USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 33
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For many years the courtroom of the Court of Appeals was on the third floor of the Capitol. Lord Coleridge once said that it was the finest "of any court in the world."44 The chamber was of moderate size, well proportioned, and of good acoustic qualities. Its walls were paneled from floor to ceil- ing in oak, and the ceiling was also oak-timbered. The bench was elaborately carved along the front showing grotesque heads, among other ornaments, "which may be symbolical of the successful and unsuccessful suitors or counsel," wrote Irv- ing Browne. On the walls were thirty-three portraits of de- ceased judges of the State, nearly all of the Court of Appeals, but embracing Jay and Nelson. Over the bench hung por- traits of Walworth, Kent, Spencer, Church, Jay and Folger. Over the fireplace hung a superb portrait of the elder Peck- ham. The fireplace was a magnificent structure of the choicest Mexican onyx. Between the south windows, which commanded an extensive view of the beautiful Hudson River Valley, stood a bronze statue, of heroic size, of Chancellor Livingston, the work of a distinguished Albany sculptor, and a replica of the one placed in the Capitol at Washington. (By the way, as has been stated in another chapter, the Washing- ton statue was one of two placed in the Capitol, at the cost, and by resolution, of the National Congress, to acknowledge the Nation's indebtedness to the State of New York during the Revolution and early republican years, and to pay personal tribute to the memory of the two most representative New York citizens of that critical period-Clinton and Livingston).
In 1916 it was decided to house the State's highest court in a court house of its own. An opportunity to do so came at that time through the removal of State Departments from the State Hall to offices in the new Telephone Building on State Street. The State Hall was far from being a new building, but it had been well constructed. It had been erected during
44. "The Green Bag," Vol. II, p. 340.
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the administration of Governor Marcy, the act authorizing the construction being passed on April 1, 1834. Of massive construction, the stone for the building was quarried at Mount Pleasant (now Sing Sing) Prison, and carried by scows to Albany. Cost of erection was $279,228, and of the site $31,066, a total of $310,294. During 1916 the State Hall was remodelled for the use of the Court of Appeals. This work was done with care and skilfulness; so skilfully, indeed, that no material structural alteration was needed other than the construction of a court room. This was placed partly in the old structure, and partly in an addition, central on the east side, which also accommodates the Court of Appeals Library. An endeavor was made to make the new court room as much like the old as possible. This was so skilfully done that the interior of the present courtroom is almost identical with that which Coleridge had called the finest courtroom in the world. The whole of the wainscoting from the old court- room was transferred to the new, and the portraits, fireplace, rail, and other striking features of the old quarters were given identical places in the new. "Palmer's statue of Chancellor Livingston faces the bar, as formerly, and the same respectful treatment has been accorded Mr. H. H. Richardson's work here as has been given the elder architects' conception of the building itself. Everywhere is seen the skill and treatment of a master hand in the reconstruction that has preserved a noble building to the Capitol City and provided a dignified and fitting environment for the highest court of the State."
On November 24, 1924, was brought to consummation in the hall of the Court of Appeals a movement to pay fitting honor to the memory of a great American jurist. At the 1918 meeting of the American Bar Association at Cleveland, Mr. Edward Q. Keasbey, of the Bar Association of New Jersey, moved that in 1923, the one hundredth anniversary of the re- tirement of James Kent, Chief Justice and chancellor of New
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York, from judicial life, the American Bar Association take action to commemorate that anniversary. The outcome was that a special committee of the American Bar Association on Monday, November 24, 1924, unveiled in the hall of the Court of Appeals a memorial tablet which reads :
The American Bar Association By This Tablet Commemorates JAMES KENT 1763-1847 CHIEF JUSTICE OF NEW YORK 1804-1814 CHANCELLOR 1814-1823 Author of The Commentaries on American Law
He gave to the common law in its new home fresh vitality and power.
He moulded from meagre precedents a noble system of equity jurisdiction and marked the lines of its growth for commonwealth and nation.
This done, he wrote the commentaries which crown his fame and service.
The presentation address was delivered by the Hon. Ed- ward M. Colie, who said, in part :
There is a fortunate group in our history-the pioneers- men who, possessing the necessary equipment, did the par- ticular work needed at a critical time, and so made contribu- tions of highest value to their country. Such men were Kent, Marshall and Story, pioneers in the making of the law, and each secure in his niche in the Temple of Fame. In measuring Kent's achievements and his influence, the remarkable versa- tility of his strong and analytical mind must not be forgotten. His influence was great in four widely different fields of the law-the Common Law, Equity, Constitutional Law, and In- ternational Law. Where among all the judges who have been members of the highest State courts do we find one who has influenced the development of our law to the extent that Kent did? By this standard we may venture the opinion that he was without a peer.
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Accepting the tablet "in behalf of all of those judges, lawyers and laymen who are interested in the accomplish- ments and memory of a great figure in the development and betterment of our law and jurisprudence and of our courts," Chief Judge Frank H. Hiscock was of the opinion that the Kent memorial would prove an inspiration to the lawyers of the present and future generations. He said : "Placed upon the walls of this building, which we trust will endure for many generations and become historic as the abode of our court of last resort, it will confront the gaze of every member of our profession who comes to make the last plea in behalf of those rights of life, liberty or property to which he conceives his client to be entitled."45 The tablet befits its environment.
COURT FOR THE TRIAL OF IMPEACHMENTS.
While the Court of Appeals was created to supercede the old Appellate Court, the original Court for the Trial of Im- peachments and the Correction of Errors, the power of im- peachment was reserved by the Senate. A new court was created by the provisions of the Constitution of 1846. It took the first part of the original title, and it had corresponding duties as the Court for the Trial of Impeachments. It was to be composed of the president of the Senate, the Senators, or a majority of them, and the judges of the Court of Appeals, or a majority of them. In the case of the trial of an impeach- ment against the Governor, the Lieutenant-Governor could not sit with the court; hence Martin H. Glynn could not take part in the trial of Governor William Sulzer. No judicial officer can exercise his office after an impeachment until ac- quitted. The concurrence of two-thirds of the members present is necessary to a conviction. Judgment, in case of impeachment, can extend no further than to removal from office, and disqualification to hold any office of honor, trust or profit within the State; but the person impeached shall be
45. "American Bar Association Journal," Dec., 1924, issue.
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liable to indictment and be punished according to law. The Assembly, by a vote of a majority of all the members elected, has the sole power of impeachment. When summoned, it is directed to be held at the Capitol in Albany, the officers of the Senate to be the officers of the court. In the absence of the president of the Senate, the chief judge of the Court of Appeals becomes the presiding judge. The Court for the Trial of Impeachments, had a seal of its own, until 1882, when, by Chapter 190 of the Laws of 1882, the Arms of the State became the seal of the court. Its original seal was filed on July 30, 1853.
Only once has the Court for the Trial of Impeachment had to deal with a serious questioning of the integrity of the judiciary. It was an involvement of three New York City justices in the operations of the Tweed "Ring" in the seven- ties. Judge McCunn was removed from office by the unani- mous vote of the Senate; and Judge George G. Barnard, who was found guilty, was removed from office by the unanimous vote of the Senate and Court of Appeals, sitting as a Court of Impeachment. By a vote of thirty-three to two, Barnard was forever disqualified from again holding public office in the State.
CHAPTER XXXVIII. THE SUPREME COURT.
The Supreme Court of the State of New York was not specifically created by any constitutional act in 1777; it was merely a continuation of the Supreme Court of the province, which followed quite naturally the trend of all institutions in the evolution from Crown to republican status during the first years of war. Fowler writes: "The transition of New York from the provincial condition to that of an independent State developed but few changes in its judicial establishment; it affected mainly the theory of the source from which the judicial power emanated." Therefore a brief statement of the administration of justice by both Crown and republican courts during the interregnum should preface this review of the State Supreme Court.
The justices of the Provincial Supreme Court did not re- linquish their Crown commissions when war broke out in 1775. Indeed, the whole bench, with perhaps the single ex-
Chapter XXXVIII has drawn from the following authorities in sketching the "History of the Supreme Court": "History of the Bench and Bar of New York" (1897) ; Sedgwick's "Life of William Living- ston"; Scott's "Courts of the State of New York"; Fowler's "Organization of the Supreme Court of Judicature of the Province of New York"; Fowler's "Observations on the Particular Jurisprudence of New York"; Jones' "History of New York During the Revolutionary Period"; Adams' "American Constitution"; Daly's "Account of the Judicial Organization of the State"; Smith's "Reports of the Court of Common Pleas"; Browne's "Short Studies of Great Lawyers"; Chester's "Legal and Ju- dicial History of New York" (1910) ; "The Public Service of the State of New York," Vol III, p. 19; Fowler's "Constitutional and Legal His- tory of the State of New York," in "Memorial History of New York," Vol. III; "Civil List of New York," 1888 edition; Graham's "Courts of New York"; the "Green Bag," Vol. II, various Court Reports; "Constitu- tional Convention Report of 1915"; "Constitutional Convention of 1921 Re- ports"; Clark Bell's "History of the General Terms of the State of New York," "Albany Law Journal," Vol LXVI; S. D. Thompson, on "Three Courts, American Law Review," Vol. XXXIV; Dougherty's "Constitu- tional History of New York"; Lincoln's "Constitutional History of New York"; "Collections N. Y. Hist. Soc., Revolutionary Papers, Vol. I.
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ception of Fourth Judge Robert R. Livingston, remained loyal to the Crown, and continued to operate the provincial courts for some time. There is no doubt as to the status of Justice Livingston. He held his Crown commission until his death, though not, perhaps, because of unflinching loyalty to the King. As a matter of fact, he had taken leading part in sev- eral of the provincial measures initiated in New York to reg- ister disapproval of oppressive Crown intentions; and he had been positively aligned with the People's Party. Bancroft states that Livingston's idea of freedom for the provincials did not at first extend to independence, by secession; he still hoped the American colonies would remain in the British system, though upon a more equitable basis. But Living- ston did not live to the time when, in the performance of judicial duties, he would have had to decide between a Crown court or one which acknowledged only the sovereignty of the people. His general thought, perhaps, was that the one institution would work into the other quite naturally, and without extraordinary upheaval, in the readjustment of New York affairs. By one account, "he was removed by the Crown from his judicial office," because his acts "were so fearless, his views so pronounced," but another historian states that Livingston held his Crown commission until his death, in December, 1775; in either case Justice Robert R. Livingston, father of Chancellor Livingston, does not come into the Loyalist, or Tory, classification.1 The other justices
I. Robert R. Livingston "in 1763 became Fourth Justice of the provin- cial Supreme Court, serving in this position until his death. He held other important offices, being a member of the Provincial Congress from Dutchess County (1759-68), a representative of the Stamp Act Congress of 1765 (in which he opposed the compulsory acceptance of stamps) a commissioner on the New York and Massachusetts Boundary (1767 and 1773) and a mem- ber of the Committee of 1775, which was elected to control in all general affairs. . . . Justice R. R. Livingston was somewhat conservative on the question of American independence. He stood for freedom rather than com- plete independence, favoring the continuance of the colonial form of gov- ernment, with the proviso that each colonist should be entitled to all the rights of Englishmen. This was the position taken in his opinion in the
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of the Province Supreme Court, however, were strongly Loyalist, and recognized only the authority of the Crown in the administration of the law. After the death of Livingston, as though to emphasize the fact that the Crown court, the Provincial Supreme Court, was still the judicial arm of New York, Whitehead Hicks, who had been mayor of New York since 1766, gladly accepted a Crown commission as fourth judge, vice Livingston.
While it is recorded that the Provincial Supreme Court continued to have a spasmodic life until almost the end of the British occupation of New York,1a it had little power in the interior; the Crown courts were of nugatory status wherever the military authority of the King was weak; at least after July, 1776. Before that time there was confusion. It is said that even after the Continentals obtained possession of New York City, in February, 1776, the Provincial Supreme Court remained in almost full judicial authority in New York, and in partial authority in Westchester County and on Long Island.2 In all other parts of the vast but sparsely settled
case of Cunningham's appeal. He did much on the Bench to break up the practice of granting general warrants to customs officers to search for dutiable goods. He was one of the influential 'associators' against the ag- gressions of the King."-"History of the Bench and Bar of New York (1897), p. 402. See also Sedgwick's "Life of William Livingston"; also "Journals of Provincial Congress of New York."
Ia. After the British obtained possession of New York City and parts of Westchester, the royalist judges continued to exercise their judicial func- tions within these boundaries. Justices Jones and Ludlow retired to their estates on Long Island, where they held court. Chief Justice Horsmanden remained in New York City, where he endeavored to perform the duties of his office in trying cases until his death, in 1778.
General Howe appointed Ludlow as Chief Justice, and in 1780 the latter was also made Master of the Rolls, and empowered to hear and determine controversies until civil government should be restored. Ludlow also acted in the capacity of Admiralty Judge and Superintendent of Police for Long Island .- Scott's "Courts of the State of New York," p. 199.
2. What the result of the Revolution was on the Supreme Court of New York may be best seen by a statement of particulars.
The City of New York was first taken possession of by the Continentals under General Lee in February, 1776. In March following, General Wash- ington came from Boston with the greater part of the army. There were in the city not less than forty thousand troops. Thomas Jones, a Justice of
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former province of New York, however, the authority of the Crown was negligible. Local judges and justices of the peace, in the main, aligned themselves with the republicans. The last session of a Crown court held in Tryon County was in December, 1775. In April, 1776, Thomas Jones presided at a term of Supreme Court held in New York City. (Pos- sibly, one he held in White Plains in the same month was on a later day). . This seems to have been the last session, for Thomas Jones himself has recorded that the adoption of the Declaration of Independence in the following July put "an end to the administration of justice under the British Crown within the thirteen Colonies." Thereafter military courts were preferred by the British commanders.
From the beginning of the Revolution, however, a certain degree of judicial authority was exercised by congresses and committees of the people. Sub-committees in localities exer- cised a more arbitrary judicial power, their efforts centering
the Provincial Supreme Court, and an eye witness, alluding to this period in his curious history. . . . (2 Jones' "New York During the Revolution," p. 135) says: "The laws were still in force, and the magistrates (though holding their commissions under the Crown) in such full possession of their authority that in April Term, 1776, several rebel soldiers were indicted for petty larcenies, committed, brought to the bar, arraigned, pleaded and tried in the Supreme Court then sitting as a legal established court of record under the jurisdiction of Great Britain." The minutes of the Supreme Court for 1776 indicate that the April Term of that year was held by Thomas Jones himself, who remarks: "The Declaration of Independence published on the 4th of July, 1776, was the first act that put an end to the administration of justice under the British crown within the thirteen col- onies." (Ibid, p. 115).
The April Term, 1776, appears to have been the last court held under King George III, and to have concluded the sessions of the Provincial Su- preme Court. On the 15th of September, 1776, the Continentals abandoned New York, leaving Great Britain in possession of New York City, Long Island, Staten Island and the County of Westchester, far the most pop- ulous part of the Province. The Supreme Court was not again opened by the British, as Justice Jones thought, because of the preference of the mili- tary authorities for martial law, and not because of the British prohibitory act, suspending trade and intercourse during the "rebellion." (Ch. 6, Jones' "History N. Y.," id) .- See "Organization of the Supreme Court of Judi- cature of the Province of New York," by Robert Ludlow Fowler, "Albany Law Jnl.," Vol. XIX, p. 489-490.
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on the persons suspected of being Tories. These sub-com- mittees continued to act "in a summary manner" until after the signing of the Declaration of Independence. "Their chief function seems to have been to arrest and imprison persons suspected of espousing Tory sentiments. These unfortunates were subjected to a political martyrdom which can be ex- plained only by the strenuous partisanship which permeated all institutions and classes in the colonies. Patriotic zeal which was now at a premium led the eager colonists to hunt for suspects, and when one was found, a complaint was lodged against him with the committee, which was, in effect, to seal his doom. Bail was not accepted, and gross injust- tice was thus perpetrated on many innocent victims. Should investigation show that the prisoner was wrongfully appre- hended, he was accordingly acquitted ; but he was nevertheless forced to pay a heavy fine and all costs. This led to many complaints and the presentation of an earnest appeal for a convention to organize a more righteous form of govern- ment."3 The administration of the law was, however, chaotic at that time; in April, 1776, indeed, a district committee of Westchester County haled a suspected Tory before a Crown court, and charged him with being loyal to the Crown. This occurred at White Plains, Justice Thomas Jones presiding. Needless to say, the latter discharged the suspected Tory.
At the Provincial Congress on May 24, 1776, the situation had crystalized into a recommendation then submitted by a committee "that the right of framing, creating, or new-model- ling civil governments is and ought to be in the people." The minutes of the Provincial Convention for May 31, 1776, con- tain, among others, the following resolution: "That the courts of judicature in this colony being as yet held by authority derived from the crown of Great Britain, are for that reason
3. Scott's "Courts of the State of New York," p. 207. C.&L .- 53
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incompetent to the full and impartial trial" of a certain of- fender, "therefore, he must of necessity be tried by court- martial only." It will be observed from this how very grad- ually the Revolution affected the courts of justice.
The Third Provincial Congress doubted their authority to frame a new form of government. So the question was put to the people, and another election of deputies resulted. The new Congress had authority to frame a Constitution ; and on July 10, 1776, the day after they convened in the Court House at White Plains, it was "Resolved and ordered, That the style or title of this body be changed from that of the Provincial Congress of the Colony of New York to that of the Conven- tion of the Representatives of the State of New York." Some days later (July 16, 1776) the military situation was more critical, so the convention resolved to postpone consideration of the formation of a State government until August I. Meanwhile, all magistrates and officers of justice were re- quested, "until further orders, to exercise their respective offices, provided all processes and proceedings be under the authority and in the name of the State of New York." "Thenceforth the King of Great Britain ceased to be the 'foun- tain of justice,' and no longer theoretically sat at each term of the Supreme Court to dispense justice in this part of his dominion."4
When the convention met on August I, a committee was appointed to report a plan for instituting State government. John Jay, Governeur Morris and nine others were designated by the committee; and on March 13, 1777, the first section of the Constitution was unanimously "agreed to." It declared "that no authority shall, on any pretense whatever, be exer- cised over the people, or members of this State, but such as shall be derived from and granted by them." This is the key to the whole instrument. The debates continued at adjourned
4. Fowler, on the "Organization of the Supreme Court," in "Albany Law Jnl.," Vol. XIX, p. 490.
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meetings of the Provincial Convention until April 20, 1777, when the Constitution was finally adopted at Kingston, and became the organic law of the State. Immediately thereafter a committee was formed to report a plan of organizing and establishing such a government as that authorized by the Con- stitution. Until the election of State officers, provision was made for the administration of the government by a Council of Safety ; and, as the Council of Appointment which by the Constitution had the power of appointing, could not take office until the first State Legislature could convene, and take action to organize the Council regularly, temporary appointments were made for the administration of law. Robert R. Liv- ingston was appointed chancellor; John Jay, Chief Justice; Robert Yates and John Sloss Hobart, associate justices of the Supreme Court. They were to hold office "according to the tenure specified in the Constitution," and permanently if ap- proved by the Council of Appointment. It is recorded that the place of Justice Hobart was first offered to John Marin Scott, who, however, declined the office, whereupon Hobart was temporarily appointed. All were confirmed in the ap- pointments subsequently by the Council of Appointment. Egbert Benson was also appointed attorney-general. The judges were to hold office during good behavior, or until they should reach the age of sixty years.
An indication of the fact that the Supreme Court was not at that time looked upon as newly created, but merely as re- constituted and continued, is seen in the minutes of the first term of the State court. It was opened at Kingston, which was the temporary State capital, in September, 1777. The minutes are entered in the same old volume that was used by the Crown court in provincial days. Between the minutes for the April term of 1776 and those for the September term of 1777, are a few blank pages, but there is no written indication of the change that had taken place in form of government.
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