"The Constitutional History of New York ..."
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The Third Constitution, 1846

Vol. II (1822-1894), pp. 140-164

I have already called attention to the prolonged discussion on the subject of judicial reform which preceded the Convention of 1846, and a synopsis has been given of the numerous suggestions and proposed amendments intended to modify or revise the constitutional provisions concerning the judiciary. The importance of the subject was fully appreciated by the Convention, and the suggestion was made several times while the judiciary article was under consideration, that the reconstruction of the judicial system was the chief reason for calling the Convention. All agreed that the judicial system contained in the Constitution of 1821 should be superseded by one better suited to the large and expanding business interests of the state, and better adapted to produce harmony and unity in the administration of justice.

The Convention met on the 1st day of June, 1846. On the 12th a judiciary committee was appointed, composed of Mr. Charles H. Ruggles, Charles O'Conor, Charles P. Kirkland, John W. Brown, Ambrose L. Jordan, Arphaxed Loomis, Alvah Worden, George A. Simmons, Ansel Bascom, Orris Hart, John L. Stephens, George W. Patterson, and Thomas B. Sears. Several of the members of this committee had already seen extended legislative or judicial service, and some of them were afterwards chosen to important positions. Mr. Ruggles, the chairman, had already served fifteen years as circuit judge, and was, therefore, familiar with the existing judicial system. He was chosen one of the judges of the court of appeals at the first election under the new Constitution. Charles O'Conor, for many years one of the leaders of the New York bar, devoted his great talents to the work of the Convention, giving to it his close attention, and bestowing on it the results of a large experience in the practice of his profession. Mr. Brown, soon after the Convention, was chosen a justice of the supreme court, and held the office two terms. Mr. Loomis had already served as surrogate and county judge, and soon after the Convention was chosen one of the "commissioners on practice and pleadings " under the act of 1847 passed in pursuance of the 24th section of article 6. Mr. Worden was a member of assembly in 1842, when so much important financial legislation was enacted, and again in 1845, when the Convention was called; and in 1847 he was appointed one of the "commissioners of the Code " under the act passed in pursuance of §17 of article 1 of the new Constitution. Mr. Jordan had also been surrogate, district attorney, and attorney general. Mr. Hart had also served as surrogate.

The committee at once began the work of preparing a judiciary article, but it was not submitted to the Convention until the 1st of August. The great diversity of views on the subject, as already indicated in the sketch of the preliminary discussion, prior to the Convention, further appears from the fact that several reports were submitted, stating plans for the revision of the judiciary article. There was a majority report, three minority reports, and several independent propositions. Some debate was had on the presentation of the majority and minority reports, and the general consideration of the subject was begun on the 10th of August, and continued a month, with scarcely any interruption. The plan submitted by the majority of the judiciary committee included a court for the trial of impeachments, a court of appeals, composed of eight judges, four to be elected by the people, and four to be designated from the justices of the supreme court having the shortest time to serve; and a supreme court, with eight judicial districts and general and special terms in circuits. The majority plan provided for thirty-two supreme court justices, -four in each district, - and authorized additional judges in the first district, composed of the city of New York. The plan also included justices' courts and other inferior courts of civil and criminal jurisdiction, to be established by the legislature. The majority report proposed to abolish county courts, and it provided no substitute for them.

Charles O'Connor presented a minority report, vesting the general judicial power of the state in the supreme court and other inferior courts, subject to the appellate jurisdiction of the court of appeals. It provided for dividing the state into not less than eight not more than twelve districts, in each of which a judge of the court of appeals should be elected. The court of appeals was to consist of the lieutenant governor, the judges so elected by districts, and any two judges of the supreme court. The lieutenant governor, when present, was to preside. This would have made a court of not less than eleven nor more than fifteen members. The supreme court was to consist of a chief justice and twelve justices. The plan also provided for three or more judges for each district, to be chosen by the supervisors of the towns and wards in the district, who, for this purpose, were to meet in joint convention. The plan provided for county and justices' courts. Appeals might be taken from the county court to the court of appeals. The justices of the supreme court were to be chosen by the senate and assembly, on joint ballot. County judges were to be appointed by the boards of supervisors, and justices of the peace were to be elected by the people. This plan required the enactment of a code of civil procedure within two years. County courts might be held by a district or county judge, and general sessions of the peace might be held by any three district or county judges, or by one of them and two justices of the peace.

Mr. Kirkland also presented a minority report, providing for a court for the trial of impeachments, a supreme court of appeals, superior courts, circuit courts, surrogates' courts, county courts, and justices' courts. Under this plan the supreme court of appeals was to be composed of seven judges, three to be elected by the people, and four to be appointed by the governor and senate. The senior in years of the judges should preside. This plan also provided for six judicial districts with a superior court in each, composed of four judges, two of whom were to be elected by the people, and two by joint ballot of the senate and assembly. The judges of the court of appeals and the superior court judges might hold courts in any district. There were also to be general and special terms of the superior court, substantially according to the plan of the majority report relative to the supreme court. The Kirkland plan authorized the transfer of causes from one district to another, and fixed the term of the judges of the supreme court and of the superior court at ten years. County courts for the trial of civil causes were to be held by district judges. The plan provided for four of these judges in the first district (New York) and one in each of the other districts. Such judges were to be chosen by joint ballot of the senate and assembly. In criminal cases the two county judges were to be associated with the district judge. This plan also provided for a first judge and associate judge in each county, to be elected by the people. The first judge was to be surrogate. Appeals from county courts were to be taken to the superior court, and a judgment of affirmance was final. Justices' courts were continued, but the right of appeal from these courts was abolished; the plan provided for a rehearing of a case as a substitute for an appeal.

Mr. Bascom also presented a minority report providing for a court for the trial of impeachments, a supreme court, surrogates' courts, and justices' courts. The supreme court was to be composed of thirty two judges, with powers and jurisdiction to be established by the legislature. The plan provided for eight judicial districts, each to be composed of four senate districts. This plan provided for a final review of causes in the supreme court by an "appeal session," to be composed of the supreme court judges whose terms of office should be within one year of their termination, and this appeal session was to hear appeals from the supreme court "banc session," which was substantially like the general terms provided in the other plans. It will be observed that all these reports proposed to abolish the court for the correction of errors, and the court of chancery. The necessity of a court of final review, to take the place of the court for the correction of errors, was universally conceded, and all the plans provided for such a court. The abolition of the court of chancery involved vesting its powers in another court. The Convention was not unanimous in the opinion that law and equity powers could be appropriately blended in one tribunal, and it was only after prolonged debate and minute discussion that a majority of the Convention agreed to vest the supreme court with general jurisdiction in law and equity.

It will doubtless be most profitable to consider each court separately, stating the result as embodied in the Constitution.

1st. The court for the trial of impeachments. - Under the first and second Constitutions this court was composed of the president of the senate, the senators, the chancellor, and the judges of the supreme court, or the major part of them. The abolition of the court of chancery, and the reconstruction of the supreme court, by the Constitution of 1846, required a change in the composition of the court for the trial of impeachments; and the judges of the court of appeals were substituted for the chancellor and judges of the supreme court.

2d. The court of appeals.- When the Convention of 1846 was called, there was a general, if not universal, conviction that the court for the correction of errors, or, as it was familiarly called, "the court of errors," had outlived its usefulness; that a court including one entire branch of the legislature, with only a very small minority of members representing the judiciary, was not the best form of a high judicial tribunal under our system of government, and that the semipolitical and semijudicial tribunal so constituted could not be expected to work out the best results in the administration of justice. Whatever might have been the advantages of this form of tribunal as illustrated in the English House of Lords, which was the model on which the framers of the first Constitution constructed the court, the radical difference in the official tenure and constitution of the upper branch of the legislature, the unwieldy size of the court, composed, in all, of thirty-seven members, under the second Constitution, and the fact that the majority of the senators were or were likely to be laymen, made such a court an incongruous element in any well-ordered judicial system. I have already called attention to the fact that, under the first Constitution, which provided for a council of revision, there was little occasion to ask the judicial tribunals to pass on the constitutionality of statutes, for the reason that the members of these tribunals, the chancellor and judges of the supreme court, composing a majority of the Council of Revision, had already determined the constitutionality of the statutes before they were passed. One ground of criticism against the court of errors, stated in the Convention of 1846, was that the court had never declared a statute unconstitutional. The reason alleged was that the senators, who controlled the court, were unwilling to declare unconstitutional a statute which they had passed, and which they must have considered constitutional at the time of its passage. An examination of the reported decisions of this court shows that the statement made in the Convention was not quite accurate; but it appears that only three statutes were declared unconstitutional by the court for the correction of errors, during its entire existence, from 1777 to 1847, - a period of seventy years. Of course, it is not to be assumed that the court sustained the constitutionality of statutes from the motive alleged in the Convention; but its record on constitutional questions furnished some ground for urging that a court should not be permitted to sit in judicial review of its own action as a political branch of the government.

The germ of the court of appeals has already been noted in a "court of review," suggested in an amendment proposed in the legislature in 1841. The idea of a court of appeals was also embodied in an amendment presented to the legislature of 1844, which provided for reorganizing the court of errors so as to make it consist of eight judges, one to be elected from each senate district. The Convention seemed to be unanimous in the opinion that there should be a central court, with power to review the judgments of lower tribunals, and thus preserve harmony in judicial decisions. The membership and tenure of the court, and the method of selecting its judges, presented questions which provoked serious and extended discussion, and on which there was a wide divergence of opinion. This diversity of opinion has already been noted in the several reports which came from the judiciary committee. It also appears from the various suggestions made during the progress of the debate. The majority view, which finally prevailed, divided the court into two parts, - one part to be composed of judge selected directly by the people, and another part to be composed of justices of the supreme court , designated by a prescribed rule; and these justices were to be chosen, not by all the people, but by the inhabitants of a particular district. The argument for this division of the court into two parts, presented by the majority of the judiciary committee, in substance was that the court of errors was divided into two parts, - one part, the senators, being elected by the people, and the other, the chancellor and judges, being appointed by the governor, - and it was thought that this distinction should be preserved in the new court, giving the people the right to elect one half of the court, leaving the other half to be supplied from the judges, either appointed by the governor or elected by districts, as the Convention might ultimately determine. Another reason for this division was that the judges elected by the people might come directly from the legal profession, without any previous judicial experience, while the judges of the supreme court, who would become ex officio judges of the court of appeals for stated periods, would bring to the higher court the results of judicial experience in the supreme court. This effort to construct a court composed of original and also secondary elements illustrates the conservatism of the Convention in its unwillingness to cut loose from tradition and experience, and create a new court on new lines. The reform proposed by the Convention, and embodied in the Constitution, was not complete. Its results did not justify the fullest expectations of its promoters. We shall have occasion to note, when the work of the Convention of 1867 is under consideration, the grounds of objection against the half-and-half court of appeals provided by the third Constitution, and the reasons which prompted a reorganization of the court, making it a making it a distinct and independent tribunal, uniform in its composition and in the method of selecting its members.

The opinion that a professional education was not necessary for high judicial position prevailed for a long period prior to the Convention of 1846. This is manifest from the long acquiescence in the court for the correction of errors, composed largely of laymen, and of the old court of common pleas and surrogates' courts, which also, in many counties, were composed of laymen. In this connection the fact should not be overlooked that, while the court of errors was in existence, some of its most valuable opinions were written by men without special legal training. This fact, which was known to members of the Convention, justified the assertion made by some of them, that there were many laymen amply qualified to dispose of questions relating to public affairs, and not depending on mere technical rules of law. The competency of laymen for high judicial position was suggested by Mr. Ruggles, chairman of the judiciary committee, who in his statement accompanying the majority report, concerning the election of judges of the court of appeals, said: "This preserves and continues in the court of last resort, a popular, and, as your committee believe a valuable, feature existing in the present court. The presence of a portion of laymen in that court, if such should be elected, - of men of extensive general knowledge and sound judgment, not educated to the legal profession, - may, in many cases, be useful. It may serve to correct the tendency which is said to exist in the minds of professional men, to be led away by habits of thought from the just conclusions of natural reason into the track of technical rules, inapplicable to the circumstances of the case, and at variance with the nature and principles our social and political institutions. The committee entertain no fears that a court so constituted will b unstable in its decisions, or that it will fail in paying all respect to uniform rules and established precedents." The opinion expressed by Mr. Ruggles was shared by other members of the Convention, who urged the importance of so constituting the court of appeals that prominent laymen might be chosen judges; and this view was maintained by delegates who were in favor of dividing the court, - half elected, half coming from the supreme court, - as well as by some who favored the election of the entire court, without bringing in justices of the supreme court.

This suggestion that judges of the court of appeals might very properly be laymen evidently did not find favor with the people, for without exception only lawyers have been deemed eligible to that tribunal. Since the Constitution of 1846 was adopted the legislature has frequently imposed the requirement of professional training as a qualification for local judicial officers, and the modern opinion on this subject is crystallized in § 20 of article 6 of the Constitution of 1894, which provides that "no one shall be eligible to the office of judge of the court of appeals, justice of the supreme court, or, except in the county of Hamilton, to the office of county judge or surrogate, who is not an attorney and counselor of this state."

Many of the delegates were in favor of a court of appeals independent of the supreme court and chosen either on a general state ticket, or by districts; some favored single districts, some double districts, some favored a court of eight, and some of twelve, judges; and it appeared that the judiciary committee, while preparing its report, at one time favored a court all of whose members should be elected directly by the people; but later revised its views, and proposed the plan of dividing the court as already indicated. After long debate this plan was adopted by the Convention. Some delegates, for the purpose of insuring a preponderance of elected judges, proposed a court of twelve, eight to be elected and four to be taken from the supreme court. There was also wide diversity of opinion on the proper term of office. The proposed term ranged from four to sixteen years. The suggestion was also made, for the purpose of avoiding centralization, that the courts should hold sessions at stated times in different judicial districts. The votes on various propositions submitted during the debate show that the judiciary committee was strongly supported by the Convention. The committee could usually muster from75 to 90 votes in favor of its propositions, while the opposition rarely exceeded thirty.

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