NOTE.—In four of the districts, the deficiency of numbers amounts to 15,269. In four others, the overplus of numbers amounts to 14,209.

The white inhabitants of the state (excluding aliens) are 1,517,632—dividing this number by 32, (the number of senators,) gives 41,176, as the requisite number for the election of one senator. A district entitled to choose four senators, must therefore contain, as nearly as may be, 164,705 inhabitants.

A small inaccuracy in the number of the inhabitants of this state, will arise by the addition of persons of colour, who are freeholders, and the exclusion of pau. pers and convicts."

On motion of Mr. KING, the report was referred to a committee of the whole, and the usual number of copies ordered to be printed.、

MR. YATES offered the following resolution:

Resolved, That a committee be appointed to arrange that part of the constitu. tion which has been acted on, or may hereafter be acted on, and to report the same to this convention, and that the said committee consist of members.

His object was to save time. The committee might now be employed in digesting those amendments, which had passed in committee of the whole.

The resolution was opposed by Messrs. Radcliff and Fairlie, upon the ground that nothing definite had yet been fixed.

On motion of Col. YOUNG, the resolution was ordered to lie on the table.

THE JUDICIAL DEPARTMENT.

On motion of Mr. RADCLIFF, the Convention then resolved itself into a com mittee of the whole, on the judicial department. Mr. Fairlie in the chair. The report of the committee was read by the secretary.

MR. MUNRO begged the indulgence of the committee, while he stated, as briefly as possible, the principles and views by which the select committee were governed in making their report. That committee were aware of the magnitude of the subject assigned to them, and although they had endeavoured to discharge the important duties which devolved upon them, they were not insensible of the imperfection of the result of their labours. It might, however, be proper to state, that the committee were unanimous in the report, with the exception of one member, the gentleman from Washington, (Mr. Wheeler.} The general principle upon which the committee had proceeded, was to recommend as few radical alterations in our judicial system as possible, deeming it imprudent and unsafe to give up what had been tried by a long experience, for hazardous innovations and experiments.

They had considered it wise and prudent to preserve, as entire as possible, the present judiciary system; but they were aware that the chancery system had increased so much, that it was out of the power of almost any man to attend to it. Perhaps no man in the state, except the present chancellor, could do the duties of that office at the present time. It has been with the most rigorous exertion and indefatigable labour, that he has continued to preserve the usefulness and character of that court. He has reduced it to a system which does honour to the state and to himself; but it has now arrived at a period in

business, which renders it almost impossible for him longer to discharge its arduous labours. The business is still rapidly increasing. The following is a statement from the honourable the chancellor, respecting the amount of business done in that court:

"In 1821, there have been two terms held, one in Albany, and one in NewYork. The one had one hundred and thirty-seven, and the other had one hundred and twenty-eight, causes set down for hearing, making two hundred and sixty-five causes, for two out of four terms in the year. There are a considerable number of cases submitted upon pleadings and proofs in vacation, and probably for the present year, there will be four hundred causes in chancery brought upon the merits. All that have been hitherto brought to a hearing or submitted, are decided. There is no cause ready for hearing that has not been heard and decided."

"In 1820, there were in the two terms in New-York, three hundred and ninety causes set down for hearing on merits, and disposed of-say one hundred and ten more in the said terms in Albany and in the vacation, making five hundred causes that year.

"1819, there were two hundred and twenty-four causes at the two NewYork terms set down for hearing.

"In 1817, there were, in the two New-York terms only, set down for hearing, two hundred and eighty causes.

In 1814, there were in these two terms in New-York only one hundred and twenty-three.

"The business of the court appears to be in a state of rapid increase, and the solicitors and counsellors of the chancery bar are multiplying very fast. Chancery business, or what may arise on special motions weekly, is also greatly increasing; and, in my humble opinion, the chancellor will very soon require relief. by one or more persons to the south and west, to do what may be considered as the special or non-enumerated business of the court, and also its incidental business, as cases of infants, and sales of their real estates, and lunacy, drunkenness, injunctions, disclosures, &c. Such business is pouring in daily, upon the chancellor, and ever since the first of last December, he has been incessantly and laboriously occupied to keep down and despatch the business of the term, and of the special and multiplied matter."

From a knowledge possessed by the members of the select committee, together with this statement from the Chancellor, it was deemed necessary to provide in some measure for the future discharge of the duties of that office, other than by an individual. They concluded that to establish the office of vice Chancellor in or near the city of New-York, and leave it in the power of the legislature to establish, whenever it shall be deemed necessary, one or more vice chancellors in the western part of the state, would be putting that court in a situation where it might stand.

The committee were of the opinion, that it was impossible to establish any competent system without some additional expense; and as this plan could be adopted without any very great expense, they thought best to engraft it into the original stalk, which was planted in this state at a very early day, and had continued to grow and flourish till the present time.

The business in the supreme court has become so extensive, that it is not in the power of the judges to discharge it. In the city of New-York, not more than one third of the causes are usually tried. One half or two-thirds of the business is necessarily passed over. To remedy this, the committee have thought proper to recommend the establishment of a supreme court of common pleas, to consist of a chief justice and three assistant justices; which, together with all the judges of the supreme court, making eight in all, would be competent to discharge all the business at the circuits. This would make an increase of only three beyond the present number, and, according to the present salaries given, would add to the expenditure but nine thousand dollars per annum, which he thought would be amply repaid to the state by the important benefits it would confer.

The next court that the committee had recommended to be altered, was the court of common pleas. We purpose to take from the surrogates the powers

now given to them, and repose it in the county courts. By a communication he had received from the surrogate's office in the city of New-York, it appeared that at one term there were one hundred and twenty-seven causes, and in the other one hundred and twenty-eight, set down for argument. They had not obtained very ample information from the country, but it was pretty evident, that a reform was necessary; and the committee, without a pertinacious adherence to their own system, had adopted the course they thought most expedient for the public good.

GEN. ROOT announced his intention to offer an amendment to the first section. His objections to the report were, that it went too much into detail. General principles should be adopted, and the rest left to the discretion and regulation of the legislature. As some gentlemen appeared to be averse to engrafting on substitutes, he would preserve a part of the section as reported, as the original trunk on which amendments might be engrafted. He therefore proposed to strike out all that part of the first section which follows the word "vested," and insert the following;

"In a court for the trial of impeachments and the correction of errors, to consist of the president of the senate, and the senators; in a supreme court, to consist of a chief justice, and not more than four, nor less than two, associate justices; in circuit courts, and courts of common pleas, and in justices of the peace, and in such other courts, subordinate to the supreme court, as the legislature may from time to time establish. The state shall be divided into a convenient number of districts, subject to alteration, as the public good may require; and for each, a circuit judge shall be appointed: He shall have the same powers as a judge of the supreme court, at his chambers: He shall have the power to try issues, joined in the supreme court; to preside in courts of oyer and terminer and jail deliv ery; and, if required by law, to preside in courts of common pleas and general sessions of the peace. The supreme court, shall have jurisdiction, in all cases, in law and equity; and the legislature may, in their discretion, vest chancery powers in other courts of subordinate jurisdiction: Provided however, That the court of chancery, as at present organized, shall continue, until the legislature shall otherwise direct."

MR. I. SUTHERLAND wished the proposition might be first taken on striking out, as that would test the sense of the house on the abolition of the court of chancery and the supreme court.

MR. MUNRO spoke against the amendment. It was complex, and had a bearing upon all the subsequent parts of the report. It could not be called an amendment to the first section, since it embraced distinct propositions, which, if adopted, must virtually annul the other provisions recommended by the com

mittee.

MR. I. SUTHERLAND proposed to divide the substitute, and first take the question on strking out, or abolishing the court of chancery.

COL. YOUNG rose and commenced speaking in favour of the amendment, when he was called to order by the gentleman from Otsego (Mr. Van Buren.)

GEN. ROOT contended, that the gentleman from Saratoga (Mr. Young) was in order; and the question was referred to the chairman, who decided that the gentleman on the floor was in order, and might proceed.

COL. YOUNG did not understand that the gentleman from Delaware was disposed to abolish the supreme court. The court of chancery he would be willing to leave for the legislature to determine upon, and if they see fit it might be put into the hands of the supreme court; although he was confident the duties of the court of chancery were never more faithfully, nor more ably discharged than at the present time.

With respect to the appointment of vice-chancellors, he was opposed to it. He did not believe the business of this state would even require two courts of equal jurisdiction in civil affairs. In Great Britain they have the court of King's Bench, and the Court of Common Pleas, and these courts do the business of that country. When we consider the business that must necessarily be done in that country, with all its internal and external commerce, and that it is done

by these two courts, we may naturally conclude that the business of this state will never be so great as to require more than the courts which we have now established.

Should we institute two courts of equal jurisdiction, the one which should be considered the best in public estimation would get all the business, and the other would be a bill of expense without any benefit. It being once fixed in the constitution, we could not get rid of it, however useless it might be.

He would have the state divided into districts, and in each district have a circuit judge, from whose court an appeal might be made to the supreme court of the state. It has been said, that the court of chancery was established on the first settlement of the country. This was a mistake-the state was first settled by the Dutch, who did not establish a court of chancery. At the time when the court was established, the inhabitants of the colony all resided in that part now composing the southern and middle districts of the state. The contiguity of the inhabitants rendered it convenient to hold the courts in one place; but now they are scattered over this extensive state, so that it is extremely inconvenient and expensive. If a man in Cattaraugus has occasion to commence a suit in chancery, he must come to Albany or New-York to employ counsel; for as all the business is done in these places, the country lawyers are not sufficiently skilled in the business to manage a cause to advantage. Mr. Y. was anxious that equity as well as law should be carried into every county in the state, and by the amendment of the gentleman from Delaware, it would be effected. This plan had been tried with success in smaller states than this, and he presumed it would be found beneficial in this state.

With a trifling amendment, he should be in favour of the proposition of the gentleman from Delaware; notwithstanding, the select committee who reported on that subject, were entitled to the thanks of the Convention for their industry and research. Their report, however, he considered too complicatedit was more so than any judicial system in the Union; and it was long enough for a constitution itself. The report descends too much into details; and we are told that it will be best to build upon that report, when one great objection is, that it is too long already.

He was willing to leave the legislature to exercise some discretion on this subject, and if they see fit, he would be willing to have the power given to the other courts. Objections would probably be raised to this plan, but it was the plan of the general government of the United States. In this state, the decisions in chancery are sometimes reviewed by the judges of our supreme court in the court of errors. A person who is capable of judging in the supreme court, is capable of judging in equity. Our present chancellor was taken from the bench of the supreme court, and has he not given perfect satisfaction? No complaint has ever been made as to his faithful discharge of duty; but let the power be given to the other courts, and then equity as well as law may be carried home to the doors of the people in every county in the state. He hoped the amendment would prevail.

MR. RADCLIFF observed, that the committee undoubtedly deserved great credit for their industry and patient investigation; and his objection to the result of their labours, was, that they had done too much, and rendered their report too complicated. He pointed out some radical defects, which, in his opinion, existed in our present judicial system; one of which was, the union of the judiciary with the legislative department in the court of errors. He was for having them kept perfectly distinct, and for excluding from the court of errors the chancellor and the judges of the supreme court. With regard to the court of chancery, he was opposed to any provision in the constitution, either for its establishment or abolition. We ought not to tie up the hands of the legislature on this subject, but leave it discretionary with that department to retain or abolish it. There were many arguments in favour of abolishing the court of chancery, although he would wish to see chancery powers lodged somewhere. In Great-Britan, the chancery court was an immense power, wielded by the king; and in this country it was enormous, and unlike any thing else in our government and insitutions. It was inexpedient that such powers should be lodged in any individual, whatever might be his talents and integri

ty. Mr. R. explained the constitution of the several states, in regard to the regulation of chancery powers. The constitution of the United States was an example of blending the administration of law and chancery powers in the same tribunal. That example had been followed by Maine, New-Hampshire, Massachusetts, Connecticut, Vermont, Pennsylvania, Georgia, Louisiana, Kentuc ky, Ohio, Tennessee, Mississippi, Indiana, and Illinois. In some of these, particularly in New-Hampshire, the special designation of these powers was referred to the legislature; in the others, chancery and law powers were blended. In New-Jersey, Delaware, Maryland, North Carolina, and South-Carolina, those powers were exercised by different bodies, and in Virginia they had judges of the court of chancery. The states that have separated these powers, are usually those whose constitutions were formed at an early period, and who borrowed their ideas of jurisprudence from England.

MR. WHEATON said, that having had the honour of being a member of the select committee on this part of the constitution, he would take the liberty of stating the reasons why the report had necessarily run into a length of detail, which to some gentlemen had appeared inconvenient and improper. If there was any subject in which a free people had a deep interest, it was the administration of justice. The judiciary was to be considered as one of the co-ordinate departments of the government. It was to be independent of them, as they were independent of each other. But if the discretion of creating courts was to be reposed in the legislature, either entirely or partially, to the same degree, the judicial must inevitably be made dependent on the legislative department. Such had been the practical construction put on the constitution of the United States. By the terms of that constitution, the judicial power of the Union is vested in a supreme court, and in such inferiour courts as the Congress may ordain and establish. What had been the consequence under that government? Formerly, as now, the judges of the supreme court, uniting with the district judges in the different states, constituted the circuit court of the Union. In 1800, it was thought expedient by Congress to confine the judges of the supreme court to their constitutional duties as an appellate tribunal. Soon afterwards a change of administration took place; the law establishing these district courts was repealed; and the judges legislated out of office, in apparent violation of the constitution, which declared that all the judges should hold their offices during good behaviour. He was then too young to be capable of forming any opinion on the question whether the judges could be thus deprived of their offices, although there was much to be said on both sides of the controversy. But all would agree, that in framing the amendments which we were about to add to our venerable constitution, it was desirable to avoid such a question, and to put the judicial department beyond the control of the legis lative in this respect. How else could we avoid continual fluctuations in the organization of our courts? He who can create, can destroy: and if it was to be left to the legislature to establish any tribunals of law and equity, even if they were inferior to the supreme court, the judiciary would be the mere creature and instrument of the legislature and executive.

According to the amendment proposed by the gentleman from Delaware, the jurisdiction even of the supreme court, was left undefined, and consequently the whole matter was delivered over to legislative discretion.

His colleague from New-York (Mr. Radcliff,) had scruples about going quite so far as the gentleman from Delaware, and would not shut the doors of the court of errors against the chancellor and judges, but would compel them to attend in order to be examined upon such questions of law as might arise. His colleague had stated the house of lords in England as an example of such an arrangement. But every man who reads the reports of the cases determined in parliament, knew that in point of fact the lay lords seldom or never attended the house when it was transacting judicial business. The law lords, (as they were called,) including the lord chancellor, the chief justice of the king's bench, who was generally a peer, and certain ex-chancellors of Great Britain or Ireland, together with the judges in practice, constituted the tribunal of the last resort in that country. So that an imitation of this institution would produce a court of errors precisely opposite in its composition from that which his colleague seemed to think desirable.