court of chancery, as early as the time of king James I.; and the practice stands to this day almost precisely as he declared it. Even during the period of the English commonwealth, when every part of the English constitution, except their jurisprudence, was laid in the dust, and when the commissioners, who took the place of the chancellor, undertook the reformation of the court, the present mode of examination of witnesses was preserved, and made an interesting part of a special ordinance; and as evidence of the uniform sense, supported by the long experience of the English courts on this subject, it has become an axiom in their equity policy, that no proceeding can take place, of more dangerous import, than to permit parties to make out evidence by piece-meal, and after a discovery of the weakness of testimony, to allow them an opportunity to look out for witnesses to supply the deficiency. Such a course of practice leads to perjury and

vexation.

The Chancellor, during the period that he has had the honour to preside in the court of equity, does not recollect of ever hearing a complaint or suggestion, that the present mode of taking testimony had been abused, to the injury of private right, or that each party had not been able to take all the proof that a re:.son. able diligence might have procured, and the nature of the case required. He has never been led, even in a single instance, to suspect, that a cause was lost or injured, or the truth suppressed, from the want of a public oral examination in the presence of the parties. It is extremely rare that a feigned issue has been called for, or that any serious difficulty has occurred after a due examination of the proofs, in ascertaining, to his entire satisfaction, the real justice of the case. The Chancellor is therefore enabled to add his own experience to the accumulated experience of the two last centuries, in favour of the sufficiency, the safety, and the wisdom of the mode in taking testimony which has been pursued. If the present mode be expensive (and it is perfectly Utopian to suppose that impor tant causes can be carried on without very considerable expense) the mode propo sed would increase that expense. It would render examinations much more tedi ous and burdensome, both to suitors and to the profession; and it would, as he greatly fears, lead to abuses, hazardous to public morals, and dangerous to the reputation of the court.

The Chancellor respectfully submits these objections to the candour and wisdom of the Senate. He has made them with the utmost frankness, and with no wishes on the subject, distinct from his sense of the public welfare. He begs leave at the same time to express his dutiful and greateful acknowledgments for the confidence which the resolution under which he has acted implies, and it is his constant endeavour, by a faithful discharge of his public trust, to deserve that con. fidence.

All which is respectfully submitted,

JAMES KENT.

It was well observed the other day, (continued the Chancellor,) by the gentleman from Orange (Mr. Duer) that to innovate is not always to reform. The maxim was derived from the wisdom of Lord Bacon; and why should we break up the foundations of a court which has stood so long, and received such marks of public confidence? The business of the court has been for some time past, rapidly increasing, and that is evidence of the general conviction of its utility. We ought to cherish the ancient and venerable institutions of the state. Those states which have not a separate court of chancery, feel the want of one. The general language of the experienced and enlightened jurists of our country is in favour of the judicial establishments in this state, and their success and character have received the flattering tribute of their approbation. The measure proposed would essentially injure our character as a wise and reflecting people.

Excuse me for the interest which I take on this subject. It is not personal. I am soon to retire from public life, and the amendment would not affect the short remaining term of my office. But I wish well to our courts, and I have a still higher wish for the welfare of my native state. My prayer is, that length of days may be in her right hand, and in her left hand riches and honour.

MR. I. SUTHERLAND remarked, that with respect to innovations, they were not at all chargeable to the select committee. They were to be found, not in the report, but in the substitute offered by the gentleman from Delaware. The

committee were disposed to establish-not to destroy. This was emphatically the case with respect to the court of chancery. The committee had proposed not to increase the powers but the officers of the court. They had not recommended to put upon the community any court which it is not already burthened or blessed with. The gentleman from Delaware admits that chancery powers must exist somewhere. This, in his (Mr. S's.) opinion, admits the whole argument. It was said, and doubtless with truth, that the press of business was such as to create delays, that virtually amounted to a denial of justice. If that were the case, it would be palpably wrong to add to the business of that court, (pressed down as it already is,) by the additional weight of all the causes that are now decided by the Chancellor. There were other considerations. The modes of proceeding were essentially different; and it would be impossible for juries to try the complicated issues that come before a court of chancery.

Another branch of chancery powers was the granting of injunctions to stay proceedings at common law. But it would be absurd for a body of judges to issue an injunction from the chancery to the law side of the court.

The constitutions of the several states had been cited. But it would be found that there was no state where those powers were blended in which those powers were general. Delaware had tried both systems, and in 1799 had divided the chancery powers into a distinct and separate branch; and the question had been decided in favour of that course in South-Carolina, after long and deliberate discussion.

On motion of MR. DUER, the committee then rose, reported progress, and obtained leave to sit again.

On motion of MR. WHEATON, Mr. Root's amendment was ordered to be printed.

MR. DODGE offered the following resolution:

"Resolved, That a committee of be appointed to revise and prepare for publication the amendments which shall be agreed to in Convention, and that they be instructed so to arrange them that they may be submitted to the people in detail, and in separate articles, and not as an entire or new constitution.

The resolution was ordered to lie on the table.

Adjourned.

THURSDAY, OCTOBER 23, 1821.

Prayer by the Rev. Mr. DE WITT. The President then took the chair, and the minutes of yesterday were read, and approved.

THE JUDICIAL DEPARTMENT.

On motion of MR. EASTWOOD, the Convention resolved itself into a committee of the whole, on the unfinished business of yesterday, (the report of the committee on the judicial department)-Mr. Fairlie in the chair.

MR. BUEL said-Mr. Chairman, I shall in the few remarks, which I purpose to make, endeavour to remove some of the prejudices which appear to be entertained against the court of chancery, in regard to its proceedings. It has been represented as a court difficult of access, and expensive, and prolix in its proceedings. Some gentlemen seem to suppose that at every stage of the proceedings in chancery, the aid of a solicitor or counsel residing in the place where the court sits, is necessary. But it will be found, on examination, that proceedings in that court may be conducted by solicitors in remote parts of the state, with as much facility as proceedings in the supreme court: and if there is any greater difficulty, it arises from the nature of the subjects of chancery jurisdic tion, and not from the defective organization of the court, or from any peculiarity in its proceedings. Most of the proceedings are conducted out of court, even to a greater extent than in suits at law. In an ordinary suit the first step is to file a bill, which the solicitor prepares in his office and transmits to one of the clerks. The solicitor then makes out the subporna, which is the

process of the court, to compel appearance directed to the parties who are inade defendants and which may be served by any person.

When the defendant has thus been subpoenaed, he employs a solicitor to enter his appearance with the clerk. The plaintiff's solicitor on receiving notice of appearance, serves a copy of the bill on the defendant's solicitor. The defendant's solicitor within the time prescribed by the rules, prepares the answer, and serves a copy on the plaintiff's solicitor. Thus far no application is ordinarily necessary to be made to the court, unless an injunction is applied for. When the answer is filed, the complainant's solicitor may put the cause at issue by filing a replication. The parties may then proceed to take their proofs either before an examiner in the county where the witnesses reside, or before commissioners agreed on by the parties, or appointed in the manner provided by the rules of the court. The examinations of witnesses may at the option of the parties be taken in all cases in the immediate neighbourhood of the witnesses; and in this respect the convenience of parties and witnesses may be consulted to a much greater extent than can be done in suits at law.

When both parties have finished taking their testimony, the depositions are made public, and the cause is ready for argument. At the hearing of the cause, it is true, that counsel must attend the court. But the difficulty and expense are no greater than in causes in the supreme court. In suits at law counsel must attend to try the cause at the circuit; and if any question of law arises, they must also attend the term of the supreme court. The court of chancery, therefore, is no more remote from suitors or counsel than the supreme court. All the arguments which have been urged against the court of chancery on the ground of its terms being confined to two or three places in the state, and thereby subjecting suitors to expense in employing counsel to conduct their causes, apply with equal force against the supreme court.

If the court of chancery should be abolished, and its powers transferred to the supreme court, all the evils complained of would remain in full force.

The mode of proceeding in the court of chancery in taking evidence by examinations in writing, has been complained of; it has been said that the witnesses ought to be examined openly-that the examinations are expensiveand that truth is not so well ascertained. After the very able defence made by the chancellor, of the mode of taking testimony in that court, I shall forbear to make any remarks on that subject-but will only remark that the practice of the court can at any time be altered by the legislature. A fault in the practice, therefore, ought not to be urged as a reason for abolishing the court.

The great expense of the proceedings in chancery, is a subject much spoken of, and some gentlenen are disposed on this ground alone to abolish the court. It might easily be shewn that unless equity and equitable relief is also abolished, the evil would not be remedied by the abolition of the court. Equitable remedies pursued in any other tribunals, would be attended with as much expense as in the court of chancery.

The great expense which often is incurred in chancery suits, results from the nature of the subjects, there litigated. The taking of testimony, forms the greatest item of expense-and until some mode of ascertaining truth can be found out different from what has yet been discovered, suits which involve intricate questions of fact must be attended with great expense.

I have long believed, however, that some improvement in the system of administering equity might be made.

Some of the more ordinary business of the court, might be conducted before masters in chancery, or other officers, in the different counties of the state. If masters properly qualified should be appointed, they might be entrusted with the power of allowing injunctions, saving to the party against whom an injunction should be issued, the right of applying to the court for its dissolution. The power of issuing commissions to try questions of lunacy-or habitual drunkenness, might also be conferred upon masters in chancery. Petitions for the sale of infants' lands to a limited extent, might be disposed of before the same tribunals. Nor can I perceive that any objection could be made, against allowing masters to examine into the regularity of the proceedings on bills for foreclosing mortgages where no defence is made. This would save the trouble and ex

yense of attending the courts of chancery, to obtain an order for the sale of mortgaged premises, in case where no defence was made or pretended, and the expense of the proceedings would be considerably diminished. I mention these as cases of the most ordinary occurrence; others of a similar nature might be mentioned. If equity powers, to a limited extent, and in defined cases, preserving the superintending power of the court, were conferred upon persons suitably qualified to exercise them, suitors residing in remote parts of the state would be much accommodated-and the court would be relieved from a press of small business which now occupies much of its time.

In a few instances the power of granting injunctions, has, by a statute made some years ago, been conferred upon certain masters designated by the Chancellor.

The number of these masters, as well as their powers, might be increased, and equity in matters of the most ordinary occurrence would thus be administered in every county of the state-without destroying the unity or altering the Estructure of the court of chancery.

MR. N. WILLIAMS stated, that on a subject of so much interest to the state as that of a proposition to abolish the court of chancery, he could not remain perfectly silent; and yet he was not inclined to enter into the debate, which had been so ably conducted. He was not inclined at present, to say any thing of the report in general. As to the chancery, he would do nothing more than to lay before the Convention the very able and conclusive opinion of one of the justices of the supreme court of the United States, who was entirely disinterested and was admitted to rank among the first of the elegant and learned jurists of our country. The extracts which he would lay before the Convention, would go to prove, in the most conclusive manner, in the first place, the importance of the equity jurisdiction, and, secondly, the propriety, if not the necessity, of placing it in a court separate from the common law courts. To chancery lawyers the subject may be familiar; but to many others this is not the case. Speaking of the subjects of equity jurisdiction, he says" There are cases when rehef becomes necessary from accident or mistake of the parties; cases of complicated accounts, whether between partners, or factors, or merchants, or assignees, or executors, or administrators, or bailees, or trustees; cases of fraud, assuming myriads of vivid or of darkened hues, and as prolific in their brood as the motes floating in sunbeams; cases of trust and confidence, spreading through all the concerns of society,and striking their roots deep and firm through all the foundations of refined life and domestic relations; cases where bills of recovery are indispensable to promote public justice; and lastly, cases where bills of injunctions are the only solid security against irreparable mischiefs and losses. Some other cases might be mentioned; but those above named must constitute the body of every equity jurisprudence adapted to our country. And in the times to come, they will probably give ample employment for all the learning, and acuteness, and diligence of the ablest chancellors, in states where courts of equity are established." After reading more from the same author to the same point, Mr. W. proceeded to give extracts on the second point.

"But, it may be asked, why all these objects are not, and may not, be as fully accomplished by courts of law? To a certain extent they undoubtedly are ac complished by those courts, for it would be strange, if courts, established for the administration of justice, should wholly fail to answer the purpose of their institution." "There are many cases in which the parties are without reme dy at law, or in which the remedy is wholly inadequate to the attainment of justice. Courts of law proceed by certain established forms, and administer certain kinds of remedies; their judgments are almost invariably general, for the plaintiff or for the defendant. If a case arise in which the remedy already existing at law is inapplicable, or the established forms cannot be pursued, there is an end of relief." It might as well be asked, he says, "Why may not courts of equity perform all the functions of a court of law? But the true an swer is, that each is adapted to its own objects, and cannot accomplish the ob jects of the other without breaking in upon all the settled analogies of the common law, and shaking its oldest and most venerable foundations. He who is bold enough for such an undertaking, may applaud himself as possessing the te merity of Phaeton, with the perfect certainty of not escaping his fate."

"We think that the administration of equity should be by a distinct court, having no connexion with, or dependence upon, any court of common law. There are many reasons which urge us to this conclusion. The systems of equity and law, are totally distinct in their relations and objects. The practice and proceedings have little or nothing in common. The principles of decision are in most cases exceedingly different. A life devoted to either study, will not more than suffice to make an eminent judge; a life devoted to either will be filled up with constant employment. There is some danger, when both systems are administered by the same court, that the equity of a case will sometimes transfer itself to the law side of the court, or the law of a case narrow down the comprehensive liberality of equity. The mixture, when it takes place, is decidedly bad in flavour and in quality."

He speaks, then, of the delicate duty of granting injunctions upon judgments obtained at law, which should be entrusted to an independent court; and then alluding to the courts of the United States, which have equity powers to a certain extent, he says, 66 They can, in general, take cognizance of suits in equity only where the United States, or aliens, or citizens of other states, are parties. Now it must be obvious, that the great mass of equity suits in every state must consist of controversies between citizens and inhabitants of that state; and that local laws will greatly swell that mass. Where there are few cases, a court either of law or equity may transact the whole business without any serious inconvenience. But it is far otherwise, where suits mix up with all the concerns of society, and may have an indefinite multiplication."

MR. DUER Supported the report of the select committee at length, and replied to the arguments that had been urged against it.

MR. N. SANFORD offered the following amendment.

"The legislature shall have power to modify, alter or abolish any court of law or equity, to establish new courts of justice, and to transfer the functions,or jurisdiction of one court to any other court, subject to the following restrictions:

1. That the court for the trial of impeachments and the correction of errors, as now established, shall remain unalterable.

2. That the right of appeal to the court for the trial of impeachments and the correction of errors, from all subordinate courts, shall be preserved, under such limitations and regulations as the legislature shall make.

3. That all judges of courts, superior to the county courts, shall hold their offi ces during good behaviour, or until they shall attain the age of sixty years, and shall receive for their services a compensation which shall not be diminished dur ing their continuance in office.

MR. VAN VECHTEN, in the remarks he was about to make, should not pursue the order of the amendment before the committee; but first consider the proposition for abolishing the court of chancery. It had been proposed to transfer the chancery powers to the supreme court. What benefits, be inquired, could result from the transfer? Gentlemen had said it would be bringing justice home to the doors of the people, and diminish the expenses of carrying on suits. This, he believed, was not correct. The chancellor had yesterday remarked, and he fully concurred in the opinion, that the expenses of litigation would in no degree be diminished by transferring equity jurisdiction to the supreme court. But it had been said that the power of the chancellor was immense, liable to abuse, and dangerous to the liberties of the people. He contended that the jurisdiction and powers of the court of chancery were so well defined and guarded, that no danger was to be apprehended. Admitting, however, that the power of the chancellor was formidable, would the danger be lessened by uniting this power with that of the supreme court? Would not the danger rather be increased by such an alteration? This argument appeared to defeat the object, for which it was introduced. Safety consisted in a division, not in a union, of power. The two great departments of law and equity are distinct, and should never be united. His honourable colleague, (Mr. Kent,) had yesterday stated, that when he was appointed chancellor, he was compelled to commence a new course of legal study, although he had held the office of chief justice. We had been told, that certain states had no courts of chans