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 neglect 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, "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 important 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.

other states would bear us out in our remarks. But let us look at that country from which we derive almost all our notions regarding the department of government now under consideration; and well may we turn our attention to England, for her judiciary, in all that belongs to civil rights, and the administration of equal justice between man and man, is, perhaps, as good as that of any other country on earth. It has been her salvation, amid all the corruptions which proceeds from privileged orders, and a long established system of legalized abuses. In England the institution of judges itinerant dates at least as far back as the reign of Henry the First, more than six centuries ago; they were then considered as members of the king's great court. But the propriety of a more immediate connection with the judges of the court, doubtless on the general grounds we have shortly stated, induced parliament to pass the Stat. Westm. 2. 13 Edw. 1. c. 30. which directs these justices in eyre to be assigned out of the king's sworn justices.* Subsequent statutes passed at various times have carried out this leading point of judicial policy; and it has contributed not a little to the fame and happiness of the English people, by the formation and ripening of such minds as those of Buller and Mansfield, of Kenyon and Dunning. This question has therefore been distinctly settled in England, for we find that anciently it was considered too great a burthen on the justices of the benches to attend the assizes,† but parliament found it to their advantage to impose that duty, inasmuch as it contributed most powerfully to the enlightened and proper administration of justice.

Such being the opinions which we entertain on this subject, we give our most cordial assent to the views expressed in the latter part of the report of the committee of the bar; and as we' have designedly not entered minutely into this subject, we will make no apology for presenting it to our readers:

"Your committee, it will be observed, have recommended as a part of their proposed system, that the judges of the supreme and superior courts should participate in presiding at jury trials through the state. This, we beg leave to insist upon, as being in our judgment essentially important. The minds of all men are sharpened and improved by active exertionand in no department of the administration of justice are the judicial faculties put into such prompt requisition as at nisi prius. There all new points are first raised, discussed and decided; recent adjudications in other states, courts, and places, are there, for the most part, first presented to the notice of even the most learned judges. And we think it may be confidently asserted, that they return from the labours of a circuit, better fitted for the arguments of a term; but then their numbers must be proportioned to the performance of their duties. The burthen of nisi

*3 Black. Comm. 58 Reeves' Hist. of Eng. Law, 492.

prius trials should be divided among so many, that each should have ample opportunities for study, and for considering the causes argued in term. Such an arrangement would, as we firmly believe, greatly advance the due administration of justice."

By a fortunate coincidence, at the very time we are writing, the judiciary act of the United States is about to undergo some important amendments; indeed, this very policy of obliging the justices of the supreme court to hold circuit courts, has been frequently the subject of remark. It has been warmly supported by several most distinguished members of congress, and we imagine it will not be thought irrelevant, if we cite the language of an eloquent lawyer and profound jurist on the occasion. In the course of debate, Mr. Webster is reported to have spoken in the following terms:

"In the first place, it appears to me that such an intercourse as the judges of the supreme court are enabled to have with the profession and with the people, in their respective circuits, is itself an object of no inconsiderable importance. It naturally inspires respect and confidence, and it communicates and reciprocates information through all the branches of the judicial department. This leads to a harmony of opinion and of action. The supreme court is itself in some measure insulated; it has not frequent occasions of contact with the community. The bar that attends it is neither numerous nor regular in its attendance. The gentlemen who appear before it in the character of counsel come for the occasion and depart with the occasion. The profession is occupied mainly in the objects which engage it in its own domestic forums; it belongs to the states; and their tribunals furnish its constant and principal theatre. If the judges of the court, therefore, are wholly withdrawn from the circuits, it appears to me there is danger of leaving them without the means of useful intercourse with other judicial characters, with the profession of which they are members, and with the public. But, without pursuing these general reflections, I would say, in the second place, that I think it useful that judges should see in practice the operation and effect of their own decisions. This will prevent theory from running too far or refining too much. We find, in legislation, that general provisions of law, however cautiously expressed, often require limitation and modification; something of the same sort takes place in judicature; however beautiful may be the theory of general principles, such is the infinite variety of human affairs, that those most practised in them and conversant with them, see at every turn a necessity of imposing restraints and qualifications on such principles. The daily application of their own doctrines will necessarily inspire courts with caution; and by a knowledge of what takes place upon the circuits, and occurs in constant practice, they will be able to decide finally without the imputation of having. overlooked, or not understood, any of the important elements and ingredients of a just decision.

"But further, sir, I must take the liberty of saying, that in regard to the judicial office, constancy of employment is, of itself, in my judgment, a good, and a great good. I appeal to the conviction of the whole profession, if, as a general observation, they do not find that those who decide most causes, decide them best. Exercise strengthens and sharpens the faculties, in this more than in almost any other employment. I would