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 ap pointment 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 pres imed, 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, perhaps 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 appeals 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 ccisions of their highest courts, and have been as well satisfied with the administration 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 amon the judges, enjoys, in turn, the talents of every member of the court; ar united decisions of the same judges in term, ensures to every part of

uniform rules of law and of legal proceedings, whilst the certain effect of discharging their various duties, is to increase the experience and improve the capacity of the judges. These advantages, I apprehend, will in a great measure be lost, if the proposed plan should be adopted; and I much fear that our tribunals of justice would sink in character and usefulness. By confining the jurisdiction of a judge within narrow limits, the idea of inferiority is produced, although it may not exist in fact. District judges, it is to be feared, will often be men of less capacity than many members of the bar-I presume this will be so, because I do not believe the legislature will be disposed to give to such a number of judges a salary sufficient to induce men of the first standing at the bar to accept the office; and whenever the counsel are greatly superior to the court, the confidence of suitors, and of the citizens in general, in the courts, will be impaired. The suspicion of weakness in a court, has almost as bad an effect as a suspicion of its integrity.

Skilful lawyers will acquire an undue influence with the court; and the people, jealous of their rights, will become dissatisfied. My anticipations may not be realized, but I have deemed it to be my duty to comply with the call of my friend from Washington, (Mr. Wheeler,) in stating my objections to the proposed plan.

MR. N. SANFORD was in favour of leaving to the legislature the establishment of such courts of law and equity, as the exigencies of the state might from time to time require. He was opposed to any definite and limited provision in the constitution, with regard to the judiciary, since there might be great and important changes in the state, which we could not now foresee, and which might render any system we might adopt, inconvenient. He was therefore in favour of adopting some general clause, and leave the rest to the legislature. He declared his opinion to be against abolishing the supreme court and the court of chancery.

MR. MUNRO approved of most of the remarks of the gentleman from NewYork, (Mr. Sanford.) He agreed with him in the opinion, that it would be inexpedient to abolish the court of chancery or the supreme court. But in other points he must dissent from that honourable gentleman. In his view it was important to establish, so far as is practicable, the judiciary system on the firm basis of constitutional provision. He again discussed the proposition of the select committee, for a division of the courts, which now exist, and for the appointment of additional judges, from time to time, as the exigencies of the state might require. Mr. M. concluded with offering the following amendment to the first section of Mr. Carpenter's substitute.

"The supreme court may be divided by law, into so many classes or divisions the due and convenient administration of justice throughout this state shall from time to time require, and each of those classes or divisions shall hold terms in each year, at such times and places as may be by law directed."

After some discussion whether the amendment was in order, it was finally decided by the chair, that it was in order, when

COL. YOUNG remarked, that the plan proposed by the gentleman from Tioga, (Mr. Carpenter,) was nearly the same as had been suggested by the honourable chief justice, and which it appeared had been the result of much reflection by himself, and his associates on the bench of the supreme court. The only material difference in the two, was, that the latter would provide for the continuance of the present number of judges upon the bench, in addition to a number of circuit judges. whilst the former would reduce their number to three. Have we not been told by the honourable chancellor, that a small number is better adapted to the discharge of this duty than a large one-that the equity business of this state can be better determined by oue, than a number of individuals? If one man can determine upon all the important questions in equity, cannot three do the business at common law ?

It has been suggested by the honourable chief justice, that this proposition, if adopted, would effect the removal of the present incumbents: this is not the case, it would subject them to a re-appointment, and they would certainly have

a fair prospect, as there will be a number of circuit judges to be appointed, which will open a field for men of talent and experience.

Mr. Y. was a little surprised at the discovery made by the gentleman from Rensselaer, (Mr. Buel,) that this would give original jurisdiction in these circuit courts. It was certainly an idea that had escaped the apprehension of the chief justice and chancellor, and all the other lawyers in the Convention. This was not the intent or meaning of the proposition, and that it even gives the power to the legislature, of hereafter vesting them with original jurisdiction, he likewise denied.-The language of the proposition is, "and who shall possess the powers of a justice of the supreme court at chambers, and in the trial of issues joined in the supreme court, and preside in courts of oyer and terminer and general gaol delivery." Now can these circuit judges create themselves, or can the legislature create them into courts of original jurisdiction? If they can, then there must be provisions made for a clerk and clerk's office in each district; but the contrary is the fact, it prohibits the legislature from even vesting them with original jurisdiction.

It has been said that these supreme judges are to be shut up, and confined to hearing arguments and deciding upon dry law points, which will be unplea-, sant and lead to bad results. There is nothing in this provision which will prohibit them from riding circuits as much as is convenient or profitable; and from the present anxiety to secure the most economical plan, we may very rationally conclude, that the legislature will be pleased with their doing a pretty good share of that duty. The proposition of the gentleman from Albany, (Chief Justice Spencer) permits the legislature to give the same tenure of office as the supreme judges have; and to extend to them other powers, in addition to that of being ex officio members of the court for the trial of impeachinents and correction of errors.

Mr. Y. was not disposed to disturb the present organization of the court of errors; he did not believe it would be improved by adding a number more of judges, and indeed, he believed there had not been much complaint of the decisions in that court, and they had been as much respected in other states as The gentleman from Westchester, the decisions of any other court of errors. (Mr. Munro) had conceived that there would be a great incongruity in the idea, that the same man can administer law and equity; but the chancellor of the state, who has had many years experience in both branches of our judiciary, does not imagine that there is any incongruity in it. It was a little singular that this gentleman should entertain such an opinion, when he stands at the head of the profession in both departments, and would do honour to the bench in either. If he can practise with skill in both courts, why not discharge the duties of the bench in both? Would this gentleman, if called on by a client to answer a question in equity, answer him that he practised in common law, and could not decide an equity question? Is it not a fact, that those gentlemen who are the most eminent in the one, are also eminent in the other? How did it happen, that our present chancellor, who had been on the bench of the supreme court about ten years, was able to make such decisions in chancery, that not one of his decisions was reversed for more than four years after his appointment to that office? If there is so great an incompatibility in this plan, how has it happened that the present chancellor was able to make such correct decisions at first? The fact is, that there is no incompatibility in it.

These district judges ought to be clothed with equity powers, in order that equity as well as law may be sent to the people, without the delay and expense of coming to the city of Albany for it. At present, nearly half the inhabitants in the state are west of Utica; and is there any propriety in their having to come to the seat of government for equity? A central court of law and equity may be beneficial to central lawyers; but they are not very convenient or profitable to the profession, or people, in the remote parts of the state. Instead of bringing all the emoluments and paraphernalia of the courts to the capital, they might be distributed in the country to procure a share of the law and equity which have been heretofore so snugly husbanded in the cities of Albany and New-York. Mr. Y. thought there would be no difficulty in the adoption of

the plan proposed by the gentleman from Tioga, and he should therefore give it his support.

MR. N. WILLIAMS considered the system proposed by the gentleman from Tioga, then under consideration, as substantially his own. He had advocated it in the judicial committee, and afterwards in a special committee, and had then submitted it to the Convention. Of course he would now adopt it with some modifications. It had all the advantages of the present system, and would afford, if adopted, those necessary aids, to enable the supreme court to perform all its duties. The fact, he said, seemed to be admitted, and could not be denied, that from the great accumulation of business in the supreme court, and the labour of the circuits in fifty-two counties, it was impossible for the judges of that court to accomplish the business which devolved upon them. The only question was, what should be the relief?

He then entered into a minute examination of the various objections which had been urged against this plan of the circuit judges, particularly by the honourable gentleman from Rensselaer, (Mr. Buel.) That gentleman seemed to suppose that it would cause the supreme court judges to degenerate in point of talents. How this could be brought about, Mr. W. said he could not see. The judges would have more time to deliberate and make up their judgments; and they would have the same learned bar to aid them in their investigations; and much of their ability, at home and abroad, it ought to be acknowledged, was to be attributed to the labours of the profession. But according to the same honourable gentleman, these judges of the circuits will never be men of sufficient capacity to render them respectable. Why they should not was inconceivable. They will have the same learned lawyers, and the same books, to give them aid; and it is presumable they will have equal industry with the judges of the supreme court. It is true, they will not hear arguments at bar; but they will read the decisions of the supreme court, and will have to decide upon most of the questions that are carried into that court for argument. He could not bat dissent from the opinion offered by the same gentleman, that there was an advantage in having judges of the same bench adjudicate upon the circuit decisions of their brethren, believing, as he did, that judges were sometimes tenacious of their opinions, and that those opinions had better be reviewed by a tribunal pure from partiality or prejudice. He stated, that in England the circuit system had been in operation for ages; but it was defective in taking the judges of the circuits, called commissioners, from the bar, and for a single circuit only. There is no lawyer of considerable practice, who, in holding courts occasionally, will not be called on to decide questions in which he is interested; whereas, by the present plan we shall have judges who will have no other business to interest them or divert their attention.

Mr. W. thought the plan of the honourable gentleman from Westchester objectionable on many grounds. He had from the beginning, been opposed to the division of the supreme court. It would divide the bar, which is now highly respectable, and render it less so. On this plan, there would be hereafter a city bar, and a country bar, and they would, probably, never come together to interchange sentiments and arguments. Besides this division of the judges, for the purpose of holding courts separately, would introduce confusion in business, and destroy the unity and beauty of the judiciary system.

After urging more at large his reasons for preferring the circuit system to any other, he proceeded to observe that there were some defects in the propositions on the table, that he wished to see amended. He thought these circuit judges ought to have a seat in the court of errors, and that civil causes brought from justices' courts by certiorari ought to be heard, and decided finally, by them. This latter provision would give to the country lawyers a very great advantage. They would have an opportunity of arguing questions of law in their own counties, and before a court that would have leisure to hear an argument even upon a certiorari.

But the most serious objection to these propositions was, that by the first section the judges of the supreme court were to be reduced immediately to the number of three. In the first place, he would prefer four to three. There ought never to be less than three on the bench, and one might be occasionally