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"Browne, The Judiciary" | |
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On the outbreak of the Revolution in 1775, all the colonial judges, except Robert R. Livingston, adhered to the cause of the Crown. Chief Justice Horsmanden continued to administer justice in the city of New York, under the Crown, until his death, in 1778. Justice Ludlow succeeded him, and two years after was appointed master of the rolls, and acted as judge in admiralty. He continued thus to act until the close of the war, when he removed to Canada and became chief justice of New Brunswick. Governor Robertson held a Court of Chancery in the city of New York monthly from January, 1781, until June, 1783. During the revolutionary period the royalists maintained possession of the city, of Long Island, and of part of Westchester, and exercised judicial functions in that territory. During the first two years of the revolutionary period the republicans exercised judicial functions in the rest of the territory by means of district committees. Of these committees Judge Daly says: "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 adherents. 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 compelled, upon receiving it, to pay all the costs and expenses that had been incurred by the unfounded proceedings against them. 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." In 1777 a convention of representatives, assembling at Kingston, adopted the first Constitution of the State. John Jay was its chief author, and it was adopted with only one dissenting vote. This Constitution recognized the Supreme Court, the Court of Chancery, and the County Courts already existing,[12] but added a court of last resort and for the trial of impeachments, called the Court for the Correction of Errors, formed on the principle of the English House of Lords and of the Colonial Council, and consisting of the Lieutenant-Governor, the senators, the chancellor, and the judges of the Supreme Court, the chancellor having no vote in the determination of appeals from his decrees, nor the judges in that of writs of error. (The chancellor and judges, however, might deliver opinions or arguments in support of their judgments.) The chancellor, the judges of the Supreme Court, and the first judges of counties were to hold office during good behavior until the age of sixty, and the other judges and the inferior magistrates at the pleasure of the appointing power. The appointing power was vested in a council of appointment, consisting of four senators selected annually by the Assembly, and the Governor. This council had power to appoint and remove at will all officers of the State except as above specified. The chancellor and the judges of the Supreme Court, with the Governor, also formed a council of revision of laws, with the power of veto over acts of the Legislature, absolute unless such acts should be passed over the veto by a two-thirds vote of each house. By this Constitution three important provisions were made relating particularly to the administration of justice, namely: the right of trial by jury was to be preserved inviolate; parties impeached or accused of crime were to be allowed counsel as in civil cases; and the Legislature was forbidden to institute any new court except such as should proceed according to the common law. It was also provided that such parts of the common law of England, and of the statute law of England and Great Britain, and of the Colony of New York, as together formed the law of the Colony on the 19th day of April, 1775 (the day of the battle of Lexington), should continue, subject to alteration by the Legislature, to be the law of New York; except that all such parts of the common and statute law as might be construed to establish or maintain any particular denomination of Christians, or their ministers, as well as those which concerned the allegiance before yielded to, and the sovereignty claimed by, the King of Great Britain, or were otherwise repugnant to the Constitution, were expressly abrogated and rejected. It was also provided that legal process and proceedings should run in the name of the People of the State. It is outside the province of this sketch to consider the provisions of this Constitution in other branches, but there can be little dissent from the views expressed by Mr. Butler in his Outline of the Constitutional History of New York: "When the unfavorable circumstances under which it was formed, and the little experience of its authors, or of the world, in free representative government, are duly considered, it will be regarded by every candid mind as a noble monument of the wisdom, the justice, and the patriotism of its founders." And Mr. Butler's criticism, that "It violated, in some material respects, the fundamental maxim which calls for the separation of the legislative, executive, and judicial powers," will also find general concurrence. Under this Constitution Robert R. Livingston was appointed chancellor. He served until 1801, when he was succeeded by John Lansing, who in time was succeeded in 1814 by James Kent. John Jay was appointed first chief justice of the Supreme Court, and resigning in 1779, was succeeded by Richard Morris. The subsequent chief justices under the Constitution of 1777 were Richard Morris, Robert Yates, John Lansing, Jr., Morgan Lewis, James Kent, Smith Thompson, Ambrose Spencer. The first puisne judges were Robert Yates and John Sloss Hobart, who were succeeded by John Lansing, Jr. , Morgan Lewis, Egbert Benson, James Kent, John Cozine, Jacob Radcliffe, Brockholst Livingston, Smith Thompson, Ambrose Spencer, Daniel D. Tompkins, William W. Van Ness, Joseph C. Yates, Jonas Platt, John Woodworth. The early judiciary shows a resplendent list of names, which furnished a signer of the Declaration of Independence, a chief justice of the United States, an associate justice of that court, a foreign minister and several Governors. In 1779 a legislative act was passed, creating a council or committee for the southern district of the State, then in possession of the royalists, consisting of the Governor, the two houses, the chancellor, the Supreme Court justices, the attorney-general and the county judges, with governmental authority, and with power in any seven, including the Governor, to act for sixty days after convening in that part of the State. After the evacuation by the British in 1783, this committee was organized in New York city, and continued in session until the assembling of the Legislature. After this period the Supreme Court was held at New York and at Albany, the judges going on circuit as before. In 1792, a puisne judge was added, and in 1794, another, and the court, with the chief justice and four puisne judges, continued from the latter date until 1823. There are no reports extant of the equity decisions of Chancellors Livingston and Lansing. An official reporter is as essential to the usefulness and reputation of a judge as a poet is to a hero, according to the Horatian maxim. So we may believe that there were capable judges before Kent, but reporters came in with him, and the judges who went before him suffer from the comparison.[13] It has been declared by a high authority, Chief Justice Duer, that Chancellor Kent rescued the Court of Chancery from a condition of utter inefficiency. Story was of the same opinion. On the other hand, an equally high authority, Chancellor Jones, has declared "that this august tribunal, though since covered with a halo of glory, never boasted a more prompt, more able, and more faithful officer than Chancellor Livingston." Mr. Fowler also says (Observations on the Particular Jurisprudence of New York, 23 Albany Law Journal, 287): "Those decisions of Chancellor Livingston bearing on jurisprudence, and preserved in the records of the council of revision, indicate the same qualities which so distinguished his career as a statesman and diplomat." The reports give Lansing's opinions as a member of the Court of Errors and the Supreme Court, but the most important of his remains are seventy-four rules of the Court of Chancery, the first adopted for that court, some of which, like that enabling bills to be taken as confessed for want of answer, were innovations, and all of which, as Mr. Fowler justly observes, "as they conduced to simplicity, indicate a philosophic conception of administrative jurisprudence." But it is to James Kent that our jurisprudence owes most of our equity jurisprudence and large part of our common law, The name of this great lawyer is authority to-day in Westminster Hall almost as unquestioned as in our own country. Wirt said Kent knew more law than most of the other judges in the United States put together. He may reasonably be called the founder of the equity jurisprudence of this country. Following the great Chancellors Hardwicke and Eldon, he did not servilely imitate them, but he adapted the universal principles of equity to our young and novel institutions, and the legislation which defined them. Writing the first expositions of this great branch of the law, he naturally united the commentator with the judge. Nothing can surpass the learning, the patience, the acuteness, the sound sense, and the humanity of this most modest and most useful of the many great citizens to whom our State stands indebted for its prosperity. He is more generally known to fame by his Commentaries, which are quoted in every court and country by the side of Blackstone's, but the lawyer will always put even a higher value on his judicial opinions, so carefully wrought, and so well preserved in the official reports of Caine and Johnson. It is a circumstance of significance, in studying the Constitution of 1777, that the judicial services of this most eminent of our judges were lost to the State by his retirement, under the constitutional provision, at the age of sixty, and that he afterward wrote his Commentaries, an edition of which he prepared after he became eighty years of age.[14] The jurisdiction of the Court of Chancery was vague and unsettled until the Revised Statutes of 1828. In the celebrated case of Yates v. People, Chancellor Lansing assumed to supersede a writ of error to the Supreme Court, but this power was denied by the Court of Errors. Herein it is apparent its power was more limited than that of the English Chancery. But Chancellor Kent at a later day regarded its power as co-extensive with that of the English courts. But under the administration of Kent the Court of Chancery was one of the most influential courts that ever sat in this country. Mr. Fowler says (Observations on the Particular Jurisprudence of New York, 23 Albany Law Journal, 287): "It is probably not an exaggeration to state that the decisions of the Court of Chancery of New York have been of more value to the domestic jurisprudence of this country than those of any other tribunal, excepting the Federal Supreme Court." Although we have no reports of the adjudications of the Supreme Court until 1799,[15] yet it is probable that its abilities were equal to the exigencies. The chief justices, Jay, Morris, Yates and Lansing, were eminent lawyers, and the puisne judges, except Hobart, were all bred to the law. Benson drew the rules adopted in 1796. Of him Kent said he did more to reform the practice of the court than any member before or after, and Chief Justice Duer said that as a master of special pleading he was hardly surpassed by Chief Justice Saunders himself. But the true formative period of the Supreme Court was from 1798 to 1823, under the lead of Kent, Spencer[16] and Thompson. Before the former date the proceedings, arguments and opinions were only promulgated in occasional private pamphlets, and lawyers and judges relied on English reports for precedents. But with the accession of Kent to the Supreme Court in 1798, we began to have precedents of our own, and our bench and our bar began to walk independently.[17] The weak point of the Constitution of 1777, namely, the association of judicial and executive functions in the same persons, has already been touched upon. Additional emphasis may be gained by recalling the party abuse heaped on Kent and Spencer in those days. Kent was compared, in the constitutional convention of 1821, to the poisonous upas tree of Java, which destroyed all that came beneath its shade, and Spencer was told that he might have been a Holt or a Mansfield if he had kept away from the political arena. The most common political adventurers could not have been more openly assailed. So Fitz Greene Halleck, in "The Croakers," suggesting to Mr. Simpson, "manager of the theatre," the employment of the New York politicians in the dearth of actors, wrote: Mr. Fowler says (Observations on the Particular Jurisprudence of New York, 23 Albany Law Journal, 389): "Yet these gentlemen were doubtless the victims of the ill-assorted alliance between the Legislature and the supervising power of the Council of Revision, or of that mistake in the original Constitution which vested the judicature, as a sort of third estate, with the negative on legislation in all cases. Oftentimes the majority of the Legislature were unable to pass a bill over the veto of the Council and then their indignation would be visited on the judges who defeated them; the votes of the judges in the Council were attributed to political bias and not to conviction, and they were denounced with all the accompaniments of mere political virulence. This denunciation came ultimately to affect the usefulness of the Supreme Judiciary under the first Constitution and to tarnish their otherwise splendid administration of the law." |
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 The Historical Society of the Courts of the State of New York | |