USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 30
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I. "Colonial Laws of New York," Vol. I, p. 128.
2. By the Act of 1691, the privilege of appeal was extended to any "sojourner within the province," and it was provided that appeals should be taken "from the courts of mayor and aldermen and courts of common pleas, to the Supreme Court, for any judgment above the value of twenty pounds. And from the Supreme Court to the governor and councill for any decree of judgment above the value of three hundred pounds."-"Co- lonial Laws of New York," Vol II, p. 230.
3. This evidently cannot mean more than that notice of appeal should be registered with the representative of the King, i. e., the Governor, within the time-limit; obviously it would be impossible, in those days of slow movement to appeal in England within fourteen days of the decision of the provincial court.
4. "Civil List of New York" (1888), p. 319.
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and Council, and from the latter to the King in Council with - out limitation of any sum.
The Supreme Court also had appellate powers during part of the colonial period ; but to the end of Crown rule the King constituted, with his Privy Council, the court of final appeal. It was good that it should be so, for the judgments of the colonial Supreme Court, in some notable instances, called for review.
THE COURT FOR THE TRIAL OF IMPEACHMENTS AND THE CORRECTION OF ERRORS.
When the time came to draft a Constitution for the State, the far-seeing lawyers and jurists who were assigned to that important duty began their task fully cognizant of the neces- sity of providing for an independent appellate tribunal which should have power of review of even Supreme Court decisions. Hence, the Constitution of 1777 authorized the creation of the Court for the Trial of Impeachments and the Correction of Errors. By the authority of the Constitution, the Legislature organized such a court, by enactment, on November 23, 1784, the act provided that the court should hold sessions concur- rently with legislative sittings, and at such other times and places as might be ordered. The court adopted its seal on February 6, 1786.5
In its twofold duties, the Court for the Trial of Impeach- ments and the Correction of Errors, authorized by the thirty- second, thirty-third and thirty-fourth sections of the Constitu- tion of 1777, was an unwieldy body, the largest in the history of New York.6 It continued to be the court of last resort until
5. The seal is thus described : On a field argent in the middle chief a sun in its meridian ; below the sun a scroll bearing the words, New York; around the field, the inscription: "Court for Trial of Impeachments and Correction of Errors."-Chester's "Legal and Judicial History of N. Y.," Vol. I, p. 345.
6. "The thirty-second section of the Constitution of 1777 provided that a Court should be instituted for the trial of Impeachments and the Correction of Errors, under regulations which should be established by
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swept away (except for the trial of impeachments) with the Court of Chancery, and other "absurdities," by the Constitu- tion of 1846. Organized in colonial imitation of the English House of Lords, it was so constituted, in its normal function- ing as the ultimate court of judicial appeal, as to embrace the higher grades of judicial and governmental personnel. It was composed of the Lieutenant-Governor, the Senators, the chan- cellor, and the judges of the Supreme Court. The chancellor had no vote in the determination of appeals from his decrees, nor the judges in that of writs of error to their court; but they might, and did, deliver opinions or arguments in support of their judgments under review.
The judges were disqualified from office at the age of sixty years, though it seems that this age limit did not apply to the lay members of the court. At the outset, it was doubted whether the Lieutenant-Governor, as president of the Senate, had any voice in the determination, but the right to vote was early asserted by and accorded to him. During its early years
the Legislature, to consist of the President of the Senate for the time being, and the Senators, Chancellor and Judges of the Supreme Court, or a major part of them. In matters of impeachment, the thirty-third and thirty-fourth sections provided that the power of impeaching all officers of the State, for mal and corrupt conduct in their respective offices, should be vested in the representatives of the people in Assembly, but that it should always be necessary that two thirds of the mem- bers present consent to and agree in such impeachment, that, previous to the trial of every impeachment, the members of the court should respect- ively be sworn, truly and impartially to try and determine the charge in question, according to evidence; and that no judgment of the said court should be valid unless assented to by two-thirds of the members then present; nor should it extend further than to removal from office and dis- qualification to hold or enjoy any place of honor, trust, or profit under the State. But the party so convicted should be, nevertheless, liable and subject to indictment, trial, judgment, and punishment, according to the laws of the land. In every trial on impeachment, or indictment for crimes or misdemeanors, the party impeached or indicted was allowed counsel, as in civil actions. It was also ordered that when an impeach- ment should be prosecuted against the chancellor, or either of the Judges of the Supreme Court, the person so impeached should be suspended from exercising his office until his acquittal. In the correction of errors, the Constitution provided that when an appeal from a decree in equity should be heard, the Chancellor should inform the Court of the reasons
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the Senators pronounced comparatively few opinions. At a later date senatorial opinions became more frequent. The chancellor and one or more of the law judges generally led off, and the Senators followed with opinions or contented themselves with those delivered by those magistrates. In the early part of the century Attorney-General Woodworth, at the same time a Senator, is recorded in a few instances as having delivered an opinion. As the Court of Chancery and the Su- preme Court grew busier, the chancellor and the judges gave fewer opinions in the Court of Errors.
Noticeable were three important characteristics of this court : A majority of its judges were laymen ; they were elected while the other judges were appointed; and that the constitu- ency of the court was constantly changing.
With the exception of the Court of Appeals and Errors of New Jersey, there probably was no other court in the United States like that of New York, composed in part of persons not lawyers. The vital objections to which such courts are open was expressed by Mr. Austin Abbott thus : "An unprejudiced
of his decree, but should not have a voice in the final sentence. If the cause to be determined should be brought up by writ of error, on a ques- tion of law, on a judgment in the Supreme Court, the Judges of the court should assign the reasons of their judgment, but should not have a voice for its affirmance or reversal. In pursuance of these provisions in the Constitution, the Legislature passed an act on November 23, 1784, organ- izing the Court. .
In regard to the correction of errors, appeals were allowed to it from the Court of Chancery, Supreme Court and Court of Probate and Admiralty Court, except in cases of capture. All appeals from Admiralty or Probate were to be made within fifteen days, and also all appeals from decretal orders in Chancery. All appeals from final decrees in Chan- cery, and writs of error from judgments in the Supreme Court, had to be brought within five years after judgment rendered or decree made. The President of the Senate only had a vote in case of a tie among the other members of the Court. Writs of error in civil cases, and criminal cases not capital were writs of right and issued of course, but in cap- ital cases they were writs of grace. The Chancellor issued the writs in all cases ; but in capital cases only on order, upon motion or petition, with notice to the attorney general or State Prosecutor.
The Court remained the same under the Constitution of 1821, except that a majority only of the members elected to the Assembly was requisite . for an impeachment .- "New York Civil List," 1888 edition, pp. 319-20.
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observer who watches the course of adjudications in such courts, or studies their workings as manifested in the record of our Court of Errors, in which lay Senators were able to de- termine the law again and again contrary to the accumulated and unanimous judgment and learning of the chancellor and judges of the Supreme Court, can have little doubt that while representation upon the bench may now and then prevent the harsh operation of a rule of law, it will more frequently intro- duce, to control the decision, elements which ought to have no influence in determining or applying the law; and no form of misadjustment in judicial machinery has more power to in- troduce uncertainty into the law and bring its oracles into dis- respect than this. It is much to be hoped that throughout the country this old adage may wholly disappear, and the devel- opment and formation of what is called 'judge-made law' may be committed entirely to men thoroughly trained by study and experience for judicial functions."
There were even some lawyer Senators, however, who praised the lay element in the constitution of the court. They were of opinion that if the court were wholly composed of laymen, it could not have been more uncertain and inhar- monious, as to what the law was, than was shown by other courts composed only of lawyers ; moreover, they found note- worthy instances in which this hybrid court was right and the trained judges wrong.
The Senators who most frequently delivered written opinions were: De Witt Clinton, William H. Seward, Gulian C. Verplanck, Alonzo C. Paige, Luther R. Bradish, William Ruger, Erastus Root, Harvey Putnam, John A. Lott, Lyman Sherwood, Elijah Rhoades, Henry W. Strong, Abraham Bockes, John Porter, Addison Gardiner, Hiram F. Mather, Nathaniel P. Tallmadge, John W. Edmonds, Albert H. Tracy, Leonard Marson, Samuel L. Edwards, David Wager, Gabriel Furman, John Crary, Charles Stebbins, Cadwallader Colden, John Sudam and John C. Spencer. Of these Gardiner, Lott
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and Edmonds subsequently became judges of the Court of Appeals, which took the place of the Court of Errors by the Constitution of 1846. Senators Putnam, Verplanck, Colden, Tracy, Spencer, Edwards, Marson and Hopkins gave numerous opinions, very generally characterized by extensive learning and careful elaboration. Verplanck's were among the most numerous, and "are among the most learned and elegant ju- dicial essays ever written in the State." Colden was char- acterized by Daniel Lord as "the polite scholar, the speculative philosopher, the able lawyer." Tracy excelled in learning and in strength, and seems to have been a chief disbeliever in the lower courts. Senator Paige, on the other hand. manifesting almost a pathetic loyalty, stood by the decisions of Chancellor Walworth.
Unanimity could hardly be expected in a court so numer- ous. Its possible membership was thirty-seven ; usually deci- sions were made by about twenty members; the largest on record, probably, was twenty-nine. Unanimity, as a matter of fact, was rare. There were many unanimous affirmances ; and unanimous reversals, both of the chancellor and the Supreme Court, especially of the former, were not so extremely uncom- mon as to be startling to other than the overruled jurists themselves. There were a number of affirmances by equal division, and there was an occasional instance where the presi- dent gave a casting vote. But one cannot fail now to be struck by the great proportion of reversals. Chancellor Wal- worth was reversed in thirty of ninety appeals, and the pro- portion of reversals of the Supreme Court was still larger. The chancellor and the law judges were not in the least deterred by judicial courtesy and comity from overruling one another. And in the Court of Errors, as in the early Court of Appeals, many, perhaps most, of the important judgments were pro- nounced by a seriously divided court; many, also, were on reversal of the lower court. For instance, in the case of
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Moser v. Mead,7 no opinions are reported, but four Senators wrote for affirmance, of the Supreme Court, and five for re- versal, and one spoke orally for reversal. On the vote they stood ten to ten, and the judgment was therefore affirmed.
The history of the doctrine of Pain v. Packard8 is interest- . ing. The Supreme Court had decided that if a creditor is re- quested by a surety to proceed to collect a debt, and the debtor afterwards becomes insolvent, the surety is exonerated. This was dissented from by Chancellor Kent in King v. Baldwin.9 But the decision, in the latter case, was reversed by the Court of Errors, by the casting vote of the Lieutenant-Governor, who was a layman. The doctrine of New York, thus established, has been generally discountenanced by the courts of other States, although enacted in statutes of eight.10
It is evident that there was much more room for the opera- tion of personal favoritism and political preferences in the de- cisions of such a court than in those of a much smaller court, constituted exclusively of lawyers. Serious charges of these extraneous influences were made in and about the Constitu- tional Convention of 1846. Occasional lobbying was undeniable by members of the court. Many of the causes were of great importance, and a Senator was more accessible by interested parties, even though, in the Court of Errors, the legislator was also a judge. And the ordinary person did not feel that the crime was greater to lobby for a judicial decree than for a legislative bill. Fortunately, perhaps, the power of corpora- tions, or large business interests, was not as great in the first half of the century as now.
The Supreme Court, consisting of able and experienced judges, such as Spencer, Savage, Cowen, Nelson, Bronson and Beardsley, were naturally sensitive when overruled by the
7. 5 Denio, 617.
8. 13 Johns, 174.
9. 2 Johns Ch. 563.
10. See note 7, Am. Doc., 371 ; also 82 N. Y., 818; 4 Mont., 389.
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Court of Errors-" by a score of Senators, none of whom had ever sat on a bench, and some of whom were laymen." Jus- tice Cowen, for instance, was reversed, in Munsell v. Lewis,11 at the close of the argument, without the delivery of any opinions, by a vote of 24 to I. This feeling developed into a quarrel between the Supreme Court, composed of Nelson, Cowen and Bronson, and the Court of Errors, in the case of Hanford v. Artcher.12 Other instances were equally resented by the Supreme Court. The decision of reversal in Smith v. Acker13 was made by twenty-one Senators against the chancel- lor and three Senators, the vote of the latter, it is said, not dis- agreeing with the majority as to the main question. "The chancellor was of opinion that under the circumstances of this case, the judgment of the Supreme Court ought to be affirmed. The reporter regrets that he has not been able to get a copy of the opinion for publication." The Supreme Court had ruled in the case of Smith v. Acker, that "it is always a question for the jury, and not a question of law, whether the possession (of mortgaged chattels) is satisfactorily explained or not." The doctrine was followed by the Supreme Court in Buller v. Van Wyck,14 reversing the trial court; but smarting under the rebuff in Smith v. Acker, Justice Cowen said : "The judge was clearly right according to the decisions of this court, and the uniform current of judicial authority from Twyne's Case15 in the reign of Elizabeth down to but not including Smith and Hoe v. Acker, decided by the Court for the Correction of Errors, in December term, 1840." Chief Justice Nelson con- curred, but Justice Bronson dissented, on the ground that Smith v. Acker was no precedent, but was only the law of that case. He flayed the Court of Errors, laying it down as "new doctrine"; that the appeal was not argued at the bar,
II. 2 Denio, 224.
12. 4 Hill, 271.
13. 23 Wendell, 653.
14. I Hill, 438.
15. 3 Rep., 80.
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but submitted on written arguments. He intimated that "the counsel were all employed by the same party," as he believed had happened in other cases; and that it was poorly argued; that it "plainly departs from the law as it had been previously settled"; and he was very severe on Senator Hopkins, who announced that his opinion would be adverse to the uniform "course of decisions" of the Supreme Court. Herein Bron- son contrasted the Court of Errors with the House of Lords, which "not only abides by its own judgments but considers itself bound by the law as it has been settled by other courts." To support his declaration that the Court of Errors "does not abide by its own decisions," he cites from important cases in which it had overruled itself. This being so, he thinks "it would be strange, indeed, if other courts were bound to follow them" without examination. Further, he points out that "some members of that court do not feel bound to decide ac- cording to the rules of law, but go according to their own sense of what is right." He then attacks "the same learned Senator" who had "thrown off the shackles of legal authority" in several other cases cited, and who prided himself on the possession of a mind "not embarrassed by the decisions." He concludes that some members of the Court of Errors claim much larger license in disposing of questions than is exer- cised by other courts; that consequently the decisions of that court "are entitled to much less weight than the judg- ments of those courts which consider themselves bound by legal adjudications," and where, as in this instance, "the court has professedly departed from the 'whole course of decisions,' the judgment is entitled to no weight at all."
At length the Court of Appeals retaliated, in Hanford v. Artcher,16 answering "more in sorrow than in anger." Sen- ator Hopkins defended his opinion. He called Justice Bron- son "illogical and unjust," and lamented that it is so "difficult,
16. Supra.
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even for those distinguished for their legal attainments, acute- ness of intellect and the purity of their intentions, to free themselves from the influence of early opinions and without intending any reflection upon the profession to which I be- long, it may, perhaps, be said to evince the wisdom of the framers of our Constitution, in permitting to be brought into the court of last resort, the plain good sense and unbiased sound judgment of the laity to mingle with the latent and legal erudition of the profession, who nevertheless may be liable to bring with them to the bench, the errors of prejudged opinions formed at the bar." He hoped that the learned dissenting justice "however much he may insist that the deci- sions of this court may be disregarded, will not, to use his own language, throw off the shackles of legal authority imposed" by his own court.
President Bradish, of the Court of Errors, also mildly chided Justice Bronson for his insubordination, and thought it "would certainly be a very novel spectacle" to see the Su- preme Court subjecting the decisions of the Court of Errors to an "examination of its reasons." He denied that the Court of Errors did not regard itself as "bound by legal adjudica- tions," and claimed a high degree of consistency for it, much greater, indeed, than "could have been reasonably anticipated from its constitutional organization." He said that even the Supreme Court "has not always followed its own decisions." He censured Justice Bronson for asserting that the court had "in this case professedly departed from the whole course of decisions," and characterized that as an isolated and casual ex- pression of a "gross injustice" as well as "inaccuracy." He deprecated the attack as calculated to bring the court into dis- trust and discredit, and ultimately to break it down ; to which end he knew "the distinguished author of this new and alarm- ing doctrine would not willingly contribute." He invoked the aid of "the talents" of Justice Bronson, and "the weight of his high personal and official character," rather in building
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up, strengthening, sustaining and harmonizing, thus com- mending the Court of Errors "to the increased confidence of our own citizens and to the greater respect of the world."
The Court of Errors seemed to have had the better of this unpleasantness. But the discussion disclosed one significant fact. The members of the Court of Errors never met for consultation or deliberation. "Each member separately and apart examines the case, and prepares for its decision. The court then comes together ; the opinions of the members are delivered ; and the court then unites in a general conclusion, either of affirmance or reversal of the judgment or decree re- viewed. For this conclusion, and for this only, is the court, as such, responsible, unless, indeed, which is very rarely the case, the court proceed by resolution to declare the grounds upon which that general conclusion rests. Different minds arrive at this conclusion by different processes of reasoning ; but no member is answerable either for the reasons or the language of any other member." In this President Bradish exposed the greatest weakness of the Court of Errors. By such a process its decisions could hardly be accepted as the first degree of authority. By such a scheme, the real reason for a decision could hardly be ascertained, nor could any definite rule be deduced from the decision. "In short, it is little better than the town-clerk's record of a vote at town- meeting."
This was one of the vital flaws in the Court of Errors, and led to its abolishment by the Constitution of 1846. "In May, 1848, the bar of the city of New York met and passed resolu- tions highly complimentary to the outgoing chancellor and judges, but no one had anything to say of the Senators nor of the Court of Errors." The one useful purpose which this court achieved was the relaxation of the ancient strictness and inconvenient technicality of the Supreme Court in some questions of importance.
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In its earlier years the sessions of the Court of Errors were held in the Senate Chamber at Albany. But as years went by it became itinerant, sitting in New York, Saratoga, Roch- ester, Buffalo. The session of June and July, 1825, was held in the city of New York. In 4 Cowen I are recorded the pro- ceedings of the court on the reception of General Lafayette at that sitting. The president of the court referred to the "marble hall in which we are now assembled, an edifice splen- did even as a monument of the arts, and which the growth of this city has already left short of its center," as occupying "a place which was a common waste without the city when you toiled in our cause, and was then used as an open field, upon which mercenary troops were marshaled and sent forth in battle against our fathers." The president might also have mentioned that the fact that the city hall had brown stone in- stead of marble on its north side was because no one expected the city ever to grow north of it.
The old capitol at Albany in which the Court of Errors habitually sat was also of brown stone, with white marble trimmings. Its cost was about $74,000, but this huge sum could not be borne by appropriation altogether. It was finally necessary to resort to a lottery scheme to provide the means to finish it.17
17. In the Historical Address delivered by Judge Alden Chester, at the laying of the cornerstone of the Albany County Court House on May 8, 1915, is the following reference to the historic "old Capitol," and to the more historic Stadt Huys, which until 1808 was the temporary Capitol, and also presumably the venue of the court sessions, when in Albany. The extract from Judge Chester's address reads :
No public building in this country other than Faneuil Hall in Boston and Independence Hall, in Philadelphia became more famous in history (than the Stadt Huys, built in 1740, or thereabouts). It not only served the colony for many public purposes but the locality for a city hall, a court house, a county building and a jail. In it was also held the first Congress of the Colonies, which met there in 1754 and which was pre- sided over by Benjamin Franklin. From its steps the Declaration of Independence was read to the Continental troops and a great concourse of citizens on July 19, 1776. For three years before Albany became the permanent seat of the State Government in 1789, and from that time until the completion of the first State Capitol in 1808 many sessions of the State
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