dissenting.
The division in the court here stems from a divergence of views as to the respective powers of the courts and the Legislature under the Delaware Constitution. We separate at the first stage of the majority’s reasoning, before reaching consideration of the subsequent close and troublesome questions resolved by my colleagues. The majority has held that where our Court of Chancery had jurisdiction over a field of litigation in 1792, a statute purporting to take away any portion of that jurisdiction is in part unconstitutional unless the Legislature provides, in lieu of what it takes away, another remedy considered by the courts to be adequate. On the other hand, I am compelled to conclude that whether the substituted remedy is adequate or not is entirely for the judgment of the General Assembly, and this court’s views as to its adequacy are unimportant. Since the point of difference concerns the very structure of our judicial system, I feel under a duty to set out my views with more than ordinary particularity.
Looking, as we must, to the constitution for guidance, we find that only three sections furnish information directly bearing on the question before us, Sec. 10 1, Sec. 20, and Sec. *43421. Although these sections overlap and must ultimately be viewed as component parts of a single system, we must try to consider one at a time.
The first sentence of Art. IV, Sec. 20, is as follows:
“The General Assembly, notwithstanding anything contained in this Article, shall have power to repeal or alter any act of the General Assembly, giving jurisdiction to the Court of Oyer and Terminer, * * * the Court of General Sessions of the Peace and Jail Delivery, * * * or the Court of Chancery, in any matter, or giving any power to either of the said courts.”
This provision was first written into our constitution in 1831. Conceding for the moment the correctness of the majority’s statement that after 1792 the General Assembly’s power to control Chancery jurisdiction was removed and a certain constitutionally guaranteed minimum of equity relief was afforded, what are we to suppose was the effect of inserting the above quoted language into our constitution in 1831? A brief reference to its historical background will only emphasize the apparent force of this amendment.
The 1831 constitutional convention was primarily aimed at reform of the judiciary. Public dissatisfaction with the courts, having gradually mounted to an agitation extending over a period of more than ten years, had become acute. See Harker’s Debates, pp. 43, 57, 84, 90 and 92; and Scharf, History of Delaware, Vol. 1, p. 313. Debate about the courts was sharp, and feelings ran high in the election of delegates to the convention. It was doubtless as a part of a sensible plan to preserve the dignity of the courts by making it unnecessary to subject their shortcomings to public debate in state-wide elections that the 1831 convention adopted the principle set out in Secs. 20 and 21.
Some of the speeches in the 1831 convention are only summarized, and, therefore, it is difficult to follow the genesis of each phrase with the same certainty that is possible in the 1897 convention, where the debates were stenographically reported. Notwithstanding the frequent abbreviations *435and some omissions, however, it seems clear that the change made was by deliberate and careful design. The Honorable Willard Hall, who was a delegate to the 1831 convention, and who just two years before had revised all our statutes, undoubtedly sounded a note which appealed to the delegates when he said (p. 70 of the Debates) :
“But in respect to the system proposed in the resolution now under consideration, it is plain and easy, and it leaves room for the Legislature to improve upon it, if found defective. Is not this the correct way? Or will you establish a system which you cannot alter except by a convention?—under which if you suffer, you must suffer long.' If the Legislature of this State had been invested with power over our judicial system, they would long since have corrected its evils and found out the system best for us. It is wise to learn by experience.”
Since Judge Hall was the federal District Judge for the District of Delaware, undoubtedly it was no coincidence that the final draft of that constitution shared in a general sense two aspects of the federal system: (1) having only one court of constitutionally defined minimum jurisdiction, and (2) leaving the jurisdiction of all other courts (though the creation of only some courts) entirely to the Legislature. The 1897 constitution retained those features.
But only the first sentence of what now appears as our Sec. 20 was put into the 1831 constitution. In 1897, by the adoption of the following sentence, for the first time the General Assembly was given the clear right to confer additional jurisdiction upon the courts:
“The General Assembly shall also have power to confer upon the Courts of Oyer and Terminer, the Superior Court, the Court of General Sessions, the Orphans’ Court and the Court of Chancery jurisdiction and powers in addition to those hereinbefore mentioned.”
In explaining this proposed amendment, William C. Spruance, Esq., shortly thereafter appointed to the bench, acting as chairman of the Judiciary Committee for the convention, made the following remark, which appears in the typewritten transcript of proceedings at page 4596:
*436“* * * from the eighth to the twelfth lines, inclusive, it is new, because it was thought that not merely ought the General Assembly to have the power to alter the laws which have conferred upon these courts under their former names jurisdiction, but if the legislature saw fit it ought to have the power of adding to that jurisdiction.”
Upon this brief explanation the vote was taken. Thus, the constitutional convention appeared to accept without question a fact which in this cause is denied, that is to say, the right of the General Assembly, without apparent qualification or limitation, to diminish the jurisdiction of a court.
We must pause to point out several things about the specific language of Mr. Spruance above quoted. It obviously cannot be reconciled with the views expressed by the majority of this court. The majority considers that the first sentence of Sec. 20, which had been in the constitution since 1831, referred to the power to repeal only the additional jurisdiction which had been granted since 1792. Now, here in the 1897 convention, the delegates were advised and presumably believed that the General Assembly had not theretofore had such a right to confer additional jurisdiction.
Further, we should note Mr. Spruance’s reference to “these courts under their former names.” The name of only one court was changed by the 1831 constitution. Since Mr. Spruance used the plural, it shows that he was referring to laws adopted at least prior to the 1831 constitution. The majority had to advance some tenuous verbal distinctions, which we shall later discuss, in order to stop the references to “prior” laws at the 1792 constitution, for before that date even the majority concedes that the General Assembly controlled Chancery jurisdiction. Unfortunately the debates of the 1792 convention were not preserved.
We cannot help pausing here to mention the only remaining sentence in Sec. 20, which is as follows:
"Until the General Assembly shall otherwise direct, there shall be an appeal to the Supreme Court in all cases in which there is an *437appeal, according to any act of the General Assembly, to the Court of Errors and Appeals.”
This reference to the power of the General Assembly, though not directly related to our problem, is merely pointed out as one item in what seems to be a comprehensive pattern.
Again returning to the 1831 convention, we observe an illuminating contrast between the Court of Chancery and the Superior Court. The convention had not turned against courts. Apparently there was a desire to retain some check on the General Assembly. Thus, Art. IV, Sec. 7, which in 1831 was designated as Art. VI, Sec. 3, conferred upon the Superior Court two types of jurisdiction: (a) General common law jurisdiction, and (b) such jurisdiction as is “vested by the laws of this State.” The precise language then was in substance, and now is:
“The Superior Court shall have jurisdiction of ail causes of a civil nature, real, personal and mixed, at common law and all other the jurisdiction and powers vested by the laws of this State in the * * * Superior Court.”
It will be observed that it is only the statutory Superior Court jurisdiction which the Legislature under Sec. 20 has the power to control. This second type of. jurisdiction conferred upon the law court, moreover, is the only kind conferred upon the equity court. The same words were employed. The similarity could hardly be a coincidence.
To have a constitutionally guaranteed general jurisdiction in a law court, while denying the counterpart to the equity court, was not a freak provision peculiar to Delaware. Although the majority obviously regards this doctrine as unattractive, Professor Pomeroy describes it as if it were common in American jurisdictions. See 1 Pomeroy’s Equity Jurisprudence, (5th Ed.) Sec. 282. Incidentally, Pomeroy also expressly states that Delaware is one of that large group of states in which equity jurisdiction may be abridged, restricted, or modified by statute. Op.Cit., Sec. 282.
Art IV, Sec. 21, is in part as follows:
*438“Section 21. Until the General Assembly shall otherwise provide, the Chancellor shall exercise all the powers which any law of this State vests in the Chancellor, besides the general powers of the Court of Chancery, * *
This is another clause which was inserted into our constitution in 1831. The portion of this section on which the majority concentrates was probably added to eliminate any confusion which might otherwise have arisen from the Legislature’s indiscriminate and interchangeable use of the terms “Chancellor” and “Court of Chancery.” Thus, the very statute which occupies so much attention elsewhere in this opinion, Par. 4367, Revised Code of Delaware 1935, says that the “Court of Chancery” shall have certain powers, but it follows with a proviso that the “Chancellor” shall not exercise those powers where there is an adequate remedy at law. For similar examples see Revised Code of Delaware, 1935, §§ 3091-3097, 4374, 4380 and 4382. The majority’s interpretation of this section as wholly irrelevant to our inquiry concentrates attention upon other language but still leaves unexplained the question why the 1831 convention also included in this section, in harmony with Sec. 20, the words “Until the General Assembly shall otherwise provide * *
The majority opinion acknowledges that the constitution of 1776 gave the Legislature complete control over the scope of the jurisdiction of the Court of Chancery. In view of that admission, it is interesting to compare Sec. 21 with the language of Article 13 of the 1776 constitution, which was the only language in the 1776 constitution on the subject and was as follows:
“Art. 13. The justices of the courts of common pleas and orphans’ courts shall have the power of holding inferior courts of chancery, as heretofore, unless the legislature shall otherwise direct.”2
What, then, is the peculiar quality of Sec. 10 which is so *439controlling as to override even the legislative power to amend which the framers of the constitution sought to superimpose upon it by Sec. 20 ? Its wording is as follows:
Section 10. The Chancellor shall hold the Court of Chancery. This court shall have all the jurisdiction and powers vested by the laws of this State in the Court of Chancery.’’
This language is as it was written for the first time into our 1831 constitution. The majority says that this provision has the effect of guaranteeing to the people of the state that some court will furnish equitable remedies. It would seem, however, that if the second sentence of this section secures any minimum of jurisdiction to anybody, it secures it not to merely some court, but to the Court of Chancery. Still the majority somehow concedes that the Legislature has the power to determine what court or courts shall exercise various portions of the general equity jurisdiction, provided only that the substituted court furnishes a remedy as good as that afforded in Chancery. A very real difficulty, then, is to see how, under the majority’s view, the will of the Legislature has anything to do with the matter, regardless of what terms and conditions are met. Perhaps that inference can be drawn from the statute which the majority has in some way coupled with Sec. 10 to support its views.
We refer, of course, to the second paragraph of 4367, Sec. 1, of the 1935 Code, which reads as follows:
“Provided, that the Chancellor shall not have power to determine any matter wherein sufficient remedy may be had by common law, or statute, before any other Court, or jurisdiction, of this State; but that where matters, determinable at common law, shall be brought before him in equity, he shall remit the parties to the common law; * *
There is nothing elsewhere in this statute derogating from the portion quoted. The suggestion seems to be that a statute might oust the Court of Chancery. But what appears to be a simple restraint upon the Court of Chancery has in the majority opinion somehow been transformed into a precise and rather complex restraint upon the General As*440sembly. Specifically, the majority has interpreted this clause of the statute as preventing the Legislature from taking any jurisdiction away from the Court of Chancery except upon the concurrence of two conditions: (1) making the remedy of the new court the equivalent of the one afforded in Chancery, and (2) ousting the Court of Chancery by express language. In just what phraseology this meaning is supposed to lurk is not altogether clear.
Further, if not restrained by the language itself, a recollection of the circumstances of the origin of this statute might have deterred the majority. Repeatedly it has been conceded that this statute was simply the re-enactment of an ancient equity maxim. In the case of Glanding v. Industrial Trust Co., 28 Del.Ch. 499, 45 A.2d 553, acceptance of this fact was common to both the majority and the dissenting opinions, and both opinions cite earlier Delaware decisions to the same effect. But how is it supposed to be possible that this maxim of equity, developed in Great Britain under a constitutional system bearing little resemblance to ours, happened to contain within it such an elaborate but precise and well formed principle as the majority has found, especially limiting and controlling our General Assembly? Only the English law and equity courts were participants in the classic struggle to which the maxim related; parliament was no more than a bystander.
Returning to the constitution, we note that Sec. 10 says that the Court of Chancery shall have “all the jurisdiction and powers vested by the laws of this State”.
First, let us attend to the tortured word “vested”. The majority has been at great pains to distinguish this word from all other donative language. This is done from necessity, for without that distinction the majority’s long slender chain of reasoning would lack a link. While we can readily see the majority’s need for this distinction, its validity is not so easy to see. No authority is cited for it. Cer*441tainly the common dictionaries afford no support. Indeed, I fear it is original with our court.
This remarkable word “vested” is supposed to have been used, according to the majority, because of the peculiar history of the Chancery courts in Delaware, which is also said to clarify its meaning. But, though of necessity lacking this Chancery history, precisely the same wording was used to vest the executive powers in the Governor, the legislative powers in the Legislature, and certain of the Superior Court powers in that court. My own suggestion is that the word, a perfectly good one meaning “to give to or confer upon,” was simply copied straight out of the federal Constitution.
But this is not the only close distinction upon which the majority is forced to depend. The second one is the supposed vital difference between the “laws of this State”, as used in Sec. 10 and Sec. 21 and the “act of the General Assembly,” as used in Sec. 20. The Revised, Code of Delaware 1935, contains several sections which purport to give jurisdiction to the respective courts of our state. The one referring to the Court of Chancery is Par. 4367, Sec. 1, and in one form or another, has always been upon our statute books since the original counterpart was adopted in 1726-36.3 These are the statutes beginning with such words as “The Court of Chancery shall have power to hold and decree all causes in equity * * *.”4 The original act of 1726-36 was by the “General Assembly.” Each of these subsequent re-enactments was by the General Assembly. Each expressly pur*442ported to confer and define the jurisdiction of the Court of Chancery. Undoubtedly they are “laws of this State.” Under these facts, it is most natural to suppose that these laws are what are indicated by Sec. 10.
Furthermore, this conclusion is not without the support of respectable authorities. In Equitable Guaranty & Trust Company v. Donahoe, 8 Del.Ch. 422, 430, 45 A. 583, Chancellor Nicholson held that the current re-enactment of the old statute to which we have referred gives the jurisdiction to the Court of Chancery in this state. In Re Reeves, reported in 10 Del.Ch. 483, 486, 94 A. 511, 512, the Supreme Court of this state, referring to Sec. 10 of the constitution and to the statute here under discussion stated:
“Except in so far as affected by subsequent statutory provisions, the Court of Chancery is by the above statute vested with jurisdiction and powers according to the course of Chancery practice in England.”
Judge Woolley, in Vol. 1, Sec. 57, of his Delaware Practice refers to “the statute which gives to the Court of Chancery its general jurisdiction,” citing the statute as Revised Code, 1852, Chap. 95, Sec. 1. Also see the clear statement in Pomeroy’s Equity Jurisprudence, (5th Ed.) Sec. 285.
Another persuasive authority for the view expressed in this opinion, however, is the bare fact that originally, in 1726-36, and continuously ever since, the General Assemblies of this state have painstakingly kept upon our statute books the only law we have purporting to convey and define general equity jurisdiction. This is no obscure or little noticed field of law. Nor is the period from 1736 to date, or even from 1792 to date, unimpressive. Undoubtedly, in connection with the re-enactment or modification of some of these laws at some time since 1792, there have been some good lawyers serving either as members or advisers of one branch or the other of our Legislature, advising the Governors, or subsequently codifying the laws. So far as has come to the court’s attention, however, prior to the filing of this majority opin*443ion, nobody previously regarded these post-1792 statutes as surplusage.
The whole thesis of the majority is that the minimum limits of equity jurisdiction were frozen in 1792 and have remained so ever since. Art. 6, Sec. 14 of the 1792 Constitution stated:
Sec. 14. The equity jurisdiction heretofore exercised by the judges of the court of common pleas shall be separated from the common-law jurisdiction, and vested in a chancellor, * * *.”
What the constitutional convention of 1792 did was to take such equity jurisdiction as had been exercised and transfer it to a new and separate court. The majority says that because it was transferred, it was changed in character. By transferring the mutable, it became immutable. Non sequitur.
Finally, the constitution strangely failed to say that equity jurisdiction shall be at least the equivalent of what was vested by the laws of this state in 1792. It could very easily have been so phrased as to state that the “courts of equity (or other courts to which any of its remedies are transferred) shall have at least as broad a field of jurisdiction as was conferred upon them by the constitution and laws of 1792,” or “the equity jurisdiction entertained by the several courts of our state shall be as comprehensive as heretofore,” or something of the sort. Instead, equity jurisdiction was merely left to be defined by the laws. It hardly seems reasonable to assume that the framers of our constitution, if they had actually had the intention ascribed to them by the majority, would have been so inept or so inconsiderate as to - omit such essential qualifying language. It seems simpler to ■ suppose that Sec. 10 contemplates and is compatible with. Sec. 20.
Now about the Glanding case, supra. The majority con- , cedes that it is distinguishable, for it did not relate to any question of the power of the General Assembly expressly to exclude a court from a field of jurisdiction. No dicta can be *444cited from it relating to our point. To that extent I can agree with the majority. But they are reluctant to let it go. Lacking support from its ratio decidendi or dicta, they still say that the “underlying implications” of that case are arrayed on their side. I am compelled to disagree with what the Court of Chancery has said in this case and in Delaware Trust Co. v. McCune, ante p. 113, 80 A. 2d 507, about the holding of the Glanding case. And if the “underlying implications” of the Glanding case are what the majority here says they are, I am, of course, forced to disagree with it as well. But with such portions of the Glanding case as the lines of the opinions themselves appear to express I see no reason here to agree or disagree.
As a coup de grace to this dissent, the majority has invoked some doctrines of constitutional interpretation which sound more impressive upon simple enumeration than they appear to be upon individual analysis in relation to this case: the “underlying theory” of written constitutions, the separation of powers, the independence of the judiciary, and the menace described as “the vagaries of legislative whim.”
The underlying theory of written constitutions is said to secure to the people “certain unchangeable rights and remedies.” Just why they are unchangeable, whether the people want them so or not, is unexplained. The majority has quite frankly taken refuge in the philosophy of government. In doing so, our court must be one of the last to adhere to that discredited principle which once had some scattered support. In modern times courts are not considered to be free to steep themselves in the supposed “spirit” of a constitution and on that vague ground to override a clear expression of the legislative will. 11 Am.Jur., Constitutional Law, § 135. If a statute is to be declared unconstitutional, it must be on the basis of what the constitution says, not what the court thinks is hinted at, nor even what the court thinks it should have said.
As for the doctrine of separation of powers, several answers would be possible. This may not be an attempt by *445the Legislature to exercise judicial functions in the sense which would violate the doctrine of separation of powers. Moreover, the doctrine of “checks and balances” is an equally respected constitutional principle which, pro tanto, limits and qualifies the separation of powers. And our state, unlike some, has no clause in its constitution incorporating the doctrine of “separation of powers.” But the only thought it is necessary to discuss, it seems to me, is that the doctrine of separation of powers has no validity except in the event and to the extent that it is conferred by the constitution.
The State of Pennsylvania originally omitted to provide for any court of general equity jurisdiction. The Legislature thereupon proceeded to adjudicate certain equity causes. Quite understandably, such an action by the Legislature was assailed, ultimately in the Supreme Court of the United States, as doing violence to the doctrine of separation of powers. Livingston v. Moore, 7 Pet. 469, 546, 10 Curtis, 546, 552, 8 L.Ed. 751. In dismissing this contention, Mr. Justice Johnson, speaking for the court, said:
“The power existing in every body politic is an absolute despotism; in constituting a government, the body politic distributes that power as it pleases, and in the quantity it pleases, and imposes what checks it pleases upon its public functionaries. The natural distribution and the necessary distribution to individual security, is into legislative, executive, and judicial; but it is obvious that every community may make a perfect or imperfect separation and distribution of these powers at its will. It has pleased Pennsylvania, in her constitution, to make what most jurists would pronounce an imperfect separation of those powers; * *
I do not cite this authority to suggest that in the present instance there is any violation of the principle of the separation of powers. Consideration of that question, as I have said, is outside the proper province of this court. But if it is imperfect, we must, nevertheless, respect it as it is and uphold it rigidly until the sovereign power, not a court, sees fit to make it over.
The majority has said that under my view the Legisla*446turc could abolish all the courts, and the Delaware judiciary would be subjected to the “vagaries of legislative whim.” In this opinion it has already been pointed out that the Superior Court was by express constitutional language given common law jurisdiction, and that, of course, is not subject to curtailment at the hands of the General Assembly. As for the supposed impracticability of my conclusion, I seek to draw upon the experience of the United States Government, which, in turn, was so freely drawn upon by the delegates to the Delaware constitutional convention of 1831. We have only one federal court of constitutionally defined jurisdiction. Yet the federal District Courts and the Circuit Courts of Appeals, as well as numerous other federal courts, have been able to continue in existence up to the present without any more protection than that enjoyed by the Delaware Court of Chancery. If it should transpire, however, that the legislative branch of our state government should become as irresponsible and anti-social as the majority feels bound to anticipate, my only answer is that it is our duty to read the constitution as it is, not to improve it.
The point on which this dissent is based was not contested before the Chancellor, so I can say without reflection upon any individual that the reluctance of courts to surrender any part of their jurisdiction is notorious. Where merely another court is concerned, perhaps this attitude is in a rough way fair. But in a contest with the executive or legislative branches of the government, the courts are under the strictest of duties not to take advantage of their position as interpreters of the laws and the constitution. Above all else, we on the courts must respect the sovereign power of the people wherever it has attempted to restrain the judiciary.
Since I believe that in the matter before us we are governed by the expressed will of the General Assembly, I do not consider that the Court of Chancery has jurisdiction of this cause.
Unless otherwise noted, all subsequent references in this opinion are to Article IV of the 1897 Constitution as it stood prior to the adoption of the 1951 Judiciary amendment. This suit was brought prior to that amendment, and in any case, there was no material change made in 1951 in any of the matters with which this opinion is concerned.
in quite another connection it is interesting to note that this language has been held by the majority to be insufficient to “vest” jurisdiction in the courts therein named.
For a comprehensive discussion of this statute see Glanding v. Industrial Trust Co., 28 Del. Ch. 499, 45 A. 2d 553.
Omitting reference to the various session laws, different forms of this same statute appear in the codifications of our laws as follows: Vol. 1, Laws of Delaware; Chap. LIV a, Hall’s Digest of 1829, under the title “Courts,” Chap. I, Sections 21 and 25, respectively; 1852 Code, Chap. 95, Sec. 1, Paragraphs 1932 and 1933; Revised Code of 1893; Par. 704; 1915 Code, Par. 3844.