USA > New York > Ontario County > History of Ontario county, New York : with illustrations and family sketches of some of the prominent men and families > Part 14
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The Second Regiment of Cavalry was organized during the summer of 1861, and mustered into service in August and October of that year.
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THE COUNTY IN THE REBELLION.
The command was originally known as the "Harris Light Cavalry," but the War Department designated it the " Seventh Regiment of Cav- alry " in the service of the United States. However, when the regiment was turned over to the State it was numbered the " Second Regiment of N. Y. Vol. Cavalry."
The original command was composed of recruits and squadrons from New York, Connecticut, New Jersey, Pennsylvania and Indiana; and as one of the actively employed regiments in the Army of the Potomac, its services was necessarily severe and its losses heavy. At the expi- ration of its term of service many of the men were mustered out, and the remainder consolidated into a battalion of four companies. In Sep- tember and October, 1864, eight new companies joined the command and again raised it to a regiment ; and it was among these recruits that we find the names of Ontario county men, representing principally the towns of Farmington and Hopewell and members of Company K.
The Fourth Regiment of Heavy Artillery (Veteran) was organized during the summer and fall of 1861, and mustered in by companies in the following winter. It was recruited under authority given to Colonel T. D. Doubleday, and was originally known as " Doubleday's Heavy Artil- lery," but afterward designated the "First Heavy Artillery," and still later as the "Fourth Heavy Artillery." In this commnd the greater part of the Ontario county contribution are said to have been in Company H; in fact that has been called the Ontario Company. However, Canandaigua and Geneva both furnished recruits to Company M, and the village last named to Second Company D.
The regiment went to Washington in February, 1862, and served in that vicinity for a time, and later with the Twenty-second Corps, serv- ing both as artillery and infantry. Its battles were fought nearly with- out exception in Virginia, but during the period of its service, the regiment lost a total, from all causes, of four hundred and sixty-four men of whom ninety-seven died as prisoners in the hands of the enemy. On September 26, 1865, at Washington, the Fourth was mustered out of service.
The Ninth Regiment of Heavy Artillery, a command which was otherwise known as the " Second Auburn Regiment," and the "Cay- uga and Wayne County Regiment," was organized during the late 20
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HISTORY OF ONTARIO COUNTY.
summer of 1862, being mustered into service on the 8th and 9th of September, and designated the One Hundred and Thirty-eighth Regi- ment of Infantry. It was converted into an artillery regiment in De- cember, 1862, and received the designation as given above. A small part of Company F of the Ninth was recruited in Geneva, but the con- tingent of men was so very small that little mention of the regiment need be given here. The Ninth was mustered out of service July 6, 1865.
The Thirteenth Regiment of Heavy Artillery was organized during the spring and early summer of 1863, and was mustered into service by companies as rapidly as formed. In Company B were a few men from the town of Seneca.
The Sixteenth Regiment of Heavy Artillery was organized in pursuance of authority granted to Colonel Joseph J. Morrison, and the command itself was raised during the summer and fall of 1863. In the regiment were a few Ontario county men, who were enlisted in Companies D and H, and who represented the towns of Canandaigua and Bristol. The company first mentioned was mustered into service December 1, 1863, and the latter February 8, 1864. The regiment left the State by de- tachments, and its service in the field was also of a detached character previous to July, 1865, when it was united. It was mustered out of service at Washington, D. C., August 21, 1865.
CHAPTER XIII.
THE BENCH AND BAR OF ONTARIO COUNTY.
To properly understand and fully appreciate the history of the judi- ciary of any commonwealth, and the worth and attainments of the magistrates and practitioners at the bar, some knowledge of the origin and development of the machinery and spirit of this branch of the gov- ernment is necessary.
The sentiment is commonly expressed that the judicial system of the State of New York is largely copied from the common law of England.
James C. Smith
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THE BENCH AND BAR.
This is true in many respects, and resemblances may be traced therein, but a close study of the history of the laws and judicial practice of this State will reveal the fact that they largely are an original growth, and differ materially from the old systems of Europe. This difference is strikingly manifested in the simple matter of entitling a criminal process. In this State it is the people versus the criminal ; in England it is rex versus the criminal. In the one the requirement is an independent judiciary responsible to the people only ; in the other it is a court sub- servient to a king.
This great idea of the sovereignty of the people, even over our laws, has had a slow, conservative, yet progressive and systematic unfolding of the germ into organism. In the early history of the State the gov- ernor was in effect the maker and interpreter, as well as enforcer of the laws. He was the chief judge of the court of final resort, while his councillors were generally his obedient followers. The execution of English and colonial statutes rested with him, as did also the exercise of royal authority in the province; and it was not until the adoption of the first constitution in 1777, that he ceased to contend for these pre- rogatives, and to act as though the only functions of the court and councillors were to do his bidding as servants, while the Legislature should adopt only such laws as the executive should suggest and approve. By the first constitution the governor was entirely stripped of the judicial authority which he possessed under the colonial rule, and this power was vested in the lieutenant-governor and the Senate, the chancellor and justices of the Supreme Court; the former to be elected by the people, and the latter to be appointed by the council. Under this constitution there was the first radical separation of the judicial and legislative powers, and the advancement of the judiciary to the position of a co-ordinate department of the government, and subject only to the limitation consequent upon the appointment of its members by the council. This restriction, however, was soon felt to be incom- patible with the independence of the judiciary, though it was not until the adoption of the constitution of 1846 that this connection between the purely political and judicial parts of State government was abol- ished, and with it disappeared the last remaining relic of the colonial period. From that time the judiciary became more directly represent-
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HISTORY OF ONTARIO COUNTY.
ative of the people. The development of the idea of the responsibility of the courts to the people, from the time when all its members were at the beck of an irresponsible master, to the time when all judges (even of the court of last resort) are voted for directly by the people, has been indeed remarkable.
Let us now look briefly at the present arrangement and powers of the courts of the State, and then at the elements from which they have grown. The whole scheme is involved in the idea of first a trial before a magistrate and jury-arbiters, respectively, of law and fact-and then a review by a higher tribunal of the facts and law, and ultimately of the law by a court of last resort. To accomplish the purpose of this scheme there has been devised and established, first, the present Court of Appeals, the ultimate tribunal of the State, perfected in its present form by the convention of 1867 and '68, and ratified by a vote of the people in 1869; and taking the place of the old court for the trial of impeachments and correction of errors. The Court of Appeals as first organized under the constitution of 1846, was composed of eight judges, four of whom were elected by the people and the remainder chosen from the justices of the Supreme Court having the shortest time to serve. As reorganized in 1869, and now existing, the court consists of a chief judge and six associate judges, who hold office for the term of fourteen years.
The court is continually in session at the capital in Albany, except as it takes a recess on its own motion. It has full power to correct or reverse the decisions of all inferior courts when brought before it for review. Five judges constitute a quorum, and four must concur to render judgment. If four do not agree the case must be reargued ; but no more than two rehearings can be had, and if then four judges do not concur, the judgment of the court below stands affirmed. The Legislature has provided how and when proceedings and decisions of inferior tribunals may be reviewed, and may in its discretion alter or amend the same. Upon the reorganization of the court in 1869 its work was far in arrears, and the law commonly known as the "judiciary act " " provided for a commission of appeals to aid the Court of Appeals; and still more recently there has been organized a second division to assist in the disposition of the business of the general court caused by an overcrowded calendar.
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THE BENCH AND BAR.
Second to the Court of Appeals in rank and jurisdiction stands the Supreme Court, which is made up of many and widely different elements. It was originally created by an act of the colonial Legislature, May 6, 1691, and finally by order of the governor and council May 15, 1699, and was empowered to try all issues to the same extent as the English courts of King's Bench, Common Pleas and Exchequer. It had juris- diction in actions involving one hundred dollars and over, and to revise and correct the decisions of inferior courts. An appeal lay from it to the governor and council. The judges, of whom at first there were five, made an annual circuit of the counties, under a commission issued by the governor, and giving them nisi prius, oyer and terminer, and jail delivery powers. Under the first constitution the court was re- organized, the judges being then named by the council of appointment, and all proceedings were directed to be entitled in the name of the people.
By the constitution of 1821 many and important changes were made in the character and methods of the court. The judges were reduced to three, and appointed by the governor with the consent of the Senate, to hold office during good behavior, or until sixty years of age. They were removable by the Legislature on the vote of two-thirds of the Assembly and a majority of the Senate Four times a year the full court sat in review of their decisions upon questions of law. By the constitution of 1846 the Supreme Court was abolished, and a new court of the same name and having general jurisdiction in law and equity was established in its place. This court was divided into General Term, Cir- cuits, Special Terms and Oyer and Terminer. Its members were com- posed of thirty-three justices to be elected by the people, and to reside five in the first and four in each of the seven other judicial districts, into which the State was divided. By the judiciary act of 1847, Gen- eral Terms were to be held at least once in each year in counties hav- ing more than 40,000 inhabitants, and in other counties once in two years ; and at least two special terms and two circuits were to be held yearly in each county except Hamilton. By this act the court was authorized to name the times and places of holding its terms, and those of the Oyer and Terminer, the latter being a part of the Circuit Court, and held by the justice, the county judge and two justices of sessions.
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HISTORY OF ONTARIO COUNTY.
Since 1882 the Oyer and Terminer consists of a single justice of the Supreme Court.
The Court of Chancery of the State of New York was an heirloom of the colonial period, and had its origin in the Court of Assizes, the latter being invested with equity powers under the duke's laws. The court was established in 1683, and the governor (or such person as he should appoint), assisted by the council, was designated as its chan- cellor. In 1698 the court went out of existence by limitation ; was revived by ordinance in 1701, suspended in 1703, and re-established the next year. At first the Court of Chancery was unpopular in the province, the assembly and the colonists opposing it with the argument that the crown had no authority to establish an equity court in the colony.
Under the constitution of 1777 the court was reorganized, but its chancellor was prohibited from holding any other office except delegate to Congress upon special occasions. Upon the reorganization of the court in 1778, masters and examiners in chancery were provided to be appointed by the council of appointment ; while registers and clerks were appointed by the chancellor, and the latter licensed all solicitors and counselors of the court. Under the constitution of 1821 the chancellor was appointed by the governor, and held office during good behavior or until sixty years of age. Appeals lay from the Chancery Court to the Court for the Correction of Errors.
Under the second constitution equity powers were vested in the cir- cuit judges, and their decisions were reviewable on appeal to the chan- cellor. This equity character, however, was soon taken from the cir- cuit judges, and the duties devolved upon the chancellor, while the 1 judges referred to acted as vice-chancellors in their respective circuits. The constitution of 1846 abolished the Court of Chancery, and its powers and duties were vested in the Supreme Court.
By an act of the Legislature passed in 1848 and entitled the " Code of Procedure," all distinctions between actions at law and suits in equity were abolished, so far as the manner of commencing and con- ducting the same was concerned, and one uniform method of practice in all actions was provided. Under this act appeals lay to the General Term of the Supreme Court from judgments rendered in the justice's,
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THE BENCH AND BAR.
mayor's or recorder's and county courts, and from all orders and deci- sions of a justice at special term or circuit, and from judgments rendered at any trial of the Supreme Court.
The judiciary article of the constitution of 1849 was amended in 1869, the Legislature being authorized to provide (not more often than once in five years) for the organization of General Terms, consisting of a presiding justice and not more than three associates, but by chapter 408 of the laws of 1870, the then organization of the General Terms was abrogated, and the State was divided into four departments, and provision made for holding General Terms in each. By the same act the governor was directed to designate from the justices of the Supreme Court, a presiding justice and two associates to constitute a General Term in each department. Under the authority of the constitutional amendment adopted in 1882, the Legislature in 1883 divided the State into five judicial departments and provided for the election of twelve additional justices to hold office from the first Monday in June, 1884.
In June, 1877, the Legislature enacted the code of civil procedure to take the place of the code of 1848. By this many minor changes in the practice of the court were made, among them a provision that every two years the justices of the General Terms and the chief judges of the Superior City courts should meet and revise and establish general rules of practice for all the courts of record in the State, except the Court of Appeals.
These are, in brief, the changes through which the Supreme Court has passed in its growth from the prerogative of an irresponsible gover- nor to one of the most independent and enlightened instrumentalities for the protection and attainment of the rights of citizens of which any nation, ancient or modern, can boast. So well is this fact understood by the people that by far the greater amount of business which might be done in inferior courts at less expense, is actually taken to this court for settlement.
Next in inferiority to the Supreme Court is the County Court, held in and for each county in the State at such times and places as its judges may direct. This court had its origin in the English Court of Sessions, and like it had at first only criminal jurisdiction. By an act passed in 1683, a Court of Sessions, having power to try both civil and
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HISTORY OF ONTARIO COUNTY.
criminal causes by jury, was directed to be held by three justices of the peace of each of the counties of the province twice a year, with an ad- ditional term in Albany and two in New York. By the act of 1691, and the decree of 1669, all civil jurisdiction was taken from this court and conferred on the Common Pleas. By the sweeping changes made by the constitution of 1846, provision was made for a County Court in each county in the State, except New York, to be held by an officer to be designated " the county judge," and to have such jurisdiction as the Legislature might prescribe.
Under the authority of this constitution County Courts have, from time to time, been given jurisdiction in various classes of actions, and have also been invested with certain equity powers in the foreclosure of mort- gages and the sale of infants' real estate, and also to partition lands and to admeasure dower, and care for the persons and estates of luna- tics and habitual drunkards. The judiciary act of 1869 continued the existing jurisdiction in all actions in which the defendant resided within the county and the damages claimed did not exceed one thousand dollars.
Like the Supreme Court the County Court now has its civil and criminal sides : In criminal matters the county judge is assisted by two justices of sessions, elected by the people from among the justices of the peace in the county. It is in the criminal branch of this court, known as the " Sessions" that the minor criminal offenses are now disposed of. All indictments, except for murder or some very serious felony, may be sent to it for trial from the Over and Terminer. By the codes of 1848 and 1877 the methods and procedure and practice are made to conform as nearly as possible to the practice of the Supreme Court. This was done with the evident design of attracting litigation into this court, and thus relieving the Supreme Court. In this purpose, however, there has been an evident failure, as litigants much prefer the broader powers of the Supreme Court. By the judiciary act the term of office of county judges was extended from four to six years. Under the code the judges can perform some of the duties of a justice of the Supreme Court at chambers. The County Court has appellate jurisdiction over actions arising in Justice's Courts and Courts of Special Sessions. Appeals lie from the County Court direct to the General Term.
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THE BENCH AND BAR.
Surrogate's Courts, one of which exists in each county of the State, are now courts of record, having a seal, and their especial jurisdiction is the settlement and care of the estates, both of infants and also of the dead. The derivation of the powers and practice of these courts is from the Ecclesiastical Court of England, also through a part of the Colonial Council which existed during the rule of the Dutch, and exercised its authority in accordance with the Dutch Roman law, the custom of Amsterdam and the law of Aasdom, the Court of Burgomasters and Schepens, the Court of Orphan Masters, the Mayor's Court, the Prerog- ative Court and the Court of Probates.
The settlement of estates and the guardianship of orphans, which was at first vested in the director-general and council of New Netherland, was transferred to the Burgomasters in 1653, and soon after to the Or- phans' Masters. Under the colony the Prerogative Court controlled all matters in relation to the probate of wills and settlement of estates. This power continued until 1692, when, by act of legislation, all probates and granting of letters of administration were to be under the hand of the governor or his delegates, and two freeholders were appointed in each town to take charge of the estates of persons dying intestate. Under the duke's laws this duty had been performed by the constables, overseers and justices of each town. In 1778 the governor was divested of all this power, except the appointment of surrogate, and it was con- ferred upon the judges of the Court of Probates.
Under the first constitution surrogates were appointed by the Coun- cil of Appointment, but under the second constitution by the governor with the approval of the Senate. The constitution of 1846 abolished the office of surrogate in all counties having less than forty thousand population, and conferred its powers and duties upon the county judge. By the Code of Civil Procedure surrogates were invested with all the necessary powers to carry out the equitable and incidental require- ments of their office. In its present form, with weekly sessions, this court affords a cheap and expeditious medium for the care and settle- ment of estates and the guardianship of infants.
The only remaining courts which are common to the whole State are the Special Sessions, held by a justice of the peace for the trial of minor criminal offences, and also Justice's Courts with a limited civil jurisdic-
21
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HISTORY OF ONTARIO COUNTY.
tion. Previous to the constitution of 1821 (modified in 1826) justices of the peace were appointed, but since that time they have been elected. The office and its duties are descended from the English office of the same name, but are much less important, and under the laws of this State it is purely the creature of the statute.
This brief survey of the courts of New York, which omits only those that are local in character, gives the reader some idea of the machinery provided for the use of the members of the bench and bar at the time of the creation of Ontario county in 1789.
The organization of the courts in Ontario county was accomplished without ceremony and with but little formality. The act creating the county was passed January 28, 1789, and among other things provision was therein made for a " Court of General Sessions of the Peace, and a Court of Common Pleas," to be held at " such suitable and convenient place within the county as the judges of the Court of Common Pleas and the justices of the Court of Sessions may direct." It was also pro- vided that there should be held two terms every year, "to commence on the first Tuesday in June, and end on the Saturday following; and on the first Tuesday in November, and to end on Saturday of the same week."
A later section of the erecting act provided that "it shall not be the duty of the justices of the Supreme Court to hold Circuit Court once in every year in said county of Ontario, unless in their judgment they shall deem it proper and necessary." However, by an act passed April 9, 1792, this provision was repealed.
The first judge of Common Pleas of Ontario county was Oliver Phelps, who was appointed to that office May 5, 1789. The other offi- cers of the court, with dates of their appointment, were as follows : Sheriff, Judah Colt, April 7, 1790; clerk, Nathaniel Gorham, jr., May 5, 1789. The first surrogate of the county was John Cooper, appointed May 6, 1789. However, it was not until the first Tuesday in June, 1792, that a term of the Common Pleas and General Sessions of the Peace was in fact held within the county, and at that time the court- house had not been erected, and the session was held in the unfinished chamber of Dr. Moses Atwater's house. It is said also that Vincent Matthews was the only lawyer present at the opening of the court.
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THE BENCH AND BAR.
The first court-house of the county was erected in pursuance of an act of the Legislature, passed April 9, 1792, by which the supervisors were authorized to raise by tax the sum of six hundred pounds, with an additional allowance for collection. The building, a plain frame struct- ure, stood at the northeast corner of the public square, and was erected during the year 1794. Later on, after the second court house was built, the old pioneer building was removed to the west side of Main street, on the park lot, and still later to Court street, where it still stands.
The second Ontario county court-house was a more pretentious struct- ure than its predecessor, and was erected at an expense of about $6,000, under the authority of an act of the Legislature passed in April, 1824. This building is now used as a town house and, therefore, requires no extended mention in this chapter. On the 4th of July, 1824, the cor- ner stone was laid with due ceremony, and on that occasion nearly all the legal profession of the county and region were present, many of them participating in the proceedings.
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