IN SENATE,

March 25, 1834.

REPORT

Of the committee on the judiciary, on so much of

the Governor's message as relates to the course of judicial proceedings and the salaries of judicial officers.

Mr. Lansing, from the committee on the judiciary, to which was referred, by resolution of the honorable the Senate, so much of the Governor's message as relates to the judiciary, and the course of legal proceedings, and the salaries of judicial officers,

Aware of the importance of the subject referred to them, and the general interest felt in relation to it by the community, the committee have, in the performance of the duty assigned them, endeavored in the suggestions which they may make, to propose those measures which, in their opinion, may not only relieve the present necessities, but prove adequate for future demands in the administration of the laws. It is true, as suggested by the Governor, that the increased and increasing population of this State, and the rapid augmentation of our business transactions, by the consequent multiplication of the labors of our judiciary officers, have proved that our present establishment is not adequate to the public exigencies. Our present efficient and able officers do all that industry, talent and an exclusive devotion to duty can accomplish; still the business has accumulated in our courts, and the experience of years past fully evinces that it probably will continue to accumulate. The despatch of the business of our courts, like all other business, will depend upon the fact that the efficient force to perform it bears a proper proportion to the amount of labor to be performed. Your committee are satisfied that this relative proportion does not exist at this

time. On this account, the inability of our officers to perform what a due administration of justice requires of them, operates as a hardship upon suitors, by increasing their costs and expenses, and by producing an unavoidable delay, which amounts almost to a denial of justice. These delays and accumulations are principally in the court of chancery and the supreme court. Various causes concur in producing this state of things. Among them, the increasing population and business transactions of the State, as before stated, and to which may be added the peculiar organization of our system, may be viewed as the most prominent.

The respect and authoritative influence with which the decisions of our judiciary have at all times and now are received by the tribunals of our sister States, afford ample testimony of the able manner in which the laws have been administered in our courts of law and of equity; and while the eminent individuals who have and do now fill our highest judicial offices, by their talents and industry, have exalted the character of the State, have also gained for her tribunals and themselves an enviable reputation. But whatever the talent or ability of public officers may be, the amount of labor performed by them can alone be commensurate with their industry; and your committee are aware that as far as regards these officers, their exertions and their attentions have been unremitted and untiring.

The increased business in the court of chancery, and which until within a few years past was comparatively limited, and was despatched by a single officer, induced, no doubt, the present organization of that court. This organization, instead of relieving, by reason of its peculiar nature, has added in some measure to the burthens of the officer at the head of this court. The union of chancery with common law powers in the circuit judges, although viewed in anticipation as salutary and beneficial, has been tested by experience and found not to realize the expectations entertained. The number of officers having chancery jurisdiction is sufficient and probably more than sufficient, were they exclusively devoted to that branch of jurisprudence, to do the business of the court. The administration of equity should be by a distinct court, having no connection with courts of common law. The systems are distinct in their relations and objects, and in their practice and proceedings. It has been well remarked that "a life devoted to either study will not more than suffice to make an eminent judge; a life devoted to either will be filled up with constant employment."

This being the fact as to the nature of the two courts, the union of the two jurisdictions in one individual may be considered of questionable policy and expediency. Conscious as both the judge and the profession must be of the necessity of constant attention to either branch of jurisprudence, to a perfect knowledge and due application of the rules of either, neither have that confidence that a total devotion of the judge to either would command in his decisions. Such doubts imply no disparagement or impeachment of the qualifications or integrity of the officers, but on the contrary, it is conceded by all that they are capable and sound lawyers. The variety and amount of business which they are called to perform, must and do produce such doubts, and the accumulation of those duties will not have much tendency to dispel them. The best disciplined mind may err or get confused in the constant and sudden change of the objects of its pursuits, and the unavoidably frequent transition from an enforcement of the settled and positive requirements of the rules of the common law, to the application of the more liberal rules of a court of chancery.

As all causes decided by a vice-chancellor may be appealed to the chancellor, whose sole business is with the rules of chancery, most cases of doubt or importance are finally brought to him for determination. Instead, therefore, of expediting chancery business and lessening its expenses, by bringing the tribunals to the homes of the suitors, as was the intention, delay is not prevented and the expenses of suitors are enhanced. That the nature of our system must produce this result is evident, and experience has demonstrated its truth.

By a law of 1831, equity powers were taken from the circuit judge of the first circuit and vested solely in a vice-chancellor, and the experiment has fulfilled the public expectation of its useful

A fact is stated, and which being the result of experience, is entitled to great weight and consideration, and confirms the suggestions above made. It is this: While the court of chancery always has been and is now, crowded with appeals from the decisions of the circuit judges acting as vice-chancellors, appeals from the vice-chancellor of the first circuit are rarely entered, and when so, only in the most important matters. His entire and exclusive devotion to chancery jurisprudence have inspired the confidence of community and of the profession in the decisions of the vice-chanNew-York, where from the amount of chancery business their extensive commercial transactions give rise to, was heretofore the most complaint of delay, none is now heard.

Such results can and no doubt will be produced throughout the State, by the appointment of officers in whom chancery powers alone shall be vested; and the chancellor will undoubtedly, by the consequent diminution of appcals, be enabled to dispose of all causes submitted to him, speedily and satisfactorily. Your committee therefore think, by such arrangement for the separate exercise of equity powers, the chancellor would be relieved of his present burthens, and the court of chancery be enabled to extend to all speedily that justice it was intended to distribute.' They would therefore recommend the division of the State into four chancery circuits, and the appointment of three additional vice-chancellors. This division they conceive would tend much to the convenience of suitors, and the proposed additional number of vice-chancellors will enable the business to be speedily done, and will prove amply sufficient for the increasing business of the courts.

Although the committee believe that the reorganization of the court of chancery as above suggested, will fully relieve the pressure upon it, they have found more difficulty in maturing and recommending a plan for the relief of the supreme court, the adoption of which would promise an equally favorable result. The organization of our courts of common law was a matter of much debate and contrariety of opinion in the convention of 1821, and the present system may be considered rather as the result of compromise, than the regularly devised plan of any portion of that body. The various duties of the justices of the supreme court demand and obtain their whole attention, and still there is an accumulation of business. Aware, as suitors are, of the delay produced by such accumulation, and the impossibility of the immediate decision of causes brought before them, inducements are held out to parties to carry their causes there for the mere purpose of delay, and thereby compel their opponents, to avoid the loss consequent on such delay, to submit to the proffered, though objectionable terms of settlement. This no doubt is done, and the increased costs of protracted litigation, gives the litigious and more able individual, an advan. tage over his more peaceful and less able antagonist. The peculiar nature of our judicial system, is as much the producing cause of an increase of the business of the supreme court as of the court of chancery.

The same remarks which are made above, in relation to the decisions of the circuit judges as vice-chancellors, will apply to their decisions as common law judges. It has been well remarked, that “there is some danger when both systems, (that is law and chancery) are administered by the same court; that the equity of a case will sometimes transfer itself to the law side of the court, or the law of a case narrow down the comprehensive liberality of equity. The mixture when it takes place is decidedly bad in flavor and in quality.” It is to be hoped, however, that an abridgement of the circuit judges of their equity powers, by enabling them to devote all their energies to the study of the common law, will add weight to and inspire confidence in their decisions, which will tend to diminish the questions submitted to the supreme court. The organization of our county courts, from whose decisions appeals are made to the supreme court, has no little influence in adding to its business. No adequate compensation being allowed to county judges, there is no inducement for capable professional gentlemen to give up merely a moderate business, and accept the appointments. The courts are therefore generally composed of individuals, although of sound integrity and talents, rarely of legal acquirements. To qualify a judge for the able discharge of his duties, his whole attention must be devoted to them. The peculiar character of the court having devolved upon it, both bar and circuit duties would seem to require its member to be well versed with law. Although the matters arising in those courts, are in amount, of minor importance, still the application of the same rules of law must be made, as in matters of more consequence. Justice is consequently tardily administered in these courts; and the want of knowledge of the nice technicalities of the rules of evidence and their due application, lead to exceptions, which transfer many, very many causes to the crowded calendar of the supreme court. The life of a judge must necessarily be one of continued study, and his judicial knowledge always progressive. We cannot therefore be surprised at the results above suggested. The various applications to the Legislature for authority to certain counties to raise by tax a salary for the first judge, evince the grievances under which this portion of our judiciary system labors.

Among the various modes suggested to the committee to relieve the pressure on the supreme court, none appears so probable to produce the desired result, as an addition to the number of its jus

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