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II. The circuit court of the first circuit. This court tries all issues of fact in the supreme court, arising in this circuit. Many of these suits involve important legal principles, as well as large property, and in which the opinion of the supreme court must be obtained, before the parties will be satisfied. It is of great importance, therefore, that its calendar be kept unclogged, that those suits may get before the supreme court in the cheapest and shortest possible way. Annually, six regular circuit courts are provided by law to be held in this city; beside, the circuit judge may hold adjourned circuits as he pleases. As his sole official business, beside holding very brief circuits in Kings and Richmond counties, is in this city, one would suppose he might continue his court from day to day, week to week, and month to month, so long as any of his duties were left undone. A cause should always have opportunity to be tried within two or three months after issue joined. But so far from this being the true state of business in this court, two to three years of defended causes are undisposed of. There is no reasonable prospect of getting a judgment in one of these causes for years after its commencement. A party may therefore, in many instances, better submit to waive his rights, than attempt to enforce them. However well prepared, in the outset, for the contest, the law of chances are wofully against him, that his witness will die, move away, and unawares leave the country, or the defendant fail at home, or decamp, before a trial. The dishonest defendant calculates deliberately upon throwing this sovereign impediment a chivalric glove — before the claims of his creditors, and boldly bids defiance to justice.
The causes upon our circuit calendars the past year have numbered thus: At February circuit, five hundred and ninety-two; March, five hundred; May, three hundred and fifty; July, three hundred and nineteen; October, five hundred and ninety-five. At the February circuit, there was a 'run' on the calendar. Since then, the court have not, at any term, proceeded in regular order below number fifty; and never, at one circuit, actually disposed of half that number. From the best information we can obtain, we believe that, exclusive of inquests and causes taken up out of order on the calendar, on account of their brevity, not more than seventy causes have actually been tried during the whole of the year 1838. During the same period, there have probably been taken fifteen hundred to two thousand inquests, i. e., verdicts where no defence is made. For these inquests, the circuit judge has received from four to five thousand dollars fees, in two and a half dollars for each cause put on the calendar. This business must, of course, be done. It is brief, and pays well. As for litigated causes, they are long and tedious. They must be postponed. The plaintiffs get sickened by the delay, and compromise their claims.
Before alluding to improvements in the purview of the judge himself, we will mention a few that might be made by the legislature. The law allows circuit judges a confessedly inadequate salary. To make up for this inadequacy, the legislature conferred upon them the right to fees for divers services, in addition to their salaries. In this circuit, expenses were imposed greater than in other circuits; therefore provision was made to enhance the income of its judgeship.
The recorder, county judges, and other supreme court commissioners, in this city, were and are prohibited the performance of the accustomed duties, in suits in the supreme court, except in the absence of the circuit judge. This provision was to him a monopoly of the fees. Beside, the judge of this circuit is allowed an extra fee of two and a half dollars for entering a cause on the term calendar 'not exceeding twice.' In the present state of the calendar, he seldom fails, in defended suits, of getting this enormous calendar fee 'twice,' i. e., five dollars in each. Not over half the defended causes are ever tried. The delays are so great, that the suitors get tired down,' and settle their claims as best they can. Much time must necessarily be spent at chambers. To insure viciously tampering fees, much time, which could otherwise be spent in the trial of causes, is consumed at chambers.
About one week of each
Our circuit judge's annual income may, by our best information, be safely estimated thus: His salary, eighteen hundred dollars; calendar fees, five thousand to six thousand dollars; chamber fees, including three dollars on each motion for a new trial, two thousand dollars; in the aggregate, nearly ten thousand dollars per annum. This is the fault of the law, and not of the judge. term is usually occupied in what is called taking inquests, i. e., when the defendant will not swear he has any defence, mere formal verdicts are taken. As the law is, the cause must be placed on the calendar, two and a half dollars paid the judge, half a dollar to the sheriff, three dollars to the jury, beside other sundry fees to witnesses, sheriffs, criers, and attorneys; all this, in order to try a claim, which the defendant does not, in truth, pretend to contest, though for sheer delay he has put in a plea. But the farce is gone through with; the attorney draws the subpoenas and tickets; the sheriff serves them on the witnesses; the jury are sworn well and truly to try,' etc., and are then empannelled. Witnesses are sworn as to the undenied signature of the bill; the witnesses' amount of compensation is recorded; then the jury are asked to hearken to the 'verdict as the court has recorded it; the jury receive on the spot their three dollars to say nothing; the judge sits quietly on his bench,' possibly looks on; perhaps reads a newspaper, perchance converses with the bar; but more probably, is industriously doing chamber business, and running up scores of lucrative fees; the crier holds the Bible; the clerk the while does the machine business. Is not this a virtual pantomime, non-essential, extravagantly expensive, and degrading? Why not provide by law, that in actions on liquidated claims, notes, bonds, etc., then be endorsed and made part of the declaration items of the claim? Also the plaintiff, agent or attorney's affidavit as to the amount accrued; when, and in certain cases, for what; and the same be served as usual on defendant? And that if defendant does endorse on his plea the particulars of his set off, if any, and a proper affidavit of definite merits, judgment be rendered for the amount of the plaintiff's claim, to be revised or ascertained by the clerk? — thereby avoiding this undignified, degrading humbug and farce of an obviously mock trial.
But to our circuit judge. What can he do to remedy existing evils, with the laws as they are? Much, we answer; much, if he will.
With proper exertion, he can not only dispose of the new business, but, within six months, clear the calender of its mass of deferred causes. What is his present routine of official practice? At eleven o'clock A. M., he opens court, and adjourns at three P. M.; but when a cause is actually commenced and on trial at three P. M., he has held a session after dinner, though not uniformly to complete the same. Hence generally but four hours out of the twenty-four are devoted to business in this circuit, wherein would naturally be tried the bulk of the immense 'transitory' suits in this great agricultural, commercial, mechanical, and mercantile state; where numerous and heavy transactions are constantly being made; where business confidence must hang greatly upon promptitude in the execution of the laws. In England, courts do not move so dilatorily. The judge at the London assizes opens court at eight A. M., adjourns for dinner one hour; has tea sent to him in court, and continues business till ten or eleven in the evening. Some judges in the country circuits are equally vigilant; their business promptly despatched, and the laws speedily executed. Let our circuit judge adopt the same plan, and he will soon see how many, to get their causes tried, will come at any hour when he will hear them. Let the four or five-hour midday workers wait, if they prefer it, until other causes are disposed of. We repeat, all this delay is unnecessary and worse; it is heinous procrastination. The vigilance of the judge, if once roused into action, can grapple the pressing mass of suits, and crush the ignoble scandal of the court and the laws.
III. The superior court of the city of New-York was created about 1828. It was intended to try the hosts of suits at law growing out of the multifarious transactions in this city, and thereby to preclude the accumulation of this 'local' business in the circuit and supreme courts. It was anticipated, that a court constituted as this should be, with three justices of equal acquirements, experience, legal acumen, and physical vigor, with the justices of the supreme court, and exclusively devoted to commercial and mercantile suits, would soon acquire a reputation for legal ability, extensive and ready research, and judicial accuracy, unsurpassed, if not unequalled, by the supreme court itself. Such anticipations were not only reasonable, but the result was deemed inevitable, that a court thus constituted and thus circumstanced, would soon become, what it should now be, the first of civil tribunals for authority on questions of commercial and mercantile law, and in dignity and reputation the respectable rival of the English court of king's bench.' How far these anticipations have been realized, let facts speak.
For a few years, the anticipated results of the experiment were supposed to be attained. Many, however, suspected that the governor, from a laudable desire to select for its chief a man of extensive legal learning, overlooked other considerations equally important, and appointed to that office a chancellor, who was by his office a leading member of the court for the correction of errors, where his opinions might be law that could not be appealed from. Beside, the age of the chancellor, being near sixty, would, by the constitution of this state, have incapacitated him from holding any judicial office in chancery, or in the supreme court. But the officers of the superior,
enacted into being after the adoption of the constitution, were not technically thus limited. There was a manifest impropriety in such a judicial officer being transferred to a comparatively inferior court, whose decisions might be reviewed, first by the supreme court, and then by the same court for the correction of errors; and it should have prevented as well the governor from making, as the officer from accepting, this nomination. Five years after the original organization of the superior court, the terms of office of the justices expired, and others were to be appointed. Whether the governor, in his wisdom, deemed the gathered prudence of the state convention of 1821 to be wrong, in presuming men past sixty to be in their constitutional' dotage, or waning in their physical ability to perform the ever (ay, and they ever must be) arduous duties of the judiciary, or whether he saw in the old officers other peculiar official or political adaptations, not known to us, they were at least reappointed. Again, at the expiration of another term of five years, they have been again reappointed. Hence, at least one on the bench, the chief justice, will have long passed the goal of seventy years, before his third term of office shall have expired. Is it natural for him, under these circumstances of previous high office, and continued reappointments, to waive his own preconceived opinions to the dictates of even a revisory authority, save with the greatest reluctance nay, without the most palpable necessity? As it is, whether by reason of real or supposed superiority of the chief justice, or of any claimed prerogative on his part, and their willing concession to his pride of opinion, or whether they are conscientiously scrupulous of the superior pecuniary attainments of chamber business, or whether from some other cause, we are not advised; although from some cause, the two very respectable associated justices of this court have nearly surrendered to him the exclusive disposition of legal questions. They are seldom suspected of concocting a waking opinion. He takes the papers, examines the authorities, writes opinions, and in his own good time, in open court, delivers himself of them. Neither associate justice seems to have any knowledge of the argument, or when it may be decided, although nominally before a full bench from three to six months. If application is made to them, they refer to the chief justice, as though the causes were his special property. Now we intend not to say that the chief justice is not a man of great legal attainment far from it; but we do say, that the flattering reputation he has enjoyed, the high office he has held, and his confirmed opinion of his own superiority, concomitant with the ills and infirmities of age, render him at times incapable of giving proper weight to authorities, and of proper consultation with his associates. His opinions are often masses of learned quotations, little applicable to the case in hand. Now is this surprising, to an observer of advanced life? Age does not impair so much the memory as the judgment. Hence the practice of writing long, legal impertinent speculations as opinions, prevails here, in its worst form; and not the writing only, but the custom of reading them in open court; a custom that should have been exploded a century ago. Nearly a day in each week, the court solemnly sit and uselessly read decisions; and suitors await in mental agony the day's adjournment
of a hearing. There is no need of writing a long opinion in any case; and there is less apology for reading or conning one aloud, long or short. If written, hand it to the clerk. The parties can read for themselves, and the reporter can publish it. This reading of decisions, with great effort, to an audience made up of a scribbling clerk, a gossiping crier, a dreaming constable, and possibly a brace of congenial lawyers, not unfrequently brings up in the association the illustrious example of the Grecian orator practising eloquence upon the sea shore; with this slight difference, that Demosthenes did this at the age of twenty-eight, amid the surges' loud roar, to prepare for a crowded audience, whereas our justice acts at over sixty-five, in the sepulchral silence of a vacant court-room.
"Calm, collected decision, a total surpression of every word not absolutely necessary and desirable for the information or rebuke of persons present, united with a deportment, urbane, friendly, and respectful, toward the members of the bar, should ever characterize the bench; and in lieu of that deportment, we find the court often engaged in petty altercation with the profession, individually venting a spleen, destructive of the respectful esteem, the bar should, and if properly treated, ever would evince, toward the court. To acquire or preserve the respect and confidence of its bar, the court must extend the same courtesy and confidence they would attain. In this court, so little is there of system, order, or promptitude, and so tardy the decision after argument, that points made on the arguments are sometimes wholly forgotten, or misrecollected, and the cause actually decided the reverse of the opinion of the court. The trial of causes here, is not so behindhand as in either of the others. The calendar of causes for trial, at its November term, 1838, numbered about four hundred. Still in almost every litigated cause, a motion for a new trial is heard before a whole bench. Hence a delay arises, in the eventual decision, and renders it impossible to get a final judgment in these causes, short of about one and a half years from its com
Again, the dignity of this court is degraded, by the pitiful system of making up, in fees, compensation to the justices. This, we have before hinted, ought never to be. The administration of justice is too sacred to be touched by a man dependant for his support on fees. It is a temptation to devote too exclusively his attention to this feeing business. Whether right or wrong, it has its influence, and is countenanced and acknowledged by our legislature. While one judge presides at the trial of causes, two remain at chambers, taking costs, hearing motions, making orders, and other fee-paying business. In this chamber business, the three justices get some two thousand dollars per year. Upon each cause commenced in their court, they receive a quarter-dollar, and one and a half dollars for each cause placed upon the trial calendar. From these two sources, they are believed to receive annually eight to ten thousand dollars, i. e., four thousand dollars a year fees, for each justice, beside a salary of twenty-five hundred dollars, making a grand total of annual income to be over six thousand dollars, without any disbursements. This is the most debasing, and not the cheapest, mode of paying the justices. This, however, is not the fault of the justices, but of the law. We have now in our