USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 21
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46
688
COURTS AND LAWYERS
fied the power of the Legislature with the direct consent of the People, to amend the Constitution from time to time, and have secured to the People of the State, the right once in twenty years to pass directly on the question whether they will call a Convention for the revision of the Constitution."
The opinion of members of the convention as to its value were many, and not, of course, all in approval. Taggart, though he disapproved of some parts of the Constitution, thought it improved on the existing system, and he therefore moved that the Constitution be read, adopted and signed. Patterson, in seconding, hoped that it would receive an unani- mous vote, notwithstanding its defects. Henry C. Murphy thought the good overbalanced the evil; Worden favored it; Dana protested against race distinction; Chamberlain, who had voted against the convention, saw "bright spots" in the new Constitution drafted, and would sustain it as a whole, though he would have preferred giving the people opportunity to express their judgment upon each article; Ira Harris pro- nounced the Constitution the best ever made ; Cambreleng was pleased that it clearly separated the legislative, judicial and executive departments. Charles O'Conor, on the other hand, did not hesitate to call the Constitution a signal failure.
There were many outside opinions. Daniel Webster, for instance, wrote to Weed in November, 1846, as follows: "There is much in it that is wrong, in my judgment, but then there is much in it that is right, and the good, I think, is likely in time to root out the evil." This would be a desirable ulti- mate result, but, as time has shown, much even of the good that was done has since been undone, though most that has been undone was that part which was evil. The judicial sys- tem was by no means perfect, and the flaws soon became evi- dent. There were very many who opposed the elective sys- tm and especially a short-term judiciary, dependent almost upon the swing of the political pendulum. However, time works with reformers.
689
CONSTITUTIONAL HISTORY
The new Constitution was submitted to the people on No- vember 3, 1846, the fourteen articles being grouped for ap- proval as a whole. The question of the repeal of the property qualification for colored citizens was, however, separately sub- mitted. The voting was as follows: For the Constitution, 221,528; against, 92,436. For equal suffrage to colored per- sons, 85,306; against, 223,834.
Subsequent to 1867, when another Constitutional Conven- tion was held, the following questions were submitted to the people :
1849-On the adoption of a Free School Law : For, 249,872 ; against, 91,951.
1850-On the repeal of the new School Law:
For, 184,208; against, 209,347.
1854-To provide for the more speedy completion of the canals :
For amending the Constitution, 185,771 ; against, 60,526.
1858 Shall there be a Constitutional Convention :
For, 135,166; against, 141,526.
1859-On a loan of $2,500,000 to pay the floating debt : For, 125,370 : against, 77,466.
1860-On equal suffrage to colored persons :
For, 197,505 ; against, 337,931.
1864-Allowing absent electors in the military service of the United States to vote :
For, 258,795 ; against. 337,934.
1865-Providing for appointment of five Commissioners of Appeals :
For, 56,486: against, 81,532.
1865-Act to create State debt :
For, 393.113; against, 48,665.
C.&L .- 44
CHAPTER XXXI. CONSTITUTIONAL HISTORY.
The Convention of 1867.
The permanent tenure of the judges of the higher courts was, perhaps, the best feature of the judiciary system under the first two State Constitutions. Jurists who were indepen- dent of political or other outside influence were, it was thought, more likely to render impartial decisions, and dignify the course of justice. During the first seventy years of gov- ernment by the State, the Supreme Court bench reached such wide and worthy repute that its decisions were quoted in almost all parts of the country. Those who advocated the ap- pointive system were thus able to point to many striking con- trasts between the permanent judiciary system of the State and the precarious system of colonial days. De Lancey was the only Chief Justice of the colonial courts who held office for many years on a basis of permanent tenure, quamdui bene se gesserint. At least one of his associate justices was similarly commissioned. However, the sad experience of Governor Clinton, who found that he could neither influence the deci- sions of Chief Justice de Lancey nor bring about his removal, convinced later Governors of the folly in commissioning any judges on other than revokable tenure. The English min- isters thought likewise. Upon the death of Chief Justice de Lancey, in 1760, the Crown therefore determined to revert to the old system and permit no judge to sit under a "good behavior" tenure of office. Chief Justice Benjamin Pratt, who succeeded James de Lancey, was content to be com- missioned durante bene placito ; but the associate justices, who were offered commissions of a like indefinite status, "during pleasure," at first declined the office. They had the support of the Assembly. An act was passed by both Assembly and
692
COURTS AND LAWYERS
Council for the appointment of a judiciary of permanent tenure, subject only to good behavior ; and Acting Governor Colden, indeed, gave his approval to the measure. Neverthe- less, the English ministers promptly and emphatically con- demned the system, reprimanded the Governor, and ordered him not to commission any judges, except on the revokable basis, durante bene placito. So, after further demur, the puisne justices of the colonial Supreme Court accepted such commis- sions, the indefinite system continuing until the Revolution. Upon the subject, Judge Daly, in his "Judicial Organization of the State," wrote thus : "A tenure so precarious was productive of very injurious consequences. It not only lessened the inde- pendence of the judges, but as they were generally members of the Council and consequently mixed up with all the political questions of the day, they were liable to be removed, and many were removed upon the change of parties."
The first State Constitution remedied this, though the new system was faulty and gave too much power to the Council of Appointment. It is fortunate, indeed, that authority to remove judges of the upper courts was not vested in the Coun- cil of Appointment, which, for acts of pitiless "machine" tyranny has never been surpassed in the annals of the State. This "political guillotine" was constantly busy. Inferior mag- istrates were often made to feel its fatal power. When, in 1804, Radcliffe resigned his place in the Supreme Court, the Council raised Ambrose Spencer, the attorney-general, to his office and deposed Van Ness, a young Federalist lawyer of eminence, from the office of surrogate of Columbia County ; yet this same Van Ness, notwithstanding his removal as surro- gate, was judged worthy to sit alongside Spencer in the Su- preme Court in later years. Van Buren, who was appointed surrogate of the same county in 1808, underwent similar depo- sition in 1813, when the Federalists obtained control of the Council. This system of reprisals was maintained until the second Constitution abolished the Council of Appointment.
693
CONSTITUTIONAL HISTORY
The framers of that organic law might well have provided that the chancellor and judges of the Supreme Court should hold their offices during good behavior, and have abolished the early age retirement. A further mistake was made in limiting the term of office of county judges to five years. The defects which the Convention of 1846 found in the judicial system were, according to Judge Charles P. Daly (as stated by him in a speech which he made in the Convention of 1867), that the union of Legislature and judges in the Court of Errors was incongruous; that a separate Court of Chancery was neces- sary, that the scheme devised in 1821 by which one class of judges of the Supreme Court called circuit judges, tried causes, while another class heard appeals, had worked badly and been universally condemned; and that a single Supreme Court of three judges, holding sessions at four different places in the State was insufficient for public business and inconvenient to the profession. The remedy adopted in 1846 was the creation of a Supreme Court of many branches, with numerous judges sitting simultaneously in different parts of the State, and a Court of Appeals, one-half of whose members sat for eight years while the other half changed every year, and it was vainly hoped that by the establishment of Courts of Concili- ation that the volume of litigation would be diminished. But the solution attempted in 1846 proved no panacea, for litiga- tion grew in amount, reported cases multiplied beyond antici- pation, and suitors rarely resorted to arbitration of their dif- ferences. Besides reconstituting the courts, the convention made the judges elective, and required their election at short intervals, with the mistaken idea of making them directly re- sponsible to the people.
The disordered condition of the finances of the State an- tecedent to the act of 1842, and the necessity for making that law irrepealable by the enactment of a constitutional pledge of State revenues to the redemption of the State debt, and for putting a constitutional check upon the loan of State credit to
694
COURTS AND LAWYERS
private capital, were the chief motives for the popoular ref- erendum in favor of a convention. Deeper and more general causes than widespread desire to get rid of debt were simul- taneously at work, and these causes profoundly influenced the proceedings of the convention. In the seventy years of its existence, the political character of the State had undergone a revolution. The vote for Governor and for Senators under the first Constitution was limited to owners of land in fee or freehold, and in the choice of Assemblymen only property holders participated. The suffrage was placed on a broad foundation in 1826, but it remained partly theoretical under the second Constitution. The democratic movements that swept over America within the succeeding twenty years, and were felt in Europe also, produced a creed that declared frequent popular election the solvent for all political ills. The incum- bent of every office should be elected by the people, and to pre- serve responsibility to the electors, the tenure of office should be short. The new cult attacked the judiciary. Hence, the Convention of 1846 reported in favor of electing judges, and of substituting for the tenure of good behavior a fixed term of eight years, thus overlooking the most fundamental consid- eration-the independence of the judge-which is completely attainable only with full immunity from removal during good behavior, with a reasonable age limit, whether the removing power be Governor, Legislature, or people.
This was the most radical change proposed by the conven- tion. The members of the judiciary committee, numbering some of the most eminent lawyers of the State, among them David Dudley Field, Charles O'Conor, Charles H. Ruggles and John W. Brown, were not in accord in their views as to the reconstitution of the judicial system. This part of the work of the convention was largely a matter of compromise, and was pronounced by O'Conor a "signal failure." The Court of Impeachment was preserved, with the substitution of the judges of the Court of Appeals for the chancellor and the Su-
695
CONSTITUTIONAL HISTORY
preme Court judges ; but the ancient Court of Errors was abol- ished. A clearer notion of the distinction between legislative and judicial functions had developed since this tribunal, partly modelled on the English House of Lords, was created, and legislative duties had grown to be more engrossing. It was said that the court had never declared an act of the Legisla- ture invalid, and how, it was asked, could Senators who had taken part in framing laws be expected, as members of the Court of Errors, to pronounce unfavorable judgment upon their own work? The Council of Revision had a substantial veto upon legislation, but the second Constitution, although it had abolished that council, had provided no corresponding check, for the chancellor and the Supreme Court judges formed, in the Court of Errors, an uninfluential minority. The new Court of Appeals bore a rough analogy to the former Court of Errors, in consisting partly of judges elected at large, and partly of judges designated from the Supreme Court bench, the latter corresponding to the chancellor and the judges of the old Supreme Court. All the Senators had not been lawyers, and it was not intended that all the judges elected at large should be drawn from the bar. According to Ruggles, an advocate of the plan, it was meant to preserve a popular feature of the old court, and the presence of laymen not educated in the legal profession might in many cases be useful. O'Conor unsuccessfully argued for a scheme to make the new court consist of the Lieutenant-Governor, eight to twelve judges elected at large and two judges of the Supreme Court, the latter to have no voice in reviewing their own de- cisions. The office of circuit judge was abolished, for it was believed to be better, said Ruggles, that judges who assemble to reexamine the decisions at the circuits, should themselves hold the circuit courts, and thus be brought into direct contact with the people and their business. After a trial for fifty years of the substituted plan, the State, in 1895, reverted in a measure to the substance of the old system of circuit judges-
69€
COURTS AND LAWYERS
in the separation made in that year between Appellate Divi- sions and other Supreme Court justices.
The Convention of 1846 created a new Supreme Court, not with the malevolent purpose of wreaking vengeance on any judge by abolishing his office, as had been done in 1821, but because the alteration of tenure rendered a new court neces- sary. For the old term to continue during good behavior, with its absurd age limit, the convention unwisely substituted a short term of eight years. In the organization of the court, the State was divided into eight districts. All chancery and common law jurisdiction was vested in this new tribunal. Intermediate Appellate Courts, designated as general terms, were created, but serious conflict of decision was made possible by the establishment of eight such courts with coordinate jurisdiction. The duties and functions of the circuit judge and the chancellor were confided to the Supreme Court justices sitting either at nisi prius or at special term. The convention also erected Surrogates' Courts into constitutional tribunals but scarcely extended their powers.
When the ancient Court of Errors fell, there fell also the interdict forbidding the chancellor and the Supreme Court judges from voting to support their own judgments in cases which had previously come before them. In the first reported case in the new Court of Appeals, the right of a judge to sit and vote in review of his own decisions was enunciated. Judge Bronson advocated this, and some others practiced it, as is stated in the review of the Court of Errors, q. v. That human nature, even upon the bench, should discard pride of opinion does not conform with experience. All history testi- fies to the inflexibility of individual opinion, and there is noth- ing to exempt the wearer of the ermine from subjection to the general law. The Constitution had taken a backward step in expecting the judicial mind to emancipate itself from precon- ceptions. The Convention of 1867, in revising the judiciary article in the light of intervening history-most interesting
697
CONSTITUTIONAL HISTORY
history, since it showed how far the judges fell below this impracticable standard-provided that no judge or justice should sit in an Appellate Court in review of a decision made by him or by any court of which he was at the time a sitting member; and this provision has ever since remained in the organic law.
Mississippi was, it is stated, the first to adopt the elective system in constituting its judiciary ; provision for the election of all judges by the people being provided for by its second Constitution, in 1832. Eleven other States quickly followed the example of Mississippi, and between 1850 and 1860 nine more were added to the list. Iowa provided for the election of all Supreme Court judges, when framing its first Constitution in 1846. In 1860, twenty-four of the thirty-four States of the Union had to some extent introduced the elective system. Then came the reaction, very many believing that short terms were inadvisable, even if the elective system should be re- tained; but several wishing for an entirely independent ju- diciary, which they felt was not possible, except by the ap- pointive system. As was evidenced in the work of the New York Convention of 1867, there were many delegates who opposed the elective system.
In accordance with Article 13 of the Constitution of 1846, the question was submitted to the people of the State, at the general election held in 1866, whether a convention should be called to amend and revise the Constitution. The question was decided in the affirmative, by a vote of 352,854 in favor of a convention to 256,364 against it. In the following winter the Legislature of the State passed a law providing for the election of one hundred and twenty-eight delegates from the various Senatorial districts of the State and also for the elec- tion of thirty-two delegates for the State at large.1 The plan
CONVENTION OF 1867.
I. Delegates to the Convention of 1867-President, William A. Wheeler ; Secretary, Luther Caldwell; Sergeant-at-Arms, Samuel C. Pierce. At large: Charles Andrews,* Henry D. Barto,t Tracy Beadle,* Marshall B.
698
COURTS AND LAWYERS
adopted by the Legislature for the election of delegates-at-large introduced the principle of minority representation. No elec- tor was permitted to vote for more than sixteen of such dele- gates ; a provision which secured the election of sixteen Dem- ocratic and sixteen Republican delegates-at-large. Of the dis- trict delegates the Republicans had a majority ; so that they were able to elect the president of the convention and, to a certain extent, to control its committees. The epoch was not favorable for the holding of a Constitutional Convention, as partisan feeling then ran very high. The conflict between President Johnson and the Congress of the United States had reached its culmination, and the country was disquieted with the excitement which this contest had produced. The Presi- dential election was near at hand, and it was evident to polit- ical managers that slight circumstances might turn the scale.
In this convention, as in all the earlier ones, the lawyers were in a large majority ; and among them were some of the
Champlain, Henry O. Chesebro,t Sanford E. Church,t George F. Comstock, Erastus Cooke,* George William Curtis,* Augustus J. H. Duganne,* Wil- liam M. Evarts, Charles J. Folger,* Augustus Frank,* Horace Greeley, Jacob Hardenbergh,+ Ira Harris,* Waldo Hutchins,* Francis Kernan, George Law, John Magee, Joseph G. Masten, Henry C. Murphy,; Homer A. Nelson,t George Opdyke,* Alonzo C. Paige, Erastus S. Prosser,* Augustus Schell,+ David L. Seymour, Martin I. Townsend,* Joshua M. Van Cott,* Smith M. Weed, William A. Wheeler. Ist District: Erastus Brooks, Selah B. Strong, Solomon Townsend,* William Wickham.t 2nd : Daniel P. Barnard,t Walter L. Livingston,t Charles Lowrey, John P. Rolfe.t 3rd : Teunis G. Bergen,t Stephen I. Calahan, John G. Schumaker,; William D. Veeder.+ 4th: John E. Burrill, Charles P. Daly,; Samuel B. Garvin,t Abraham R. Lawrence, Jr. 5th: Elbridge T. Gerry, Nathaniel Jarvis, Jr., Henry Rogers,t Norman Stratton .* 6th: Magnus Gross,t Frederick W. Loew, Abraham D. Russell, Gideon J. Tucker.t 7th: James Brooks, Edwards Pierrepont, Anthony L. Robertson, Samuel J. Tilden. 8th: John E. Develin,t William Hitchman,; Richard L. Larremore, Claudius L. Monell. 9th: Robert Cochran, Abraham B. Conger,t William H. Morris,t Abraham B. Tappen. Ioth: Stephen W. Fullerton,* William H. Houston,* Clinton V. R. Ludington,* Gideon Wales .* IIth: B. Platt Carpenter, John Stanton Gould,* Francis Sylvester,* Wilson B. Sheldon. 12th: Cornelius L. Allen,* Jonathan P. Armstrong,* John M. Francis,* Adolphus F. Hitch- cock .* 13th : William Cassidy,t Erastus Corning,; Amasa J. Parker,t James Roy.+ 14th : Manly B. Mattice,; Ezekiel P. More,t Marius Schoon- maker, Solomon G. Young. 15th: Hezekiah Baker,* Judson S. Landon,*
699
CONSTITUTIONAL HISTORY
most prominent lawyers in the State. Horace Greeley, George William Curtis and Erastus Brooks were also delegates. Some of the ablest men in the convention had been chosen as delegates-at-large. Hon. William A. Wheeler was elected permanent chairman; and he presided very ably and impar- tially. The convention assembled on the first Tuesday of June, 1867, and terminated its labors on the 28th of February, I868.
Debate in the convention took an exceedingly wide range. Among the topics which received long and thorough discus- sion were the right of colored citizens to vote on equal terms with white men, a subject which had engaged the attention of the conventions of 1821 and 1846; female suffrage; minority representation ; taxation ; the appointment instead of the elec- tion of judges, district attorneys and State officers; special legislation ; emancipation of cities ; bribery ; education ; intem- perance.
Alembert Pond,* Horace E. Smith .* 16th: Nathan G. Axtell, George M. Beckwith,* Andrew J. Cheritree,* Matthew Hale .* 17th: William C. Brown,* Edwin A. Merritt .* Leslie W. Russell,* Joel J. Seaver .* 18th : James A. Bell,* Marcus Bickford,* Edward A. Brown,* Milton H. Merwin .* 19th : Theodore W. Dwight, Benjamin N. Huntington, Richard U. Sher- man, George Williams .* 20th : Oliver B. Beals,* John Eddy,* Elijah E. Ferry,* Ezra Graves .* 2Ist: Lester M. Case,* Loring Fowler,* M. Lindley Lee, Elias Root .* 22nd : Thomas G. Alvord,* Horatio Ballard, Patrick Corbett,* L. Harris Hiscock (a), Frank Hiscock (b). 23rd: John Grant,* Hobart Krum,* Samuel F. Miller,* Elizur H. Prindle .* 24th: Milo Good- rich, Stephen D. Hand,* Oliver H. P. Kinney,* Charles E. Parker .* 25th : Ornon Archer,* Charles C. Dwight,* Leander S. Ketcham,* George Rath- bun. 26th: Sterling G. Hadley,* Elbridge G. Lapham,* Meletiah H. Law- rence,* Angus McDonald .* 27th: Elijah P. Brooks,* Abraham Lawrence,* David Rumsey, George T. Spencer .* 28th : Freeman Clarke,* Lorenzo D. Ely,* Jerome Fuller,* William A. Reynolds .* 29th: Levi F. Bowen,* Ben Field,* Thomas T. Flagler,* Seth Wakeman .* 30th: Isaac L. Endress,* Edward J. Farnum,* John M. Hammond,* William H. Merrill .* 3Ist : George W. Clinton,* Israel T. Hatch, Allen Potter, Isaac A. Verplanck.t 32nd: Augustus F. Allen,* Norman M. Allen,* George Barker, George Van Campen .*
Members of the Convention voting in favor of the adoption of the Con- stitution are marked thus (*). Those opposed, thus (+). All others were absent, or did not vote. Figures before names signify Senatorial District.
(a) Killed in Stanwix Hall, June 4, 1867.
(b) Elected June 25, 1867, to fill vacancy.
700
COURTS AND LAWYERS
The convention proposed to abrogate property qualifica- tions for colored voters; but this proposition, although sep- arately submitted to the people at the election of 1869, was defeated ; 282,403 voters insisting on the retention of the quali- fications, and only 249,802 voting for their abolition. The old restrictions on colored voters therefore continued in force until they were overridden by the fifteenth amendment to the Na- tional Constitution.
In some respects the Convention of 1867 exhibited a marked reaction from the decentralizing spirit which animated the Convention of 1846. This disposition is chiefly observ- able in its treatment of the mode of selection and term of Sen- ators; in its return to county representation in the Assembly, partly abandoned in 1846; in its lengthening the judicial term and providing for the election of the entire Court of Appeals upon a general ticket, and its debates upon the proposition to appoint State officers and district attorneys. Upon the other hand the amendment which it reported, conferring increased legislative functions upon county boards of supervisors, was a further advance in the line of decentralization.
When the Convention of 1845 determined to break the State up into thirty-two Senate districts, it did so in obedience to the demand of localities for separate representation in each house. It was then seriously argued that under the Constitu- tion of 1822 candidates had been chosen to the Senate for whom voters never intended to cast their ballots. One illus- tration frequently pressed into service related to a youthful candidate for Senatorial honor, who was elected because many of his constituents in a distant part of his district had cast their suffrages for him in the belief that he was another and a maturer person of the same name. Since the development of the increased facilities for the dissemination of news which later generations have witnessed, such mistakes (if they ever occurred) are rendered well nigh impossible. As a rule, under the former system, with the State subdivided into a small num-
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.