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"Browne, The Judiciary" | |
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A constitutional convention was held in 1821. The main inducement was a public desire to amend the suffrage law, by dispensing with the freehold qualification; but in the result important modifications of the judiciary system were effected. The structure of the Supreme Court was altered by increasing the number of judges and in the assignment of their duties. By the new Constitution and the consequent legislation the State was divided into eight senatorial districts and as many correspondent judicial circuits, in every one of which there was a circuit judge for the trial of causes, to hold the Court of Oyer and Terminer, and perform the duties of a justice of the Supreme Court at Chambers. From these judges there was an appeal to the Supreme Court, which was composed of a chief justice and two associates. Thus the Supreme Court judges were relieved of circuit duty, and "deprived of the political advantages conferred on them, as it was supposed, by an official tour in the name and under the authority of the majesty of the law." This was also invested with an appellate jurisdiction over the judgments of the inferior courts. The Court for the Correction of Errors was preserved as under the Constitution of 1777. The new Constitution provided that equity powers might be vested in the circuit judges. Accordingly in 1823 an act was passed erecting equity courts in the several circuits, to be held by the circuit judges. Shortly after, however, these distinct equity courts were abolished, and general equity jurisdiction was given to the chancellor, while on the circuit judges were conferred equity powers as vice-chancellors. "In 1831, 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, 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."[18] The Courts of Common Pleas outside the city of New York were reorganized, and consisted of a first judge, of the degree of counsellor-at-law, and four associate judges. In 1828 the Superior Court of the city of New York was created, with a chief justice and two associates, with unlimited jurisdiction in actions at law commenced by the service of process in the city of New York, and appellate jurisdiction over the judgments of the Marine Court and the courts of assistant justices in that city. The number of justices was subsequently increased to six, and the appellate jurisdiction was transferred to the Common Pleas. The Common Pleas of the city of New York was constructed out of the Mayor's Court, with a first judge, the mayor, recorder and aldermen being still empowered to sit in it, but never doing so, except to form the so-called County Court for the impeachment and trial of municipal officers. By the new Constitution the higher courts were empowered, as by the Constitution of 1777, to appoint their own clerks. The Constitution of 1823 wrought two other changes of the first importance to the judiciary;—it abolished the Council of Revision and the Council of Appointment, and vested the veto power in the Governor, and the power of appointment of all the higher judicial officers in the Governor with the approval of the Senate. Thus the judges were separated from legislative functions and duties, and their own appointment was rendered less dependent on a clique of senators. These two changes were undoubtedly beneficial. Of the mode of appointment provided in the Constitution of 1777 Governor Clinton said: "If the ingenuity of man had been exercised to organize the appointing power in such a way as to produce continual intrigue and commotion in the State, none could have been devised with more effect than the present arrangement. "The investing of the judges, appointed to construe and administer the laws, with power to annul them by the veto was contrary to well-recognized principles of government. Under the new Constitution justices of the peace were to be appointed by the boards of supervisors and the county judges, but in 1826 this provision was changed by making them elective. The tenure of the higher judicial officers continued as under the Constitution of 1777, during good behavior until the age of sixty; but they were removable by joint resolution of the Senate and Assembly, by a concurrence of two-thirds of the latter and a majority of the former. The chancellors during this period were Nathan Sandford, Samuel Jones and Reuben H. Walworth. The most celebrated name among these is that of Walworth, who as chancellor is even better known than Kent as chancellor. He was appointed chancellor in 1828, at the age of thirty-eight, and held the office until the court was abolished in 1848.[19] Possessing a less original and creative mind than Kent, it has been said he "widened, beautified and made solid the paths which his predecessor hewed out." He "brought to his office a marvellous industry, a keen intelligence, wide and various learning, keen humor, and an irreproachable integrity.[20] His rare judicial qualities are exhibited in the ten volumes of Paige's and the three volumes of Barbour's Chancery Reports, wholly taken up with his decisions, and in the decisions of the Court of Errors, reported by Wendell, Hill and Denio. In every important appeal from the Supreme Court we find an opinion of the chancellor."[21] Judge William Kent, son of the great chancellor, chief justice and commentator, said, "No court was ever under the guidance of a judge purer in character or more gifted in talent than the last chancellor of the State of New York;" and Murray Hoffman, in the last days of the court, declared that "the patriot can breathe no more useful prayer for his native State than that the future administration of justice may be distinguished by intelligence, learning and integrity, such as have illustrated the Court of Chancery from the days of Robert R. Livingston to the present hour." There were upwards of ninety appeals from this chancellor's decisions, and his decrees were reversed in thirty cases. He was also frequently in the minority in the decision of appeals from the Supreme Court. Still, it may be doubted whether the chancellor is not now a greater legal authority than the Court of Errors. The first vice-chancellor was William T. McCoun, who was succeeded by Lewis H. Sandford. The assistant vice-chancellors were Murray Hoffman, Lewis H. Sandford and Anthony L. Robertson. In 1839 the duties of circuit judge and vice-chancellor in the eighth circuit were separated, and Frederick Whittlesey was appointed vice-chancellor for that circuit. The chief justices of the Supreme Court during this period were John Savage, Samuel Nelson, Greene C. Bronson and Samuel Beardsley; and the associate justices were Jacob Sutherland, John Woodworth, William L. Marcy, Samuel Nelson, Greene C. Bronson, Esek Cowen, Samuel Beardsley, Freeborn G. Jewett, Frederick Whittlesey, Thomas McKissock. It would be difficult to parallel these names, for public virtue, professional learning, and successful administration of the law, in the history of any other community. The name of Marcy is of national reputation, as Senator of the United States and Secretary of State; a man of the highest quality of native powers, our State recognizes him as perhaps the greatest of her statesmen. Judge Nelson served his country, in our State and on the Federal supreme bench, for half a century; a man of leonine strength and sagacity. The reputation of Judge Cowen is also a national possession. It is doubtful that any other State judge, excepting Kent and Shaw, is so well and widely known throughout the country. He was possessed of great native acuteness, displayed an unparalleled industry, and acquired prodigious learning. His Treatise on Justices' Courts and his Notes on Phillips Evidence, written in association with Nicholas Hill, stand on the shelves of nearly every lawyer in the land—a mine of professional learning. The nine volumes of his reports are among the best.[22] Judge Bronson was a man of marvellous brilliancy and power. Seldom has any court been composed of three such legal giants as Nelson, Cowen and Bronson, and seldom have they been succeeded by such men as Beardsley and Jewett. Our Supreme Court, under these eminent men, may be declared the finest fruit of the system of an appointed judiciary. During the same period the circuit judges were Ogden Edwards, Samuel R. Betts, William A. Duer, Reuben H. Walworth, Nathan Williams, Samuel Nelson, Enos T. Throop, William B. Rochester, John Birdsall, James Emott, Esek Cowen, Daniel Moseley, James Vanderpoel, Addison Gardiner, Charles H. Ruggles, Robert Monell, Hiram Denio, Isaac H. Bronson, Greene C. Bronson, John Willard, John P. Cushman, Philo Gridley, Nathan Dayton, William Kent, Amasa J. Parker, Bowen Whiting, John W. Edmonds, John B. Skinner, Hiram Gray, Seward Barculo. Many of these received eminent recognition and promotion in the next period. The Common Pleas of the city of New York was represented during this period by such men as John T. Irving, Charles P. Daly, and Lewis B. Woodruff; and the Superior Court, under the administration of Thomas J. Oakley, John Duer, Lewis H. Sandford, Murray Hoffman, and their successors, has acquired a degree of authority and respect throughout this country, especially in matters of commercial law, scarcely second to our Supreme Court. In the Court for the Correction of Errors, during its earlier period, the senators pronounced comparatively few opinions. At a later date senatorial opinions became more frequent. The chancellor and one or more of the law judges generally led off, and the senators followed with opinions or contented themselves with those delivered by the magistrates. In the early part of this century Attorney-General Woodworth, at the same time a senator, is recorded in a few instances as having delivered an opinion. The senators who most frequently pronounced written opinions were DeWitt Clinton, William H. Seward, Gulian C. Verplanck, Alonzo C. Paige, Luther R. Bradish, William Ruger, Erastus Root, Harvey Putnam, John A. Lott, Lyman Sherwood, Elijah Rhoades, Henry W. Strong, Abraham Bockee, John Porter, Addison Gardiner, Hiram F. Mather, Nathaniel P. Tallmadge, John W. Edmonds, Albert H. Tracy, Leonard Maison, Samuel L. Edwards, David Wager, Gabriel Furman, John Crary, Charles Stebbins, Cadwallader D. Colden, John Sudam, John C. Spencer. Senators Putnam, Verplanck, Spencer, Colden, Edmonds, Edwards, Tracy, and Maison gave numerous opinions, very generally characterized by extensive learning and careful elaboration. Senator Verplanck's were among the most numerous, and are among the most learned and elegant judicial essays ever written in this State. Mr. Verplanck was a man of remarkable scholarship, and has left behind him an enviable reputation both in law and letters. Pausing now on the eve of a great judicial revolution, that swept away old courts and still more venerable procedures, and introduced novel substitutes which have since set the legal fashion for a large portion of the English-speaking communities, we may usefully spend a few moments in reviewing the alleged defects of the old order of things. Foremost and most general was the complaint against the mode of appointing the judges. The people, by the exercise of half a century of freedom and independent judgment, and a sense of personal responsibility, had grown to have such confidence in their own discrimination that they deemed themselves better qualified to select their own judges than a single agent, or several agents, of their own appointment could possibly be to select their judges for them; that the inhabitants of a particular locality could more wisely choose between candidates residing among them, than a Governor, who living at a distance could generally know of them only by rumor; that the open strife of popular canvass and election was less to be dreaded than the secret intrigues of the Governor's Council Chamber; that the favorite of the people of his district was more to be trusted than the favorite of the Governor and his band of advisers; that a feeling of responsibility to the people was a better guaranty of fidelity in a judge than a sense of personal obligation to a single man; in short, that if the people could be trusted to choose their own rulers, they were quite fit to select their own judges. Against these views was urged the impolicy of bringing the bench within the domain of political strife, and the wisdom of preserving its occupants free from any sense of party obligation and any danger of party favoritism. This is not the place for the discussion of this serious question,— in respect to which the most enlightened Commonwealths of this country still radically differ, and which can never be settled for any community except by practical results. One thing was evident: the appointing system did not uniformly secure judges who were not politicians, nor save some of them from the popular belief and accusation that they continued to be politicians after reaching the bench. Second: The people were dissatisfied with the constitution and workings of some of the courts. The ultimate court, the Court for the Correction of Errors and Appeals, although copied from the House of Lords of the mother country, differed materially from that body. The lords held place mainly by inheritance, and always for life; the senators held by popular ejection and for short terms. The one was aristocratic and permanent, the other democratic and fluctuating. It may be noted in passing that the advocates of the practice of appointing judges could not very consistently cleave to the Court of Errors, for that body was mainly elective, and so the most important legal interests of the State were put within the arbitrament of judges springing from and responsible to the people. Specific objection was made to this court, because it was essentially a political and legislative body; and the union of judicial functions with legislative was contrary to our theories of government; because in practice the court was too numerous, and its judgments, if not partisan, were too apt to partake of the nature of a town meeting vote; because a considerable number of the court were laymen without any knowledge of law, and yet not apt, like the lay lords, to defer to and be ruled by the judgments of the lawyers;[23] because the senators had no time, apart from their legislative duties, to examine and reflect upon legal questions and pronounce deliberate and intelligent opinions; because the senators too often divided upon party lines; and because the court for all these reasons did not command popular confidence and respect. After this lapse of time it is easy to see that the judgments of this court do not possess the authority which ought to attach to the judgments of the ultimate court of a great Commonwealth. Third: The people were dissatisfied, as they had always been, with the Court of Chancery. It was regarded as tedious, costly, and capricious, and as frequently announcing a worse rule of law, while professing to utter a higher and better, than the common-law courts. The extreme inconvenience and the frequently ruinous consequences of the distinction between equitable and legal remedies excited great hostility. The suitor was frequently driven to and fro between the two courts, each insisting that the other was his appropriate tribunal. Between the two stools of law and equity he came to the ground. Essaying to enter the temple of justice he was expelled for coming in at the wrong door, and frequently was utterly denied admission because the guardian of each portal thought he should apply at the other. The popular discontent with this court was deeper than with the Court of Errors, but its decisions have proved of far greater value, and have become a homogeneous part of our present jurisprudence, thanks to the abilities and virtues of two chancellors, Kent and Walworth, whose names are scarcely less conspicuous and splendid than those of Hardwicke and Eldon. Under the Constitution of 1823 the successful administration of both legal and equitable powers by the circuit judges demonstrated the practicability of dispensing with a distinctive equity court, and paved the way for that decisive change. Fourth: The people were dissatisfied with the constitution of the Courts of Common Pleas, by reason of the large infusion of laymen and lawyers of inferior attainments. The worst results of the appointive system, it was alleged, were visible here. Grave objection was also made to the number of judges on this bench, which seemed to answer no useful purpose save to enable the Governor to reward his friends with office. It may pretty safely be said that the system was susceptible of improvement in this point. Fifth: The people were dissatisfied with the tenure of the judicial office. On the one hand, the rule that the judge must descend from the bench at the age of sixty, seems now strangely short-sighted. It lost the State twenty of the best and most honorable years of her greatest judge, Kent, as we have seen, although what was the loss of the State was the gain of the world. On the other hand it was urged and believed, that it was unwise to give the judges so long a single lease of office as holding till sixty would generally imply, and that it would be better to bestow a term of moderate and certain duration, to be repeated or not, at the will of the people. Finally, it was discovered by experience that the circuit system was entirely inadequate to the business of the greatly increased population. Mr. Butler says, very justly, that this "formed one of the chief necessities for calling a new convention. |
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 The Historical Society of the Courts of the State of New York | |