Up to this time, the members of the court, all of whom were delegates, either from motives of modesty, or with the hope that the many plans might result in no action, had taken no part in the debates on the judiciary. Now, however, Ambrose Spencer, with doubtful propriety, broke the silence. His friends feared the assaults of Root and Peter R. Livingston might drive him into a fierce retort, and that he would antagonise the convention if he did not also weary it. But he did nothing of the kind. He spoke with calmness and excellent taste, saying that he favoured the appointment of circuit judges who should aid the Supreme Court in the trial of issues of fact, and who should also be members, _ex-officio_, of the Court of Errors; that he had little or no personal interest in the question since he should very soon be constitutionally ineligible to the office; that for eighteen years he had tried to discharge his duties with fidelity and integrity, and that he should leave the bench conscious of having done no wrong if he had not always had the approval of others. He seemed to capture the convention for a moment. His tones were mellow, his manner gentle, and when he suggested leaving Albany on the morrow to resume his labours on the bench, his remarks took the form of a farewell speech, which added a touch of pathos. Indeed, the Chief Justice had proved so wise and discreet that Henry Wheaton thought it an opportune time to propose an amendment to the proposition before the convention, providing that the present justices hold office until their number be reduced to three, by death, resignation, removal, or by age limitation. This brought the convention face to face with the question of retaining the old judges, stripped of all other provisions, and the result was awaited with great interest. It was Van Buren's idea. It had the support, too, of Nathan Sanford, of Peter B. Sharpe, the speaker of the Assembly, and of half a score of prominent Bucktails who hoped, with Van Buren, that the convention would not ruin its character by extreme measures based upon personal dislikes; but a majority of the delegates was in no mood for such a suggestion. It had listened respectfully to the Chief Justice, and would doubtless have cheerfully heard from the Chancellor and other members of the court, but it could not surrender the principle over which sixty days had been spent in contention. When, therefore, the roll was called, Wheaton's amendment was rejected by a vote of sixty-six to thirty-nine. Then came the call on the original proposition, to have Supreme and District Courts, which disclosed sixty-two ayes and fifty-three noes. If the weakness of the noes on the first vote was a disappointment, the strength of the noes on the second vote was a surprise. A change of only five votes was needed to defeat the proposition, and these might have been reduced to three had Daniel D. Tompkins, who favoured Van Buren's idea, and the four judges who