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either in the matter or the mode of illustrating it, they are at least recommended by a certain frank and unaffected enthusiasm, which cannot fail to interest the reader. He discourses successively on the physical, the literary, the civil, and the religious advantages of this country, but dwells longest, as might naturally be expected, on the latter.
We must confess, that it would be somewhat natural for a zealous member of the Episcopal Church of the United States, especially if he were one of its clergy, when he contemplates the splendid and imposing establishment of the Church of England—that ancient church of which his own is but an offset, interwoven as it is with the political fabric of that country, drawing a permanent and indefeasible revenue from nearly all the estates in the kingdom, and beholding its bishops elevated to a seat in the senate, and a place among the proud aristocracy of the nation—it would, we say, be somewhat natural, that on first thoughts he should be dazzled by these apparent advantages. It would not be extraordinary, that he should regret the force of circumstances which prevent his own church from receiving a similar patronage from the civil authority, and that he should look forward with some impatience to the period when it might become here as the Church of England is there, “part and parcel of the law of the land.” It requires some sagacity and reflection, and some fairness of mind in such a man, to look behind the supposed benefits of such an alliance between church and state, to its real evils and dangers. These, as exemplified in the case of England, are well shown in the discourse before us; and the personal observation of the writer gives an additional strength to his reasonings. It is gratifying to see such liberal sentiments on this subject, inculcated by one from whom they must come with so much effect. No citizen of the United States, we venture to say, whatever may be the religious denomination to which he belongs, and whatever may be the degree of his sympathy with the zeal expressed by the author for the interests of his church, will rise from the perusal of this discourse, without feeling an increase of attachment to the free and fortunate institutions of our country.
Art. XVI. (1.)— Report of the Chancellor, Judges of the Su
preme Court, and Judges of the several Circuit Courts in this State, made to the Senate, in conformity with a Resolution of April, 1825, “ Requesting them to Report at their next Annual Session, whai alterations, if any, in their opinion, are necessary in the Constitution or Laws of this State, to improve
the Judiciary System.” (2.)---Report of a Committee appointed at a Meeting of the Mem
bers of the Bar, held at the City-Hall, on the 10th day of May, 1825, to take into Consideration the Subject of the Delay in the present Administration of Justice in the Superior Courts of Law and Equity in the State of New-York.
The present constitution of this state was adopted in the year 1822, and already various propositions to amend and alter that instrument have been submitted to the consideration of the people, for whose benefit it was formed. We have never doubted-indeed, it would be doing little justice to the talents and patriotism of the many able men who sat in the late convention, to suppose, that some most beneficial changes have not been made in our political organization; but there are also facts to show, that to innovate is not always to reform, and that other changes have at least been wrought, which by no means justify the confident predictions of their advocates, or the laboured eulogiums of prejudiced and short-sighted admirers. It is not for us to review the labours of statesmen engaged in the noble, the sublime work of acting as the delegates of freemen, and forming a constitution which should provide for the liberty, the security and happiness, of those freemen and their posterity. But we may be allowed, we trust, with all deference to superior learning and intellect, to speak of the results of experience, and show how far the facts which now present themselves, bear out the conclusions, which any part of this new constitution may embody. We shall proceed, therefore, with all that freedom and frankness which it becomes us to exercise in examining any thing regarding the good of the community, to make some observations on the subjects which are alluded to in these reports. We beg leave also to say, to those who favour us with a perusal, that in any general remarks we may make, we intend no personal allusion to any individual; if any one fancy that he has discovered a peculiar application in these pages, it is a homage paid to truth, with which we shall be rather flattered than displeased.
The great accumulation of business in the courts of law and
equity, has been a matter of complaint for some time past, and has not only attracted the attention of the bar, but of the public at large, and the legislature of this state. It is admitted on all hands, that the slow progress of our courts in the determination of issues, whether of law or fact, amounts to an absolute grievance-a virtual denial of justice, which calls loudly and most imperatively for a prompt and efficient remedy. In a country like ours, which is emphatically one of law-where property of every sort is alienated with a degree of ease and facility, which lends unexampled activity to all the complicated concerns of the most extensive commerce--where the vast operations of trade every day present new questions, and the excitement of rival interests and passions, new cases, for adjudication; it was not to be expected, that this ominous state of things could continue long, without leading to an equally certain but deplorable crisis. Accordingly, the bar, both at Albany and New-York, have held meetings, and the Senate passed a resolution requesting the views of the Chancellor, Judges of the Supreme Court, and Circuit Judges, on this important topic. But before we proceed farther, let us trace the progress of these difficulties in the proper and prompt administration of justice.
It was naturally to be supposed, that the judicial department of government would claim a large share of the attention of the convention of 1821, and it undoubtedly was not slighted by any negleet of this description. It is on the purity, the firmness, the learning of the judiciary, that a free people mainly depend for the enjoyment of their public and private happiness, their political liberties, and their civil rights. The attacks of private oppression, the small but gradual usurpations of power, the corrupting bribes of a moneyed aristocracy, or the more barefaced attempts of vaulting ambition, may all find their apologists in a venal crew, or even in a venal legislature; but they cannot withstand the indignant glance of an upright and independent judge, who sits in the ermined majesty of justice, 6 et res et ipsa imago.' If such be the importance of this department of government upon the public weal, every alteration should be weighed with infinite caution, for the results are almost beyond the ordinary reach of human foresight. During the colonial government, and immediately preceding the revolution, there was a chief justice of the King's Bench, and two associate judges, who all held circuits in the counties then existing. This organization continued until the year 1792, when another judge was added to the bench; and in the year 1794, we find this court consisting of the chief justice and four judges:
it continued thus established until the present judiciary bill was passed. During the whole of this long period, the judges held circuit courts, more or less frequently, in every county of the state, and performed all the duties incumbent on them at the terms. Owing to the unparalleled rapidity with which the population of the state, its wealth, and its foreign and domestic commerce increased, and owing to the just and well merited confidence which the people placed in the supreme court, and which the character, and learning, and integrity of the judges, had acquired for that tribunal, their calendars were gradually swelled to a size with which they found it impossible successfully to contend, notwithstanding all their efforts. The time occupied in these circuits, left them too little time to hear and decide causes argued at bar; the Term generally lasted three weeks, during the latter part of this period; and nearly half of the year was employed in travelling over all parts of the state. To the judges who occupied the bench during this time, not only this state, but the Union, owe a large debt of gratitude, for their enlightened labours, and their admirable expositions of almost every branch of jurisprudence. Our bench held a proud preeminence over every other, and we may still boast, with an honest pride, of such men as Thompson, and Livingston, and Kent, and Spencer, and Van Ness. Their names will be cherished in the annals of our judicial history, and transmitted to other times in the records of their native state. Their talents, their learning, and their integrity, have excited the admiration of their fellow citizens, far beyond the scene of their immediate activity.
The convention of 1821, sought a remedy for the accumulation of the business of the courts; and after long and tedious discussions, in which the representations of the judges, and the professional members of the convention, had little or no weight, (for no other reason that we can see, than that they were necessarily best acquainted with the whole matter,) that body decided upon an entire and radical change in the whole constitution of the judiciary; they not only changed the form, but they substituted a new principle for that system which had so long and so honourably contributed to the good order of the state, and the peace and security of the citizen. By the 4th section of the 5th article of the constitution, the supreme court is to consist of a chief justice and two justices, and by the 5th section, the state is to be divided into not less than four, nor more than eight circuits, and a circuit judge is to be appointed for each, holding their offices by the same tenure as a judge of the supreme court, and invested with the general authority of
a judge at nisi prius, &c. By this new arrangement, the supreme judges have held no circuits, but have confined themselves exclusively to the business of the Terms. It was stated by Mr. Justice Spencer, in the convention, “ that it had been his opinion, and the opinion of his associates, that with the addition of one or two circuit judges, the present court would be able to do all the business that would be required for many years. Most certainly the supreme court was the best judge of what aid would have enabled it to transact the public business, with a proper regard to promptitude and reflection. The convention and the legislature, however, thought that an addition of no less than six new judges was necessary, notwithstanding this declaration of the supreme court.
We maintain that the new organization of the supreme court is not only more expensive, but more inefficient, than the old one, and that the facts which have transpired within the short period of its existence, are sufficient to condemn it in the opinion of all those who can appreciate them, and have no friends to be retained as judges, or any to be appointed hereafter to fill vacancies. If any other motives than those connected with the general weal, influenced the change, it is a matter of deep regret, that its authors were not satisfied by some smaller or more remote sacrifice, than that of an establishment which had existed from the foundation of our independence. We
apprehend that no judicial system can be considered as approaching a tolerable perfection, where the judges are not obliged to hold courts of nisi prius. The legal faculties, the judicial inind, are sharpened and improved by presiding at the trial of issues in fact, where questions of evidence most novel and inportant are constantly recurring, and requiring prompt and immediate decision; where new points of law are first mooted and discussed, and where the facts on which they arise are placed more vividly by oral examination before the judge, than they can ever be by a case on paper. A judge at nisi prius sees too the operation of principles, and observes the effect of their application to the complicated relations of society, and when he returns to his brethren on the bench, he can state a thousand incidents in regard to the character of testimony, and the general complexion of the case, with which the court otherwise must for ever remain ignorant. Other things being equal, the judge who attends the circuit will be a better and more accomplished judge, than he who only attends the term. We have stated shortly our views on this subject, and we believe that if distinctions were not invidious, the experience of the
* Clarke's Reports of Debates in Convention, 323,