USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 35
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17 "Constitutional and Legal History of New York," in "Memorial His- tory of the City of New York," Vol. III, p. 617.
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been prodigious ; Judge Bowen Whiting said that he was once at the Tompkins circuit, held by Spencer. The calendar was taken up on Monday with forty-eight cases; the circuit ad- journed on Thursday, having disposed of every cause.18 Daniel Lord, in an address on the death of Kent, reviewed the bench and bar of his period; he spoke of "the sagacious, the complete Hamilton, the honest-minded Pendleton ; Harri- son, the learned, the elaborate; Hoffman, the ingenious pol- ished master of the advocate's art; the deeply-learned, wise- searching Riggs; Emmett, whose enlarged and extensive learning was equalled by his childlike simplicity of heart; Colden, the polite scholar, the speculative philosopher, the able lawyer; also that model of all that is valuable in our memory, Van Vechten, whose eloquence was Ciceronian and charmed every heart; the terse and gifted Henry, the younger Jay, full to abounding in every noble trait; and that union of scholar, lawyer, orator, and gentleman-John Wells; the ingenious, polished Livingston ; the sound and judicious Rad- cliffe; Thompson, the honest, steady and staunch friend of all that was true and just; Van Ness, the accomplished man of genius; Platt, the sedate, the sober-minded; and, last, he who in every trait and lineament, in every part and member, was in every way a giant, Spencer." All these great men were identified, either as advocates or jurists, with the Su- preme Court under the original Constitution. The justices of this period were: John Jay, Richard Morris, Robert Yates, John Lansing, Jr., Morgan Lewis, James Kent, Smith Thomp- son and Ambrose Spencer, Chief Justices ; John Sloss Hobart, Egbert Benson, John Coxine, Jacob Radcliff, Brockholst Liv- ingston, Daniel D. Tompkins, William W. van Ness, Joseph C. Yates, Jonas Platt, John Woodworth, associate justices. Yates, Lansing, Kent, Thompson and Spencer also served as associates before becoming chiefs.
18. "Public Service of the State of New York," Vol. III, p. 19.
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It is doubtful, however, whether such openly-expressed condemnation has had to be borne by the jurists of any other period. All the justices under the original Constitution were somewhat closely allied-too closely for their good-with the Legislature. A flaw of the Constitution of 1777 undoubtedly was the association of judicial and executive functions in the same persons. Kent and Spencer, in particular, were held up to scorn. The most shameful expletives were uttered of them by politicians, in the heat of partisan anger. Kent was compared, in the Constitutional Convention of 1821 "to the poisonous upas tree of Java, which destroyed all that came beneath its shade; and Spencer was told that he might have been a Holt or a Mansfield if he had kept away from the polit- ical arena." Fowler writes: "Yet these gentlemen were doubtless the victims of the ill-assorted alliance between the Legislature and the supervising power of the Council of Re- vision, or of that mistake in the original Constitution which vested the judicature as a sort of third estate, with the neg- ative on legislation in all cases. Oftentimes, the majority of the Legislature were unable to pass a bill over the veto of the Council, and then their indignation would be visited on the judges who defeated them ; the votes of the judges in the Council were attributed to political bias and not to conviction, and they were denounced with all the accompaniments of mere political virulence. This denunciation came ultimately to affect the usefulness of the Supreme Judiciary under the first Constitution, and to tarnish their otherwise splendid administration of the law."19
The Constitutional Convention of 1821 made several alter- ations in the judiciary article. The structure of the Supreme Court was altered by increasing the number of the judges and in the assignment of their duties. By the new Constitution the State was divided into eight Senatorial districts, and as
19. Fowler's "Observations on the Particular Jurisprudence of New York," "Albany Law Jnl.," Vol. XXIII, p. 489.
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many corresponding judicial districts, in every one of which there was to be a circuit judge, to hold the Court of Oyer and Terminer, and perform the duties of a Supreme Court justice at Chambers. From these circuit judges there was to be an appeal to the Supreme Court proper, which in the re- organization was to consist of a Chief Justice and two associ- ate justices. They were entirely relieved of circuit duty, and, as their opponents were glad to think, this "deprived of all the political advantages conferred on them, as it was sup- posed, by an official tour in the name and under the authority of the majesty of the law." The Supreme Court was also in- vested with appellate jurisdiction over the judgments of the inferior courts, though the Court for the Correction of Errors was continued as under the original Constitution. The new Constitution provided that equity powers might be vested in the circuit judges. Accordingly, in 1823, an act was passed erecting equity courts in the several circuits, to be held by the circuit judges. In a short time, however, these distinct equity courts were abolished, and general equity jurisdiction was given to the chancellor, while on the circuit judges were conferred equity powers, as vice-chancellors. But in 1831, owing to the very rapid increase of equity business in the city of New York, a separate vice-chancellor was appointed; in other circuits than the First, however, the circuit judges con- tinued to act as vice-chancellors until the Court of Chancery was abolished under the Constitution of 1846.20
20. In 1839 the duties of Circuit Judge and Vice-Chancellor in the Eighth District were separated, and Frederick Whittlesey was appointed Vice-Chancellor for that circuit .- "Public Service of the State of New York," Vol. III, p. 22.
20a. Circuit Judges, Between April, 1823, and June, 1847-First Circuit : Ogden Edwards, appointed April 21, 1823; William Kent, 1841; John W. Edmonds, 1845. Second Circuit : Samuel R. Betts, 1823; James Emott, 1827; Charles H. Ruggles, 1831; Selah B. Strong, 1846; Seward Barculo, 1846. Third Circuit: William A. Duer, 1823; James Vanderpoel, 1830; John P. Cushman, 1838; Amasa J. Parker, 1844. Fourth Circuit : Reuben H. Walworth, 1823; Esek Cowen, 1828; John Willard, 1836. Fifth Circuit : C.&L .- 54
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The Constitutional Convention of 1821 removed the ob- noxious association of the judiciary with the Legislature by abolishing the Council of Revision, and giving the Governor the veto power, and the power of appointing with the consent of the Senate all the higher judicial officers. The judges were thus freed from suspicion, having no legislative functions, and were "rendered less dependent on a clique of Senators." As to the old mode of appointment, Governor Clinton once said : "If the ingenuity of man had been exercised to organize the appointing power in such a way as to produce continual in- trigue and commotion in the State, none could have been devised with more effect than the present arrangement." The investing of the judges, appointed to construe and ad- minister the laws, with power to annul them by the veto was contrary to well-recognized principles of government. Yet, the Supreme Court jurists were not altogether separated from political association by the Constitution of 1821, they were ex officio members of the Court of Errors, which was com- posed of all the Senators. However, its purpose was more judicial, even though in operation the Court of Errors was not free of error in its decisions.
The new Constitution did not change the tenure of the higher judicial officers; they continued in office during good behavior until they reached the age of sixty years; but they were removable by joint resolution of the Senate and Assem- bly, by a concurrence of two-thirds of the latter and a majority of the former.
In IS23 the terms of the court were held on the third Mon- days of February and October, and the first Mondays of May and August ; the May term to be in the city of New York, the
Nathan Williams, 1823; Samuel Beardsley, 1834; Hiram Denio, 1834; Isaac H. Bronson, 1838; Philo Gridley, 1838. Sixth Circuit : Samuel Nelson, 1823; Robert Monell, 1831; Hiram Gray, 1846. Seventh Circuit : Enos T. Throop, 1823; Daniel Moseley, 1829; Bowen Whiting, 1844. Eighth Cir- cuit : William B. Rochester, 1823; Albert H. Tracy, 1826; John Birdsall, 1826; Addison Gardiner, 1829; John B. Skinner, 1838; Nathan Dayton, 1838.
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August term at Utica, and the February and October terms at Albany.21
Salaries fluctuated, and never were adequate. In 1778, the Chief Justice's salary stood at $750 (New York currency ), and his associates received $500. A gratuity of $1,000 each was provided in 1779; and probably other emergency appro- priations were made from time to time. Twenty years later, in 1797, the justices were receiving a salary of $2,000 a year. In 1812 their salaries were fixed at $3,000 a year for three years. But another war had come to disturb currency values; and in 1816 their stipends were increased to $4,500, without limit as to time. Also, on April 20, 1816, it was enacted that the justices residing in the city of New York should be en- titled to fees for the transaction of chamber business, and other services pertaining to their offices. In 1820, with the improvement in national currency, judicial salaries were re- duced to $3,500, and in 1821 to $3,000. In 1823, the salary was further reduced, and remained at $2,000 until 1835, when the stipend became $2,500, though in that year their compen- sation for travel and allowance as members of the Court of Errors was abolished. In 1839 salaries were increased to $3,500, this figure remaining fixed until 1847.
Under the original Constitution the Court of Exchequer business would, by inference in continuing the Supreme Court, come under the jurisdiction of the latter. The first Court of Exchequer was erected by Governor Dongan in 1683, with
21. The terms continued four weeks, but no process was to be tested or made returnable the last two weeks. Subsequently the terms commenced on the first Mondays of January, May and July, and the third Monday of Oc- tober; the January and October terms at the Capitol at Albany, the May term at the City Hall in New York, and the July term at the Academy in Utica. These terms were held five weeks; but no argument was to be heard the last week except by consent of parties and counsel, and no process was to be issued, tested or returned after the second Saturday, except sub- poenas, attachments and writs of habeas corpus. In 1841 the October term was changed from Albany to Rochester, and one of the Justices was re- quired to sit at the Capitol in Albany to decide such non-enumerated busi- ness as should arise, except such as should be directed by rule to be heard in term time .- "New York Civil List," 1888 ed., pp. 334, 335.
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jurisdiction over all matters relating to Crown lands, rents, rights, profits and revenues. The Act of 1691 gave the Su- preme Court cognizance of matters in exchequer. Under State government, it was reorganized as a branch of the Su- preme Court, by an act passed February 9, 1786, "for the bet- ter levying and accounting for fines, forfeitures, issues, amercements, and debts." The junior justice of the Supreme Court was constituted judge of the Court of Exchequer, but the other associate justice of the Supreme Court could act in his absence. Seal was adopted July 17, 1786. William Pop- ham was clerk throughout the whole life of the court, serving from July 17, 1786, until January 1, 1830, when the court was abolished by the repealing act of December 10, 1828.
The outstanding work of the period of the second Constitu- tion was the completion of the Revision of the Statutes by Butler, Duer, Spencer and others. These Revised Statutes of 1829 wrought a great change in the form of the law, and fixed the jurisdiction of the minor courts; but the powers of the Supreme Court continued under the Constitution of 1821 substantially as under the Crown;22 and the Revised Statutes declared this to be a fact. It was not shown that this brought any discredit upon the court; indeed, it was doubtful whether even in the first twenty years of the nineteenth century this State was blessed with a Supreme Court of higher standard than that of the second Constitution, 1823-47. The Chief Justices during this period were Savage, Nelson, Bronson and Beardsley; and associate justices were Sutherland, Wood- worth, Marcy, Nelson, Bronson, Cowen, Beardsley, Jewett, Whittlesey and McKissock.23 "It would be difficult to par-
22. Graham's "Courts of New York," p. 14I (edition of 1839).
23. Supreme Court Justices Under Second Constitution, 1823-47- Chief Justices : John Savage, appointed Jan. 29, 1823; Samuel Nelson, 1831 ; Greene C. Bronson, 1845; Samuel Beardsley, 1847. Associate Justices : Jacob Sutherland, appointed January 29, 1823; William L. Marcy, 1829; Samuel Nelson, 1831; Greene C. Bronson, 1836; Esek Cowen, 1836; Sam- uel Beardsley, 1844; Freeborn G. Jewett, 1845; Frederick Whittlesey, 1847; Thomas McKissock, 1847.
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allel these names, for public virtue, profession, learning and successful administration of the law, in the history of any other community," writes Browne, "The name of Marcy," he says "is one of national reputation . . .; a man of the highest quality of native powers. Judge Nelson served his country, in our State and on the Federal Supreme bench for half a century, a man of leonine strength and sagacity. The reputation of Judge Cowen is also a national possession. It is doubtful whether any other State judge, excepting Kent and Shaw, is so well and widely known throughout the country." His written works "stand upon the shelves of nearly every lawyer in the land-a mine of professional learning." Judge Bronson "was a man of marvellous brilliancy and power. Seldom has any court been composed of three such legal giants as Nelson, Cowen and Bronson, and seldom have they been succeeded by such men as Beardsley and Jewett. Our Supreme Court, under these eminent men, may be declared the finest fruit of the system of an appointed judiciary."24
But, the State was growing; its population was changing in character; the conservative provincial families were being outnumbered by the thousands of immigrant families that debarked at New York and settled in different parts of the State. They came mostly from monarchies; came to what they thought would be the land of democracy ; and they found that the institutions were not very different from those of their native land. They wanted democratic standards; and as they gained political strength, they demanded that the institutions of their adopted country be more in accord with democratic principles. This was one of the underlying forces that influenced the people to sanction the holding of a con- vention to revise the Constitution of 1846. They demanded, among other changes, the right to select the judges of their courts; they condemned the appointive system; they con-
24. Irving Browne, in "Public Service of the State of New York," Vol. III, p. 23.
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tended "that the open strife of political canvass and election was less to be dreaded than "the secret intrigues of the Gov- ernor's council chamber"; that "a feeling of responsibility to the people was a better guarantee of fidelity in a judge than a sense of personal obligation to a single man." They did not like the tenure of the judicial office, either ; and while they saw the folly of dismissing an experienced and vigorous jurist at the age of sixty, they did not like to be committed to him for life, even with the "good behavior" proviso. They wanted to have an opportunity of declaring, by means of the ballot at stated times, their opinion of his service. In other words, they wanted to hold the reins of government in their
own hands oftener.25 Singularly enough, this spirit of de- centralization found its first expresssion in the State institu- tions in 1823, when the Circuit Courts distributed some of the former greatness of the Supreme Court among localized benches ; yet this method of decentralization in the end proved unsatisfactory to the people, because of the disposition evinced by suitors to review all their decisions before the Supreme Court in banc. So these changes were brought about, and a new order came into effect on July 1, 1847, fol- lowing the election earlier in that year of all judicial officers. The whole judicial system was reorganized; and in the new order the Supreme Court was given greater authority than it had ever held. The Court of Errors and the Court of Chan-
25. Under the Constitution of 1821 the practice in all the courts, both in law and in equity, remained substantially that of England, but with many local variations which had grown up under the crown government of New York, and which, if separately studied, proved very interesting phenomena. Singularly enough, under the State government there was a tendency among the judges to obliterate these distinctions which had grown up in the province, for to follow ancient precedents is easier than to follow innova- tion. The Revised Statutes did not reform the practice; they systematized many of the old statutes of New York relative to jeofail practice and pro- ceedings, and embodied some new provisions relative to the limitation of ac- tions in the courts of justice, but no great reform in practice was effected until after the Constitution of 1846 .- Fowler's "Constitutional and Legal History of New York," "Mem. Hist. N. Y.," Vol. III, p. 644.
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cery were abolished ; and to the new ultimate judicial tribunal, the Court of Appeals, the Supreme Court was to furnish one- half of the judges. The Circuit Courts were abolished, but the Supreme Court was so enlarged that it now was composed of thirty-two justices. The court had general jurisdiction in law and equity, taking over the jurisdiction of both the Court of Chancery and the Circuit Courts. To the extent that the new Supreme Court justices were elected for service in particular judicial districts, the new system adopted was to all intents, the same as the old Circuit Court plan; and, of course, their duties were similar.26 But while this enlarged Supreme Court took such an important place in the judicial system of the State, and the jurists could sit to an age limited only by their mental and physical fitness, they were called upon to stand before the electorate every eight years. In- deed, one-fourth of the first elected judges were given terms of only two years; another fourth terms of four years; and another quarter of six years, so as to bring one-fourth of the judges before the people every two years.
The justices elected on June 7, 1847, to constitute the new
26. The Constitution of 1846 abolished the Court for the Correction of Errors and the Court of Chancery, and reorganized the Supreme and Cir- cuit Courts. . . . In place of these it created, first, a Court of Appeals of eight judges, four to be chosen by the electors of the State, and four to be selected from the class of justices of the Supreme Court having the shortest time to serve, and to sit one year each; second, a Supreme Court, with gen- eral jurisdiction in law and in equity, consisting of thirty-two justices, to be chosen by the electors, in eight separate districts, the electors of each district choosing four, the justices first chosen to be classified so that one justice in each district should go out of office every two years, but every justice after- ward chosen to hold for eight years; General Terms of the court to be held in the several districts by three or more of the justices; Special Terms and Circuits to be held by any one or more of the justices, any one or more of whom were also to preside in Courts of Oyer and Terminer.
The radical changes wrought by the new Constitution were, therefore, as follows: First, the judges were to be chosen by popular election, instead of gubernatorial appointment ; second, they were to hold for terms of eight years, but no limitation by reason of age was provided; third, the Equity Court was abolished, and jurisdiction both at law and in equity was centered in the Supreme Court. . . .- Browne, in "Public Service of State of New York," Vol. III, p. 27.
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Supreme Court were : Samuel Jones, Elisha P. Hurlbut, John W. Edmonds and Henry P. Edwards, for the First District ; Selah B. Strong, William T. McCoun, Nathan B. Horse and Seward Barculo, Second District; William B. Wright, Ira Harris, Malbone Watson and Amasa J. Parker, Third Dis- trict; Daniel Cady, Alonzo C. Paige, John Willard and Au- gustus C. Hand, Fourth District; Charles Gray, Daniel Pratt, Philo Gridley and William F. Allen, Fifth District ; William H. Shankland, Hiram Gray, Charles Mason and Eben B. More- house, Sixth District; Thomas A. Johnson, John Maynard, Henry Welles, and Samuel L. Selden, Seventh District ; James G. Hoyt, James Mullett, Seth E. Sill and Richard P. Marvin, Eighth District. Their successors, up to and including 1924, will be found listed in the several judicial district chapters.
These early jurists had to adapt themselves to several rad- ical changes introduced by the Constitution of 1846. Admis- sion to practice was secured to "every male citizen of good character, possessing the requisite learning and ability ; parties were to be enabled to waive a jury trial in civil cases ; testimony in equity cases was to be taken in same manner as in cases at law ; witnesses were not to be "unreasonably" de- tained, and no person should be considered incompetent as a witness on account of his opinions on religious subjects ; the statute laws were to be speedily published, and the judicial decisions reported, tribunals of conciliation for the decision of disputes voluntarily submitted were to be established ; com- missioners were to be at once appointed to simplify and abridge the rules of practice, pleadings, forms and proceedings of the court. In addition, as Mr. Butler said in 1847, the con- vention "contemplated a bold, and, in the judgment of some, a startling innovation in our system of jurisprudence, for the Legislature are also directed to appoint commissioners to reduce into a systematic code the whole body of the law, or so much and such parts thereof as they may think practicable
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or expedient." The same eminent lawyer, however, further observed: "The instrument exhibits an earnest desire on the part of its framers, to reform and simplify the practice of the law, and to render the administration of justice less dilatory and expensive than heretofore."
In due course, the Legislature appointed commissioners to revise the practice, and in course of time these commis- sioners-Arphaxad Loomis, David Graham and David Dudley Field-prepared the instrument known as the New York Code of Procedure, which was adopted in this State in 1848, and its principles by many other States, also to some extent in England. Its adoption in New York was opposed ve- hemently, both at the bar and on the bench.27 Browne writes, regarding this time :
It may be truly said that no judiciary ever had a more onorous task thrust upon it. So accustomed were the judges at the adoption of the Code to the intricate and artificial system of pleading at law and in equity, that the change seemed to stun and bewilder them, as it is with one who comes out of a clatter of machinery into the stillness of nature. It would be difficult to give a layman an adequate idea of the discrepancy between the two systems. There is now little difference of opinion as to the merits of the new system. Under the old system pleading was a precarious and difficult science. "Jus-
27. Hiram Denio, later a very distinguished jurist and eventually Chief Judge of the Court of Appeals, but at that time a reporter, said, in the Preface of the fifth and last volume of his reports : "A new system of legal procedure has been introduced. Under the specious name of reform, and in professed obedience to a constitutional provision looking only to the modes of practice, all the divisions under which legal rights and remedies had been arranged, and the whole nomenclature of legal science, as learned and practiced in this court, have been abolished. The ancient simplicity of the common law has been made to give place to a system in which every case is made a special one; and the ancient and established principles of juris- prudence illustrated and enforced in the series of adjudications of which this volume is the concluding portion, can now be found applied only by approx- imation, and a series of elective affinity, as tedious in its operation as it must be uncertain and fluctuating in its result."
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