correction of errors, in the same manner, and under the same regulations, as the chancellor and the judges of the supreme court are now members thereof."

He had omitted to say any thing of the court of equity, out of deference to the honourable chancellor; and he was of opinion that if this plan was adopted, it would obviate all the existing difficulties. It was therefore submitted to the consideration of the Convention, whom he should not be able to address again on the subject.

MR. WHEELER considered this an important question; it was one on which the most learned in the law could not agree. It was an honour to the honourable mover to have submitted a proposition which should afterwards be so nearly imitated by one presented by the chief justice of the state; but he could not believe him guilty of the motives imputed to him by the honourable gentleman from Albany. That something is necessary no one pretends to deny it is confirmed by the present incumbents in the high judicial departments of our state and the only question now is, what will be the best way to remedy the existing evil. It has been proposed to have two courts possessing co-ordinate powers; but this has been rejected. The plan of the gentleman from Tioga, (Mr. Carpenter,) recommends the appointment of circuit judges, and on this plan it will be necessary to reduce the present number of supreme judges; but it does not declare that any violence shall be committed upon the present incumbents; and, indeed it cannot affect them very immediately as it will take some time to carry our new constitution into operation.

We are informed by the honourable chief justice, that it cannot be long, before the public will be deprived of his usefulness and experience upon the bench, and we are aware that his labours have been honourable to himself and useful to the public; but would it not be dishonourable to the judges of our supreme court, to revolt at the idea of falling a sacrifice to the public good, if necessity should demand their removal? Have we not already altered the tenure of the office of more than fifty judges in this state, who hold for the same time that they do?

Mr. Wheeler did not consider himself competent to argue this question, but he called on the honourable gentlemen of the law, to come forward and let the Convention profit by their wisdom, on this important subject. He conjured them by all that was dear to their country, and the character of the state, to use their best endeavours to establish a system, which should have for its end the happiness and prosperity of the community.

MR. RADCLIFF hoped that the honourable chancellor would favour the Convention before adjournment with a proposition he intended to present, that it might be printed.

CHANCELLOR KENT remarked, that he had prepared no definite proposition for the consideration of the Convention. His sentiments on the subject had been previously submitted. He thought it was expedient to vest in the subordinate common law courts equity powers to a limited extent.

MR. MUNRO wished to learn whether the Chancellor intended to recommend to the people of this state, to blend chancery powers with common law jurisdiction?

CHANCELLOR KENT replied, that he could not foresee that such a course would destroy the system or ruin the state. The chancery powers would probably become too great for any one man to perform, and whether a part of that power was confided to masters of the rolls or vice-chancellors was not perhaps very material.

The proposition of the chief justice, and the report of the committee were ordered to be printed.

The CHANCELLOR had leave of absence for the remainder of the session.
MR. FAIRLIE offered the following resolution:

Resolved, That one copy of the journals of this convention be transmitted by the secretary of state to the clerk of each county, to be deposited in his office, and that the surplus copies of the said journals be deposited in the secretary's office.

Adjourned.

SATURDAY, NOVEMBER 3, 1821. The Convention assembled at the usual hour, and the journals of yesterday were read and approved.

MR. WENDOVER offered the following as a preamble to the amended constitution.

We, the people of the state of New-York, acknowledging with gratitude the beneficent Providence of Almighty God, in securing to us the blessings of a free gov ernment, as settled and handed down by our fathers of the revolution; and desirous to improve and perpetuate them for ourselves and posterity: Do ordain, establish, and declare this constitution and form of government.

Referred to the committee of which Mr. Yates is chairman.

COL. YOUNG offered the following resolution :

"Resolved, That the lieutenant-governor be ex-officio a senator," and moved that it be referred to a select committee.

MR. MUNRO disapproved of the resolution, and wished it might be referred to a committee of the whole.

MR. SHELDON was opposed to the proposition, inasmuch as it would give to one of the districts an additional member, and therefore an undue influence in the senate.

COL. YOUNG supposed there could have been no objections raised to the resolution; but as some opposition was manifested, he would withdraw it.

THE JUDICIAL DEPARTMENT.

The Convention then resumed the unfinished business of yesterday, the Judicial Department.

MR. CARPENTER's substitute was stated to be first in order, which was read.

MR. BUEL. It was not my intention to have occupied the time of the Convention by any remarks on the plan proposed by the gentleman from Tioga; but the call which my friend from Washington yesterday made upon the professional members of the Convention, to come forward and support the plan, if they approve of it, and to point out its defects, if they dislike it, seems to impose on them the obligation of declaring their sentiments in regard to the propo

sition.

If I stood here merely as a lawyer, consulting my own private interest, I would have no inducements to oppose the adoption of the system proposed, believing as I do, that the lawyers would derive much more benefit from its adoption, than any other class of the community. I do not feel myself at liberty, however, to act on this, or any other subject in this Convention, in my professional character, but feel it to be my duty to consult the highest interest of the state. Many gentlemen, who, with upright intentions, support the proposed plan under the expectation of obtaining a cheaper and more expeditious administration of justice, will, I fear, find themselves much mistaken. It appears to me that the full extent of the alteration in our judiciary system, which the adoption of the plan will produce, is not duly considered. There is more in it than at first view meets the eye. It proposes to divide the state into districts, and for each district a judge is to be appointed, who is to reside within the district after his appointment. I have no doubt the intention of the framer of the proposition is, to create district courts, possessing original jurisdiction in law and equity. This I understand to be the import of the second section. These judges, therefore, are not to be created merely to hold circuits for the trial of issues joined in the supreme court, and to preside in courts of oyer and terminer. These powers it is true, the legislature may confer upon them, as incidental to their other powers; but I believe the great object of the proposed plan to be the erection of a new species ofcourts, with general jurisdiction in law and equity within the districts. Although this prominent feature of the plan has not been spoken of,

I am persuaded the honourable gentleman who introduced the proposition, will admit, that such is his intention; and that it will be competent for the legislature to give original jurisdiction to these district judges, cannot, I think, be well doubted.

Assuming this to be the fair construction of the proposition, I proceed to point out my objections to it. And first, it is a bold innovation upon our system. Nothing like it has hitherto existed in the state. I am aware that other states have tried it, but what has been the result of the experiment? A number of years ago circuit courts of common pleas were established in Massachusetts; they had all the usual character of district courts. The state was divided into several districts, and three judges appointed in each, to hold circuit courts of common pleas in each county in their districts. Appeals lay from those courts to the supreme court. Judges of respectable character were appointed, and the organization was continued for many years. I am not sufficiently acquainted with the history of those courts to enumerate the defects which were discovered in the system, but the result has been, that those courts have lately been abolished, and a new court of general jurisdiction over the state substituted in their place. In Pennsylvania, a president of the court of common pleas presides in the several county courts of the district for which he is appointed. The judges of the supreme court, however, are not confined to the decision of questions of law, as is proposed by the plan under consideration, but hold circuits for the trial of causes in the different counties. In Maryland the system of districts or circuit courts is adopted under a different modification. The state is divided into six districts; a chief judge and two associate judges in each district, compose the circuit court for the respective districts. These courts possess original jurisdiction, subject to an appeal to the court of appeals, which consists of the chief judges of the circuit courts. In this respect it appears to me the Maryland system is better than the plan under consideration. The chief judges composing the court of appeals, are probably judges of higher grade than those who are confined to local courts; and they certainly must acquire greater experience by sitting as a court of appeals, than could be gained by mere district judges. But even with this advantage in the peculiar organization of their courts, I may be allowed to doubt whether the Maryland system has been found to be as good as our own. I have understood from professional gentlemen residing in that state, that the law's delay is much complained of. The trials in the district courts scarcely ever terminate the cause. It is almost a matter of course to take up the causes to the court of appeals, generally by bills of exception, and very often after a year's delay, the suit is remanded for a new trial.

The system of district courts possessing law and equity powers, has beep adopted in several of the western states, but so recently as not to sanction our adoption of it on the ground of successful experiment.

But whence the necessity of our adopting a new system of judicature? What are the defects complained of in our system? Besides our court of chancery, we have a supreme court, whose decisions have usually commanded the confidence of the citizens and the respect of our neighbours. Our circuit courts are well calculated for the trial of questions of fact; and the county courts are susceptible of much improvement, and may be made adequate to the adminis tration of justice in local causes of limited amount. Is it not safer to renovate and improve our old system, than to hazard the introduction of a new and untried one? The time has been, when much of the litigation of the state was carried on in the county courts. Unfortunately, however, the fluctuations of party produced such frequent changes of the judges as to bring those courts into disrepute. It became so much a matter of course to displace the judges upon each change of party, that a seat on the bench was not desired by those who were best qualified to fill it. Hereafter, it is to be hoped, this evil will be remedied; a more stable tenure is to be secured to the county judges, and if care is used by the appointing power in making selections for the bench, these courts may be restored to their former consequence.

With respect to the supreme court, I believe no complaints were made until within a few years. Since my acquaintance with the proceedings of that court,

it was able to clear the calendar at its terms, and the causes which were ready for trial were almost always disposed of at the circuit.

For several years past, it is true, the five judges have not been always able to despatch the business of the bench, and of the circuits. This, I apprehend, has not been owing to the great increase of business so much as to other causes. Counties have been multiplied, and many more circuits are requisite to be held than formerly. The connexion of the judges of the supreme court with the legislature, as members of the council of revision, has occupied a large portion of their time. They are about to be released from this duty, and will therefore be able to devote two or three months more to their judicial duties. I think it not improbable that this alteration in our constitution would of itself remedy the evil complained of. But certainly the addition of a single judge, as proposed by the honourable member from Westchester (Mr. Munro) or the appointment of a circuit judge, as proposed by the chief justice, would amply provide for all the exigencies of the case, without disturbing the order of our system.

And in regard to expense, such a provision would be much preferable to the adoption of the plan under consideration. That plan contemplates the appointment of eight district judges, and it must be presumed, that the advocates of it will desire to place men of some distinction in their courts. To secure the acceptance of the office by such men, competent salaries must be provided. The salaries of these eight judges, with those of the three judges of the supreme court, will necessarily increase the expense much beyond that of the existing system. And is it not to be apprehended, that whilst the proposed plan will be much more expensive than the old system, it will not be as acceptable to the people? It appears to me that gentlemen aim at impossibilities. They wish to bring justice nearer home, to make it cheaper, and to have courts which shall have a more homely appearance, and yet possess equal intelligence, and command equal confidence. Why have the county courts been deserted by suitors? Certainly because the judges were not men of as much capacity and independence as the judges of the supreme court. Because he who was judge to-day might be displaced to-morrow.

These local courts have, therefore, gradually lost their consequence, and all business of importance is done in the supreme court. The attempt is now to be made to call suitors back; not indeed to the county courts, but to new local tribunals. But will these courts probably be as respectable, and acquire the confidence of the community, as much as the supreme court? The very circumstance of their being local courts, limited in jurisdiction, as it regards territory, will at once give them the character of inferior subordinate courts. Perhaps, in some instances, men of competent talents will be induced to accept the office of district judge; but it is to be feared this will not always, per haps not generally, be the case.

Is the residence of the judge within the district of any advantage? Too often the feelings of neighbourhood and intimacy will be apt to influence him; nor will his residence in one part of the district, tend much to promote the convenience of the inhabitants of the whole district; nor are the avocations of the district judges calculated to improve their capacity for administering justice in a very high degree. It will be a principal part of their duty to try questions of fact. These must necessarily be conducted with despatch. The crowd of suitors, witnesses, and jurors, pressing on the court, leaves no time for deliberate discussions of questions of law. Such questions must be hastily decided, and the remedy against a wrong decision must be sought in the supreme court. The judge, whose principal employment is that of presiding at trials by jury, may acquire habits of despatch, considerable acuteness in analysing testimony, and an acquaintance with the rules of evidence; beyond this not much can be expected. He can make but small advances in legal learning, and his decisions on intricate questions of law, must be crude and unsatisfactory. And is it not to be feared, on the other hand, that the change proposed by the plan under discussion, will equally affect the character and reputation of the supreme court? The judges of that court will be confined to the bench to hear appeal and decide questions of law; lawyers alone will frequent the court. The habits

of promptness acquired by holding circuit courts will be lost; and although they may acquire a more profound knowledge of the principles and cases, they will probably have less acuteness, and certainly less mental activity. The experience of ages has demonstrated that the most accurate and accomplished judges have been formed under that system which combines the trial by jury at the circuit, with the decision of questions of law in bench by the same judges. This system, pruned of some excrescences, was brought by our ancestors from the land of their forefathers. There it had been reared and perfected by able and upright judges. It grew up with the exigencies of the people of England. And let us not reject it because it is of British origin. With as much reason might we change our language. If any thing is to be admired in the institutions of England, it is its jurisprudence. That bulwark of freedom, the jury trial, is derived from England.

If we adopt the proposed plan, we shut up our supreme court from public view. Lawyers alone will see it. The names of the judges will scarcely be heard of beyond the hall in which it holds its terms; and it is to be feared that public confidence will desert it. The district judges, whose decisions come under its review, will not be very much disposed to reverence it. Having no connexion with the supreme court-perhaps no personal acquaintance with the judges-a frequent reversal of the decisions of the district courts by the supreme court, will be much more likely to produce hostility than respect. It is among the manifest advantages of the system which we have enjoyed, that the judge who has tried the cause at the circuit, sits with his brethren on the review of his own decision. Habits of candour and liberal scrutiny of the decisions of each other, are by this means produced, and if mistakes have been made in the statement of the proceedings which took place at the trial, the judge who held the circuit is present to correct them. And although it is not proper that judges who have deliberately settled questions of law, should sit on the review of their own decisions in a court of last resort, we are authorized by our own experience, and by the history of the English courts, to assert that the decisions made by a judge, in the progress of a trial at the circuit, do not disqualify him from sitting with his brethren on the re-examination of the questions on deliberate argument at the term.

I am strongly opposed to changing our system of administering justice, by the consideration of the high comparative reputation which our courts have long enjoyed in this country. Many gentlemen in this Convention know, that the decisions of our courts have long been held in the highest respect in the other states. I believe I hazard nothing in saying that the character of our courts has been as high as that of any state in the union. And may I not add, that the people of this state, during almost the whole time which has elapsed since the adoption of our constitution, have had as much confidence in the decisions of their highest courts, and have been as well satisfied with the adminis tration of justice, as the people of any other state? If the excellence of our system is acknowledged abroad, and if it has generally inspired confidence at home, why are we called on to change it for another, which has not, in any state where it has been adopted, proved to be better than our own? And in some respects, our system evidently possesses a decided superiority over the one proposed to be substituted. The excellence of our plan of administering justice, arises, in the first place, from the separation of our courts of law and equity. In a former discussion, the excellence of this part of our plan was made so manifest, that the Convention, by a most decisive vote, rejected the project of uniting the two branches of jurisprudence in the same court.

Nor does the plan under consideration propose to destroy this feature in our system in the highest courts. The next trait of excellence in our system, is the one to which I have already adverted-that of employing the same judges to try issues of fact at the circuit, and to decide questions of law on the bench. It is by this means that the unity of our system and a uniformity of proceedings in all parts of the state, is preserved.

Every part of the state, by means of the rotation in holding circuits among he judges, enjoys, in turn, the talents of every member of the court; and the united decisions of the same judges in term, ensures to every part of the stafe