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"Browne, The Judiciary" | |
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A constitutional convention having been called in 1867, a new judiciary article, the result of their deliberations, was submitted to the people, adopted by a majority of less than seven thousand votes in about half a million, and went into effect January 1, 1870. Under this new system the Court for the Trial of Impeachments is composed of the president of the Senate, the senators, or a majority of them, and the judges of the Court of Appeals, or a majority of them. The Court of Appeals is composed of a chief judge and six associates, chosen by the electors of the State, and holding for a term of fourteen years, five forming a quorum and the concurrence of four necessary to a decision, with power to appoint and remove its clerk, reporter, and attendants. For the first election, such provision was made that the minority party was to be represented on the bench by two judges. A Commission of Appeals was constituted, consisting of five commissioners, four constituting a quorum, to dispose of the arrears of the old Court of Appeals. This Commission was composed of the last judges of the old Court of Appeals and a fifth commissioner appointed by the Governor. Its tenure was limited to three years, but was afterward extended two years. The existing judicial districts were preserved, but provision was made for five justices of the Supreme Court in the city of New York, and four in each of the other districts. Under the new article and the legislation in pursuance of it, the State was divided into four general term departments, instead of eight, as under the former Constitution, in each of which a general term is held, composed of a presiding justice and two associates, designated by the Governor from the Supreme Court justices, the presiding justice to act as such during his term of office, and the associates for five years unless their terms shall sooner expire. The general term is to sit in each of the eight judicial districts. The Supreme Court justices hold office for fourteen years. No judge or justice can sit in review of a decision made by him or by a court of which he was a sitting member. The judges of the Court of Appeals and the justices of the Supreme Court can hold no other office or public trust, and can be removed by concurrent resolution of both houses of the Legislature, if two-thirds of all the members elected to each house concur therein. The number of judges of the New York Common Pleas is increased to six. The jurisdiction of the county courts is increased to $1,000. In counties having a population not exceeding 40,000, the county judge acts as a surrogate. The tenure of the county judges is six years. No one shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be seventy years of age. Vacancies are temporarily filled by the Governor and Senate until election. The Senate, on recommendation of the Governor, by a concurrence of two-thirds of all the members elect, may remove all judicial officers except judges of the Court of Appeals, justices of the Supreme Court, justices of the peace, and judges and justices of inferior courts not of record. No judicial officer, except justices of the peace, can receive any fees, nor can any judge of the Court of Appeals, justice of the Supreme Court, or judge of a court of record in the cities of New York, Brooklyn or Buffalo practice as attorney or counsellor or act as referee. The judges and justices of the higher courts receive a salary, not to be diminished during their official terms. County clerks act as clerks of the Supreme Court. The Legislature may establish inferior courts of civil and criminal jurisdiction. Provision was also made for submitting to the people the question whether the offices of judge of the Court of Appeals, justice of the Supreme Court, county judge, judges of the Superior Courts in cities, the New York Common Pleas, and the Brooklyn City Court, should be filled by appointment. This question was so submitted in 1873, and determined in the negative, as to the Court of Appeals and Supreme Court judges, by a vote of 319,979 to 115,337; as to the other judges, by a vote of 319,660 to 110,725. The first election of judges of the Court of Appeals resulted in the choice of Sanford E. Church as chief judge, and William F. Allen, Rufus W. Peckham, Martin Grover, Charles A. Rapallo, Charles Andrews and Charles J. Folger as associates; the first five being Democrats, the last two Republicans. Subsequent substitutions from time to time made Alexander S. Johnson, Theodore Miller, Robert Earl, Samuel Hand, George F. Danforth and Francis M. Finch associates. The court is now composed of Messrs. Rapallo, Andrews, Miller, Earl, Danforth, Finch and Folger. Of these the two first named and the one last named are the only remaining of the original members of the court on its organization eleven years ago. The other four died in office. Of these men, Messrs. Church, Grover and Peckham were of exceptional native vigor of intellect and common sense. The lamented chief judge, Church, was long one of the most prominent figures in the later political history of our State. He was recognized by bench and bar as the very model of the chief judge, well founded in learning, of broad and comprehensive modes of thought, sound judgment, untiring industry, and unwearied courtesy. He will long be held in high veneration and affectionate esteem by the citizens of our State. Judge Grover had an extremely incisive and far-seeing mind, and an industry perhaps unparalleled in our day, supported by a marvellous capacity for labor. The name of Judge Peckham is associated with the tragic fate of the steamship Ville du Havre, on which he perished in 1873 while going abroad in the endeavor to recuperate his health. These three judges had marked mental resemblances. Judge Allen was unquestionably one of the most accomplished lawyers who ever sat on the bench of this State, not only possessing extraordinary learning, but having a remarkable skill as a logician and unexcelled powers of expression. His opinions are an ornament to our jurisprudence. He also was prominent in politics before his accession to the bench, and like Chief Judge Church had held responsible State offices. The judicial career of these two men goes far to disprove the popular theory that a political aptitude and experience necessarily unfit the individual for the duties of the bench.[29] In these men at least the love of justice and the sense of duty completely sank the politician and the partisan. It should be here remarked that the constitutional device to keep the bench of this court non-partisan as to its members has resulted in these few years in a bench now composed, temporarily, at least, of four Republicans and three Democrats. Thus has its political complexion changed. It is believed by the members of the court, and probably by the great mass of thoughtful citizens, that the court under its original organization and now is as free from political bias as the imperfections of human nature will allow, and that its decisions have never been liable to the charge of being controlled or tinged by partisan motives. The Commission of Appeals did the work assigned to it effectually and satisfactorily. The original commissioners were John A. Lott, Robert Earl, Ward Hunt, Hiram Gray, William H. Leonard. Alexander S. Johnson, John H. Reynolds, and Theodore W. Dwight were subsequent commissioners. The Commission not only did the work at first assigned to it, but disposed of a large amount of business afterward sent to it by the Court of Appeals, under the authority of a subsequent constitutional amendment, extending its term two years. The inevitable effect of having a divided appellate court was observed in two or three decisions pronounced by the Commission which were discordant with nearly contemporaneous decisions of the Court of Appeals. The presiding justices of the general term departments of the Supreme Court have been Daniel P. Ingraham, Noah Davis, Joseph F. Barnard, Theodore, Miller, William L. Learned, Joseph Mullin. and the associates have been Albert Cardozo, George G. Barnard, John R. Brady, Noah Davis, Charles Daniels, Charles R. Ingalls, Jasper W. Gilbert, Abraham B. Tappan, John L. Talcott, Jackson O. Dykman, Platt Potter, John M. Parker, Augustus Bockes, Douglass Boardman, Thomas A. Johnson, E. Darwin Smith, James C. Smith, George C. Barrett, Charles Daniels. The other names in the Supreme Court of this period are Enoch L. Fancher, Abraham R. Lawrence, Charles Donahue, Calvin E. Pratt, Peter S. Danforth, Theodoric R. Westbrook, A. Melvin Osborn, Joseph Potter, Judson S. Landon, William H. Sawyer, Charles O. Tappan, George A. Hardin, Milton H. Merwin, James Noxon, William Murray, Jr., Edwin Countryman, David L. Follett, Celora E. Martin, David Rumsey, George W. Rawson, James L. Angle, George Barker, George D. Lamont, William H. Henderson, Albert Haight, Francis A. Macomber, Erastus Cooke, John C. Churchill, Edgar M. Cullen, William Rumsey, Charles C. Dwight. In reviewing the working of the judiciary article of 1870, the following may be said to be the practical results: First, the Court of Appeals barely keeps up with its business by dint of the hardest exertion. There are no arrears of over one year in this court. Unpreferred causes are reached and disposed of in about a year. This result is at the expense of the health of its members, it is feared. It is undoubtedly true that the four deceased members shortened their lives by the enormous work of their later years. To enable the court to keep pace with the business, appeals to it were limited, in 1874, to cases involving at least $500, exclusive of costs, unless certified by the general term to involve important questions of law. An effort to increase this limit to $1,000 has recently been made, but was defeated. It is a grave question how long the court can continue to keep up with the rapidly accumulating mass of appeals without detriment to the public service. Second, the Supreme Court is not keeping up with its business, either at the trial or general terms. The general terms, in particular, are sadly overworked and heavily in arrears. In three of the departments, at least, the calendars are about as heavy as in the Court of Appeals, with three judges instead of seven to dispose of them, and without the benefit, which the ultimate court has, of a careful review of the cases by a lower appellate court. As to the trial terms, it is estimated that at no time are there less than some 10,000 causes on the calendars undisposed of. A recent investigator has declared that the litigation of our State is larger than that of England.[30] At all events, it is apparent that the judicial force of the Supreme Court is quite unequal to the enormous amount of business, and that at no distant day some new provision must be made; but whether an increase in the number of judges is necessary, or whether the desired result can be attained by a new system of distribution, is considerably mooted.[31] Third, on the other hand, it is thought that the county judges—certainly in the counties where they do not act as surrogate—are not occupied to any thing like the reasonable extent of their capacity. The enlargement of jurisdiction of the county courts has not relieved the Supreme Court, and nothing will probably divert business into those courts except a compulsory provision of jurisdiction or a denial of costs in certain actions brought in the Supreme Court. Fourth, the increased length of the term of judicial service is thought to be an improvement. Fifth, no serious fault is found with the limitation by reason of age. Justice has been done to judges removed by joint resolution of the Legislature, for causes not involving moral delinquency, by continuing to them one-half the salary for the unexpired balance of their terms, during their lives, not exceeding three thousand dollars a year (Laws of 1881, chap. 62); and to judges retired at the age of seventy, and who have served ten years, their salary is continued for the remainder of the term for which they were elected (Constitutional amendment of 1880). During the period in question the Code of Civil Procedure received extensive amendments and additions, by a commission appointed to revise the statutes, consisting of Messrs. Montgomery H. Throop, Sullivan Caverno, Nelson J. Waterbury, James Emott, and Jacob I. Werner, so that it now comprises not only the substantials of the Code of 1848, but all the matters relating to procedure, scattered through the Revised Statutes, the session laws, and the court rules, and forms an entire law of civil practice. The first nine chapters of this revision went into effect September 1, 1877, and the last thirteen chapters, September 1, 1880. The necessary construction of this has already cost the judiciary considerable labor, which is not yet ended. At the session of the Legislature in the present year (1881), after a lapse of sixteen years, the Penal Code and the Code of Criminal Procedure became laws, the former to take effect May 1, 1882, the latter September 1, 1881. These laws will necessarily pass through a period of construction, amendment, and reconstruction, devolving fresh, perplexing, and onerous labor on the judiciary. Three of the steps toward general codification, contemplated by the Constitution of 1846, have been made. It seems not improbable that the remaining step, the adoption of the proposed Civil Code, will be taken at no very distant day. It has already become the law of sixteen States, and it would seem that its parent State will not much longer deny it recognition. When this event takes place, a third period of construction will open to the judiciary, of vast extent and the gravest importance. Thus it is evident that our judiciary have great responsibilities and unparalleled labors before them. In reviewing the moral history of our judiciary there seems to be but one conspicuously dark spot. It has been remarked that the question of the policy of returning to the appointive mode of choosing the judges was submitted to the people in 1873. At this period many had lost faith in the public virtue in this regard. Two or three of the judges had proved grossly delinquent in their high trust. It is noteworthy, however, that they were all in the same locality, and subject to the same malign local political influence, which for a time seemed likely to corrupt all the fountains of legislation and administration. Outside that particular locality the breath of suspicion never attached to the judiciary. While the history of the Tweed rule, and the offenses of the judges alluded to are in one sense a deep shame and disgrace to our State, they at the same time have afforded a striking and tremendous vindication of the public virtue and outraged public sentiment, which sent the great political intriguer and corrupter to prison; impeached, deposed, and forever disqualified from office one judge, and compelled the resignation of two others. It is not improbable that the judges might have risen to the bench by appointment as well as by popular election. They were of fair repute when elected, and two of them, in spite of their unpardonable offenses, did much useful and intelligent judicial service. At all events, the history of that time shows the existence of a lively popular conscience and an inexorable popular sense of decency, honor and justice in the public service. The people exhibited a morality superior to partisan feeling and appeals, and it is not likely that the lesson learned by their servants at that period will need to be repeated. A republic that so nobly rose to such an emergency need never be despaired of. It is frequently alleged that our courts of justice have declined in ability and usefulness. Much of this feeling is the natural spirit of the laudator temporis acti. It is undoubtedly true that their adjudications are less widely influential abroad than they were half a century ago,[32] but this is mainly due to the fact that they were then the most important of a very few. Her judges were few, and their judgments would have been received as authoritative even if they had not been men of great abilities. In our day, the jurisprudence of other communities has been settled, and they have able judges of their own. In our own State the particular talents of the judiciary are perhaps lost sight of in the great number of judges, and it may be there are none who tower above the high average. It would be strange, indeed, if our judiciary, having the advantage of the accumulated wisdom of their predecessors, should allow the courts to decline in usefulness and learning. Such is an outline of the judicial history of New York, from the humble beginning under the simple Dutch colonial rule, for two hundred and fifty years, to the present time, when she has become the most populous, wealthy and influential of the American States. In a material view she is indeed the Empire State. It would be arrogating too much to claim for her the Empire in Law. Fortunately for the happiness of mankind, the best jurisprudence does not depend upon material resources, or great aggregations of population. But owing to the great men who early formed our jurisprudence, New York has made law not only for herself, but for most of the other States of the Union. Her judgments and those of Massachusetts have always been the most influential upon the nascent jurisprudence of the younger States. Her adjudications have long been listened to with deference even in the mother country, and this has grown rather than lessened down to this time. Her reforms in procedure alone have entitled her to a marked pre-eminence. She has always been creative in the domain of the law. With a decent conservatism, she has at the same time headed the advance of legal reform, and still marches in the van. That the laws which her lawyers have devised; her Legislature has enacted, and her judges have construed and enforced, are now ruling a large part of the English-speaking world, and have even been adopted by our venerable mother country, is a prouder and more durable achievement for our State than all her material glory and power. Her judiciary have been the most numerous of any of the States. They have had the largest and the most various interests to protect, and the most intricate legal problems to solve. Great lights have shown from her bench, in every period, like beacons visible from afar, illuminating even the shores of foreign lands. In all times the mass of her judges have been just, humane, and God-fearing men, of good report, not greedy of gain, not ambitious of power, not anxious for fame; learned in the law, cultivated in letters, untiring in duty, unswerving from right, passionate lovers of justice and liberty. The names of most of them have been and can be but little known to fame, but their work has been a worthy part of the heritage of which the State is proud. Their reward is in her prosperity, glory, and happiness. |
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 The Historical Society of the Courts of the State of New York | |