and its doctrines seemed to pass current both for law and gospel. Mr. R. could remember when the political notions of that statesman were not acknowledged to be correct by the politicians of other days. And he could recollect, also, that twenty years ago, when he had the honour of a seat in the legislature with the venerable father of that gentleman, that he would have frowned upon the introduction of the political maxims of General Hamilton as authority. Why not advert to the doctrines of William Pitt the younger, or of lords Castlereagh and Liverpool?

It was his (Mr. R.'s) wish, that this subject might, in its details be left to the legislature. Let them abolish the court of chancery, and transfer its powers, if, in their opinion, the public good should require it. He had no fear of the legislature in this respect. They would guard the sanctuaries of justice from stain and pollution.

MR. N. WILLIAMS briefly replied to the remarks of Mr. Root. If he were driven to the importation of foreign manufactures, he hoped he should never be compelled to resort to the coarse fabrics from the county of Delaware. Mr. W. then offered the following amendment:

COMMON LAW COURTS.

1st. That the state shall hercafter, by law, be divided into five or more judieial districts, in manner and form as the legislature shall deem proper, exclusive of the city of New-York; and there shall be appointed by the general appointing power of the state, for each of the said districts, a person of the degree of counsellor at law of the supreme court, who shall, while he holds his office, reside in the district for which he shall be appointed, to be styled a circuit judge; and who shall have, hold and exercise, in the several counties of this state, all and every the powers and jurisdictions which the justices of the supreme court now have, use and exercise, in the courts of oyer and terminer, general jail delivery, circuits and sittings, and at chambers, with such other powers as may hereafter be given to them by law; whose duty it shall be separately to hold the above named courts in the several counties in the said districts, as often in every year as shall be fixed by law, and in such of the said districts as they shall assign to each once in each year, by an arrangement among themselves and one of the said circuit judges shall hold the sittings in the cities of New-York and Albany, when and as often as he shall be requested so to do by the supreme court-provided the sittings do not interfere with the circuits. And the said circuit judges shall receive a salary to be allowed by law, and such fees as may be established by law; and shall hold their respective offices by the same tenure as the judges of the supreme

court.

2d. And further, the said circuit judges shall have power and authority to hear and determine all civil causes on certiorari, arising in their several districts, al sent by the supreme court to the circuits for argument; and the judgment rendered by them shall be adopted and entered of record in the supreme court, on a return of the papers and proceedings into said court, and shall be carried inte effect as if rendered by the said supreme court.

3d. And further, the said circuit judges shall, ex-officio, be members of the court for the trial of impeachments and the correction of errors; and when either of said judges shall be impeached, he shall be suspended from exercising his office untit his acquittal.

4th. The legislature may, in their discretion, make provision for one or more vice chancellors, and regulate their powers from time to time, or vest chancery powers in other courts of subordinate jurisdiction.

MR. KING did not rise to enter into a discussion of the question, but merely to suggest one or two observations. It might be expedient to consider, in the first place, what were the measures recommended by the select committee; in the second, what was the object of the proposition of the gentleman from Dela

ware.

The committee had submitted a system containing various propositions, all of which were subject to the control and amendment of this body. It was a subject that naturally involved some difficulty, and required great experience. The committee had presented for consideration the mature results of their careful examination and deliberate judgment.

In lieu of that report, the gentleman from Delaware had offered a proposition to change in effect, if not to overturn, the whole department of the judicial power, as established under the constitution: for this power, in its higher branches, was, by the constitution, distributed to the chancery, supreme, and county courts, with a controling power in the court of errors.

But in lieu of this long tried system, it is now proposed to vest the judicial power of the state in a court for the trial of impeachments and correction of errors, excluding therefrom the chancellor and judges; a supreme court, to consist of a chief justice, and not more than four, nor less than three, associate judges; in circuit courts, courts of common pleas, and justices of the peace. The amendment, likewise, emphatically provided that the supreme court should have "jurisdiction in all cases, in law and equity." The pith of the matter lay here; for if the supreme court is to have jurisdiction in all cases in law and equity, it is perfectly clear that the proviso which has been added, and which declares that the court of chancery shall continue till the legislature otherwise direct, must be nugatory, as it will be the duty of the legislature to "otherwise direct," by dismissing the chancellor when he has nothing further to do, as he would not have after this transfer of his appropriate duties to the supreme court. Not to say any thing respecting the union of equity and common law powers in the same court, the effects of which have been shown by others, there would, as Mr. King apprehended, be great insecurity in confiding to the legislature the exercise of so broad a power over the judiciary, as was now proposed.

Alterations so novel, and in his mind so unnecessary, were never thought of by our constituents, and he could not suppose that they would be approved. If there was any thing settled in the formation of government, it was to be found in the constitutional separation of the departments. How was this to be done? by putting one branch under the control of another? Is a separate and independent judiciary to be formed, and reformed, by the legislature? It was understood to be a salutary principle, that, as far as is practicable, without great inconvenience, the legislature, executive, and judiciary should be made independent of each other. But if the proposed course in respect to the judiciary is to be taken, why not re-adjust and re-establish the executive branch upon a similar footing? Why not ordain that your executive shall hold his office for a specified number of years, as his first term under the amended constitution, and at the same time provide that the governor should afterwards hold for longer or a shorter term, as the legislature might from time to time direct? Why not as well leave it to the legislature to fix and unfix the term of the executive, as to make, alter, or control the judiciary? He would repeat now, what he had before said, that there was no department so vitally important to the dearest interests of the community, as an honest, learned, and independent judiciary. If this department is rendered unstable and dependant, as he feared would happen under the amendment, nothing that is dear or valuable can be made secure.

Mr. K. believed it to be unsafe to commit such unqualified powers concerning the judiciary to the discretion of a legislative body, and with all deference to the experience of the gentleman from Delaware, he was satisfied that his counsel on this occasion, though well intended, was yet dangerous in the ex

treme.

The courts of errors, of chancery, and the supreme court, should be established on a constitutional basis. Leave minor and defined portions of judicial power to such inferior courts as may be provided by the legislature; always reserving appellate jurisdiction to the respective superior courts of common law and equity. But we cannot consent to ordain that the great divisions of power shall be confounded; yet such seems to be the language of the amendment. With regard to the construction and dependance of the respective courts, Mr. K. should refer to the learning and experience of others. But it was not safe to the community, to leave the control of one department to the power of another. Whatever power over the judiciary you do commit to the legislature, limit the same distinctly. Define it with precision. Leave nothing to discretion or construction, or more power will be exercised than you intended to give. If the legislature is not confined within distinct bounds, it will usurp on,

and in the end swallow up, all the other departments. Let the barrier between the legislature and judiciary be strongly marked: by this means, you will leave no room for the exercise of construction to the legislature.

MR. RADCLIFF rose to express the reasons which would govern his vote. Mr. Van Buren hoped the gentleman would not again enter into the debate at this late hour-he had already spoken several times upon the question.

GEN. ROOT wished the gentleman from New-York might have an opportunity of expressing his sentiments, and moved that the committee rise and report. which was carried-and the Convention adjourned.

WEDNESDAY, OCTOBER 24, 1821.

At the usual hour, the sitting was opened by prayer, by the Rev. Mr. MayER. The President then took the chair, and the minutes of yesterday were read and approved.

THE JUDICIAL DEPARTMENT.

On motion of MR. SHARPE, the Convention then went into committee of the whole on the unfinished business of yesterday (the judicial department)—Mr. Fairlie in the chair.

MR. TOMPKINS proposed that the question which had been discussed for two days past, be now taken.

MR. RADCLIFF inquired in what shape the question was to be put? If it was taken on the amendment, all its parts would of course be included; and should the question be decided in the negative, all the provisions of the amendment would be rejected, and could not be recalled.

COL. YOUNG apprehended there would be no difficulty on the subject. The items included in the amendment could be afterwards offered.

MR. RADCLIFF offered the following amendment, which was ordered to lie on the table till after the question on Mr. Root's amendment was taken:

"Or in such other court or courts of equity or of law and equity combined, as the legislature may from time to time ordain and establish; in the supreme court of judicature; in circuit courts or sittings, and courts of oyer and terminer and general gaol delivery; in courts of common pleas and general sessions of the peace in the several counties of this state, and such other courts of inferior and limited jurisdiction as the legislature may from time to time establish."

Mr. R. commenced speaking in favour of his amendment, and on the subject generally, when

COL. YOUNG remarked, that the gentleman from New-York, (Mr. Radcliff,) had already made two sensible speeches on this question, and hoped he would not this morning renew the debate.

The Chairman decided, that the gentleman from New-York was not in order; but it was competent for the committee to give him leave to proceed.

On motion of MR. WHEATON the question on granting Mr. R. leave to speak was taken, and decided in the affirmative, 37 to 36.

As the gentleman from New-York did not avail himself of the privilege granted, the question was again called for and stated from the chair.

MR. EDWARDS said, that the gentlemen in their various innovations, had not gone so far as to propose the abolition of the common law, or the law of equity; they keep up the appearance of sustaining both, when, in reality, they are making an universal stride towards the accomplishment of a complete prostration of both. He had listened with a degree of astonishment to the attacks which had been made upon the court of chancery. It appeared that some gentlemen had come here with a determination that civil society should be again reduced to its original elements-that we should turn our backs upon all the wisdom of our ancestors, and conclude that there is nothing worthy of consideration that does not originate in our own brain.

The court of equity which is now proposed to be abolished, or placed in such a situation that the legislature can at pleasure destroy it, has existed ever since the organization of this state as a colony, and in our mother country for ages past. The wise men of our state, and of the nation, have always reverenced this court as one of the proudest ornaments of our judiciary system. When the revolution took place, which separated this from the mother country, the wise men of that day were eager to rescue from the general prostration, this invalua ble system of equity; and it has been thus far preserved as an ornament to our judiciary system.

Gentlemen have now thought proper to propose a plan, by which the administration of justice must be very imperfect; as it must be known to all gentlemen acquainted with equity business, that to be familiar with it, requires a long series of years in practice and study. It is equally obvious that the common law is also complex and multifarious. The reasons why our equity and com mon law are so multifarious, must be apparent to the mind of any gentleman on a little reflection. It is the blessing of this government, that we are governed by laws. Rules are established for all the different cases that may arise; and such rules and laws are indispensably necessary to the happiness of society, by preventing the arbitrary exercise of power by our judges. If all this be necessary to the happiness of society, and we put our judiciary system on such a footing that judges must be ignorant of the laws they administer, it will be equally as pernicious as to abolishing our laws to that extent.

It is proposed to unite all the powers of law and equity: and if so, it will be impossible to find judges capable of administering both. As our system now stands, it requires but the attention of one individual; but as it is proposed to be established, it must require that of five or six at least, whose whole attention ought to be directed to the discharge of other duties which now they have to perform, and which will be still left to them.

Another proposition is, to take from the supreme court of errors the judges and chancellor, leaving the whole duties of that court in the hands of men ignorant of the law. There would be as much propriety in this, as to leave to a board of lawyers to decide upon the health of a man, after the opinion of the wisest physicians had been obtained.

A gentleman from New-York, (Mr. Radcliff,) has come forth as a champion against this court of chancery. He does not come out in direct terms against it, but proposes to leave it in the power of the legislature to dispose of as they may think proper. Do we lack experience on this subject? Have not the experience of the mother country, and of this state, for more than a century, been sufficient to satisfy us on this point? No man knows better than this honourable gentleman, what the effects of this encroachment upon the court of equity will be. It is well known that the effect will be different from what has been here stated. Instead of its being an object for the profession to support this court, it is the contrary-its abolition will have a tendency to promote litigation, and set men by the ears, by which the lawyers will find a harvest. If we wish to secure the rights of liberty and property in our land, let us have fixed and permanent laws, and let them be administered by men who have a competent knowledge of them, and will administer them with wisdom and integrity. The plan proposed will endanger the whole judiciary system; and no complaints of this branch of it have been heard till we assembled in this Convention.

Mr. E. hoped the amendment would not prevail.

The question on Mr. Root's amendment was then taken by ayes and noes, and decided in the negative, as follows:

NOES-Messrs. Bacon, Baker, Barlow, Breese, Buel, Carver, Child, D. Clark, Clyde, Collins, Cramer, Dodge, Dubois, Duer, Dyckman, Edwards, Fenton, Fish, Frost, Hallock, Hees, Hogeboom, Hunter, Huntington, Hurd, Jay, Jones, Kent, Knowles, King, Lansing, Lawrence, A. Livingston, Millikin, Moore, Munro, Nelson, Paulding, Pitcher, Porter, President, Radcliff, Rhinelander, Rockwell, Rogers, Rose, Russell, Sage, Sanders, N. Sanford, Seaman, Sharpe, Sheldon, I. Smith, R. Smith, Steele, I. Sutherland,

Sylvester, Tallmadge, Ten Eyck, Townsend, Tripp, Van Buren, S. Van Rensselaer, Van Vechten, Verbryck, Ward, E. Webster, Wendover, Wheaton, E. Williams, N. Williams, Yates-73.

AYES-Messrs. Briggs, Brinkerhoff, Brooks, Burroughs, Carpenter, Case, R_Clarke, Day, Eastwood, Ferris, Howe, Humphrey, Hunt, Hunting, P. R• Livingston, M'Call, Park, Pike, Price, Pumpelly, Richards, Root, Rosebrugh, R. Sandford, Seely, Starkweather, Swift, Taylor, Townley, Tuttle, Van Fleet, Van Horne, A. Webster, Woods, Woodward, Young—36.

Mr. N. Sanford's amendment was next in order.

MR. SANFORD hoped we should first act on the original report, and then on the amendments, if necessary.

COL. YOUNG approved of the course snggested by the gentleman from NewYork, and moved that the question be taken on the whole report. If it was rejected, some simple proposition might be offered, upon which we might build MR. I. SUTHERLAND opposed the motion. The report had been called complicated. He could see no difficulty in acting on it, as we had done in other cases.

MR. MUNRO defended the report and hoped the question might not be taken on the whole of it at once. He requested the gentleman from Saratoga to state his objections to the report.

COL. YOUNG replied, that it was too long and complicated. It would require a condenser, as strong as that of a steam engine to compress it into a proper volume.

MR. RUSSELL offered the following substitute :

1. The judicial power of this state shall be vested in a court for the trial of impeachments, to consist of the president of the senate, and senators.

2. In a court for the correction of errors, to consist of the president of the senate and senators, and

3. In a court of chancery.

4. In a supreme court, to consist of a chief justice, and not more than four nor less than two associate justices.

5. In district courts.

6 In courts of common pleas and in justices of the peace; and in such other courts subordinate to the supreme court, as the legislature may establish.

MR. MUNRO inquired whether that proposition would be briefer than the first section of the report.

MR. DUER approved of the motion of the gentleman from Saratoga, (Mr. Young,) for acting on the report; but he wished it might be taken by sections, and not in the gross.

MR. LANSING hoped we should first act on the first section of the report, and not on the whole.

MR. SHARPE requested the gentleman from Saratoga would withdraw his motion, and that we should first take the question on the court of errors, or some distinct proposition.

MR. BRIGGS thought the gentleman from New-York, (Mr. Sharpe,) did not understand the subject, and made an effort to set him right, by explaining the difference between a court of errors, and the court of errors.

The motion was then modified, and the question on striking out the first section of the report was taken by ayes and noes, and decided in the affirmative, as follows;

AYES-Messrs. Bacon, Beckwith, Breese, Briggs, Brinkerhoff, Brooks, Burroughs, Carpenter, Child, D. Clark, R. Clarke, Clyde, Collins, Cramer, Day, Dodge, Dubois, Eastwood, Fenton, Ferris, Fish, Frost, Hallock, Hees, Hogeboom, Howe, Humphrey, Hunt, Hunting, Huntington, Hurd, Knowles, A. Livingston, P. R. Livingston, M'Call, Millikin, Moore, Park, Pike, Pitcher, Porter, Price, Pumpelly, Radcliff, Richards, Rockwell, Rogers, Root, Rosebrugh, Ross, Russell, Sanders, N. Sanford, R. Sandford, Schenck, Seaman, Seely, Sheldon, R. Smith, Starkweather, Steele, Swift, Taylor, Townley, Townsend, Tripp, Tuttle, Van Fleet, Van Horne, Verbryck, A. Webster, E. Webster, Wendover, N. Wilhams, Woods, Woodward, Wooster, Young.-79.