as four to constitute the court and I think it will Mr. COMSTOCK-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 tution of 1846 was entirely silent as to the numyou allow less than five to hold the court. I beber of judges required to make a quorum. It lieve, therefore, that the amendment as originally proposed by Mr. Goodrich, and I believe also the majority report, provides the better plan, that five should sit in all cases, and four should

concur.

Mr. COOKE-I think it would be better to leave this matter in the hands of the court itself, or in the Legislature, if any legislative action is necessary at all. No Constitution in this State has ever yet prescribed the number of judges necessary to constitute a quorum. I think that if we only furnish material for a good court that is all that can be required of this Convention, and I think it is far better to leave the subject to be regulated as the necessities of the case may hereafter suggest or require. It may be that the Legislature will find it necessary to do something to secure the dispatch of the mass of business yet before the court. It may be that some plan will have to be devised either by the court itself or by the Legislature to work off that business, and it seems to me that we had a great deal better leave it to be determined as the necessity may arise.

Mr. M. I. TOWNSEND-If the gentleman from Ulster [Mr. Cooke] will prepare an amendment to that effect, I will withdraw my proposition.

Mr. COOKE-I am altogether opposed to the proposition of the gentleman from Albany [Mr. A. J. Parker] for the reason I have stated.

The CHAIRMAN-The Chair would state that the proposition of the gertleman from Albany [Mr. A. J. Parker] involves also the appointment of the clerk and the reporter.

Mr. COOKE―Then I call for a division of the question.

The CHAIRMAN-The question then is on the amendment of the gentleman from Kings [Mr. Van Cott], as amended and upon which a division is asked.

The question was put on the branch of the amendment relating to the number of judges in the court of appeals necessary to constitute a quorum, and it was declared carried.

declared that the court should be composed of eight judges, and the question arose at an early day whether, even under legislative authority, less than eight judges could sit and hold court. It was determined, however, that they couldthat the general law of judicial bodies not loss than of parliamentary bodies only required that a majority should be present-all having a right to be present, yet the Legislature did afterward act upon it, and, by the Code of Procedure, or by the judiciary act, provided that a quorum should consist of six of the eight judges, and that the concurrence of five should be necessary in a decision. If we put this provision into the Constitution where no change can be made in it hereafter until the next revision, it is quite reasonable to anticipate some difficulty from it, because a condition of things may arise, as suggested by the gentleman from Rensselaer [Mr. M. I. Townsend], in which it might be desirable to enact by law that four should constitute a quorum, to the end that there might be judges not sitting in court, but laboring upon the cases already argued. I hope, therefore, that the motion to reconsider will prevail.

The question was put on the motion of Mr. Hale to reconsider, and it was declared carried.

The question recurred on the adoption of the first branch of the amendment relating to the number of judges necessary to constitute a quorum.

Mr. A. J. PARKER-I certainly must differ from the gentleman from Onondaga [Mr. Coinstock] as to the probability of any embarrassment arising from this provision. Suppose four judges do not agree, what then? Why then the case must be re-argued, but if the whole seven sit, as they probably will, there will be very little probability that four will not concur. I do not myself see how any difficulty is to grow out of it, and it seems to me that it is better to settle this now, and provide that five shall constitute a quorum, and that four shall concur in a decision. The 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 necessary to constitute a quorum have been left to be made by the Legislature, and also the provisions in regard to how many of the judges shall agree in order to decide a case, and the Legislature have always said that in case of failure to agree upon a second re-argument the judgment should be affirmed. Now, if this provision is inserted in the Constitution, it Mr. HALE-But suppose they do not? seems to me that we shall be in this dilemma, Mr. A. J. PARKER-Why, then it follows as that in 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.

Mr. HALE-Will the gentleman permit a question?

Mr. A. J. PARKER-Yes, sir.

Mr. HALE-If five consitute a quorum, suppose only five sit?

Mr. A. J. PARKER-Then four must concur to decide a case.

argued.

Mr. W. C. BROWN-I offer the following [ion of the court; but in my opinion, when less than five of the judges are able to attend at amendment: term, the term should be dissolved, and the court adjourned until the next stated term.

"The number of judges to form a quorum, and the number necessary to concur in a decision shall be prescribed by law."

The question was put on the amendment of Mr.
W. C. Brown, and it was declared carried.
The question then recurred on the first branch
of the original amendment as amended.

Mr. COMSTOCK-I do not think that we need any such provision as that. It is unnecessary to say in the Constitution that the Legislature shall act upon this; leave it to the general rule governing such bodies until the Legislature does inter

vene.

The question was put on the first branch of the original amendment as amended, and it was declared lost.

Mr. HALE-I would inquire what amendment was just lost?

The CHAIRMAN-It is in relation to the number of judges required to constitute a quorum; that portion of the amendment is stricken out, and the portion of the amendment which provides for the appointment of a clerk and a reporter is adopted.

Mr. COOKE-To obviate all this difficulty, I I propose an amendment to the amendment. propose to amend by providing that a majority of the judges shall constitute a quorum.

Mr. A. J. PARKER-For one, I object to that. That would enable four to constitute the court. If we are starting with a court of seven, I think we ought at least to require five to hold the court. I believe it would lower the dignity of the court and impair its usefulness to fix the number as low as four.

The question was put on the amendment offered by Mr. Cooke, and it was declared lost. The question then recurred on the amendment of Mr. A. J. Parker.

Mr. COMSTOCK-I think that provision is the least objectionable if we say any thing on the subject.

Mr. DALY-Before the vote is taken on that question I desire to say a few words. A question was asked me yesterday, in the course of debate, which has become the subject of an arti

Mr. A. J. PARKER-Then I offer the follow-cle in the Argus, and of comment in the debate ing instead of it:

"Any five of the judges of said court shall form a quorum, and the concurrence of four shall be necessary to a decision until otherwise provided by law."

Mr. COOKE-Is not that substantially the proposition which has just been voted down?

Mr. ANDREWS-I do not see any necessity for fixing a general rule by the amendment just made, when by the qualifications attached to it the matter is referred to the Legislature.

Mr. A. J. PARKER-I am very much afraid that unless you require five judges to sit in court, the Legislature may authorize a less number to hold court, and thus destroy the influence of the court. They may perhaps divide it up so as to make two courts, and thus create the very evil that we desire to avoid. Now, it seems to me that we should at least provide how many shall hold the court, otherwise the question will arise in the court at once whether any less than seven can do so.

this morning during my absence. The question asked me was in relation to the corruption of the judiciary. I desire to express no opinion upon that subject now; I merely desire that what I said yesterday in respect to it may not be mis. understood. I understood the question asked me yesterday to be whether I had ever heard of corruption on the part of the judges of the State since the adoption of the Constitution of 1846; and so understanding the question, I answered it by pointing to an article in the North American Review, containing charges of corruption, without meaning to say or to assume that those charges were true or untrue, and without professing to have any personal knowledge on the subject. In tho article in the journal to which I have referred, it is stated that I was asked whether I had any personal knowledge of the taking of a bribe by any judge; and I find upon inquiry that the question was probably put in that way, for it was so taken down by the stenographer. Supposing, very naturally, that the gentleman who asked the question did not intend to imply any personal knowledge of that character on my part, I did not understand it in that way. If I had so understood it, I should have answered very disstinctly that I had not any such knowledge. I understand that in the Convention this morning, during my absence, the gentleman who asked the question yesterday recurred to the subject, and said that it appeared upon my statement that the corruption of the judiciary of New York was contined entirely to the city of New York. The corruption of the New York judiciary, or any 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 necessarithink 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

Mr. SPENCER-I would like to ask the gentleman from Albany [Mr. A. J. Parker] if any evil has occurred up to this time or even been apprehended from the difficulty which his amendment suggests?

Mr. A. J. PARKER-I think an evil existed before in the number of the court and in the provisions which the Legislature made in regard to it, so that there should be four for affirming and four for reversing a judgment, thus making a reargument necessary. I believe that if this provision be adopted re-argument will not be necessary in more than one case in a thousand.

the judiciary, it is not confined to the city of New | 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 informed of what the gentleman [Mr. Graves] said this morning, he will do me the justice to believe that he misunderstood the remarks I made yesterday, when he quoted me as an authority for the statement that corruption in the judiciary, if it exists, is confined exclusively to the city of New York.

"In case there shall at any time be such an accumulation of business in the court of appeals that the same cannot be disposed of speedily and promptly, and the fact of such accumulation shall be duly certified by the court to the Governor, he shall, prior to the final adjournment of the Legislature, after being so certified, Ly and with Mr. McDONALD-I move to amend by saying, the advice and consent of the Senate, appoint "not less than one year, nor more than three five commissioners, 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 one 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 so The question was put on the amendment of assigned, and they shall receive the same com- Mr. McDonald, and it was 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 to say is that if we constitute a court with seven judges we do it with the idea that it is to be a working court, and that they are to work at this calendar of accumulated business at least a portion of the time. It seems to me that the new business that will come before the court will not keep the new court consisting of seven, employed, but that they will have much time to devote to closing up the old calendar.

Mr. COMSTOCK-I do not think that would be expedient. The duration of that commission 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 best, on the whole, to constitute the court with a commission for three years.