| "The Foundations
of the New York State Supreme Court" | |
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The Seeds of Due Process The 1691 enactment was more than a vehicle for court reorganization. It contained the seeds of due process. Although the Crown's charge to Governor Sloughter to set up a judicial system speaks of "our rights" (i.e., those of the Mother Country), and is aimed principally at the preservation of order and obedience, the directive is not without a lofty conception rooted in Magna Carta and the English Petition of Right of 1628: The Crown instructed Sloughter to "take care" that "life, Member, Freehold or Goods" not "be taken away or harmed in our said Province, otherwise than by established and known Laws, not repugnant to, but as much as conveniently may be agreeable to the Lawes of this our Kingdome of England..." (emphasis ours). This concept of a Rule of Law evolved along with the colonists craving for liberty that underlay the Zenger free speech trial of 1735, and ultimately erupted in revolution in 1776. New York's Constitution of 1777, our first, was written largely by John Jay, Robert Livingston, and Gouverneur Morris. It perpetuated the Supreme Court of Judicature and gave it veto power over legislation. (Yes, veto power.) This Constitution also created a Court for Impeachment and the Correction of Errors, to consist of the Senate, the Chancellor and the Supreme Court Judges. It is a fascinating document, not only for what it changed, but also for what it preserved, and for its having been written at a convention that travelled from White Plains to Harlem, King's Bridge, Phillip's Manor, Fishkill, Poughkeepsie and Kingston, eluding the danger of attack and capture by the British. Understandably, it is redolent with expressions of newly acquired political and religious freedom, and even includes the Declaration of Independence, but its drafter felt no need to cast off existing legal concepts. Detached from the Crown, the system of law was a fit legacy from England, and the Constitution expressly adopted the English Common Law, as it existed on the date of the Battle of Lexington, subject, of course, to legislative alteration.[12] By so doing, the drafter incorporated the English Bill of Rights of 1689 as apart of the law of New York. The words of the English Charter of Right appear in Section XIII of the Constitution of 1777, proclaiming that "no member of this state shall be disfranchised or deprived of any rights... unless by the law of the land..." (emphasis ours). The recorded history of the Supreme Court of Judicature does not truly begin until the turn of the century when James Kent joined the court. He served as its Chief Justice from 1804 until 1814, when he became Chancellor. Before that, no reliable records exist.[13] The first Supreme Court reporter was appointed in 1804, and it is his reports, and those of his contemporaries, that leave their rust colored dust on our palms and fingers, as we lovingly open the volumes of Caines reports, Coleman's Practice and Johnson's cases. Caines's first volume (1 New York Cases in Error) deals overwhelmingly with property and procedure. Even the two sauciest index headings reveal as much. Under Distress one is told to see Insurance. Under Robbery, see Executor. From this period until the constitutional convention of 1821, one of the Supreme Court's most illustrious cases was People v. Croswell, 3 Johnson's Cases 337 (1804), in which Justice Kent ruled in favor of Alexander Hamilton, who argued that the liberty of the press includes a defense of truth to a libel charge. The Constitutional Convention incorporated the concept into the Constitution of 1821. This Constitution, our second, did not bring major change to the Supreme Court, save for one feature. By abolishing the Council of Revision, the court, which then consisted of three judges, no longer enjoyed veto power over legislation. The action was taken to extinguish the "ill-assorted alliance" between the legislative and judicial branches, and while we may occasionally decry the political and economic weakness of the third branch, the experience with judicial veto power seemed to have brought its own set of woes.[14] Under the Constitution of 1821, the State was divided into eight circuits, with all higher judicial appointments made by the Governor with the consent of the Senate. This "Second Constitution" took the circuit system then in operation and localized it into district divisions which evolved, in 1846, into judicial districts. The circuit judges were trial judges, and appeals from their judgments were taken to Supreme Court, to Chancery, or to the Court for the Correction of Errors. The Second Constitution remained in existence for 24 years, until 1846, a period in which the State, aided by its canal system, was said to have enjoyed almost unexampled prosperity. As a prelude to the Third Constitution (1846), four successive governors advanced the need to reorganize the court system "to prevent the delays which amounted to a denial of justice" on the ground that the Supreme Court was "oppressed with business." The Court for the Trial of Impeachments and Correction of Errors, which was akin to the English House of Lords, and which had been criticized for almost never declaring a statute unconstitutional (possibly because the senators were members of the court) was abolished, and in its place arose a Court of Appeals, composed of eight judges, half of them elected, half of them appointed from among the Supreme Court Justices — a device designed to satisfy our concomitant thirsts for democracy and experience. When the ancient Court of Errors fell, there also fell the prohibition against Supreme Court judges
 New York City Hall, Seat of Colonial Supreme Court. Completed in 1703, the New York City Hall housed the terms of the colonial Supreme Court. The Zenger trial occurred here. Drawing in the New York Historical Society. Permission to reproduce by New York Historical Society.
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 "The Trial of John Peter Zenger resulting in the victory for the free press," print by David C. Lithgow. This recreation of the Zenger trial depicts attorney Andrew Hamilton, the original "Philadelphia lawyer," arguing in favor of Zenger's right to publish a newspaper critical of the royal governor. Though Zenger was acquitted of criminal libel charges, the trial did not establish a legally binding precendent. Artist's presentation print. Permission to reproduce by New York State Library.
voting to support their own judgment in cases which had previously come before them (see Pierce v. Delameter, 1 NY 3 (1847)). The interdiction was revived through the 1867 constitutional amendment. "[T]here is nothing to exempt the wearer of the ermine" from the frailties of human nature, as one historian put it.)[15] The 1846 Constitution abolished the Court of Chancery and vested the Supreme Court with equity jurisdiction.[16] It also established eight coordinate appellate tribunals, a condition that led to discordance and was remedied in 1870 with the creation of four departments, and a "General Term" that later became the "Appellate Division of the Supreme Court." The Constitutional court reorganization of 1846 signalled an era in which the population wanted to see the judiciary as more representational than aristocratic. Nothing reflects this mood more than the mandate that Supreme Court Judges be chosen by the voters, commencing 1847, for eight year terms. Until then, the number of Supreme Court Justices had been no more than five. In 1847 there were three. In 1848, following the reorganization, there were thirty-two elected Supreme Court Justices, four of whom served on the newly formed Court of Appeals. Jacksonian democracy had arrived. The Supreme Court was to be "The People's Court" supplanting what the population regarded a "feudal" domain, occupied exclusively by the high born and privileged.[17] If we were to look for decisional law evidence of the evolving relationship between the citizen and the government, it may be found in the employment of the due process concept itself. Although the majestic phrase, due process of law, made its American debut in chapter 1 of the Laws of 1787, and in l788 had been advanced in Poughkeepsie by delegates John Lansing, Jr. and Melanotos Smith at the convention to ratify the United States Constitution, its first Supreme Court appearance in a reported New York case may have been in Thomas v. Woods, 4 Cow. 173, 182 (1825) where it was used in a fleeting, peripheral context. We next see it in Mtr. of John and Cherry Streets, 19 Wend. 659 (1839), where Supreme Court Justice Esek Cowen breathed some life into the phrase, as did Supreme Court Justice Greene C. Branson, in Taylor v. Porter and Ford, 4 Hill 140, 146 (1843), with regard to the encroachment by the government on individual property rights. As late as 1835 in The People v. Morris, 13 Wend. 325, 328, New York Supreme Court Chief Justice Samuel Nelson could comment that New York State has no Bill of Rights. It is not until after its appearance in the Constitution of 1847 that we see decisional application of due process of law in a way that more closely resembles today's usage. In 1866 Supreme Court Judge Ransom Balcom in Mtr. of Janes, 30 How. Pr. 446, held that the petitioner was denied State and Federal due process of law under a statute which, upon an ex parte application, authorized a year's commitment for inebriates, with no provision for examination or legal adjudication. By virtue of the Constitutional Convention of 1867, the Court of Appeals was reorganized in 1870, giving it seven elected members with 14 year terms, as it has today, except that its membership rose to between eight and ten, enhanced by additional Supreme Court judges who were appointed to the Court of Appeals under an 1899 constitutional amendment to Article VI, Sec.7. It also extended the term of Supreme Court Justices from 8 to 14 years. The General Term of the Supreme Court lasted from 1870 until our Fourth Constitution in 1894, when it was abolished and replaced, in 1896, by the Appellate Division of the Supreme Court, whose members were appointed, as they are today. The Fourth Constitution (1894) also abolished Courts of Oyer and Terminer, Circuit Courts, the New York City Superior Court, and Court of Common Pleas, the City Court of Brooklyn, and the Superior Court of Buffalo, and folded them all into the Supreme Court. An 1896 statute and a 1915 constitutional amendment authorized the Appellate Division to set up Appellate Terms. The Constitutional Convention of 1915 proposed a number of changes, which the voters rejected, but in 1921, one of the proposals for creation of Children's Court and Domestic Relations Court was passed. The constitutional provision regarding the jurisdiction of the Supreme Court, with alterations in 1925, 1947, 1953, 1962, and 1977, has not changed substantially since the Fourth Constitution of 1894. For three centuries, under the banner of due process, the Supreme Court has delivered justice to its recipients, through periods of revolution, stability, depression, prosperity and war. We mark this tricentennial as a celebration of the Supreme Court's enduring commitment to excellence, and to the Rule of Law. Looking at the composition of the court over its first two and a half centuries, and comparing it with its current membership, it is reassuring to see that the theme of due process not only emanates from its decisions, but also is now part of the fabric of the court itself. The men and women who comprise its membership today have brought to the court a rich diversity that we hope will grow, and continue to enhance its texture. |
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Footnote 1:Justice Supreme Court, Appellate Division, Second Department. Footnote 2:A.M. Earle, The Stadt Huys of New Amsterdam, Hail Moon Series, Papers on Historic New York, M.W. Goodwin, ed., p.1 (New York, 1896). Footnote 3:M. L. Booth, History of the City of New York, pp.135-136 (New York: W.R.C. Clark, 1867). Footnote 4:The Records of New Amsterdam, From 1653 to 1674, Berthold Fernow, ed. (New York: Knickerbocker Press, 1897). Footnote 5:H. A. Johnson, The Advent of Common Law in Colonial New York, Selected Essays, Law and Authority in Colonial America, G.A. Billias, ed., pp. 80-83 (Barre, Mass: Barre Publishers, 1965); Law in Colonial New York: The Legal System of 1691, 80 Harv. L. Rev. 1757-72 (1967). Footnote 6:See, generally, P.M. Hamlin and C. E. Baker, Supreme Court of Judicature of the Province of New York, 1691-1704 (New York: The New-York Historical Society, 1952). Footnote 7:Albany Law Journal, March 15, 1879, p. 211. Footnote 8:See Joseph H. Smith, Appeals to Privy Council from the American Plantation (New York: Columbia University Press, 1950). Footnote 9:See R. H. Robbins, The Encyclopedia of Witchcraft and Demonography, p.355 (New York: Crown, 1959); C.A. Hoyt, Witchcraft (So. Ill. U. Press, 1989) (2d ed.). Footnote 10:II County Law, McKinney's Consolidated Laws of New York, pp. ix et seq.; see, also, L. 1790, ch, 18. Footnote 11:L. 1695, ch. 49, 1 Colonial Laws, 351-52. Footnote 12:Under L. 1788, ch. 46, New York State's Legislature declared English statutes inoperative. Footnote 13:2 A. Chester, Courts and Lawyers of New York, pp. 843-44 (New York:1925). Footnote 14:2 Chester, supra, p. 848. Footnote 15:2 Chester, supra, p. 696. Footnote 16:II Lincoln, The Constitutional History of New York, pp. 66-73, 146-163 (New York 1906). Footnote 17:See, generally, R. D. Niles, Are We Ready for a True Legal Profession in New York?, 22 New York County Lawyers Bar Bulletin 148-64 (1964-65). | |
 The Historical Society of the Courts of the State of New York | |
