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C h a p t e r 2 3 The Judiciary Because of the obvious primacy of the law and its judicial interpretation and application in American society, many informed West Virginians considered the Committee on the Judiciary to be the most important of all convention committees. Most lawyers who were delegates aspired to be appointed to the Judiciary Committee . Both lofty and base reasons motivated their viewpoint. Contemporaries who lived through the era learned and experienced to a degree perhaps greater than Americans of any other period how the vagaries of laws and constitutions and their judicial interpretation could affect individuals and groups. This first-hand knowledge heightened the importance of the judiciary, a primacy branded into the individual citizen’s conscience. Legal practitioners as part of their daily lives already well-understood the priority, but more practical considerations beyond ideology motivated lawyers. The configuration of courts, the geographical arrangement of circuits, and the methods of securing judicial office could affect future professional ambitions and careers. Samuel Woods informed his son about fellow delegates who sought the coveted slot: “The ambitious men sought places on this committee.”1 ConventionPresidentSamuelPriceselectedtheeminentCharlesJamesFaulkner aschairmanoftheCommitteeonJudiciary.Theothertenmemberswereall lawyers: James Dillon Armstrong of Romney, James S. Wheat of Wheeling, James Monroe Jackson of Parkersburg, Waitman Thomas Willey of Morgantown, Henry Mason Mathews of Lewisburg, Nicholas Fitzhugh of Charleston, Evermont Ward of Guyandotte , Benjamin Wilson of Wilsonburg, Daniel D. Johnson of Long Reach, and Homer A. Holt of Braxton Court House. Former U.S. Senator Willey was the sole Republican member.2 The Constitution of the State of West Virginia of 1863 had provided for a democratically elected judiciary of two levels above the county in Article 6: Circuit Courts and Supreme Court of Appeals. The Supreme Court of Appeals had three judges 553 554 West Virginia’s Civil War–Era Constitution elected for twelve-year terms, and each judge was paid $2,000 annually. The constitution divided the state into eleven circuit districts. Each circuit had one judge who was a resident of his district and elected to a six-year term. The circuit judge had to hold court four times a year in each county unless otherwise provided by law. His annual salary was $1,800. Article 6 extensively specified jurisdiction, record requirements, disqualification from cases, causes of removal, and other conditions and powers of office. An important subsidiary office was that of Clerk of the Circuit Court, which each county had, elected by county voters for a four-year term. No constitutional limitation on succession affected judges or clerks.3 Charles James Faulkner, the future chairman, proposed a departure from the existing judicial provisions in the draft constitution, which circulated statewide in December 1871 and January 1872. Faulkner’s draft plan had a supreme court of appeals with a president and two associate justices (not judges) appointed upon the governor’s nomination on which both legislative houses would have to concur. They would have twelve-year terms. The president would receive a $3,000 annual salary, and the associate justices would receive a $2,500 annual salary. The state would have tenjudicialcircuits,eachwithonecircuitjudgeelectedbythepeople.Thecondensed newspaper version of Faulkner’s plan did not reveal the length of term for circuit judges, but it did propose a salary of $2,100 annually for each judge. Two court terms (instead of four) would be held in each county. To appeal to the economy-minded, Faulkner’s proposed system cost $400 less annually than the current judiciary.4 As the Committee on Judiciary began its deliberations, delegates directed approximately a dozen specific resolutions to the committee for consideration. More importantly, eight delegates, not including Faulkner, wrote seven judicial plans (one joint,sixindividual)fortheproposedjudicialarticle.Thepresidentoftheconvention, SamuelPrice,proposedoneplan.FourCommitteeonJudiciarymembers—Mathews, Fitzhugh, Ward, and Wheat—drafted schemes. Okey Johnson, non-committee member, submitted one, and Benjamin F. Martin and Samuel Woods jointly composed another. Four plans were referred from the convention floor, and three arose in committee meetings from the committee members. Faulkner as chairman never submitted a comprehensive plan, but he undoubtedly influenced the one presented in the committee report. As the plans were being considered, Faulkner successfully secured passage of a resolution from the convention authorizing the printing of the proposals that his committee thought “necessary and proper for the transaction of the business before it.” No other standing committee had this authorization.5 For convenience and clarity, this narrative of the various delegate plans and of Judiciary Committee, Committee of the Whole, and convention action separates the state...

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