It was evident from the tone and scope of the discussion which preceded the Convention that the court of chancery must be radically changed or abolished. It had become inadequate to dispose of a large mass of equity litigation without great expense and delay. It had become physically impossible for the chancellor to keep up with the business, and the equitable jurisdiction of the court, at first administered somewhat liberally, according to the original idea of the court of chancery, had become crystallized in a body of law and rules apparently as inflexible as the common law. The two systems of law and equity thus growing up side by side were not calculated to produce a satisfactory and harmonious administration of justice. It was evident from the first that a large majority of the Convention favored the union of the two courts, and, while a few delegates clung to both courts, and advocated their continuance, the proposition to merge law and equity jurisdiction in the supreme court was adopted without a count. This vote determined the attitude of the Convention toward the court of chancery, and its abolition was the result.

The most serious discussion relating to the subject of the supreme court was the proposed merger of law and equity in one court; and when this was agreed to the rest was mere detail. The Convention was substantially unanimous in the opinion that the circuit judge system ought to be abrogated, and there was little discussion on this subject. There was considerable difference of opinion as to the number of judges, but the Convention, by a large majority, adopted the recommendation of the judiciary committee, fixing the number at thirty-two, to be chosen for eight years, from eight judicial districts, four from each, with a provision for a possible increase in the city of New York. The supreme court ceased to be stationary, but, combining the former circuit judge system

and the supreme court, with modifications, circuits and special terms were to be held in each county, where an opportunity would be afforded to dispose of both law and equity business, with a right of appeal to a general term in the same district. An appeal could be taken from the general term to the court of appeals, which was the central and final judicial authority of the state, and whose judgments were intended to harmonize the possible conflicting opinions of the lower courts. The provision in a former Constitution was continued, prohibiting judges from holding any other office or public trust, with the additional provision that they should exercise no power of appointment to public office.

The office of justice of the existing supreme court was abolished from and after the first Monday of July, 1847. This provision seemed necessary, for the reason that the judges then in office held during good behavior, or until they should be sixty years of age, and also for the reason that, under the new plan, the judges were to be elected by the people by districts, and the operation of the plan could not have been uniform if the judges in office had been continued.

4th. The county court.-The court of common pleas was established by the same statute of 1691 that created the supreme court. By that statute the court of common pleas was to be held by a judge and three justices, appointed in each county for that purpose, or by any three of them, and it had jurisdiction of all common-law actions. By chapter 28 of the Laws of 1692, the jurisdiction of this court was limited by excluding actions concerning the title of land. Such was the court of common pleas when the Constitutional Convention of 1777 began its work. This Convention did not attempt to define the jurisdiction of the court, but incorporated in the Constitution some provisions relative

to the appointment and tenure of county judges. The jurisdiction was continued under the new state government by operation of article 35, which continued in force the colonial statutes. In 1787 the legislature, by chapter 10, enlarged the jurisdiction of this court by including all actions, "real, personal, and mixed, suits, quarrels, controversies, and differences" arising in the county. In 1801, by chapter 110, the jurisdiction was extended to transitory actions, although not arising in the county, and the court was also given power to grant new trials. The Constitution of 1821 did not define the jurisdiction of this court, but recognized and continued it, following substantially the provisions of the first Constitution. I have already noted, in the section on the judiciary, in the chapter on the second Constitution, the report of the judiciary committee of the Convention of 1821, recommending a county court with the jurisdiction then possessed by courts of common pleas, the right to hear appeals from judgments of justices' courts, and also with authority to admit wills to probate, and grant letters of administra tion; but the report was not approved in all its parts by the Convention, and the court of common pleas remained unchanged. The revision of 1813 continued the court with the same jurisdiction. The Revised Statutes of 1827-28 continued the court, with the powers and jurisdiction "which belong to the court of common pleas of the several counties in the colony of New York, with the additions, limitations, and exceptions created and imposed by the Constitutions and laws of this state." In addition to this general provision the court was vested with the powers it had possessed since 1787. In 1837 the supreme court had occasion to consider the jurisdiction of the court of common pleas in Foot v. Stevens, 17 Wend. 483. In that case Judge Cowen said that, in point of subjectmatter, the jurisdiction of the court "is equal to that of

the common pleas in England, and to that of this court in respect to civil actions, with the exception of actions. local to another county. It is also a court of record.

No doubt that it is a court of general jurisdiction as to subject-matter, united with the character of a court of record, proceeding according to the general course of common law."

This was the status of the court of common pleas as a part of our judicial system when the Convention of 1846 began its labors. The majority of the judiciary committee in that Convention proposed the abolition of the county court as then organized. The committee apparently adopted the suggestion made by Governor Seward, in his message in 1841, "that the courts of common pleas had, in a great degree, been deserted by suitors, and had the form and organization of courts of justice, while they enjoyed little of the popular respect due to such tribunals, and performed few of their important functions." Mr. Ruggles, in a statement accompanying the report, said that "in some counties, the county courts are efficient and useful in the despatch of business. In others, it is said they are not so, and are complained of as a burthen rather than a benefit to the county. In the trial of civil causes before a jury, experience has demonstrated that a single judge is more efficient than a greater number, and that those county courts in which the trial of causes is committed to some one of the judges give greater satisfaction to suitors than when they all take part in the trial." Charles O'Conor, a member of the committee, presented a minority report which continued the county court. In explaining the report he said that he "dissented from the majority in their resolution to abolish the county courts." He said, further, that he thought it to be expedient not to annihilate the county courts because they were now inefficient, as indeed all the courts were.

On

the contrary, he deemed it a sounder policy to preserve, reorganize, and strengthen, so as to qualify them for the despatch of business. By this means the greater portion of the business of the state would be performed in these tribunals. Mr. Kirkland presented a minority report also continuing the county court, with the jurisdiction it then possessed, and authorizing the legislature to confer equity powers on the court. Mr. Loomis said that the county court was, “a court of little pretension but of great utility, one much more needed in the transaction of ordinary, necessary business than the higher tribunals." He proposed a plan for a county court to be composed of two or more justices, with jurisdiction to be established by law, and who should hold courts in different parts of the county. Mr. Crooker proposed a county court without any original civil jurisdiction, but with appellate jurisdiction of all causes tried in justices' courts. The county judge and two justices of the peace were to hold courts of general sessions for the trial of criminal cases where the punishment could not exceed ten years' imprisonment in a state prison. Mr. Stephens proposed a plan which had been once agreed on by the judiciary committee, but which was not included in its report. This plan provided for a court of common pleas, and continued the jurisdiction then possessed by that court. The plan further provided for the election in each district of a "president judge" who should hold office for eight years, and preside in the court of common pleas in any county in the Mr. Crooker, after several suggestions by other delegates concerning the organization of the county court, which did not differ materially from the plans already noted, proposed a county judge in each assembly district, with jurisdiction to try petty offenses and perform the duties of a surrogate, and such other duties as might be required by law. He was to have appellate jurisdiction

state.