USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 31
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OLD CAPITOL AT ALBANY
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There is not space here available for a roster of the mem- bers of the Court of Errors, from its establishment in 1784 until 1847, when it went out of existence, but those who wish to compile it may find the personnel in the rosters of the Sen- ate, adding the chancellors and Supreme Court justices of the period.
THE COURT OF APPEALS.
The Constitution of 1846 reorganized the judicial system the convention realizing that the plans devised in 1777 and 1821 were no longer adequate to keep pace with litigation. The people were also growing strongly democratic, and looked with disfavor upon an appointive system; and while, as a matter of fact, the highest court-the Court of Errors-was largely constituted of Senators, who were elected, the elec- torate were apt to forget this and to look upon all courts as strictly appointive as the Supreme Court. They demanded the right to choose the judges, and to make their terms of office such as would bring them at stated times before the
Legislature were held within its walls, and for that reason it became known as the temporary Capitol of the State.
The next building to be occupied by the courts was the one which had come to be known as the Old Capitol. It was erected on lands donated by the city on the public square on Eagle Street, immediately in front of the present Capitol. The State, the City and the County joined in the expense-the State contributing $73,485.42, the County $3,000, and the city $34,200 besides the land. Of the amount contributed by the City $17,000 were the proceeds of the sale of the old City Hall at Broadway and Hudson Avenue. The building was completed in 1808, and stood for seventy-five years, when in 1883 it was removed to make place for the development of the park, fronting the new Capitol. When we recall the fact that it was only two stories high besides the basement and attic, and was only ninety feet wide by one hundred and fifteen feet deep, it is difficult to believe, in the light of modern needs, that it was occupied by both houses of the Legislature, by the Governor for his executive cham- ber, by several State officers, by the Common Council of the City, by the Board of Supervisors of the County, by the old Court of Chancery, the Supreme Court, the Court of Common Pleas, the Mayor's Court, and, after 1847, by the Court of Appeals. So here was State Capitol, City Hall, County Building and Court House combined in a single structure .- "See Souvenir of the Laying of the Corner Stone of the Albany County Court House, May 8, 1915," published by the Albany County Bar Associ- ation, pp. 23-24.
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electorate for confirmation and reëlection, or, in the event that they had failed in their public responsibility, for rejection.
The members of the convention were generally of the opinion that the Court of Errors was not an ideal court; it was unwieldy, and an element of distrust of it and its findings had long existed, owing to the fluctuating and partisan char- acter of its composition. Moreover, there was no logical basis that could be used in arguments for its continuance, for what of value in judicial opinions could be claimed of a court whose judges, or members, knew little of law, whose bench was made up mainly of laymen, politicians. It may be argued that these laymen had the benefit of association with the highest jurists of the State. This, however, brought them no benefit, for, as has been shown in the review of the Court of Errors, each member of the court was customarily wont to examine a case "separately and apart," and draw his own con- clusions, voting accordingly. The court did not exchange opinions, the laymen did not seek the advice of fellow mem- bers who were learned in the law; there was no general dis- cussion ; and no member was answerable for his opinion. It hardly seems to have been a court of justice, except in name, though Silliman refers to the Court of Errors as "one of the very strongest judicial tribunals in this country."
The determination of the convention to eradicate this sys- tem and free the courts from the political element brought into discussion another point. When they should have evolved a satisfactory judicial system, directed by experi- enced men of law, should they not strive to retain the experi- enced jurists for as long as they were of service to the State in judicial capacity. The instance of Chancellor Kent was cited ; that the courts should have lost so capable a jurist at an age when he was in his fullest mental vigor was a distinct loss to the State; yet by the provisions of the existing Constitu- tion he could not remain in judicial office after he had reached
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the age of sixty years. On the other hand, the convention did not wish to constitute the judicial term one for life.
As to the composition of the new court of ultimate judicial appeal, a compromise was effected. The new Court of Ap- peals was freed from the political personnel, and to an extent embraced the elective system, while permitting the Governor to retain some degree of appointive power. Article VI, Sec- tion 2 of the Constitution of 1846, provided for a Court of Ap- peals of eight judges, four to be elected and four to be se- lected by the Governor from the justices of the Supreme Court, to sit on the bench of the Court of Appeals for one year.18 As one goes into closer analysis, it is clear that the personnel of the new Court of Appeals was wholly elective, for all the thirty-two justices of the reorganized Supreme Court were to come into office by election.
The principal changes wrought by the Constitution of 1846, in the provisions of the Judiciary Article, were : (1) the judges were to be chosen by popular election, instead of gubernatorial appointment; (2) they were to hold office for terms of eight years, but without limitation by reason of age; (3) the distinction between law and equity was abol- ished; (4) an ultimate court, composed of a comparatively small number and wholly of lawyers, was substituted for the Court for the Correction of Errors.
Theoretically, it may seem that the appointive system is better, and that the judgeships should continue for life, or during good behavior. It is pointed out that the Supreme Court of New York never stood in higher esteem than during the first decades of the nineteenth century. The criticism of the Court of Errors could not properly be extended to the Supreme Court. Nevertheless, under the appointive system
18. Article VI, Section 2, Constitution of 1846:
"There shall be a Court of Appeals composed of eight judges, of whom four shall be elected by the electors of the State for eight years, and four selected from the class of justices of the Supreme Court, having the shortest time to serve."
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there is always the possibility of political preferment of jurists who may not be the most capable of those availale.19 At all events, the experience of the State during the last three- quarters of a century has demonstrated that the elective sys- tem is quite satisfactory.
The four judges of the Court of Appeals first elected by the people were Freeborn G. Jewett, Greene C. Bronson, Charles H. Ruggles, and Addison Gardiner; the date of the election was June 7, 1847.19a The Constitution provided that the judges elected be so classified that an election would occur in every odd year, and further provided that the judge elected by the State at large having the shortest term to serve should act as chief judge. The first chief judge was Freeborn G. Jewett. The other four members of the original Court of Appeals, those appointed by the Governor from the Supreme Court bench, were Samuel Jones, William B. Wright, Thomas A. Johnson, and Charles Gray19b The justices selected from
19. "One thing is evident; the appointing system did not uniformly secure judges who were not politicians, nor save some of them from the popular belief and accusation that they continued to be politicians after reaching the bench."-"Public Service of the State of New York," Vol. III, p. 25.
19a. The judges of the Court of Appeals from its establishment in 1847 until 1870, with the dates of their election or appointment were: Free- born G. Jewett, June 7, 1847; Greene C. Bronson, June 7, 1847; Charles H. Ruggles, June 7, 1847; Addison Gardiner, June 7, 1847; Freeborn G. Jewett, Nov. 6, 1849; Samuel A. Foote, appointed April 1I, 1851, vice Greene C. Bronson, resigned; Alexander S. Johnson, Nov. 4, 1851; Charles H. Ruggles, Nov. 8, 1853; Hiram Denio, appointed June 23, 1853, vice Freeborn G. Jewett, resigned; elected in Nov., 1853, for remainder of term; George F. Comstock, elected Nov. 6, 1855, in place of Charles H. Ruggles, resigned; Samuel L. Selden, Nov. 6, 1855; Hiram Denio, Nov. 3, 1857; Henry E. Davies, Nov. 8, 1859; William B. Wright, Nov. 5, 1861; Henry R. Selden, appointed July 1, 1862, in place of S. L. Selden, resigned; elected Nov. 3, 1863, for full term; John K. Porter, appointed Jan. 2, 1865, vice H. R. Selden, resigned; elected Nov. 7, 1865, for full term; Ward Hunt, Nov. 7, 1865; Martin Grover, Nov. 5, 1867; Lewis B. Woodruff, appointed Jan. 4, 1868, vice John K. Porter, resigned; Charles Mason, appointed Jan. 20, 1868, in place of William B. Wright, deceased ; Robert Earl, Nov. 2, 1869; John A. Lott, Nov. 2, 1869.
19b. Justices of Supreme Court sitting in Court of Appeals: Samuel Jones, William B. Wright, Thomas A. Johnson, Charles Gray, appointed
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the Supreme Court were, by the Constitution to be taken each even year from the First, Third, Fifth and Seventh Judicial Districts, and each odd year from the Second, Fourth, Sixth and Eighth Judicial Districts, to serve one year. The first four served from July, 1847, to December, 1848; but there- after, until 1870, the term of Supreme Court Justices as Asso- ciate Judges of the Court of Appeals was one year. A clerk was elected by the people, to serve three years ; and a reporter was appointed by the Governor, Lieutenant-Governor and at- torney-general for a like period. The original officials were: Charles S. Benton, clerk; George F. Comstock, reporter.
Section 25 of Article VI of the Constitution of 1846 pro- vided for the formal transferrence to the new court of all busi- ness pending in the Court for Correction of Errors, "and for the allowance of writs of errors and appeals to the Court of Ap- peals, from judgments and decrees of the present Court of Chancery and Supreme Court, and of the courts that may be
by Governor, July, 1847; Daniel Cady, Selah B. Strong, William H. Shankland, James G. Hoyt, appointed January, 1849; Elisha P. Hurlburt, Ira Harris, Daniel Pratt, Henry W. Taylor, 1850; William T. McCoun, Alonzo C. Paige, Hiram Gray, James Mullett, 1851; John W. Edmonds, Malbone Watson, Philo Gridley, Henry Welles, 1852; Nathan B. Morse, John Willard, Charles Mason, Moses Taggart, 1853; Henry P. Edwards, Amasa J. Parker, William F. Allen, Samuel L. Selden, 1854; Gilbert Dean, Augustus C. Hand, Schuyler Crippen, Richard P. Marvin, 1855; William Mitchell, William B. Wright, Frederick W. Hubbard, Thomas A. Johnson, 1856; John W. Brown, Alonzo C. Paige, William H. Shank- land, Levi F. Bowen, 1857; James J. Roosevelt, Ira Harris, Daniel Pratt, Theron R. Strong, 1858; Selah B. Strong, Cornelius L. Allen, Hiram Gray, Martin Grover, 1859; Thomas W. Clerke, William B. Wright, William J. Bacon, Henry Welles, 1860; John A. Lott, Amaziah B. James, Charles E. Mason, James G. Hoyt, 1861; Josiah Sutherland, George Gould, William F. Allen, E. Darwin Smith, 1862; James Emott, Enoch H. Rose- krans, Richard P. Marvin, 1863; Daniel P. Ingraham, Henry Hoge- boom, Joseph Mullin, Thomas A. Johnson, 1864; John W. Brown, Platt Potter, William W. Campbell, Noah Davis, Jr., 1865; William H. Leonard, Rufus W. Peckham, Leroy Morgan, James C. Smith, 1866; William W. Scrugham, William Fullerton (apptd, vice Scrugham, de- ceased), Augustus Bockes, John M. Parker, Martin Grover, 1867; Thomas W. Clarke, Theodore Miller, William J. Bacon, Henry Welles, Charles C. Dwight (vice Welles, deceased), 1868; John A. Lott, Amaziah B. James, William Murray, Charles Daniels, 1869; Josiah Sutherland, Charles R. Ingalls. Henry A. Foster, E. Darwin Smith, 1870.
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organized under this Constitution." The election, limitations, compensation and removal of judges of the Court of Appeals, and the filling of vacancies caused by their death or disability, are provided for by Sections 7, 8, 11, 12 and 13 respectively, of Article VI.
It cannot be asserted, with good basis, that the operation of the Court of Appeals during the next twenty years was very satisfactory. In these recent decades in which the changes in the personnel of the Court of Appeals are so few, it seems hard to believe that in the first twenty-three years of that court one hundred and twenty-three different judges sat in it; and that in the next almost fifty years-from 1870 to November, 1923-the number of judges has been only thirty-nine. There was cause for dissatisfaction with the Court of Appeals, mainly because of the constant change in personnel. It was defective and inadequate in several particulars, wrote Irving Brown :20 (1) It could not keep up with its business; the ar- rears were very great ; it took four years to reach an argument in an ordinary case; (2) it was felt that it was theoretically, if not practically, wrong to allow Supreme Court justices to sit in the Court of Appeals in review of their own decisions; (3) a term of eight years was considered too short; (4) a limita- tion of age beyond which a judge might not hold office was de- sirable, though few wished to bring back the old limit, sixty years; (5) the fluctuating composition of the court, by which half of its members were changed every year, was deemed a serious fault. Therefore, at the Constitutional Convention which was held in 1867, the judiciary committee proposed an article which laid the basis for a much better judicial system. Of all the constitutional amendments recommended by that convention, the judiciary article was the only one that met with approval by the electorate. True, the majority was only about seven thousand in a vote of half a million ; yet it carried
20. In "The Green Bag," Vol. II, August, 1890.
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the amendment into the Constitution in 1869, so the new order went into effect on January 1, 1870.
Under the new judiciary article the Court of Appeals was composed of a chief judge and six associate judges, chosen by the electorate, and holding office for a term of fourteen years, but retiring at seventy years of age. Five judges were nec- essary to form a quorum, and four must concur to make a decision. The court was given power to appoint or remove its clerk, reporter and attendants. At the first election, which was a special one held in April, 1870, "each elector voted for the chief judge and for four only of the associate judges";21 and "such provision was made that the minority party was to be represented by two judges."22 The composition of the new Court of Appeals, elected in 1870, was as follows: Sanford E. Church, chief judge ; William F. Allen, Rufus W. Peckham, Martin Grover, Charles A. Rapallo, Charles Andrews and Charles J. Folger, associate judges. Robert Earl and Martin Grover were of the permanent bench of the old Court of Appeals.
The new judiciary article also provided for a Commission of Appeals composed of four judges of the Court of Appeals who were in office, by election or appointment, when the article took effect. The Governor was also to appoint a fifth commissioner. The tenure of the commission was limited to three years, but was afterwards extended two years.23 Causes pending in the old Court of Appeals on January I, 1869, were to be determined by the commission. This commission was formed, in part it seems, to meet the requirements of the Court of Appeals calendar until the people should declare their will on the question of appointive or elective judgeships. The question was decided in 1873, the electorate registering an em-
21. "New York Civil List," 1888 edition, p. 322.
22. Irving Brown, in "The Green Bag," Vol. II, Aug., 1890.
23. By Legislative act, pursuant to amendment of Constitution, adopted Nov. 5, 1872.
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phatic confirmation of the elective system. The commis- sioners entered upon their duties on July 1, 1870, and were : John A. Lott, Robert Earl, Ward Hunt, William H. Leonard and Hiram Gray. The first named was chosen chief com- missioner by the others.
Under the new system vacancies in the permanent bench were to be filled at the next general election happening not less than three months after such vacancy ; and until so filled the Governor and Senate might appoint a judge. The Gov- ernor had power to do so alone during legislative recess. By the Constitution of 1867 judges were prohibited from holding any other office or place of public trust; they were not to exercise any power of appointment to public office, or prac- tice as attorney or counsellor, or act as referee ; and they were removable by concurrent resolution of both Houses of the Legislature; if two-thirds of all the members elected to both houses concurred. By Chapter 203 of the Laws of 1870, the salary of the chief judge was fixed at $7,500; all associate judges and five commissioners were to receive $7,00024 a year. By a clause in the appropriation bill of 1871, each judge was given an annual allowance of $2,000 in addition to salary.25
The Commission of Appeals was "a highly respectable body of lawyers"; but its decisions never ranked very high, and during the latter part of its existence there was much dissent, brought about "mainly through the excess of case- learning over sound judgment in one of the later commis- sioners," wrote Irving Brown. The commissioners of subse- quent appointment were : Alexander S. Johnson, who took the place of Ward Hunt on January 7, 1873; John H. Reynolds,
24. Under the Constitution of 1846, the Judges of the Court of Appeals received a salary of $2,500 a year; in 1857 salary was increased to $3,500. The salaries of Judges of the Court of Appeals whose terms were abridged by the constitutional limitation as to age, and who had served more than ten years, were to be paid for their full term.
25. Chapter XXXI, which reviews the Constitutional Convention of 1867, gives much information as to the Court of Appeals.
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appointed January 10, 1873, vice Leonard, resigned ; and Theo- dore W. Dwight, appointed January 7, 1874, vice Johnson, re- signed. The discordance was the inevitable result of having a divided appellate court, the decisions of the commission in some notable instances clashing with nearly contemporaneous decisions of the Court of Appeals. The commission disposed of all the cases originally assigned to it, and others transferred later, after its term was extended; and in general gave satis- faction. Its decisions are in several volumes. In one volume there are thirteen cases of dissent, and in Volume 57, of one hundred and fifteen decisions, twenty-three were pronounced by a divided court ; of these thirteen were decided by a majority of one out of five commissioners. Of these thirteen six were reversals, so that in five per cent of the entire number one commissioner reversed the Supreme Court of three judges. The dissenting opinions cover seventy-six pages of six hun- dred and thirty-two, or about thirteen per cent. The commis- sion decided about one thousand cases in five years, reported in five volumes. During the same period the court decided about three times as many, embracing fourteen volumes, with a far greater degree of harmony. It may be remarked that one of the cases in which the commission was unanimous,26 was one in which the court decided exactly the contrary.27
The new Court of Appeals in 1870 was at once called upon to construe a new system of jurisprudence, based on the most radical changes. Not only did the questions raised by the Code of Procedure come before it, but the Married Women's Acts of 1848 and 1849, supplemented by those of 1860 and 1862 brought up many puzzling inquiries. These were fol- lowed by the numerous laws allowing parties to be witnesses in their own behalf. In all these matters this State was a pio- neer of reform and a constantly advancing innovator. But it soon became apparent that the new Court of Appeals could
26. Merch. & Trad. Bank v. Dakin, 51 N. Y., 519.
27. Thurber vs. Blanck, 50 N. Y., 80.
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not keep pace with its new business. In 1874, appeals were limited to cases involving at least five hundred dollars, ex- clusive of costs, unless certified by the General Term of the Supreme Court to involve important questions of law. This restriction proved insufficient to meet the emergency. A larger limitation was urged, but met strong opposition.
In 1888, a constitutional amendment was adopted author- izing the Governor, on the certificate of the Court of Appeals that an overcrowded calendar called for judicial reinforcement, to designate seven judges of the Supreme Court to sit as a separate body, to aid the court until the latter should certify that there was no longer need of such aid. By this procedure the Second Division of the Court of Appeals came into exist- ence, the Governor appointing to that body, after the amend- ment had been ratified by the people in November 1889, the following Supreme Court justices: David S. Follett, George B. Bradley, Joseph Potter, Irving G. Vann, Albert Haight, Alton B. Parker and Charles F. Brown. All were jurists of pronounced ability and long judicial experience ; Justice Follett, who became their chief, was "one of the most accomplished scholars of the State." The Second Division began its hearings on March 5, 1891, and closed its work on October 1, 1892. They disposed of a considerable number of causes, and their decisions reached a higher standard than those of the former commission, it is said. It was, however, apparent that temporary courts would not do more than re- lieve congestion ; the remedy lay in the enlargement of the per- manent court. This need was well recognized by the thirty- eight lawyers who constituted the Commission of 1890, charged with the consideration of the judiciary article of the Constitution. As has been stated in Chapter XXXIII, the commission recognized that "two coordinate courts of appeal could not well coexist without divergence of opinion and the introduction of a certain degree of uncertainty into the law";
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but unless a larger permanent ultimate court were created other ways must be devised to hold the calendar down to a level at which reasonably prompt hearing of a cause could be maintained. To effect this it was recommended that an inter- mediate appellate court take over part of the work of the Court of Appeals. The commission reported to the Senate on March 4, 1891, and one paragraph shows that it was opposed to an enlarged Court of Appeals.28 Briefly, the report of the commission favored a single Court of Appeals unchanged in number, general terms of enlarged jurisdiction ; the division of the State into four judicial departments, alterable every ten years. The theory underlying the report of the commission was that an appellate court possessed two functions: (1) to apply the law as previously laid down by the courts and the Legislature to the case at bar, and to correct any substantial errors committed by the courts below; (2) to decide new questions of law and to lay down rules for the guidance of the courts in future cases. The first of these functions primarily concerns the individual; the second affects the community at large. The great proportion of litigations, upon this theory, should never be carried beyond the first appellate court-the General Term, was the general opinion. Its deci- sion in applying the law to the facts should be conclusive unless some doubt should arise as to the underlying prin- ciple of law, or unless such important questions were in- volved as to render it desirable in the interests of the State that the Court of Appeals should consider the case." The recommendations of the commission were not approved by the Legislature, but the same questions were debated, with some-
28. "It seems . proper to report that the question 'whether the Court of Appeals should consist of more than seven members,' was pre- sented to the Commission, and after full consideration was answered by its deliberate resolution in the negative. The vote was not unanimous, but it was thought by a majority of the members of the Commission that it was better to preserve the present system and so limit the jurisdiction of the court that it might be able to dispose of the business brought before it with no unreasonable delay."-"Senate Document No. 51," 1891.
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