USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 34
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The only indication that would lead a reader to realize that any change of consequence had occurred is in the change of title on the docket of the first case; the party plaintiff is "The People of the State of New York." Dominus Rex no longer appears, but the minutes disclose no other immediate change in the procedure, practice or administration of the Supreme Court.
Fowler describes the transition of the provincial courts to State courts as follows, in one of his papers in the "Albany Law Journal": "The continuance of the Supreme Court of Judi- cature of the Province and the old Court of Chancery was evidently contemplated by the framers of the State Govern- ment . . . it is possible that, with the reverence formerly felt for the common law, the theory-that the jurisdiction of the fundamental courts was derived from the common law- obtained, and they were considered as falling within such parts of the common and statute law of England as were adopted by the Thirty-fifth Section of the Constitution. How- ever, the fact may have been, these courts of general jurisdic- tion, in law and equity, continued substantially on their old foundations until the Constitution of 1846."6 The Constitu- tion provided for the tenure of the judges of such courts and eis nominbus made them members of the future Council of Revision and of the Court of Errors; yet in no more direct way were these fundamental courts of the common law per- petuated. "It is a noteworthy fact that both these high courts of justice, Supreme and Chancery, thus impliedly trans- ferred to the new order of things had been either erected or continued by virtue of ordinances promulgated by the royal Governors of the province without, and indeed contrary to, the assent of the Legislature."7
5. Fowler's "Observations on the Particular Jurisprudence of New York," "Albany Law Jnl.," Vol. XXII, p. 489.
6. Ibid.
7. Ibid.
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Sections 24, 25, 27, 28, 32, 33, 34, 35 of the Constitution of 1777 relate to the establishment of courts within the State. As to the particular reasons which prompted the framers to adopt certain sections of the first Constitution little is known unfortunately. Only a fraction8 of the minutes and mem- oranda of the first committee on government is yet extant, or at least in State records. Even the original Constitution remained in private hands until 1818.9 Therefore, it cannot with any confidence be stated to whom the principal author- ship of the Constitution may be credited. It is generally be- lieved that Jay was the inspiring influence, but there is specific proof that Mr. Jay objected to some of its provisions ;10 and in the "History of New York During the Revolutionary War," published in 1879 by the New York Historical Society, from manuscript of Thomas Jones, a loyal justice of the royal court in New York, it is asserted that Historian William Smith, who later deserted the republican cause, was its main author.11 However, Jay was probably the guiding influence. It was on his motion that the Declaration of Independence was approved by the New York Convention; and his im- portant part in the framing of the Constitution seems to have been generally recognized when he was made Chief Justice.
There was nothing notably original in the plan of govern- ment devised in 1777. The framers of the Constitution would have served their country less notably had they overthrown all the old institutions in the passionate impulses that are so apt to come to men of fervent patriotism at such a time. They were patriotic; but they were wise and prudent. They did not pose as doctrinaires, and they did not blind themselves to the basic good of the old institutions. John Adams, in his reply to Mr. Turgot's strictures on the resemblance of the
8. Coll. N. Y. Hist. Mss., Revolutionary Papers," Vol. I, p. 552.
9. "Journal of General Assembly of New York," Feb. 11, 1818, p. 156.
IO. "N. Y. Col. Rev. Papers," p. 678.
II. Jones' "History of New York During the Rev. Period."
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American Constitutions to the English model, explains, in substance, that the colonial plans of government were re- tained after the Revolution "because they were founded in nature and reason, and the people were attached to their familiar features."12 The Revolution was waged against the King and Parliament, not against the common law, nor the familiar institutions, including the legislative plan, the judicial structure, and the general administrative features of govern- ment.
The first term of the Supreme Court of Judicature of the State of New York was held at Kingston in September, 1777, Chief Justice Jay beginning the session on September 9. In that session he delivered the first charge made to any grand jury in the State. This charge, delivered to the Grand In- quest of the County of Ulster, a body of twenty-two of its most respectable citizens, was "a chaste and beautiful piece of rhetoric," states Fowler, and, like all the mental creations of the "Revolutionary Fathers," is "redolent of liberty, justice and equality before the law." The Chief Justice then stated "the wonderful fact in human affairs" that "the Americans were the first people whom heaven had favored with an op- portunity of deliberating upon and choosing the forms of government under which they should thenceforth live."
John Jay did not long remain in office as Chief Justice of the State Supreme Court; he was soon called to higher na- tional responsibility. A review of his distinguished career would grace this chapter, but is reserved to head that which deals with New York's contribution to the United States Su- preme Court, of which also John Jay was the first Chief Jus- tice. Biographical reference to other justices of the New York Supreme Court will be found in the county histories of the Judicial Districts chapters. This chapter, therefore, will cover only the general history of the Supreme Court.
12. Adams' "American Constitution," Vol. I, p. 15.
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"Cupidity was certainly not an impulse to ambition for judicial station" in the first decades of the republican era. On April 4, 1778, the salary of Chief Justice Jay was fixed at £300, equal to $750 New York currency, per annum. The annual salary of the associate justices was £200. In addi- tion, however, they were to be allowed forty shillings for each day of attendance on the Oyer and Terminer, and their travel fees. Still, Continental currency was of little value, and New York currency depreciated deplorably. The ordinary stipend of the judges could not cover the cost of living in war times, so Chapter 34 of the Laws of 1779, passed October 25, gave Hobart and Yates "for extraordinary duties and services in office, from the 5th day of July last, and in consideration of the advanced prices of necessaries of life, the sum of $1,000" each.
Jay was no longer Chief Justice, having resigned. At that time he was holding office under the National Government, as United States Ambassador to the Spanish Court, and in Oc- tober, 1779, Robert Morris was appointed Chief Justice of the Supreme Court of New York in his stead. By the act of March 16, 1778, the justices of the Supreme Court were au- thorized to devise a seal.
In 1779 a legislative act was passed, creating a council or committee for the Southern District of the State, then in pos- session of Crown forces. The committee was composed of the Governor, the two Legislative Houses, the chancellor, the Supreme Court justices, the attorney-general and the county judges, with governmental authority, and with power in any seven, including the Governor, to act for sixty days after convening in that part of the State. Probably, however, the State Supreme Court functioned no more in that region than did the royal court. After the evacuation13 by the British in
13. At the breaking out of the Revolution, Chief Justice Horsmanden, Justice Thomas Jones and George D. Ludlow, and Jauncey, the Master of the Rolls, adhered to the cause of the crown, while Justice Robert R. Liv-
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1783, this republican committee was organized in New York City, and continued in session until the assembling of the Legislature. After this period, the Supreme Court was held in New York and at Albany, the justices going on circuit as before. The first session of the Supreme Court, in its Oyer and Terminer branch after the Revolutionary War, was held in New York City, on May 14, 1784; James Duane, who was mayor, and Justice Hobart, were commissioned for the Oyer and Terminer, Duane delivering the charge to the Grand Jury.
The terms of the Supreme Court for the different counties were settled by act of the Legislature in 1785. Two terms were to be held each year in New York City, and two in Al- bany ; the court was to sit in New York on the third Tuesdays of January and April, and at Albany on the last Tuesday of July and the third Tuesday in October. The April and Oc- tober terms were to continue for three weeks, and the others for two.
ingston joined the revolutionary party. The royalists retained possession of New York, Long Island and a part of Westchester, and within these limits the judges who had adhered to the royal cause continued to exercise juris- diction. Justices Jones and Ludlow retired to their farms on Long Island, but Horsmanden remained in the City of New York, and continued to exer- cise his functions until his death, in 1778, when the sole administration of judicial affairs was entrusted to Justice Ludlow. Two years after, in 1780, Ludlow, in addition to his powers as Justice of the Supreme Court, was created Master of the Rolls, with power "to hear and determine contro- versies until civil government should be restored." He also acted as Judge in Admiralty, and was appointed Superintendent of Police for Long Island. In the same year, 1780, Robertson, the last of the royal governors, issued a conciliatory proclamation, announcing that he had brought out a royal ap- pointment for supplying the place of Chief Justice, and as soon as the public exigencies would permit, he would give an order for opening the courts of judicature, and convene the Assembly. But his proclamation pro- duced no effect, and he did nothing under it until the following year, when he held a Court of Chancery, in person, about once a month, from the 24th of January, 1781, until the 9th of June, 1783. But little can be ascertained respecting judicial proceedings in this part of the State during this period, as the loyalists carried off the records relating to it, which had been kept in the city of New York. It is merely known that Justice Ludlow con- tinued to act as the principal judge until the close of the war, when he went to Canada, and became Chief Justice of the Province of New Bruns- wick .- Daly's "Account of the Judicial Organization of the State," Smith's "Reports, New York Common Pleas," Vol. I, LXVIII.
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In 1785 it was provided that the office of the clerk should be in New York City, and that of his deputy kept in Albany, all the papers filed in the office of the latter to be removed every six months to the office of the former. March 10, 1797, the justices were authorized to appoint an additional clerk, who was to keep his office in Albany, and to remove such papers from the New York office as they might deem proper. They were also required to cause an additional seal to be prepared. On the 4th of April, 1807, another office was au- thorized and located at Utica, the justices devising another seal for that office. The clerks were requested to furnish each other, at every term, a transcript of the docket of all judg- ments in their office.
By an act passed April 19, 1786, it was decided that issues joined should be tried in counties where the lands were situ- ated, the cause of action arose, or the offense was committed, unless the court should order the trial at the bar of the court. This provision was not applicable to actions of transitory na- ture and the court could, notwithstanding, order trials by juries in other counties in all proper and necessary cases. By the act of April 19, 1786, one or more of the justices of the Supreme Court were required to hold during the vacations, and oftener if necessary, Circuit Courts in each of the counties of the State, for the trial of all cases triable in the respective counties. What this entailed upon the small "corporal's guard" of three Supreme Court justices may be imagined from the description given in Chapter XLVII (Seventh Ju- dicial District) of Justice Hobart's journey from New York to Geneva by boat, canoe and on horseback, to conduct the first term of Supreme Court held in Western New York. The Act of April, 1786, provided that the proceedings be returned to the Supreme Court, where they were to be recorded and judgment given according to law. The justices were likewise empowered to take Assizes of Novel Disseizin, or any other
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assizes, in their discretion, at the Circuit. In 1789 the Legis- lature enacted that all issues triable by a jury might be tried either at the Circuit or at the bar of the Supreme Court, with- out any order for the purpose. In 1797 an order was rendered necessary for such trials. On the 12th of February, 1796, the office of clerk of the circuit was abolished, and the duties de- volved on the county clerks. On February 10, 1797, the Legislature passed an act directing the court to designate, at its April term, one of their number to hold Circuit Courts in the western, one in the eastern, one in the middle, and one in the southern districts. By this time the bench had been in- creased to five justices, Morgan Lewis becoming the third associate justice in 1792, and Egbert Benson the fourth in 1794.
An act passed February 22, 1788, provided for the holding of Courts of Oyer and Terminer by the justices at the same time with the Circuit, to continue until all business before it was disposed of. Two or more of the judges and assistant judges of the Court of Common Pleas were to sit in the Oyer and Terminer with the Supreme Court justices. In the city of Albany, the mayor, recorder and aldermen were the asso- ciates of the justice; and in the city of New York, the mayor, recorder and aldermen, any two or more of them, sat on the bench with the Supreme Court justice; but none of these local magistrates could sit in the Oyer and Terminer of any other city or county than their own. The court had power to direct its process into any city or county. The Governor had power to issue commissions of Oyer and Terminer when- ever he deemed it advisable, always naming the justice of the Supreme Court in his commission, with such others as the Governor and the Council of Appointment might deem proper. Once in each year the records and processes were to be sent to the exchequer to remain of record. On the 12th of February, 1796, the office of clerk of the Oyer and Terminer was abol-
CHANCELLOR JAMES KENT
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ished, and the duties of the office vested in the county clerks. Seven assistant attorneys-general, for as many districts into which the settled part of the State was divided were also directed to be appointed. The system of circuit courts re- mained substantially the same until the Constitution of 1821 came into effect in 1823. The Supreme Court remained at a strength of one chief justice and four puisne justices until that time also. And all were given commissions of perma- nent tenure, quamdui bene se gesserint; at least until they should reach the retiring age of sixty years, regarding which one writer wrote, having in mind the case of James Kent: "God makes the folly as well as the wrath of man to praise Him, and the stupid enactment of the New York Constitu- tion, which turned the judges out of office at the age of sixty, has atoned for all the injustice it wrought, by giving us Kent's Commentaries."14
It has been said that the formative history of the Supreme Court did not definitely begin until 1798, when James Kent became one of the associate justices. This may not have been because of the outstanding excellence of Kent as a jurist. Another important factor enters into the judiciary situation. "An official reporter is as essential to the usefulness and repu- tation of a judge as a poet is to a hero." There probably were capable judges before Kent, but the reporter goes back no further than his time in the Supreme Court records, and the judges who went before Kent therefore suffer by the com- parison. George Gaines, the first reporter of the Supreme Court, was appointed in 1804. William Johnson succeeded him; and in the preface of the latter's "Cases" it is stated that "sufficient materials could not be obtained for an authentic and satisfactory account of the decisions prior to January, 1799." The reason is explained by Kent himself. Kent, in a letter written to Thomas Washington, of Tennessee, in
14. Browne's "Short Studies of Great Lawyers," p. 225.
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1828, said : "When I came to the bench there were no reports or State precedents. The opinions of the bench were deliv- ered ore tenus. We had no law of our own and nobody knew what it was. I first introduced a thorough examination of cases and written opinions. In January, 1799, the second case reported in first Johnson's Cases, of Ludlow v. Dale, is a sample of the earliest. The judges, when we met, all as- sumed that foreign sentences were only good prima facie. I presented and read my written opinion that they were con- clusive, and they all gave up to me, and so I read it in court as it now stands. This was the commencement of a new plan, and then was laid the first stone in the subsequently erected temple of our jurisprudence." Browne writes that it is "to James Kent that our jurisprudence owes most of its equity jurisdiction and a large part of our common law." Wirt said "Kent knew more law than most of the other judges of the United States put together." Yet, although we have no reports of the adjudications of the Supreme Court until 1799, it is probable that its abilities were equal to its exigencies. The Chief Justices, Jay, Morris, Yates and Lansing, were eminent lawyers, and the associate justices, except Hobart, were all bred to the law. Benson drew the rules adopted in 1796.16 Of him Kent said that "he did more to reform the
16. The first rules of the new Supreme Court were adopted at the April term of 1796. They were drawn by puisne Judge Egbert Ben- son.
The usual preparation for admission to practice before the court was a college or university education and three years' apprenticeship, or, without the educational qualification, seven years' service under an attorney. In any case, the Chief Justice recommended the candidate to the Governor, who, thereupon, under his hand and seal at arms, granted a license to practice. Upon taking the usual oath, the person was qualified to practice in every court in the province. Attorneys were admitted into the county courts with less ceremony; for the Governor formally licensed all persons, no matter how indifferently recommended. As a natural result, the profession was de- meaned by the admission of men who were not only of slight ability, but also of indifferent character. The Constitution of 1777 provided that all attorneys, solicitors and counsellors-at-law should be appointed by the court in which they were to practice, should be licensed by the First Judge of that court, and should be regulated by its rules and orders. Rules of the court
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practice of the court than any member before or after"; and Chief Justice Duer said that "as a master of special pleading Benson was hardly surpassed by Chief Justice Saunders him- self." Still it seems that the true formative period of the Supreme Court was from 1798 to 1823, under the lead of Kent, Spencer and Thompson. Before the former date, the proceed- ings, arguments and opinions were only promulgated in occa- sional private pamphlets, and lawyers and judges relied on English reports for precedents. Kent began to give us precedents, "and our bench and bar began to walk indepen- dently."15
According to Fowler,17 "the judicial establishment of New York was never more efficient than in the first twenty-one years" of the nineteenth century. "It was still substantially the provincial establishment erected by the English, and con- tinued by virtue of the recognition accorded to it in the first State Constitution, adopted in 1777." The Supreme Court,
relating to the admission of attorneys and counsellors-at-law as early as 1797 provided that no person should be admitted to practice unless he should have served a regular clerkship of seven years with a practicing attorney of the court; but any period of time, not exceeding four years, during which a person after he should have been fourteen years of age should have pursued classical studies, should be accepted in lieu of an equal portion of time of clerkship.
These rules also provided for filing a certificate of clerkship, and that if the clerkship should be intended for less than seven years, because of the fact that the person had pursued classical studies, an application should be first made to a judge, who, on examination of the matter, should make an order to be annexed to the certificate, purporting that it satisfactorily ap- peared to him that the person applying had pursued classical studies after he was fourteen years of age, for such a period of time not exceeding four years, as should be specified in the order and thereupon ordering that the clerk- ship should be for the term which should remain after deducting from seven years the time so specified in the order. After four years of practice, an attorney was entitled, as of course, to be admitted to practice as counsel. This rule was modified by a rule of the November term, 1804, so that a prac- tice of but three years was required. By a rule of August term, 1806, it was provided that no person other than a natural-born or naturalized citizen of the United States should be admitted as an attorney and counsellor of the Supreme Court.
The rules relating to the admission of solicitors in chancery were sub- stantially to the same effect, except that the person applying to be admitted was examined before the Chancellor, Vice-Chancellor, or such other officer
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originally established in 1691, continued on its ancient footing, but, with the growth of population, eventually came the pub- lication of printed law reports. "The elevation of James Kent to the Supreme Court bench in 1798, and his interest in the proper reporting of causes, did much to place this ancient court on a more influential basis. Under the judge- ships of three great judges-Kent, Thompson and Spencer- the court was very excellently administered, and many legal principles were settled; while fluctuating theories gave place to determinate and known rules of law, reported in the famous series of leading cases by Caines and Johnson, the offi- cial Supreme Court reporters. The Supreme Court justices still went the circuit when the regular terms of the court in banc were not in session in Albany, Utica or New York."
If the testimony given as to the capacity for work of one of the indefatigable justices of this period is indicative of what was expected of all the judges, their judicial labors must have
of the court as the Chancellor directed upon a special order for exami- nation previously made.
Rule eight, of the Supreme Court, passed at the January term, 1799, presented another illustration of the primitive condition of the State of New York at that time. It required every attorney residing in the city of New York, and attorneys residing elsewhere to have two agents, one in the city of New York, and the other in the city of Albany. The object of this rule was to make it less difficult to serve papers on attorneys in actions .- Chester's "Legal and Judicial History of N. Y.," Vol. I, pp. 364-366.
15. That admirable reporter, Johnson, in 1811, in the preface of his series of "Reports of the Supreme Court and the Court of Errors," writes : "If works of this nature are found so indispensable in that country (Eng- land) they are far more necessary in our own, where new questions every day arise, in the decision of which English adjudications cannot always afford a certain guide." "Though the English reports published since the Revolution will continue to be read by every lawyer who entertains a just and liberal view of his profession, as containing the opinions of judges of eminent learning and ability, expounding the principles of that excellent sys- tem of jurisprudence which has been adopted as the basis of our own, yet it may be observed that of the numerous questions decided in Westminster Hall, a small number only are found applicable to questions which arise here. We must look therefore to our own courts for those precedents which have the binding force of authority and law."-Quoted in "The Public Ser- vice of the State of New York," Vol. III, p. 19.
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