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consideration of principle and of policy, I am ut- one district decides one way, and another district terly opposed to the insertion of so pernicious an decides another way, it should be the policy of element in the organic law of the State. For the Stale to send those causes to the court of ulthese reasons I trust the amendment which I timate resort, in order that they may there be have moved, and which strikes out of the substi- finally decided and that harmony may exist, tute offered by the gentleman from 'Ooondaga whether the suitor desires it or not. I say it is a [Mr. Comstock] both this proposition of minority humbug to say we have harmony of decision or repreeentation and that of rendering the judges can have it when the State cannot by any system of the court of appeals ineligible for re-election, of her own send cases to the court of ultimate may prevail.

resort. If the right of appeal is left open and unThe CHAIRMAN-The Chair must hold that restricted, this court cannot do its business any the substitute offered by the member from Tomp- more than the court we now have; but we will kins (Mr. Goodrich) is out of order. All of the Lave harmony if we make it the policy of the propositions contained in it have been passed upon State to send causes to the court of appeals to rein committee, and some of them as many as three concile conflicting decisions. Causes of a political times.

nature may also be sent there if you choose. Send The question was put on the adoption of the causes there which are of a constitutional nature. amendment of Mr. Smith, as amended on motion The State does not owe it to the citizen to give of Mr. A. J. Parker and Mr. Prindle, and on a him two courts of appeal, but the State owes it division, it was declared carried, ayes 50, noes to herself to be able, notwithstanding the caprice not counted.

or poverty of the individual, to have harmony of Mr. GOODRICH_Will my amendment now decisions throughout the State. be in order? If so, I will make the motion. The question was put upon the adoption of the

The CHAIRMAN—The amendment cannot be amendment offered by Mr. Landon, and it was entertained, every proposition it contains having declared lost. already been passed upon.

Mr. LIVINGSTON-I desire to offer an amend. Mr. GOODRICH-I submit that the proposition ment; I move to add to the present section the has not been passed upon at this stage of the ac- vinth, tenth and eleventh lines of the section tion on the section, and will ask whether that reported by the committee : does not change it?

"The judges of the court of appeals shall have The CHAIRMAN-The Chair sees no possi. power to appoint and remove a clerk of said bility of ever ending the debate upon this article court or reporter thereof and such attendants as if propositions passed upon, reconsidered, and shall be authorized by law;" again passed upon, can still be considered even in Mr. A. J. PARKER-I will ask the gentleman new combinations, and therefore must hold that to accept an amendment to that proposition, in it is out of order.

these words: Mr. MCDONALD-I move to amend the section "Any five members of said court shall form a 80 as to continue the present judgos in office. quorum, and the concurrence of four shall be

The CHAIRMAN-The amendment is not in necessary to a decision. They shall have the order. That question has been postponed by a appointment, with the power of removal, of the vote of the committee, on motion of ihe gentle. reporter of the court and clerk, and such attendwan from Steuben (Mr. Spencer), until all the ants as may be authorized by law." various sections of the article shall have been Mr. LIVINGSTON accepted the amendment. considered.

Mr. M. I. TOWNSEND-I would like to ask Mr. RUMSEY-I proposed an amendment some the gentleman from Albany (Mr. A. J. Parker] time ago to this section, and I ask that it be now if it would not be better to authorize four judges considered.

to hold the court? I will hereafter move an The CHAIRMAN-It can only be done by re- amendment to the amendment that four judges be consideration of the vote by which its considera. authorized to hold the court, and I do it for the tion was postponed until the sections relating to purpose of enabling the court to sit continuously the supreme court shall have been considered. and transact its business from month to month.

Mr. RUMSEY-I am satisfied that it should If there are seved judges and four hold the court, take that position.

it will be entirely practicable to continue the Mr. LANDON moved to add at the end of the business of the court perpetually. section the following:

Mr. A. J. PARKER-The amendment, as ac"No right of appeal to the court of appeals cepted, presents what was included in the third shall exist, but the general terms may by order section of Mr. Goodrich's minority report, modi. Bend such causes to be there heard as may seem fying it only so as to provide for the appointnecessary in order to promote harmony through. ment of clerk as well as of reporter. I, for one, out the State."

much prefer that five judges should be requisite Mr. LANDON-We cannot get rid of the court to hold the court, and four to decide. It is indis. of appeals, but it seems to me to be the duty of pensable that four should agree in deciding; and this Convention so to restrict the right of appeal you say that four only of the judges may sit, that there shall at least be harmony of decision you must have a unanimous vote before a case throughout the entire State. That harmony can can be determined. There are in the court seven never exist so long as the act of appeal sball de- judges, It seems to me no more than reasonable pend upon the individual. If we have a good to require that five shall be necessary to constitute general term the suitor does not need to go to the the court; generally all seven will be present. It court of appeals. But in that class of cases where would be a bad policy to allow so small a number

as four to constitute the court and I think it will Mr. COYSTOCK-It seems to to me that this detract from the diguity of the court and the had all better be left to legislation. The Consticonfidence that should be felt in its decisions if cution of 1846 was entirely silent as to the numyou allow less than five to hold the court. I be.ber of judges required to make a quorum. It lieve, therefore, that the amendment as originally declared that the court should be composed of proposed by Mr. Goodrich, and I believe also the eight judges, and the question arose at an early majority report, pro;ides the better plan, that day whether, even under legislative authority, five should sit in all cases, and four should less thau eight judges could sit and hold court. concur.

It was determined, however, that they couldMr. COOKE-I think it would be better to that the general law of judicial bodies not loss leave this matter in the hands of the court itself, than of parliamentary bodies only required that or in the Legislature, if any legislative action is a majority should be present-all having a right necessary at all. No Constitution in this State to be present, yet the Legislature did afterward has ever yet prescribed the number of judges act upon it, and, by the Code of Procedure, or by necessary to constitute a quorum. I think that if the judiciary act

, provided that a quorum should we only furnish material for a good court that is consist of six of the eight judges, and that the all that can be required of this Convention, and I concurrence of five should be necessary in a dothink it is far better to leave the subject to be cision. If we put this provision into the Consti. regulated as the necessities of the case may tution where no change can be made in it here. hereafter suggest or require. It may be that the after until the next revision, it is quite reasonLegislature will find it necessary to do something able to anticipate sole difficulty from it, because to secure the dispatch of the mass of business a cocdition of things may arise, as suggested by yet before the court. It may be that some plan the gentleman from Rensselaer (Mr. M. I. Town. will have to be devised either by the court ilself send], in which it might be desirable to enact by or by the Legislature to work off that business, law that four should constitute a quorum, to the and it seems to me that we had a great deal better end that there might be judges not sittiog in leave it to be determined as the necessity may court, but laboring upon the cases already argued. arise.

I hope, therefore, that the motion to reconsider Mr. M. I. TOWNSEND-If the gentleman from will prevail. Ulster (Mr. Cooke) will prepare an amendment to The question was put on the motion of Mr. that effect, I will withdraw my proposition. Hale to reconsider, and it was declared carried.

Mr. COOKE-I am altogether opposed to the The question recurred on the adoption of the proposition of the gentleman from Albany (Mr. A. first branch of the amendment relating to the J. Parker) for the reasou I have stated.

number of judges necessary to constitute a The CHAIRMAN—The Chair would state that quorum. the proposition of the gectleman from Albany Mr. A. J. PARKER-I certainly must differ [Mr. A. J. Parker) involves also the appointment from the gentleman from Onoudaga (Mr. Coin. of the clerk and the reporter.

stock) as to the probability of any embarrassment Mr. COOKE–Then I call for a division of the arising from this provision. Suppose four judges question.

do uot agree, what then? Why then the caso The CHAIRMAN-The question then is on the must be re-argued, but if the whole seven sit, as amendment of the gentleman from Kings (Mr. they probably will, there will be very little probaVan Cutt], as amended and upon which a division bility that four will not concur. I do not myself is asked.

see how any difficulty is to grow out of it, and it The question was put on the branch of the seems to me that it is better to settle this pow, amendment relating to the number of judges in and provide that five shall constitute a quorum, the court of appeals necessary to constitute a and that four shall concur in a decision. The quorum, and it was declared carried.

great difficulty about disagreements has grown The question then recurred on the second cut of the fact that our court has consisted of branch of the amendment relating to the appoint. eight judges, and they disagreed only when ment and removal of the clerk and the reporter they stood four to four. That we avoid here, of the court, and of such attendants as may be as the court will consist of seven, and I do authorized by law, and it was declared carried. not think there will be any great difficulty in

Mr. HALE-I move to reconsider the vote by securing the concurrence of four, so that it will which the number of judges necessary to consti- very rarely, if ever, happen that a re-argument tute a quorum has been fixed, and I do it upon will be necessary. I do not know what more the this ground: Heretofore, as stated by the gentle Legislature could do to avoid the possibility of a man from Ulster (Mr. Cooke], the provisions in disagreement. regard to the number decessary to constituto a Mr. HALE—Will the gentleman permit a quesquorum have been left to be made by the Legis- tio: ? lature, and also the provisions in regard to bow Mr. A. J. PARKER_Yes, sir. many of the judges shall agree in order to decide Mr. HALE-If fivc consitute a quorum, suppose a case, and the Legislature have always said that only five sit? in case of failure to agree upon a second re-argu Mr. A. J. PARKER/Then four must concur to ment the judgment should be affirmed. Now, if decide a case. this provision is inserted in the Constitution, it Mr. HALE-But guppose they do not ? seems to me that we shall be in this dilemma, Mr. A. J. PARKER-Why, then it follows as that iu case of the failure of four judges to agree a matter of judicial law that the case must be reno provision is made to meet the difficulty. argued.

Vene.

Mr. W. C. BROWN-I offer the following ion of the court; but in my opinion, when less amendment:

than five of the judges are able to attend at a "The pumber of judges to form a quorum, and term, the term should be dissolved, and the court the number necessary to concur in a decision i adjourned until the next stated term. shall ro prescribed by law."

Mr. COOKE-To obviate all this difficulty, I The question was put on the amendment of Mr. propose an amendment to the amendinent." I W.C. Brown, and it was declared carried. propose to amend by providing that a majority of

The question then recurred on the first branch the judges shall constitute a quorum. of the original amendment as amended.

Mr. A. J. PARKER—For one, I object to that. Mr. COMSTOCK-I do not think that we need | That would enable four to constitute the court. any such provision as that. It is unnecessary to If we are starting with a court of seven, I think say in the Constitution that the Legislature shall we ought at least to require five to hold the aci upon this; leave it to the general rule govern court. I believe it would lower the dignity of ing such bodies until the Legislature does inter the court and impair its usefulness to fix the

number as low as four. The question was put on the first branch of The question was put on the amendment the original amendment as amended, and it was offered by Mr. Cooke, and it was declared lost. declared lost.

The question then recurred on the amendment Mr. HALE—I would inquire what amendment of Mr. A. J. Parker. was just lost ?

Mr. CONSTOCK-I think that provision is the The CHAIRMAN-It is in relation to the least objectionable if we say any thing on the number of judges required to constitute a quorum; subject. that portion of the amendment is stricken out, Mr. DALY—Before the vote is taken on that and the portion of the amendment which pro- question I desire to say a few words. A ques. vides for the appointment of a clerk and a re- tion was asked me yesterday, in the course of porter is adopted.

debate, which has become the subject of an arti. Mr. A. J. PARKER—Then I offer the follow. cle in the Argus, and of compent in the debate ing instead of it:

this morning during my absence. The question “Any five of the judges of said court shall form asked me was in relation to the corruption of the a quorum, and the concurrence of four shall be judiciary. I desire to express no opinion upon necessary to a decision until otherwise provided that subject now; I merely desire that what by law."

I said yesterday in respect to it may not be mis. Mr. COOKE-Is not that substantially the understood. I understood the question asked me proposition which has just been voted down? yesterday to be whether I had ever heard of cor.

Mr. ANDREWS–I do not see any necessity ruption on the part of the judges of the State since for fixing a general rule by the amendment just the adoption of the Constitution of 1846 ; and so made, when by the qualifications attached to it understanding the question, I answered it by pointthe matter is referred to the Legislature. ing to an article in the North American Review,

Mr. A. J. PARKER-I am very much afraid containing charges of corruption, without mean. that unless you require five judges to sit in court, ing to say or to assume that those charges were the Legislature may authorize a less number to true or untrue, and without professing to have hold court, and thus destroy the influence of the any personal knowledge on the subject. In tho court. Thoy may perhaps divide it up so as to article in the journal to which I have referred, it make two courts, and thus create the very evil is stated that I was asked whether I had any that we desire to avoid. Now, it seems to me personal knowledge of the taking of a bribe hy that we should at least provide how many shall any judge; and I find upon ioquiry that the queshold the court, otherwise the question will arise tion was probably put in that way, for it was so in the court at once whether any less than seven taken down by the stenographer. Supposing, can do so.

very naturally, that the gentleman who asked Mr. SPENCER—I would like to ask the gen- the question did not inteud to imply any pertleman from Albany (Mr. A. J. Parker) if any sonal knowledge of that character on my part, evil has occurred up to this time or even been I did not understand it in that way. If I had so apprehended from the difficulty which his amend. understood it, I should have answered very disment suggests ?

stinctly that I had not any such knowledge. I Mr. A. J. PARKER-I think an evil existed understand that in the Convention this morning, before in the number of the court and in the pro- during my absence, the gentleman who asked visions which tho Legislature made in regard to the question yesterday recurred to the subject, it, so that there should be four for affirming and and said that it appeared upon my statement that four for reversing a judgment, thus making a re- the corruption of the judiciary of New York was argument necessary. I believe that if this pro- condned entirely to the city of New York. The vision be adopted ro-argument will not be neces. corruption of the New York judiciary, or any sary in more than one case in a thousand. question of that nature, is a very delicate subject

Mr. BARKER-We deem it necessary to say to interrogate me, an existing judge of that city, how many judges shall constitute the court, and I upon, or for me to speak upon, as I am necessari. think it would be wrong to leave it in the power ly one of the parties involved in any such inquiry. of the Legislature to say that less than a majority I desire, therefore, merely to reiterate now what of that court should constitute a quorum. With. I supposed I had said yesterday, and what I cerout this provision it might be that one judge sit- tainly meant to say in reply to that question, that ting in review could make a decision as the decis. from what I have heard about the corruption of

the judiciary, it is not confined to the city of Now | pensation as judges of the court of appeals York, and that I have heard charges of corrup- any vacancy occurring in the office of commistion made in other parts of the State besides that sio ser shall be filled in such manner as the Legcity, quite as grave as any made in the article in islature shall by law direct. the North American Review. If I am rightly Mr. SPENCER-My object in offering this informed of what the gentleman (Mr. Graves) said amendment is twofold. In the first place that this morning, he will do me the justice to believe the business of the court of appeals may be left that he misunderstood the remarks I made yesler. entirely under the control of that court, and not day, when he quoted me as an authority for the be subjected to the disposal or control of any statement that corruption in the judiciary, if it other tribunal, or any other department of the exists, is confined exclusively to the city of New government. It seems to me eminently proper York.

that it should be so. We have endeavored by Mr. VAN COTT—I move to amend by strik. the article we have framed in regard to the court ing out the words at the end of the amendmeut, of appeals, to secure as far as practicable the "until otherwise provided by law."

great ends of such a court, that of unity and that Mr. COOKE–Then it is identical with the of permanency, in order that the law may be question we have once passed upon and voted made, as nearly as may be, certain and reliable. down.

Another object which I have in presenting this The CHAIRMAN–The Chair is of opinion that amendment, is with a view at the proper timo that would leave the amendment precisely as it and place to offer another amendment, which has been already intended.

shall secure in the court of appeals the services The question was put on the amendment of of those judges who now constitute the court of Mr. A. J. Parker, and it was declared carried. appeals, and I shall do so for the purpose of con.

Mr. GRAVES-I move to add at the end of tributing so far as it is possible, by that measure, the section the following: "The court shall cou. to the permanence and stability of the court, in tipue its session at each term thereof until the order to secure the objects which I have already causes upon the calendar shall be heard or decided, named, certainty and reliabilty in the administraor put over, or disposed of by the consent of the tion of the law. The members the present parties."

court of appeals having for some considerable The question was put on the amendment of time been members of that court, and accus. Mr. Graves, and it was declared lost.

comed to its business, and acquaiuted with its The SECRETARY read the third section as previous decisions will impress upon the now follovs :

court which shall be organized under this ConSec. 3. Upon the organization of the court of stitution, if one shall be, something of their own appeals under this Const'tution, the causes the method of business, and something of their own peuding in the present court of appeals shall be construction of the law as it has been declared come vested in tho court of appeals hereby hy that court. On the contrary, if there shall bo created. Such of said causes as are pending on a court entirely new, observation and experience the first day of January, eighteen hundred and show that it is likely to lead to the same fluctu. sixty-eight, shall be heard and determined by a lions and uncertainties in law under which we commission to consist of five commissioners of have suffered for so long a time. By the creation appeals. But the court of appeals hereby cre- of a commission in the form provided by the ated, for cause shown, may order any cause thus amendment, the decisions of the court of appeals pending before the said commissioners, to be proper will stand as the law of this State, while heard in such court. Such commission shall con. the decisions of the particular cases referred to sist of the judges of the present court of appeals the commission will be the law for those cases elected thereto, and a fifth commissioner, who only, and will be in a measure subordinate to the shall be appointed by the Governor, by and with decisions of the court proper, and not possessing the advice and consent of the Senate.

the same weight of authority. Mr. SPENCER-I offer the following amend. Mr. E. A. BROWN-I move to amend that ment: Strike out after the word "created,” in amendment by inserting after the words “not line four, and insert the following:

less than one year,” the words "apd not exceedThe SECRETARY read the amendment asing two years." I am certainly opposed to estabfollows:

lishing such a permanent body as this commis. " In case there shall at any time be such an sion would be, to hold office to all eternity. accumulation of business in the court of appeals Mr. SPENCER-I have no objection to acceptthat the same cannot be disposed of speedily and ing the amendment of the gentleman, but it may promptly, and the fact of such accumulation shall possibly, at the end of that time necessitate the be duly certified by the court to the Governor, issue of a new certificate and a new appointhe shall, prior to the final adjournment of the ment. Legislature, after being so certified, ly and with Mr. MCDONALD—I move to amend by saying, the advice and consent of the Senate, appoint “pot less than one year, nor more than three five coromissioners, with power to hear and deter. years." With the accumulation of causes now on mine such cases pending in said court, as shall the calendar of the court of appeals, it is very by said court be assigned for the purpose. Such evident that the commissioners will have to sit commissioners shall hold their office for not less longer than rne year or two years, in order to disthan one year, nor more than two years, and un-pose of them. til they shall have disposed of the business 80 The question was put on the amendment of assigned, and they shall receive the same com-'Mr. McDonald, and it iras declared lost.

.. The question then recurred on the amendment thirteenth line, where the word "three" occurs of Mr. Spencer.

by changing it to the word "two." All I have Mr. CHESEBRO-I hope this amendment will to say is that if we constitute a court with seven not prevail. It is offered, as I understand it, as judges we do it with the idea that it is to be a a substitute for the provision reported by a ma. working court, and that they are to work at this jority of the Judiciary Committee. Now, I do calendar of accumulated business at least a pornot believe in creating a court of appeals for the tion of the time. It seems to me that the new purpose of doing the business that will belong business that will come before the court will not to that court, and at the same time recognizing in keep the new court consisting of seven, employed, the Constitution the fact that we are creating a but that they will have much time to devote to court which will not be competent to discharge closing up the old calendar. the duties which will devolve upon it. By in- The question was put on the amendment of serting this provision, we will enable the court to Mr. E. A. Brown, and it was declared lost. be just as indifferent to the discharge of their du- Mr. BICKFORD-I ask unanimous consant to ties as it pleases, because when they shall, by offer an amendment to the third section. their indifference, have suffered the accumulation The CHAIRMAN-The amendment may ho of business, all they have to do is to establish received under the head of general amendments. and certify to that fact, and the Legislature will But it may be received now if there be no objecbe bound to go on and relieve them, by a commis- tion. sion, from the results of their own indiffer ce. A DELEGATE-I object. We now recognize the fact that there is an accu- The CHAIRMAN-Objection being made, the mulation of business that is to be disposed of, amendment cannot be received. but to acknowledge by this provision in the Con- The SECRETARY read the fifth section as stitution that the court we are here organizing follows: is not going to have the capacity to do the work SEC. 5. At the end of ten years from the adoption of the court of appeals, seems to me unwise. of this Constitution by the people, the Legislature

The question was put on the amendment of shall have power to provide for the appointment Mr. Spencer, and it was declared lost.

of a commission to hear and determine such The SECRETARY read the fourth section, as causes as may be transferred to it by the court follows:

of appeals, in such manner as the Legislature may SEC. 4. If any vacancy shall occur in the office direct. of said commissioners, it shall be filled by ap- Mr. A. J. PARKER-I movo to strike out this pointment by the Governor, by and with the ad. section. vice and consent of the Senate; and if the Sen- The question was put on the amendment of Mr. ate is not in session by the Governor, but iu sucb A. J. Parker, and it was declared carried. case, the term of office shall expire at the end of The SECRETARY read the sixth section as the session of the Senato next after such appoint- follows: ment. The said commissioners shall appoint from SEC. 6. There shall be a supreme court having their number a thief commissioner (and may in general jurisdiction in law and equity, subject to like manner fill all vacancies in such appoint. such appellate jurisdiction of the court of appeals ment); (and may appoint and remove such atten- as may be prescribed by law. The Legis. dants as shall be provided for by law). The re. lature, at its session next after tho adopporter of the court of appeals shall be the reporter tion of this constitution, shall divide the of said commissioners, And the decisions of said State into four judicial departments, and each of commissioners shall be certified to and entered eait departments into two districte, to be bounded and enforced as the judgments of the court of hy county lines. The city and county of New appeals. The said commission shall continue York shall form one district. There shall be for three years, unless the causes committed to it thirty-four justices of the said supreme court; ten are sooner determined. If at the end of three thereof in the department in which is the city and years from the time of entering on its duties, all county of New York, and eight in each of the the causes assigned to such commission shall not other departments. But the Legislature shall have been heard and determined, the residue have power to provide for an additional justice shall be heard and determined by the court of in each of said departments. One-balf of the appeals hereby created.

justices in each department shall reside in each Mr. E. A. BROWN-I move to amend by district of such department at the time of their striking out “three,” in line fifteen, and inserting election.

Mr. HALE-I move to substitute for that 83CMr. COMSTOCK-I do not think that would tion the sixth section of Document 140. be expedient. The duration of that commission The SECRETARY read the substitute as fol. was carefully considered by the Judiciary Com. lows: mittee, and it was thought to be unsafe to make SEC. 6. There shall be a supreme court having it positively less than three years. There is an general jurisdiction in law and equity, subject to arrearage of one thousand cases or more now pend. such appellate jurisdiction of the court of appeals ing in the court of Appeals, and it will probably as may be prescribed by law. There shall be in the take a commission, or any other tribunal, over State twelve judges of said court. The existing two years to dispose of them. It was thought division of the State into eight districts shall conbest, on the whole, to constitute the court with a lique, subject to the power of the Legislature to commission for three years.

change the same, as in this article provided. In Mr. E. A. BROWN-I move to amend in the the first judicial district there shall bo four, and

"two."

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