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PROCEEDINGS AND DEBATES

OF THE

CONSTITUTIONAL CONVENTION

OF THE

(STATE OF NEW YORK,

HELD IN 1867 AND 1868,

IN THE

CITY OF ALBANY.

REPORTED BY EDWARD F. UNDERHILL,

OFFICIAL STENOGRAPHER.

VOLUME IV.

FROM PAGE 2401 TO 3200, WITH INDEX.

ALBANY:
WEED, PARSONS AND COMPANY,
PRINTERS TO THE CONVENTION.

1868.

Aly Doc 3,12

1870, Oct. 28.

734 Exchanze ay

Dutinates.

IN CONVENTION, Feb. 27, 1868.

Resoloed, That there be printed, in addition to the number already printed, a sufficient num. ber of copies of the debates, documents and journals, to furnish each of the members with three copies; and also one copy each to the Mayor and the members of the Common Council of the city of Albany, and one copy each to the State Law Libraries at Rochester and Syracuse, the law libraries of the several judicial districts, the Law Institute, the Astor Library, and the New York Historical Society in the city of New York, and the Young Men's Associations of the cities of Albany and Troy.

LUTHER CALDWELL, Secretary.

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deny than to limit the right to bring a seconds tribunal is affirmed. Thus it happens, the court appeal. By making any limitation we incur the of appeals, itself, being the judge, that in the vast hazard of unjust and unequal discrimination. majority of cases this delay is unnecessary and What sort of limitation sball we have ? Shall wo unjust. How vexatious it is, the weary, wait. open the court of appeals to the heavy cases of iog, heart-sick suitor best can tell. I submit, it the rich man, and close it to the small case of the is better that justice should be speeds, if somepoor man? Shall we open it to an equity and times wrong, than always slow, and sometimes close it to a common law action; open it to a cour right. I am quite sure that justice, rude, ignostitutional and close it to a statutory action ? rant, but speedy, is better than justice, learned, If we do this, how shall we answer for it, technical, and slow. The State prospers in rethat all men are equal before the law ? pose, and the repose of the rights of the citizen Shail we make commissions ? As has been is the repose of the State. In the plan I propose suggested, these commissions will prove re. I deny the right of appeal to the individual markably tenacious of life; and instead of one suitor to the court of last resort. I do this for court of appeals we shall have two; and the very the very purpose of harmony. Gentlemen conremedy that we seek, the very end we wish to tend that we should have a court of appeals like obtain by having one court, that is, harmony of the present system for the purpose of harmony. decision, will be utterly destroyed by having two. I aver that the claim of harmony, as connected Again, sir, I insist that the court of appeals, or with the present court of appeals is a doworight any court like the court of appeals, to which a swindle. There is no such thing as harmony, as party has an unrestricted and unlimited right to a part of the policy of the State. The State bring a second appeal, is unnecessary. One trial cannot bring into the court of appeals: a single and one appellate court for one case is enough. case. It is not within the power of the State to If gentlemen will look into the Constitutions of take any disputed question to the court of last other States they will find that most of them rest resort, and there obtain the opinion and decision their judicial systems upon one trial and one of that court. When a question is decided one appellate court. Two appellate courts for one way in the first district, and another way in the case rest upon the principle that one of these second district, the State has no power to settle courts is inferior, and the other superior, that that question. It rests upon the mere wbim of one is bad and the other good, that one is experi- the suitor, it rests perhaps in his poverty, whether mental, the other fisal. I would like to know that case shall go to the court of last resort; so what right we have to make a poor appellate tri. that when you say you have this system for the bunal? I would like to know what right we purpose of harmony, you say what is not true. have, as framers of the organic law of the State, You have to wait upon the caprice of a suitor; to compel a suitor to take his case through a poor and in that respect your system is wrong. In court, through a poor appellate tribunal, in order the system I propose, no citizen shall have the to reach a good one? If we can make a good right to appeal ; but in the conflict of decisions, court of appeals we can make a good goneral / where the court in one district has decided in one term, as well. If the general term is grod, we way, and the court in another district has decided need not go beyond it; if it is bad, we should not in another way, it shall be the duty of the genemake it. If we can bring into the court of last ral term to send that case to the extraordinary resort the best judicial minds of the State we term, and let it there be decided. This can bring them into the general term as well. If ought to be done without additional cost or we will bring them into the general term, we shall expense, and upon the same printed case and dot need a court of appeals. I submit it is a briefs. Such a system would promote harmony palpable absurdity to compel a suitor to take his of decisions; the State would be able, through case through a court, the decisions of which he its judiciary, to compel it; it cannot now. Το is not bound to respect, and which he may whis-illustrate : it is aboui tweniy years since an act tle down the wind at pleasure. No man is was passed in regard to the rights of married obliged to respect a decision of the present general women. Under that law the question is daily term. He may abide by it if he chocses, but he arising in different parts of the State whether tenmay abide by any chance as well. Again, I am op- ancy by the curtesy has any existence. In some posed to two appellate tribunals, as a matter of districts it has been decided in one way, and in right to the citizen, for this additional reason : other districts in another. The State itself, ibat to delay justice is to commit wrong. “It is through its judiciary, has been utterly unable to the interest of the State that litigation should to decide that question in the court of appeals. end," is a maxim as wise as it is old. To delay Why? Because the suitors themselves were un. justice is to deny it; and the State that delays able or unwilling to carry these cases to the justice is but little better than the State that de court of appeals. But under the plan i propose, Dies it, for while it is delayed it is denied. How when a conflict of that kind arises, it shall be the long 18 justice delayed under the present system of duty of the general term to send the case to two appellate tribunals ? After a case has been the court of last resort, in order that the question decided in general term the failing party has two may be decided, and in order that we may have, in Fears in which to bring his appeal to i he court fact as well as in name, harmony of decision of appeals. He may then rely upon having six throughout the State. I know the remarks which more years before it shall be decided. Eight I am now submitting will jar somewhat upon the Fears delay, in all, and then after the decision of prejudices of the older members of the profession the appellate court is reached, in the vast major in this body. I know the tendency of our studier ity of cases, the decision of the inferior appellate is, to conform us to the precedents of the past

no

we have long had two appellate courts in this improvements in our judicial system are demanded. State. The maxim via antiqua, via tuta, sooner lo that system a court corresponding with the or later, forms a part of every lawyer's creed. court of appeals is a necessity. For, the supreme None know better than the members of the legal court, which is the great business court of the profession, the delays which are incident to the State, must be divided into different branches, present system; and none know better than they as one court, acting as a unit, can that this delay almost always prevents justice, possibly perform the judicial labor arising out and very rarely promotes it. I think that in of the business affairs of 80 large a State. framing the organic law of the State, we ought With these different branches in that court, actnot inquire what is best for ourselves, but for the ing under one name as so many different courts, State. Since the multiplicity of business is so whether they be eight or some pumber less, great that any one court cannot discharge it, there would be no uniformity in the law of where the right to bring appeals is unlimited; the State, unless there shall be created over and since two appellate tribunals are unnecessary them some appellate court that shall act as in any one case, let us have but one, and that a unit in reviewing and bringing into harone a good one, to which a citizen has the right mony and uniformity their conflicting decisions. to appeul; and let us have a court of last resort That is the office of the court of appeals. In to which the State, through its judiciary, may reference to this court, the committee have alsend its doubtful cases for official adjudication. ready determined that the tenure of office for Let harmony be the policy of the State, not the the seven judges that are to compose it, shall be whim of the suitor.

fourteen years. The pending substitute of the The CHAIRMAN—The Chair must hold the gentlemari from Onondaga (Mr. Comstock) proamendment to be out of order; it is not germaue poses to make the judges all ineligible for roto the subject.

election. To that I am opposed. It is insisted Mr. COMSTOCK-I move to strike out the by those who maintain that the judges of this words "shall be ineligible to a second term," and court shall not be eligible for re-election, that to insert in place thereof " and shall not be elected make them so teuds to impair their independence for a second term." It may be that the two ex-to take from them that uprightness and imparpressions mean the same thing; yet I think it tiality so essential to the character of a good will be found convenient in practice to make the judge. On the same ground it has been urged change. By a subsequent section in the report that they should not be elected at all, but should of the committee it is provided that the Governor be appointed by the Governor and Senate. If and Senate may fill temporary vacancies in that by an “independent judiciary” is meant a judicourt until the elections come round when they dicial system which creates and continues in can be filled by the people. The question will office judges under circumstances most favorable arise probably at no distant day whether one of tn integrity in the discharge of their duties, all these retired judges who has served out his elect- must agree in desiring such an independent judied term can be appointed by the Governor and ciary. The question is, is the elective system-do Senate to fill one of these occurring vacancies, frequent elections, as applied to judges, aby way and to avoid ambiguity of expression I propose tend to impair that ivdependence on their part? In the language shall be “and shall not be elected the same sense, certainly, it is equally essential for a second term." These old retired judges will that all officers of the State, in both the legislabe very useful material for the Governor and live and executive departments, should also be inSenate to use in the filling of occasional vacancies. dependent and impartial in the discharge of

The question was put on the amendment of their duties. If the elective system cannot be Mr. Comstock, and it was declared carried. applied in the selection of judges, with safety

Mr. GOODRICH-I desire to offer the follow to their independence and integrity, I do not ing substitute for the proposition under consider see how it can be in the selection of the other ation :

officers named. In short, this claim that to The SECRETARY read the substitute as fol. elect by the people judicial officers, and to elect lows:

them for such terms as will admit of their reSEC. 2. There shall be a court of appellate ju. election, if they prove themselres worthy and the risdiction, called the court of appeals, composed people are desirous of continuing them in office, of seven judges, to be elected by the electors of iends to dobase and demoralize them, is a docthe State. The judges of the present court of trine which, if carried out in all its legitimate appeals, elected thereto and in office when this consequences, would, in my judgment, lead to a Constitution goes into effect, shall, for the re- total overthrow of the whole system of popular mainder of their respective terms be judges of elections. Its utterance here fills me, therefore, the court of appeals hereby established; and the with surprise and alarm. In support of it, we other judges first elected shall be classified, 80 are told that in England judges are appointed; that one of the judges of the court shall go out and that there their appointment for life, or durof office at the end of every second year. After ing good behavior, has been found to be necesthe first election, the judges elected to the court sary to their independence. It is to be rememof appeals shall severally hold their office for bered, that political society in that country differs fourteen years.

in its structure entirely from what it is in ours. Mr. GOODRICH-Mr. Chairman, I have listen. There, the body politic is made up of threo ed with no ordinary interest to the discussions distinct estates the crown, the nobility and which have taken place in reference to the or the commons — each having rights and interganization of the court of appeals. All agree that'ests of its own, and each being, iu respect to

these, in hostility to the others, insomuch that ficient objection to it that it is a direct and con. English history is to a great extent but a record ceded departure from the established principles of the struggles which are perpetually going on of our system of government, which is, throughbetween these jealous and contending elemeuts. out all its departments and details, strictly a Uoder such a state of society a life tenure for goverument resting on the will of the majority

judges, receiving their appointment from the To the extent of the two judgos the proposition crown, may well be a necessity; since, were it is to make it a government by the will of the otherwise—were they to be appointed for a term minority, even though that minority be over 80 of years, and thereafter to be dismissed or recained meager and insigoiticant. There is neither prin in office at the pleasure of the appointing power ciple nor sense or propriety in the proposition. It

- they would indeed lose their independence and completely igpores all the utility derived from become incapable of deciding impartially in all party contests, where the opposition extends to cases in which the rights or interests of the people the whole ticket, and where, in order to succeed or the nobility should be opposed by the interests on the merits of its candidates each party is or the koown wishes of the crown. The history compelled to put in nomination its best men; for, of the life cenure of the English judges shows it in all su ih cases, the very intensity of partisan to have obtained precisely from this consideration. zeal is made to subserve the interests of good Now, with us there are no such separate and con. government. In all such cases, too, it is only the flicting interests, no such rival powers, to be nominations that are made by parties; the prejeopardized by making judges, as well as all other rogative of choosing is reserved to the people, officers strictly depeudent on the people, in whom and to the majority of the people wbich does not resides the true sovereignty of the State, and in by any means always coincide with the strongest whom center all - all the great interests of party. Under this minority representation, 80State, I do not deny that frequent elections called, the miuority party, if it chooses to waive tend to make the judge feel his dependence the contest as to the five judges, has nothing to on the people, nor that that feeling on his do but simply nominate any of its adherents for part is pot directly calculated to make him dis- the two judges and they pass into office, not by the charge the duties of his office in a manner will of the majority of the people, not even by the conformable to their supposed wishes; but what will of the majoriig of the minority party, but by a I claim is that thus feeling and acting makes him constitutional necessity from having been put in all the more independent and impartial in his de nomioation by a partisan convention To say cisions between suitors, because no one who has nothing of its absurdity, such a mode of selecting the slightest qualificatious for that office can fail judges for the highest court of the State cannot to comprehend that impartial justice is what the but be unwise in the extreme. I know it is sought people demand of the judge and that any de- to be defended and justified under the plausible parture from that in the discharge of his pretext that its tendency will be to keep the court duties is sure to meet with their severest con- from becoming partisan in its character. Its adopdemnation and reproach. Under our form of tion is urged noun that ground. But, sir, how is it government a sense of dependence on the people now? Are judges elected as partisans ? The most is therefore one of the strongest incentives to that can be said is that their nomination is from the faithful discharge of duty on the part of all parties; but it is the people, always the majority of the officers of State. Accordingly, while I deny the people that chooses, out of the number of candithat there can be the slightest necessity for ren- dates presented, which of them shall be judges. dering the judges of the court of appeals iu. The choice is not the act of a party merely, but eligible for a secoud term, the influence of such the act of the people. Nor does it always happen a provision, if adopted, will be bad every way. that the candidates are chosen who are presented On the judge himself it will be bad; because. in by the strongest political party; but whether makiog a re-election impossible, one powerful they are or are not, the choice itself

, in every inIDOLive for the faithful discharge of duty is stance, is the act of the people; and therefore the wholly lost on him. It is also udjust to the peo-judge goes on the bench as the people's rather ple, to whom it denies the right to continue in than his party's judge. But how will it be with office one whom they have proved and may have the judge whose selection is to be left to the mi found to be capable and faithful, and whom, nority under this scheme for minority represen. therefore, they might re-elect with the certainty tation now proposed? Can their selection be in of securing the services of a valuable judge. In any sense the act of the people ? No, sir; the every way, in my judgment, the proposed restric- people have nothing to do with it. Their selec tion is both unnecessary and unwise. The gen. tion is purely the act of a mere party convention; tleman from Onondaga (Mr. Comstock), in the and judges who are thus selected and placed on ameodment which he has submitted, also pro- the bench, not only without the sanction of the poses that in the first election of the seven judges majority of the people, but also, it may be, of the court of appeals no elector shall be allowed in direct hostility to and in spite of it, cannot fail to vote for more than five of their number, io. to carry this conviction with them, and therefore cluding the chief justice, thereby securing to the to consider themselves, as in fact they will be, minority party, at the election, the certainty mere partisan judges. So far, therefore, from its of selecting two of the judges. Sir, this rep- having any effect to keep the judges of the court resentation or election by the minority, though from becoming partisan in their character, the I know how illy prepared I am to discuss whole scope and tendency of the scheme is directit, I can clearly see to bo absurd, not to say ly the other way. It is the very thing that will trifling and puerile. It ought to be a suf-| force that character upon the judges. From every

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