Our County and Its People: A Descriptive Work on Erie County, New York (Volume 1), Part 75

Author: Truman C. White
Publication date: 1898
Publisher:
Number of Pages: 1017

USA > New York > Erie County > Our County and Its People: A Descriptive Work on Erie County, New York (Volume 1) > Part 75

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The issue thus raised was a natural one. These men were asking only for the Dutch system, which had been perfectly satisfactory to them at home. When, in 1643, the Indian troubles and complications with the English had reached ominous proportions, Kieft again called

' The fourteen names found in the records include, doubtless, appointees after the first Twelve,

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the freemen together and requested them " to elect five or six persons from among themselves" to consider propositions to be made by the Director and Council; a representative body for the enactment of laws was thus instituted. The people preferred to leave the selection of the representatives to the director, asking only the right to reject an un- desirable nomination. The eight men were then elected. The cer- tificate of the election is on record signed by twenty-eight freemen. The eight men were as follows:

Cornelis Melyn, president; Jochim Pietersen Kuyter, Jan Jansen Dam,1 Barent Dircksen, Abram Pietersen (the miller), Isaac Allerton, Thomas Hall, Gerrit Wol- phertson (van Couwenhoven), Jan Evertsen Bout,' 1643, Jacob Stoffelsen, John Un- derhill, Francis Douty, George Baxter, Richard Smith, Gysbert Opdyck, Jan Evert- sen Bout, Oloff Stevensen van Cortlandt, 1645.

This body of men assembled September 15 and passed upon im- portant questions of war and performed other legislative acts. Com- plaints from the colonists continued and were finally referred to the home Chamber of Accounts, which reported in March, 1645, sustaining the complainants, and approving the organization of villages after the manner of the English.

The Patroon's charter of 1629, extended in 1640, authorized the colony to appoint deputies to inform the Director and Council of their condition when necessary. It was now suggested that these deputies should, at the summons of the Director-General, hold an assembly every six months for the general welfare and to deliberate on im- portant affairs. Kieft was recalled in December, 1644. The Com- missioners of the Assembly of the XIX of the General Privileged West India Company acted on the report alluded to in their instructions to the Director and Council of July 7, 1645. The council was to consist of "the Director and president, his vice-president and the Fiscal." In cases in which the advocate.fiscal appeared as attorney general, civil or criminal, the military commandant was to sit in his stead. If the charge was criminal, three persons were to be associated from the com- monalty of the district where the crime was committed. The Supreme Council was the sole body "by whom all occurring affairs relating to police, justice, militia, the dignity and just rights of the Company " were to be decided; it was an executive, administrative, and also a judicial body.

When Petrus Stuyvesant arrived (May 27, 1647,) he set about restor-

1 Expelled September 15.

' In place of Dam , expelled .

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ing the disordered government with vigor. Besides inaugurating new and stringent regulations in many directions, he ordered an election of eighteen men from whom he selected Nine as "Interlocutors and Trus- tees of the Commonalty," or "Tribunes" of the people. These Nine Men were to hold Courts of Arbitration weekly and to give advice to the Director and Council. They were appointed September 25, 1647, and were as follows:

1647, Augustine Heerman, Arnoldus van Hardenburgh, Govert Loockermans, mer- chants; Jan Jansen Dam, Hendrick Hindricksen Kip, Jacob Wolphertsen Van Couw- enhoven, burghers; Michael Jansen, Jan Evertsen Bout, Thomas Hall, farmers.

1649, Adriaen van der Donch, president; Augustine Heerman, Arnoldus van Hardenburgh, Govert Loockermans, Elbert Elbertsen (Stootof). Jacob Wolphertsen van Couwenhoven.

1650, Oloff Stevensen van Cortland, president; Augustine Heerman, Jacob van Couwenhoven, Elbert Elbertsen, Hendrick Hendricksen Kip, Michael Jansen, Thomas Hall, Govert Loockermans, J. Evertsen Bout.

1652, David Provost, William Beeckman, Jacobus van Curler, Allard Anthony, Isaac de Forest, Arent van Hattem, Jochim Pietersen Kuyter, Paulus Leenderman van der Grist, Peter Cornelissen, miller.

Three of the Nine in each year were taken from merchants, three from the burghers, and three from the farmers, thus continuing the old Netherland system.

The colony now became the scene of a prolonged contest and numer- ous lengthy petitions went from the colonists to the States-General for a burgher government and other changes. The burgher government was finally granted in 1653. Burgomasters had been in power in Hol- land since the fourteenth century, and it was contemplated by the States General that they should be elected by the burghers in New Amsterdam. But the Director and Council assumed the right to ap- point them and exercised it until 1658, when a double number was nominated, from whom the Director and Council selected the members for the ensuing year.

Local officers or inferior courts, with limited jurisdiction were author- ized in various villages from time to time. The Patroons of the great manors were invested with power to administer civil and criminal jus- tice in person or by deputy; to appoint local officers and magistrates; to erect courts and take cognizance of all crimes committed within their separate domains; to keep a gallows,' if required, for the execu- tion of criminals. One of the lesser degrees of punishment was " banish.

' There was a curious restriction connected with the gallows, to the effect that if it fell pend- ing an execution, a new one could not be built, except for hanging another criminal.

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ment from the colonie;" another was corporal punishment. In civil cases of all kinds between the Patroon and his tenants, these courts had jurisdiction, and from their judgments in matters affecting life and limb and in suits where more than £20 was involved, appeal could be taken to the Director General and Council.

The government itself was invested in a General Court which exer- cised executive, legislative, or municipal and judicial functions, and which was composed of two commissaries and two councilors, who were a colonial secretary, a sheriff (schout-fiscal); and a court messen- ger or constable. Each of these received a small salary. The magis- trates of the colony held office one year, the court appointing their suc- cessors or continuing those already in office.

The most important of these officials was the schout-fiscal, who was bound by instructions received from the Patroon. No man in the col- ony was subject to loss of life or property unless under sentence of a court composed of five persons, and all persons accused were entitled to a speedy trial. The public prosecutor was especially warned not to receive presents or bribes, nor to be interested in trade or commerce, directly or indirectly. He was paid a fixed salary, with a dwelling free, and given all fines up to ten guilders and a third of all forfeitures over that sum.

Governor Dongan, in his report to the Committee of Trade, dated February 22, 1687, gave the following information regarding the early courts of New York and Albany.

There is likewise in New York and Albany a Court of Mayor and Aldermen held once in every fortnight, from whence their can bee noe appeal unless the cause of action bee above the value of Twenty Pounds, who have likewise priviledges to make bylaws for ye regulation of their own affairs as they think fitt soe as the same be approved of by ye Gov'r and Council.

The mayor, recorder and aldermen of the city of Albany, or any three of them, were, in 1686, ex-officio members of the old Court of Common Pleas, acting when there was no judge present. The colonial Court of Common Pleas held regular terms until 1776, when it was dissolved under the influence of the animating spirit of independence.

With the accession of the English a new order of judicial administra- tion came into existence. There was the Court of Assizes, which was established under the Duke's Laws at Hempstead in 1665. This court was composed of the governor, members of the council, high sheriff, and such justices of the peace as might attend. It sat in New York and only once a year, but special terms could be called. Its jurisdic-

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tion extended over all criminal matters, and in civil cases where the value of £20 or more was involved. This court was abolished in 1683.

In 1683 an act was passed "to settle Courts of Justice," which ordered the holding of a Court of Oyer and Terminer in the respective counties of the province, composed of one judge, assisted by four justices of the peace in each county. In New York city and the city of Albany, the mayor, recorder and four aldermen were associated with the judge. This court had jurisdiction over all capital causes, and appellate juris- diction where £5 or more was involved. The authority for holding the court was derived from the governor; the court was abolished in 1691. Courts of Sessions and Justices' Courts were also continued and a Court of Chancery established. The Court of Sessions was ordered to be held in New York four times, in Albany three times and in the other ten counties then in existence, twice in each year. All cases civil and criminal were determined by it, with a jury.

The Court of Chancery was founded, with the governor or his ap- pointee as chancellor, assisted by the council. This court expired by limitation in 1698, but was revived by ordinance August 28, 1701; it was suspended June 13, 1703, and finally re-established November 7, 1704. It ceased its existence in July, 1847, under the new constitution. It was an equity court and by the second constitution equity powers were vested in the circuit judge, subject to the appellate jurisdiction of the chancellor.

The Court of Admiralty, which was a civil law court, extended through most of the colonial regime and for a short time under the State government. Under the Dutch, the Governor and Council acted as judges of this court. Under the Duke of York commissions were issued by the governor to determine cases, until 1678, when authority was given to appoint judges and other officers of the courts which was at first established by warrant, but later came from the Lords of the Admiralty in England. In November, 1775, Congress recommended the colonies to establish courts to adjudicate matters relative to cap- tures on the sea in the war. Accordingly the High Court of Admiralty of the State of New York was authorized. Pursuant to an act of Con- gress passed October 13, 1777, appeals could be had from the court to a committee of congressmen. Under the Articles of Confederation an act was passed establishing a court to hear such appeals. The United States constitution vested admiralty jurisdiction exclusively in the Fed- eral courts, and consequently the State court ceased in 1789, and its powers were vested in the U. S. District Court.

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The third judicial system was organized in 1691 and continued through the colonial period. In that year the Court for the Correction of Errors and Appeals was founded, consisting of the Governor and Council. Appeals lay to this court from any judgment exceeding in value £100, which amount was increased in 1753 to £300.

It is a fact that reflects credit upon the early colonists of New York that they invariably evinced respect for the law and upheld measures for the protection and honor of their judiciary. For example, in the year that Governor De Lancey died (1760) George III ascended the English throne. De Lancey was a lawyer of ability and labored assid- uously in the development of the civil polity of the province. Upon the accession of George III a new conflict arose. All commissions ter- minated upon the death of a sovereign, and the differences which had theretofore existed as to scope of judicial powers became a prominent issue. The Assembly proposed to pass an act establishing Courts of Judicature by law, instead of by prerogative, as before. Judges were to be removed by the governor on appeal from the Assembly, or by advice of at least seven members of the council. Thereupon Cadwall- ader Colden, the obsequious lieutenant-governor, suggested that the king also be empowered to remove, which would thus preserve the pre- rogative of the crown. An active discussion ensued among the lawyers and others. An act was now passed that judges should hold office during good behavior, instead of during the pleasure of the governor, The Lords of Trade, on November 21, 1761, held that this action was "subversive of that policy by which those colonies can be kept in a just dependence upon the government of the mother country," and that "it is difficult to conceive a state of government more dangerous to the rights and liberties of the subject, aggravated as the evil would be by making the judges' commissions during good behavior, without ren- dering them at the same time independent of the factious will and caprice of an Assembly," by providing permanently for their support. In accordance with this position instructions were issued to the gov- ernors on the 2d of December, " that you do not upon any pretense whatever, upon pain of being removed from your government, give your assent to any act by which the tenure of the commissions to be granted to the chief judge or other justices of the several courts of ju- dicature shall be regulated or ascertained in any manner whatever, and you are to take particular care in all commissions to be by you granted that they be during pleasure only, agreeable to ancient practice and

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usage." That was the British view of the situation. The records of the General Assembly on nearly every page, express the high regard of the colonists for the law, and the lawyers of the province were a unit in their construction of the law. Bench and bar stood united in defense of the liberties of the people in this respect.

Under the system of 1691 were established also the Court of Common Pleas and the Supreme Court. The criminal side of the latter was what constituted the Court of Oyer and Terminer. The Supreme Court expired by limitation in 1698, was continued by proclamation January 19, 1699, and finally again by ordinance May 15, 1699. Its powers and jurisdiction were broad, but it was without equity jurisdiction. Any case involving £20 or more could be commenced in, or returned to it, and it could correct errors and revise the judgments of the lower courts. Appeals lay from it to the Governor and Council in cases involving £100 or more, which amount was, as before stated, increased to £300 in 1753. The court held four terms annually, sitting in New York only. Persons who had served seven years under an attorney or had taken a collegiate course and served three years' apprenticeship were granted license to practice in this court by the governor.

The first constitution recognized the Supreme Court as it then ex- isted. It was reorganized May 3, 1777, but with only slight changes. In 1785 two terms were directed to be held in Albany and two in New York each year, and the clerk's office was directed to be kept in New York and that of his deputy in Albany.

By an act passed April 19, 1786, one or more of the justices of the Supreme Court was 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 issues triable in the respective counties. The proceedings were to be returned to the Supreme Court, where they were to be re- corded and judgment given according to law. Upon the formation of Ontario county in 1789, which included the territory of Erie county, this court extended its jurisdiction over that territory. On March 10, 1797, the judges were authorized to appoint an additional clerk with an office in Albany. In 1807 another clerk's office was established in Utica. The first rules of the court were adopted at the April term in 1796. In the same year a law was passed directing this court to designate at its April term one of their number to hold a Circuit Court in the West- ern, one in the Eastern and one in the Southern District. An act of February, 1788, provided for holding a Court of Oyer and Terminer by

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the justices at the same time with the Circuit. 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 justices.

The constitution of 1821 made several important changes in this court. For example, it was to sit four times a year in review of its own decisions and to determine questions of law; each justice, however, could hold Circuit Courts, as well as the circuit court judges, and any justice of the Supreme Court could preside at the Oyer and Terminer. The court had power to amend its practice in cases not covered by statute, and was directed to revise the rules every seven years, to sim- plify proceedings, expedite decisions, diminish costs and remedy abuses. The judges were appointed by the governor with consent of the Senate, and held office during good behavior or until sixty years of age. Their number was reduced to three, and from 1823 they were allowed $2,000 each annually ; this sum was increased to $2,500 in 1835 and in 1859 to $3,000. Two of the terms were held at the Capitol in Albany. The act of 1691 gave this court cognizance of matters of exchequer, thus re- moving the necessity for the Court of Exchequer, which was estab- lished by Governor Dongan in 1685.

The constitution of 1846 abolished the Supreme Court as it then ex- isted and established a new one with general jurisdiction in law and equity. The State was divided into eight judicial districts, in each of which four justices were elected, except in the first (New York city), where five were elected. The term of office was made eight years, but the amended judiciary article made the term as at present, four- teen years. This court possesses the power and exercises the jurisdic- tion of the preceding Supreme Court under the constitution of 1846 and the judiciary act of May 12, 1847. On April 27, 1870, the Legis- lature abolished the general terms as then existing and divided the State into four departments, providing for general terms to be held in each. The governor was to designate a presiding justice and two as. sociate justices for each department to compose the general term. At least two terms of Circuit Court and Court of Oyer and Terminer were to be held annually in each county and as many special terms as the justices in each department deemed necessary. In the division of the State into judicial districts, Erie county, and Allegany, Cattaraugus, Chautauqua, Genesee, Niagara, Orleans and Wyoming counties consti- tuted the Eighth District, which now constitutes a part of the Fourth Department.

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By the act of June 2, 1876, entitled the Code of Remedial Justice, and amended June 5, 1877, with the title of The Code of Civil Proced- ure, the General Term justices of the Supreme Court and the chief judges of the Superior City Courts were required to meet in convention every two years to revise and establish general rules of practice for all courts of record in the State, excepting the Court for the Trial of Im- peachments and the Court of Appeals.

The Legislature of 1882 directed the submission to the people of the question of amending the constitution so as to provide for the organ- ization of the Supreme Court, with not more than five General Terms, and for the election of two additional justices thereof in the First, Fifth, Seventh and Eighth Judicial Districts, and one additional justice in the Second, Third, Fourth and Sixth Districts, the justices so elected to be invested with their offices on the first Monday in June, 1884. The amendments were so adopted, and by the laws of 1883 (chapter 329) provision was made for the election of the twelve additional justices authorized.

The constitution of 1894 continued the Supreme Court as it then ex- isted, with general jurisdiction in law and equity, and also vested in the court the jurisdiction previously exercised by the Superior Court of Buffalo and New York city, the Court of Common Pleas of the city and county of New York, and the City Court of Brooklyn. These courts were abolished on January 1, 1896, the judges thereof becoming justices of the Supreme Court. There is an Appellate Division of the Supreme Court in each of the four Judicial Departments, consisting of seven jus- tices in the First Department and five in each of the other departments. No more than five justices sit in any case and the governor designates the presiding justice and other justices who shall constitute the Ap- pellate Division in each department.

Justices of the Supreme Court (from Erie County) .- Seth E. Sill, elected June 7, 1847, and served from the first Monday in July, 1847, until his death, Septem- ber 15, 1851; Benjamin F. Green, elected November 8, 1853, and served from January 1, 1854, until his death, August 7, 1860; and James G. Hoyt, appointed September 28, 1860, vice Benjamin F. Green, deceased, elected for full term Novem- ber 5, 1861, served from the date of his appointment until his death, October 29, 1863; Charles Daniels, elected November 3, 1863, vice James G. Hoyt, appointed on the 9th of the same month pending the action of the State canvassers, re-elected in 1869 for eight years, and in 1877 for fourteen years, serving from November 8, 1863, to December 31, 1891; Albert Haight, elected November 7, 1876, term expired Decem- ber 31, 1890-designated by the governor as judge of the Second Division of the Court of Appeals, January 21, 1889; Loran L. Lewis, elected November 7, 1882,

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term expired December 31, 1896; Manly C. Green, elected November, 1891, term expires December 31, 1905; Edward W. Hatch, elected November, 1895, term ex- pires December 31, 1909: Frank C. Laughlin, elected November, 1895, term expires December 31, 1909; Robert C. Titus, term expires December 31, 1899; Truman C. White, term expires December 31, 1905.

The last two justices were judges of the Superior Court and were made justices of the Supreme Court through the operation of the new constitution, before mentioned. Judge Hatch was also a judge of the Superior Court, but resigned to become a candidate for his present office, which he secured by election, instead of under the provision of the constitution. He has since been designated a justice of the Ap- pellate Division and is serving in the Second Department. Judge Green is acting in the same capacity in the First Department.

Under the constitution Erie county is compelled to pay the salaries of the two Supreme Court justices who were transferred from the former Superior Court, while the State pays all the other justices, and notwithstanding the fact that the services of these two justices are de- voted to a considerable extent to business from other parts of the State.

Superior Court .- By an act of the Legislature passed in 1839, a Re- corder's Court was created for the city of Buffalo, and the appointment of the recorder was vested in the governor. The term of office was four years, and it was held by Horatio J. Stow, from 1840 to 1844; Henry K. Smith, from 1844 to 1848. By the constitution adopted in 1846, the office was made elective by the people, under which it was held by Joseph G. Masten from 1848 to 1852; George W. Houghton from 1852 to 1854.

An act was passed in 1854 by which the court was reorganized and merged into the Superior Court, with three judges, whose term of of- fice was fixed at six years. Provision was also made that the incumbent of the office of recorder, at the time of the reorganization, should serve as one of the judges of the Superior Court for the remaining portion of the term for which he had been elected. Recorder Houghton was, therefore, under this arrangement, entitled to serve two years as judge of the new court.

At the first election under the new law, George W. Clinton and Isaac A. Verplanck were chosen as the other judges, and upon casting lots for the long and short terms, Judge Clinton secured the full term of six years, and Judge Verplanck that of four years. The judges of the reorganized court have been :

George W. Houghton, 1854-56; I. A. Verplanck, 1854-58; George W. Clinton,

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1854-60; Joseph G. Masten, 1856-62; I. A. Verplanck, 1858-64; George W. Clinton, 1860-66; Joseph G. Masten, 1862-68; I. A. Verplanck, 1864-70; George W. Clinton, 1866-72: Joseph G. Masten, 1868-71; James M. Humphrey, 1871-72; James Sheldon, 1872; I. A. Vanplanck, 1870-93; James M. Smith, 1873-74; James M. Smith, 1874; George W. Clinton, 1872; Charles Beckwith, 1878; Robert C. Titus, 1885; Truman C. White, 1891.

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Our County and Its People: A Descriptive Work on Erie County, New York (Volume 1), Part 75

Author: Truman C. White Publication date: 1898 Publisher: Number of Pages: 1017

Author: Truman C. White
Publication date: 1898
Publisher:
Number of Pages: 1017