose that the convention, as often as they have, in the amendments, referred to the time when they should be adopted, by mentioning it in the same manner already stated, meant to designate the same point of time throughout. And if so, that it is clear from the ninth section of the first article, that the time of the amendments being agreed to finally by the convention, as was first suggested by the counsel for the commonwealth, cannot be the time that was intended; because, in speaking there of the senators who shall “ be elected at the first general election after the adoption of the amendments to the constitution,” it would seem, by taking the whole of the section into view, that the general election of eighteen hundred and thirty-nine was intended to be designated, and not the general election of eighteen hundred and thirty-eight, which was the first election that was to be held after the amendments were agreed to by the convention. So again by the tenth section of the sixth article, it is declared that “ any person who shall, after the adoption of the amendments proposed by this convention to the constitution, fight a duel, or send a challenge for that purpose, or be aider or abettor in fighting a duel, shall be deprived of the right of holding any office of honour or profit in this state, and shall be punished otherwise in such manner as is or may be prescribed by law.” Here it is first said, that the convention have, in terms the meaning of which cannot be mistaken, shown most clearly that they did not consider their agreeing on the amendments as the adoption of them, but merely a proposing of them to the people, for them to decide whether they should be adopted or not. And further, from the terms of this section it is argued, that the convention could not have intended that a citizen should be disfranchised for fighting a duel, or sending a challenge for that purpose; or for aiding or abetting therein, before it was possible for him to know that there was any law, or rule of civil conduct in force imposing such a penalty; that such a principle would savour of the very highest degree of oppression and injustice. Then, in order to avoid such injustice, the amendments cannot be considered as having been adopted until after the result of the vote given in regard to them, by the electors at the general election, in October 1838, became publicly known. But this result was not and could not be accu[338]*338rately ascertained and known before the eleventh day of December next thereafter, when the speaker of the senate, in conformity to the act of assembly, passed in this behalf, ascertained it from the returns thereof, made by the judges of the general election, from the several counties of the state. Then, again, it is still further maintained, that the bare ascertainment of the voto of the electors, approving.of the amendments proposed by the convention, cannot, with any colour of propriety, be regarded as the adoption of the amendments; that it could, at most, only amount to a promulgation of the vote given thereon; so that the citizens throughout the state might become informed thereof before the first day of January, eighteen hundred and thirty-nine, when the amendments, according to the express declaration contained in the second section of the schedule were to take effect. This, therefore, as it is contended by the counsel for the defendant, must be taken to be the time of the adoplion of the amendments to the constitution: that at this time, and not before, it may be said with propriety, as well as justice, they were adopted and received into the family of the constitution, and became, as it were, members or constituent parts thereof; that the general election in October eighteen hundred and thirty-eight, being the time when the people by their vote approved of the amendments, may very properly be regarded as the time when they, by their vote then given, agreed merely that, the amendments should be received into, and adopted as constituent parts of the' constitution on the first day of January 1839. That the ageement to adopt may very well be distinguished from the act of adoption; and consequently they may, and in some instances must, be considered as taking place at different times. And thus it appears, as it is contended, that by taking the first day of January, eighteen hundred and thirty-nine, as the time of the adoption of the amendments to the constitution, this phrase is not only rendered uniform in its meaning, and made to designate and refer to the same point of time throughout the amendments, as often as it is used, but the whole becomes thereby consistent and harmonious in all its parts; and at the same time perfectly rational, and certainly more just in its operation.
This course of reasoning is plausible, and not without much force; but still, when we come to look throughout the amendments, and discover that the convention seemingly, when they intended to make the first day of January 1839 the time at which any thing therein provided for should take place, or be looked to as the point of time in order to ascertain the then existing state of that which was intended to be provided for, have designated or mentioned it in express terms. As, for instance, in the sixth section of the schedule, they have said: “The commissions of the judges of the Supreme Court, who may be in office on the first day of January next, (1S39,) shall expire in the following manner,” &c. But seeing the convention, in the section immediately following, while still [339]*339engaged in making further provision on the same subject, with a like view, that is, for continuing the judicial tenures created under the authority of the constitution of 1790, have changed entirely their manner of expression, for the purpose of designating the particular point of timé to which they intended to refer in order to-describe the commissions of the judges that were therein intended to be provided for, so as to prevent their being driveu at once from their offices, without allowing them some little time, at least, to prepare for meeting the event, is powerful, if not conclusive evidence to show that they intended, by the change in the seventh section, in substituting the expression “ at the adoption of the amendments to the constitution,” for that of “ on the first day of January next,” to make the time different for the classification of the judges mentioned in the latter section, from that .mentioned in the former. It seems impossible, even by force of the most lively imagination, to come to the conclusion that the convention could have intended to refer to the same point of time, by using these two different modes of expression. If it plainly, appeared that they were used elsewhere, in the amendments, as synonymous, it might furnish some ground for believing that they were possibly intended to be used as meaning the same thing in this instance also, but there is not the slightest indication of the kind to be met with. It is utterly impossible, then,- that the convention could have intended to refer to the first day of January 1839, by using each of these two modes of expression, as they have done,in the sixth and seventh sections of the schedule, without supposing that they intended to create doubt and confusion, which cannot be imputed to them. Neither can it be supposed or believed that a body, so conversant with the English language and its synonymes, could have used the two expressions, believing that they would be taken and understood to mean each the first day of January then next following, (1839.)
But it has been said that the course of reasoning adopted, and the observations made by Chief Justice Marshall, in Owings v. Speed, 5 Wheat. 420, have a bearing upon this case, and go to show that the commission of the defendant is still in force, and that he is entitled to hold the office of president judge under it. I am compelled, however, if it be so, to say that I am unable to discover it. So far, however, as it is possible to apply what is there said, to the case before us, it appears to have a directly opposite tendency; and goes to prove that the time of the adoption of the constitution of the United States, was anterior to the time of its coming into effect. The chief justice pronounces the ratification of it by nine states, that is, their agreement to accept of it, the adoption of it by them; which was in 178S, though it. did not, as he shows, take effect, or come into operation until the first Wednesday of March 1789. So far, therefore, as this has any bearing on the present case, it is to corroborate and strengthen what has been contended for on behalf of the commonwealth: that the vote of the majority of the electors, [340]*340in relation to the amendments, who voted on that question at the general election on the 9th of October 1838, being in favour of the amendments-’to the constitution, was an adoption of them; and, therefore, that day ought to be regarded as the time of their adoptiou, though they were not, according to the provision contained in the second section of the schedule, to take effect till the first day of January 1839. Chief Justice Marshall also shows that though the constitution of the United States was an entire new instrument, so that when it came into full operation it superseded every thing of the kind that existed previously, yet certain things were done under the direction of the convention that framed it, before it came into effect, as preparatory to its coming into operation on the first Wednesday of March 17S9. For instance, the old congress, under the authority thus given, fixed the day on which the electors of President and Vice President should be appointed, and again the day on which these electors should meet in their respective states, and vote for President and Vice President; all which was done under the authority of a schedule, as it might be called, which accompanied the constitution and its ratification by the states, before the first Wednesday of March 1789, when, as it was held in that case, was the time at which it first came into operation. So that the doctrine, of Owings v. Speed would seem, to sanction the principle, and especially in case of amendments to a constitution already in operation, that some parts thereof, according to their special import, might come into operation before the time fixed for their taking effect generally. It has also been claimed for the defendant that the' constitution of 1790 still remains in full force, and never ceased for a moment to operate, so far as it has not been altered or set aside by the amendments. This position is certainly true; but it is difficult to perceive how the defendant can derive an3f aid from it, because the judicial tenure prescribed by the constitution of 1790, under which he received his commission, is changed, and therefore annulled, as may be seen, in the most explicit terms, by the amendments. The amendment relating to the appointment and tenure of judges is in these words: “ The judges of the supreme court, of the several courts of common pleas, and of such other courts of record as are or shall be established by law, shall be nominated by the governor, and by and with the consent of the senate appointed and commissioned by him. The judges of the supreme court shall hold their offices for the term, of fifteen years, if they shall so long behave themselves well. The president judges of the several courts of common pleas, and of such other cou'rts of record as are or shall be established by law, and all other judges required to be learned in the law, shall hold their offices for the term of ten years, if they shall so long behave themselves well.” Thus altering, as we see, the constitution of 1790, which authorised the governor atone to appoint and commission the judges of all those courts; and which also declared expressly [341]*341that they should hold their offices during good behaviour. According (o the second article of the schedule, this alteration took effect- and came into operation on the first day of January 1839. This section declares,that “the alterations and amendments in the said constitution-shall take effect from the first day of January 1839;” and would certainly have annulled the commissions and tenures of all the judges then within the state, as has been shown before, had it not been for the subsequent provisions contained in the sixth and seventh sections of the schedule, which have been recited above: It seems impossible to escape from this conclusion, unless it can be shown that the amendments, without these two last mentioned sections of the schedule, would not have affected at all the right of the judges in commission on the first day of January 1839, under the constitution of 1790, to hold their offices during good behaviour, but that they would have continued to hold their offices in (he same manner as if the amendments had not been adopted. If this could be shown, then, if the defendant be not embraced within the seventh section of the schedule, he would be entitled to hold his office, which he claims, not merely for the term of ten years from the date of his commission, but forever, if he behaved himself well. Such 'construction, however, were it to be given, would strike every one with- amazement, because it would not only be most palpably repugnant to the plain letter and meaning of the amendments, but also directly contrary to the whole scope and tenor of them.
Under this view, we have come to the conclusion that the convention, in using the expression—“ at the adoption of the amendments to the constitution,” could not have intended to refer to a later point of time than the day'when the result of the vote of the electors thereon was to be ascertained and made known by the speaker of the senate, from the official returns thereof. And it may be that an earlier point of time was intended; but according to our construction of the amendments, as regards the main question' before us, it is not material whether an 'earlier day was intended or not. The speaker of the senate, on the eleventh day of December, eighteen hundred and thirty-eight, under the authority conferred on him for that purpose, publicly declared that the amendments had been approved by a majority of the electors at the' preceding general election, who had voted thereon. Then, after they had thus been adopted and so_declared, and before the first day of January, eighteen hundred and thirty-nine, when they were to take effect, the defendant, on the twenty-seventh day of December, eighteen hundred and thirty-eight, was commissioned president judge of the second judicial district, during good behaviour, by the governor under the authority of the constitution of 1790. This' authority of the governor, however, as also the right to hold the office under the commission so granted, ceased on the first day of January, eighteen hundred and thirty-nine, by operation of the amendments, which took effect on that day, unless ^extended be[342]*342yond that time by the seventh section of the schedule recited above. But upon a fair construction of this section, it would seem difficult, if not almost impossible, to bring the commission of the defendant within its provisions. It is clear that it refers only to commissions which were in force “ at the adoption of the amendments to the constitution,” and was not intended to embrace any others. Why it was so limited in its provisions, can not, perhaps, be very satisfactorily explained, from any thing that appears on the face of the amendments themselves; nor is it requisite that any good reason should appear or be given for it, as long as it has become part of the constitution by the will of the people. The caption of the seventh section doubtless included, as has been said, all the president judges of the several judicial districts, and associate law judges of the first judicial district, within the state. And if there had been no reference, in the subsequent clauses of the section, to the time at which it was designed they should be classed, and for this purpose designated, it would have been natural and perfectly fair to have brought, in aid of giving a proper construction to it, the-second section of the schedule, which declares that the amendments shall take effect on the first day of January 1839, for the purpose of designating the time intended for distributing the judges, mentioned in the seventh section, into their proper classes. In this way the present commission of the defendant could have been included, and its force extended to a period of ten years from its date. But the subsequent clauses of the seventh section, which embrace and class all the judges mentioned in the caption of the section, fix the time expressly at which they shall be classed, and make it the lime of the adoption of the amendments to the constitution, by declaring that the commissions of one half of those who shall have held their offices ten years or more at the adoption of the amendments to the constitution, shall expire on the twenty-seventh day of February, eighteen hundred and thirty-nine; that the commissions of the other half of those who shall have held their offices ten years or more at the adoption of the amendments to the constitution, shall expire on the twenty-seventh day of February, eighteen hundred and forty-two; the first half to embrace those whose commissions shall bear the oldest date. That the commissions of all the remaining judges, that is, the rest of all those who were first mentioned, without doubt, in the beginning of the section, who shall not have held their offices for ten years at the adaption of the amendments to the constitution; thus not only meaning, but declaring plainly by necessary implication, that the commissions of all those who shall not ha ve held their offices, that is, who shall have held them for less than ten years at the adoption of the amendments to the constitution, shall expire on the twenty-seventh day of February next after the end of ten years from the date of their commissions. But how can it, with propriety, be made to .include those who did not hold their offices at the adoption of the amend[343]*343ments, but commenced holding them subsequently thereto? It would seem not to be susceptible of any other construction, without doing violence to what appears to be its true grammatical construction, as well as that which arises from its context. The only judges mentioned in this section are those of whom it can now be predicated that they either had or had not then held their offices ten years, that is, at the time of the adoption of the amendments. But such predicate naturally, at least, if not necessarily implies that the judges who are its subject should then be in being and holding their offices as such. It is not pretended that Judge Collins, under his last commission, the only one that is claimed to be in force, can come within either class of the first division; and it is equally clear that he can not be brought within the second: because a president judge, to come within the latter, as well us the former, must, in order to meet the plain, unambiguous terms of the section, have had his commission and held his office under it at the time of, if not before, the adoption of the amendments. Then, in order to show and illustrate the meaniug of the convention in the last clause of the section, embracing “ the commissions of all the remaining judges, who shall not have held their offices for ten years at the adoption of the amendments to the constitution,” which form the third class, and the only one that the defendant can possibly claim •to be included in, let us suppose that a president judge were to say, •“ I had not held my office ten years at the adoption of the amendments,” would not all who heard him naturally and necessarily •infer, and correctly, too, from his own form of speech, that he held' his office at the time of the adoption, but the ten years had not then expired? But if the fact were so, that he did not hold it then, but obtained it after the adoption, would he not be taken to have spoken untruly? And if, upon being called on afterwards to ex•plain why he said so, he -Were to attempt to vindicate the truth of ■his assertion, by alleging, that as he did not hold the office at all then, but came into it under a commission granted to him subsequently, and therefore what he said was literally true, would it not be considered a mere subterfuge? These are questions which seem to admit of no other than affirmative answers. Then for any one to assert now, that Judge Collins had not held- his office under his •second commission ten years, at the adoption of the amendments, would be asserting plainly, by implication, that he then held his office under it, but had not held it so long as ten years; this, how•ever, would surely be incorrect, as he did not, then, hold the office at all under it, it being granted to him subsequently. The words-in the last clause of the seventh section of the schedule, being “ who •shall not have held their offices for ten years at the adoption of the amendments,” seem to indicate so clearly the intention of the .convention to provide only for those who should be in office at that -time, without having held their offices for ten years, that it seems almost impossible even to imagine that they would have used such [344]*344form of speech, unless such was their intention. Then, if it were the intention of the convention, as it seems to have been, that no appointment of a president judge of any of the courts of common pleas, made by the governor between the adoption of the amendments to the constitution and the first day of January 1839, should endure longer than to this latter day, it is nothing but right, in a legal point of view, that he who has been so appointed should then give up the office, so that it may be filled again, either by himself .or another nominated by the governor, and by and with the consent of the senate appointed and commissioned by the governor for that purpose.
. Believing this to have been the meaning and intention of the convention, as collected from a fair interpretation of the language and terms in which the amendments are drawn up, we consider ourselves bound to carry the amendments into effect according to ■such intention, let the result of their operation be what it may, .whether for the better or the worse, as forming part of the constitution, and paramount law of the state. My own prejudice, however, is certainly not in their favour. I have no hesitation in pronouncing them the product of a delusion, that has been the ruin of nations in times past, quite as wise, intelligent and virtuous, at one period of their existence, as we have any right to claim to be. But as long as it belongs to every succeeding generation or nation, always, to think itself more enlightened and more wise, and therefore more capable of governing itself than any that has gone before it, in such manner as most effectually to promote and secure individual as well as national happiness, by leaving or placing every one in the full enjoyment and exercise of all his national rights, without imposing any restriction upon them whatever, it is not to be wondered at that we should, under the influence of a most in■flated and vain confidence in our own superior wisdom and discretion, disregard the warnings which might be derived from the experience and sad fate of those who, from the same kind of illusory confidence in their superiority, lost every thing, and became, as it were, entirely extinct among the nations of the earth; and blindly and most heedlessly run on, in precisely the same fatal course that led to their degradation and ruin. It would seem as if the empty pride and incorrigible vanity of our nature was, without fail, either .sooner or later, to consign us to some such unhappy dfestiny as ever ought to be deprecated.
. Seeing, then, the commission under which Judge Collins claims to hold the office of president judge of the second judicial district, was granted subsequently to the adoption of the amendments, and •consequently, as has been shown, was not embraced, nor its force extended by the seventh section of the schedule, nor byany otherpart of the amendments, it became null, void, and of no effect whatever, .on the 1st day of January eighteen hundred and thirty-nine. Judgment of ouster must, therefore, be rendered against him.
[345]*345It is considered by the court here, that the said Oristus Collins, Esq., do not, in any manner, intermeddle or concern himself in and about the holding of or exercising the said office of president judge of the said second judicial district within this commonwealth, composed of the county of Lancaster, in the said information specified, in virtue of the supposed commission by him mentioned in his plea in bar aforesaid; but that the said Oristus Collins, Esq.,be absolutely forejudged and excluded from holding or exercising the same office, and that the said commonwealth recover costs taxed, &c.