gery, and were able to administer justice without them. He reminded gentlemen, that these very states adinired and coveted the system, which gentlemen wished to abolish. Again, we had been told that this court originated in England, and was there used as an engine of the crown. He was at a loss how this could be considered an argument against it in this country, if it had been found beneficial as established with us. The gentleman from New-York, (Mr. Radcliff,) was in favour of abolishing the court of chancery, and of leaving the disposal and distribution of its powers to the legislature. To this course he was decidedly opposed. It was a dangerous and pernicious innovation, breaking in upon the fundamental principles of our judiciary. There was one other topic upon which he should offer a few remarks. The gentleman from Delaware was in favour of excluding from the court of errors, the chancellor and judges. This was, in his view, a most injudicious innovation. The benefit of associating the judiciary with the senate to constitute a court of errors was mutual-the judges enjoyed the privilege of hearing able counsel and acquiring new views, while the members of the senate, who were, in most cases, men of plain sense, little versed in the intricacies of law, derived benefit from consulting and advising with the interpreters of equity and law.

MR. WHEELER. It was not my intention to have risen on this occasion, nor should I claim the indulgence of the committee, did I not, in consequence of the allusion which has fallen from the honourable chairman of the select committee, feel myself called upon to explain the reasons which induced me to dissent from the opinion of a majority of the committee who framed the report now under discussion.

Sir, it will not be expected from a mere layman that he should venture a laboured exposition of the system of judicial polity embraced and recognized by the constitution of 1777; but as many gentlemen appear to treat the first branch of the amendment offered by the honourable gentleman from Delaware, as novel in its character, and dangerous in its tendency, I may be permitted to say, that I can neither perceive novelty nor danger in the plan which he proposes; although it may be questioned whether the adoption of it would subserve the best interests of the state. The administration of equity, as contradistinguished from law as a prescribed rule of action, is unquestionably of high antiquity; and, indeed, it is evident, that property cannot, in all cases, receive complete protection, unless through the medium of a moral scrutiny, and an equitable adjudication. But surely it cannot be correct to term that proposition novel and unsound, which merely goes to unite law and equity powers, and directs that both shall be administered by the same tribunal, when it is notorious, that the distinction of separate courts for dispensing these powers, is not known or practised by any country in Europe except England, and is equally unknown to the United States, and to every state in the union, with a few exceptions.

The court of chancery, as at present organized in England, is founded in usurpation. In that country, it has expanded its grasp over both law and equity, and has drawn to itself, by gradual encroachments upon the precincts of the common law courts, a jurisdiction of immense extent.

I need not remind this honourable committee of the long and arduous struggle maintained by our Saxon ancestors, in defence of the common law, and of the code of Alfred, against the attempts of their Norman conquerors to introduce the civil law, which they and their monkish followers had engrafted upon the Pandects of Justinian.

In this conflict, our ancestors were eventually successful. They preserved from the rude grasp of popish civilians the trial by jury, the right of examining witnesses ore tenus, together with the numerous and invaluable civil privileges interwoven in the common law of the land.

But when the clergy were driven from the courts of common law, they held fast to the office of chancellor, which they claimed as their own, by virtue of ecclesiastic prerogative, and denominated by them a spiritual court, for the keeping of the king's conscience, the spiritual superintendance over his courts of judicature, the government of uses, which piety or superstition granted to the church,-protection of infants, &c. &c. and from this beginning, the chan

cery court of England, and of this state, have extended their jurisdictica to most cases which arise out of the private controversies of mankind.

I wish, however, to be expressly understood, when I say that I shall vote. against the abolition of the court of chancery, as I am satished that no public benefit can arise from the transfer of its powers to the courts of common law; and more especially, as the whole system of our jurisprudence is deeply interwoven with the principles of our government, it might prove dangerous to the best security of the citizen to abolish that court. I should, however, be pleased to see its exuberant powers somewhat circumscribed-but that duty more properly belongs to the legislature, than to this Convention.

My objections, sir, to the report of the committee, are, that they propose to create two supreme tribunals, each of which is to possess co-ordinate power, and co-extensive jurisdiction. I object, because courts thus constituted would endanger that uniformity of legal decision, upon which alone must rest the security of persons and of property. Again: the proposition of the committee, in my humble view, innovates upon those great and cardinal principles of jurisprudence, which inculcate the benefits to be derived from the constitution of courts of limited and subordinate jurisdiction, communicating with others of more extended authority, in regular gradation, until you reach the supreme judicial tribunal, or court of last resort.

And if it be indeed true that the business of the supreme court has accumulated, so as to render auxiliary assistance necessary, I contend, that the safest and most congenial remedy will be in the creation of a sufficient number of assistant judges, who may be confined to circuit, nisi prius, and oyer and terminer duties, with such collateral business as may be enjoined upon them. By such an organization the supreme court will come in contact with no other su preme tribunal; possessing co-ordinate authorily, it will, as formerly, hold its superintending authority over all inferior tribunals, and will have ample time to hold such number of stated and fixed terms in New-York, Albany, and Utica, as to effect that despatch in judicial decision, which will effectually silence every complaint of the law's delay.

Again, sir, I object to the report, that it is too diffuse and voluminous, and that instead of prescribing a general rule for the organization of the judicial. department, it embraced too much of legislative detail, and that it was further defective, inasmuch as it retained the county courts, without giving to them an organization, which would command that respect and confidence, which is due to the antiquity of their origin, and to their former usefulness, when they were justly considered the favourite courts of the people.

MR. JAY said that great talent and learning had been exhibited in the discussion of this question, and he should not repeat the arguments which had been so powerfully urged. He wished, however, to make a few remarks on one point-the delay of cases in the court of chancery, which had been mentioned so often in debate. He stated the immense number of suits which were annually disposed of by the chancellor. What were the causes of this expedition and despatch? First, the confidence which was reposed in the opinion of the chancellor-and, secondly, the certainty that the opinion of the chancellor, if incorrect, would be reversed in the court of errors. If the chancery powers were transferred to the supreme court, and circuit courts, there must necessarily be much delay, and additional expenses incurred, which would fall upon clients. He dwelt for some time on the amendment of the gentleman from Delaware. In his opinion it proposed dangerous innovations. We were called on to give up what had been tested by long experiment, for a system which had never been tried. He begged gentlemen to consider that we were now in the full tide of successful experiment. The court of chancery had been of immense advantage to the state, and he hoped we should never consent to its abolition.

MR. VAN BUREN did not intend to enter into this debate. He had witnessed with a high degree of pleasure and satisfaction the manner in which this subject had on all sides been discussed. It was a momentous question, and while it had drawn forth the talents and wisdom of the committee, a degree of moderation had been manifested, which we had not always experienced in other

debates. He considered this highly auspicious to the important decision we were about to make. No question of equal magnitude had yet engaged the attention of this Convention. It had been proposed, that we should roll from its bed the corner-stone of our judiciary, which had been planted by the hands of our fathers, and which was the chief support of the structure which was reared upon it as a basis. We have been urged to commit to the winds a system which had justly been considered the proudest pillar in our political fabric and had been a subject of admiration in all parts of the country. He spoke of the proposition to exclude from the court of errors the chancellor and judges. He deprecated such an alteration. It would never meet with the approbation of the citizens of this state. The greatest excellence in the constitution of that court consisted in the union of the judiciary and the senate-men of plain understanding, with men versed in the science of jurisprudence. He spoke at some length of the advantages of a court of chancery. No judge of a court of law could feel himself at home in chancery suits; and he fully concurred in opinion with the gentleman from Albany, (Mr. Van Vechten,) that a new and long course of study was necessary to qualify even a judge for the office of chancellor. If there were defects in the system as now existing, let them be corrected-let us amend, not destroy. He could not believe that the people of this state ever entertained an idea, that this Convention would proceed so far as to abolish the court of chancery and the supreme court, nor would they sanction such an innovation. He concluded with offering the following amendment:

"The court of chancery shall consist of a chancellor as heretofore; but the legislature may from time to time vest equity powers in subordinate courts, or persons, under such limitation and subject to appeal, and on such terms and conditions as the legislature may prescribe."

COL. YOUNG contended, that gentlemen, who had preceded him in debate had placed the amendment in a wrong point of view. It had not been proposed to abolish the court of chancery; and if the question on that point was taken now, he should vote against it. The extent of the amendment was merely to leave the subject to the legislature, with the privilege of retaining it or not... He spoke at considerable length on the constitution of the court of errors, and the inexpediency of uniting the judiciary with the senate. What, he asked, was the object of associating the judges with the senate? Was it not to give them an undue influence over the rest of the court, and to give them, an opportunity of recommending their own decisions? He also replied to the arguments which had been advanced in favour of the court of chancery, and acknowledged his inability to see their force.

MR. VAN BUREN made a few remarks in reply to Mr. Young, when the amendment was read, and the ayes and noes were called for.

GEN. ROOT said before the question was taken, he wished to modify the amendment, to make it less objectionable in the view of certain gentlemen, and proposed an alteration, by which the chancellor and justices of the supreme court would continue, as heretofore, members of the court of errors, until the abolition of the court of chancery.

MR. N. SANFORD said, that he had, in the morning, sumitted a plan, which contained his views of the amendments proper to be made, on the subject of the judiciary. As that plan had been misunderstood, he would explain his views concerning it. That plan did not propose to destroy either the supreme court or the court of chancery; but, on the contrary, it proposed to retain both those courts. Mr. S. wished that the court for the trial of impeachments, and the correction of errors should remain as it is, and that the judges of the supreme court, and the chancellor, should continue to be members of that court. But he desired that the legislature should possess an ample power to create new courts of justice, and to modify all courts subordinate to the highest court of appeals. He wished that the legislature should have power to transfer any portion of the jurisdiction of the supreme court to any other court, and also power to create new courts of equity, or to transfer any of the subjects now belonging to the court of chancery, to existing courts or new courts of law.

He deemed it to be very important to the state that much of the business now done in the court of chancery should be transferred to other tribunals. The great question upon which we differ, is, how much shall be done upon this subject in the constitution, and how much shall be left to the legislature. The report of the select committee proposes to establish all, or nearly all, our courts of justice in the constitution. This was not proper. If the scheme of the committee were entirely perfect in reference to our present condition, it would probably become inadequate to the exigencies of the state in twenty years from this time; and if this scheme should be now adopted, the legislature would then be destitute of power to make the alterations which the public good might require. The composition and organization of the court of the last resort, and the right of appeal to that court, should be definitively established by the constitution. In respect to all tribunals subordinate to that court, the legislature should have the power to create, reform and vary, as the varying circumstances of society may require. This power of the legislature over inferior tribunals should be subject to the general regulations of the consti tution, that the judges shall hold during good behaviour, and that their com pensations shall not be diminished. Such is the plan of the constitution of the United States; which Mr. S. thought the best model on the subject of the judicial power. The constitution should contain only those great principles and regulations, which are always necessary, and are equally adapted to the wants of society in all circumstances. If we establish inferior courts by the constitution, we shall do either too little or too much and we shall do for future times that which can much better be done by future legislatures. And why should not this subject be confided, in a great degree, to the legislative power? It appeared to Mr. S. that an unreasonable distrust of the legislature was entertained in this respect. For himself, he felt no such distrust. Mr. S. approved of the amendment of the gentleman from Delaware in the main; but as it contained some provisions which he thought exceptionable, and, as it then stood an entire proposition, he should vote against it.

GER. ROOT regretted that in attempting to obtain for the people of this state some amelioration of their judicial system, he had been compelled to sustain the attack of so many formidable batteries as had opened upon him.-But it was to be expected, especially from chancery lawyers, in favour of a mother who had bestowed upon them so much nutriment.-He had been attacked as if the chancery system was the only object he had in view. But he had made no effort to dispossess that court of its power, unless the legislature should think proper to abolish it hereafter. Mr. R. was aware of the enormous costs and expenses that are attendant upon that court. It was replied, however, that the legislature could reach it.-But he denied that the legislature could apply an effectual remedy; for there were always so many chancery lawyers in that body, that every effort to effect that purpose would be ineffectual. It has been said that the court of chancery has become venerable by age. But he would ask when and where it was born? Mr. R. had not read Smith's History of the State of New-York very lately; but according to his recollection, it was a power assumed by the governor and council without right, against which the legislature had uniformly and strongly protested, and which had been kept up by usurpation ever since. In reply to the objection that the suits in these courts were expensive, it had been said that rules could be introduced to prevent it. But the difficulty was, that the people at large did not see the grievance under which they suffer. It was known only to the initiated-a mystic secret no tto be revealed to the vulgar eye.

The honourable gentleman from Oneida (Mr. N. Williams) had cited the authority of Judge Story, and offered an essay as a speech. [Mr. Williams explained he did not call it nor consider it a speech.] Call it a reading or recitation then. There was no objection to this course. If gentlemen had not a supply of domestic manufacture, it was proper enough to make use of imported articles.

He would next advert to the wailing of the gentleman from Orange, (Mr. Duer,) who had fancied himself a victim, with his head bound with a chaplet, not with a fillet, and doomed to the sacrifice He, (Mr. R.) would carry the

figure a little farther-he would administer the salted cake to the victim, if that would preserve the rights and interests of the people-and he hoped no gentleman would shrink from being immolated upon the altar of the public good. But that gentleman seemed to entertain great apprehensions on account of the ignorance of the senate-that there would be great ignorance in the court of the last resort. That gentleman would, perhaps, wish to see our court of errors clad in the vestments of Westminster-Hall--and the lawyers arrayed in their gowns, and great wigs, to indicate the wisdom thereunder: and, perhaps, would like to see the lieutenant governor, like the lord chancellor, perched on a woolsack.

The gentleman from Otsego (Mr. Van Buren) had called the court of chancery the chief corner stone-the rock upon which our judiciary system rested -and we had been warned against rolling this rock from its bed, and committing it to the winds. If this rock were so light as to be lifted by every legislative puff, let it go-it could not be worth preserving.

It was necessary, Mr. R. contended, that we should have some tribunal to protect the people against judicial refinement. It was an error into which lawyers and judges were apt to fall to adopt metaphysical rules and technical niceties. Was there ever any advantage experienced from metaphysical law? Or had the system of theology been advanced by metaphysical refinement? He wished to have a body of men to constitute that court, who might restore the law to the standard of common sense. He had heard many high encomiums upon the courts of law. He should be glad to hear some upon the court of the people-the court of dernier resort. He believed it deserved them. They had overruled many cases, at the determination of which in the courts of law common sense revolted.

The report of the select committee had provided two courts, the one of which was supreme and the other superior-and both equal! His, (Mr. R.'s) proposition was founded on a different basis. He would establish circuits in such a manner, that their time would be so much engrossed in the despatch of public business, that they would have no time nor opportunity for electioneering. He should also propose that all votes given for any judge, during the continuance of his term should be void, and that he should not be eligible to any office. And as there would not probably be a Convention soon again, they would probably be relieved from that burthen also.

The honourable gentleman from Orange (Mr. Duer) had apprehended great ignorance on the part of the circuit judges, if their selection should be confined But his proposition to the districts to which their circuits were restricted. had not confined their selection at all. It was as wide as the state--and when a circuit judge was wanted over the mountains, he hoped it would be left open in such a manner as to authorize an appointment from Orange and Ulster. If, said Mr. R. I wished to be appointed a judge, I should not move to have the matter left to the future decision of the legislature, but I would consult the stars become weatherwise-trim my ship, and watch the passing gale.

Much had been said of the absurdity of blending the chancery and law powors of a court together, and of issuing injunctions from the equity against the Jaw side of the court. It had also been said, that it was impossible for the judges to acquire a sufficient stock of chancery knowledge to exercise those powers with propriety. And yet, the honourable the chancellor, and other gentlemen who are in favour of the report of the select committee, agree in the expediency of giving chancery powers to the subordinate jurisdictions-to the County courts. The justices of the peace have it already. They are authorized to execute a trust and to perform a duty, which the judges of the supreme court are incompetent to acquire! If the judges of the court of common pleas can properly exercise chancery powers-cannot the judges of the higher courts? Or if there is an absurdity in the system, does it not extend with equal force to the subordinate jurisdiction? But the jurists of other states have been pressed into the service. They are, or have been, lawyers, and approve of the separate chancery system; and if you had showed them the table of chancery fees, they would doubtless have approved of that also. “The Federalist" also had been quoted again by the honourable gentleman from Schoharie, (Mr. Sutherland,)