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"The Constitutional History of New York ..." |
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[The New York Judiciary, 1777-1845]
There seems to be no permanency in our judicial system. Its fluctuations have been very marked, both in organization and in detail. In this respect it presents a striking contrast to the other great departments into which our government is divided. There has been little change in the executive from the beginning, except an occasional modification of the term, and in relation to specific powers. The legislature gradually increased in numbers under the first Constitution. In 1801 the senate was fixed at thirty-two members, and in 1821 the assembly was fixed at one hundred and twenty-eight members, and from those dates until 1895, when the first legislature was elected under the fourth Constitution, the only changes were those incident to reapportionment and alteration of senate and assembly districts. But the judiciary must necessarily lack the stability which characterizes the other departments, for the judiciary is the branch of government through which the rights of the people are principally asserted and enforced, and it must be sufficiently elastic to meet conditions presented by a growing population and constantly enlarging and shifting social, commercial, and political interests. So, from the beginning, our statesmen have manifested deep solicitude concerning the proper structure of the judiciary, and have devoted to this subject the most serious consideration. I have already pointed out in the chapter on the second Constitution some of the influences-and I think they may fairly be called sinister influences-which produced the judicial system constructed by the Convention of 1821. Chancellor Kent and three justices of the supreme court were members of that Convention, and gave to it the results of an extended judicial experience; but their advice concerning the reorganization of the judiciary was not heeded. The inadequacy of the judicial system then constructed was pointed out by Governor De Witt Clinton in his annual message to the legislature in 1828, only five years after the Constitution had gone into full operation. He said its "radical defects" were seated in the Constitution, and were beyond legislative cognizance, except by proposing amendments. He said it was a "fatal error" to separate "the judges who try the fact from the tribunals that pronounce the law" by "creating circuit courts as distinct and independent forums, and not as emanations from the supreme court." He urged the legislature to "prescribe such emollients as may mitigate, if not extinguish, the evils of the system." The subject from this point of view was not referred to again in executive messages until 1834, when Governor William L. Marcy, commenting on the judicial system, said it needed to be enlarged to meet the demands of accumulated business, and to prevent the delays which amounted to a denial of justice. At this session of the legislature an amendment was proposed, providing for two additional justices of the supreme court. Governor Marcy referred to the subject again in his annual message in 1835, and amendments were proposed, increasing the supreme court, creating a state superior court, to consist of a chief justice and four associate justices, and creating a superior court of common pleas with jurisdiction concurrent with the supreme court. Governor Marcy renewed his suggestions in 1836, saying that "something must be done for the public relief," by an amendment to the Constitution if necessary. Amendments were proposed at this session providing for reorganizing the court of chancery with five chancellors and five chancery districts, and for two additional justices of the supreme court. Again, in 1837, Governor Marcy urged the consideration of this subject, and recommended an enlargement of the supreme court and a reorganization of the court of chancery. Amendments on these subjects were again proposed, but the legislature apparently found it inconvenient or impracticable to give the subject the attention it deserved, and, on the 15th of May, passed an act authorizing the Governor to appoint three commissioners "to digest and report to the next legislature an adequate judicial and equity system." Jacob Sutherland, Thomas J. Oakley, and Daniel Cady were appointed commissioners, and their report was submitted to the legislature by the Governor at the opening of the session in 1838. They proposed several constitutional amendments for the purpose of reorganizing the judicial system, providing, among other things, for reducing the number of senators in the court for the correction of errors by one half, making only the senators of the third and fourth classes members of this court, providing for five chancellors and five chancery districts; for two additional justices of the supreme court; giving the legislature power to increase the number of chancellors and justices of the supreme court; continuing circuit courts, but authorizing their abolition by the legislature; grouping the counties in "common pleas districts," with a presiding judge in each, to be appointed by the Governor, and providing for the appointment of a commission of three members to dispose of certain pending business in the supreme court, and a like commission for the court of chancery. The commissioners' plan was not submitted to the legislature in the form of a proposed amendment, but a modified scheme was presented, revising the judiciary article, continuing the court for the trial of impeachments and correction of errors, providing for reorganizing the court of chancery and the supreme court by the appointment of not more than six assistant chancellors and not more than six assistant associate justices, creating a supreme court of common pleas with a chief justice and four associate Justices, giving the judges of the supreme court and of the supreme court of common pleas power to hold trial terms, and abolishing the office of circuit judge. Governor William H. Seward, in 1839, also referred to this subject in his first annual message, remarking that "every other vice of government is more endurable than delay in the administration of justice;" and that "delays of justice are not less demoralizing than injurious to commercial confidence, and destructive of enterprise." He recommended the abolition of the office of circuit judge, increasing the number of judges of the supreme court, with power to try both issues of fact and issues of law. He also recommended the creation of a superior court of common pleas, with concurrent jurisdiction and powers coextensive with those of the supreme court, and reorganizing the court of chancery with necessary additional chancellors. One of his arguments for dividing the power and responsibilities of the chancellor was that "the very nature of the controversies which come before him requires the collision of thought afforded by a judicial bench. The powers of the court of chancery are too vast, and its patronage too great, to be vested in a single individual without other responsibility than that provided by the Constitution." Referring to the court of common pleas, he recommended the abrogation of their administrative and political functions, by taking from them the power to appoint county treasurers, commissioners of deeds, and superintendents of county poorhouses. He said that "judges ought not to be compelled to be partisans," and that "democracy is a fallacy" if the supervisors cannot be charged with the power of appointment then vested in the court of common pleas. He also called attention to the large fees received by clerks of the supreme court, and the register, assistant register, and clerks of the court of chancery, remarking that "judges of the supreme court have descended from the bench to enjoy the golden streams supposed to flow into these offices." At this session of the legislature amendments were proposed increasing the number of justices of the supreme court, reorganizing the court of chancery, and revising the judiciary article of the Constitution. Governor Seward, in 1840, renewed his suggestions concerning the judiciary. He said the "reorganization of the court of chancery, with an abridgment of the jurisdiction and patronage of the chancellors, is alike indispensable to insure the personal security of the citizen, and to preserve the harmony of our judicial system. The proceedings in that court are attended with vexatious delay and intolerable expense. Questions of equity peculiarly demand the consultations of a bench, and the mass of appeals, interlocutory motions, and original causes, is too great for any one chancellor to hear and decide consistently with a proper discharge of the duties required of him as a member of the court for the correction of errors." He said that the benefits expected to be derived from the plan of circuit judges had not been realized, and suggested the expediency of abolishing the offices of circuit judge and vice chancellor, and the appointment of three chancellors, with co-ordinate powers, and additional justices of the supreme court. Amendments were presented at this session of the legislature, providing for the revision of the judicial system, including the election by the people of county judges and masters and examiners in chancery; but no amendment was passed. [pages 64-69]
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 The Historical Society of the Courts of the State of New York |