[The same as referred: SEC. 25. No judicial officer except justices of the peace, shall receive to his own use any fees or perquisites of office; nor shall any judge of the court of appeals or of the supreme court, nor shall any judicial officer in the city of New York, or in the city of Brooklyn, or in the city of Buf falo, practice as an attorney or counselor at law in any court of record in this State, or act as referee.] There being no amendment offered to section 21, the SECRETARY read section 22, as lows: fol SEC. 22. The Legislature may authorize the judgments, decrees, and decisions of any court of record of original civil jurisdiction, established in a city, to be removed for review, directly into the court of appeals. [The same as referred: Committee on Revision, with instructions to amend section 24 of said article as follows: By inserting after "appeals," in line one and of the three additional judges of the court of common pleas for the city and county of New York," and after "appeals," in line four, "and additional judges of the said court of common pleas." The question was put on the adoption of the resolution of instructions offered by Mr. Monel', and it was declared carried. Mr. FOLGER-I suppose it is impossible to fill these blanks until we know what day it is finally provided there shall be a submission of the Copstitution; at any rate, not until our labors are nearer to an end than they are now. There being no further amendment offered to the section, the SECRETARY read section 25 as follows: SEC. 25. Surrogates, justices of the peace, and SEC. 26. The Legislature may authorize the local judicial officers provided for in section judgments, decrees and decisions of any local 16, in office when this article shall take effect, inferior court of record of original civil jurisdic-shall hold their respective offices until the expiration, established in a city, to be removed for review, directly into the court of appeals.] There being no amendment offered to section 22, the SECRETARY proceeded to read section 23, as follows: SEC. 23. The Legislature shall provide for the speedy publication of all statutes, and also for the appointment, by the justices of the supreme court designated to hold courts in banc of a reporter of the decisions of that court. All laws and judicial decisions shall be free for publication by any person. [The same as referred : SEC. 27. The Legislature shall provide for the speedy publication of all statute laws, and also for the appointment by the justices of the supreme court designated to hold general terms of a reporter of the decisions of the supreme court. And all laws and judicial decisions shall be free for publication by any person.] Mr. HALE-In order to make this section conform with the provisions of the previous sections adopted, I move that the Committee on Revision be instructed to use the words "general terms," in place of the words "courts in banc." The question was put on the adoption of the motion offered by Mr. Hale, and it was declared carried. No further amendment being offered to the section, the SECRETARY proceeded to read section 24 as follows: SEC. 24. The first election of judges of the court of appeals shall take place The court of appeals, and the commissioners of appeals, shall respectively enter upon their duties on the [The same as referred : tion of their terms. [The same as referred: SEC. 31. County judges, surrogates, justices of the peace, local judicial officers, provided for in section 20, and coroners in office when this Constitution shall take effect, shall hold their respective offices until the expiration of the term for which they were respectively elected.] No amendment being offered to the twentyfifth section, the SECRETARY proceeded to read section 26, as follows: SEC. 26. The Legislature may institute probate courts, confer upon other courts of record the powers and jurisdiction of surrogate, provide for the appointment of registrars of wills and of the probate thereof and of letters of administration, and for the trial by jury of issues in surrogates' courts and in courts having the like powers and duties. [The same as referred: SEC. 33. The Legislature may create probate courts, confer upon other courts of record the powers and duties of surrogate and the jurisdiction of surrogates, create registers of wills and of the probate thereof, and of letters of adminis tration, and provide for the trial by jury of issues in surrogates' courts, and in courts having the like powers and duties.] Mr. E. A. BROWN offered the following: Resolved, That article 6 be recommitted to the Committee on Revision, with instructions to amend section 26 of said articie as follows: Strike out and insert so that the section will read as follows: "SEC. 26. The Legislature may provide for the trial by jury of issues in surrogates' courts." Mr. E. A. BROWN-This section seems to be SEC. 28. The first election of judges of the court a provision contemplating a change by the Legisof appeals shall take place at such time as the Legislature in the organization of the surrogates' courts, lature shall prescribe between the first Tuesday of April and the first Tuesday of June, one thousand eight hundred and sixty-nine. The said court of appeals and the commissioners of appeals shall respectively enter upon their duties on the first Monday of July next thereafter. or abolishing surrogates' courts as now existing, and substituting in place thereof courts of probate. Whether the design is to unite together several counties and make a probate court for the whole district thus formed, or to divide up the counties or some of the counties in the State and make additional probate courts, or whatever Resolved, That article 6 be recommitted to the change may be sought for under this section, it Mr. MONELL offered the following: gives the Legislature express authority to proceed in that direction, and in any direction, with out restriction. Now, sir, I do not believe that it is the sense of this Convention, or of the people of this State, that the Constitution should contain any provision making, suggesting or inviting such a radical change in the surrogates' courts of the State. These courts are organized in all the counties, and have existed for a great number of years. These courts are useful and convenient. The people have become accustomed to them as now organized and are satisfied with them. The records of wills, etc., are made and prepared in these courts, and I believe that any Buch change as appears to be contemplated under this section would be mischievous, aud I do not believe it is called for by any public necessity or any public interest. I hope the amendment will prevail. Mr. FOLGER-I will state what the object aimed at was, not only by the judiciary commit tee, but, as I understood, by the Convention, which has once adopted this section, after considerable debate. The intention was not such as is supposed by the gentleman from Lewis [Mr. E. A Brown], but to provide more especially for the city of New York, where, as is shown by repeated applications to the Legislature for the last six years for some relief, the surrogat 's court is overtaxed in the amount of its business. There have been repeated efforts made for the passage of bills in one shape and another, to relieve the pressure upon that court and to aid in the dispatch of its business. In fact, the desire was to provide some means of disposing of the probate cases arising in that city. By a provision already adopted, and which is almost the same as the provision of the present Constitution, it will be seen that we provide for a surrogate's court in each county. It has been held by good lawyers that under the present Constitution no relief can be afforded to the city and county of New York, but that they must continue with one surrogate's court, and one only. Now, this section was drafted by the gentleman from New York [Mr. Evarts], and concurred in, I think, by his colleague [Mr. Daly], as a provision that was calculated to reach the difficulty, which was felt to be so pressing upon the citizens of New York, and upon the surrogate's court there. I trust it will not be entirely rejected, but that if there is any danger in the section, it will be provided for by amendments. Mr. CHURCH-I certainly have no objection to a provision increasing the force of the surrogate's court in the city of New York. I think the provision contained in this section, however, should be entirely stricken out. If there is any objection to this article as a whole, it is in the power of the Legislature to create new officers. I find in section 19 that the Legislature have power to establish inferior local courts, both of civil and criminal jurisdiction, to any extent they may see fit, and under this twenty-sixth section, the Legislature in establishing probate courts are not confined to the city of New York, but may establish them in every county of the State. They may also provide for the appointment of registers of wills, and of the probate thereof, thus creating an office, the duties of which have heretofore been attended to by the surrogates of the county. With this power in the hands of the Legislature, they may increase the expense largely in every county in the State. It seems to me that it is entirely unnecessary. The office of surrogate is now well known and established in this State. We have provided that the duties of surrogates shall be performed by the county judges, and in certain counties where there is a population of over forty thousand there shall be an additional officer created to hold the position and to do the duties of surrogate. If provision is needed with reference to the city of New York, let us make it specitic and applicable to that county alone, but let us not give to the Legislature this power and authority to create one or two additional officers in every county throughout the State. I prefer, however, that the section should be stricken out, and I hope the committee will frame a new section in its place. The question was put on the adoption of the resolution of instructions offered by Mr. E. A. Brown, and, on a division, it was declared carried, by a vote of 46 to 26. Mr. RUMSEY-I move to strike out the section. All there is now left of it is the power to the Legislature to authorize a trial of issues of fact in surrogates' courts, and in view of the business in that court, and the mode of transacting it, I think every lawyer will understand it is not necessary to adopt a provision of this kind. If it shall have the effect to send all questions of fact in that court to a jury, it will prove exceedingly expensive and entirely improper. Much the largest proportion of questions of fact in that court should be disposed of without a jury, and whenever a case of sufficient magnitude arises, then to be submitted to a jury. The general term of the supreme court has now the power to send it to the circuit for trial before a jury. The whole matter should be left as it now is. Mr. COMSTOCK-I move to strike out the section, because it amounts to nothing. Mr. E. A. BROWN-I certainly have no objection to its being stricken out, because I believe that the Legislature has power over this subject. The question was put on the resolution of instructions offered by Mr. Comstock, and it was declared carried. Mr. HUTCHINS-I give notice of a motion to reconsider the vote by which the section was stricken out, and I ask that the motion be laid upon the table. The PRESIDENT-The notice will be entered upon the Journal. The SECRETARY then read section 27, as follows: SEC. 27. Courts of special sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law. [The same as referred : SEC. 34. Courts of special sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law.] There being no amendments made thereto, the SECRETARY read section 28, as follows: SEC. 28. The Legislature shall provide for the appointment by the court of appeals, of a receiv er-general, who shall have the care and control Bowen, E. Brooks, Cassidy, Cheritree, Chesebro, of all moneys of suitors and others paid or paya- Comstock, Conger, Curtis, Daly, C. C. Dwight, ble into any of the courts of this State, subject. Eddy, Ferry, Folger, Francis, Frank, Garvin, however, to such rules as the court of appeals shall make, and to such regulations as to security and otherwise as may be prescribed by law. Mr. E. BROOKS-I renew the amendment of fered by myself in the early part of the session, in regard to the life tenure. The PRESIDENT-The Chair is informed after investigation, that the gentleman from Richmond [Mr. E. Brooks] is entirely correct in his statement. Although not in the form in which the gentleman offers it, there have been two votes taken upon the general subject. Gould, Gross, Hale, Hutchins, Landon, Larremore, Merrill, Monell, More, Morris, Opdyke, A. J. Parker, Potter, President, Reynolds, Robertson, Rogers, Roy, Rumsey, Schell, Silvester, Stratton, S. Townsend, Van Campen, Van Cott -50. Noes-Messrs. Armstrong, Baker, Beals, Bell, E. A. Brown, Carpenter, Case, Church, Duganne, Ely, Farnum, Field, Fowler, Fuller, Grant, Graves, Hadley, Hammond, Hand, Hardenburgb, Harris, Hitchcock, Houston, Krum, Lapham, A. Lawrence, M. H. Lawrence, Lee, Ludington, Mattice, McDon The SECRETARY read the resolution of in-ald, Miller, Murphy, Nelson, Pond, Root, Schoonstructions offered by Mr. E. Brooks, as follows: Resolved, That article 6 be recommitted to the Committee on Revision, with instructions to amend section 2 of said article as follows: Strike out after the word "office," in line two, down to and including the word "election," in line four, and insert in lieu thereof the words "during good behavior or until they shall reach the age of seventy years." Mr. E. BROOKS—I do not propose to discuss this question, or to occupy the attention of the Convention. This proposition in reference to a life tenure was lost by a majority of two votes, there being 56 ayes to 58 noes. I renew it now, in the hope that it will be adopted by the Convention. As I propose to modify the section, it will read as follows: maker, Seaver, Sheldon, Smith, Spencer, Tucker, Veeder, Verplanck, Wakeman, Wales-46. Mr. HADLEY-I move to reconsider the vote just taken, and ask that the motion lie upon the table. The PRESIDENT-The motion will lie upon the table under the rule. The question recurred upon the resolution of instructions offered by Mr. E. Brooks to strike out line three of section 2, and insert “during good behavior, or until they reach the age of seventy years." Mr. DALY-The advantage involved in the proposed amendment, as it strikes my mind, is this: By adopting this amendment in respect to the court of appeals, and having the life tenure there, and preserving the other arrangement with regard to the other courts, we shall have the benefit of both systems in the coming twenty years. In the court of appeals, the highest tribunal of all, we may have the benefit of the life tenure, and we may have the provision authoriz ing to re-elect the judges in respect to the other courts. I hope, therefore, that the amendment will prevail, as that will be a fair experiment with respect to the future in the different opinions that "There shall be a court of appeals, composed of a chief judge and six associate judges, who shall be chosen by the electors of the State, and shall hold their office during good behavior or until they reach the age of seventy years," etc. I hope as a compromised measure, that this will receive the consent of the majority of the Convention. The more I think of it, and the more the subject is discussed out of the Convention, I will say that as one not of the legal pro-exist on this subject. fession, the more convinced I am that it will contribute very much to make the Constitution which we adopt acceptable to the people. Mr. CONGER-I would ask whether the object of the gentleman would not be accomplished by simply adding the words "during good behavior." I believe there is a provision in the article that the judges shall go out of office when they have reached the age of seventy years." The PRESIDENT-When the vote shall have been reconsidered on the section, the suggestion of the gentleman from Rockland [Mr. Conger] will be in order. The question was announced on the motion of Mr. E. Brooks, to reconsider the vote by which section 2 was adopted. Mr. HITCHCOCK-I call for the ayes and noes. A sufficient number seconding the call, the ayes and noes were ordered. The SECRETARY called the roll on the motion of Mr. E. Brooks to reconsider, and it was declared carried by the following vote: Ayes-Messrs. C. L. Allen, Alvord, Andrews, Axtell, Barnard, Barto, Beadle, Beckwith, Bergen, Mr. VERPLANCK-I am inclined, personally, to favor the proposition of the gentleman from Richmond [Mr. E. Brooks], but I very much fear the result of the vote of the people on the judiciary article with this amendment in that article. It has fallen to my lot to hear this question discussed among the people on several occasions; and I think the public mind is averse to this life tenure; and it is for that reason that I shall vote against the proposition. Mr. DALY-Will the gentleman allow me a question? Has he heard it discussed with regard to the limitation that exists that they shall not hold beyond seventy years of age? Mr. VERPLANCK-No, I have not. Mr. DALY-That may change their opinions. Mr. VERPLANCK-I do not suppose that they think about that. They speak of it merely as the life tenure. Mr. MILLER-I would like to say a word on this question before the vote is taken. I have steadily, in giving my votes on this question, voted for the long term and against any re-elec tion. I have supported the fourteen years' term I believed by doing so that we should secure the independence of the judges; and we should se Noes-Messrs. Armstrong, Baker, Beals, Bell, E. P. Brooks, E. A. Brown, Carpenter, Case, Church, Duganne, Eddy, Ely, Farnum, Field, Fowler, Francis, Fuller, Grant, Graves, Hadley, Hammond, Hand, Hardenburgh, Harris, Hitchcock, Houston, Krum, Lapham, A. Lawrence, M. H. Lawrence, Lee, Ludington, Mattice, McDonald, Miller, Murphy, Nelson, Pond, Potter, Root, Roy, Schoonmaker, Seaver, Sheldon, Smith, Spencer, Tucker, Veeder, Verplanck, Wakeman, Wales-51. cure at the same time a long term of the best | Conger, Curtis, Daly, C. C. Dwight, Ferry, Folger, years of professional life. Besides, sir, when we Frank, Garvin, Gould, Gross, Hale, Hutchins, elevate the judge to that position he will feel Landon, Larremore, Livingston, Merrill, Monell, that after he leaves the bench he is going down Morris, Opdyke, A. J. Parker, President, Reyagain among the people, to live as a citizen under nolds, Robertson, Rogers, Rumsey, Schell, Silvesthe decisions which he has promulgated from the ter, Stratton, S. Townsend, Van Campen, Van bench. It seems to me that thus wise and good Cott-45. influences will surround the judge. 1 think that the term of fourteen years is about the golden mean between two dangerous extremes, and that there are strong objections to a life tenure. It raises the judge and the court so high above the masses of the people that they are placed outside of and beyond the influence of a healthy public opinion. I would not leave the judge to be blown about by every gust of public opinion that may blow one way to-day and another to-morrow; but I would not have the court lifted so high above the people that they would fail to be, to some degree, influenced by the spirit of the age. Let me ask, gentlemen of this Convention, does any man believe that a court could be elected in the year 1868, by any party, that could pronounce the dictum of the Dred Scott decision, that "black men have no rights that white men are bound to respect"? Could that be done by any party? I think not. Mr. McDONALD moved to reconsider the vote last taken. The motion was laid on the table under the rule. Mr. C. C. DWIGHT offered the following: Resolved, That article 6 be recommitted to the Committee on Revision, with instructions to amend section 3 of said article as follows: Strike out the words "three months prior to a Mr. COMSTOCK-I wish to inform the gentle-general election," in lines two and three, and man and this Convention that there is no such dictum in existence as that in any case. "When a vacancy shall occur otherwise than by expiration of term in the office of chief or associate judge of the court of appeals, the same shall be filled for a full term at the next general election occurring not less than three months after the occur. rence of such vacancy, and until the vacancy shall be so filled," etc. the words "at such election," in line three, and insert after the word "term," in line three, the Mr. MILLER-I refer to that decision to illus- words "at the next general election occurring trate my idea. My idea is that a court elected not less than three months after the occurrence for life will often interpret the laws of one gene-of such vacancy," so that it will read, ration in the spirit and with the prejudices of a past and darker age; and while I would not have a judiciary to be influenced by every gust of passion, I would have a judiciary that would keep step with the life and progress that mankind are making all over the world, in peace as well as in times of war, for mankind are continually moving forward. I would not to-day trust the rights of the freedmen-and I only use it as an illustration-I would not to-day trust their rights, guarded by the most human laws, to the decision of a judiciary elected for life in the age of the auction block and the slave pen. No, mankind are moving onward, and as they move along I would have the judiciary move along with them, with their light and progress. I think the term of fourteen years secures all the advantages of the life term without any of its disadvantages. Mr. BEADLE moved the previous question. The question was put on the motion of Mr. Beadle ordering the previous question, and it was declared carried. The question was stated on the adoption of the resolution of instructions offered by Mr. E. Brooks. Mr. HARDENBURGH demanded the ayes and noes. A sufficient number seconding the call, the ayes and noes were ordered. The question was put on the adoption of the resolution of instructions offered by Mr. E. Brooks, and it was declared lost by the following vote: Ayes-Messrs. C. L. Allen, Alvord, Andrews, Axtell, Barnard, Barto, Beadle, Beckwith, Bergen, Bowen, E. Brooks, Cheritree, Chesebro, Comstock, Mr. C. C. DWIGHT-Gentlemen will see, upon examination, that the section as it now stands provides for the filling of no vacancy whatever except a vacancy that shall occur three months or more prior to a general election. It reads: "When a vacancy shall occur otherwise than by expiration of term in the office of chief or associate judge of the court of appeals three months prior to a general election, the same shall be filled at such election for a full term; and until the vacancy"-the vacancy above spoken of-"shall be so filled, the Governor, by and with the advice and consent of the Senate, if the Senate shall be in session, or, if not, the Governor alone, may appoint to fill such vacancy." There is but one vacancy spoken of in this section, a vacancy which shall occur at least three months prior to the election. There can be no doubt about that, and the amendment which I propose covers the case of any vacancy whatever occurring otherwise than by expiration of term, and is as briefly expressed as the provision reported by the Com. mittee. The question was put on the adoption of the resolution of instructions offered by Mr. C. C. Dwight, and it was declared carried. Mr. HARDENBURGH offered the following: Resolved, That article 6 be recommitted to the Committee on Revision, with instructions to amend section 1 of said article as follows: Strike out will correct me-have also recommended that the words "two-thirds of the members present," some officer of this kind should be appointed. in line ten, and insert the words, "a majority of These funds are taken care of by the county all the members of said court." treasurers or not taken care of at all. Mr. HARDENBURGH-I desire to call the attention of members of this Convention for a moment to the peculiar position that is held by this court of impeachment. This court is composed of thirty-three Senators and seven judges of the court of appeals, making a body of forty members; and the provision of this section is that the majority of that body can hold the court, and two-thirds of the members present can convict; that is, fourteen. By this provision fourteen members of a body of forty can convict. I desire to insert a provision that, at least, it shall be a majority of the whole court. I am aware that that is the language of the Constitution now, but I think it is an oversight and that we have felt it in the Senate in this State. I think it should be a majority of the body, at least. Mr. FOLGER-This section first is a direct transcript from the old Constitution. I think there is force in what the gentleman from Ulster [Mr. Hardenburgh] says, as it now reads. Mr. GRAVES-I would like to inquire if these funds are not safe in the hands of the county reasurer? Mr. VERPLANCK-I know that in the county in which I reside great complaint is made; and I have heard complaint in other counties that funds are not taken care of. It is nobody's business to take care of them. If members of this Convention will refrain from voting upon this question until they read the report of Senator Willard, I have no doubt they will be satisfied that there should be such an officer. Mr. CHURCH-I disagree with my friend from Erie [Mr. Verplanck] entirely in reference to this matter. I think it is entirely useless to create a new office, with a new salary, new emolumenis and new perquisites. Mr. VERPLANCK-With the gentleman's permission, I will add one other thing. Mr. Ganson, the distinguished and able Senator from the Buffalo district, when the report referred to was The question was put on the adoption of the presented to the Senate, called my attention to resolution of instructions offered by Mr. Harden-this matter, and suggested that an officer of this burgh, and it was declared carried. Mr. RUMSEY offered the following: Resolved, That article 6 be recommitted to the Committee on Revision, with instructions to amend section 28 of said article as follows: Strike out the section down to and including the word "who," in line two, and insert in lieu thereof the words "The State Treasurer." After words courts of," in line three, insert the words "record in " kind should be appointed. Mr. CHURCH-I will indorse Mr. Ganson as strongly as the gentleman desires, but that does not convince me that this office is necessary. These funds are now placed in the hands of the county treasurers, and they are required to give bail or ample security for a proper application of them. They are legal officers and may be desig nated to hold the money of infants and others in the county in which they are located. I think Mr. RUMSEY-The object of this amendment that funds will be better taken care of and fær is simply to avoid making a new officer, when more conveniently applied than they can be in the State Treasurer may just as well take the care the hands of a receiver-general. Besides, I dislike and control of these moneys as to have another very much the name, if there were no other objec official appointed for that purpose. The provis-tion. We have generals enough in the army. ion in this section will send all the moneys tendered in justices' courts to be taken charge of by this receiver-general, and I do not think that is necessary. Mr. CHURCH-If it is in order, I desire to move to strike out the section. The PRESIDENT-The motion to amend is first in order. Let us not have a civil office by the name of general. That is entirely unnecessary. Mr. VEEDER-I think the question is upon striking out the section. Mr. RUMSEY-Will the gentleman give way a moment? Mr. VEEDER-Certainly. Mr. RUMSEY-I will withdraw the motion to Mr. CHURCH-Why is it necessary to have strike out and insist upon the resolution of inthis section in the Constitution at all? Mr. RUMSEY-I do not believe it is. I have no objection to having the section out, but if we are to have the section, I prefer that we should not have a new officer. Mr. CHURCH-If the gentleman will withdraw his motion, I will move to strike it out. Mr. RUMSEY-I have no objection to that. will withdraw my motion to amend. I structions offered by myself. Mr. VEEDER--I did not intend to yield the floor for that purpose. I wished to speak upon the motion to strike out, and not upon the amendment; and if I had supposed that the honorable gentleman desired the floor for the purpose of withdrawing the motion to strike out, I should not have given way to him. I will say, however, that I am opposed to this proposition, because I Mr. VERPLANCK-Several years ago, Senator believe it unnecessary to provide for the establishWillard, of Saratoga county, upon an examina-ing of a separate office of this character. If security tion of this whole subject, made to the Senate a is desired, the Legislature has the power to compel full report upon the necessity of such an officer the officers who at present may be intrusted as is named in this section. It has been under consideration in the Legislature since that time, and I understand that the judiciary committee of the Senate, of which my friend from Ontario [Mr. Folger] is at the head, and if I am mistaken he with these various funds to give ample security to protect the funds. There are many cases in which moneys are deposited with the clerk of the supreme court, in the various districts, with the county clerk. Take the case, for illustration, |