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feeling themselves justified in concluding, that the Senate meant to supersede the system already in operation, until a further experiment had been made, by legislative enactments, to give that perfection to its organization, and that efficiency to its powers, of which they may be susceptible. The undersigned have therefore conceived it more consonant with the spirit of the resolution, to recommend such modifications of the existing statutes, as may be adequate to the current exigencies of the period, than to anticipate the demands of futurity, and exhibit a scheme more perfect in theory, to be proposed as an amendment of the constitu
It will be seen, therefore, that though the resolution went to the consideration of an “entire new system,” if it should be found advisable, the chancellor and judges have been obliged to confine themselves to the suggestion of remedies for the defects of the present one, whatever may be their opinions in regard to its general inferiority in principle, to that we have lately abandoned. The report, which is now on the table of the senate, is limited to the consideration of the means of relieving the chancellor and judges from the pressure of the peculiar business of their respective courts.
It was to have been expected of the indefatigable industry of the present supreme court, that they would soon be able to call the whole calendar during each term, extended as that term has become, and freed as they are from the laborious duties of nisi prius. If the late five judges could, after being six months in a year on their circuits, hold their terms only three weeks, and hear nearly one half of the cases on the calendars, besides the ordinary non-enumerated motions—we had a right to expect much more from eleven judges, three of whom sit in bank four or five weeks at each term, while eight are traversing the counties and despatching the business of nisi prius. Accordingly, the Report of the chancellor and judges states, that at the last October term, “every case ready for argument was heard or submitted, and every matter which had been previously heard or submitted, excepting five cases requiring further consideration, was finally decided." We have been witness of the untiring efforts and patient perseverance of the supreme judges
--they have done all that was expected of them. But we should have been gratified to have learned how many causes were actually heard during the last term.*
*At the last August term, there were out three hundred causes on the calendar. Of these, we believe, that there were, exclusive of certiorari cases, about seventy-six heard and thirty-seven submitted,
and or from man
After this declaration of the judges, it was with some surprise that we find them expressing an opinion that the causes in the supreme court will hereafter accumulate faster than they can be disposed of at the terms. There can be no doubt, that the business of the supreme court will increase with our wealth and population; but we apprehend that the fact, that the number of cases set down for argument, since the new organization of our judiciary, “ has been nearly double that of an equal period immediately preceding," cannot be attributed to either of these causes. The report says, that fifty thousand souls are annually added to our population, and that “to this rapid increase of population are the delays of justice, which have been hitherto experienced, mainly to be attributed.” We can by no means assent to this conclusion—if litigation increases in such a frightful geometrical progression, compared with our population, what will be our situation when the latter reaches three millions? A regiment of judges, duly marshalled and arrayed, would hardly make an impression upon that compact mass of judicial business which would then overwhelm the courts. Besides, we think, that the experience of the bar would prove, that there has been no such enormous increase of professional business as the judges seem to suppose ; indeed, the complaint is, and has long been, that both it and the emoluments derived from it, have declined. We are of opinion that the increase of the calendar, and more especially of the non-enumerated business, has arisen in some degree from the causes stated by the judges, but in a far greater degree from the inherent and peculiar vices of that system which we have thought it our duty to point out, and to mark with our decided disapprobation. If such be indeed the effects of our increasing wealth and population, how have the United States been able to perform at all their judicial duties towards this community, with the same number of judges, from the year 1807 to the pre-. sent time? and how does England, with a population so many times larger than that of our state, with only twelve judges, transact all the judicial concerns of the most wealthy and most complicated society that ever existed on earth? Eleven judges, in our opinion, are far more than enough for our state, if an arrangement existed by which talents could be secured and called into constant and profitable action.
We shall not enter into any detailed examination of the proposed amendments of the judges, because they do not apply a remedy to the great grievance, though we believe that they are in general calculated to mitigate the evil of which we com
plain.* We are glad to see that the circuit judges are to be clothed with power to refer causes, involving the examination of long accounts, and that one of the judges of the supreme court will sit after term for the despatch of minor matters arising in the course of a cause.
But while we discuss this subject among ourselves, the eyes of others are upon us. The judiciary of New York once offered a bright example for the imitation of other states, and its decisions were law, such is the supremacy of truth, from the frontiers of Missouri to the Atlantic. We trust that we have not yet lost that proud pre-eminence, but when such words are heard on the floor of Congress, we may at least check our pride, and take warning from the declaration.
“We are, however, reminded, that a majority of 26,000 freemen have recently decided, in the State of New-York, in favour of relieving the Judges of the supreme court of that State from presiding at circuits. Is the gentlemen aware, that this experiment has been the source of unceasing trouble to that State ever since it was resorted to ? Such, sir, is the fact. Meetings have been held, by the members of the profession and others, to devise some plan to obviate the evils under which they suffer. And all admit, as their published addresses will show, that the difficulty arises from the system, and not from the Judges, who are all able and upright jurists."
We have thus far been employed in examining the system of our common law courts as at present established, and comparing it with that which formerly existed. Proceed we now to the consideration of our courts of equity ; and let us calmly and honestly inquire, whether the despatch of business has not been obstructed by the late alterations, and whether any ameliorations in this ancient and invaluable portion of our judiciary, have been produced by the labours of the convention.
To the legal antiquarian or the accomplished jurist, it may be interesting to trace the history of chancery jurisdiction, and all that mass of equitable power which now belongs to these courts : but for the purposes of this discussion, it is immaterial whether
* We cannot say as much for the suggestion of costs being paid by the plaintiff, provided he does not recover beyond a given sum. This is calculated to force a large portion of business into the county courts, but not to add to the despatch with which it ought to be transacted in the court above. We think, too, that the obliging a plaintiff, who may not recover by some accident more than one hundred dollars upon a contract, to pay costs to the defendant, will often act most oppressively upon parties litigating in the supreme court.
The present rules on the subject of costs, appear to us sufficient to prevent any vexatious resort to the superior tribunals of the state.
this jurisdiction was originally usurped, or founded on the broad basis of the common law. It is now admitted ; and there are none but wholesale reformers, or political zealots, who would wish to see the venerable fabric of the court of chancery undermined and destroyed. It is essential to the well-being of the state, and the security of the property of its citizens. Its abolition would introduce a scene of wild misrule and desolation, which, we trust in God, is far removed from us. In no other country than England and the United States, has the entire separation of equity, technically so called, and law, been effected, and both nations have reaped ample advantages from an organization, which has, in its gradual formation and improvement, employed some of the most glorious intellects of any age or nation. The whole mass of chancery jurisdiction was, during the period of our colonial existence, and, until the year 1822, vested in a single person, the Chancellor. he same causes which caused the increase of the business in the common law courts probably acted with more force, in regard to the court of chancery. Various expedients were, therefore, proposed in the late convention to meet this exigency. Among others, the appointment of a vice-chancellor, with the same powers as that officer has in England, seemed the most easy and certain remedy for the evil. The convention, however, left this question for the legislature, and it subsequently clothed the circuit judges with a pretty ample share of concurrent equity powers. It seemed at that period to many eminent men in the convention, that the uniting common law and equity jurisdiction in one single judge, was an incongruity which could not but lead to most unfortunate results, and we believe that the facts have entirely supported these views. The subjects are widely different, not only in their mode of application, but in their analogies, and, indeed, in their very principles. They require not only a peculiar mode of thinking, but an entirely different course of actual reading. While so extended is the range of either, that the labour of a life might well be devoted to a thorough knowledge of the peculiar doctrines of the one or the other. Now what is the fact in regard to the equity circuits ? That the people have no confidence in these subordinate courts, for they see the embarrassment of judges called at one moment to decide questions according to one code, and at the next, in obedience to the mandates of another. We find, therefore, as was to be expected, “ that not one fiftieth part of the whole equity business of the state originates in the subordinate courts held by the circuit judges,” but that the people, as well as the bar,
choose to resort to the chancellor, who exercises exclusively his talents on one subject-the administration of the system of equity; and who, therefore, for that single reason alone, is justly presumed to decide with more certainty, and more legal character and consistency. And in our opinion, as long as the jurisdiction of the chancellor and the circuit judges is concurrent, the latter never will, because they never on principle ought to, transact more than “one fiftieth part of the equity business of the state."
The limits which are prescribed to us, will not allow us to enter into this subject with any degree of minuteness, and we must therefore reluctantly break off with a single observation.
Notwithstanding it has been found, hitherto, impossible ta force suitors into these inferior courts of equity, and that the same difficulties have been felt in the constitution of the equity courts of the United States, the judges in their report recommend,
“ That the court of equity of each circuit shall have exclusive original jurisdiction of all causes and matters of equity, either wholly, or in part, concerning lands situate wholly within the circuit, and of all causes and matters of equity when the complainant, or the greater number of parties prosecuting, reside within the circuit, and the defendant, or adverse parties, are not inhabitants of the state. That where the parties to any matter or eause of proceeding in equity reside in different circuits adjoining each other, and also where the subject of proceeding is either wholly or in part, lands situate in different circuits adjoining each other, the courts of equity of each of those circuits, at the option of the complainant, or party prosecuting, shall have exclusive original jurisdiction. That the causes and matters of which the exclusive jurisdiction is vested in the circuit judges, shall extend to all the cases aforesaid, of which the chancellor now has original jurisdiction, by statute or otherwise,
Let us observe for a moment the gradual march of error:first, the constitution is amended, and inferior courts of common law endowed with a portion of equity jurisdiction concurrent with the chancellor; and now three years are hardly elapsed, when, these courts being found almost deserted by lawyers as well as clients, we are all to be forced back into them, clothed with an ample original and exclusive jurisdiction, and obliged to abandon the court of chancery, which, with all its delays, is evidently preferred by the great mass of the people. We never can believe that this compulsory process will meet the approbation of a community, which, whatever may be its fault, is alive to any innovation which shall retard its future growth or actual prosperity. The next step will be to abolish the court of chancery, and invest all the judges with an equal share of concurrent