"The Constitutional History of New York ..."
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It was evident from the tone and scope of the discussion which preceded the Convention that the court of chancery must be radically changed or abolished. It had become inadequate to dispose of a large mass of equity litigation without great expense and delay. It had become physically impossible for the chancellor to keep up with the business, and the equitable jurisdiction of the court, at first administered somewhat liberally, according to the original idea of the court of chancery, had become crystallized in a body of law and rules apparently as inflexible as the common law. The two systems of law and equity thus growing up side by side were not calculated to produce a satisfactory and harmonious administration of justice. It was evident from the first that a large majority of the Convention favored the union of the two courts, and, while a few delegates clung to both courts, and advocated their continuance, the proposition to merge law and equity jurisdiction in the supreme court was adopted without a count. This vote determined the attitude of the Convention toward the court of chancery, and its abolition was the result.

The most serious discussion relating to the subject of the supreme court was the proposed merger of law and equity in one court; and when this was agreed to the rest was mere detail. The Convention was substantially unanimous in the opinion that the circuit judge system ought to be abrogated, and there was little discussion on this subject. There was considerable difference of opinion as to the number of judges, but the Convention, by a large majority, adopted the recommendation of the judiciary committee, fixing the number at thirty-two, to be chosen for eight years, from eight judicial districts, four from each, with a provision for a possible increase in the city of New York. The supreme court ceased to be stationary, but, combining the former circuit judge system and the supreme court, with modifications, circuits and special terms were to be held in each county, where an opportunity would be afforded to dispose of both law and equity business, with a right of appeal to a general term in the same district. An appeal could be taken from the general term to the court of appeals, which was the central and final judicial authority of the state, and whose judgments were intended to harmonize the possible conflicting opinions of the lower courts. The provision in a former Constitution was continued, prohibiting judges from holding any other office or public trust, with the additional provision that they should exercise no power of appointment to public office.

The office of justice of the existing supreme court was abolished from and after the first Monday of July, 1847. This provision seemed necessary, for the reason that the judges then in office held during good behavior, or until they should be sixty years of age and also for the reason that, under the new plan, the judges were to be elected by the people by districts, and the operation of the plan could not have been uniform if the judges in office had been continued.

4th. The county court. The court of common pleas was established by the same statute of 1691 that created the supreme court. By that statute the court of common pleas was to be held by a judge and three justices, appointed in each county for that purpose, or by any three of them, and it had jurisdiction of all common-law actions. By chapter 28 of the Laws of 1692, the jurisdiction of this court was limited by excluding actions concerning the title of land. Such was the court of common pleas when the Constitutional Convention of 1777 began its work. This Convention did not attempt to define the jurisdiction of the court, but incorporated in the Constitution some provisions relative to the appointment and tenure of county judges. The jurisdiction was continued under the new state government by operation of article 35, which continued in force the colonial statutes. In 1787 the legislature, by chapter 10, enlarged the jurisdiction of this court by including all actions, "real, personal, and mixed, suits, quarrels, controversies, and differences" arising in the county. In1801, by chapter 110, the jurisdiction was extended to transitory actions, although not arising in the county, and the court was also given power to grant new trials. The Constitution of 1821 did not define the jurisdiction of this court, but recognized and continued it, following substantially the provisions of the first Constitution. I have already noted, in the section on the judiciary, in the chapter on the second Constitution, the report of the judiciary committee of the Convention of 1821, recommending a county court with the jurisdiction then possessed by courts of common pleas, the right to hear appeals from judgments of justices' courts, and also with authority to admit wills to probate, and grant letters of administration; but the report was not approved in all its parts by the Convention, and the court of common pleas remained unchanged. The revision of 1813 continued the court with the same jurisdiction. The Revised Statutes of 1827-28 continued the court, with the powers and jurisdiction "which belong to the court of common pleas of the several counties in the colony of New. York, with the additions, limitations, and exceptions created and imposed by the Constitutions and laws of this state." In addition to this general provision the court was vested with the powers it had possessed since 1787. In 1837 the supreme court had occasion to consider the jurisdiction of the court of common pleas in Foot v. Stevens, 17 Wend. 483. In that case Judge Cowen said that, in point of subject matter, the jurisdiction of the court "is equal to that of the common pleas in England, and to that of this court in respect to civil actions, with the exception of actions local to another county. It is also a court of record. . . . No doubt that it is a court of general jurisdiction as to subject-matter, united with the character of a court of record, proceeding according to the general course of common law." This was the status of the court of common pleas as a part of our judicial system when the Convention of 1846 began its labors. The majority of the judiciary committee in that Convention proposed the abolition of the county court as then organized. The committee apparently adopted the suggestion made by Governor Seward, in his message in 1841, "that the courts of common pleas had, in a great degree, been deserted by suitors, and had the form and organization of courts of justice, while they enjoyed little of the popular respect due to such tribunals, and performed few of their important functions." Mr. Ruggles, in a statement accompanying the report, said that "in some counties, the county courts are efficient and useful in the dispatch of business. In others, it is said they are not so, and are complained of as a burden rather than a benefit to the county. In the trial of civil causes before a jury, experience has demonstrated that a single judge is more efficient than a greater number, and that those county courts in which the trial of causes is committed to some one of the judges give greater satisfaction to suitors than when they all take part in the trial" Charles O'Connor, a member of the committee, presented a minority report which continued the county court. In explaining the report he said that he "dissented from the majority in their resolution to abolish the county courts." He said, further, that he though it to be expedient not to annihilate the county courts because they were now inefficient, as indeed all the courts were. On the contrary, he deemed it a sounder policy to preserve, reorganize, and strengthen, so as to qualify them for the dispatch of business. By this means the greater portion of the business of the state would be performed in these tribunals. Mr Kirkland presented a minority report also continuing the county court with the jurisdiction it then possessed, and authorizing the legislature to confer equity powers on the court. Mr. Loomis said that the county court was "a court of little pretension but of great utility, one much more needed in the transaction of ordinary, necessary business than the higher tribunals." He proposed a plan for a county court to be composed of two or more justices, with jurisdiction to be established by law, and who should hold courts in different part of the county. Mr. Crooker proposed a county court without any original civil jurisdiction, but with appellate jurisdiction of all causes tried in justices' courts. The county judge and two justices of the peace were to hold courts of general session for the trial of criminal cases where the punishment could not exceed ten years' imprisonment in a state prison. Mr. Stephens proposed a plan which had been once agreed on by the judiciary committee, but which was not included in its report. This plan provided for a court of common pleas, and continued the jurisdiction then possessed by that court. The plan further provided for the election in each district of a "president judge" who should hold office for eight years, and preside in the court of common pleas in any county in the state. Mr. Crooker, after several suggestions by other delegates concerning the organization of the county court, which did not differ materially from the plans already noted, proposed a county judge in each assembly district, with jurisdiction to try petty offenses and perform the duties of a surrogate, and such other duties as might be required by law. He was to have appellate jurisdiction over justices' courts, but not original civil jurisdiction. Mr. Marvin proposed that the justices of the supreme court should hold county courts.

After the submission of several other propositions involving parts of the subject, and after considerable debate, a plan submitted by Mr. Crocker, as a substitute for the 13th section reported by a select committee, was adopted by a vote of 52 to 44. After some further discussion and amendment the section was finally adopted by the close vote of 52 - 44. After some further discussion and amendment the section was finally adopted by the close vote of 40 to 39, and appears in substance as § 14. Thus, by the narrow margin of one vote, the county court was saved from destruction by this Convention. While the court was saved, its jurisdiction was materially abridged. For more than one hundred and fifty years the court of common pleas had been a court of general jurisdiction. The constitutional provision adopted by the Convention deprived the court of any original civil jurisdiction, except in special cases, prescribed by the legislature.

The legislature, speaking through the judiciary act of 1847, declared that the county court "shall have power and jurisdiction to hear, try, and determine all matters and proceedings specially conferred by statute upon and heretofore triable and cognizable by courts of common pleas of the several counties." After conferring chamber powers on the county judge, the section closes with the declaration that "nothing in this section contained shall be deemed to confer original jurisdiction upon any county court, in any action known to the common law. " Jurisdiction was then conferred on the court in a large class of common-law actions against resident defendants, and also equity jurisdiction in several cases. Existing statutes conferring powers on the court of common pleas were continued and made applicable to the county court. This effort to vest in the new county court the jurisdiction possessed by the old court of common pleas failed to a large degree, for the reason that the court of appeals not long afterwards declared that the legislature could not constitutionally clothe this court with original civil jurisdiction. Chief Judge Bronson, in Grizwold v. Sheldon (1851) 4 N. Y. 581, expressed this view, but the point was not decided, because not deemed necessary in disposing of the case. This court also said in Free v. Ford (1852) 6 N. Y. 176, that the county court was not a court of general jurisdiction, as was the old court of common pleas: "On the contrary, it is a new court, with a limited statutory jurisdiction." The question came before the court again in Kundolf v. Thalheimer (1855) 12 N. Y. 593, where it was held that a provision of the Code of Procedure conferring jurisdiction on the county court in an action for assault and battery was unconstitutional; the court declaring that the legislature could not confer original jurisdiction on the county court in common-law actions. These decisions sustained the evident intention of the Convention, for it was the avowed purpose of some of its leaders to leave only two courts of original civil jurisdiction in ordinary cases; namely, the justice's court and the supreme court. The majority of the committee declared this purpose in the proposed judiciary article, and it was often stated in debate; and while the county court was restored in part, it was only to a limited degree, for the provision authorizing it was coupled with the express declaration that it should not have any original civil jurisdiction except in special cases. This purpose of the Convention is further manifest from the provision in §5 of article 14, that on the first Monday of July, 1847, jurisdiction of all suits and proceedings originally commenced, and then pending, in any court of common pleas (except in the city and county of New York), shall become vested in the supreme court; and that suits and proceedings commenced in justices' courts, and then pending in the court of common pleas, shall be transferred to the new county courts. Later constitutional amendments have enlarged and made more definite the jurisdiction of the county court, and an attempt was made in the Convention of 1894 to rehabilitate this court with its ancient powers and jurisdiction, but it failed, and this court continues as an inferior intermediate court of limited jurisdiction between the justice's court and the supreme court. It now has jurisdiction of a large mass of common-law litigation, but Governor Seward's remark in 1841, "that the court of common pleas had, in a great degree, been deserted by suitors," is still largely true, for comparatively few original actions are brought in the county court. It is quite possible that the Constitutional Convention of 1918 may conclude to consummate the purpose expressed by the majority of the judiciary committee in the Convention of 1846, and reiterated to some extent in the Convention of 1894,and abolish the county court, merging its general powers in the supreme court and in distinct surrogates' courts.

5th. Surrogates courts The Convention of 1846 the first time put surrogates into the Constitution. These officers and their courts were not mentioned in the first and second Constitutions. The surrogates' courts were, however, continued by operation of article 35 of the first Constitution. These courts were statutory courts, possessing, at first, powers and jurisdiction borrowed from English laws and customs, and which had gradually been developed from the jurisdiction conferred on the early Dutch governors and councils, through the colonial prerogative office, and several statutes passed during the colonial period. The earliest of these statutes was passed November 11, 1692. This act related to intestates' estates. It provided for the selection of two freeholders in each town, who were to inquire concerning the estate of a deceased person within forty-eight hours after his interment, and, if he left property not disposed of by will, to make an inventory thereof, and deliver it to the "supervisor" of such estate, appointed in each county by the governor. The supervisor was to take charge of the estate, and dispose of it for the benefit of those interested. The widow was entitled to administer the estate of her husband. This statute also provided that letters of administration and probate of wills should be granted by the governor, or by such person as he should delegate, under the seal of the prerogative office, and that wills in Orange, Richmond, Westchester, and Kings counties should be proved in New York by the governor or such delegate. In other counties testimony on the probate of a will might be taken by the court of common pleas, or in vacation, by the judges of the court, assisted by justices of the peace; which testimony, with the will, was to be certified to the secretary's office, at New York, except that where the estate did not exceed 50 the probate of the will or letters of administration might be granted by such court or judges. In 1750 the court and judges of common pleas in Orange county were authorized to grant probate of wills and letters of administration the same as in remote counties under the act of 1692. In 1772 the powers of courts and judges of common pleas were extended to the counties of Tryon, Charlotte, Cumberland, and Gloucester.

The provincial convention which framed the first Constitution apparently gave little attention to these courts. The first Constitution provided for the appointment of a clerk of the court of probate by the judge of said court, but surrogates are not mentioned, and there was no probate court by name at that time, the general powers in such cases being vested in the governor, who, as already noted, had authority to appoint a delegate, who was called a surrogate. In 1778 the governor's authority to grant probate of wills and letters of administration was transferred to a new officer, called the judge of probate, who was given all the power in these respects exercised by the governor during the colonial period, except the power to appoint surrogates, which power was vested in the Council of Appointment. The act of 1692 continued in force until 1787, - ninety-five years, - when it was repealed, and a general law passed, providing for the probate of wills, and settlement of estates. This law authorized the appointment of a surrogate in each county by the governor, by and with the advice and consent of the Council of Appointment, to hold during the pleasure of the council. Such surrogate had authority to grant probate of wills and letters of administration, and was given power to determine controversies on probate of wills or on granting letters of administration, subject to the right of appeal to the judge of probates.

The judge of probates was given jurisdiction in cases of nonresidents. The surrogates' courts and probate courts were required to proceed according to the course of the common law, except that they had no power to inflict ecclesiastical pains or penalties. Another statute on this subject was passed in 1801, but it did not materially modify the jurisdiction of the judge of probate or surrogate, but it established procedure respecting the sale of decedent's real estate for the payment of debts.

6th. Justices' courts. The Convention of 1846 materially enlarged the scope of the judiciary article, including several courts which had been recognized by former Constitutions, but whose jurisdiction had not been defined. Justices' courts belong to this class. Justices' courts are not mentioned in the first Constitution. These courts as such are not mentioned in the second Constitution, but provision was made in that instrument for the selection of justices of the peace by boards of supervisors and county judges. They were to hold office four years. It has already been noted that, in 1826, the method of selecting justices was changed by providing for their election by the people. The Constitution of 1846 provided for the election of justices of the peace, fixed their term of office at four years, but did not define their jurisdiction. While these courts were under consideration in the Convention, several delegates suggested that the jurisdiction be defined by the Constitution. Mr. Strong proposed that justices' courts be given exclusive jurisdiction to $100, and concurrent jurisdiction to $250. This was debated at some length, but the great preponderance of opinion was in favor of leaving the subject of jurisdiction to the legislature, so that it could be regulated from time to time as circumstances might seem to demand. The proposition to define the jurisdiction of these courts was defeated by a large vote.

In the section on the judiciary, in the chapter on the colonial period, I have given a brief sketch of the early courts, including justices' courts, prior to the establishment of courts by the first legislature, in 1683. The act passed May 6, 1691, relating to courts, re-enacted substantially the provisions of the act of 1683, relative to the powers and jurisdiction of justices of the peace. The jurisdiction has been enlarged from time to time, but these courts remain, as they have been from the beginning, courts of limited statutory jurisdiction, intended to afford the people inexpensive tribunals for adjusting minor controversies. The Constitution fixes the term of office, but it does not fix the number of justices to be chosen in each town; and while the general law provides for four justices, several towns have more than four.

7th. Miscellaneous. The Convention also included in the judiciary article several other provisions relating to the administration of justice. It gave considerable attention to the subject of testimony in equity cases. This subject provoked quite extended debate, and the delegates generally expressed their disapproval of the old plan of taking testimony by masters and examiners in chancery. The result was a provision (§10) that testimony in equity cases should be taken in like manner as in cases at law. Provision was also made for the removal of judicial officers, and for the erection of inferior local courts in cities, with civil and criminal jurisdiction, for the election of local officers in each county to perform the duties of county judge and surrogate, for reorganizing judicial districts after each state census, conferring on the legislature authority to regulate the election of judicial officers in cities and villages, making clerks of counties clerks of the supreme court, for the election by the people of the clerk of the court of appeals, prohibiting judicial officers, except justices of the peace, from receiving any fees or perquisites of office, authorizing appeals from certain city courts directly to the court of appeals, and for the speedy publication of laws and judicial decisions, but which were made "free for publication by any person."

Tribunals of conciliation. The Constitution also authorized the legislature to erect tribunals of conciliation. There was considerable discussion in the Convention over this provision, its advocates expressing the opinion that such tribunals could be made available as a substitute for the ordinary judicial tribunals; but the Convention declined to give these tribunals full judicial authority; their judgments were not to be binding, unless the parties to the controversy had. consented thereto in the presence of the tribunal. The provisions for a tribunal of conciliation evidently did not excite much interest among the people, for not till 1862, sixteen years after the Convention, was there any legislation on this subject. In that year a tribunal of conciliation was erected in the 6th judicial district, with a judge, to be appointed by the Governor and senate, and with a provision for two arbitrators in each county, to sit with the judge. The statute was limited in its operation to the term of the first judge, which was three years, and was repealed in 1865. The statutory provision for arbitration, which has been in force many years, probably affords all the tribunals of conciliation that are needed under our judicial system.

Codification. One of the most important subjects which engaged the attention of the Convention was the reform of procedure. Early in the Convention the necessity of such reform was stated by several prominent delegates, and as a result of this discussion a section on this subject was included in the judiciary article. The proposed union of law and equity in the same tribunal, the abolition of the court of chancery, with its complex system of procedure, all combined to impress the Convention with the necessity of a revision of procedure, and also the whole body of the law of this state. The result was the adoption of a plan in two parts, one, for the appointment of a commission to prepare a new code of procedure, and another, for the appointment of a commission to revise and codify substantive law. But, while history has justified the action of the Convention, the delegates were not unanimous in favor of codification: the final vote showed sixty for it and forty-five against it. The Code of Procedure of 1848 was one result of this movement for codification, and, while the plan to codify the whole body of law has not been consummated, there has been much piecemeal codification.

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