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STATE CONVENTION.

THE JUDICIARY.

SPEECH OF THE HON. JAMES TALLMADGE, OF DUTCHESS, IN THE CONSTITUTIONAL CONVENTION, AUGUST 20, 1846, ON THE NEW JUDICIARY SYSTEM.

MR. TALLMADGE rose to address the Committee. He said that the gentleman from Chautauque (Mr. Patterson) had referred a day or two since, in this debate, to a bill of charges by a county judge. In that bill he had charged $78 for one days' service, and in another he had charged upwards of $140 for two or three days' services. All these charges were legal; and many others, much worse, that have been made at different times, were also legal. He had risen, not to allude merely to this point in the abstract, but to say this much to the Convention, in order to show them the necessity for more discreet legislation hereafter. When he (Gen. T.) spoke of these charges as legal, he meant that they were lawfully made according to existing laws; and that there were many more much worse cases than those which had been presented by the gentleman from Chautauque (Mr. Patterson). Why, so recently as the year 1835, an act was passed by the legislature of this state, entitled "An act to reduce the number of town officers, and to facilitate the auditing of their accounts." This act, in its 21st section, takes from the District Attorney the discretion which he had hitherto held, and for the due exercise of which, he had been responsible to the supervisors and the public, and makes it mandatory that when a criminal cause is put off, the District Attorney, the prosecuting officer, shall recognize all the witnesses to appear at the ensuing court; by which there was at once a Pandora's box opened for the commission of great wrongs, amongst which might be, and frequently was, the increase of fees and the unnecessary imprisonment of witnesses that could not give security. Another abuse was opened, growing out of the business of the Attorney's office; and multiplying the fees of subaltern officers and police magistrates. He alluded to this in charity to the legislature, which passed such a law-under such a title; but he thought it afforded sufficient evidence that it was a trick or fraud on that legislature, which, perhaps, was busy with something else, than merely thinking: (laughter,)|| some of them probably, absent occassionally to some place for refreshments (much laughter). By looking at the 19th section of the same act, geutlemen would see that it helped to swell the mass of fees, and opened the door for corruption, fraud, and a train of evils, which it was not necessary now to enquire into.

That we must all have offices, looks too much like the English system of primogeniture, and by providing for the younger sons of the nobility, in the army, navy, &c.: This system of our judiciary, with the numerous judges, clerkships, and other officers provides a like result. In England all that class of persons are thus amply provided for; but our more economical and prudent republican system will not allow that plan to be attempted here. We must conform our institutions to the new state of society into which we are placed by our new form of government.

Too many of us prefer office,-dislike labor, and intend to live by our wits, where some are liable to be short in capital. The report of the Judiciary Committee, is a well contrived hospital for this class of political invalids. The tax-payers will murmur at the increase of these pensioners of party to subsist on salaries and fees.

The debate which had arisen on this judiciary question he regarded as one of the proudest and most valuable that had yet taken place upon this floor; and he commended it most heartily for the talent, the spirit, the learning, the good feeling, and the assiduity by which it had been characterized, He regretted that the gentleman from Cayuga (Mr. Shaw,) should have felt it necessary to offer a resolution to limit this debate; and he (Gen. T.) hoped, that resolution would be laid to sleep on the table.

In the commencement of this Convention, he had forewarned members against the bad policy of appointing nineteen standing committees. He said then that it would lead to difficulty, and the result had verified the truth of his predictions.

He had urged then, that they ought, at the most to have had no more than eight standing committees, one for each article of the Constitution; and indeed,

in his opinion, three committees would have been enough; one for the Judiciary, one for the Executive, and one for the Finances. By means of the labors of these we would immediately have gone to work, and the leaks in the great vessel of State would have been soldered up as the public had demanded. The Convention, in its wisdom, had spent six weeks of the session in the reception and discussion of resolutions, revolutionary in their principles and tendencies and not one of which would ever be brought to maturity. This it was that he had disapproved and early protested against; and now at the end of twelve weeks we find ourselves in this position, about to cut off debate for want of time. For one he was proud to see it was now understood. To stop debate-the previous question-to cut off amendments-a reference to a select committee to report complete-are all contrivances, not well suited to the consideration of this Convention, and the discreet formation of the articles of a new Constitution.

He, however, thanked the committee for many points which they had presented, and which would be beneficial; at the same time they could not be expected to have acted with any great unanimity. It was a by-word in the country, that if you want to get a body that can never agree upon any possible subject, get a jury of lawyers! (laughter,) and here we had a jury of twelve or thirteen lawyers; and the proud result at last has been, that after many weeks of discussion two of them have been brought to agree upon a report!-(much laughter.) That a prophecy should have brought about a result of such unity, almost made him fearful of a prosecution for witchcraft! (laughter.) We have seen these minority dissenting reports, as grand sprouts springing up from the roots; all so diverse in character and form that the most skilful botanist in the world could not attempt to classify them.

We are still interchanging ideas, and when we have finished this discussion; when each point is fully canvassed-we shall then go to voting, and as he hoped with the best results. That we may not be mystified in our work, let us commence it in regular order, and begin at the foundation; that is, with the justices' courts. He bowed with great commendation to the wisdom of the gentleman from New-York, (Mr. Morris,) who the other day proposed a modification of justice's courts, to one justice and a clerk, and limiting their jurisdiction to one town. It did not seem to have occurred to that gentleman that there were towns of at least twenty miles in extent in some parts of the State. Go to the county of Dutchess-there was the town of Fishkill, about twenty miles in length one way, and many other towns of nearly as great an extent in that county. These courts must be multiplied for local convenience in the several neighborhoods, and were even more essential to the new than to the older countries. No one court of general jurisdiction, with a clerk and other officers, can supply the local convenience of these tribunals of an individual magistrate. The county courts were required, and he would make them the best kinds of courts that they could possibly be made, but he would still preserve them for local convenience. His attention in early life, had been turned to practising in the Courts of Common Pleas, aud his feelings were very early interested in favor of these courts. He looked back with admiration, love and delight, to the good old plain, honest, business doing, common pleas court of Dutchess county. On the bench of that court had sat able lawyers, withdrawn from business; retired merchants, and men of ample talents and liberal education; and all of them proud to be judges of the common pleas of the county of Dutchess. We never wanted a court of the highest possible compensation; for in those times of simplicity, the court received honor from all, and few appeals were made from their decisions. It was quite possible that in new counties this may be different-he could not say; he took gentlemen at their word, although dark in description, My scheme would be, not to destroy them, but to elevate the court; to improve it, and perfect it. The system of justices' courts, cominon pleas and king's bench or supreme court, is one derived from antiquity. You can draw an outline of the plan and leave the legisla ture to fill up the details. He would be willing, and he advised to leave to each court ORIGINAL jurisdiction; it was necessary for local convenience. Let the supervisors be made a local legislature to fix the compensation, and perhaps many other useful regulations.

Self government ought thus to be confided to the people. He knew that in the county of Dutchess it could and would all be carried into effect and meet with general and public commendation.

He would now allude to the supreme court and to the contemplated reorganization of that court. It was indispensable to continue a county court with criminal jurisdiction to a certain extent, as evidently necessary for its local business. It had been thus continued, and with civil jurisdiction, for seventy years, and since the foundation of our government. We derived our justices, county and supreme courts, from the experience of several centuries in England. There could be no other reason, to take the civil jurisdiction from the county courts, than to increase the business in the supreme court, and thus justify an increase of the number of the judges of the supreme court, and augment the patronage of party politics, by giving such an increased number of judges to popular election, and which must come to the lawyers only. If the civil jurisdiction of the county courts must be destroyed to justify the enlargement of the supreme court, yet he would urge that even this ruinous supreme court could not so well perform the small local business. It might please the lawyers and judges to be all elevated in their business to the grade of the supreme court-yet he was confident it would lead to the establishment of numerous minor and local officers, and the increase of fees. He would form the supreme court upon that consideration which would require a less number of judges and a diminution of expense.

The committee proposed thirty-two judges; and to the city of New-York four more, for extra business; and four others for the court of appeals and to hold circuits. Although my worthy friend who sits near me was greatly excited the other day, when it was argued, that the judges would require to have $3000 each as an annual salary; yet, he said that it was indispensably necessary that these judges should be all kept on an equality. And in order to call for the talent requisite they must have liberal and appropriate compensation. Will $3000 answer? Certainly not less than that sum. And when you send them travelling on circuits, they must have a liberal allowance for their travel fees and expenses. He was certain, therefore, that it would not be less than $3000, and confident that the liberality of the party, would soon swell it to $4000. He would make no objection to it. But when we ask the people to take the constitution, my word for it, they will begin to calculate the cost. Forty judges with $4000 each, is 160,000 to start with, as a judiciary, besides the many minor officers. The people would begin to count the cost as compared with the present system. It is said the clerks fees are over $60,000. For his own part, his preferences were for a smaller supreme court with a well organized county court and with original jurisdiction; which he (Mr. T.) thought would suit the whole people much better and be more economical.

Having thus intimated, in order that I might not be misunderstood in any part of my remarks, my preferences for keeping the justices' courts substantially as they are, a court subject to legislation, and which can be amended, changed, or altered, by that power— having done that, and having constituted, as he would suggest, these county courts,-he would leave the legislature to make such judicious arrangements as were deemed desirable with regard to the criminal business which these courts have to transact. He would prefer a supreme court of twelve judges; the state to be divided into four districts with three judges to each, to hold circuits, and one of them from each district to constitute a supreme court over all. It would be very easily arranged, then, that they could come together in Banc for the supreme court; and that mode would satisfy him, and be one of economy and local convenience. It should be remembered that a court of five judges can hear and decide causes no faster than a court of three judges. A division of the judges to hold courts in the four districts, in addition to the circuit courts in the counties, is equal in effect to a four-fold increase of the present judicial strength of the state. It will be entirely adequate to do the whole business of the state; including that of the court of chancery, when simplified and brought to trial as common causes before a jury. He should not object to elect their judges. He would prefer their appointment, by the Governor and Senate." He would differ on this point, if a proper mode of election, or

if an approved appointing power can be provided. But if the judges are to be elected, he had no hesitation to say, it was inadmissable to connect them on the same ticket with the officers of the state prisons -the Governor, shorn of all power and respect; and the other state officers, and all to be selected as bantlings of party, and for their service and fitness as instruments of party strifes. The judges cannot be separated in the feelings incident to such elections. This objection is still of greater force, against the election on such a ticket, of the judges of the Court of Appeals.

The election of the Judges of the Court of Appeals, ought to be kept separate, and the election of the Justices of the Supreme Court-ought to be in the several senate districts, they being thirty-two, and corresponding with the number of the proposed judges. To create eight judicial districts, and unite the election of four judges in each, will not bring the election home to the electors, and a personal acquaintance with the candidate; nor produce so sure a scrutiny into his fitness and character. I urge the election of the judges in the single senate districts, as a much better test of his character and adaptation to the duties of the office: combined on a general ticket with others; less scrutiny will be had, and less fit men will get on a ticket, and may be elected.

The objection has been made that an election by single districts may bring the election of a judge within the influence of popular excitement in some local districts; of abolition-anti-mason-anti-rent, or some other ism. This is is no objection. One or two out of thirty-two will produce no evil. I hold, (said Mr. T.) that minorities had better be represented in all our elections, and even among the judges. While party formerly elected the three inspectors of elections from one side the other side made complaints of unfairness in decisions. But now, since the law provides for a ticket to contain the names of only two of the three inspectors, one of the minority must be elected. It is thus represented in the board, and entire satisfaction has been the result. If the election of the judges was in single districts, and if any should be elected by any local excitement, it would not impair the court, while all partaking in the local excitements, feeling their views were represented in the tribunal, would have confidence, and more readily yield to its decisions. It is important that our judicial tribunals shall not only administer justice, but that it be done under such circumstances that the parties and the public believe it is justice.

May we not say that the impending downfall of the present courts has greatly arisen from the entire monopoly, for several years past, of judicial appointments from party actors and agents; and also of all the clerkships and officers of the courts, with receivers of the fees and perquisites; and all has been dependent on, and coming from the courts. One-half the community have thus been embodied in their feelings against the courts. Clients often believe and say they must and do employ party lawyers to gain a fair hearing of their cause, before a court of party judges -judges arising from and sustained by party politics Incongruities in the scale of counsellors have been thus exhibited, and business and courts have experienced influences arising from collateral causes. Ambition has heretofore showed itself willing to gain the place of a judge, as a stepping-stone, to gain some other promotion-governor, or president, &c. Ineligibility to any other appointment during the term, with a compensation not to be varied by increase or diminution, must be unalterably fixed, to secure the independence and the integrity of the judges. These fixtures have been prevented, and are not provided in the articies of the new constitution. The judges will remain to be selected from party politics, to continue to have party feelings, in elections, and will be open to ambitious desires for further party promotion. Party nominations will ever make judges with party feelings, and will impair public confidence in the impartiality and integrity of their judicial decisions. Ineligibility to any other place during their term, could only prevent this evil, and make them impartial. It would admonish and instruct them to abstain from party politics during their judicial term of office, by the inutility and impossibility to gain any other place during the term of their judicial election, and its acceptance by a judge. Mr. T. regretted to see all these prudent precautions against management and intrigue on the bench, were not well received in cer

tain quarters and in certain political circles. Opposition to these measures of prevention to judicial intrigue, and seeking for other appointments, was but too apparent. It was a notice that judges nominated by a party would continue with party feeling and party ambition for some other place, and open to party influences.

It had been said in debate, that the great central power of politics in Albany, was to be broken up. He feared a greater power was to be made a constitutional fixture.

Before going any further he would briefly allude to the Court of Errors. Look for a moment at this court. It was established in the constitution of 1777, to consist of the senators of the state and the chancellor, or the judges, according as the appeal was from either

court.

He eulogized the operations of this court from its commencement, and said that it stood at the convention in 1800 in good order with the people, and which had been continued from that day to the present, sustained by public approbation, and was respected for its integrity. Its decisions would compare in wisdom and legal principles with any other tribunal in our language. Thus it stood also in 1821-half a century after its foundation; and it was left untouched by that convention. This was the highest eulogy that could have been pronounced. It is not the system, but the administration of the system, which has been a matter of remark and reproach.

After 1821, and 1846, in the latter part of this history, its reputation has changed, and the interests of the state have been made to give way for personal and political conflicts. The causes of this change he

would not here allude to.

In suits between individuals its integrity and its intelligence had never been doubted; in cases of party conflicts and political controversies, its liability to swerve had latterly been sometimes questioned. He here alluded to cases in relation to election laws, banks, &c., as instances of the weakness of that court at present and for the last few years, and as the causes for an opposition which had been got up against it.

Sir, we trust we have purity in this tribunal. It is not only necessary to have justice done, but to believe that it is justice, and make the people believe so. The community at large must be made to believe that the adjudications of the courts are to be taken for truth, and for the reason of their absolute purity.

To do this we must have a tribunal free from doubt, formed in a manner free from suspicion. And here let me remark, that I differ from the provisions of the committee widely in the manner in which they have constituted the court of appeals, and in requiring four judges of the supreme court to form part of the tribunal, with four to be elected, and who could never hold an affirmative against the four judges of the supreme He (Mr. T.) would have no judge who tried

court.

a cause at a circuit, or in a court below, to sit on an appeal from his own decision. It destroyed confidence. It awakened a doubt. Their minds, from the fallibility of human nature, would naturally be biassed, having prejudged; and even if they were not, the people would never give them credit for being disinterested and impartial. A calm review by a new set of men is essential to a submission in feeling.

He would be told that we should have four judges, to be elected by the people, to operate as a check on these other four. But these four elected by the people must be lawyers, to be able to hold circuits. Their judgments would, beyond doubt, be influenced by their deference to the superior legal attainments and experience in legal matters of the four from the Supreme Court bench. Why have them to endorse only? Better have eight new and impartial men as the court of appeals, and thus have entire confidence-all to be free from suspicion.

To such court of appeals-one.half from the Supreme Court he would never for a moment acquiesce. It would be better, and he would prefer, to have the decisions of the Supreme Court final, and there let judgment stop. This, therefore, he considered to be a radical defect in the report of the committee, in fixing this court of appeals, with one-half not impartial. Therefore I most respectfully urge, that the public will command that you give them either no appeal, or constitute this highest tribunal so that it shall be kept entirely distinct from the Supreme Courtfree from suspicion, constituted of free and original

material-new men, not committed or prejudiced by a former opinion.

If you will provide such a court of appeal, then you will have that kind of justice which will not only be right; but in which the public will believe and place implicit confidence. If you take a contrary course, it will inevitably lead to contrary results and public dissatisfaction.

I hope I will not be understood as making personal remarks, or intending anything unkind to the honorable gentlemen who have advocated this plan. It is not my purpose to do so. Yet I must allude to some practical lessons adduced from the history of this state, to impress more fully upon the committee the utter inutility and impropriety of such court of appeals.

About 1840, or a little before that time, there were cases in legislation and business that aroused public feeling; and here I do not hesitate to say that the abolishment of imprisonment for debt, by the act of 1831, aided to create a new state of society-opened new causes for adjudication-tore asunder existing society, and brought a new classification of litigation, and I fear a change of moral sentiment.

In your old tribunals, if you had a debt against a man and prosecuted him and recovered judgment, the ordinary course of proceeding was, you had a right to imprison him, the debtor. It was his business and interest to satisfy the creditor of the integrity of his transaction, and to show that misfortune had led to his insolvency, and in that way he was often able to induce his creditors to compound the debt, and where he could not pay the whole of it, for him to pay half or two-thirds; to sign off, or to submit to imprisonment until he could take the benefit of the act. And when he came to take the act, he was called upon the stand and there he stood in the presence of all his accusing creditors :-there he stood the test of a searching investigation of the combined wisdom of the courtthe sharpened intellect of the deeply interested crowd around him-and if he sustained the truth, and showed that misfortune-not improvidence or dishonesty-had led to his present condition, then he was absolved in the face of the court and the world, and went forth to society again a new and yet an honest man!

What was the result when they abolished imprisonment for debt? It let loose a wild spirit of speculation. It increased the litigation in the state threefourths; and it opened that Pandora's box of a creditor's bill in chancery for disclosures and discovery of property hidden.

This turned an immense mass of business on the chancery jurisdiction. Before this time the supreme court and the other courts were able to do all their business. There were but five judges as a supreme court, and with but one chancellor. Soon your calenders were blocked up by this mighty accumulation of business; you had opened new inducements to bad morals in the debtor with no accountability, and a course of profligate expenditure, and leading to vast and disastrous consequences. Mr. T. made no objection to this thing; if you please, he agreed with it all. But such were some of the mighty causes and results by which our judiciary system was overwhelmed ; and the calender of causes which averaged from 125 to 150, soon afterwards rose to 700 or 900 causessuch was the alteration and sudden course of business in our courts of justice. It had been productive of important consequences and curious results, especially in the transfer of property.

What next took place? The court then decided "that possession must ever accompany a bill of sale of property," which gave rise to and adopted the distinction between "fraud in law and fraud in fact;" the one to be determined by the court-the other to be left to the decision of the jury. This was fatal to the interest of wild speculation, irresponsible adventurers, and of men in commercial pursuits, with a lax state of morals. It ended by "lobbying" arrangements, procuring a law from the legislature that there should be no "fraud in law and fraud in fact;" but that all should be left to the jury to be decided beyond the control of the court. This led to perplexity and confusion, and unsettled the commercial dealings and the integrity of the country. The supreme court would not conform and did not bow to this course of legislation. Collisions thus arose, and insubordination existed between the court and the legislature. It is not necessary to say which was right, or who was to blame. My purpose is only to show such collisions have always and will often arise between the judiciary and the legislature.

Let us go one step further. In 1836-7, the spirit of speculation pervaded us all. We were all getting hastily rich. Millions of capital were invested here and there; even the state itself entered into it, by the issue of its stocks for its works of internal improvement and various public measures; sometimes wise and sometimes otherwise. What followed then? The iegislature had to extend all its power and resources to save the banking system, or else to submit to the disgrace and stain of repudiation.

What did the senate then agree to do? The assembly had passed a bill in 1838, appropriating a million of dollars, notwithstanding the bankrupt credit of the state-and the senate passed the bill extending it to four millions instead of one million. Then came a special message from Gov. Marcy, recommending an issue of state stocks "for the CANAL purposes," to the amount of six or eight millions of dollars, and which sum thus obtained on the credit of the canal was to be loaned to the banks, to sustain them from ruin; upon which the act was actually passed, providing for an issue of state stocks, for seven and a half millions of dollars for such purpose, (see message, Senate Journals, 1838, page 416 and page 459.) The Journals of 1838 show all this.

This state of things continued until the public liabilities amounted to eleven and a half millions. It then became necessary to arrest this mad career, in order to save the country from disgrace if not from ruin. He then alluded to the policy under the law of 1842; how they called in capital, made a change in the entire business of the state, and as a consequence, increasing litigation to such a degree as to overwhelm and bury your courts. He would not

enter into the discussion as to whether this or that course of policy was wright or wrong, He proposed only to allude to the facts as history had presented them, and as showing the causes which had led to the call for a reform in our judiciary.

The legislature, to relieve the public from this real, yet artificial distress, passed the act for PRIVATE BANKING. The plan was to call forth capitalists and induce them to restore a circulating medium to the country, and thus to regain public confidence. The measure aided the object in a degree, and a change soon after took place in the pressure on public credit. The abuses of the past were thus charged on the banking system, and the tone of public sentiment was made to call for their destruction. To aid in this object, was the high road to popularity, into which many rushed forward.

Your supreme court then, in conformity with public clamor, decided this law for private banking to be unconstitutional. The question was carried to the ourt of errors, the senate; and they reversed that decision. It was then objected and said, that they were the identical senate that passed the law, and hat their determination must be disregarded. They having pronounced the decision, it was the law for the time being, and the subordinate tribunals were bound to have assented to it as the law of the land. The supreme court then disobeyed-they refused to acquiesce they combatted-they would not yield to the decision of the court of errors-what followed?

The private banking act required the bills of the banks to be issued by the comptroller, on deposit of security, and which was done accordingly-the issue of the bill being thus founded on consideration received. If it was void, as an act of incorporation— (which it never claimed to be)-assuredly it was good as a law. It justified the comptroller for the issue of the bills as a public officer, and held him and the state accountable for the consideration for which it had been issued, and to all but the supreme court, it would seem to be a criminal act to counterfeit the bills. A man was tried before one of the judges of your supreme court for counterfeiting these bills so issued by the comptroller on consideration. He was convicted by the jury, after a fair trial; but the learned judge of the supreme court decided, in disregard of the court of errors, the private banking act to be unconstitutional and void; and that therefore to counterfeit the bills thus issued by the comptroller of the state, was no legal offence; the convict was thus discharged-and the villain gathering up the tools and implements of his business, walked in triumph out of your courts of justice, and stood under the law of the day an honest man in community. The court of errors (a second time) repeated their decision of the legality and the constitutionality of the act for private

banking; and yet their decision is not regarded as the law of the land by certain other tribunals of the states. Such is now the harmony of our judicial proceedings.

This conflict of decision is now ascribed by some to the fact that the court of errors, the court of appeals in that case, being called on to decide as to the constitutionality of their own acts as members of the legislature. And for this reason and radical defect in its organization, it is now urged to abolish the senate as a court of appeals; and in the same breath and by the same speakers, and from the report of the same committee, this Convention is gravely called upon to make a new court of appeals, including in its organization the same radical defect of one half of the judges, to consider and reverse as members of the court of appeals, their own decisions as members of the supreme court. He insisted that it presented a farce too ludicrous to be entertained. And especially as a justification for giving such extraordinary powers both of original jurisdiction as a supreme court, and final power as a court of appeal. With such double authority as a supreme court and a court of appeal, this supreme court would stand not only independent, but would command and control both the executive and the legislative departments of the government. It cannot but lead to abuse.

The court of appeals without any original jurisdiction, and only a power of determination on an appeal, and to be composed of new men elected by the state, would be salutary in all its tendencies; affording satisfaction to suitors and an harmonizing influence to the other branches of the government-and it would be indifferent and able to check all the collisions, to arise between the various departments. Such a court of appeal, made independent by a fixed compensation, and impartial by ineligibility to any other appointment during the term of their office, would command public confidence. But these cautions and preventives are all opposed in this Convention. They are too rigid for young ambition. These facts strengthened him in his objections to the court of appeals, as proposed by the committee. He would have no man on an appeal to sit in judgment on his own acts. My purpose is not to say that all this is wrong; but that it was unworthy of the dignity of the state, the purity of our judicial system, and the character of our legislature; and that we ought not to adopt it. He again urged his objections to the court of appeals as proposed by the committee, and therefore had no hesitation in saying that he would prefer that the decision of the new supreme court should be final. It was not worth while to impose upon the parties the expense of the farce of an appeal, before the same judges that had pronounced the first decision. If we were to have a court of appeal, he desired to have one that would not be influenced by legislative cabals or executive influence. He would have them come from different regions of the state, selected solely for their capacity aud private worth.

The cases in legislation, in the supreme court, and in the court for the correction of errors, and especially on the great question of fraud in law and fraud in fact, with mandatory laws, and the disregard of the decision of the highest court for the correction of errors, abundantly showed that collisions must arise in the progress of the government, between its different branches-the one unwilling to be commanded by the other; and abundantly demontrates, the necessity for the ullimate tribunal or court of appeals being held separate from either department of the government, and made independent of either, executive, judicial, or legislative power and authority. They would then stand firm and isolated, to hold the scales of justice, not only between suitors, but also to determine any conflicts that may arise between these three great branches of our government. To secure their independence to perform this high duty, they should be made ineligible to any approach either by executive patronage, legislative bounties, or judicial influ

ence.

To secure such objects the members of the court of appeals should be made ineligible to any other appointment, during the term of office, from the executive;-to any increase or diminution of salary from the legislature-and all possible approach from the feelings and influence nf other judicial tribunals.

(Concluded in No. 46.)

STATE CONVENTION.

EDUCATION.

Speech of the Hon. Solomon Townsend of New-York. Mr. TOWNSEND regretted that his friend from Herkimer (Mr. Loomis) should feel called upon to change the position in which this morning the Convention had left the subject. He regretted it the more, as he did not see at the moment any of the committee charged with the subject of education, in their seats. This principle of entire freedom from charge for the instruction of the children who attend the public schools, was not by any means a new idea in his own part of the state, and it had been found to work with eminent success. When, in 1841, important modifications were made in the general school law of the state, it was conceded by most of the gentlemen from the country, that with respect to the entire equality with which the children who availed themselves of public education, in the city of New-York--met upon the benches of their schools-the system of the city was far more preferable to the mode of rating, (as it was called,) pursued in the interior of the state; thus dis criminating between the parents of scholars, in the matter of contribution, in place of sustaining the school by a general tax upon the property of the district. It was urged with force then that the children were made unavoidably sensible of the fact that there was an inequality in their position, and that this feeling was detrimental to that buoyancy and happiness in their associations with their schoolmates, so essential to their progress in the acquisition of useful instruction. Every incentive should exist to make the school attractive to the scholar, and nothing in the system should compel them to feel that others were there by any better right than themselves.

There was no time then to show, what was perfectly apparent to all but the contracted and prejudiced that the benefits of a well educated community reacted directly upon the property of the neighborhood, by rendering that more secure from depredations, and more desirable from the better society and morality that followed as the attendants upon knowledge. The farseeing man of wealth paid no taxes more cheerfully than such as went to promote knowledge in his neighborhood. and with it a capacity for self-support and good government.

The city of New-York now paid near half a million of dollars, annually, for the free instruction of all children between five and sixteen years of age, that presented themselves to the city schools. This included all books, stationery, &c.; so that the whole expense of education was borne by the city treasury. Notwithstanding this heavy charge upon property, it was met with more cheerfulness than almost any other, as its living benefits were constantly before us. There were many who deemed the matter of instruction not a government concern-saying that when you have once commenced, you might, upon the same principle, give every child a trade or profession, as a matter of public care. However well sustained these views may be, upon full investigation-and there was undoubtedly great difficulty in refuting them-when government undertakes to effect an object, it should be thoroughly and completely done. For years, the question of public instruction has occupied the solicitude of the leading statesmen of this state, and it has been deemed proper to vest large funds permanently for the benefit of education. We had this day constitutionalized a progressive increase to our already large fund for that purpose, and we ought to feel disposed to give the system the greater efficiency, even in the most sequestered and remote regions of our From the habit of thus viewing and reflecting upon the subject, he had seen with surprise the opposition exhibited this morning to the section establishing, after a popular vote, the principles of universal and gratuitous instruction; and he earnestly hoped that the Convention were not about to imitate their conduct on the question of the "rights of women,' by a sudden change of opinion from previously, and, in his belief, a properly formed one. He now observed the members of the committee charged with this matter, in their places, and he would leave in their hands any further opposition to the motion now pending of reconsideration-upon which, however, he asked the ayes and nays.

state.

Mr. TowSEND since the adjournment of the State Convention has been appointed School Commissioner of the 7th Ward of the City of New-York, by the Common Council.

ARBITRARY, INQUISITORIAL TAXATION.

A Special Committee, appointed by the Board of Assistants, composed of Messrs. James Robertson of the 8th Ward, Isaac B. Smith of the 9th Ward, and James D. Oliver of the 15th Ward, have made a lengthy report, which has been printed by order of the Board, and is known as Document No. 18, a copy of which is here presented, together with the drafts of three several bills, which they propose to have presented to the present Legislature, to be passed into laws.

This subject has been before the Legislature frequently, and that body has refused the application for extending the operation of the tax laws. The same subject was before the State Convention for amending the Constitution; and that body, in Sec. 9, of Art. 8, provided that the Legislature shall restrict the power of taxation by incorporated cities and villages; and by Sec. 14. of Art. 7, that very act which imposes, continues or revives a tax, or creates a debt or charge, or makes, continues or revives any appropriation of public or trust money or property, &c., shall, on its final passage, be passed, on the calling of the ayes and noes; and three-fifths of the members elected must be present, to form a quorum-that is, 20 members in the Senate, and 77 members in the House; and by the preceding section, "Every law which imposes, continues or revives a tax, shall distinctly state the tax, and the object to which it is to be applied; and it shall not be sufficient to refer to any other law, to fix such tax or object." By Sec. 16, of Art. 3, it is provided as follows:-"No private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed on the title." By Sec. 17, of Art. 3, it is provided that The Legislature may confer upon the Boards of Supervisors of the several counties of the State, such further powers of local legislation and administration, as they shall from time to prescribe." By Sec. 9, of Art. 4, it is provided that no bill shall be a law of this State, unless passed by the Legislature and signed by the Governor, as therein provided.

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The State Legislature, therefore, cannot delegate legislative power to incorporated Cities and Villages.

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That they have bestowed upon the several subjects referred to them the attention which their great importance demands, deeply impressed with the urgent necessity of arousing the Common Council and our fellow-citizens at large, to a most vigorous and determined effort to obtain from the Legislature of the State, not a grant of special privileges, as matter of grace and favor, but redress for the grievances and a remedy for the evils so long endured, which upon every principle of justice and propriety they have a right to demand."

ASSESSMENT OF NON-RESIDENTS.

For several years past, the evasion of taxation on the part of those engaged in business in the city, and enjoying the protection and benefits of its municipal government and its great public improvements, by nominal non-residence, has engaged the attention of the city authorities, called forth reports of Committees and caused application to the Legislature for relief, but the demands of justice and the dictates of sound policy have hitherto been entirely unheeded. Our rich merchants and heavy capitalists, finding the "city burthened with a debt created for their benefit, and subjected to heavy taxes for expenses of Streets, City Police and Croton Water for their use and protection, find excuses to remove their families to Staten Island, Long Island, West Chester, and other counties on the North River, and many of them to the States of New-Jersey and Connecticut; and thus escape, not only the increased amount of taxes to which they would be subjected here, for the causes above mentioned, but also all taxation whatever, except for the premises they occupy; as they are really and truly strangers in the places of their nominal residence, and their property is only known here in their place of business.

From the best information your Committee have been able to obtain, they believe, that there are more than 2,000 firms engaged in mercantile and other branches of business, and whose capital is invested and used in this city, possessing from $500 to $150,000, and averaging about $15,000 each, making an aggregate of about $30,000,000 of personal property, under the protection, and realizing the benefits of our laws and goverment, but beyond the reach of

taxation, in consequence of our illy considered law requiring persons to be assessed only in the county of their residence. At the present rate of taxation in this city, which is one per cent, the personal property of these persons should contribute the sum of about $300,000 to the City Treasury annually; but, as the addition of so large an amount to the Assessment List would lower the rate of taxation about fifteen per cent., their just tax would be about $255,000, and the tax of every other citizen would be reduced in the same proportion. A reduction of more than one-eighth in the amount of annual taxes upon each individual, would be very sensibly realized by all; and the attainment of so great an object should be a sufli. cient inducement to every individual interested to contribute the aid of his influence to its accomplishment.

The great and continually increasing facilities for cheap and rapid communication with adjoining cities, counties and States are daily adding to the disadvantages under which this city labors on account of its heavy and unequal taxation, and constantly depressing the value of our real estate, while it enhances that of some of our neighbouring cities and villages, at our expense. It is not, that country air can only be had by leaving the city; for we have the most beautifully situated vacated lands, enough for all the country seats in the world, within our own borders; but it is solely to enjoy the benefit and escape the burthens of our city government, that this nominal non-residence is resorted to. To this is chiefly, if not solely, to be attributed the steady decline of the amount of assessed personal property, which in ten years has fallen from $75,000,000 to $62,000,000; whereas there ought to have been a continual increase, and in a larger proportion.

The principle contended for is so palpably just, that it needs only to be stated to be assented to. We do not think it necessary in this case, to ask for a law for the peculiar benefit of the City of NewYork; but, only for a legislative sanction of a just principle; i. e. that wherever capital is employed by individuals enjoying the benefit of the local government, institutions and improvements, it should contribute to the support of such government, institutions and improvements.

That the City and County of New-York happens to be benefitted more than some other cities or counties from the application of this principle certainly does not constitute a good ground of objection to it. In the opinion of the Committee, a general law should be passed, providing, that persons carrying on business in one county, and resi ding in another county of this State, shall be assessed and taxed for personal property, in the county where they carry on business, except as to so much of their personal estate, as shall be actually invested or employed, and for which they shall be actually assessed and taxed in the county of their residence; and shall be only assessed for so much as they use or invest in the county of their resi dence. As to those who reside out of the State and do business within it, they should be assessed and taxed for personal estate in the same manner as residents, i.e. without deduction for what they may bave out of the State. The law of residence is purely techni cal, in holding a man a resident of the place where he sleeps, though a stranger there, and a non-resident of the place where he has carried on business, and passed all the days of his life, and enjoyed all the rights and privileges of a resident, except the elective franchise; and there can be no objection to declaring the place of business the residence, so far as assessment and taxation is concerned, especially as respects non-residents of the State.

The Committee are also of opinion, that the time of taking the assessment should be altered to, so as to allow it to be done in the winter season, when many residents are in town, and accessible to the assessors; but, who are always absent in the summer season, and thus escape taxation. Many of them board at Hotels and Boarding-houses, with their families, and have no fixed place of residence, which greatly embarrasses the assessors in making a proper assessment. A law requiring all keepers of hotels and boarding houses to report to the Assessors the names and places of business all of their resident boarders, would, in the opinion of the Committee, prove highly beneficial.

The difficulty of ascertaing the amount of each individual's personal estate has been often made the subject of complaint, but no satisfactory remedy appears to have been suggested. The Coinmittee are of opinion that honest tax-payers will readily submit to such legal rigidity as may be necessary, to ensure a fair assessment of all the property liable to taxation; and that there should be required of each individual a report to the Assessors, of the amount of his personal estate, over and above his debts, under the penalty of the addition of fifty per cent. upon the amount assessed to such person, from the best information the Assessor can obtain..

The Committee are also of opinion, that the Assessors should not be required to reduce any assessment on the affidavit of the person assessed, nor to receive the affidavit of such person as to such value, unless accompanied with an oral examination of such person on oath by the Assessors, and, on such affidavit and examination, they should correct the assessment, either by increasing or diminishing it, as they should be satisfied was just.

This would be of great benefit, even if no report of property by persons should be required. It appears to be just and reasonable that the Assessors should hear the statements on oath of those who complain of their assessments, but they should have the right to ask questions and be satisfied of the truth of the statement, before altering the amount; and to increase it, if they should think proper. The want of a State Board to equalize assessments in different counties has been repeatedly pointed out by the Governor of the State, in his Messages, and others; but, though no one has been found bold enough to deny the great inequality in the collection of the State taxes, in consequence of unequal assessments, strange as it may seem, no remedy has yet been applied by the Legislature. Some counties assess one-third, some one-half and some two-thirds of the fair value of property, while the City of New-York always assess the full value, according to the Statute. As long as there was no State tax, the Assessors of each Town considered themselves at liberty to assess as they saw fit, the County Supervisors equali. zing the assessments in different towns, as they had the power to do by law. Since the imposition of a State tax, however, these different valuations have worked the greatest injustice. Out of the City of New-York it is believed that the assessments, on an average, do not exceed one-half, and certainly not two-thirds, of the fair value of the property. The amount of State tax paid by the City, from 1842 to 1846, inclusive, is $1,018,433.53, which on an assessment of the same proportion of the value of property as County (assessments will average, would have been less, by about Four Hundred Thousand Dollars. It may be said, that the City has done no more than its duty and therefore has nothing to complain of, if other counties have done less than their's; but this is fallacious; as, if all the State had paid in the same proportion, the tax would have been sooner discontinued or diminished, and thus the city would have been relieved from the corresponding proportion it has actually paid. The city of New-York, is therefore, as much entitled to have the same refunded by the State, as the holder of our State Stocks are, to payment of the principal and interest of the State debt. The claim is founded in justice and good conscience, and must be met and satisfied; and when that is done, there will be no difficulty in procuring a law to prevent the recurrence of such injustice. The City has submitted to unequal and burthensome taxation, till endurance has ceased to be a virtue; and they cannot and they will not longer endure in patience or in silence, but will put forth their claim for redress

with that zeal and firmness, which those only can assume, who demand their rights in the name of justice.

WHARFAGE TAX.

Of the propriety and expediency of levying a Wharfage tax on all merchandise landed or shipped over the Wharves and Piers in the city, the committee entertain no doubt. Instead of being under the necessity of procuring a grant of this right from the Legislature as a fundamental principle of government, the Constitution of the State should have secured and guaranteed to all cities or other local governments, who should construct Wharves, Piers and Slips, or other similar improvements, for the use and convenience of com merce, which they were under no obligation to the State to construct, the absolute right, to impose such taxes upon the use of them, as would fully remunerate for the cost of their construction, and expense of keeping them in repair.

In principle, there can be no difference between the right to receive wharfage from vessels while lying at wharves, landing or discharging, and the right to levy a rate of wharfage on goods landed or shipped over such wharves. The goods could be reached through the vessel, or, vice versa, the vessel through the goods; provided there was a discretion left as the rate of duty, in either case. It appears to the committee, however, that it would operate unjustly and unequally upon parties interested, to collect the whole amount required, by an arbitrary per diem charge upon vessels.

Some vessels lie at the wharves without doing any considerable injury to the same for several months continuously, while others, within the same time, perhaps, discharge several cargoes, from voyages accomplished, at less wharfage, but with greater wear to the wharves. The Act of the Legislature of April 9th, 1813, in relation to whartage and cranage, allows the owners of wharves in the City of New-York, to receive certain rates of wharfage on vessels while using wharves, i. e. fifty cents per day for a vessel of fifty tons or under, and twelve and a half cents, in addition, for each additional fifty tons of burthen. Another Act of the same date, in relatian to wharves, piers and slips, gave the Common Council the right to construct wharves for themselves, paying for the property taken, to require owners to make them, or in default of such owners making them, to make the same at their own expense, and receive the whartage; or jointly with the individual owners, to make the same, and divide the whartage. It seems to have been supposed at that time, that the wharves would mostly be owned by individuals; and hence the rates of wharfage were fixed by law, to prevent unjust impositions upon commerce, for the emolument of individual owners.

From some cause or other, however, more than two-thirds of the wharves have become vested in the Corporation; and, as the City itself would be more directly and seriously effected, than the State at large, by an imposition upon commerce, which would diminish its amount, the regulation and amount of wharfage tax, whether on vessels or goods, most justly belongs to, and could be most safely confided in the Common Council of the City, instead of the Legislature of the State.

The city has invested in these wharves, piers and slips, about $2,000,000, and at the low rates of wharfage established by the law above referred to, they are able to realize, over and above the expenses of repairs only about two per cent. per annum upon the amount of the investment. As these works have been erected, not for the exclusive benefit of the city, but for the advantage and prosperity of commerce in general, those interested in such commerce, many of whom are foreigners and non-residents of the State, and not the inhabitants of the City, should defray the expenses of their construction. The City is justly entitled to receive a fair interest on the investment, say seven per cent. over all deductions. With proper discrimination, the Committee believe, revenue may be realized from a tax on goods so light as not to divert a single article from this commercial mart, and scarcely to be realized by the payer, sufficient not only to yield such income on the capital, but also to enable the Corporation to greatly improve their wharves, piers and slips; and, in a short time to erect sheds over those most frequented, to the great facility of commerce and convenience, comfort and pecuniary gain of the numerous cartmen and laborers employed upon them. It would certainly be wise and expedient, to allow the Common Council the power to extend every facility to commerce, without burthening our citizens with taxation; relying upon their own interest, as a guaranty against impositions, which would in the least obstruct the steady flow of commerce to this great commercial emporium. Instead of realizing, as heretofore, about $38,000 per annum, over expenses, from this source, by the change proposed, the City would receive about $150,000 per annum, which would in some degree alleviate the burthens of taxation. In Boston and Baltimore wharfage taxes are levied upon goods at such rates as to procore from ten to twelve per cent on the cost of such works, and much higher than would ever be found necessary here; and, as far as your Committee are advised, without the least detrtment to commerce, or complaint from any source.

As it is proposed to leave the regulation of the rate of such tax, upon different articles, to the Common Council, it is not deemed necessary to enter into detail. The Committee think a very simple rule of levying such tax should be prescribed, say, so much per barrel, cask or hogshead, per ton on iron, metals, marble, &c. per hundred feet of lumber, per thousand bricks, and per cubic foot on boxes, &c. not exceeding the proportion of about one cent for a barrel, which is less than one-third of the rate of charges in Boston.

It might be proper, on imposing such tax, to exempt vessels from the ordinary wharfage, for a sufficient time to load or discharge, and to allow goods to lie on the wharves a certain specified time, and require storage on such as remain longer, which would accom plish the double purpose of raising revenue, and clearing the wharves of goods which now often encumber them for months.

In Boston, Masters of vessels are allowed a certain per centage for collecting the wharfage tax, and the consequence is that they invariably collect it with their freight bills, and pay it to the Receiver of Taxes. If the same rule should be adopted here, the Committee do not believe it would be necessary to create any considerable number of Officers to collect such taxes, (with the ex ception of four Receivers of Taxes), as Police Officers sufficien for the purpose could be detailed on such duty by turns, at sucb, hours as their services might not be required elsewhere. Masters should be required to report to the Receiver of the tax the arrival and clearance of each vessel, and pay over the tax, according to the entry in the Custom House or their bills of lading where no entry or clearance is required.

On this subject, too, your Committee believe a general law will be more advisable and popular than one specially applicable to the City of New-York. Other cities and villages have similar interests and similar rights. The Committee would recommend, that application be made for the passage of a law declaring that the Corporation of any City, or Town or Village, inay authorize the owners of any wharves, piers or slips, within such. City or Village, upon any of the navigable waters of this State, to levy such rates of wharfage on goods landed or shipped over the same, as such Corporaton shall prescribe, not exceeding such sum in the aggregate as will amount to seven per cent. per annum, upon the capital invest ed in such wharves, piers or slips, over and above the expense of repairs. Against the passage of such a law, your Committee believe no good objection can be urged; and with such a law in force

and each city and village in the enjoyment of its right to regulate the price of using the works of its own construction, the Committee are fully persuaded, that the interests of each will be found to harmon'ze with, and greatly promote those of the whole State at large. COMMUTATION OF ALIEN PASSENGERS.

As to the substitution of a commutation for the bonding of Alien Passengers, the Committee fully concur in the opinion of the Comp. troller, expressed in his communication to the Common Council on the 2d of February, 1846, that it would prove highly beneficial to the city. They can scarcely add anything to the sound and able argument by which that opinion was sustained, and respectfully refer to the same, as contained in their own views.

All experience has shown, that the bonding system is almost an entire failure in its design to indemnify the City frrom the support of the great and constantly increasing influx of foreign paupers. Under the present law, the Mayor might, perhaps, by exacting bonds to the largest amount allowed, i. e. Three Hundred Dollars for each passenger, induce the owners of most vessels to commute, if he had the power to exact a justification of the sureties, or an oral examination under oath, and to reject all who should not show to his satisfaction, that they were worth double the amount of the sums in which they were to be bound, over and above all debts, including the full amount of the penalties of all other bonds execu ted by sueh sureties. Whether he possesses this right, under the provision that he shall approve of the sureties or not, such right has not been exercised; "but on the contrary bonds have often been taken of persons who make it a business to become security for such passengers, at One Dollar each, snd whose liabilities on similar bonds greatly exceed the amount of their property. Hence, the attempts to collect any thing on such bonds have, in a large proportion of cases proved ineffectual, aud involved the city in costs of the preceedings.

The rapid annual increase in the number of such passengers, and small amounts realized from commutations and forfeited bonds, demand the most vigorous exertions on the part of the Common Council and people of the City, to procure such an alteration of the law, as shall authorize the exaction of One Dollar from every such passenger, in lieu of the bonds now required, which will in part indemnify the City, for the support of alien paupers. This will prove no hardship to emigrants, as they will pay the same amount now, to the persons who will become their sureties.

The number of such persons annually arriving has increased from 37,000 in 1843, to 101,980, in eleven months of 1846; and the number commuted for has averaged about one-tenth. The other nine-tenths of the commutation money paid, have gone into the hands of private speculators, and but a small part of it has been collected on bonds.

For three years next preceding 1846, about Six Thousand Dollars per annum was collected on such bonds; but during eleven months of this year, not one dollar has been received from

that source.

This year, down to November 28th, the number of such passengers is 101,930, and the amount of commutation money received is $9,229. By the proposed change the city would have saved about One Hundred Thousand Dollars this year.

As the new City Charter, embracing the proposed change, has been rejected, the Committee recommend an application to the Legislature for the necessary amendment of the Statute in question, so as to accomplish the desired object.

In this instance the City will be asking for a law for their own particular relief, and not applicable to any other part of the State; but the peculiar circumstances of their situation, exposed to such swarms of foreign paupers, entitle them to the aid and protection of the Legislature.

The three subjects which the Committee have thus briefly and imperfectly presented to the consideration of the Board, are, each and all, of the deepest interest to every tax payer, and the accomplishment of the Committee's recommendations in regard to all of them, would relieve the City of about Half a Million of Dollars taxation annually, and each citizen of about one-quarter of his present annual taxes. Surely the accomplishment of so great an object is worthy of the united exertions, not only of the Common Council, but of each and all of our Lax-paying fellow citizens; and, in so just a cause, those exertions cannot fail to prove successful.

The Committee have procured drafts of suitable laws in pursuance of the above recommendations, which are hereunto annexed; and, in conclusion, they respectfully recommend the adoption of the following resolution:

Resolved, (if the Board of Aldermen concur), That the annexed drafts of laws be presented to the Legislature, at its next session, with a suitable memorial prepared by the counsel to the Board, under the seal of the City, requesting the 'passage thereof, together with the above report. All of which is respectfully submitted,

JAMES ROBERTSON,
ISAAC B. SMITH,
JAMES D. OLIVER.

The drafts of three bills referred to in the report, will be found on page 658, with comments thereon.

ERRONEOUS PREMISES IN THE REPORT OF
THE SPECIAL COMMITTEE OF THE BOARD
OF ASSISTANTS.

"The Committee impute the steady decline of the amount of assessed personal property, which in ten years has fallen from $75,000,000 to $62,000,000, to persons removing from the City to evade taxes."

We are greatly surprised that an intelligent Committee from the Board of Assistants should make such a statement.

The official documents of the City should have been consulted by the Committee.

In 1833, the assessed value of personal property was $52,365,526; in 1834, $63,299,231; in 1835, $74,991,278; 1836, $75,758,617-here ended the bubble speculations; and in 1837, the estimated value decreased to $67,797,241.

The assessed value of personal property ten years ago, is an improper comparison.

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The Tax laws of the State of New-York, compared with those of the State of Massachusetts, are vague; hence arises much difficulty-and this difficulty is increased by the repeated application of the New-York City Corporation for special enactments amending the Tax law of the State.

In 1841, the time of making the assessment in the City of New-York was changed. The Assessors, by the act of 1841, were authorized to commence their assessments on or before the fifth day of June, and to complete it on or before the fifteenth day of August.

"On or before the fifth day of June," is a loose provision, and we are therefore obliged to look for a restriction of the word "before," and this we find in the provision requiring the Assessors to be sworn into office on the second Tuesday of May.

The assessment may therefore be commenced on the second Tuesday of May.

The State law provides that persons shall be assessed for personal property in the town or ward where they reside at the time the assessment is made. An The assessment is not made till it is completed. commencement of the assessment is not the making of it.

In Massachusetts, persons are required to be assessed for personal property in the town or city where they reside on the first day of May.

The tax law of Massachusetts specifies the personal property to be assessed, and mentions ships at home or abroad.

The County annual tax act specifies estates real and personal of the freeholders and inhabitants, situate within the City and County of New-York, or within a certain described district of the City; as for example, the Croton district. The New-York tax is upon the person, for the value of his personal estate, over and above his just debts. The Massachusetts tax is upon the personal property, without regard to indebtedness; except that debts payable may be deducted from debts receivable, but from no other personal property.

Railroads and Telegraphs have come into use since the general tax laws were framed in our State; and a question arises as to the liability of the owner of stock in a railroad made in another State, and owned by inhabitants of the City of New-York, to be taxed as for personal property? Railroads are fixtures upon land, and therefore real estate; but the stock is transferable as personal property; and here arises a difficulty.

Public policy requires that railroads and railroadstock should not be taxed, for every dollar invested in making such roads is a public benefit, and adds to the value of other taxable property, and thereby increases the revenue.

Marine and Fire Insurance Companies should not be taxed. The catalogue of Storms and Fires which we present in this volume, shows the absolute necessity of these institutions; and the statement of their dividends for a series of years, shows clearly that these institutions are not money-making concerns, but the community cannot do without them.

Savings Banks are exempted from taxation, for the reason that a tax upon their deposits would be against public policy.

NON-RESIDENT TAXATION.

The Committee have wholly overlooked the difficulty, which is in not having intelligent ward or district assessors elected for long terms, that experience may make them competent; and these should be under the direction of a board of permanent assessors, composed of three competent individuals, elected for five years. The permanent board should have the supervision of the assessments made by the assistant assessors, and the correction of all erroneous assessments.

As to assessing non-residents, that has been tried again and again, and always has been a failure.

Non-residents should not be assessed; for such a measure besides being unjust, would drive business from the City, and lessen the value of real estate therein.

The Croton, Watch, Lamp and Street taxes, are local assessments, and should be assessed separately from all other taxes, and must be so assessed under the present Constitution. They are assessed on a portion of the City only.

These four assessments should be upon propertyhouses and merchandise-and not upon persons; and should be strictly an assessment for benefit and advantage, in proportion as the same is enjoyed.

As the Croton, Watch, Lamp and Street tax is now assessed, an individual owning a vacant lot worth ten thousand dollars, and mortgaged for the full value, must, if he owns no personal property, pay a Watch, Lamp, Croton, and Cleaning and Repairing Streets tax, although not benefitted; while a merchant, owning $10,000 worth of merchandise and owing for the whole, derives the full benefit, and is not taxed:this is unjust, and should be remedied.

The short way, however, is to retrench the public expenditures; and this could be done to the extent of a million of dollars a year.

The committee recommend a wharf tax and say that such a tax is collected in Boston. The city of Boston owns but two wharves, all the rest are private property.

In New-York the public wharves are not city, but county property, and have been paid for by a county tax, and are the same kind of property as county roads and county bridges.

The management of the public wharves is the difficulty. They should be built more economically, made better, kept cleaner and not rented to politicians in the shape of party patronage.

The public wharves should be under the superintendence of an intelligent board.

The plan which the committee recommend of taxing every load of brick landed upon the wharves 18 altogether out of the question. The people in the country are not willing to pay a wharf tax on every thing they send to New-York for sale.

The alien passenger tax is without doubt prohibited by the Constitution of the United States, and so is a wharf tax on foreign merchandize, or the products of other States.

The Committee say that the assessment should be made in the winter season, that many of the persons board in Hotels and in Boarding-houses-it would follow that if the assessment is made in the winter and not collected until the next winter very many removals would take place, and if the time of collection is also altered then there would be two taxes in one year, for the present tax is now payablo on the 15th of February.

The Corporation have made one attempt to slide the tax act and collect two taxes in one year, but the Legialature put a stopper on the measure as soon as the object was discovered.

The Committee say there is a "difficulty in ascertaining the amount of each individual's personal property" this is the fault of the assessors and not of the person assessed as every experienced intelligent assessor well knows.

The assessors, by the present law, are authorized to assess every individual for personal property as much as they believe he is worth, and he must pay a tax on such amount or reduce it by his affidavit.

PUBLIC STOCK OF THE UNITED STATES
EXEMPT FROM TAXES.

Mr. Justice STORY, in his Commentaries on the
Constitution, in vol. 2, p. 495, says :-
"In another case,
the question was raised, whether

a State had a constitutional authority to tax stock issued for loans to the United States; and it was held by the Supreme Court that it had not."

Mr. Justice STORY was one of the members of the Supreme Court of the United States at the time this decision was made.

Chief-Justice MARSHALL delivered the opinion of

Court.

The Supervisors of the County of New-York have recently undertaken to reverse this decision of the. Supreme Court of the United States.

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