Mr. Hamilton said that he did not rise to oppose the motion of the gentleman who last spoke.2 He should probably vote with him on the question; but he confessed he did not view it in quite so clear a light as that gentleman appeared to do. There appeared to him to be difficulties in the case, which he would candidly lay before the house to assist its judgment. The objection is that a new court is erected, or an old one invested with a new jurisdiction, in which it is not bound to proceed according to the course of the common law. The question is what is meant in the constitution, by this phrase “the common law”? These words have in a legal view two senses, one more extensive, the other more strict. In their most extensive sense, they comprehend the constitution, of all those courts which were established by immemorial custom, such as the court of chancery, the ecclesiastical court, &c. though these courts proceed according to a peculiar law. In their more strict sense, they are confined to the course of proceedings in the courts of Westminster in England, or in the supreme court in this state. If the words are understood in the first sense, the bill under consideration is not unconstitutional; if in the last, it is unconstitutional. For it gives to an old court a new jurisdiction, in which it is not to proceed according to the course of the common law in this last sense. And to give new jurisdictions to old courts, not according to the course of the common law, is in my opinion as much an infringement in substance of this part of the constitution, as to erect new courts with such jurisdictions. To say the reverse, would be to evade the constitution.

But though I view it as a delicate and difficult question; yet I am inclined to think that the more extensive sense may be fairly adopted; with this limitation, that such new jurisdictions must proceed according to the course of those courts, having by the common law cognizance of the subject matter. They ought however, never to be extended to objects, which at common law, belonged to the jurisdiction of the courts at Westminster, and which in this state are of the peculiar cognizance of the supreme court.

At common law, the ecclesiastical courts, not the courts of Westminster, had cognizance of intestacies and testamentary causes. The bill proposes that the court of Probates shall have cognizance of the same causes, and proceed in the same manner as the ecclesiastical courts, except as to inflicting ecclesiastical penalties.

This distinction I have taken, will I am inclined to think, bear us out in passing the bill under consideration.

But it is certainly a point not without considerable difficulty.3