The gentleman from Saratoga (Mr. Young,) had fallen into an error of a different kind. He had supposed that only two superior courts of common law and eight judges administered the whole justice of England in that department; and he had objected to the report of the select committee, as being too complicated and requiring a greater number of courts and judges than the business of this state now demanded, or would at any future period call for. But the fact was, that twelve judges, together with fifteen or twenty nisi prius commissioners, were kept constantly employed in administering the common law justice of that country, besides the courts of Wales and of the counties palatine : and certainly, when it was considered what this state now was, and what it was ultimately destined to become in point of wealth and population, there could be no doubt we should require the number of judges provided for in the report. MR. RADCLIFF explained. He did not intend to have the judiciary depen dent on the legislature. He was desirous to go as far as they could in fixing the outlines of a system, without going so far into detail as to prevent the legislature from making such alterations as the state of society might hereafter require. He was disposed to fix irrevocably such courts as it could be foreseen would always be necessary. But with regard to the proper deposit of chancery power, it was a great question, although not a new one. He therefore thought it a proper subject for legislation, to be disposed of as the exigencies of society might require.

Mr. R. did not quote New-Hampshire as a precedent; but rather to show that the question of the proper depository of chancery powers was not uniformly settled.

MR. MUNRO defended the report at length, and replied to the remarks which had fallen from the gentleman from New-York, (Mr. Radcliff) who had thought proper to condemn the report. He called on that gentleman to assign the reasons, on which his objections to the report were grounded; and to point out the evils we had experienced from the court of chancery.

GEN. ROOT said, that gentlemen had called for a division of the subject, and he moved that the question might be first taken on the abolition of the court of chancery.

He was not, he said, so absurd as to deny that chancery powers should be vested somewhere. He was disposed to transfer chancery duties-not to abolish them. It had been said that we should be cautious, and not be hurried by our dislikes of particular persons who fill the offices of chancellor and judges, to abrogate a valuable system. It was not the person, but the office, to which his remarks would be directed; and it was because the office had been so ably filled by the present incumbent, that he feared the personal popularity of that officer would prevent its prostration.

Mr. R. then proceeded to examine the plan proposed by the committee. The establishment of a court of common pleas, possessing co-ordinate and commensurate jurisdiction with the supreme court, was in his view absurd. The idea must have been taken from the court of common pleas in England, which was instituted for the adjudication of civil causes, and has no criminal jurisdiction whatever. The court of king's bench was instituted originally for the trial of causes in which the crown was concerned. By a fiction of law, they brought the defendant into court, and by an ac etiam, usurped the proper powers of the court of common pleas. Ac etiam sounds well enough in the ears of lawyers: but common people could hardly understand it. The barons of the exchequer were appointed to take care of the royal revenues; and here, by another charming fiction, by a quo minus, the defendant in a civil suit, is brought into their courts. In this way they had ac etiam'd and quo minus'd the whole realm into their grasp. He wished to have the powers of our courts distinctly known and defined. But we are next presented with a nisi prius court. What's that?-a constitutional provision that a certain court shall try a cause, unless somebody else shall sooner come and try it. He had rather bave a constitution in the English language.

Mr. R. proceeded in detail to point out the objectionable points in the first section, and to shew by comparison the superiority of the system he had proposed. His substitute would remedy the evil of an accumulation of untried

causes, for it would authorise such an extension of the court as convenience might require. The judges would not have to ride post through the state; but the administration of justice would be brought home to every man's door, without unnecessary expense or delay.

COL. YOUNG offered the following proviso to the amendment. "Provided, however, that the court of chancery, as at present organized, shall continue until the legislature shall otherwise direct."

GEN. ROOT assented to the proposition of Col. Young.

CHANCELLOR KENT was opposed to the abolition of the court of chancery, and vesting its powers in the supreme court. As the constitutional limitation of his term of office would arrive before the amendment would probably go into operation if adopted, he thought the committee would exempt him from the imputation of acting under the influence of personal considerations, and he stated in a few words his objections to the propositions offered by the gentleman from Delaware.

The court of chancery had been a distinct tribunal from the first settlement of the colony by the English, and it had become too deeply incorporated in our institutions and jurisprudence, to be now destroyed as an independent jurisdiction, without the utmost inconvenience and hazard. It was wisest and safest to have the systems of law and equity deposited in separate and distinct courts. The systems were essentially different in their character, and relations, and objects; and each of them required a distinct preparation, and study, and qualifications. It would be dangerous, and contrary to the cautious policy of a free government, to accumulate all the powers of each system in one tribunal —we should run the hazard of having equity so intermixed with law, and law so intermixed with equity, as to lose the certainty and distinct character of each.

On the continent of Europe, the powers of law and equity were united in the same court; and so were they in Scotland; but the courts in these countries followed the civil law, and were strangers to the trial by jury. The subjects of equity jurisdiction were not proper for a jury, and therefore they ought to reside in a separate tribunal. Trusts were one great head of equity power, and they related not only to private trusts created by deed, but to the duties of public trustees, such as the trustees of corporate bodies, or commercial, charitable, and religious institutions. Such complicated inquiries and investigations, never could be brought in a compact and intelligible shape before a jury. Under the same head, executors, administrators, and guardians, and factors, and agents, were included, and all the minute and vast inquiries connected with such trusts. Infants, feme coverts, and lunatics, were likewise under the special care and superindence of chancery, and a court of common law was incompetent to deal with such matters. The specific performance of contracts was another fruitful, and very prolific and growing subject of the powers and business of a court of equity. So also, cases of fraud, and accident, and mistake, naturally fell within the same jurisdiction. The head of accounts had been noticed by the gentleman from New-York, (Mr. Radcliff,) as opening a vast field for equity cognizance, and he was a little surprized that the gentleman should consider that head as dangerous in a separate court of equity. Nothing is more complicated than the investigation and settlement of accounts between partners in trade, and between factors and agents and their principals. It would be impossible, in most cases, to bring such cases within the reach of a jury, and a jury would be utterly incompetent to bestow the time and labour requisite to examine them. Courts of law always refer such matters to reference, with or without the consent of parties, and the investigation can be as well, and perhaps much better, conducted before a master under the direction of the chancellor. The masters in chancery are sworn officers, whose habits, and study, and knowledge, fit and prepare them for such duties. The business is made a matter of distinct profession and science, and they will usually have the skill and capacity which such an exclusive employment creates. Another eminent advantage attending such investigations in chancery, is, that the parties can be compelled to answer upon oath to all the sifting inquiries that may be necessary to draw forth the truth.

The practice in some of the other states had been referred to in favour of the vanion of equity and law in the same court. But in several of the states they were distinct as with us; and in South-Carolina, for instance, we are told by very high authority, that the question had been fully discussed in their lcgislature, whether the tribunals should be distinct or blended, and that it had resulted in a general conviction that it was most wise and expedient to keep them separate. In the courts of the United States, chancery and common law powers were blended, but those courts had only a very partial and limited jurisdiction in matters of equity cognizance, because those matters were generally local, and fell exclusively within the cognizance of the state courts. There was not business enough belonging to the national courts, to justify the establishment of distinct equity tribunals. There was no serious force, therefore, in the precedent to be drawn from those courts, and he was persuaded, from circumstances which he need not now detail, that those courts felt much embarrassment in the management of the few equity cases that arose before them. He was persuaded that an equity system of jurisprudence never could be reared and perfected by any tribunal, loaded at the same time with the cumbersome duties of a court of law.

The mode of taking testimony in chancery had been made a great objection to the system, but would that be remedied by transferring the powers of equity to a court of law? It would be unjustifiable to bring the subjects in general before a jury, and if the supreme court was to be vested with equity powers, the court never could examine the witnesses themselves. This subject bad been discussed and considered in a report which he had the honour of submit. ting to the senate last February, on a reference to him of a bill then pending before that house, and as the case was probably new to most of the committee, he would beg leave to read from the journals of the senate the material parts of that report. Here the Chancellor read the report in the words following:

To the Honourable the Senate of the State of New-York.

The Chancellor, in compliance with the resolution of the honourable the Senate, of the 27th ultimo, submitting to his consideration the bill, entitled, “ An act to alter the mode of taking evidence in the Court of Chancery," respecting his opinion thereon,

RESPECTFULLY REPORTS,

That the bill provides for a very material alteration in the mode of taking testi mony in Chancery. The substance of the bill is, that the Chancellor shall either personally examine, ore tenus, witnesses in Chancery, or appoint some proper offcer or person to do it, and that the officer or person to be appointed, shall take notes of the testimony, in the manner practised by a judge at Nisi Prius, and report the same to the Chancellor and that it shall be lawful for the parties by their counsel to attend every such examination, and put questions, ore tenus, and also to examine witnesses, at the same time, touching the competency or credibility of any other witness, and to require points or exceptions, made at the examination, to be reserved for the decision of the Chancellor, who may thereupon direct such further examinations as the case may require; and that it shall be lawful for the officer or other person, taking the examination, to adjourn the same to any other day, so as to enable each party to be fully prepared with testimony.

The first observation that naturally occurs upon the perusal of the bill, is, that it would be entirely out of the power of the Chancellor to take examinations himself, in proper person, and at the same time perform the other duties of his office. He is satisfied, from his own experience, that the business of hearing and dec.ding on special applications, which are daily, and almost hourly, occurring, and of hearing and deciding on causes, regularly prepared and set down for hearing upon pleadings and proofs, requires his whole time and attention. It is further to be observed, that the business of the court is constantly and rapidly creasing, and extending itself in every direction over the state. It would require at least eight or ten chancellors to take all the examinations in person, and at the same time hear and decide all causes upon the merits, with sufficient deliberation, study, accuracy, and despatch.

The Chancellor, therefore, thinks, that no reliance can be placed on that provision in the bill, and that it ought to be put entirely out of consideration.

The essential alteration in the present practice, which the bill contemplates, is to permit examinations to be taken, viva voce, before the examiner or other officer, in the presence of parties or their counsel, and with liberty to impeach at pleasure the competency or credit of the witnesses, and of bringing up witnesses on each side, until all the testimony is taken which either party may think proper to fur. nish.

To understand the full force and effect of this alteration, it may be proper to notice, briefly, the present mode of taking testimony.

After a cause is at issue, a rule is entered for the parties to produce their proofs. Each party is fully apprized by the bill and answer of the claims and pretensions of the other. The bill and answer contain a particular and minute history of the matters in controversy, and this prevents all possible surprize, and each party sufficiently knows what he is required to prove, and what he ought to repel. Interrogatories, or fit and pertinent questions, are then prepared by the counsel of each party, to be put to their respective witnesses. These interrogatories are founded upon the bill and answer, and cannot well be misapplied. A copy of the interro. gatories, and of the names and places of abode of the witnesses, and the time and place of the examination, and the name of the examiner, are all duly served on the opposite party, who proposes if he pleases cross interrogatories, to be put to the same witnesses. The opposite party takes the same steps and gives the same notice in respect to his witnesses. These examinations are either taken before a regular examiner, appointed by the Council of Appointment, or if the examiner be not within a convenient distance, or either party chooses otherwise, he may under the rules of the court sue out a commission, and have the examinations taken before two or more commissioners to be selected by the parties, in a mode provided. At the time and place appointed, the examiner, or commissioners, examine each witness separately upon the questions furnished them, and the depositions of the witnesses are carefully reduced to writing, and read over and subscribed by them, and the examiner proceeds in this course for days or for weeks together, as the c se may require, until all the testimony is taken and duly closed. A rule for publication is then entered, and the depositions are made public, and each party inspects them and takes copies, and if they can impeach the competency or credit of any witness, who has been examined, they have an opportunity to do it in a fair and regular manner. If any irregularity has taken place in the course of the examination, or any improper questions put, the depositions affected by them will be suppressed, and all possible care is taken by the rules and practice of the court, to have the testimony fairly and fully taken, and freed from all impertinent, or improper matter.

An objection which has often been made to this mode of taking proof is, that it deprives the chancellor of the benefit of an oral examination and inspection of the witnesses. But this objection cannot be removed entirely, because it is impossible for the chancellor to be able to take the examinations in person. The objection, however, is in a very considerable degree, if not in all essential respects, removed by the practice of awarding a feigned issue, and directing the question to be tried by a jury, at one of the circuit courts, when the cause resolves itself into a mere matter of fact, and depends chiefly on the credibility of witnesses. This is done in all cases under the statute concerning divorces, when the fact of adultery is denied, and so it is in all cases, where the cause turns upon the competency of a testator in making his will. It may be done in any other case, in which the fact disputed is doubtful, and the chancellor cannot otherwise arrive at a satisfactory conclusion.

Another objection to this mode of taking testimony is sometimes raised, and it is one which seems principally within the purview of the present bill The ob jection is, that the parties are not present by their counsel, to question and crossexamine the witnesses, viva voce, and by discovery of what is proved on one side, to be enabled to meet it by countervailing proof on the other.

It is worthy of much consideration, whether an alteration of the practice in this respect, would not be productive of more evil than good. The Chancellor is of opinion that the present practice would not have stood so long the test of ex perience, if it had not been founded upon very solid reasons, and he apprehends that the alteration proposed by the bill, would be attended with injurious conse. quences.

In the first place, it would increase the costs of a suit. The drawing of the interrogatories is a trifling expense, compared to what the attendance of counsel upon every such examination would be. The extra expense of counsel, in every important case, is much more burdensome to the suitor, than the taxable costs. The very presence of counsel would render every such examination, more or less litigious. These examinations, in every important cause, (and chancery causes are usually important and embrace a great variety of complicated matter,) would necessarily consume weeks, and would be protracted by the thousand interrogatories of counsel, by objections to questions put, by argument and discussion, by exceptions taken, and points reserved, and by the want of the presence of a judge of sufficient weight of character and authority to dispel doubts and to inspire respect.

These open, public examinations, conducted by counsel, would also greatly retard the progress of the suit. As examinations are now had, each party selects his witnesses upon his previous knowledge of the case, and is under no temptation to hunt after, or fabricate testimony to attact his adversary's proof, and to prop up the weak sides of his own case. He brings forward what his counsel inform him to be material proof, and the interrogatories are all framed to meet the very matters of fact detailed in the bill and answer. Each party stands on equal ground. There is no opportunity for speculating on each other's proof, and of running a race of diligence, day after day, and week after week, in supplying fresh proof to make and resist attacts, and to exhaust each other by an obstinate and irritated litigation. Under the present practice, the parties are kept undisturbed and tranquil, and have nothing else to do but quietly to collect proof at once, to support their respective allegations. But if the parties, by their counsel, are permitted to go before the examiner, the passions would be instantly excited, and a vexatious inquiry commenced. Adjournment upon adjournment, would necessarily be required to seek for countervailing proof, and examinations would become excessively tedious. Delays would be greatly and unavoidably promoted by the permission which the bill gives the counsel to raise points and tender exceptions, which the examiner is to refer to the chancellor. Each of these exceptions would require a regular hearing and discussion before him; and this would often lead to a renewed examination. The burdensome and prolonged examinations upon references before a master, where counsel attend, and each party enters into such an examination by witnesses, as he thinks proper, afford a sample of what might be usually expected under the provisions of the bill. Some of those examinations before a master have been known to have consumed months, and to have been most laborious and distressing to all concerned.

Another and a more serious objection to the new mode of examination proposed, is the temptation it would hold out to abuse. The parties, or their more sagacious counsel, would be enabled very early to detect the weak parts of their adversary's proof, or their own, and they could be induced to seek, upon adjournment, for further testimony to meet the pressure and exigency of the case. It is to guard against this species of abuse that examinations in chief are rarely permitted, after the testimony on each side has been disclosed by publication, and it is upon the same principle, that courts of law will not grant a new trial, merely to enable a party to accumulate testimony on any given point, or to meet that which was taken on the opposite side. The language of the courts of law is, that it would tend to introduce fraud and purjury, by affording an opportunity to tamper with witnesses, and by taxing the ingenuity of a party, after the discovery of his adversary's strength, to supply all deficiencies of testimony on his side. It is for the same reason, that a witness who has been once examined in chief, cannot be re-examined before a master without a special order; and even then, not to any matter to which he had been before examined. In trials at common law, before a jury, the mischief cannot well arise, because the cause is heard, and the verdict taken at one sitting, and all undue opportunity for ranging at large and getting up suppletory proof, is precluded.

The practice which is now in use on this subject, has continued the same since our revolution, and it was taken from the English practice, where it had continued for ages without the discovery of any serious evil. It has such a weight of experience in its favour, and has become so improved and perfected by time, that this circumstance alone, must give it immense advantages over every untried in novation. The same mode of examination was recognized and guarded by the rules which the wisdom of lord Bacon established, for the government of the