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The court of equity which is now proposed to he aholished, 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, hare always reverenced this court as one of the proudest ornaments of our judiciary system. When the revolution^ook place, which separated this from tlie mother country, the wise men of that day were eager to rescue from the general prostration, this invaluahle system of equity; and it has heen thus far preserved as an ornament to our judiciary system.
Gentlemen have now thought proper to propose a plan, hy which the administration of justice must he very imperfect; as it must he known to all gentlemen acquainted with equity husiness, that to he familiar .nth it, requires a long series of years in practice and study. It is equally ohvious that the common law is also complex and multifarious. The reasons why our equity and common law are so multifarious, must he apparent to the mind of any gentleman on a little reflection. It is the hlessing of this government, that we are governed hy laws. Rules are estahlished for all the different cases that may arise; and such rules and laws arc indispensahly necessary to the happiness of society, hy preventing the arhitrary exereise of power hy our judges. If all this he necessary to the happiness of society, and we put our judiciary sjstem on such a footing that judges must he ignorant of the laws they administer, it will he equally as pernicious a9 to aholishing our laws to that extent.
It is proposed to umte all the powers of law and equity: and if so, it will he impossihle to find judges capahle of administering hoth. As our system now stands, it requires hut the attention of one individual; hut as it is proposed to he estahlished, it must require that of five or six at least, whose whole attention ought to he directed to the discharge of other duties which now they have to perform, and which will he still left to them.
Another proposition is, to take from the supreme court of errors the judges and chancellor, leaving the w hole duties of that court in the hands of men ignorant of the law. There would he as much propriety in this, as to leave to a hoard of lawyers to decide upon the health of a man, after the opinion of the wisest physicians had heen ohtained
A gentleman from New-York, (Mr. Radeliff,) has come forth as a champion against this court of chancery. He does not come out in direct terms against it, hut proposes to leave it in the power of the legislature to dispose of as they may think proper. Do we lack experience on this suhject? Have not the t-xperience of the mother country, and of this state, for more than a century, heen sufficient to satisfy us on this point? No man knows hetter than this honourahle gentleman, what the effects of this encroachment upon the court of equity will he. It is well known that the effect will he dilferent from what has heen here stated. Instead of its heing an ohject for the profession to support this court, it is the contrary—its aholition will have a tendency to promote litigation, and set men hy the ears, hy which the lawyers will find a harvest. If we wish to secure the rights of ltherty and property in our land, let us have fixed and permanent laws, and let them he administered hy 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 hranch of it have heen heard till we assemhled in this Convention.
Mr. E. hoped the amendment would not prevail.
The question on Mr. Root's amendment was then taken hy ayes and noes, and decided in the negative, as follows:
NOES—Messrs. Bacon, Baker, Barlow, Breese, Bucl. Carver, Child, D. Clark, Clyde, Collins, Cramer, Dodge, Duhois, Duer, Dyckman, Edwards, Fenton, Fish, Frost, Hallock. Hees, Hogehoom, Hunter, Huntington, Hurd, Jav, Jones, Kent, Knowles, King, Lansing, Lawrence, A. Livingston, Millikin, Moore, Munro, Nelson, Panlding, Piteher, Porter, President, Radcliff, Rhinclander, Rockwell, Rogers, Rose, Russell, Sage, Sanders, N. Sanford, Seaman, Sharpe, Sheldon, I. Smith, R. Smith, Steele, 1. Sutherland, Sylvester, Tallmadge, Ten Eyck, Townsend, Tripp, Van Buren, S. Van Rensselaer, Van Vechten, Verhryck, Ward, E. Wehster, Wendover, Wheaton, E. Williams, N. Williams, Yates—73.
AYES—Messrs. Brings, Brinkerhoff, Brooks, Burroughs, Carpenter, Case R Clarke, Day, Eastwood, Ferris, Howe, Humphrey, Hunt, Hunting, P. RLivingston, M'Call, Park, Pike, Price, Pumpelly, Richards, Root,%isehrugh, R. Sandford, Seely, Starkweather, Swift, Taylor, Townley, Tuttle, Van Fleet. Van Home, A. Wehster, 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 hy the gentleman from NewYork, and moved that the question he taken on the whole report. If it was rejected, some simple proposition might he offered, upon which we ;nighthnjli^^
Mr, I. Sutherland opposed the motion. The report had -fcjj..?ry"heen^^called complicated. He could see no difficulty in acting on it, as we had done v in other cases.
Mr. Munro defended the report and hoped the question might not he taken on the whole of it at once. He requested the gentleman from Saratoga to state his ohjections 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 suhstitute:
1. The judicial power of this state shall he vested in a court for the trial of impeachments, to consist of the president of the senate, and senators.
2. In a court fur 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 suhordinate to the supreme court, as the legislature may estahlish.
Mr. Munro inquired whether that proposition would he hriefer than the first section of the report.
Mr. Dler approved of the motion of the gentleman from Saratoga, (Mr. Young,) for acting on the report; hut he wished it might he taken hy sections, and not in the gross.
Mr. Lansmg hoped we should first act on the first section of the report, and not on the whole.
Mr. Sharpk 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 suhject, and made an effort to set him right, hy explaining the difference hetween 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 hy 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, Duhois, Eastwood, Fenton, Ferris, Fish, Frost, Hallock, Hees, Hogehoom, Howe, Humphrey, Hunt, Hunting, Huntington, Hurd, Knowles, A. Livingston, P. R. Livingston, M'Call, Millikin, Moore, Park, Pike, Piteher, Porter, Price, Pumpelly, Radeliff, Richards, Rockwell, Rogers, Root, Rose-' hrugh, Ross, Russell, Sanders, N. Sanford, R. Sandford, Schenck, Seaman, Seely, Sheldon, R. Smith, Starkweather, Steele, Swift, Taylor, Townley, Townsend, Tripp, Tuttle, Van Fleet, Van Home, Verhryck, A. Wehster, E. Wehster, Wendover, N. Williams, Woods, Woodward, Wooster, Young.—79.
NOES—Messrs. Baker, Barlow, Buel, Duer, Dyckman, Edwards, Hunter, Jay, Jones, Kent, King, Lansing, Lawrence, Munro, Nelson, Panlding, President, Rhinelander, Rose, Sage, Sharpe, I. Smith, I. Sutherland, Sylvester, Tallmadge, Ten Eyck, Van Buren, S. Van Rensselaer, Van Vechten, Ward, Wheaton, E. Williams, Yates—33.
Mr. Van Buhen remarked, that the whole report appeared now to he disposed of.
Mr. N. Williams called for his amendment.
Mr. Duer said, that if the question just taken had the effect to reject the whole report, there appeared to he nothing hefore the committee. He therefore moved to rise and report.
Mr. Dodge seconded the motion. The report was gone, and there was nothing hefore the committee as a suhstratum.
Mr. E. Williams helieved that the question on the first section of the report .lid not affect the remaining sections. In legislative hills, a rejection of the first section destroyed the hill; hut it was different here. All the sections were distinct propositions.
Mr. Duer dissented from the opinion, and considered the whole report rejected.
After some desultory discussion, the chair decided that Mr. N. Williams's amendment was in order, which was read.
Mr. Duer renewed his motion to rise and (report, which after a few remarks from Mr. Young, was put and carried.
In Convention, Mr. Dodge offered the following proposition:
"The judicial power of this state shall he vested in the court for the trial of impeachments ind the correction of errors ; the court of chancery ; the supreme court of judicature; in courts of nisi prius and oyer and terminer and general ganl delivery; in county courts of common pleas and general sessions of the peace; and in such other trihunals of inferior and limited jurisdiction, hotli as to law and equity, as the legislature may estahlish: Provided that any chancellor, vice-chancellor, judge of the supreme court, or judge of nisi prins and oyer and terminer, appointed under this constitution, shall hold his office during good hehaviour, and until he arrives at the age of sixty years, and shall hold no other office whatever."
Mr. Van Buhen offered the following resolution:
"Resolved, That the legislature shall have power to divide the state into as many cireuit districts as they may think proper; to give to them the power of holding cireuit courts, and courts of oyer and terminer, and of nisi prins, concurrent with or exclusive of the justices of the supreme court, that the cireuit judges shall also he judges of the court of errors ; that the legislature shall have like power to anthorize the appointment of one or more vice chancellors, or to estahlish infevior courts of equity, to have jurisdiction to the amount of , and that said cireuit judges and vice chancellors shall hold their offices hy the same tenure as the judges of the supreme court, and shall receive such salaries and fees as the legislature may allow them."
Col. Young moved that these propositions he referred to a select committee. Carried.
It was moved that the committee consist of seven memhers.—Carried.
On motion of Mr. Kmg, the Convention then resolved itself into a committee of the whole on the suhject of senatorial districts—Mr. Van Buren in the chair.
The report of the select committee to whom Mr. Tallmadge's proposition was referred, was read.
Mr. Buel moved to amend the first section so as to read not less "than eight nor more than sixteen." His reasons for the motion were that we should make the senatorial districts as numerous as it might he practicahle. He preferred that the suhject should he left to the legislature, rather than to fix the numher of districts ahsolutely at eight.
Some ohjections to the amendment were made hy Messrs. Fairlie, King, and £. Williams, whep the question on the amendment was taken and lost.
The question then recurred on the first section of the report.
Mr. Radcliff was opposed to dividing the state into eight districts, and renewed the proposition offered some time since hy Mr. Root, which was as follows:
"The senate shall consist of thirty-six memhers to he elected for three years. On the return of every census, the state shall he divided into twelve distvicts, as nearly as may he equal in the numher of electors, and each he entitled to three senators, one of whom to he elected annually. The districts shall he composed of contiguous territory, and not altered till the return of another census."
Mr. R. remarked, that he had voted against that proposition, with the hope that something hetter would he offered. But he preferred that proposition to the one now hefore the committee; and for the purpose of trying the sense of the house, he moved to insert twelve instead of eight.
Mn. Sharpe opposed the motion, as heing out of order; and the Chairman decided that it was not in order, the report having heen made pursuant to specific instructions from the committee.
The question was then taken on the first part of the first section, and carried.
The several districts were then read in detail, and adopted without amendment, together with the last part of the first section. Second section read.
Mr. Russell moved to amend hy inserting after the word "legislature,9 a clanse providing that the numher of districts should not he less than eight, nor more than sixteen.
The amendment was discussed hy the mover, and Messrs. King, E. Williams, Burroughs, and Sharpe, when it was withdrawn, and the second section was passed as reported.
Col. Young offered the following proposition, as an additional section:
"That on the taking of the census in 1825, the numher of the memhers of assemhly shall he fixed at 128, and shall never exceed that numher." Carried.
The committee then rose and reported.
Mr. Dodge called for the reading of the resolutions offered hy the gentleman from Schenectady (Mr. Yates) and himself, for appointing a committee to arrange the parts of the constitution which have heen acted on, or may hereafter he acted on.
The resolutions were read, and after some discussion rejected, and the following resolution, offered hy Mr. Van Buren, adopted as a suhstitute:
"Resnlved, That a committee of seven memhers he appointed, to arrange the amendments which have already and which may hereafter he agreed upon, and to report ilie same to the Convention, with their opinion as to the expediency of either incorporatmg them Willi such parts of the constitution as are not altered hy the Convention, or of suhmittmg the same separately to the people."
Col. Young suggested the propriety of amending the eighth section of the report of the committee of the whole, on the right of suffrage, so as to exempt town officers from taking the oath of office, and moved an amendment to that effect.
Mn. Bacon remarked, that all the reports and amendments would again come hefore the Convention, when the amendment might he acted on. Postponed.
Mr Kmg, acting as President, announced the following gentlemen to compose the committee to whom had heen referred the report and propositions relative to the judicial department :—Messrs. Munro, Young, Root, Buel, lSWilliams, Van Buren, and Schenck.
Mr. Dodge offered the following resolution:
"A1- ••':••'.', That a committee of be appointed, to report the time and manner of holding an election for the decision of the people of this state on the amendment* which shall be submitted by the Convention, in pursuance of the seventh section of the act of the legislature recommending a Convention, passed March 13, 1821."
On motion of Mb. Van Buren, the resolution was ordered to lie on the table. Adjourned.
THURSDAY, OCTOBER 25, 1821.
Prayer by the Rev. Mr. Rice. Minutes of yesterday read and approved.
On motion of Mr. Steele, it was ordered, that the journals of the Convention be printed from day to day, as the same are completed.
Mr. Radci.iff, chairman of the committee to whom was referred that part of the report on the appointing power, which had not been acted upon, made a report, which was referred to the committee of the whole, and the usual number of copies ordered to be printed.
THE JUDICIAL DEPARTMENT.
Mr. Munro, chairman of the select committee, appointed yesterday, to •whom was referred the several propositions on the judicial department, reported as follows:
1st. The state may be divided by law into a convenient number of circuits; Mibject to alteration, as the public good may require. And in case of such division, an equal number of circuit judges shall be appointed, each of whom shall with.n any of the said districts have the same powers as a judge of the supreme court at his chambers; and within any of the said circuits, shall have power to try issues joined in the supreme court—to preside in courts of oycr and terminer and gaol delivery; and if required by law, to preside in courts of cummon pleas and general sessions of the peace.
2d. The chancellor, the justices of the supreme court, and the circuit judges, shall hold their offices during good behaviour, until the age of sixty years, and shall at the same time hold no other office, appointment, or public trust; and the acceptance thereof by either of them, shall vacate his judicial office; and all votes given by the people, or by the legislature, to any such chancellor, justice, or circuit judge, for any elective office, shall be void.
3d. Equity powers may from time to time be vested by law in such courts, or in such persons, subordinate to the court of chancery, as the public good may require.
4th. The office of judge of probates shall be abolished; and his powers and. duties shall devolve upon the court of chancery.
Mr. Munro moved that the report be printed, and referred to the committee of the whole.
Mr. Shabpe believed the subject of the report was well understood. It had been discussed for several days, and he moved that we now go into committee upon it. He understood the committee were not unanimous.
Col. Youno approved of this course. He remarked that the committee were last evening unanimous in the report: but one member had changed his opinion this morning, and had set every thing afloat.
Mr. Yam Buren made a few remarks in favour of postponing the report till «o-morrow.
Mr. Wheki.er seconded the motion of Mr. Sharpe, and the Convention resolved ilselt u>i0 a committee of the whole on the report—Mr. Fairlie in the chair.
Mr. Mukbo offered tht following amendment as a substitute for the firs! section of the report of the coraraKt«e of seven, of which he was chairman.