| "The Foundations
of the New York State Supreme Court" | |
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The Duke's Laws Superimposed on these two juridical systems was the English Common Law itself, which had its American roots in the "Duke's Laws," promulgated in Hempstead, Long Island, on March 1, 1665, shortly after the English took the colony from the Dutch, in 1664. There was not much of a celebration in March of 1965. The tricentennial was scarcely noted, if at all, but there is much in it worth celebrating. Considering that the English Common Law eventually survived the other early systems, the Duke's Laws established a cornerstone upon which the Judiciary Act of 1691, and, in turn, our present system of law, was built. The "Duke" was the Duke of York, later to become James II of England, who acquired New York colony as a gift from his brother, Charles II. He set down a code of law which by today's standards might seem quaint and odd, or even implausible, but there are also provisions that warm the heart. Consisting of some 75 pages, it calls for the establishment of various trial courts, with appeals to a Court of Assizes, the colony s highest tribunal. There is even a brief, mid-17th Century version of the CPLR, dealing with actions, costs, jury duty, and equity, and there is also a bounty for wolves. There are prohibitions against conflicts of interest, penalties for "causeless vexation," treble damages for inflated claims, a mandate for "speedy trials" and a law requiring that brewers had better know what they are doing. There is also, blessedly, an express provision for arbitration, a lasting vestige of Dutch law, as a device for settling suits. Beyond the Duke's Laws, the Bible Codes and the Dutch Mercantile Law, there was, in 1688, the Crown s grand plan to merge the courts of New York into a unified New England Dominion. Into this mix came militia officer Jacob Leisler in 1690. Following reports of the expulsion of James II, and purportedly acting in the name of William and Mary, he seized control of the colonial government and further attempted to reconstitute the judiciary. In all, we learn of there having been Manor Courts, an Orphans, and Surrogates Court, a Court of Governor and Council, a Court of Adjudicature, Patroons Court, Town Courts, Courts of Exchequer, General Gaol Delivery, Oyer and Terminer, Common Pleas, Prerogative, Admiralty, Assizes, Chancery, Courts of Constable and Overseers and Courts of Quarter Sessions of the Peace.[6] This was the history and condition of the colony and its courts in 1691 when Governor Henry Sloughter arrived, charged with the obligation of putting the judicial house in order, or, for want of a better word, merger, but without overhaul. In this fractious environment, it is remarkable that an orderly court system was created at all, the more so that the writing was reportedly completed in one afternoon by drafter James Graham. That it endured for many decades, may have been the result of Sloughter s method. Rather than impose a judicial system on the population, he authorized New York s colonial legislature to enact one, a decision that was the product of his insubordination, prescience, misunderstanding or political expediency (or all of the above), considering that his mandate from the Crown was to streamline the judiciary, while leaving it intact. He departed from the Crown's |
 Cover of the earliest Minute Book; New York Supreme Court 1691-2 Historical Document Collection. Library, Queens College Flushing, NY.
practice of having the Act of 1691 has been described as a masterpiece: the executive create the judicial system, by allowing the legislature, of the colony no less, to do so. in the eloquent language of historian Robert L. Fowler,[7] It was from the act of 1691 that the Supreme Court of this State inherited not only the traditions of the Saxon Aula Regis, but the best fruits of the centuries of English Law. So wise were the provisions of that early act of 1691, that the patriotic framers of the first State government recognized its creature, the Supreme Court of the Province, as an appropriate tribunal for a free people and a new order of things.... [I]t will be still the link which connected the judicial system of New York and the very dawn of English Law. The Judiciary Act of 1691 created the Supreme Court of Judicature of the Province of New York, and thereby unified, in one tribunal, the province s highest court of original jurisdiction, civil and criminal. The Supreme Court centralized the full range of cases that in England fell within the jurisdiction of the three great law courts: King's Bench, Common Pleas, and Exchequer. It was also granted equity jurisdiction concurrently with New York s High Court of Chancery, and could transfer to itself criminal and civil matters of other courts. Any doubts as to its being "Supreme" were dispelled by its status as the court of last appeal in the Province. After that, there was only the royal governor and the King.[8] The Court s work included a wide assortment of matters, with the notable exception of witchcraft, a concern that was keeping some Massachusetts courts very busy at that hour. For this departure we may again thank the Dutch, whose sober attitude gave us a disdain for sorcery prosecutions. In New York, we learn of only two such proceedings, one in Long Island, the other in Westchester. The Long Island case was the closer of the two. The jury intoned: "[H]aving well weighed the evidence, we find that there are some suspicions..." but the proof was insufficient to make a case.[9] To better suit the public's convenience, the Judiciary Act was soon amended to provide for "Circuit riding," with one Supreme Court Justice sitting with two local justices of the peace. We may wonder as to the enviable or unenviable travel assignments made, presumably by its first Chief Justice, Joseph Dudley, considering that Nantucket and Martha's Vineyard were then part of New York's jurisdiction, as were portions of Maine and the wilderness that was to become Vermont. Alas, shortly after 1691, we, who smile at the purchase of Manhattan for 60 guilders, relinquished Martha's Vineyard and Nantucket to Massachusetts, and later ceded Vermont to the Vermonters.[10] As for the practice of law, conducted by barely a score of lawyers, the Legislature identified a problem: The "Number of Attorneys at law that practice at the Barr in this Province are but few and that many persons Retain most of them on one side to the great prejudice and discouragement of others...." The lawmakers therefore resolved to administer justice more evenly, by decreeing that if one side retained more than two attorneys, the judge could direct the surplus attorneys to plead for the other side "Without Returning the fee Received."[11] |
 Pages of the earliest Minute Book; New York Supreme Court 1691-2 Historical Document Collection. Library, Queens College Flushing, NY.
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 The Historical Society of the Courts of the State of New York | |
