USA > New York > Historical sketch of the judicial tribunals of New York from 1623 to 1846 > Part 8
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The first English lawyer whose name appears upon the records, is John Tudor. He practiced for many years in the mayor's court, appears to have been familiar with the Dutch language, was recorder of the city from 1704 to 1710, and died in 1715.1 The account given by Bellamont, in 1698, of Tudor's contemporaries, who was a gentleman and a high minded man, and whose statement may therefore be relied on, is far from being flattering. He says that nearly all who then called themselves lawyers, and practiced in the colony, were men of scandalous characters; that none of them had ever been barristers, or aimed at anything higher in England than the duties of an attorney ; that one had been a dancing master, another was by trade a
2 Rec. of Mayor's Court, 1674.
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JUDICIAL ORGANIZATION OF THE STATE.
glover, and that a third, one Jamison, had been condemned to be hanged in Scot- land for burning a Bible and blasphemy ; that it was grievous to see the miserable way in which they mangled and profaned "the noble English law," and that in addition to their ignorance, they were all, with one or two exceptions, violent enemies of the government, and were doing a world of mischief by infecting the people with an ill disposition towards it.1 The lawyers in the time of Chief Justice Delancey, were men of a very different stamp, and as a body, would have done no discredit to Westminster Hall. William Murray, who was then the senior member of the bar, and had been for many years attorney general, was a man of much legal experience, able upon the argument of a law question, but in no other respect re- markable. William Smith, the father of the historian, and towards the close of his life, a judge of the supreme court, was an able lawyer, an impressive and eloquent speaker, and a man of varied attainments. In addition to his high merit as a lawyer, he was an excellent theologian, a proficient in the French, Greek, Latin and Hebrew languages, and something of an adept in the sciences, but was especially distinguished for his oratorical powers, having the unusual natural advantages of an impressive person, a fine voice, great fluency, and an active imagination. James Alexander stood, as a lawyer, for more than a quarter of a century, at the head of the profession. He was an uninteresting speaker, but a man of great sagacity and penetration, deeply read in the law, so that his opinion upon any legal question, it is said, was received or listened to as the response of an oracle. Hé surpassed all his contemporaries for his close application to business, and yet found time to acquire, for one not especially devoted to such studies, an unusual amount of knowledge in several of the natural sciences. Alexander was a native of Scotland, and the claim- ant of a Scotch peerage, which passed to his son, the Earl of Sterling, and he died in 1756, after having amassed a large fortune, the fruits of an upright, an arduous and highly honorable professional career. There was also another lawyer of marked ability in the colony at this period, Francis Harrison; but after having held several important judicial stations, he became involved in transactions that covered him with well merited obloquy, and he left the colony in disgrace. Immediately before the revolution, the bar of New York presented a galaxy of remarkable men, too numerous for individual notice. Among its senior members were William Smith, the historian, Samuel Jones, father of the late chief justice, John Morin Scott, Richard Morris, William Livingston and Benjamin Kissam ; and its junior members embraced the well known names of John Jay, James Duane, Gouverneur Morris, Peter R. Livingston, junior, Egbert Benson and Peter Van Schaack.
It has been already stated that commissions in admiralty were granted by the early governors, and that jurisdiction was occasionally exercised by the mayor's court. In the instructions given to Dongan he was directed to establish a court of admiralty. He granted a commission to Luke Santon to act as judge in admiralty, and Santon heard several cases,3 but no court was erected. Leisler, during his brief administration, issued a commission for a court of admiralty, and placed De Lanoy, whom he had appointed judge of the oyer and terminer, at the head of it.4 Upon
1 Lord Bellamont's Letter to the Lords of Trade and Plantation, Dec. 15, 1698. 4 Col. Doc. 441.
2 Rec. of Wills in N. Y. Surrogate's office, vol. i. 5.
3 Rec. of Wills in N. Y. Surrogate's office, vol. i.
4 2 Doc. History N. Y. 36, 164.
E
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HISTORY OF THE COURT AND OF THE
Governor Fletcher's arrival, in 1692, the court was permanently established. He authorized Smith, the chief justice, to act as admiralty judge until one should be nominated by the lords of admiralty, and the attorney general, Graham, to act as advocate for the crown, and he appointed, as permanent officers of the court, a register and a marshall.1 The chief justices continued to act for some time there- after, until Bellamont complained of their inefficiency. He urged the appointment of an admiralty judge, and in 1703, Roger Mompesson was duly commissioned as admiralty judge for New York, New Jersey, Connecticut, Rhode Island and Massa- chusett's Bay.2 In 1721, this jurisdiction was limited to New York, Connecticut, and New Jersey,3 and an appeal lay to the high court of admiralty in England, until about 1770, when an appellate court, called the Superior Court of Admiralty for North America was instituted, to which an appeal lay from all the colonial tri- bunals.4 The court of admiralty was continued in this state after the revolution, until the organization of the United States District Court, by the judicial act of 1789.5
It has also been stated that jurisdiction in the proof of last wills and testa- ments, and the granting of letters of administration upon the estates of intestates, was originally vested by the duke's laws in the courts of sessions, and was occa- sionally exercised by the mayor's court. The provisions in these laws requiring wills to be registered in the office of records in New York, gradually led to the vest- ing of this jurisdiction exclusively in the governor. The office of records was in charge of the governor's secretary, or, as he was styled, the secretary of the province, and in the first year of Nicolls' administration, he began to grant letters of adminis- tration, and do other acts pertaining to estates, by virtue of his prerogative. This practice was continued by his successors, and, in Dongan's time, wills were proved before the governor.6 Under Sloughter, all documents pertaining to the proof of wills, or to the administration of estates, were authenticated by a particular seal, de- nominated the seal of the prerogative office; and this jurisdiction became more de- cided and settled." During the administration of Governor Fletcher, an act was passed by the general assembly, in 1692, for regulating the probate of wills.8 This act provided that two freeholders should be appointed or elected for every town, whose duty it should be to take charge of the estates of intestates. It also provided that the probate of wills should be made before the governor, and that letters of administration should be granted by him, or by such person as he should delegate, under the seal of the prerogative office. All wills relating to estates in King's, Westchester, Richmond, Orange and a few other adjoining counties, were required to be proved in New York, before the governor or his delegate ; but, in consequence of the remoteness of the other counties, and the expense and inconvenience of bringing witnesses, the courts of common pleas were authorized to take the proof, and trans- mit the proceedings had before them, under the hand of the judge of the court, and of the
1 Rec. of Coms. ii. 124. 4 Col. Doc. 112, 1000. Stokes, 270.
2 Rec. of Coms. ii. 144.
3 Rec. of Coms. iii. 217. 1 Smith, 877, 2d. Ed.
4 1 Doc. History, 512.
$ Laws of 1778, Holt's Ed.
6 Rec. of Wills, vol. i.
7 Rec. of Wills, vol. iv. 34, 35.3
8 Laws of Col. of N. Y. Bradford's First Ed. of 1692. 1 Jones & Vauck's Ed. 14.
UN
CALIF
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JUDICIAL ORGANIZATION OF THE STATE.
clerk, to the secretary's office, at New York. After the passage of this act, the governor appointed a delegate to act as his representative in the city of New York; and the new tribunal thus organized, and presided over by the governor's delegate, took the name of the prerogative court, to which an appeal lay from any proceeding relating to the probate of wills in the courts of common pleas, or from any of the acts of those empowered in the towns to take charge of the estates of intestates. Delegates subordinate to the governor's representative at New-York were appointed by the governor, for particular parts of the state or counties-usually judicial officers, with this duty superadded 1- and the freeholders of the towns appointed or elected under the act of 1692, to take charge of the estates of intestates, also took the name of delegates, and, in course of time, the term surrogate, which means (surrogatus) a substitute, deputy or delegate, gradually came into use, to designate all these subordi- nate delegates, and has continued in use ever since, to designate this class of public officers. In 1754, a judge of probate for the province was appointed, with gene- ral power to take proof of wills, and to administer estates. The tribunal over which he presided was termed the court of probate, while the prerogative court, which appears thereafter to have been under the direction of the governor's secretary, was continued, with certain powers, until the revolution.2 By the act of 1778, all the powers which had been vested in the governor of the colony, as judge of the prero- gative court, or in the court of probate, except in the appointment of surrogates, was vested alone, thereafter, in the court of probate, and Lewis Graham was ap- pointed judge of the court by the council of appointment ;3 and, in 1787, an act was passed, directing that surrogates should be appointed, thereafter, for every county.4 The judge of the court of probate had jurisdiction, in all cases of persons dying out of the state, or of persons dying within the state, who were not inhabit- ants, with a general appellate jurisdiction over the surrogate courts. In 1823, the court of probate was abolished, and its appellate jurisdiction transferred to the court of chancery-the surrogate still continuing-their duties being prescribed by various statutory enactments.5
In 1753, the right of appeal from the decisions of the supreme court or of the court of chancery, to the governor and council, which had previously been allowed, when the amount involved exceeded £100, and from the decisions of the governor and council to the king and privy council, when it exceeded £300, was allowed only to the governor and council when it exceeded £300; and to the king and privy council when it exceeded £500; a limitation which was bitterly complained of, as cutting off the right of appeal in the great majority of cases.6
In 1730, Governor Montgomery granted to the city of New York an amended charter. It directed that the court of sessions should hold four terms a year; and that the mayor's court should set every Tuesday. It further provided, that the mayor, recorder and aldermen, or any one of them, might try causes, with or without a jury, where the amount in controversy did not exceed forty shillings; and created
1 2 Thompson's Long Island, 442. Account of Tangier Smith.
2 Rec. of Coms. v. 70, 412, 418, 419; vi. 201. Rec. of Wills and Deeds, in N. Y. Surrogate's Office, vols. xi. xiv. xix. Rec. of Wills, in same office, vols. i. iv. vi.
9 Laws of N. Y. 1778, 12, Holt's ed. Rec. of Coms. vi. 201.
4 Laws of 1787, Jones & Vauck's edit. printed by Gaines, 72.
6 Laws of 1823, 62.
6 1 Smith, 378.
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HISTORY OF THE COURT AND OF THE
eight attorneys of the mayor's court, all of whom were named in the charter. No other attorneys but those named were authorized to practice in the court ; and upon the death or removal of any one of them, the successor was nominated by the court and approved by the governor. As thus constituted, the mayor's court and court of sessions continued until the revolution.
At the breaking out of the revolution, Chief Justice Horsmanden, Justices Thomas, Jones and George D. Ludlow, and Jauncey, the master of the rolls, adhered to the cause of the crown;1 while Justice Robert R. Livingston2 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 jurisdiction. Justices Jones and Ludlow retired to their farms on Long Island, but Horsmanden remained in the city of New York, and con- tinued to exercise his functions until his death, in 1778,8 when the sole administra- tion 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 controversies until civil gov- ernment should be restored." He also acted as judge in admiralty, and was ap- pointed superintendent of police for Long Island.4 In the same year, 1780, Rob- ertson, the last of the royal governors, issued a conciliatory proclamation, announcing that he had brought out a royal appointment for supplying the place of chief jus- tice; and that as soon as the public exigencies would permit, he would give an order for opening the courts of judicature, and convene the assembly.5 But his proc- lamation produced no effect, and he did nothing under it until the following year, when he held a court of chancery, in person, about once every month, from the 24th of January, 1781, until the 9th of June, 1783.6 But little can now 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 continued 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 Brunswick.8
X
1 Act of Banishment and Forfeiture, 22d of Oct. 1779. 1 Greenleaf's Laws of N. Y. 26. Act of Restoration, April 3, 1790. Laws of N. Y. 13th sess. Child's & Suaine's ed. Sabine's American Loyalists, 367, 885, 461.
2 Sedgwick's Life of Wm. Livingston. Journals of Provincial Congress of N. Y.
3 Lon. Doc. xlvi. 157. Rec. of Trinity Church for 1778.
4 Sabine's American Loyalists, 367, 385 and 431.
5 4 N. Y. Doc. History, 655.
6 Records for 1781-2-3.
7 Lon. Doc. xlvii. 52, 61. Tryon's Letter.
8 As Judge Ludlow was the last of the colonial judges, and as but little is known respecting him, it may not be out of place to state what has been collected chiefly from traditional but very reliable sources of information. He was originally apprenticed to an apothecary, but disliking that pursuit, he studied law. Though an assiduous student, his friends generally pre- dicted his failure, as he had a serious impediment in his speech ; and were very much surprised, at seeing him, when he appeared in his first cause, acquit himself with an ease and fluency altogether unexpected. In commencing practice, he gave his attention exclusively to commercial matters, and acquired so much proficiency, that he was constantly employed, either as an arbitrator in de- ciding mercantile disputes, or in the adjustment and settlement of complicated mercantile transac- tions. This drew him into commercial pursuits and speculations, and having, by honest industry and great assiduity, acquired, at a comparatively early age, an ample fortune, he retired to a hand-
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JUDICIAL ORGANIZATION OF THE STATE.
As soon as the news of the battle of Lexington reached New York, a republican convention was called; but after sitting three days, it adjourned, recommending that the inhabitants of each county should elect delegates to a general convention. In pursuance of this recommendation, the electors met in the towns and districts of the several counties ; but instead of electing delegates directly, they elected for each county a county committee, and this committee appointed delegates to the general convention, or, as it was called, the provincial congress. The provincial congress met on the 22d of May, 1775, and was mainly occupied with the general interests of the republican cause, while the county committees exercised all the functions of a civil government, within their respective jurisdictions. So far as the provincial congress gave any direction, the county committee conformed to it; but they generally acted on their own responsibility, exercising legislative, executive and judicial functions. As the county committees were large, they could not, at all times, be readily con- vened, and accordingly sub committees were appointed or elected in some cases for particular districts in the county ; and in the locality for which they were ap- pointed or elected, these sub-committees exercised all the powers vested in the commit- tee of the county, but subject to its supervision and control.1 The republican or- ganization, therefore, consisted of the district committees in each county, the general county committee, and a provincial congress for the colony at large, composed of de- legates from the several counties. The exercise of judicial powers was entrusted al- most exclusively to the district committees. They were usually composed of two or three persons ; their proceedings were entirely ex parte, and consisted mainly in arresting and imprisoning all who were supposed to be favorable to the interests of the royalists, or who spoke disrespectfully of the republican cause, its leaders or ad- herents. The slightest suspicion or any expression of unfriendliness was sufficient to justify an arrest, and imprisonment without bail, for an indefinite period ; and where, as was frequently the case, individuals were arrested without cause, they had not only to suffer imprisonment before they could obtain their discharge, but were com- pelled, upon receiving it, to pay all the costs and expenses that had been incurred by the unfounded proceedings against them.2 In fact, in the disturbed state of affairs, these tribunals were resorted to and made use of to gratify the private, malice or the vindictive feelings of individuals; and their unjust and arbitrary proceedings gave rise to loud and general complaint. This state of things lasted for about two years, when, in conformity with the resolution of the continental congress, delegates were elected to a convention to organize a government.3 This body, which was denomi- nated the "convention of the representatives of the state of New York," assembled at White Plains, on the 9th of July, 1776; and after shifting from place to place, to avoid the approach of the enemy, the delegates finally assembled at Kingston ; and on
some estate which he had purchased upon Long Island. Shortly after his retirement, he was ap- pointed judge of the court of common pleas, in which he gave so much satisfaction, that in 1769, he was made a puisne judge of the supreme court. Though he labored under the disadvantage of deafness, in addition to the impediment in his speech, he was, nevertheless, an excellent judge, a man of great integrity, of extensive information, and in private life a most agreeable and enter- taining companion. See a notice of him in Sabine's American Loyalists, 431.
1 Journals of the Provincial Convention, Congress and Committee of Safety.
2 Life of Peter Van Schaack, by his Son, 64. Letter of Van Schaack, Appendix E.
$ Journals of Provincial Congress of N. Y. 462, 468. B. F. Butler's Discourse before the His- torical Society. 1 His. Soc. Col. 2d series, 48.
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HISTORY OF THE COURT AND OF THE
the 20th of April, 1777, after the passage of a preamble declaring, among other things, that great inconveniences had attended the mode of governing by a congress and committees, the convention adopted the first constitution of the state. The constitution made no material change in the judicial organization which had pre- viously existed, except the creation of a court of last resort, for the trial of im- peachments and the correction of errors, composed of the lieutenant governor, the senators, the judges of the supreme court and the chancellor. It recognized the su- preme court, the court of chancery, and the county courts, as existing tribunals, so that whatever doubt may have existed as to the validity of these tribunals, was put at rest by this instrument.1 On the 8th of May following, the com- mittee of safety sat to organize a government, and elected Justice Livingston chan- cellor, being the first appointment of such an officer in our judicial annals. John Jay was elected chief justice of the supreme court. Robert Yates and John Sloss Hobart, puisne judges, and Egbert Benson attorney general. First and associate judges were also appointed for the several counties of the state ;2 and on the 17th of October following, the chancellor and the justices of the supreme court were formally commissioned, and entered upon the discharge of their duties, holding courts in the different parts of the state, not in possession of the British, as the public exigencies demanded. On the 23d of October, 1779, an act was passed creating a council or committee for the southern district of the state, composed of the governor, the representatives in the senate and assembly, the chancellor, the justices of the supreme court, the attorney general and the judges of the several counties. As a period would necessarily intervene between the time when the enemy might abandon or be dispossessed of the southern part of the state, and the assembling of the legis- lature in the city of New York, this council was invested with authority to govern in that part of the state, in the interim. Any seven, of whom the governor was required to be one, were empowered to act for sixty days, from the day that they should be convened in that part of the state, unless the legislature should meet before the expiration of that period." This committee or council were organized shortly after the evacuation of New York by the British, on the 25th of Novem- ber, 1783, and continued in power until the meeting of the legislature on the 12th of February, 1784, having passed five important ordinances, which were subsequently confirmed and ratified by the legislature.4 After the close of the war, the supreme court was held respectively at the cities of New York and Albany, the judges per- forming circuits through the counties as before, for the trial of causes at nisi prius. In 1792, the number of justices was increased by the addition of another puisne judge;" and in 1794, an additional puisne judge was added;6 and the court, as thus constituted, with a chief justice and four puisne judges, all of whom held their offices during good behavior, or until they attained the age of sixty years, continued un- changed until the adoption of the amended constitution of 1823." Chancellor Liv-
1 Court of N. Y. 1777, xxiv. XXV. XXXii.
2 Journal of Convention, 910, 916, 918.
3 Laws of N. Y. 8d session, 1779-96.
4 Laws of N. Y., 7th session, 1784, Holt's ed. 5.
5 21st Dec., 1792, Aaron Burr was appointed, but having declined, Morgan Lewis was appointed in his place.
6 29th Jan., 1794, Egbert Benson was appointed.
7 Graham on Jurisdiction, 144.
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JUDICIAL ORGANIZATION OF THE STATE.
ingston continued to serve until he was appointed minister to France, in 1801, when he was succeeded by John Lansing as chancellor, who was succeeded, in 1814, by Chancellor Kent.
The subsequent changes that were made in the judicial organization of the state, before the adoption of the amended constitution of 1846, will be noticed very briefly, as this sketch has extended much beyond the limits originally intended ; and some space must be devoted to complete, in pursuance of the original design, the ac- count of the court of common pleas. A very full statement, moreover, of these changes has already been given in Mr. Butler's Discourse before the Historical Society, on the constitutional history of the state ; and whatever is required in addition can be readily found in the several editions of the revised statutes, aud in Mr. Huff's New York Civil List, now in press, which contains an enumeration of the officers and courts since the revolution.
The constitution of 1823 materially altered the structure of the supreme court, both as respects the number of its judges aud the nature of their duties. It pro vided for the division of the state into judicial circuits, in each of which there was to be a circuit judge, who was to try causes at nisi prius, hold the court of oyer and terminer, and discharge all the duties pertaining to a justice of the su- preme court at chambers, and it created three justices of the supreme court, a chief justice and two associates, clothed with all the powers of the circuit judges, but who were to constitute a superior tribunal for reviewing the decisions of the circuit courts, the courts of oyer and terminer, and of all inferior jurisdictions. After the adoption of the constitution, the legislature divided the state into eight judicial cir- cuits, corresponding in number and extent with the senate districts, to each of which a circuit judge was appointed.1 The constitution also provided, that equity powers might be vested in the circuit judges ; in conformity with which, an act was passed in 1823,2 creating equity courts in each circuit, to be held by the circuit judge ; but shortly afterwards, distinct courts of equity were abolished, and general jurisdiction in equity concentrated in the chancellor, with equity powers in the circuit judges, as vice chancellors. In 1831,8 owing to the great increase of equity business in the city of New York, the offices of vice chancellor and circuit judge were disunited, and a separate vice chancellor created for the first circuit. In 1839, in consequence of the further increase of business, an assistant vice chancellor, for the first circuit, was created for the period of three years ; but in the following year, 1840,4 the office was made permanent, and the assistant vice chancellor authorized to hear any cause pending before the chancellor, or before any vice chancellor, and the court of chancery continued thereafter, composed of a chancellor, a vice chancellor of the first circuit, an assistant vice chancellor, with the circuit judges acting as vice chancellors in the other circuits, until the court was abolished by the constitution of 1846. All the judicial officers here referred to held their offices during good behavior, and until they should attain the age of sixty years. The remaining chancellors were, Nathan Sandford, Samuel Jones and Reuben H. Walworth.5
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