REPORT, &c.

To the Honorable the Assembly of the State of New-York.

The Chief Justice of the Supreme Court, who, together with the Chancellor, by a resolution of the honorable the Assembly, of the 14th inst., was requested to inform the house of the present state of business in their respective courts, and whether there is just ground of complaint as to delays in those courts in the hearing and decision of causes; and if so, to report such a judicial system as will, in their opinion, be adequate to perform with despatch, the business which will probably have to be transacted before the said judicial tribunals,

RESPECTFULLY REPORTS:

That he can answer in relation to the Supreme Court only:

The information desired, seems to require an answer under three distinct heads:

1. The present state of the business:

2. The delay, if any, and the causes of such delay:

3. The proper remedy.

1. The Business of the Court.

The mass of causes commenced in this court, progress without delay, from their commencement, to judgment. When pleas are interposed, the causes are brought speedily to trial; a circuit for the trial of issues of fact, is twice held in each year in each county, and every cause ready for] trial is usually disposed of. In a great majority of cases tried at the circuit, judgments are entered at the succeeding term, and the prevailing parties obtain the fruits of their judgments.

It is only in causes in which questions of law arise, and when one of the parties is dissatisfied with the decision of the circuit

In such cases, the questions arising at the circuit, are brought before the Supreme Court, by a case or bill of exceptions, for their decision. It is the proper business of the Judges of the Supreme Court to hear and decide these cases, as well as all writs of error and of certiorari, to inferior courts, in both civil and criminal cases, and questions arising upon demurrer.

To give to the Assembly an adequate idea of the business of the court, it is proper to state, that these causes, when noticed for argument, are entered by the clerk upon a calendar, according to priority; and in that order generally they are argued. The only exceptions, are causes in which the people are a party, and such as have preference by statute. The causes thus entered the upon calendar, constitute what is called the enumerated business of the

court.

The non-enumerated business of the court consists of the special motions which arise in the progress of causes, and also of motions for the writs of mandamus, prohibition, and certiorari, and some other special applications authorized by statutes.

These motions are much more numerous than the enumerated motions; are entitled to preference; and with but few exceptions are heard and decided in vacation.

The number of causes upon the calendar at the present term, is 331, including some issues of 1832, and coming down to a very recent date.

For several years past, the average number of causes has been about 300. About one-third of this number has usually been disposed of at each term, either by argument, submission or default.

The number of judgments entered in the clerk's office in this city during the last year, is 3,126; and taking this number as an average of the other three offices, the whole number will be 12,504. Of this number, about 400 have passed under the immediate supervision of this court, and have been decided upon argument, either in open court or in writing.

The number of special motions, all of which have been heard and decided in open court, and some discussed at great length, is 1,316. The 331 causes now on the calendar, and upon which the court is now engaged, is composed of the following classes, to wit:

Writs of error from inferior courts,

119

Motions for new trials on cases made in causes tried at the

Having thus stated to the Assembly the present state of the business, the undersigned proceeds to state,

II. The delay in hearing and deciding Causes, and the causes of such delay.

That there is, and must be some delay in the decision of causes placed upon the calendar, is well known. Many of them present questions of importance and difficulty; they are claborately argued by counsel, and must be carefully examined by the court, and an opinion written, containing the reasons of the court for the decision which they make. It has been found impracticable for the judges to hear, examine and decide these causes as fast as they are put upon the calendar, coming from 55 circuits, held twice in a year, 56 courts of common pleas, including the superior court of the city New-York, besides demurrers, and some other miscellaneous business, and hence the delay.

It will be recollected that under the old Constitution, the terms and circuits were held by the same judges. At the organization of our government, the number of judges of the Supreme Court was the same as at present, three. There were four terms of this court of two weeks each. In 1785, the October and April terms were extended to three weeks each; and the reason then assigned for extending them, was, that the terms of two weeks were "attended with great delay of justice."---Session 8, chap. 61. When this extension of the terms took place, the population of the State did not exceed 300,000. The business of the court increased with the

In 1792, it became necessary to add one judge, and in 1794, another, making the number five. At that time the population did not exceed 500,000. Five judges remained upon the bench until the adoption of the new Constitution. During this period, it was found that the same causes which produced the necessity for more judges, and longer terms, continued to operate. The State continued to increase in population, which, at the adoption of the new Constitution, exceeded 1,300,000. Business of all kinds became more and more extended; contracts were multiplied, and litigation succeeded. The Legislature, previous to that period, did not think proper to increase the number of judges; and those in office found themselves unable to perform the business with despatch. For several years previous to 1823, the court, composed of men of distinguished talent and industry, could not dispose of the causes upon their calendar; nor were they able to try all the issues at the circuits. An accumulation of causes upon the calendar of the Supreme Court, and of the circuits in those counties where the most business arose, was the necessary consequence.

Such was the state of business when the adoption of the new Constitution introduced a new judicial system. The labors of the term and the circuit were now divided; as under the old Constitution, the principal difficulty was supposed to arise from delay in the trial of issues at the circuits, the new system provided for that evil a sufficient remedy. Eight judges were commissioned to hold the circuits, while only three were assigned to the higher and more responsible duty, not only of deciding all questions of law arising at the circuit and upon demurrer, but of supervising all inferior jurisdictions within the State, and the more delicate duty of sitting in judgment upon the constitutionality of the acts of the Legislature itself.

At first blush, this system seems to be not properly balanced; and so it has proved in practice.---While the circuit judges have not business to occupy half their time as circuit judges, the judges of the Supreme Court are expected to perform nearly or quite double the business which ought to be required of them.

When the new bench commenced their labors in May, 1823, they found a heavy calendar of old causes. The last calendar of the court under the old Constitution in January, 1823, contained 388 causes. The calendars at New-York and Utica in May and

August following, were large, and in October at Albany, the num ber was 463. As yet, but part of the causes from the circuits held under the new Constitution, had reached the calendar. The number of old causes could not be ascertained with perfect accuracy, but there were probably from four to five hundred. At the January term, 1824, a flood of cases coming from the recent circuits, the accumulation of previous years, poured in upon the court, and nearly overwhelmed it. The number was 643.

With the number of trials at the circuits, the number of special motions increased, and a large proportion of each term was necessarily consumed in hearing and deciding them. Up to this time, the calendar exhibited a greater number of causes, than there were in point of fact; nearly half of them were noticed on both sides, and entered separately upon both notices.

In 1825, the judges, by great exertion, and doubling their hours of sitting in court, (an experiment which will not bear repeating,) were enabled to go through their calendar for three or four terms in succession. The labor was too severe and could not be continued.

In April, 1825, the honorable the Senate, in consequence of mcmorials presented to them, by resolution called upon the Chancellor, Judges of the Supreme Court, and the circuit Judges, to report to the Senate at their next annual session, what alterations, if any in their opinion were necessary, in the Constitution and laws of this State, to improve the judiciary system. On the 16th Jan., 1826, a report was presented to the Senate in answer to that resolution. To that report the undersigned begs leave to refer; it is found in the Journals of the Senate of that year, at page 66. It was then distinctly stated, that it was to be apprehended from the disproportionate organization of the court, that causes in the Supreme Court would continue to accumulate; and that such a result might be considered certain, by recurring to the increasing population of the State.

In that report several measures were recommended as calculated to afford at least temporary relief, and such as were within the power of the Legislature, without an alteration of the Constitution; but nothing was done. Some of the measures then recommended have since been adopted, and with decided success; but the principal expedient has never been adopted. It was to com