IN SENATE.
THURSDAY, January 22, 1863.Mr. DOWNEY offered a resolution, which was adopted, that the Judiciary Committee inquire into the expediency of authorizing a competent officer in the several counties to grant injunctions and writs of habeas corpus.
COURT OF COMMON PLEAS.
The following resolutions heretofore offered by Mr. BROWNE, of Randolph, [see page 36 of these Reports] were on his motion taken up:
Be it Resolved, That the Committee on the Judiciary be and is hereby instructed, at the earliest practicable moment, to prepare and report to the Senate a bill or bills embodying substantially the following:
- 1st. Abolishing the Court of Common Pleas, and the office of District Prosecuting Attorney.
- 2d. Increasing the number of Judicial Circuits to not less than twenty, nor more than twenty-four and providing for three terms of the Circuit Court each year.
- 3d. Transferring the civil business that may be pending in the Common Pleas Courts at the time said act may go into effect, to the Circuit Courts.
- 4th. Giving to Justices of the Peace exclusive original jurisdiction of all misdemeanors, the punishment of which is by fine only; extending the jurisdiction of the Circuit Court and the Grand Jury to misdemeanors, the punishment of which may be imprisonment in the county jail; and providing further, that whenever a Justice of the Peace shall be of opinion, upon the investigation of a misdemeanor that adequate punishment would exceed his jurisdiction, he shall require the accused to enter into a recognizance for his appearance to answer the charge at the next ensuing term of the proper Circuit Court, or in default thereof commit him to the County Jail; and in such case the Circuit Court shall proceed to try said cause upon the affidavit filed before the Justice. Also, making it the duty of the Prosecuting Attorney to prosecute such cases in the Circuit Court, and allowing him therefor such fees as are allowed by law in other cases.
- 5th. Giving the Circuit Courts jurisdiction in cases of applications to sell land by Guardians, Assignees, Executors and Administrators, actions for partition, and in all cases of Probates that may require litigation.
- 6th. Requiring Guardians, Assignees, Executors and Administrators to make their reports, accounts current and final statements to the Clerk in vacation.
- 7th. Providing that in all cases of final settlement, or where an allowance for service may be demanded, in any report or account current, the Clerk shall receive and docket the same, in a proper record to be kept for such purpose, and shall present the same for inspection and allowance to the Circuit Judge, on the first day of the next ensuing term of the Circuit Court.
- 8th. That in all cases, any person interested may appear before the Clerk in vacation of the Court, in term time, and file his written objections and exceptions to any report, account current, or final settlement; and upon the filing thereof the cause shall be properly docketed, and after the service of process upon the adverse party, as in other civil causes, it shall stand for trial. Upon the hearing thereof, the Court shall make such order respecting the controversy as the law of the case may require, and shall page: 72[View Page 72] award the costs against the losing party, or divide them between the parties, in such manner as to the Court may seem equitable and just.
- 9th. Providing such additional compensation for the Clerk as may be reasonable, in view of the in-creased labor that may be imposed upon him.
- 10th. Providing that the act shall take effect and be in force from and after the 1st day of November, A. D. 1864.
Mr. COBB moved to amend so as to direct the committee to inquire into the expediency of reporting a bill on the subject.
Mr. BROWNE, of Randolph, said his object was to get an expression of the Senate on the subject. He was not at all tenacious about the resolution being imperative, nor did he care whether it went to the Committee on the Judiciary or to the Committee on the Organization of Courts. The merits of the subject could be as well discussed on the resolutions as they could be if a bill was prepared. If the expression was favorable he would assist in preparing a bill.
The amendment was adopted.
Mr. MARCH moved to amend so as to instruct the committee to inquire into the expediency of abolishing the Grand Jury system. He said that in old English times the introduction of the grand jury system was an advance upon civilization. But in this day no such star chambers were necessary, where spiteful people could go before an inquisition and blacken the characters of innocent men. They should fee abolished and public investigation in open court instituted instead. Their abolition would save much money to the State.
Mr. RAY had always thought that all attempts to change the grand jury system were but steps downward. Its efficiency had been damaged already. It had been so emasculated as to embrace within its jurisdiction only that class of crimes known as felonies. He spoke of the general in-competency of Common Pleas Judges and Prosecutors to administer justice. Under the present duplicate system of criminal jurisdiction, the majority of the prosecutors have been taken from the constitutional side of the bar--those who become lawyers by the easy mode permitted by our Constitution. A change which would abolish the Common Pleas Courts would prove to be an economical move. He referred to the practical working of the system by which the settlement of estates and the whole probate business was left to the judgement and attention of the lawyers interested, and by which the prosecuting business was frequently subbed out to deputies in the counties for a consideration by the Prosecutor, who remains in his own county, thus encouraging corruption in office. He had made a calculation and was satisfied that thirty-three per cent. would be saved in salaries and court expenses to the people of the State by abolishing this court. As to the probate business he cared very little whether this were left with the Clerk or a local surrogate court. The settlement of conflicting jurisdiction between different Courts had cost the State more than the whole grand jury system. The changes proposed would raise the dignity of the Court, But little respect was now paid to our courts because their administration was placed in the hands of incompetent officers. As to the grand juries he claimed that society had no protection save in such juries, for when it became the duty of individuals to publicly stir up strife in the community crime would necessarily go unpunished. This was proved by the general neglect of prosecutors to file information in counties where the local prosecutor did not reside. The abuses of the Common Pleas system were the legitimate result of the degradation of our judicial system. With but one Court in which all criminal and civil business was settled, competent Judges and Prosecutors could be had, justice would be more speedily administered and the expense to the people lessened.
Mr. WOLFE was opposed to the abolition of the Grand Jury system, but would rather return to the old system that gave Grand Juries jurisdiction of all misdemeanors where the punishment was at least imprisonment. The entire system of simplification of pleadings and practice had done more to complicate the practice in Courts than anything else. From 1816 to 1852 we had but eight volumes of Supreme Court reports; since 1852 there had been published sixteen volumes of the same reports, and two more were ready for publication. The changes proposed could work no benefit to the judicial system. As to the economical question, he had made an estimate two years since, when similar propositions were presented, and found that the change would cost much more. By no system of jurisdiction can the amount of business required to be performed by the Courts be lessened. If the Common Pleas Court should be abolished, its business though transferred to another Court, would not be lessened. If five cases in one court required five days of jury service, and five cases in another court required five days of jury service, the ten cases if thrown into one court, would occupy a jury just ten days, and no more time or pay would be saved than if there had been no transfer. The increase of circuits would require nearly the same amount to pay the salaries of additional Judges and Prosecutors that would be saved by the abolition of the Common Pleas Court. While he admitted that there were objectionable features in the common pleas system, it was no good reason that it should be abolished. Let the objections be removed without abolishing the Court. The system, as first introduced, was better than the present one. He page: 73[View Page 73] would favor a change that would place the criminal business in Circuit Courts, with but one Prosecutor for each Circuit.
Mr. NEW offered the following-additional instructions to the committee: "That the expediency be inquired into of abolishing the criminal jurisdiction of the Courts of Common Pleas, and restoring to the Grand Juries jurisdiction of all misdemeanors, concurrent with Justices of the Peace, and requiring the Circuit Court to hold criminal terms in any county upon the request of the County Commissioners of such county."
Mr. MELLETT said the propositions involved no substantial change in our judicial system. We now had two courts of concurrent jurisdiction, and parties had choice of either in which to bring actions. It was no advantage to the people to have one court sit six weeks and then adjourn to be immediately followed by a four weeks session of another court having nearly the same jurisdiction. They could not understand why a ten weeks term of a single court would not answer just as well. He alluded to the manner in which criminal trials were put through Common Pleas Courts by incompetent officers, and claimed that such administration of justice was the result of the system. There must be clashings of jurisdiction. If the proposed change was made the people would find they had but one court to go to, with one judge, and less inconvenience would follow. While the change would not be a radical one. it was certain to prove advantageous. He was opposed to abolishing the Grand Jury system. Under the common Pleas system of bringing criminals into court upon information filed by the Prosecuting Attorney, favoritism and prejudices frequently controlled prosecutions. He would give most of the misdemeanors to grand juries. Common Pleas prosecutors now employed deputies to file informations, and under that rule the guilty often went unpunished. If the Circuit Courts were allowed to hold three terms a year and the Common Pleas Court were abolished, a uniform system of judicature would exist throughout the State.
Mr. BROWNE, of Randolph, supposed the mover of the proposition to abolish grand juries, was willing to abolish all courts except the Court of Conciliation. He (Mr. B.) had great respect for the old system of practice and thought the new code had done but little good. Instead of confiding inquiries as to misdemeanors to twelve men, the code had placed this power in the hands of one man, who, as Prosecuting Attorney, could not judge impartially of such matters. Grand juries now involved as much expense as under the old system when they had jurisdiction of all classes of misdemeanors. They sit as long, juries were not star chambers. No twelve men would present any one from malice, nor would they fail to present any one from base considerations. Under the present system more men were brought into court charged with crimes that could not be sustained, than under the old system. He believed in restoring to grand juries all classes of cases where the punishment was imprisonment in the county jail. The judicial system had been so simplified that neither the people nor the bar respected it. He favored abolishing the Common Pleas Court because we had two Courts of similar jurisdiction, which did not facilitate justice. Where the terms of the two courts followed one another it was the same as one court with different judges. The Common Pleas was an expensive court. The jury of that court was an additional expense that would be lessened by the abolition of the court. The increase of Circuit Judges and the abolition of Common Pleas Judges would save $23,000 to the State; saving in bailiffs fees would be $15,000 and in the salaries of Prosecutors $5,500. In addition there would be a saving, of a considerable amount in incidental expenses, and the whole saving would not be less than $60,000. A surrogate system would, perhaps, increase the expenses some. An increase of the number of courts and officers must necessarily diminish the pay, and as a consequence an inferior order of ability was upon our benches and in the prosecutor's offices.
Mr. MARCH said when he introduced his proposition he had not anticipated such a buzz. He did not know whether to treat as ludicrous or as serious this hifalutin talk about the "dignity of the bar." The proposition was to tear down the whole judicial system except the Grand Jury. He believed that any investigation to be just, should be public. The grand jury system retained the odors of the tyrannical systems of old. It was too late in the day to talk about the practicability of the present system of law practice. The old system was the result of a barbarous age, piled up in perfect cobwebs of form and technicalities, until justice was clouded from view. The present system of administering law had lessened the expenses one half. Before, litigants had to go into courts of equity or law, and if they got into the wrong door they got kicked out with a bill of from $500 to $1,000 of costs, with an exclamation from the court, "this is the temple of justice." Besides this there were nine different forms of action, and if the litigant failed in any one, he had to pay the cost and commence anew. Now there was no distinctions between forms and actions. The old systems of pleading and practice had perished and could never be restored. He said that under the old system of procuring certificates to practice law, an oyster supper and some good old Bourbon had more to do with it page: 74[View Page 74] than Littleton on Coke. No amount of sheepskin or diplomas would ever make a lawyer. He must be a man--not one who was bent on taking little advantages on all occasions, but one who could be a peacemaker, when necessary. As to the increase of Supreme Court decisions, it was sufficient answer to say that an increase of population increased the business of the State. It had been said that litigation had been multiplied, but the decisions of the Supreme Court showed that slander suits had been in a measure done away with, through the influence of courts, of conciliation, and under the new rules of practice. He knew of no deterioration in ability of judges in his portion of the State. In conclusion, he would say that he was in favor of the present system, and for perfecting it wherever defective, and for preparing something to take the place of the Common Pleas Courts, if something better could be found.
AFTERNOON SESSION.
On motion by Mr. WILLIAMS, the subject under consideration was informally laid aside to enable Mr. Murray to address the Senate in behalf of his claim to retain his seat and in opposition to the claim of the contestant Mr. Baker.
Mr. MURRAY gave a statement of his case reviewing the arguments of the gentlemen who had spoken for the contestants. His case was different from some others. He was elected, as Senator from Elkhart and Lagrange in 1860. He attended as such Senator the regular and special sessions. He accepted the appointment of Regimental Quartermaster in the 48th regiment when that regiment was raised and served in that capacity nine months. His opponent (Mr. Baker) was elected on the plea with his people, that he (Mr. Murray) had vacated his seat by accepting an incompatible office. Mr. Baker who claims the seat held a lucrative office at the time he was elected, and only resigned it after the election returns were in. These were the main points in the case. Mr. Murray asked, that if he was excluded, that his opponent be excluded also. Under the extraordinary circumstances surrounding the country, where so many had got mixed up with military affairs through the best and purest motives, he did not think a strict construction should be put upon the constitutional disqualification. Certainly an arbitrary construction should not be put upon that clause or the decisions of the court under it.
On motion by Mr. WOLFE, the papers in this contested case were referred back to the Committee on Elections.
On motion by Mr. LANDERS, the Senator from Bartholomew (Mr. Hord,) was added to the Military Committee.
