USA > New York > Civil List and Constitutional History of the Colony and State of New York > Part 32
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By a provision in the second Constitution equity powers were vested in the Circuit Judges, subject to the appellate jurisdiction of the Chancellor. An act was passed April 17, 1823, to carry out this provision. It authorized each Cirenit Judge to appoint a Clerk for the Court of Equity to be held by him, who should also perform the duties of a Register in said Court. The Judges were directed to devise a seal for the clerks, to be used in all equity proceedings. These Courts were subsequently abolished ; the Chancellor was invested with general equity jurisdiction, the Circuit Judges acting as Vice-Chancellor in their respective cirenits.
Masters and Examiners were appointed by the Governor and Senate for three years, unless sooner removed; and the Registers and Assistant Registers by the Chancellor during pleasure. In 1823 there were five hundred and ten Masters and twenty-five Examiners.
In Jannary, 1831, a separate Vice-Chancellorship for the first Circuit was established, and in March, 1839, one for the eighth Circuit, the office holding by the same tenure as that of Chancellor. The office of the former was in New York, the latter in Rochester. In March, 1839, an Assistant Vice-Chancellor was established for the first Circuit.
Pursuant to the Constitution of 1846, the Court of Chancery ceased its existence the first Monday of July, 1847, and its powers were vested in the Supreme Court.
279
COURTS OF CHANCERY.
OFFICERS OF THE COLONIAL COURT OF CHANCERY.
01110. 1.8.
APPOINTED.
OFFICERS.
APPOINTED.
Chancellors.
The Governor or kis Deputy.
Stephen van Cortlandt
Registers.
The Governor
Marcin,
John Spragg.
Dec.
Secretary of the Province.
Oct. 12, 1641
Masters of the Rolls.
Dec. 29, 1051
Gilbert Living -lo0
Dee. 22, 1:20
James Jauncey, Jr.
March 21, 1770
Masters.
Goldsborow Bany.ar
5. 1733
Thomas Noch
Sept. 2, 1701
Johannis De Peyster
Ebenezer Willson
1
John Knight 1
Dec. 29. 16~1
Evert Bancker,
I-aac Swinton ...
De. 17, 1085
Kip van Dam ..
Oct. 1, 1711
Abrahim Gouverneur.
Sept. 2. 1701
Robert Walters
1
Dec. 22, 1720
Sampson Broughton
Oct.
t. 1:11
Cadwallader Colden.
William Sharpas
Dec.
22. 1.20
John Cruger .....
July 23, 173%
John Robinson. 11. 1710
Jan.
Henry Holland ..
Max 20, 1713
John Buruet
Ang.
19. 1715
Elward Holland
Sept. 12, 1715
Anthony Rutgers
April
31, 1751
James Dnatn' ..
April
20, 1762
Stephen De Landey
March 27, 1750
Sergeants-at- Arms.
Dec. 10. 10 .7
JJolin Gara. . ..
April
150
Barne Cozens ..
Sept. 2, 1701
lolin Gara ..
1722
William Anderson .....
March 20.1705
Charts Wood ..
Feb. 2. 1.41
Francis Harison
Ort. 1, 1711
Joli Groesbeek
17. 171%
Richard Nicholls.
13. 1710
George Dunem
March 11. 1752
John Buruet ...
1761
Christ. lnbdell
May 21. 1700
STATE COURT OF CHANCERY.
CHANCELLORS.
APPOINTED.
VICE-CHANCELLORS.
APPOINTED.
Robert R. Livingston 1.
5. 1777
William T. McCom.
March 16. 1531
foli Lausing, Jr.
De1. 21. 1001
Lewis IL. Santord 2
Max 12. 1-16
James Kent
() .1. 25. 1-11
Frederick Whittlesey
April 15. 150
Nathan Sanford.
August 1. 1-23
First Girenit. 3
Reuben H. Walworth
April
Murray Hoffman
April 1. 1-39
Lewis MI Sudord ..
March 11. 1-13
Anthony L. Robertson 1
May 12. 1-16
CASES REPORTED.
WILLIAM JonSSON, from March. I-11, to Jnie. 1 2%.
7 vols.
SAMUEL MILES HOPKINS, From September, 1-3, 10 January, 12%
Alonzo C. Pvier, from April, 182%, to May. 1516 11 vols.
OLIVER L. BRBorn. From Angust, 1815. to June. 1 1s 3 vol.
CHABLIS EDWARDS, 133-1:13. before William T. MeConn, Vice-Chancellor. 1 Vol.
MURRAY HOFFMAN. 1:39, 1810, before M. Hoffman, Assistant Vice-Chancellor
1 Vol.
CHARLES L. CLARKE, before Frederick Whittlesey, Vice-Chancellor. sth Cirenit
I vol.
1 Appointed to Convention. Commissioned October 17, ETC. Re-elected June 27. 1783. in consequence of double having arisen whether he had not vacated his office for accepting that of Secretary of Foreign Affairs under Congress. He resigned that office soon after its acceptance.
2 Appointed, rice MeCoun, aged 60.
3 Assistant Vice-Chancellors.
8, 1775
The Governor
Ang. 28, 1701
Barne Sazen ....
Sept. 2.1701
Bemy Wilem ..
Ort. 1. 1711
Isaac Bobin 3.17 '1
Frederick Morris N. 1730
Nov.
Samuel Bayard
17:1
William Peartree
Jolin Abrel,
Albany 13, 1705
David Jamison ...
Ort. 12. 1691
Caleb Heathcote
Nov. 1,1711
Richard Harris
William Sharpas .
1
Ocl. 4. 1711
Rip van Dam ..
1
Robert Lurting
1
Dec. 22, 1720
Robert Livingston, Jr. 1
William Smith, Jr.
Jan. 16. 171%
Sept. 24, 1792
Cary Ludlow ..
1775
John Cavalier
Fatminers.
George iucan
Jolm van Cortland
P. P. Schuyler ....
James De Pie
John Rousevelt
James Graham ...... $
Adolph Philipse
.1705
Thennas William Willett Bevens .
lan. 21. 1-26
A Duties to commence after October 1, 1spi.
280
COLONIAL SUPREME COURT.
SUPREME COURT.
The Supreme Court was originally established by an act of the Legislature, May 6, 1691, continned by divers acts, which having expired by limitation in 1698, the court was continued by proclama- tion January 19, 1699, and finally by ordinance of the Governor and Council, dated May 15, 1699.
It was empowered totry all pleas, civil, criminal or mixed, as fully and amply as the English Courts of Kings Bench, Common Pleas and Exchequer, and was possessed of all the powers of those courts, though it was not supplied with their officers, and did not proceed on the equity side. Any action amounting to upwards of twenty pounds could be commenced in or removed to it. It could correct the errors and revise the judgments of inferior courts. Appeals lay from it to Governor and Council, for any judgment above £100 sterling, which sim was increased, in 1753, to £300. It had four terms in a year, and always sat in the city of New York; the practice was modeled after that of the Kings Bench. By act of the General Assembly, the judges were made Judges of Nisi Prius. and annually performed a cirenit through the counties, at which time they also had a commission of oyer and terminer and general jail delivery, in which some of the county judges were joined. This commission was issued by the Governor, and was directed to the judges named in the commission.
The court consisted at first of five judges, two of whom, together with the chief justice, constituted a quorum. From 1701 until 1758, it was composed of a chief justice and two associate or puisne judges. In November, 1758, a fourth judge was added. In 1769 the distinction of the associates as 20, 3d and 4th was abolished, and thenceforth the puisne judges ranked according to the dates of their commissions. In 1691 the salary of the chief justice was £130, and associate justices £100. The other justices did not receive a salary. In 1698 the chief justice received $100. In 1702 he received £300 and a fee of ten shillings on the first motion in every cause, the second judge £150, the associate £50. In 1765 the chief justice was allowed £300, and the associates £200 for holding the circuits. In 1774, the chief justice received from the crown £500 sterling, and 8300 New York currency from the province. The associate jus- tices each received £200 provincial currency, and fees.
The judges and those practicing before them, wore no particular costume, nor was there any distinction or degrees among the lawyers.
281
REORGANIZATION OF THE SUPREME COURT.
Persons who had served seven years under an attorney, or had taken a collegiate course and served three years' apprenticeship, were granted licenses to practice in this court by the Governor, under his seal, on the recommendation of the Chief Justice, and on subserib- ing the usual oaths.
The First Constitution of the State recognized the Supreme Court as then existing, and the Convention which adopted it re- organized the Court May 3, 1777. On the reorganization of the Court in 1778, the Judges were empowered to devise a seal (act of March 16, 1778), and the proceedings were directed to be in the name of the People of the State instead of that of the King. The Judges were appointed by the Council of Appointment, and their terms of office limited to the age of sixty years.' At first the Conrt consisted of three members, but a fourth was added in 1792, and a fifth in 1794. On the 4th of April, 1778, the salary of the Chief Justice was fixed at $300 (8750 New York currency) per amum. The Associate Justices were allowed £200 (8500 New York currency), and forty shillings per day for attendance on the Over and Terminer, and their travel fees. These sums were grad- ually increased until, in 1797, each Justice received a salary of $2,000 per annum. On the 19th of June, 1812, their salaries were fixed at the annual sum of $3,000 for three years. On the 17th of April, 1816, the sum was increased to 84,500, without limit as to time. On the 20th of April it was enacted that the Justices residing in the city of New York should be entitled to receive fees for the transaction of Chamber business, and other services appertaining to their offices. In 1820 the salaries were reduced to $3,500, and in 1521 to 83,000, at which they remained until the Second Constitu- tion went into effect.
In 1755, two terms of the Court were directed to be held in Albany each year, and two in New York ; the former commene- ing the last Tuesday in July and third Tuesday in October, the latter the third Tuesdays of January and April. The April and October terms continued three weeks, and the January and July terms two. After the 30th of March, 1811, the terms of the Court were commeneed on the third Monday of October and the first Mondays in January, May and August, and closed Saturday of the
1 The duty of revising the laws in force, with notes and references, had been assigned, in 17th, to Daniel Horsmanden, Justice in the Supreme Court ; but this, from his advanced age, was not performed. Thisis said to have caused the adoption of the principle, continued while the court existed, of limiting the tenure of office of the Judges to the age of sixty years, to avoid the inconveniences that might result from the intiruaties of advanced age. - Seward's Hist. Introd. to Nat. Ilist. of N. Y., p. 55.
282
EARLY HISTORY OF THE STATE COURT.
ensuing week. The May and October terms were held in New York, and the January and August terms in Albany.
In 1785 it was provided that the office of the Clerk should be kept in New York city and that of his deputy in Albany, all the papers and records filed in the office of the latter to be removed every six months to the office of the former. March 10, 1707, the Judges were authorized to appoint an additional Clerk, who was to keep his office in Albany, and to remove such papers from the New York to the Albany office as they might deem proper. They were also required to cause an additional seal to be prepared. On the 4th of April, 1807, another office was authorized and located in Utica, and the Justices authorized to devise another seal. The clerks were directed to furnish each other, at every term, a transcript of the docket of all judgments in their offices.
April 7, 1804, a Reporter was anthorized to be appointed by the Judges, at a salary of $850 per annum, to report the decisions of the Supreme Court and the Court for the Correction of Errors, and to publish the same.
On the 19th of April, 1786, the Legislature enacted that issues joined should be tried in counties where the lands were situated, the cause of action arose, or the offense was committed, unless the Court should order the trial to be had at the bar of the Court. This provision was not applicable to actions of a transitory nature, and the Court conld, notwithstanding, order trials by juries in other counties in all proper and necessary cases.
The first rules of the Court were adopted at the April term, 1796. They were drawn by Judge Benson. Under these rules any person could practice as an attorney who had served a clerkship of seven years with a practicing attorney. From this term of seven years should be deducted the time passed in classical studies after attaining the age of fourteen years, provided such period did not exceed four years. After an attorney had practiced four years he was admitted to practice as counsel. This period was reduced to three years at the November term in 1804. Judge Kent first introduced the practice of presenting written opinions on matters of importance. The seal of this Court is given on Plate O, No. 4.
Several important and organic changes were made in the Supreme Court by the Constitution of 1821. The Supreme Court sat four times a year in review of their decisions, and for the determination of questions of law. Each Justice of the Supreme Court, however, had power to hold Circuit Courts as well as the Circuit Judges, and
283
POWERS OF THE SUPREME COURT.
any Justice of the Supreme Court could likewise preside at the Oyer and Terminer.
In the Supreme Court, all process was to be tested in the name of the Chief Justice, if there was one; if not, then in the name of any Justice of the Court. The Court had power, from time to time, to amend its practice in cases not provided for by statute, and was directed every seven years to revise its rules, so as to ultimately secure the abolishment of fictitious and unnecessary process and proceedings; the simplifying of pleadings and proceedings; expe- diting the decisions of causes, dimmshing costs and remedying abuses and imperfections in practice.
The Judges were appointed by the Governor, with the advice and consent of the Senate. They held their offices during good behavior, or until they attained the age of sixty; and were remov- able by joint resolution of the Legislature, concurred in by two- thirds of the Assembly and a majority of the Senate. They could hold no other office, were exempted from military duty, could receive no fees or perquisites, could not sit in any case in which they were directly or indirectly interested, nor take part in the decision of any case passed on by them in any other court, nor practice as attor- neys and counsellors, nor have partuers who did, except in cases in which they were interested.
The Judges were reduced to three. From 1823 they were allowed an annual salary of $2,000 each ; which sum was increased to $2,500 in 1835, and in 1839 permanently to 83,000. The act of 1835 abolished their compensation for travel and attendance as members of the Court of Errors.
In 1823 the terms of the Court were held the third Mondays of February and October, and first Mondays of May and August ; the May term to be in the city of New York, the August term at Utica, and the February and October terms at Albany. The terms con- tinued four weeks, but no process was to be tested or made return- able the last two weeks. Subsequently the terms commenced on the first Mondays of January, May and July, and the third Monday of October; the January and October terms at the Capitol in Albany, the May term at the City Hall in New York, and the July term at the Academy in Utica. These terms were held five weeks ; but no argiunent was to be heard the last week except by consent of parties and counsel, and no process was to be issued, tested or re- turned after the second Saturday, except subpoenas, attachments and writs of habeas corpus. In 1841 the October term was changed
284
COURT OF EXCHEQUER.
from Albany to Rochester, and one of the Justices was required to sit at the Capitol in Albany to decide such non-enumerated business as should arise, except such as should be directed by rule to be heard in term time.
Clerks' offices were continued at New York, Albany and Utica. I .: 1829 an additional one was established in Canandaigua, which was removed in 1831 to Geneva, and in 1841 to Rochester. Each Clerk possessed a seal of the Court. The Clerks were appointed by the Justices for three years unless sooner removed, and were directed to appoint deputies. The Justices could order the removal of papers from one office to another at any time.
A Reporter for the Supreme Court and Court of Errors was directed to be appointed by the Lientenant-Governor, Chancellor and Chief Justice, to hold office during their pleasure, who was to be a coun- sellor-at-law or in Chancery of at least five years standing.
A Court of Exchequer was erected by Gov. DONGAN in 1685, and was composed of the Governor and Council. It had jurisdiction over all matters relating to his Majesty's lands, rents, rights, profits and revenues. The act of 1691 gave the Supreme Court cogni- zance of matters in exchequer, thus doing away with the necessity for a separate Court of Exchequer. It was reorganized as a branch of the Supreme Court, by an act passed February 9, 1786, for the bet- ter levying and accounting for fines, forfeitures, issues, amercements and debts due to the people of the State. The junior Justice of the Supreme Court (or in his absence one other of the Puisue Justices), was constituted the Judge of the Court, which was instituted for de- termining all causes mentioned in the above title of the act institut- ing it, in which he was to proceed according to law and the course of the Exchequer. A seal was directed to be made and a Clerk ap- pointed. The seal was adopted July 17, 1786, and is thus described : "Lozengy, argent and Jules, supported on the sinister side by Jus- tice standing on a floor, lozengy, sable and argent ; each of the sable checks charged with a star."! William Popham was the only Clerk of the Court, holding the office from the date of his appointment, July 17, 1786, until January 1, 1830, when the Court was abolished pursuant to the general repealing act of December 10, 1828.
The Constitution of 1846 abolished the Supreme Court as it then existed, and established a new one, having general jurisdiction in
1 An illegible impression of this seal is on file in the Secretary's office.
285
EXISTING SUPREME COURT.
law and equity. It authorized the division of the State into eight judicial districts, which was accomplished, and the several districts defined by an act of the Legislature passed May 8, 1847 (ch. 241), which also provided for the election of thirty-three Justices of the Supreme Court, of which mumber the first district was entitled to five, and the remaining districts to four each; they were so classified that one in each district should go out of office every two years; the term of office of their successors being fixed at eight years.
The General Terms of the Court in the several districts were to be held by a presiding Justice and two associate Justices, to be desig- nated according to law. Either of the Justices might hold a Special Term of the Court-a Circuit Court -or preside in Courts of Oyer and Terminer in any county of the State. The Justices were to be elected by the electors of the several districts at such times as might be prescribed by law, and were to receive, at stated times, compensation to be fixed by law ; they were prohibited from receiv- iug fees, and could hold no other office or public trust. A Justice might be removed from office by concurrent resolution of both houses of the Legislature, provided two-thirds of all of the members elected to the Assembly and a majority of all the members elected to the Senate concurred, after charges had been. preferred and the ac- cused given opportunity to be heard in hisdefense; vacancies in the office were to be filled by the Governor, until the same should be filled at the next general election of Justices. The clerks of the several counties were constituted its clerks and their seals the seal of the Court, and all of its decisions were free for publication by any person.
The " Act in relation to the Judiciary," passed May 12, 1847 (ch. 280), provided for the classification of the Justices of the Supreme Court, by lot ; the classes drawn to have respectively two, four, six and eight years to serve, the Justice having the shortest term to serve, who was not a Judge of the Court of Appeals, was designated as presiding Justice of the Supreme Court; which possessed the same powers and jurisdiction as the former Court of Chancery and Supreme Court, and its Justices were clothed with the powers and ex- ercised the jurisdiction of Justices of the former Supreme Court ; the Chancellor and Vice-Chancellors and Cirenit Judges. The act further provided that there should be General Terms of the Court held in every county of the State having a population exceeding 40,000, at least once in each year, and in the other counties at least once in two years. The Supreme Court was empowered with the appointment of the times and places of holding the General and Special Terms
286
EXISTING SUPREME COURT.
thereof, and the terms of the Cirenit Court and Court of Oyer and Terminer, and at least two Special Terms and two Circuit Courts were required to be held yearly in each county, excepting Hamilton. At any General Term, the Court might remove justices of the peace and judges and justices of inferior courts not of record. No Justice of the Supreme Court could practice as an attorney or counselor in any Court of the State, nor have voice in the decision of a canse in which he had been counsel or attorney. The Court, at General Term is authorized to admit persons properly qualified to practice as attorneys, solicitors and counsellors in all courts of the State.
The Supreme Court by an order made July 14, 1847, prescribed the times and places of holding General and Special Terms, and Cirenit Courts and Courts of Oyer and Terminer. The provisions of this order were superseded by the Code of Procedure adopted by the Legislature in 1848, and amended and re-enacted in 1849, which required that at least four General Terms should be held annually in each judicial district, at such times and places as the Justices in the several districts should appoint. The act as passed in 1848 specified the number of Special Terms, Cirenit Courts and Courts of Oyer and Terminer to be held annually in each county ; it was so amended in 1849 that at least two terms of the Cirenit Court and Cont of Oyer and Terminer were required to be held in each county; for this purpose Fulton and Hamilton were treated as one county.
The Governor was required to designate the times and places of holding the General and Special Terms, and the Circuit Courts and Courts of Oyer and Terminer and the Justices to hold the same until December 31, 1849 ; and every two years thereafter the Jus- tices in each distriet were required to make the like designation in their respective districts. The Governor was also empowered to ap- point extraordinary General and Special Terms and Cirenit Courts and Courts of Oyer and Terminer, whenever in his judgment the publie good might require it. By this act the distinction between actions at law and suits in equity, and in the forms of procedure therein, was abolished, it also regulated the time and manner of commencing civil actions, and (in connection with the rules adopted by the Court) the mode of procedure therein. An appeal might be taken to the Supreme Court from a judgment rendered in a County, Mayor's or Recorder's Court, and must be heard at General Term; an appeal might also be taken to the General Term, from an order or decision of a single Justice of Special Term or Circuit or Chambers, and from a judgment rendered in an action commenced
287
EXISTING SUPREME COURT.
in the Supreme Court. The salary of a Supreme Court Justice was $2.500, but by act of April 18, 1857 (ch. 792) the compensation was fixed at $3,500 per annum.
An amended Article VI of the Constitution, called the Judiciary Article, was framed by delegates elected April 23, 1867 (under chapter 194, Laws of 1867), to a Constitutional Convention convened pursuant to section two, article thirteen of the Constitution, by a vote of the people November 6, 1866. The Convention met at Albany, June 4, 1867, and adjourned February 28, 1868. The amended Article VI was submitted to a vote of the people, sepa- rately from the remainder of the amended Constitution, pursuant to chapter 318, Laws of 1869, and was ratified November 2, 1869. It continued the then existing Supreme Court, with general jurisdiction in law and equity, composed of the Justices then in office, during the remainder of their official terms, and of their successors. The existing judicial districts, eight in mber, were continued until changed pursuant to law. Five of the JJustices were required to re- side in the first judicial district in which is the city of New York, and four in each of the other districts.1
It was directed that provision should be made by the Legislature, from time to time, but not oftener than once in five years, for or- ganizing in the Supreme Court not more than four General Terms thereof ; each to be composed of a presiding Justice, and not more than three other Justices to be designated according to law, from the whole number of Justices; and provision was also to be made by law for holding the General Terms in each district. Vacancies in the office of Justice to be filled for a full term at the next general election happening not less than three months after the same shall ocenr, and until so filled, the Governor, by and with the advice and consent of the Senate, if in session, or if not in session, the Gov- ernor alone to appoint to fill such vacancy, which appointment con- times in force until and including the last day of December after the election at which the same shall be filled. Justices may be re- moved by concurrent resolution of both houses of the Legislature provided two-thirds of all the members elected thereto concur therein after charges have been preferred and the accused been given op- portunity to be heard thereon.
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