in each of the other judicial districts two justices of the supreme court; and the Legislature may provide for additional justices, not exceeding one in each district.

force to do all the business of the State. There were complaints of the judges-no complaints of any lack of ability or of corruption on their part -but complaints that they were political judges. Mr. HALE-The importance of the subject and that they sometimes showed partisanship, not which is now before this committee can hardly in their decisions on the bench, but in their conbe overstated. It is a subject in many respects duct off the bench, and especially in the council more important even than that upon which we of revision. Those complaints were made on the have just been passing. It is true that the supreme floor of the Convention, although two of the court is in some respects subordinate to the most distinguished judges of that court-James court of appeals. But it is the great court of Kent and Ambrose Spencer, were members of that original jurisdiction of the State. It is the court Convention. I have examined those debates with which comes nearest to the people, and which considerable care, but I can find no complaint affects the people most directly and most univer- there of the system, the system which made the sally, and with which the people in their ordinary court a unit, and which enabled those judges to business become the best acquainted. The sit in banc and also to hold circuits and to hold powers of the judges of this court are in many the court which reviewed their own decisions. respects greater than those of any other officers However, notwithstanding the fact that no comof the State. In a very large class of cases- plaint was made of the system, a change was cases which are said to be in the discretion of the made in it, by which, instead of the supreme court court-there is no appeal from the decision of consisting of judges who did circuit and banc the supreme court. And there are many of the duty, three judges were appointed to sit in Albany decisions of that court which are not the subjects in banc, and the State was divided into eight cirof appeal, yet are of momentous consequence to cuits, in each of which a circuit judge was apthe individuals concerned. And a great pro- pointed. There is one fact in relation to this portion of the cases which are appealable matter which possesses an historical interest, through the inability of the parties to incur the and that is, that the change which was made expense of an appeal, or from their want of that by the Convention of 1821 was reported by no love of litigation which is necessary to induce committee. A judiciary committee was appointed men to nurse their lawsuits during the period of early in the deliberations of that Convention, the five or six years which must now elapse before a chairman of which was Mr. Munro of Westchester, case can be decided in the court of appeals, go and which contained among other members Judgo no farther than the supreme court. The supreme Sutherland who was afterward upon the bench court is in fact, though not in name, to the great of the supreme court. That committee reported mass of litigants in this State the court of final a system, but their report did not contemplate resort. I think, therefore, that we should the change that was made. It retained the old approach this question with quite as much care, system as to the supreme court, providing for aidand quite as full deliberation as any other ques-ing it by the addition of a court of common pleas. tion that will come before the committee. with president judges, with an organization similar propose to look briefly at the judicial history of this State so far as it relates to the organization of this court of original jurisdiction. It will be noticed that the amendment which I propose, and the plan which is contained in document 140, which I had the honor to submit, does not affect in any way the question of tenure, or the mode of the creation of the judges, whether by election or by appointment. It relates solely to the organization of the court, and whatever may be the final result of the deliberations of this committee upon these subjects, the question of organization is a distinct question, and the amendments which I propose would be equally proper under any system. For nearly fifty years in the history of our State the supreme court was in fact as well as in name the supreme court of the State of New York. It was a unit. It consisted of five judges. Those five judges held the circuits in different parts of the State. They also sat in banc and reviewed the determinations made at circuit. A convention was called in 1821 for the purpose, among other things, of changing that system. They met then, as we meet now, to discuss the existing judiciary, and the question whether changes were important or necessary. In examining the debates of the Convention of 1821 you will find that the organization of that court was complained of in one respect, and in one respect only-the inadequacy of the

to that of the supreme court. The report of the
committee, however, was rejected, and a select
committee was appointed of which also Mr.
Munro was chairman. Upon that committee
were Martin Van Buren, General Root of Dela-
ware, Col. Young of Saratoga, and other dis-
tinguished lawyers of the State; and that select
committee also made a report, but their report
upon the subject of the judiciary was not adopted;
and the system which was finally adopted was one
which was introduced by way of amendment to the
report of the select committee by a gentleman, I
think not a lawyer, Mr. Carpenter of Tioga. The
system proposed by him was adopted by the
Convention, and prevailed in this State from
1822, until the change was made in the Constitu-
tion in 1846. In regard to the organization of
the courts it will be seen that the change effected
was a sweeping one. Judges who sat in banc
under the Constitution of 1821 had nothing,
whatever, to do with circuit duty. The supreme
court in banc was not a court of original juris-
diction except for some special purposes.
It was
an appellate court, and an appellate court only.
The circuit judges who were appointed in the
eight judicial circuits had nothing, whatever, to
do on the other hand with the review of decisions
They were simply trial judges, and their office
was confined to the discharge of their duties at
nisi prius. Both those systems however, had one

And I

thing in common. Co-existing with them from distinguished members, yet it was denied upon the adoption of the Constitution of 1777 up to the floor of the Convention that the majority of 1846, there was a court of chancery, the business the committee favored it, and so far as I can of which was very great; and the existence of gather from looking at the debates, the fact that court, of course, very greatly diminished the seems to have been that the majority assented to business of the supreme court. Under the system its being reported as the report of the of 1821 the judges of the supreme court were also committee without concurring in many of its demembers of the court of errors, as was the chan- tails. So far as it divided the court into these cellor. In 1846 another Convention was called, a eight sections it was disapproved of, not only by Convention which effected a change still more many of the most distinguished men of that comradical and sweeping than that effected by the mittee, but also by many of the ablest lawyers Convention of 1821. The first Constitution and and strongest men in the Convention, some of the Constitution of 1822 adhered to the appoint- whom were not lawyers, and whose views are ing system and to the life tenure. The Constitu- recorded in the debates. The evils which have tion of 1846 abolished both. I do not now resulted from that system were then predicted propose to discuss the question whether and pointed out, and to some extent they were they did wisely in that. That question I admitted even by those who were in favor of the consider as already determined by this committee, change. Judge Brown, in advocating the adopand therefore not now before it. I have my tion of the majority report, admitted that there views upon the subject which have been expressed was an element of evil in it, that diversity of deheretofore, and which did not concur with those cision would be likely to exist under it, yet hoped which have prevailed in this committee. that it would not exist to so great an extent as But, as I have said, the Constitution of 1846 others feared. In advocating the system, and ennot only changed the tenure of office, and deavoring to show that it would not necessarily the mode of selecting judges, but also completely create such diversity of decisions as was predictchanged the organization of the court; and since ed by some of its opponents, the friends of this the adoption of the Constitution of 1846 there system said that the judges in these courts would has been no supreme court of the State of New interchange: that provision would be made so York. I think I speak advisedly when I say that judges in one district should not be confined this. There has been a supreme court in name, to that district, but could go all over the State, but there has been in fact no such court. In and by thus constantly exchanging places upon the place of it we have what was called by Mr. the general term bench and communicating their O'Conor upon the floor of the Convention of 1846, views to each other, they would be able substanan octagonal court. We have eight local courts. tially to agree upon all principles of law. The evils attendant upon that system have al- may as well say here that an attempt was made ready been somewhat commented upon, yet the by the Legislature after the adoption of that Consystem has had its defenders upon this floor. stitution to carry out that idea. A provision of The question as to whether that system should be law was made that the judges should interchange; contiuued, whether we shall continue as we have that they should hold courts in different districts, been for the last twenty years without any State and for some time that system prevailed in the supreme court, is now before this committee. State. But it was found by the judges that it was an When the subject of the organization of the su- exceedingly inconvenient system for them, and so preme court came before the Convention of 1846, the law requiring this interchange was repealed, and there was by no means unanimity among the for the last twelve or fifteen years there has been eminent men of that body-the many great law-no such interchange. Judges from the rural yers who were upon the floor of that Convention, districts have sometimes been called to the city in regard to what change should be effected. A of New York to aid in the transaction of business Judiciary Committee was appointed in that Con- there; but in the country districts this exvention, which consisted of some of the first law-change of judges is almost unknown. The judges yers of the State. Its hea was a gentleman of the third district confine themselves here and who afterward filled the office of chief justice hold their general terms in the city of Albany, of the court of appeals, Judge Ruggles, who perhaps had no superior in this State for judicial ability, and for purity and integrity of character. Among the members of that committee were Judge Brown, of Orange, Charles O'Conor, George A. Simmons, of Essex, and many other gentlemen whom I might name, and who would be at once recognized by all the lawyers upon this floor as men who stood high in the profession, and who were perhaps as able representatives of the bar of this State as could have been selected at that time. That committee, after weeks of deliberation, were unable to agree upon a report. A report was presented by the chairman of that committee which was substantially adopted by the Convention. Although that report had the approbation of the distinguished chairman of that committee, and of several other of its most

and the judges in each of the other districts confine themselves to the districts for which they they were elected, except, as I have said, when they are sometimes called to the city of New York.

Mr. S. TOWNSEND-Will the gentleman allow me to say that I thank him for bringing out this fact? I had expected to hear some of the legal members here who were associated with myself in the Convention of 1846, state to this Convention the fact that the interchange of circuits and opinions between judges of the supreme court was provided for by law, following the Constitution, and enforced, I think, by a phrase in the Constitution itself. I know that it was intended by the framers of the Constitution of 1846 that that should be a part of our judicial system, and I now learn from the gentleman from Essex [Mr. Hale]

that the bar of this State are responsible for the| repeal of that law; and I desire now to express the belief that if that had been properly carried out we should now not have these complaints of discrepancies between the decisions of the judges of the supreme court.

Mr. HALE—The gentleman perhaps misun stood me in one respect. I did not say the bar, but the bench.

Mr. S. TOWNSEND-Then so much the

worse.

Mr. HALE-If my friend will excuse me, I will defer answering his question until I come to that portion of my remarks. It has been said that, notwithstanding this diversity of decision, in fact there was no such difficulty to any great -xtent. I propose to call the attention of this committee to the fact that a difficulty does exist, that it is quite as great as could be anticipated from any consideration or principle upon which these courts were organized. I will illustrate my remarks by an incident which occurred in my practice. I was applied to by a client to know whether he could recover of a common carrier damages for delay in transporting merchandise, sustained by a fall in the market between the time the goods should have been delivered and the time they were actually delivered. What was my reply? I told him that the supreme court in the eighth district had decided, in a case reported in 19 Barbour, in which a very learned opinion was delivered by Judge Marvin where The hour of two having arrived, the PRESI-precisely that case came before the court; that DENT resumed the chair, and the Convention he could not recover; that a fall in the market took a recess until seven o'clock P. M.

Mr. HALE-I should say, however, that the change effected at the instance of the judges was undoubtedly necessary for their convenience, and not for their convenience only, but that it was absolutely necessary in order to enable them to perform their duties; and I did not mention the fact that that change was made through their influence, with the view of reflecting at all upon the gentlemen who were upon the bench at the time the change was made.

EVENING SESSION.

The Convention re-assembled at seven o'clock, and again resolved itself into Committee of the Whole, on the report of the Committee on the Judiciary, Mr. C. C. DWIGHT, of Cayuga, in the chair.

The CHAIRMAN announced the pending question to be on the amendment proposed by Mr. Hale, who was entitled to the floor.

Mr. HALE-At the close of my remarks this morning I had come to the consideration of the organization of the supreme court, as adopted by the Convention of 1846. I propose to consider somewhat briefly the defects and evils which I think result from that system. I have spoken of the evils which were predicted; I will now speak of those which have followed. The first result was that instead of one supreme court in this State, we have had in effect eleven courts of coordinate jurisdiction, whose decisions are of equal authority, and the decisions of neither of which are authority beyond its district, or more limited locality. We have eight supreme courts, one in each judicial district. We have in the city of New York a superior court and a court of common pleas. We have in the city of Buffalo a superior court. From all these courts appeals are taken directly to the court of appeals. All. as I said before, are of equal authority, and all of them have general terms. Now, under such a system, it is impossible to have uniformity of decision. The gentleman from Rensselaer [Mr. M. I. Townsend] conceded these disadvantages; but he says it is owing to the diversity of the human mind that we cannot have uniformity in the decisions of the supreme court. I shall endeavor to show that a degree of uniformity is not impossible; and that it is the system which produces this intolerable diversity of opinions.

Mr. BARKER-If it does not interrupt my friend, I would like to ask him a question. Will he state how any court can be organized, and where there are appeals, without conflicting decisions.

was not an element which could be considered by a jury in an action to recover damages. But [ also informed him that there was another decision later than that, in 22 Barbour, in which the general term in an adjoining district came to a directly opposite conclusion; that Judge Smith had, in a very learned opinion, shown Judge Marvin and his associates to be clearly wrong; that his damages could be recovered. Upon that my client's face brightened. But I was obliged to say that still later in Barbour was a general term decision in the same eighth district, in which Judge Marvin, in a very learned opinion, had reviewed Judge Smith's opinion at length, and shown that he was wrong. Now, I live in the fourth district. I have my own opinion about this matter, but I could not tell him how the supreme court of the fourth district was going to decide. Four learned judges in the eighth district had come to one conclusion, and four judges in the seventh district had come to a contrary conclusion. I had my own views as an humble member of the profession, but I could not tell my friend what the law was. My friend from Rensselaer [Mr. M. I. Townsend], and my friend from Saratoga [Mr. Pond], argue that is not an evil. When I asked my friend from Saratoga what he would do in case he found one general term had decided one way, and another general term had decided in a directly opposite way, and there was no decision of the court of appeals, he replied, in substance, that it rather gratified him, and gave him a chance to examine and investigate. If the object of a supreme court is to gratify the ambition of lawyers, or their industry, or love of investigation or comparison, then my friend from Saratoga has a very fine opportunity. I have always supposed that it was desirable there should be some certainty in the law, rather than that the desire of lawyers to investigate and draw independent conclusions of their own should be gratified. I do not think there is much weight in the argument that because a lawyer has opportunity to investigate, and compare views, therefore such a system is not an evil. We have in our reports hundreds

of cases upon which the law has been decided | rio [Mr. McDonald], and others, that the court of one way by a general term in Albany, another appeals will settle all this. There are two anway in Saratoga, another way in Poughkeepsie, swers to be made. In the first place, there are and yet another way in New York. I will venture to say there is no parallel to this in the Union.

Mr. McDONALD-Will the gentleman allow me? I would ask him whether either of those cases were appealed, and if so, when?

Mr. HALE-I will answer the gentleman, that I do not know whether they were appealed or not. I know I could find no decision upon either of those points in the court of appeals, when at the time I speak of I investigated the question. Mr. CHESEBRO-I can say that one of the cases was appealed, but settled by the parties before argument.

Mr. BARKER-Was the gentleman able to give his client any advice with those two conflicting opinions before him?

Mr. HALE-I was.

Mr. BARKER-I am glad to hear it.

many cases which cannot go to the court of appeals. All cases originating in justices' courts cannot be carried to the court of appeals, except by consent of the general term. It is known to every member of the profession, and every man upon this floor, that cases of just as much importance, so far as regards the principles which are settled, arise in justices' courts as in the supreme courts. The principle involved in a five dollar suit in a justices' court may determine the right to a large estate in the supreme court hereafter. In this class of cases there is no possibility of going to the court of appeals, except by consent of the general term. But there is another answer still, and a very conclusive answer to this suggestion that the court of appeals will remedy all this. How large a proportion of the cases decided in the supreme court are taken to the court of appeals ?

Mr. HALE-I can tell the gentleman what it Of the cases which are believed by the counsel,

was.

and by the parties interested to be decided wrong Mr. BARKER-O, I don't want to know. how many are carried to the court of appeals? I Mr. HALE-I advised him, as he was able to appeal to gentlemen of the profession around me do it, to sue and have the law settled. [Laughter ] here whether in one-half the cases or in one-fifth Mr. BARKER-Very lawyer-like! [Laughter.] the cases in which they believe they are erroneMr. HALE-My friend on my right [Mr. Beck-ously beaten they advise their clients to go to the with] mentions another instance which came un- court of appeals after their defeat in the supreme der his observation, of two cases in reference to court? And why? Because the risk and the rolling stock upon railroads, in one of which it cost is so great. If a man with a case involving was decided to be personal property, in the other, two hundred dollars has it erroneously decided, if real. One case was mentioned by my friend from he goes to the court of appeals he must run the risk Schenectady [Mr. Landon] this afternoon, in his of having to pay perhaps five hundred dollars costs remarks to the committee. It is a very import of the opposite party, besides paying his own lawyer ant question, whether the married woman's act, and the lawyer in Albany for arguing the case. as it is called, abolished the right of tenancy by The court of appeals is a fine relief for a poor man the curtesy. In the fourth district the general who is suffering from an erroneous decision of tho term decided it did; in the first district it has general term which may be in conflict with a debeen decided it did not. I do not know how it cision of another general term! The suggestion is in this district. What is the result of such a con- reminds me of an anecdote told of a modern Enflict of decisions in this instance? A man living glish judge when he was sentencing a poor man in one county, a poor farmer, perhaps, loses his for bigamy. When asked the usual question wife. When he inquires what his rights are as whether he had any thing to say why sentence to the real property which his wife had, he is told should not be passed upon him he replied: tenancy by the curtesy is abolished, and that he "Why, your lordship, it is a very hard case for has no right to the estate his wife owned in her me; my wife ran away with another man, and life-time. His neighbor across the line, in Albany left me with a large family of children; I could county, for instance, in precisely similar circum-get no woman to stay with me to take care of stances, is told by the law, as expounded in his them unless I married her." "Why," says the district, you have a tenancy by the curtesy; you judge, "you did very wrong; you should have can have this little farm for yourself for brought an action for crim. con. against your wife's your life, while your neighbor in Waterford seducer; that would have cost you perhaps a hunmust give up his property. Another ques-dred pounds. Then you should have brought tion which arises frequently and is of very your bill in the ecclesiastical court for a great importance, is the question of the con- divorce a mensa et thoro; that would probably have stitutionality of laws. We all recollect how cost you two hundred pounds. Then you should it was when the prohibitory law was enacted. have gone to the house of lords and got a divorce The general term in the fourth district and the a vinculo; which would not have cost you more general term in one of the western districts decided than a thousand pounds. Then you could have the law was constitutional. The general term in married again." "But, your lordship, I am the second district and in the first district de- poor man; I have not ten pounds in the world." cided it was unconstitutional. The question was 'That makes no difference; it is the glory of the finally settled by the court of appeals. But until English law that it makes no distinction between it was settled, there was a prohibitory law in the rich and the poor." And the poor man was Saratoga, and none in Poughkeepsie. It is said sent to Botany Bay without any further remarks. by the gentleman from Rensselaer [Mr. M. I. Town. This sarcasm, applied to the old English law of send] and intimated by the gentlemen from Outa-divorce, illustrates well the relief afforded by the

court of appeals to a poor man. The relief is ] Mr. HALE My friend from Fulton [Mr. there, but it is impossible or ruinous for him to seek it. I disagree with the gentleman from Rensselaer [Mr. M. I. Townsend], and the gentleman from Saratoga [Mr. Pond], that there is any thing just about such a system. The first principle of law is that it shall be uniform. It was said so long ago as the time of Cicero that the principles of law were universal; that they were the same everywhere and in all ages; that they were one, as God, the great source and founder of them, was one. Lord Bacon acknowledged the same principle when he says: "There are in nature certain fountains of justice whence all civil laws are derived but as streams"-though he recognizes the practical modification to which these great principles are subjected by adding: "And like as waters take tinctures and tastes from the soils through which they run, so do civil laws vary according to the regions and governments where they are planted, though they proceed from the same fountains." But there is no occasion for variance in any one State even though it be as populous as New York. We should have a uniform law. Most of the litigation in this State is finally determined in the supreme court. It is not nominally a court of last resort; but practically it is, as I said before, to most men. There is another evil which results from this great want of unity of the supreme court-that is the immense increase of reports. Among the advantages that were claimed for the present system in the Convention of 1846, Mr. Jordan, who was upon the Judiciary Committee, argued with a great deal of zeal that it would put a stop to the intolerable avalanche, as he called it, of reports. He spoke at considerable length, and with a good deal of feeling, of the burden under which the lawyers of 1846 were resting by reason of these numerous reports which were coming in upon them. The gentleman from New York [Mr. Daly], who addressed the committee yesterday, made a statement on this subject. I have investigated it and arrived at a slightly different result. I have looked into the matter pretty carefully and ascertained the number of reports since and before the adoption of the Constitution of 1846. Before, as I make it, there were one hundred and twelve volumes of reports for the whole judiciary history of the State from 1777 down to 1846.

Mr. CHESEBRO-I would like to ask the gentleman if there is any law in this State that compels a man to buy the reports of the supreme court?

Mr. HALE-I am very happy to say there is not. I must add, however, that no lawyer in full practice deems it safe to be without the great majority of these reports.

Mr. CHESEBRO-I do not think he would suffer without them.

Mr. HALE-I think if there was a law by which the whole forty-seven volumes of Barbour and the thirty odd of Howard, and all of Abbott, could be abolished, although I admit there are many learned and able opinions among them, the bench and the bar would, on the whole, have reason for thanksgiving and joy.

Mr. CHESEBRO-So I think.

Smith] hands me a statement by which he makes one hundred and seventy-eight volumes since 1846, and one hundred and fifteen before. There is another evil still, which I think has not been mentioned as resulting from eight district courts. That is the belittling of the judiciary. And when I speak of belittling, I do not mean to say any thing against the character of the judges. My friend from Rensselaer [Mr. M. I. Townsend] and the gentleman from Herkimer [Mr. Graves] seem to see every thing in the present system, to quote from the gentleman from Rensselaer himself, through a rose-colored glass; they can see no imperfection whatever in any man who now sits upon the bench. I am very sorry I am unable to see through the same glass from which they seem to derive so much comfort. It would afford me great gratification if I could concur in their views. I admit that the great portion of the judges on the bench are men of ability, learning, and integrity. I do not admit that this is universally the case. But when the gentleman from Herkimer [Mr. Graves] asks me, or any body else, to point out some particular judge against whom an accusation of unfairness, or want of learning or ability, can be brought, I respectfully submit that he asks a very unfair thing. It would be very unfair for me to particularize any judge who is not present, and say he has not integrity or capacity, or learning or argument. It is enough for us to point out the defects of the system; and when we do that we are not to be charged with making insinuations, or intimations against the character of particular judges. It has been my lot, under the present system, to practice to a limited extent in three judicial districts in this State; and I have had opportunity to know something of the judges in four judicial districts. I can certainly say that many of the judges whose acquaintance I have had the honor of having during that time have been men for whom I have the highest respect; they have been good judges and learned and honest men. But I think I have seen in each of these districts the propriety of a change. Not that many of these judges would do any thing really wrong, or connive at it, but they are on intimate relations with each other, they review each others decisions, a very delicate matter, and seldom reverse them. They sometimes appoint each other referees, and sometimes each other's sons, and each other's old law partners. I speak plainly about these things, because they are matters of common remark. I do not speak of any particular judge; I say it is a not unusual custom, so far as my knowledge and personal observation extends.

Mr. McDONALD-Has not the Legislature provided by law a mode by which the judges are compelled to choose a referee selected by the parties? And how does the gentleman propose to remedy this difficulty?

Mr. HALE-The last question of the gentleman I shall answer when I get to that part of my remarks. The first question I will answer by saying I do not now recollect what the Legisla ture has done; but I would ask the gentleman, whether, if he was before the judge with business important to his client, and the opposing