IN SENATE.
FRIDAY, January 30, 1863.The following bills were introduced, read the first time, and severally passed to the second reading :
By Mr. DOWNEY, [74] to fix the time of holding the Common Pleas Court in the Fifth District.
By Mr. LANDERS. [75] to Amend the 1st section of an act providing for the election and qualification of Justices of the Peace, and defining their jurisdiction, powers and duties in civil cases.
By Mr. HORD, [76] to amend section 1 of an act touching the laying out and locating towns, approved May 20. 1852 and providing when this act shall take effect.
COURT OF COMMON PLEAS.
Mr. WOLFE offered the following :
Resolved, That the Judiciary Committee be instructed to report a bill abolishing the office of Common Pleas Prosecuting Attorney and taking from the Common Pleas Court all criminal jurisdiction.
Mr. WOLFE said that he introduced the resolution to test the sense of the Senate. He doubted whether a law could be passed at this session, abolishing the Court of Common Pleas, but he believed that the sentiment of the General Assembly was in favor of the proposition embraced in the resolution. It would be one step in the way of reform. There was no necessity for continuing criminal business in the Common Pleas Courts. While Circuit Prosecutors received sufficient compensation to justify competent attorneys accepting the position, such was not the case, and never would be, with Common Pleas Prosecutors. The business of prosecuting could be better done in the Circuit Court, and at a great saving of money to the people.
Mr. MELLETT could not agree to the assumption that there was a necessity for abolishing the office of Common Pleas Prosecutor, and continuing the Court itself. The surest remedy was to abolish the whole Common Pleas system. One reason, perhaps, why the Court would not be abolished, was the fact that a large number of Judges, who would be legislated out of office, were working to defeat this measure. But this was no good reason for him, and it ought not to influence Senators. The reasons in favor of abolishing the system were manifold, substantial, and unanswerable.
Mr. BROWNE, of Randolph, said that, while he was in favor of abolishing the Court, he was also in favor of this proposition. The meagre salaries paid Common Pleas Prosecutors would never secure competent officers. One hundred criminals had, the past year, been let out of the Penitentiary because of illegal committals, all the work of ignorant prosecutors. Change the system, and there would be more convictions. It was an irresponsible system, page: 106[View Page 106] the prosecutor claiming all the prerogatives of a grand jury, and in many cases his action was unjust.
Mr. WOLFE moved to amend his resolution so as to add : "and that it is inexpedient to abolish the Court of Common Pleas."
Mr. MELLETT moved to add in the proper place, " and the jurisdiction of the said court in civil causes."
Mr. WOLFE objected to the amendment. It would reduce the Court to an old fashioned Probate Court. He favored every measure to reform it. He knew it required reform, but before he would consent to abolish it, he must be assured that a better system could be devised and brought forward to replace it. It was on this ground alone that he opposed the abolition of the Court. If you divest it of civil and criminal jurisdiction, you have a Circuit Probate system in the State. Will this be an improvement on the score of expense?-- You have the Judges to pay, and the machinery of a Court to keep up. If you strike the Court down--abolish it--you throw the Probate business into the Circuit Court. He knew that the Judges of that Court were competent, but, with a multiplicity of business, would you better the manner of doing that branch of business, or would you cheapen it? Another, proposition was to give the Clerks of Courts Probate jurisdiction. He was opposed to that. The most of the Clerks were not elected with a view to that end. They were not lawyers, and in many instances would not be able to grapple with questions that would come before them.--He was not wedded to the Common Pleas Court, but he was opposed to changes in our judicial system, and utterly opposed to experimenting with it. The people were not demanding the change. The demand was made by a certain class of Circuit lawyers, who thought a double system interfered with their practice. he admitted the objections urged, but was fully satisfied that the abolition of the Court would work evil. The Probate business combined. He dwelt at length on this view, and condemned severely the disposition to place it in incompetent hands--such as Clerks of Courts. He hoped a direct vote on the question would be taken. The Senate was as full as it was likely to be. He would not object to postpone, but when the vote is taken, let it be direct, and the mind of the Senate would be known on the subject. All admitted that some reform was needed, and when the views of the Senators are known, the Senate could act understandingly.
Mr. CLAYPOOL. The Senator from Harrison (Mr. Wolfe) had convinced him that the Court of Common Please should be abolished. He states that the Probate business is the most important. If it was so, the business should be in the hands of the highest and best Court in the State.-- He was not influenced by personal motives in this view. He had the pleasure of practicing under one of the ablest lawyers and best men on the bench. That gentleman himself thinks the Court should be abolished, and time and again said so. The salaries paid to Common Pleas Judges did not, and could not, secure the best talent. Unless the Judge, (as was the cause in this District) was a wealthy man, he could not afford to occupy a seat on the Common Please Bench. He was in favor of increasing the pay of Circuit Judges, and increasing the circuits. The salaries of Circuit Judges should be at least $2,000 per annum. Less than that would not secure the services of the best legal minds. He hoped a direct vote would be had. He believed a direct vote would be had he believed a majority on this floor were in favor of abolishing the Court of Common Pleas, and doing away with this multiplicity of Courts, which only impaired the dignity and efficiency of the Judiciary of the State.
Mr. RAY. The gentleman from Harrison (Mr. Wolfe) admitted the objections urged against the Common Pleas system, and that reform was needed. We have two Courts of common jurisdiction. If the ends of justice can be as well subserved by one Court as by two, and if the expense can be reduced 25 or 30 per cent., is it not right and is it not policy to do so? He thought the argument that a certain class of lawyers advocated abolishing the Court for interested motives was hardly worthy of the attention of the Senate. The people were satisfied with the old Probate system. It was a cheap and a fair system. The Common Please Court was a new thing to the people, and it was increased expense without corresponding benefit. The Judges of these Courts knew little or nothing of the condition of the estates in the counties. They issued citations and taxed the cost, and that is all they did. The Clerk and the Attorney settled the business. He compared the method of doing business by the Probate Judges. They were public administrators, and kept posted on the business before them. Put this business in the ands of Courts having criminal and civil litigation, and what time as the Judge to give attention to the settlement of estates?
Mr. WOLFE. Would not the same objection hold good if the business was in the Circuit Court?
Mr. Ray said it would. In that respect he differed with the gentleman from Fayette, (Mr. Claypool.) He wanted the Common Please Court abolished. He wanted the Probate business given into the hands of a clerk or surrogate, to be open when other public offices of the county were open, when people could be accommodated at all times. As it is, the time of court page: 107[View Page 107] is taken up with litigated cases, and the Probate business comes in as a sort of side bar, and it is done up by the clerk and the attorney, independent of the Judge, who is occupied with other business. If he was devising a system for the benefit of lawyers, he could not think of a better than the one now in existence. It is admitted that the criminal business of the Court was shamefully mismanaged. He would remove it to the Circuit Court. He would accept this, if he could not do better. But he demanded more, a greater reform, and the people would yet demand it. This Court was fastened upon them by restless politicians, who were always urging change. He was willing to increase the pay of Circuit Judges under the present depreciated state of the currency, but he would require the Judges to work. Let them hold three terms of the Court, if needed. He spoke of the Prosecutors as in general utterly useless under the double-headed system, but contended that if there was only one set of such offices under a Court of dignity, with sole jurisdiction, that competent talent would be secured. Make the office an honorable and reputable one, and the huckstering and brokerage of the crimes of the country, now so much complained of, would disappear. He contended that it was in argument in favor of the present system that a better one was not presented. The gentleman from Harrison, an able and ingenious lawyer as he is, could devise one. Give the Probate business to the Clerk, or give it to a local Surrogate. He opposed a circuit, a traveling Surrogate. The business should be in the hands of parties who could be accessible at all times.
AFTERNOON SESSION.
Mr. RAY said, in order that the question pending should have more mature consideration, and be returned to the Senate when it was more full than at present, he would move the reference of the resolution to the Judiciary Committee, with instructions to act, in conjunction with the Committee on the Judiciary of the House, and determine the expediency of abolishing the Common Pleas Court, and instituting a substitute with Probate jurisdiction, and if found expedient, to prepare and present a bill for the purpose.
Mr. WOLFE opposed the reference. He simply offered the resolution to get an expression of the Senate, and the reference would defeat that object. He was willing to postpone the consideration of the subject, but he wanted a direct vole when a vote was taken.
Mr. MARCH was ready to vote on all these propositions now. He could not agree with the gentlemen who asserted that the Court was useless or inefficient. The Judges would compare favorably, for legal ability and moral worth, with the Judges of the Circuit Court. The convictions for crime in these Courts had been as numerous as in the Circuit Courts.
Mr. RAY. Does not the history of our criminal trials show that over seventy convictions have been made in that Court that could not be legally sustained?
Mr. MARCH. With all that it was the cheapest and best system. It was not a secret tribunal, like the Grand Jury system. It was not a place surrounded by guards where men could go to vent their malice against their neighbors. He did not believe in the theory advanced here that it required large salaries to secure the best legal talent. The history of the Judiciary in this State does not prove the assertion. He wanted to know what system would be substituted when you tore down the one under debate. It was easy to tear down, but often difficult to build up. He would not vote to abolish the present Court until he saw what substitute would be offered.
Mr. MELLETT regarded this as a test vote, and simply voting for an expression of opinion did not commit Senators to any substitute. If it was found that the Court was to be abolished, then gentlemen would present their plans of a substitute, as many of them had intimated they would do.
Mr. JOHNSTON said that it would be no test vote, so for as he was concerned, as he would vote against the abolition of the Court until he had an opportunity of voting tor something better as a substitute, in which case he might vote for its abolition.
On motion by Mr. COBB the motion to refer was laid on the table: yeas 19, nays 18.
Mr. FERGUSON thought the means proposed to get a direct vote on this subject were the worst that could have been thought of. A test vote could not be had in the shape now presented.
Mr. COBB moved to lay the resolution and pending amendments on the table.
Mr. WOLFE demanded a division of the question.
The amendment (Mr. Mellett's) to the amendment was laid on the table by yeas 27, nays 11.
The amendment (Mr. Wolfe's) was also laid on the table by yeas 28, nays 11.
The Senate refused to lay the resolution on the table by yeas 18, nays 21.
Mr. MELLETT moved to strike out from the word "resolved," and insert the following, "that it is expedient to abolish the Common Pleas Court."
The yeas and nays were demanded by Messrs. Mellett and Claypool, and being ordered and taken, resulted--yeas 17, nays 22--as follows :
YEAS--Messrs. Bearss, Beeson, Berry, Browne, of Randolph, Claypool, Downey, Dunning, Finch, Jen-kins, Landers, Marshall, Mellett, Moore, Murray, Pleak, Ray and Wright--17
page: 108[View Page 108]NAYS--Messrs. Blair, Campbell, Cobb, Corbin, Culver, Davis, of Parke, Davis, of Cass, Ferguson, Gaff, Gifford, Grubb, Hartley, Hoagland, Hord, Johnston, McClurg, March, New, Teegarden, White, Wilson and Wolfe--22.
So the amendment was rejected.
The question recurring on adopting the original resolution,
The yeas and nays were demanded by Messrs. March and Ray, and being ordered and taken resulted--yeas 18, nays 21--as follows :
YEAS--Messrs. Beeson, Berry, Browne, of Randolph, Claypool, Davis, of Davis, of Cass, Dunning, Finch, Gaff, Hartley, Hoagland, McClurg, Marshall, Moore, Murray, New, Ray, Wolfe and Wright--18.
NAYS--Messrs. Bearss, Blair, Campbell, Cobb, Corbin, Culver, Davis, of Parke, Downey, Ferguson, Gifford, Grubb, Hord, Jenkins, Johnson, Landers, March, Mellett, Pleak, Teegarden, White and Wilson--21.
So the resolution was rejected.
AGRICULTURAL COLLEGES.
Mr .CLAYPOOL introduced a joint resolution, [7] in relation to the land donated by Congress to the State for the purpose of endowing Colleges, which was read the first time.
INVESTIGATING COMMITTEE.
On motion by Mr. BROWNE, of Randolph, it was--
Resolved, That the special committee heretofore appointed by the Senate upon the instructions introduced by the Senator from Wells (Mr. Brown--day before yesterday) to investigate and report upon the affairs of the Quartermaster Department and of the Arsenal, be, and is hereby instructed to inquire into the expenditures, and investigate the manner in which the Commissary Department of the State has been conducted.
STATE PRISON COMMITTEE
The resolution (introduced yesterday by Mr. Corbin) to reduce the State Prison Committee to eight members, coming up.
On motion of Mr. WOLFE it was laid on the table.
House bill 15 was read the first time.
THE KENTUCKY LEGISLATURE RESOLUTIONS.
The House concurrent resolutions (printed in the proceedings of yesterday afternoon) in response to joint resolutions introduced in the Senate of Kentucky, were taken up.
Mr. WOLFE moved to refer to the Committee on Federal Relations.
Mr. MARCH hoped the reference would not be made, but that the resolutions would be passed at once. He was in favor of responding to the patriotic resolutions of the Kentucky Legislature. The House had posted these resolutions by an almost unanimous vote.
Mr. WOLFE said that when resolutions were introduced here endorsing the sentiments uttered by the Governor of New York, they were referred to the Commit tee on Federal Relations He approved of the sentiments expressed in them, but he was willing they should go to the committee for their consideration. It would be time enough to act upon this matter when the Legislature of Kentucky had approved it. At present, it was merely the expression of an individual Senator from the State.
Mr. BROWNE, of Randolph, made an ineffectual motion--yeas 19, nays 20--to lay the motion to refer on the table.
Mr. LANDERS hoped the resolutions would be referred. The argument that the House indorsed them was simply no argument at all. The resolutions from the same body in reference to the message of the Governor of New York were sent to the committee, and they took the right direction.
Mr. RAY favored the reference, not because of opposition to the sentiments contained in the resolutions, but because he was opposed to catching up all the driftwood that floated in the newspapers and appropriating it as our own, when we had enough legitimate work before us to occupy all of our time.
Mr. CLAYPOOL desired to see this Senate once more endorse the declaration contained in these resolutions. That sentiment had been unanimously avowed at the extra session. It was: that however much we might differ from the men in power, we were for sustaining the government in all its efforts to prosecute the war vigorously.
Mr. CORBIN. There is too much time spent in discussing these matters. The resolutions under consideration were only presented to the Kentucky Legislature and our concurrence was not asked He was in favor of the reference--nothing could be lost by it.
Mr. LANDERS moved to amend so as to insert an endorsement of Governor Seymour's message.
Mr. BEARSS made an ineffectual motion--yeas 19, nays 20--to lay the amendment on the table.
Mr. MELLETT moved to indefinitely to postpone the motion to refer.
On motion by Mr. LANDERS the motion was laid on the table--yeas 20 nays 19.
On motion by Mr. Downey, the resolutions were then referred to the Committee on Federal Relations, "with instructions, when they report, to incorporate the sentiments enunciated in these resolutions,in their report or resolutions"
COURT OF COMMON PLEAS.
Mr. BROWNE, of Randolph, offered a concurrent resolution instructing the Committee on the Judiciary to confer with the House Judiciary Committee as to the expediency of reforming the Judicial system of the State, and of abolishing the Common Pleas Court, and if found expedient, that they report bills on the subject, and that all propositions introduced on that subject be referred to such committee.
On motion by Mr. COBB the resolution was laid on the table--yeas 20, nays 17.
