USA > New York > Tioga County > Our county and its people : a memorial history of Tioga County, New York > Part 15
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nance in 1701, suspended in 1703, and re-established in 1704. Pre- vious to that time matters in equity were heard in any of the courts organized in conformity to the duke's laws. At first this court was unpopular in the province, the assembly and colonists opposing it with the argument that the crown had no authority to establish an equity court in the colony.
Their reasons were that quit-rents upon the sale of lands be- longed to the crown as a prerogative ; that through the neglect of the governors these rents had been allowed to fall in arrears, and that the Court of Chancery was resorted to for their collection. Furthermore, the governors, almost without exception, were ad- venturers, or men of impaired fortunes, who accepted these ap- pointments with the hope of enriching themselves. The methods they pursued in making their several offices profitable consisted of granting patents of land and receiving from the grantee a gratuity (or bribe) in proportion to the value of the land granted-a palpa- ble fraud upon the rights of the crown. As a result the grantees were fearful that proceedings might be instituted in the Court of Chancery by the attorney-general, to revoke the grants. And thus the Court of Chancery was a menace to the security of the land owners, and incurred their bitter opposition.
Under the constitution of 1777, the Chancery Court was reor- ganized, and by the reorganization of 1778 masters and examiners were designated by the council of appointment, while registrars and clerks were appointed by the chancellor ; and the latter licensed all solicitors and counsellors of the court. Appeals lay from the Chancery Court to the Court for the Correction of Errors.
Under the constitution of 1821 the chancellor was appointed by the governor, and held office during good behavior, or until sixty years of age. Under the second constitution equity powers were vested in the circuit judges, and their decisions were reviewable on appeal to the chancellor. The equity character, however, was soon taken from the circuit judges and vested in the chancellor alone, and the judges afterward acted as vice-chancellor's in their respective circuits. The constitution of 1846 abolished the Court of Chancery, and its powers and duties were vested in the Supreme Court.
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By act of the legislature, passed in1848, and entitled the "Code of Procedure," all distinction between actions at law and suits in equity were abolished, so far as the manner of beginning and con- ducting the same were concerned, and one uniform method of practice in all actions was adopted. In June, 1877, the legislature enacted the "Code of Civil Procedure," to take the place of the code of 1848, and by this many minor changes in the practice of the court were made.
These are, in brief, the changes through which the Supreme Court has passed in its growth from the prerogative of an irrespon- sible governor to one of the most independent and enlightened instrumentalities for the protection and attainment of rights of citizens of which any state or nation, ancient or modern can rightfully 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 rank 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 one time, only criminal jurisdic- tion. In 1675 Andros granted a charter. The mayor with four aldermen was authorized to sit as a Court of Sessions. He did not, however, organize a separate criminal tribunal, but continued as before to discharge criminal and municipal business at the regular sittings of the court. By an act called an act to " settle courts of justice," passed in 1683, a Court of Sessions, having power to try both civil and criminal causes by jury, the former without limita- tion as to amount, was directed to be held by three justices of the peace in each of the counties of the province twice a year, with an additional term in Albany and two in New York. In the city of New York it was held by a mayor and four aldermen. By the act of 1691, and the decree of 1699, all civil jurisdiction was taken from this court and conferred on the Common Pleas. By the radi- cal changes made by the constitution of 1846, provision was made for a county court in each county of the state, except New York, to be held by an officer designated the "county judge," and to
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have such jurisdiction as the legislature should prescribe. Under the authority of this constitution County Courts have been given jurisdiction in various classes of actions, and have also been in- vested with certain equity powers in the foreclosure of mortgages, the sale of infants' real estate, and also to partition lands, and measure dower and care for the persons and estates of lunatic and habitual drunkards. The judiciary act of 1869 continued the ex- isting jurisdiction in all actions in which the defendant lived with- in the county and the damages claimed did not exceed $1,000. The constitution of 1894 likewise continues the court, and increases its power in extending the amount of damages claimable to $2,000.
Like the Supreme Court, the County Court has its civil and criminal sides. In criminal matters the county judge was for- merly assisted by two justices of the sessions, elected by the people from among the justices of the peace of the county. It is in the criminal branch of this court, known as the "Sessions," that minor criminal offenses are disposed of, and all indictments, except for murder or some very serious felony, are sent to it for trial from the Oyer and Terminer. The constitution of 1894 abolished courts of sessions, except in New York county, after the 31st day of December, 1895, and its powers and jurisdiction were thereafter vested in the County Court. By the codes of 1848 and 1877 the pro- cedure and practice in this court are made to conform as nearly as possible to the practice of the Supreme Court. This was done with the evident design to attract litigation into these minor courts and thus relieve the Supreme Court. In this purpose, however, there has been a failure, as litigants much prefer the shield and broader powers of the higher court. Under the code county judges per- form some of the duties of a justice of the Supreme Court at chambers. The County Court has appellate jurisdiction over actions arising in justices' courts and courts of Special Sessions. Appeals lie from the County Court direct to the appellate division of the Supreme Court.
The constitution authorizes the legislature, on application of the board of supervisors, to provide for the election of a special county judge, to assist the regular judge in the disposition of business of the County Court, or to act in his stead in case of disqualification.
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Under this authority, on April 10, 1849, the legislature passed an act authorizing such a judicial officer in Tioga county, to hold office for the term of three years, and receive such compensation as the supervisors shall determine.
The old Court of Common Pleas of the state of New York, the oldest tribunal of the state, which survived the changes of two constitutional revisions, was another heirloom of the colonial period, and was established originally under the charters of 1686, for the counties of New York and Albany, and was made general to the state by the act of 1691. Under the first constitution the number of judges were various, there being as many as twelve in some counties, but the act of 1818 limited the judges to five in each county, including the first judge. The constitution of 1821 con- tinued the court, and its judges were appointed by the governor and senate and held office for the term of five years. This court, except in the county of New York, was abolished by the constitu- tion of 1846.
Surrogates' 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 estates of infants and of deceased persons. The derivation of the powers and the practice of these courts is from the Ecclesiastical Court of England, also in part through 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 Scheppens, the Orphan Masters, the Mayor's, the Prerogative, and the Court of Probate. The settlement of estates and the guardianship of orphans was transferred to the Burgomasters in 1653 and soon after to the Orphan Masters. Under the colony the Prerogative Court con- trolled all matters relating to the probate of wills and settlement of estates, but in 1692, by act of the legislature, all probates and granting of letters of administration were to be under the hand of the governor or his delegate, and two freeholders were to be ap- pointed in each town to care for 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
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the governor was divested of all of this power, except the appoint- ment of surrogate, and it was conferred upon the judges of the Court of Probate.
Under the first constitution, surrogates were appointed by the council of appointment, and under the second by the governor with the approval of the senate. The constitution of 1846 abol- ished the office of surrogate in all counties having less than 40,000 population, and conferred its powers and duties on the county judge. By the code of civil procedure, surrogates were invested with all the necessary powers to carry out the equitable and inci- dental requirements of their office. In its present form, and sitting weekly, this court affords a cheap and expeditious medium for the care and settlement of estates and the guardianship of infants.
The only remaining courts which are common to the whole state are the Special Sessions, held by justices of the peace for the trial of minor criminal offenses, and justices' courts with a limited civil jurisdiction. Previous to the constitution of 1821 (modified in 1828), 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 im- portant, 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.
The organization of the courts in Tioga county was accom- plished with little difficulty, as the creating act designated the house of George Hornwell, in Chemung, as the place, and the month of June as the time, for holding the first session of the Common Pleas. First judge, Abraham Miller, officiated on that memorable occasion, with three associate judges and one assistant justice. The other officers of the court were sheriff James Mc- Master, and clerk Thomas Nicholson, while lawyers Vincent Mat- thews. David Woodcock, and David Powers represented the inter- ests of the litigants. Yet neither of these worthies was a resident
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of the county, and in fact it is said that Tioga had no resident legal practitioner previous to the year 1800, when Eleazer Dana became the pioneer of the local bar.
Yet this period of ten years was not without its vicissitudes, for the inhabitants of the several settled localities of the vast county were engaged in an earnest struggle for the possession of the county buildings and the seat of justice. In 1792 an act of the legislature directed the buildings to be erected east of Nanticoke creek, and courts to be held at the dwelling of pioneer Spaulding, in the same vicinity, and in the next year an act directed courts to be held alternately at Chenango (Binghamton) and at Newtown (Elmira), in the town of Chemung, thus creating a two-shire county. Jury districts were first created in Tioga in 1801, and for the conven- ience of the inhabitants of the county the clerk's office was soon afterward (1804) directed to be maintained at some point not more than three miles from the settlement called Owego. At this time Eleazer Dana and John H. Avery were the only resident lawyers of the county.
In 1806 the county was divided, and all of the territory east of Owego creek was set off to Broome county, and the result was that the seat of justice of Tioga was removed to Newtown, where courts were held and where all the legal lights of the county were centered. This division soon necessitated a change in the location of the county seat, and resulted in the erection of a court house at Spencer, then the most convenient central point in the county. However, Newtown, or Elmira, was soon created a half-shire town, and courts alternated between these places. On the 8th of June, 1812, Tioga county was again divided into two jury districts.
In 1821 the court house at Spencer was burned, and one year afterward the present towns of Owego, Newark Valley, Berkshire and Richford were restored to Tioga county. This radical change in the territorial boundaries demanded an eastern jury district, and Owego became a half-shire town with Elmira. In 1836 Che- mung county was created, and Tioga was reduced to its present boundaries. Thus it will be seen that the early lawyers of Tioga county were also pioneers in the profession in the adjoining coun- ties of Broome and Chemung, and that the life of the average
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1
practitioner was a career of almost continuous itinerancy. Such indeed was the case, and previous to 1836 the whole number of practicing lawyers in this county was less than twenty-five.
However, it is not properly within the province of this chapter to refer at length to the several county buildings and localities in which courts have been held, as that subject is more fully treated in another part of the work ; but it is the present purpose to men- tion the names of those persons who have been connected with the courts and the administration of law in the county from its earliest history to the present tinie.
THE BENCH.
To Abraham Miller is to be accorded the honor of having been the first regular judicial officer in Tioga county, and who, perhaps, in point of seniority of service on the bench should be first men- tioned in these sketches, yet we feel constrained to reserve the highest honor to that one man whose professional life in the county began more than forty years after Judge Miller's appointment to the Common Pleas bench, but whose special qualities of mind and heart, together with his professional standing among the legists of this state, naturally entitle him to the first recognition in treating of the magistrates who have honored Tioga county by their lives and record.
John Mason Parker was a native of Granville, Washington county, N. Y., born June 14, 1805, and was the son of John C. Parker, also a lawyer, and one of the pioneers of the bar in that county. John M. Parker acquired his elementary education at the once famous Granville academy, then entered Middlebury college, a noted Vermont educational institution, from which he was grad- uated with highest honors in 1828. He read law in the office of John P. Cushman, of Troy, N. Y., was admitted to practice in 1833, and in the same year opened an office in the village of Owego. From that time to his death Judge Parker was in some manner associated with the practice of the law in Tioga county ; and by those who knew him well in life it is said that he was devoted to the profession, a statement corroborated by the fact that he was thorough in the discharge of every duty and in the preparation of every case in which he was retained. In his intercourse with
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clients he was perfectly frank and inclined to discourage rather than encourage litigation, and in all law questions mature deliber- ation always preceded counsel. Yet as a magistrate on the bench his rulings were clear and prompt, and his interpretation of the law very nearly correct. As a judge he was popular with the entire bar, kind and forbearing in his manner, especially toward the younger members of the profession, whom he encouraged with his presence and advice. The bar knew him to be incapable of trick, and he had a special contempt for all that was mean and narrow and low. Naturally, a man of his mark and possessing the full confidence and esteem of his fellow men and professional associ- ates could not well avoid being drawn somewhat into the arena of polities, although his taste inclined strongly against it. He was twice elected to congress, and served continuously from 1855 to 1859. On the 8th of November, 1859, he was elected justice of the Supreme court, and served a full term of eight years. In the fall of 1867 he was re-elected to a term of fourteen' years, and was in office at the time of his death, December 6, 1873. In January, 1867, Judge Parker, as one of the justices of the Supreme Court "having the shortest time to serve," sat on the Court of Appeals bench. In 1870 he was appointed to the General Term. Two terms in congress and nearly fourteen years justice of the Supreme Court were the full extent of his public holdings. In politics he was a whig, and later a republican, firm and determined, and one of the organizers of that party in the county. Judge Parker was twice married ; first in September, 1835, with Catherine Ann, daughter of Charles Pumpelly, of which marriage four children were born. His wife died in December, 1845, and March 1, 1854, he married with Stella A., also a daughter of Charles Pumpelly.
As has been stated, Abraham Miller was the first judge of the Common Pleas in this county, his appointment dating February 17, 1791. Judge Miller was born in 1735, and was a blacksmith by trade, though a farmer by avocation. He served with the American colonists during the last French war and also was a rev- olutionary patriot. He was not learned in the law but possessed a good fund of common sense, and was a careful and successful business man. Judge Miller served on the Common Pleas until 1798. He died in 1815.
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John Patterson succeeded to the first judgeship of the Common Pleas Court by appointment, March 27, 1798, and served until the spring of 1807. He was a resident of the Broome county portion of old Tioga. He was member of assembly in 1792 and 1793, and representative in congress in 1803-5.
John Miller, who next succeeded to the bench, was the son of Abrahamı Miller, and held office from April 3, 1807, to March 31, 1810. He was a well-educated man, a good judge, and one of the best politicians of his day ; but he allowed himself to be led away by the influence of Aaron Burr, and spent many years in Clark county, Ind., at the expense of much of his popularity and means. He at length returned to Ithaca, where he died in 1833.
Judge Emanuel Coryell succeeded to the Common Pleas judge- ship March 31, 1810, and served as first judge for the next eight years. He was one of the pioneers of the county, having first vis- ited the region about 1788 or 1789 in company with a surveying party, and in 1791 he made a permanent location in what is now the town of Nichols. Indeed it may be said that Judge Coryell was in fact the first actual resident of Tioga county to serve in the capacity of first Judge of the Common Pleas. In politics a feder- alist, Judge Coryell wielded a strong influence in the county, and by his popularity and business capacity became widely known throughout the region. He died in January, 1835, at the advanced age of eighty-two years.
Gamaliel H. Barstow became first judge of the Common Pleas by appointment, June 22, 1818. He was a son of Seth Barstow, and a native of Sharon, Conn., born July 20, 1784. He studied medicine at Great Barrington, Mass., with his brother, Dr. Samuel Barstow, and came to Nichols in 1809. Three years later he mar- ried with Nancy, the daughter of Emanuel and Frances (Caldwell) Coryell. In common with all his predecessors, Judge Barstow was not a lawyer, yet was a man of full mental equipment, and made an excellent record both as judge and as public official in other capacities. He was first elected to the assembly in 1815, and served in the lower house five years. He was elected to the senate in 1818, serving with that body four terms. In 1825 he was elected state treasurer, and was again elected in 1838. He was in
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congress in 1831-33, serving one term at least as an anti-mason. Judge Barstow was a Jeffersonian democrat early in life, but later was a whig. He died in Nichols, March 30, 1865, aged eighty-one years.
Lathanı A. Burrows succeeded to the bench in 1823, and was the first professional lawyer to fill that position in the county. He was a native of Groton, Conn., born in 1793, and became a mem- ber of the county bar in 1816. He was clerk of Broome county from February 14, 1821, to January 1, 1822, associate judge of Tioga froni 1824 to 1827, and later first judge of the Common Pleas. Judge Burrows represented this county in the state senate from 1824 to 1828, and in the latter year established a mercantile busi- ness in Owego. He was president of the village front 1836 to 1839, inclusive. He afterward removed to Buffalo, where he died Sep- tember 25, 1855.
Grant B. Baldwin was appointed first judge February 5, 1828, and served until March 27, 1833. Judge Baldwin was a resident of Elmira when that city was a hamlet called Newtown, a half- shire town of Tioga county. He was a lawyer by profession, admitted to practice in 1814, and is remembered as a capable and popular public officer.
John R. Drake succeeded to the office of first judge of the Com- mon Pleas of Tioga county March 27, 1833, but previous to that time, from 1815 to 1823, he had officiated as first judge of Broome county. Judge Drake was born at Pleasant Valley, Orange county, November 28, 1782, and came to Owego in 1809, when that hamlet settlement was included in Broome county. He was a merchant and lumberman, and a man of much importance in the community. He built the first sidewalk ; owned the first cov- ered carriage and covered sleigh, and his daughter had the first piano, in the settlement. He bought large tracts of land, and for several years was manager of the Coxe Patent. His store stood at the north end of the bridge at the corner of Front street. He owned nine store buildings, all of which were burned in 1849. Judge Drake died in Owego, March 21, 1857.
Stephen Strong was a native of Connecticut, born October 11, 1791. He came to Owego from Jefferson county, N. Y., in which
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region his parents were pioneers. Young Strong came to this county in 1814 or 1815, and was an early teacher. About the same time he began reading law, and was admitted to practice in 1822. He became not only a prominent member of the county bar, but is remembered as having been one of the most eloquent orators of the region, and an extensive and successful practitioner, particularly in criminal cases. Judge Strong served as first judge of the Common Pleas by appointment, April 13, 1838, and as county judge by election in November, 1855, in all a period of nine years. He was district attorney of Tioga county from July, 1836, to July, 1838, and from February, 1844, to June, 1847. He represented the twenty-second district in the congress of 1845-47. Later he removed to Waterloo, N. Y., and there he died April 5, 1866.
Alanson Munger, the last of the old Common Pleas judges in Tioga county, was born in Ludlow, Mass., February 5, 1801. He removed to Madison county, N. Y., in 1827, was graduated at Hamilton college, and thence came to Owego in 1840. He formed a law partnership with Stephen Strong, which continued two years, but aside front this partnership Judge Munger always prac- ticed alone. He is remembered as a safe counsellor, a good trial lawyer, and a man of sterling integrity and worth. He was ap- pointed first judge February 2, 1843, and surrogate January 24, 1844. He was elected district attorney in 1850, and special county judge in 1861. He also served one term as justice of the peace of the town of Owego, and was the democratic candidate for the senate in 1869, but was defeated at the polls. In politics Judge Munger was a democrat. He was the first man in Friendship lodge, F. and A. M., to be raised to the degree of master mason. He died suddenly at his home in Owego, December 31, 1877.
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