"History of New York State 1523-1927"
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For more than 100 years New York has been the leading State of the Union-the Empire State of the United States of America. Some will perhaps challenge this statement to her National leadership, and, it must be confessed, will be able to cite particular striking examples in refutation. As a matter of fact, every State has produced National leaders; and if New York has produced more, there is good reason why she should have done so-at least during the last hundred years, in which she has headed the States in number of inhabitants. When the first United States census was taken, in 1790, New York State had to be content with fifth place among the confederated States, for she had less than half as many inhabitants as Virginia, and less than Pennsylvania, North Carolina and Massachusetts. New York City was second to Philadelphia.

There was good reason, however, why New York State went ahead more rapidly than other States and thirty years later, in 1820, gained the premier place she has ever since held in federal enumeration Centrally situated, New York State was naturally an important pivotal point She became potential in inter-colonial relations as early as 1690, when delegates from Maryland, New York, Connecticut, Massachusetts, and Plymouth colonies gathered in New York City to hold a colonial congress- the first of the English period-to consider matters of defense against the common enemy. Again, in1754, win 1754e formation of a Colonial Confederation was advocated by Benjamin Franklin, the venue of the inter-colonial convention was in New York State. As the colonies drew closer to each other in the general resentment against Crown enactions, the influence of New York was powerful. Colden admitted, in 1765, that "whatever happens in this place (New York) has the greatest influence on the other colonies." John Morin Scott, a New York lawyer, through the medium of the New York "Gazette" startled the people of the American colonies, in 1765, to the consequence of non-resistance to the Stamp Act; he showed that if the colonies were denied the nights to which the English constitution ended them, the remedy lay in independence. Bancroft's summing up of the colonial situation of that time was that Virginia marshalled resistance, Massachusetts entreated talon, but that New York pointed to independence. A Continental Congress, which goes into American history as the Stamp Act Congress, was held in New York City. The Sons of Liberty, the patriotic society which became such a definite remedial factor, or at least a positive expression of the grim purpose of the people, in the last troublous years of the Crown period, had its inception in New York City, it is said, in an association of lawyers of that place formed in 1744. In innumerable ways from that time until the United States became a National entity, able to take its place among the sovereign powers of the world, lawyers of New York were in the van, leading the American people on to their destiny. Hamilton, Jay, the Livingstons, the Morrises, Clinton, Scott, Duane, Duer, Lansing, Benson, Yates, Burr, Kent-these and others are names of New York lawyers and jurists that are encountered in National records of the period before New York State assumed first place in United States population statistics. Hamilton's financial measures brought stability to a bankrupt Nation; Jay founded a judicial system which brought dignity and unity to a confederated group of suspicious, sensitive States; Kent, the Great Chancellor, came to the rescue of bewildered jurists and lawyers of floundering States who were groping for American precedents in the English law which still controlled American jurisprudence. As a memorial erected in Chancellor Kent's memory a century later^[93] stated: "He gave to the common law in its new home fresh vitality and power. He moulded from meagre precedents a noble system of equity jurisprudence and marked the lines of its growth for commonwealth and Nation." Another writer^[94] is even more positive in his eulogy of New York jurists and lawyers: ".... owing to the great men who early formed our jurisprudence," he writes, "New York has made law not only for herself, but for most of the other States of the Union." The judicial and legal history of New York during 150 years of New York State thus seems to be more important than that of the century and a half of the colonial, or provincial period. It undoubtedly is; yet, the record can be stated in fewer words. The State courts were, in fact, merely a continuance of the Crown courts; and except that the expansion of Bench and Bar has corresponded with the growth of New York during the last 150 years, and that the details of court functioning have assumed proportionate volume, there is not so much that could properly be brought into this review as there was in the formative happenings of the much less important provincial period. Few new courts have been established. The Court of Appeals is but a reorganization-very much more judicial, it is true-of the Court for the Trial of Impeachments and the Corrections of Errors which, in 1784, was formed to take the place of appellate courts of the provincial period. A Court for the Correction of Errors and Appeals was erected in 1691, and functioned to some extent throughout the Crown period, drawing its personnel from the Governor's Council, the higher legislative body, just as the Court of Errors of the State period drew its personnel mainly from the State Senate. The Supreme Court of the State is even more like the provincial Supreme Court, and the county courts are substantially the same as the Courts of Common Pleas which functioned in each county from 1691 to the end of the Crown period in 1775, and from the beginning of the State period to 1847. The laws, too, are basically the same. Therefore, it will be seen that the fundamentals of State jurisprudence have already been given in the review of provincial jurisprudence. There has been expansion and improvement in the judicial system; and in some instances the adaptation of English law to American needs has made American practice better than English, or at least has given distinctively separate precedents; but the fact remains: that Blackstone's Commentaries even yet cannot be dispensed with, notwithstanding that we have an American work, in Kent's Commentaries, worthy of place at its side. One eulogist of Kent recently asked: "Where, among all the judges who have been members of the highest State con do we find one who has influenced the development of our law to the extent that Kent did? By this standard we may venture the opinion that he was without a peer."^[95] "In measuring Kent's achievements and his influence, the remarkable versatility of his strong and analytical mind must not be forgotten. His influence was great in four widely different fields of the law-the Common Law, Equity, Constitutional Law, and International Law." Still, to define the elements of American law and jurisprudence would, in a measure, be but to repeat what has already been written in earlier sections of this review.

Fowler,^[96] in one of his masterly historical papers on American jurisprudence, describes the transition of the courts from provincial to State status thus: "The continuance of the Supreme Court of Judicature of the Province and the old Court of Chancery was evidently contemplated by the framers of the State Government . . . . It is possible that, with the reverence formerly felt for the common Jaw, the theory-that the jurisdiction of the fundamental courts was derived front the common law-obtained, and that they were considered as falling within such parts of the common and statute law of England as were adopted by the thirty-fifth section of the Constitution. However the fact may have been, these courts of general jurisdiction, in law and equity, continued substantially on their old foundations until the constitution of 1846." Provision was made in the first State Constitution for salaries of Judges, and the tenure of office was also definitely set; but in no more direct way were the courts of original jurisdiction brought into the judicial system of the State. No direct attempt was made to erect a State Supreme Court, for instance; the fundamental courts of the common law were considered as existing, though not in session, and that when in session the only difference would be that Dominus Rn would be supplanted by The People of the State of New York in court records. The fundamental courts were merely perpetuated or continued, notwithstanding that attacks had been made upon them during the provincial period for irregularity of establishment. "It is a noteworthy fact that both these high courts of justice, Supreme and Chancery, thus impliedly transferred to the new order of things, had been either erected or continued by virtue of ordinances promulgated by the royal Governors of the province without, and indeed contrary to the assent of the Legislature,"^[97] writes Fowler.

Constitutional history has been generally reviewed in an earlier chapter, and there is no need here to refer to more than that part of it which provides for the judicial department of government. Briefly, therefore, out of the efforts of earlier committees of citizens grew the Provincial Convention of deputies of the counties of New York, which was opened in New York City Hall on April 20, 1775. At that meeting, delegates were chosen to attend the second Continental Congress, in May, 1775, this action by the convention being taken after the New York Assembly-which had a Tory majority-had refused to name such delegates, or to recognize the Continental Congress. A Committee of Observation (or Public Safety) met in New York City on April 28, to organize a Provincial Congress to take New York affairs out of the hands of the Tory Assembly, which, as a matter of fact, was then moribund, and indeed never met again, after its adjournment for one month on April 3, 1775. The Provincial Congress, which met on May 22, 1775, can not be looked upon as positively belligerent; in fact, the invasion of Canada was condemned and resolutions were adopted favoring conciliation with England. Few called for an absolute cleavage but all were content to let the Continental Congress lead them out of the existing difference with the mother country. John Jay and others of New York had, on May 5, addressed a sympathetic English body, the Lord Mayor and Corporation of London, declaring that the colonists "could never submit to slavery," that, indeed, "all the horrors of civil war will never compel America to submit to taxation by authority of Parliament." But, as the latter half of that year and the first half of the next passed, the passions aroused by acts of war had drawn Americans-some very reluctantly-to the recognition that independence was the most probable outcome. In June, 1776, the Continental Congress had to face the trend squarely, and by July 2 the Declaration of Independence was adopted, the reasons for such action being approved on July 4. Five days later the New York Provincial Congress met at White Plains, and by unanimous vote referred the Declaration of Independence to a committee of which John Jay was chairman. An hour later, the committee reported back the resolution drafted by Jay, approving the Declaration, though deploring the necessity for it. Thus, the die was cast., Next day, July io, 1776, the Provincia1 Congress, by resolution became the Convention of the Representatives of the State of New York.

Although this was, in truth, the birth of the State of New York, a resolution was adopted on July 10, 1776, declaring that "the sovereign and independent State of New York" had actually begun its existence on April 20, 1775, upon which day the first Provincial Congress that was independent of Crown influence met It was resolved that no land grants made by the King of England after October 14, 1775, the day upon which Tryon, the last royal Governor of New York took refuge on board of a British man-of-wit, would be recognized as valid. The course of the State during the latter part of 1776 was chequered and exciting, and legislative matters were less engrossing than military exigencies. Governmental matters were mainly in the keeping of the Committee of Safety until March 5, 1777. On July 10, 1776, the convention, at White Plains, had provided for a .provisional judicial system by formally declaring that, until further notice, the common law and the statutes of England would continue in full force in the State of New York, just as, prior to April 20, 1775, they had existed in the province. On August 1, 1776 the convention held a session in a church at Harlem, and then appointed a committee to draft a permanent constitution for the State. John Jay became the chairman of this committee. The other members were Gouverneur Morris William Duer, Robert R. Livingston, Abraham Yates, Robert Yates, John Morn Scott, Colonel John Broome, John Sloss Hobart, Colonel Charles DeWitt, Samuel Townsend, William Smith and Henry Wisner. The committee was well chosen, and represented all shades of Republican thought. The radical tendencies of Scott were counteracted by the conservatism of Gouverneur Morris. The Livingstons and the Yateses were conservative, and John Jay seems to have been an ideal chairman, being neither conservative nor radical. If he veered to either side, it was probably in the direction of the conservative. The committee was asked to draft a constitution and report within a fortnight. Even in peacetime this would have been an unreasonable request; but in such a time and situation as they were then passing through, with an active British army only a few miles away, and a fleet of enemy ships in the offing greatening to ascend the Hudson River and isolate an important part of the American forces, there were other more pressing duties than the drafting of constitutions then before New York State leaders. As a matter of fact, Jay, when appointed chairman of the Constitutional Committee, was absent in the highlands of the Hudson, giving what advice he could to Clinton in the latter's task of constructing defenses at that point, to prevent the British from going further up the Hudson. Governmental details, even the drafting of a constitution, might well be set aside at such a time. The vigilance of a committee was needed then more in watching the Tories so numerously spread throughout New York and New England. Indeed, a few weeks after the Constitutional Committee was organized, another committee "for inquiring into, detecting, and defeating conspiracies against the liberties of America," was formed. Its personnel included John Jay and William Duer; and the committee had little time for much else until February of the next year, when a commission took over its duties.

During the month of March Jay and the other members of the Constitutional Committee centered their efforts upon that important task, and on March 12 reported to the Fourth Provincial Convention (or the First Constitutional Convention) a Constitution which, it is said, was drafted by Jay himself. It is asserted that "he preferred to do the major part of the work alone," and that for that purpose he had withdrawn from the convention, "and, indeed, from all contact or communication with his colleagues and in some sequestered retreat in the country" had given "his undivided and undisturbed attention to the task."^[98] Still, the other members of the committee were either lax in their attention to State affairs, or the assertion that Jay was the sole author of the Constitution is incorrect, for on that committee were some of the brightest minds in New York of that time, men whose mature years had been devoted to the cause of the people, and to the problems of government. It hardly seems possible that they would have remained mute and inert while Jay, alone, fulfilled a trust which was of such vital importance and had been vested in them as a whole. Unfortunately, only a fraction of the minutes of this important committee on government have been preserved,^[99] at least in State records, and the Constitution itself was in private hands until 1818,^[100] so that the procedure of the committee is not fully known. It appears, however, that the draft of the Constitution was entirely in Jay's handwriting,^[101] and that when it was debated in the convention only a few changes were made to the draft, "and of these nearly all were proposed by jay himself."^[102] Undoubtedly, Jay was the factor of most influence in the devising of the State Constitution; and, as chairman, he may have assumed the greater part of the labor of its preparation; but his was not the only opinion expressed in the draft submitted, we may be sure. Chancellor Kent, in 1821, credited Jay with the authorship, but Justice Thomas Jones, who held the last term of Crown court in White Plains, prior to the adoption of the Declaration of Independence, which ended the functioning of all Crown courts in New York, left manuscript^[103] in which he asserts that justice William Smith, who later deserted the republican cause and became Chief Justice of Lower Canada, was the main author of the New York Constitution. Again, John Adams, on the authority of James Duane, said that Jay based the Constitution on information contained in a letter from Adams to George Wythe, prescribing a system of constitutional government for a state. There is evidence that Gouverneur Morris, a member of the Constitutional Committee, differed emphatically from Jay as to some phases of the proposed Constitution. So, it hardly seems that John Jay can have been the sole author of our original system of State Government.

As a matter of fact, there was nothing notably original in the plan of government submitted by the committee to the convention at Kingston on March 12, 1777. Fortunately, demagogic impulses were not evident. The passions that war had stirred had not blinded the eyes of the framers of our Constitution to the good that was in the British Constitution. The passionate impulses that are so apt to come to men of fervent patriotism at such times did not impel them to overthrow all the old institutions. Jay and his associates had no American State Constitutions to aid them, and they did not pose as doctrinaires. With prudent wisdom they recognized that the Revolution was waged against the Crown and the distant Parliament in which they had had no voice, and not against the common law, nor the familiar institutions which, if in the keeping of the people, would serve them just as well in their new status as republican citizens as they would have as Crown colonists. The Constitution provided for a government having three coordinate departments, the legislative, the executive, and the judicial, principles of government distinctly Anglo-Saxon. The legislative houses, Assembly and Senate, followed the plan of the English houses, the Commons and the Lords; and there was even greater similarity in the judicial system. Fowler writes: "The transition of New York from the provincial condition to that of an independent state developed but few changes in the judicial establishment; it affected mainly the theory of the source from which the judicial power emanated." John Adams, in a reply to Mr. Turgot's strictures on the resemblance of the American Constitutions to the English model, explains, in substance, that the colonial plans of government were retained after the Revolution "because they were founded in nature and reason, and the people were attached to their familiar features."

The first section of the Constitution was debated in the convention on March 13, 1777. It gave the key to the whole instrument in the declaration "that no authority shall, on any pretense whatever, be exercised over the people, or members of this State, but such as shall be derived from and granted by them." Therein lay the difference between Crown and State administration of the same institutions. The sentiment seemed to suit the representatives of the people; so well, indeed, that the legislators, after adoption of the Constitution on April 20, 1777, did not seem to think it necessary to even consult the people as to the Constitution, the provisions of government under which they must henceforth live. The Constitution was never submitted to the people, nor ratified by them. It was merely adopted by the convention, which ordained that it should be the Constitution of the State. New York State was not alone in such irregular procedure. With the exception of the Massachusetts Constitution, all State Constitutions of ex-colonies of Britain in America came into force in much the same way as that of New York. While all legislators were apparently sincere in their affirmation of profound belief in the inalienable rights of the individual, there were few, throughout America, who were not convinced that the State Government established should so guard the rights of the responsible citizens-in other words, the landowners-that the irresponsible factions-e. g., the poor people-could not become disturbing elements. In this again they followed colonial precedents, for colonial government was basically government by the landowners. Indeed, in those times, the voice of the poor people was hardly heard; the franchise was not universal, and only men of estate were able to voice their grievances in the legislatures. This leads one to the thought that the cry of the people against the Crown was in reality the wail of the landowning class and other men of taxable means against the extortions of the Government. As a matter of fact, "in none of the first Constitutions of the original thirteen States did the people (if by the people those of no landed estate are meant) receive any consideration in either branch of the Legislature." John Jay's maxim, that those who owned the country ought to govern it, underlay every American Constitution. None but freeholders could vote for Senators. Despite the preamble of most constitutions, manhood suffrage was not to be found in any State; a property qualification was almost universal. It was not until about the beginning of Jefferson's administration that the States began to broaden the suffrage; and not until 1840 did the words People of the United States signify that the sovereignty was in the hands of the male majority.

Such a principle of government was not as inconsistent with democracy as, at first thought, it seems. Unlike the landed classes of other countries, American estate owners were mainly of the people. There were some aristocrats, and some immense landed estates-more in the Southern than in the Northern States-but in some of the States freeholders constituted a majority of the voters. In New York State, for instance, the census returns of 1795 showed 36,338 freeholders out of a total population of 60,017 voters. Outside they principal cities and centers of population land was cheap, and although the homesteader automatically came into the land-owning class, he did not necessarily at the same time become an aristocrat. Land-owning, therefore, had, and has, a different significance in America; and although government by land-owners was undoubtedly a class government, it was not inconsistent with the democracy upon which the republic was supposed to have been based. Of course, New York was one of the States in which change came rapidly, the growth of the "future London of America" soon startling those who advocated universal suffrage as well as those who opposed it. New York City had 21,000 inhabitants in 1773; it had 60,000 in 1801; 76,000 in 1806; and in 1820 it had 123,000. In 1821, when a new State Constitution was being debated, the proposition that all white men of major age be given the elective franchise received overwhelming support, notwithstanding that Chancellor Kent, who had a strong following, was convinced that a property qualification of at least $250, freehold, for all voters for State Senators should be retained. Justice Ambrose Spencer's argument, in 1821, against universal suffrage was that with it New York City would govern the State in less than a century. She could, undoubtedly, if other ways of counterbalancing elective preponderance had not been found during the century which saw New York City increase in population from 123,000 in 1820 to 5,620,048 in 1920. (New York State in 1920 had 10,385,227 inhabitants). Federal statistics show that while the land-owning (home-owning) class in the United States in 1920 embraced 45.6 of the occupiers, the same class in New York State then totalled to only 30.7 of the occupiers. As a matter of fact, there were 30.2 persons to a dwelling house in Manhattan in 1920, and about only one in fifty of the heads of families would be entitled to the franchise, as a landowner, if the Constitution of 1777 were still in force. The case was different in the first years of the State period, and the property qualification of elective suffrage was not then the grotesque inconsistency that such a voting restriction would now be in a democratic country. So one ought not to consider the constitution makers as quixotic in deciding to embody in the State Constitution the famous Thirty-ninth Article of Magna Charta: "No member of this State shall be disfranchised or deprived of any rights or privileges secured to subjects of the State by this Constitution, unless by the law of the land or the judgment of his peers."

The proposed State Constitution was debated in the convention until April 20, 1777, when it was adopted, and became the organic law of the State. Immediately thereafter a committee was formed to report a plan of establishing such a government. Probably the section of the Constitution destined to exercise the most potent influence in the political history of the State was that which provided for a Council of Appointment. This body was to consist of the Governor and four Senators, in whom was to be lodged, with few exceptions, virtually the whole power of appointment in the State. The power of removal also rested with them, and as a majority of the members constituted a quorum, nearly all State officials were to hold their offices by the pleasure of the Governor and two Senators. Electors of certain qualifications could vote for Assemblymen, and a more restricted body of electors could seat Senators and the Governor, but with these exceptions nearly all State offices, civil and military, were filled by appointment. Even mayors of cities were to take office by the will of the Council of Appointment. This all-powerful body, however, could not come into existence until an election of Assembly and Senate had been held; therefore, the convention, by an ordinance dated May 8, '777, appointed a Council of Safety, and invested it with all powers necessary for the administration until a meeting of the Legislature could be held.

The "distribution of justice" was one of the most urgent matters of business that came before the Council of Safety; and, as the Constitution had retained the provincial Supreme and County Court systems, the Council of Safety designated certain persons to fill the judicial offices temporarily. John Jay was appointed Chief Justice, pro tempore, and two associate justices were named (Robert Yates and John Sloss Hobart) to complete the Supreme Court bench. Robert R. Livingston was appointed Chancellor, and Egbert Benson was named attorney-general. These appointments were all eventually confirmed by the Council of Appointment.

Under the supervision of the Council of Safety, elections were held, and the returns showed that George Clinton had been elected to the Governorship. The twenty-four Senators began their first session on September 9, 1777, at Kingston, the seventy members of the Assembly beginning their initial session on September i The legislators elected a Council of Appointment, so as to legalize the temporary appointments made by the Council of Safety, but no laws were passed in the 1777 session, the military situation at that time being so grave and urgent as to call for most of their thought and persons. The first statute of the State of New York bears date of February 6, 1778. It was the act of ratification of "the proposed Articles of Confederation and perpetual Union between the United States of America," the New York delegates to the Continental Congress being authorized to sign the Articles-with the reservation, however, that ratification and signature would not become valid until the last of the thirteen States subscribed to the Articles. The thirteenth was Maryland, and she did not sign the Andes until March 1, 1781; therefore,. until that time New York State's ratification had no force.

The State Constitution of 1777, except as modified in 1801, remained in force for forty-four years. Sections 24, 25, 27, 28, 32, 33, 34, 35 relate to the establishment of courts within the State. In the case of the jurists the Council of Appointment had not absolute power, for the Constitution itself specified the term of office. After appointment by the Council the Supreme Court justices were to hold office, during good behavior, or until they should reach the age of sixty years. The judiciary thus was much more independent of political control than the incumbents of other State offices, though, as the years passed the Supreme Court justices became entangled in political affairs-to their detriment-through membership of the Council of Revision, which, for a while, exercised a veto on legislation. However, the "good behavior" tenure brought to, or held on, the bench some very eminent jurists, whose opinions had marked influence upon the jurisprudence of the other States.

The first term of the Supreme Court of New York State was opened at Kingston in September, 1777. That it was looked upon as merely continuing the provincial court is indicated by that fact that the minutes were entered in the old volume in which the records of the Crown court had been entered. Between the minutes of the session of April, 1776, under Crown auspices, and the session of September, 1777, under State judges, are a few blank pages; but nothing was written upon these pages to record the important change of status; and the only unusual entry in the minutes of Jay's State court that shows that any reorganization of particular significance that had occurred is in the change of title on the docket of the first case. Dominus Rex disappears, the party plaintiff being The People of the State of New York. There was great significance in some of the remarks of Chief Justice Jay. He opened the session on September 9, and the first charge made to any Grand Jury in the State, that which he delivered in that session to the Grand Inquest of the County of Ulster, a body of twenty-two of the most respectable citizens of that county, was "a chaste and beautiful piece of rhetoric," redolent of "liberty, justice and equality before the law." The Chief Justice took the opportunity of pointing to "the wonderful fact in human affairs": that "the Americans were the first people whom heaven had favored with an opportunity of deliberating upon and choosing the forms of government under which they should henceforth live."

Judicial administration in New York State during the Revolution depended mainly upon military exigencies. In regions of British control the Crown courts functioned to some extent, perhaps; and the fact that Jay held court in the county of Ulster in September, cannot be taken to mean that the county judicial system of the State was organized so early in all counties that were not in British occupation. Some were too near the theatre of war and others were still in the wilderness. Ulster County, in which Kingston, the temporary capital was, would naturally be the first to organize its judicial establishment.^[104] It is doubtful whether any of the courts functioned with regularity in those uncertain times. Kingston itself was destroyed by the British on October 16, 1777, although on the very next day a whole British army surrendered at Saratoga.

The Legislature convened in Poughkeepsie on January 5, 1778, in a tavern, or what was a tavern. Chapter XII of the State Laws, on March 16 provided more fully for the organization of the State departments, John Jay being confirmed as Chief Justice of the Supreme Court, and Robert R. Livingston as Chancellor of the State. On April 4, 1778, judicial stipends were fixed at rates which would at once brush away the thought that cupidity could be an impulse to ambition for judicial station in those days. The Chief Justice was to receive a salary of £300 per annum, equal to $750 New York currency. The associate justices were to have £200 ($500). In addition, the Supreme Court justices were to be allowed forty shillings each for each day of attendance on the Oyer and Terminer, and their travel fees. These were slender salaries, deplorably inadequate in wartime. Continental currency soon sank to abysmal depths, and New York currency, like that of every other State, deprecated deplorably. The New York Legislature need hardly be deemed to have been in an especially generous frame of mind when, in October, 1779, they approved a measure which awarded to Associate Justices Yates and Hobart "for extraordinary duties and services in . . . office, from the 5th of July last, and in consideration of the advanced prices of necessaries of life, the sum of $1,000" each.

As a matter of fact, these puisne judges had been carrying on judicial affairs of the State without the assistance of the Chief Justice for some time. Jay had entered the National Congress in December, 1778, and had been president of that body; and, as, on September 27, 1779, he had accepted appointment as United States Ambassador to the Spanish Court, and had thus drifted even farther from possibility of return to State judicial office, the New York appointing body in October, filled the vacant seat on the bench. The Chief Justiceship did not go to one of the puisne justices, Yates or Hobart. John Morin Scott, who had been an aspirant for the office when Jay was appointed in 1777 and had refused the puisne judgeship, afterwards offered to and accepted by John Sloss Hobart, was either not now offered Jay's mantle or again refused judicial office. The successor of Jay, as Chief Justice, was Robert Morris. He was appointed in October, 1779, probably at the time the associate justices were granted increased stipends.

Chancellor Robert R. Livingston was originally granted a salary of £300 per annum. It was increased to £400 by Chapter 34 of the Laws of 1779, which also made the Chief Justice's salary £400, and that of the puisne judges œ3oo.^[105] The matter of salary can hardly have caused much perturbation to the Chancellor, who was the son of the wealthiest landowner in New York. Indeed, as Chancellor, Robert R. Livingston seems to have had, for some years, what would nowadays be deemed a sinecure. The Court of Chancery was recognized as existent in 1777, when the Constitution was adopted, and Livingston was made Chancellor. The court was formally organized, or reorganized, in May, 1778, by the Convention of Representatives of the State of New York; but it is doubtful whether any chancery business was before the court until 1785. Judge Charles H. Truax investigated this phase of judicial history closely, and his researches discovered no chancery minutes for the period between January 9, 1776, and June, 1785. The last Crown book of chancery minutes he found was for the period from April 5, 1770, to January 9, 1776, the last entry in this book being an application made before "His Excellency William Tryon, Esq., Captain-General and Governor-in-Chief in and over the Province of New York and the Territory depending thereon in America, Chancellor and Vice-Admiral of the same," for the appointment of a guardian for two infants, on the 9th day of January, 1776. And the first State book of the Court of Chancery was for four years beginning in June, 1785. There was little difference between the business of the provincial and State Courts of Chancery apparently, as far as can be judged by the two minute books under reference; and, as Judge Truax remarked, "most of it related to infants and lunatics." Certainly, there was not enough to fill the time of such a learned publicist as was our first Chancellor, of whom Thomas Jefferson wrote: "Robert R. Livingston is in every sense of the word a wise, good, and great man, one of the ablest of our American statesmen. Nothing that he writes or does seems to cost him any effort, yet there is beauty, power, and practicability in all his intellectual productions. It is not a power that awes; it is gentle, unpretending, but resistless." Jefferson, no doubt, referred more to Chancellor Livingston's national activities. Livingston was Chancellor of New York until 1801, but as the years passed, from 1777 until 1801, when he resigned the Chancellorship, he gave more and more of his time to national responsibilities. He was delegate from New York to the Continental Congress from 1779 to 1781, and for the next two years was national Secretary of Foreign Affairs. So it would seem that his duties in the Chancellory did not press heavily upon him. Mr. L. B. Proctor contributed an article to the "Albany Law Journal" in 1892, under the title: "First Trial Term in the Old Court of Chancery of the State of New York." He was apparently under the impression that this was the opening term, but, as has been shown, there is record of an earlier term of the State Court of Chancery than that which was opened in Albany Stadt Huys, on July 25, 1786, by Chancellor Livingston, on July 25, 1786.^[106]

The judicial department of the State cannot be deemed to have come into general operation until after the signing of peace. The problem of judicial administration in the southern counties, under the sway of the British military forces, was to some extent met by the passing of an act, in 1779, creating a council or committee for the Southern District of the State. The committee, composed of the Governor, the members of Assembly and Senate, the Chancellor, the three Supreme Court justices, the Attorney-General and the judges appointed to the county courts of the Southern District, was vested with broad governmental authority, having power, in any seven including the Governor, to act for sixty days after convening in that part of the State. It is doubtful, however, whether the State courts functioned any more than Crown courts in that region. Of the Crown judges who were in office at the outbreaking of hostilities in 1775, Livingston joined the revolutionary forces; the other judges, Horsmanden, the Chief Justice, and Thomas Jones and George D. Ludlow, the puisne judges of the Supreme Court, tried to administer their offices, but Jones and Ludlow retired to their farms on Long Island in 1776. Horsmanden remained in New York City, and held court until his death, in 1778, after which the administration of judicial affairs of the Crown were entrusted solely to Justice Ludlow.^[107] But, although it is known that he was the principal judge of the Crown court during the war, little regarding judicial proceedings of the last years of Crown occupation is positively known, for the Crown records were carried away by Loyalists when the British forces evacuated the territory. After the evacuation, however, the State Council, or Committee, for the Southern District, was organized, or reorganized, in New York City, in 1783, and continued in session until the convening of the Legislature.

It was then possible to organize more thoroughly the judicial establishment of the State. The first session of the Supreme Court in ibencher and Terminer banch, after the close of the war, was held in New York City on May 14, 1784. James Duane, who was the first State mayor of New York City, was commissioned, with Justice Hobart, to hold this term of Oyer and Terminer; and Duane had the privilege of delivering the charge to the Grand Jury.

An important section of the Judiciary Article of the Constitution of 1777 remained dormant during the war; but when the political horizon was less hazy, it was decided to bring into being an independent appellate tribunal which would have power to review even Supreme Court decisions. Therefore, the Legislature, on November 23, 1784, passed an act which created the Court for the Trial of Impeachments and the Correction of Errors, and provided that such a court of ultimate judicial resort-which tribunal in reality was not an innovation, a court of somewhat like name and purpose having functioned during the provincial period- should hold sessions concurrently with legislative sittings, and at such other times and places as might be ordered. In its two-fold duties, the Court for the Trial of Impeachments and' the Correction of Errors was an unwieldy body, the largest tribunal in the history of New York, excepting perhaps the original Court of Assizes. In the operation of the State Court of Errors, the tribunal was of such doubtful judicial value that it is somewhat surprising that it should have continued to function until 1847.

Organized in colonial imitation of the English House of Lords, the New York Court of Errors, by which abbreviated title the highest State court came to be known, was so constituted as to embrace the higher grades of judicial and governmental personnel. The Lieutenant-Governor, as president of the Senate, was ex officio Presiding Judge of the new court. The other members were also of ex officio status, every Senator having a seat, and every Supreme Court justice, also the Chancellor of the State. The Chancellor had no vote in the determination of appeals from his decrees, neither had the Supreme Court justices in that of writs of error to their court; but they might, and did, deliver opinions or arguments in support of their judgments under review. The Senators were not all lay members, but the majority probably were men of no legal training, recognition of which incompetency, perhaps, caused them to hesitate to give opinions on legal points, for some years. As the years passed, however, and as the lay members gained more legal acumen or more confidence in their own judicial capability, Senatorial opinions^[108] became more frequent. Over the same period, opinions by the professional members of the Court of Errors-the Chancellor and the Supreme Court justices-became fewer, though the reason for the latter was different, their own courts-Chancery and Supreme-becoming busier. Some grotesque situations arose, some inconsistent findings resulted, in consequence of the growing tendency of lay Senators to voice judicial opinions.

This amateur court, by its very constitution, necessarily opened itself to criticism. With the exception of the Court of Appeals and Errors of New Jersey, there was no other high court in the United States like that of New York, composed in part of persons who were not lawyers. Mr. Austin Abbott well expressed the vital objections to which such courts are open, when he said: "An unprejudiced observer who watches the course of adjudications in such courts, or studies their workings as manifested in the record of our Court of Errors, in which lay Senators were able to determine the law again and again contrary to the accumulated and unanimous judgment and learning of the chancellor and judges of the Supreme Court, can have little doubt that while representation upon the bench may now and then prevent the harsh operation of a rule of law, it will more frequently introduce, to control the decision, elements which ought to have no influence in determining or applying the law; and no form of misadjustment in judicial machinery has more power to introduce uncertainty into the law and bring its oracles into disrespect than this."

This flaw in the judicial system was not at once seen, and when it did become evident, there were still many who were convinced that it was not a flaw. Some of the Senators were lawyers, and some even of these professional men praised the lay element in the constitution of the tribunal of ultimate judicial resort. They argued that even if the court were entirely composed of laymen, it could not have been more uncertain and inharmonious, as to what the law is, than was shown by other courts composed only of lawyers. Moreover they cited important instances in which this hybrid court was right and the trained judges wrong. The divergence of opinion was just as wide, the advocates of each side were just as positive in 1846, when the court was abolished, as forty or fifty years earlier.

Unanimity could hardly be expected in a court so numerous. Its possible membership was thirty-seven. Usually, decisions were made by about twenty members; the largest on record, probably, was twenty-nine. Unanimity, as a matter of fact, was rare. There were many affirmances, many reversals, both of the Chancellor and of the Supreme Court; indeed, so many as to cease to be startling, except to the overruled jurists themselves. Some of the affirmances showed an equal division, and in a few instances the president would have to give his casting vote. In these days of "judge-made law," in these times when the jurist has a lifetime of legal experience to reinforce his innate sense of right and wrong, a percentage of reversals such as obtained in those days of reviewing by the hybrid Court of Errors would be considered appalling. Chancellor Walworth was reversed in thirty out of ninety appeals. The percentage of reversals of Supreme Court decisions was even greater. The exasperation of the jurists, many of whom were eminent as jurists and had had wide and valuable experience as lawyers, was all the more maddening when they realized how the reversals were sometimes obtained. Lobbying was not infrequently resorted to by interested parties, the Senator-members of the Court of Errors being more accessible to litigants than could ever be conceived as remotely possible in another court of more judicial, or less political, composition. The ordinary person did not feel that the crime was greater to lobby for a judicial decree than for a legislative bill. Moreover, there was much more room for the exercise of personal favoritism and political preference in the decisions of this quasi-political tribunal than in a court of smaller size composed exclusively of lawyers. Among the Supreme Court justices overruled were such eminent men as Spencer, Savage, Cowen, Nelson, Bronson and Beardsley. They were naturally sensitive that their findings should be brought into question "by a score of Senators, none of whom had ever sat on a bench, and some of whom were laymen."

The bitterness continued, and in the final years of the Court of Errors the parties were more emphatic in their criticisms. Justice Bronson, in 1840, charged that the Court of Errors failed even to abide by its own decisions. He further pointed out that "some members of that court do not feel bound to decide according to the rules of law, but go according to their own sense of what is right." Such a court, which claimed larger license in disposing of questions than other courts exercised, is "entitled to much less weight than the judgments of those courts which consider themselves bound by legal adjudications"; and where, as in the instance Justice Bronson cited, "the court has professedly departed from the whole course of decisions, the judgment is entitled to no weight at all." Of course there were some who thought that the fault was with the jurists. Senator Hopkins lamented that it was so "difficult even for those distinguished for their legal attainments, acuteness of intellect, and the purity of their intentions, to free themselves from the influence of early opinions" and permit "to be brought into the court of last resort the plain good sense and unbiased sound judgment of the laity to mingle with the latent and legal erudition of the profession, who, nevertheless, may be liable to bring with them to the bench the errors of prejudged opinions formed at the bar." There was some logic in this view, and the argument for the Court of Errors was strengthened when it was further pointed out that even the Supreme Court had not "always followed its own decisions."

The discussion at this time, however, disclosed one very surprising and serious flaw in the operation of this court; the members of the Court of Errors never met for consultation or deliberation. Brown describes the judicial procedure: "Each member separately and apart examines the case, and prepares for its decision. The court then comes together; the opinions of the members are delivered; and the court then unites in a general conclusion, either of affirmance or reversal of the judgment or decree reviewed. For this conclusion, and for this only, is the court as such responsible, unless indeed, which is very rarely the case, the court proceed by resolution to declare the grounds upon which that general conclusion rests. Different minds arrive at this conclusion by different processes of reasoning; but no member is answerable either for the reasons or the language of any other member." By such a process, it would be difficult to ascertain the real reason for a decision, nor could any definite rule be deduced from the decision. "In short," writes Brown, "it is little better than a town-clerk's record of a vote at town-meeting."

Such a court called for reorganization long before it was done. Litigants, whose causes had passed through the County or Supreme Courts, and in the latter had been decided according to the law by experienced men of the law, would naturally protest against a judicial system by which their legal rights could. be swept away by the chance vote of a political faction-by Senators who, in the Court of Errors, were not accountable for their opinions, and who need not state their reasons for voting-if they indeed had any reasons other than political. Of course there were some very able Senators, and in the names given of the Senator-members who most frequently delivered written opinions will be noticed those of some of the leading lawyers of their time. But there were very many Senators who did not give written opinions, but whose votes were just as weighty. One is, therefore, not surprised that, in 1848, after the Court of Errors had been abolished, and the Court of Chancery merged in the reorganized Supreme Court, "the Bar of the City of New York met and passed resolutions highly complimentary to the outgoing Chancellor and Judges, but no one had anything to say of the Senators, nor of the Court of 'Errors." The most useful purpose served by this hybrid court was the relaxation of the ancient strictness and inconvenient technicality of the Supreme Court in some questions of importance.

The sessions of the Court of Errors were held in the Senate chamber at Albany for many years after 1784, but eventually the court became itinerant, sitting in New York, Saratoga, Rochester, Buffalo. An interesting session was that of June-July, 1825, held in New York City Flail, General Lafayette being received in this "marble hall" which had been built on a common waste north of the city, and had only a marble face, the north wall of City Hall being of brown stone instead of marble "because no one expected the city ever to grow north of it."

Let us now review the history of the Supreme Court over the same period, 1784-1847. As has already been stated, the first session of the Supreme Court after the close of the Revolution was held in New York City in May, 1784. In 1785 the terms of the Supreme Court for the different counties were settled by an act of the Legislature. Two terms were to be held in ' New York City and two in Albany; the court was to sit in New York City in January and April, and at Albany in July and October. The April and October terms were to continue for three weeks, and the others for two. New York City was apparently recognized as the logical State headquarters of the court, for the office of the clerk was to be there, and in it all court papers were to be filed, the deputy clerk at Albany forwarding the papers of' that office to New York every half-year. In '797 Albany acquired equal rank with New York, having a clerk of its own and right to remove from the New York office such papers as the Albany clerk might deem proper. In 1807, another office was opened at Utica, under its own clerk. The clerks of court were requested to furnish each other, at every term, with a transcript of the docket of all judgments in their office. By the act of April 19, 1786, it was decided that issues joined should be tried in the county in which the land was, or the cause of the action arose, unless the court should order the trial at the bar of the court. This did not apply to transitory actions, and the court could, notwithstanding, order trials in other counties when proper or necessary. By the act, one or more of the justices of the Supreme Court, during the periods in which the New York or Albany courts were not in session, were required to hold circuit court in each of the counties of the State. All proceedings in the circuit courts were to be returned to the Supreme Court and there recorded and judgment given, according to law. Tn 1789, the Legislature enacted that all issues triable by a jury might be tried either at the Circuit Court or at the bar of the Supreme Court, without any order for the purpose. In 1797 an order became necessary. On February 12, 1796, the office of Clerk of the Circuit was abolished, the duties devolving upon the county clerks. On February io, 1797, the Legislature passed an act directing the court to designate, at its April term, one of their number to hold Circuit Court in the western, one in the eastern, one in the middle, and one in the southern districts, the designated justice passing from county to county, however inaccessible, and holding court in each. This was not so arduous at that time as circuit duties had been when the Supreme Court consisted of three judges; the bench was increased to four in 1792, with the appointment of Morgan Lewis, and to five in 1794, when Egbert Benson was appointed.

By act passed February 22, 1788, Supreme Court justices, while on circuit, were to hold terms of Oyer and Terminer in each county, two or more of the judges of the Courts of Common Pleas sitting in Oyer and Terminer with the justice on circuit. The associate-judges of the Supreme Court justice in New York City and Albany were the mayor, recorder and aldermen; but local magistrates could not sit in Oyer and Terminer of any other city or county than their own. The court, however, could direct its process into any city or county. Continuing a custom of provincial times, the Governor had power to issue commissions of Oyer and Terminer when he deemed it advisable; the commission issued would name the justice designated, and such others as the Governor and the Council of Appointment might select. Once in each year the records and processes were to be sent to the exchequer to remain of record.

The system of circuit courts above described remained substantially the same until 1823, when the Constitution of 1821 became effective; and the Supreme Court remained at a strength of one chief-justice and four associate-justices until that time also. All were given commissions of permanent tenure, i. e., quamdiu bene se gesserint; at least until they should reach the retiring age of sixty years, regarding which one writer^[109] wrote, having in mind the case of James Kent: "God makes the folly as well as the wrath of man to praise Him, and the stupid enactment of the New York Constitution, which turned the judges out of office at the age of sixty, has atoned for all the injustice it wrought, by giving us Kent's Commentaries."

It has been said that the formative history of the Supreme Court did not definitely begin until 1798, when James Kent became one of the puisne judges. This may not have been because of the outstanding excellence of Kent as a jurist. Another important factor entered the judiciary with him, or soon afterwards through his initiative. There probably were capable judges before Kent. There undoubtedly were, but the opinions of these earlier jurists were not spread or perpetuated, like those of Kent and later justices, for the simple reason that the reporter goes no further back than Kent's time in Supreme Court records. The excellent or indifferent work of the judges who went before Kent could, therefore, not be compared. "An official reporter is as essential to the usefulness and reputation of a judge as a poet is to a hero." George Gaines, the first reporter of the Supreme Court, was appointed in 1804. William Johnson succeeded him, and in the preface of the latter's "Cases" it is stated that "sufficient materials could not be obtained for an authentic and satisfactory account of the judicial decisions prior to January, 1799." Kent explains the reason. In a letter written by Kent to his friend, Thomas Washington, in 1828, the Great Chancellor wrote: "When I came to the bench there were no reports or State precedents. The opinions of the bench were delivered ore tenus. We had no law of our own and nobody knew what it was. I first introduced a thorough examination of cases and written opinions. In January, 1799, the second case reported in first Johnson's "Cases of Ludlow' v. Dale" is a sample of the earliest. The judges, when we met, all assumed that foreign sentences were only good prima facie. I presented and read my written opinion that they were conclusive, and they all gave up to me, and so I read it in court as it now stands. This was the commencement of a new plan, and then was laid the first stone in the subsequently erected temple of our jurisprudence." Undoubtedly Kent's reputation was enhanced as his written opinions spread; and he became even more favorably known as chancellor. Wirt, in recommending Kent for appointment as a justice of the United States Supreme Court, in 1823, asserted that "Kent knew more law than most of the other judges of the United States put together"; that Kent held "so lofty a stand everywhere for almost matchless intellect and learning, as well as for spotless purity and high-minded honor and patriotism" that he, Wirt, was convinced the Nation would applaud the appointment of Kent to the Federal Court. Yet, the justices of the New York Supreme Court who served the State before 1798 may be deemed to have possessed legal knowledge and judicial ability quite equal to the need of their time; indeed, the Chief-Justices—Jay, Morris, Yates and Lansing-were all lawyers of much experience, and the Associate-Justices, with the single exception of Hobart, were all bred to the law. Egbert Benson, the first Attorney-General and an Associate-Justice for many years from 1794, was one of the most learned lawyers of his day. He drew the first rules of the State Supreme Court, these being adopted in 1796. Of Benson, Kent said: "He did more to reform the practice of the court than any member before or after." Duer said that, "as a master of special pleading Benson was hardly surpassed by Chief Justice Saunders himself." Still, it seems that the true formative period of the Supreme Court was from 1798 to 1823, under the lead of Kent, Spencer and Thompson. What judicial opinions anterior to that time were made known to the public, were promulgated in occasional private pamphlets; but when Kent, with his written opinions, began to give us precedents, our Bench and Bar, with the aid of the reporter, "began to walk independently," of English law. Under the guidance of Kent, Thompson, and Spencer (1798-1822), the Supreme Court probably reached its highest state of efficiency-at least, as it functioned under the original constitution. Indeed, it has been stated that the judicial establishment of New York never reached greater efficiency than during the first twenty years of last century. Although still substantially the same tribunal as that which functioned during the provincial period, the State court gradually gained a distinctive place for itself. Many legal principles were settled, and "fluctuating theories gave place to determinate and known rules. of law," other States as well as New York being aided by the work of Reporters Caines and Johnson, who put into print, for study by jurists and lawyers of other States, as well as New York, a famous series of leading cases. The opinions of Kent and his successors were eagerly studied by the legal profession of other States; the fame of New York jurisprudence was Nationwide, and did not pass unnoticed even in England. This was the golden period of New York law. Yet, these eminent jurists were not permitted to bask in an Indian summer of adulation and flattery; it is doubtful whether such openly-expressed condemnation as was showered upon them has had to be borne by the jurists of any other period. Not without reason, either, although the criticized judges were none the less eminent men of law. The criticism was not of their judicial acts. The truth is that all jurists under our original State Constitution were somewhat closely allied-too closely for their own good-with the legislative department of government. A flaw of the Constitution of 1777, it seems, was the association of judicial and executive functions in the same persons. Kent, Thompson, and Spencer were not the first benchers of New York's higher courts to come under the lash of public criticism; John Jay was at times treated with scant courtesy by those who differed from him as to some phase of public affairs. Fault could not be found with his judicial record, but when he entered into political affairs, he had to bear the brunt of partisan feeling, which, as a rule, is more emphatic than polite. For instance, in 1795 the venerable John Rutledge, who was to succeed John Jay as Chief Justice of the United States Supreme Court, could not hold back his angry thoughts; he said that Jay was either a fool or a knave. It was not a judicial indiscretion by Jay that prompted this scathing thought, but his failure to secure from England all that his country hoped he would, in the difficult treaty negotiations of 1794-95. The world could afford to drop this destructive sprag, though it never will. Flagellation is the penalty of public service. He who would enter public life must leave self-esteem at home if he would succeed, for he at once becomes the target of partisan strife, which is blind to all but faults. Kent and Spencer, in particular, were held up to scorn; politicians of New York and other States in the heat of partisan anger or political expediency, gave utterance to some painfully shameful expletives regarding them. Kent was compared "to the poisonous upas tree of Java, which destroyed all that came beneath its shade." Of Spencer, Clay said: " . . . . if Spencer be confirmed (as Justice of the United States Supreme Court) he will have run a short career of more profligate conduct and good luck than any man I recollect." This opinion was formed, or prompted, wholly by Spencer's political activities, for none doubted his legal ability to fill the judicial office; indeed, Spencer was told "that he might have been a Holt or a Mansfield if he had kept away from the political arena."

The original Constitution protected ministers of religion by excluding them from public office, so that no foreign element might enter into their life, to jeopardize their mission of saving souls; but the constitution makers did not seem to think that the judiciary would need protection by like isolation. They were rather of the conviction that the men of law should be the pillars of government. So the justices of the State Supreme Court came to have political responsibilities to their detriment, it seems. Fowler writes: " . . . these gentlemen were doubtless victims of the ill-assorted alliance between the Legislature and the supervising power of the Council of Revision, or of that mistake in the original Constitution which vested the judicature, as a sort of third estate, with the negative on legislation in all cases. Oftentimes," explains Fowler, "the majority of the Legislature were unable to pass a bill over the veto of the Council, and then their indignation would be visited on the judges who defeated them; the votes of the judges in Council were attributed to political bias and not to conviction, and they were denounced with all the accompaniments of mere political virulence. This denunciation came ultimately to affect the usefulness of the Supreme Judiciary under the first Constitution, and to tarnish their otherwise splendid administration of the law."

The Council of Revision had been especially unpopular during the War of 1812, for then the will of the two Houses of the New York Legislature, which sought to uphold the arm of the President and congress, was negatived, because the Chancellor and justices of the Supreme Court were Federalists and as such were opposed to the war, and by their power in the Council of Revision were able to veto the acts of the Legislature. This was not forgotten, and, as the years passed, public opinion with increasing emphasis demanded the abolition of the Council. In 1820 the Legislature adopted a bill calling a convention, and providing for the election of delegates to consider constitutional amendment. Particularly an amendment which would abolish both the Council of Appointment and the Council of Revision was sought; and public opinion was even more condemnatory of the power of the judiciary, when the Council of Revision vetoed the bill on the ground that, as Chancellor Kent stated in his written opinion "a convention could not constitutionally be called until the people had first decided that it should be held, and that the bill was also defective in not directing the separate submission to the people of all amendments which the convention might propose." Of course, few considered that the written opinion stated the true reason for the action of the Council of Revision. Still, the veto merely set the convention movement back for a season. In March, 1821, another act recommending a convention was passed, and in due course delegates were elected, and convened; the outcome being the abolition of the Council of Revision, which had been functioning contrary to well-recognized principles of government. The Council of Appointment, which had been an even worse offender, was also abolished. What an enormous hold this latter body had upon the State may be imagined from statistics presented to the Convention of 1821. It appears that 8,287 military and 6,663 civil officers^[110] held their commissions subject to the will of the Council of Appointment. As to the mode of appointment, Governor Clinton once said: "If the ingenuity of man had been exercised in such a way as to produce continual intrigue and commotion in the State, none could have been devised with more effect than the present arrangement." The convention, to all intents, transferred the power of the two councils to the Governor, in whom was vested the power of veto, also that of appointment, subject to certain reservations of power to the Senate.

The Judiciary Article of the Constitution was substantially amended. The structure of the Supreme Court was altered, by increasing the number of judges, and changing their duties to some extent. The new Constitution divided the State into eight Senatorial districts, and as many coextensive judicial districts, every one of which was to have a circuit judge, with power to hold the District Court of Oyer and Terminer, and at other times to perform the duties of a Supreme Court justice at chambers. These circuit judges were in reality of the Supreme Court establishment; yet they came to be looked upon as different, or rather, in their respective districts, as superseding the Supreme Court, which henceforth was to consist of one Chief Justice and two associate justices. The only connection the latter was to have with the Circuit Courts was in cases of appeal to them from the decisions of the circuit judges. The Supreme Court justices were entirely relieved of circuit duty, which change-al their political enemies were glad to think-"deprived (them) of all the political advantages conferred on them . . . by an official tout in the name and under the authority of the majesty of the law." The Supreme Court was now permanently seated, the new system in reality adding to their importance while reducing their labor. The three Supreme Court justices had appellate jurisdiction over all the judgments of inferior courts, including circuit courts, although, of course, Supreme Court decisions might, under certain circumstances, be appealed to the Court of Errors.

Equity jurisdiction was taken from the Supreme Court justices by the Constitution of 1821, and vested in the circuit judges. Accordingly, an act was passed, in 1823, creating equity courts in the several circuits. The system was somewhat unsatisfactory, however, and these distinct equity courts were abolished in a short time. General equity jurisdiction was given to the Chancellor, while on the circuit judges were conferred equity powers, as vice-chancellors. In 1831, the equity business of the city of New York had grown so voluminous that the circuit judge could not handle it; so a separate vice-chancellor was appointed for that district. A like separation of circuit and equity duties was made in the Buffalo (Eighth) district in 1839. Frederick Whittlesey becoming vice-chancellor. No changes were made in the other districts, and therein the circuit judges continued to also act as vice-chancellors until the Court of Chancery itself was abolished by the Constitution of 1846.

Before passing on, reference must be made to another important change made by the Convention of 1821, in the organic law of the State. When the first Constitution was framed the English laws of criminal libel, which then became the law of the State, were extremely narrow, making it the province of the jury to ascertain whether the so-called libel had been published, and leaving the question of the fact of libel to the court Through the efforts of Erskine, Fox, and Pitt, the English law had been ameliorated in 1792. In the case of the People v. Croswell, in which the defendant was indicted for a libel upon Thomas Jefferson, President of the United States, two of the judges-Kent and Thompson-considered that the truth should be received in evidence, and that the jury should judge both of the facts and the law. This had been the attitude taken by Andrew Hamilton, in the famous Zenger case of 1735, and, as Kent showed in his learned opinion as to the Croswell case, it was in accord with common law rules observed before the days of the Star Chamber. Still, the opinions of Kent and Thompson balanced the contrary views of the only other Supreme Court justices of that time (Morgan Lewis and Brockholst Livingston); hence the defendant was not punished. In 1804, the Legislature passed an act, supporting Kent's opinion. Certain amendments were made to the bill by the Council of Revision, at the suggestion of William W. van Ness, who later became a justice of the Supreme Court; and the bill, as amended, became law in 1805. "This declared that on the trial of every indictment or information for libel, the jury should determine the law and the fact under the direction of the court in like manner as in other criminal cases, and should not be directed to find the defendant guilty merely on proof of publication, and that in every other such prosecution, the defendant might give the truth in evidence as a defense." The Convention of 1821 incorporated the substance of the statute into the organic law. It is worthy of remark, perhaps, that the Zenger case was one of the last in which Andrew Hamilton appeared; and the Croswell case was one of the last causes argued in banc by Alexander Hamilton. Regarding the latter's presentation of this case, Kent declared "that more able and eloquent argument was perhaps never heard in court." In closing his opinion of this case Kent adopted as perfectly correct "the comprehensive and accurate definition of one of the counsel at the bar (Hamilton) that the liberty of the press consists in the right to publish, with impunity, truth with good motives and for justifiable ends, whether it respects government, magistracy, or individuals."

The Constitution of 1821 did not change the tenure of office of the higher judicial officers; the justices of the Supreme Court continued in office during good behavior until they reached the age of sixty years. The appointive system was still in effect, but the justices were removable by joint resolution of the Senate and Assembly, a concurrence of two-thirds of the latter and a majority of the Senate being necessary.

There was little need of removal of judges during the period of the second Constitution; indeed, great as was the reputation of the Supreme Court during the first twenty years of the nineteenth century, it is doubtful whether the State was blessed then with a Supreme Court of higher standard than that of the second Constitution, 1823-47. The Chief Justices during this period were Savage, Cowen, Beardsley, Jewett, Whittlesey and McKissock. Associate justices were Jacob Sunderland, William L. Marcy, Samuel Nelson, Greene C. Bronson, as well as, at some time, most of those who became Chief Justices. "It would be difficult to parallel these names for public virtue, profession, learning, and successful administration of the law, in the history of any community," writes Browne. "The name of Marcy is of national reputation . . . a man of the highest quality of native powers. Judge Nelson served his country on our State and Federal Supreme benches for half a century, a man of leonine strength and sagacity. The reputation of Judge Cowen is also a national possession. It is doubtful whether any other State judge, excepting Kent and Shaw, is so well and widely known throughout the country." His written works "stand upon the shelves of nearly every lawyer in the land-a mine of professional learning." Judge Bronson "was a man of marvellous brilliancy and power. Seldom has any court been composed of three such legal giants as Nelson, Cowen and Bronson, and seldom have they been succeeded by such men as Beardsley and Jewett," continues Browne. "Our Supreme Court, under these eminent men may be declared the finest fruit of the system of an appointive judiciary."^[111]

New York State was rapidly growing; its population was rapidly changing in character; the conservative provincial families were being outnumbered by the thousands of immigrant families that debarked at New York and settled in different parts of the State, the change being most evident after the opening of the Erie Canal. These immigrants came mostly from monarchies; came to what they thought would be the land of democracy; but they found that the institutions of the new country were not very different from those of their native land. They wanted democratic standards to prevail; and, as they gained political strength, they demanded that the institutions of their adopted country be more in accord with democratic principles. This impulse was one of the underlying forces that influenced the people to sanction the holding of a convention in 1846, to revise the Constitution of the State. The people demanded, among other changes, the right to select the judges of their courts. They condemned the appointive system, contending "that the open strife of political canvass and elections was less to be dreaded than the secret intrigues of the Governor's council chamber"; that a "feeling of responsibility to the people was a better guarantee of fidelity in a judge than a sense of personal obligation to a single man."

The people objected also to the tenure of judicial office. While they saw the folly of dismissing an experienced and mentally vigorous jurist at the age of sixty years, they did not like to be committed to him for life, even with the "good behavior" proviso. They would prefer to have an opportunity of declaring, by means of the ballot, at stated times, their opinion of his service. In other words, they wanted to hold the reins of government a little oftener in their own hands. Singularly enough, this spirit of decentralization found its first expression in the State institutions in 1823, when the Circuit Courts distributed some of the former greatness of the Supreme Court among localized benches; yet this method of decentralization in the end proved unsatisfactory to the people, because of the disposition evidenced by litigants to review all their decisions before the Supreme Court in banc. So these changes were brought about and a new order came into effect on July I, 1847.

Footnote 94: Irving Browne, in "Public Service of the State of New York," III, 41.

Footnote 95: Hon. Ed. M. Colie, in American Bar Assn., Jnl., December, 1924.

Footnote 96: Fowler's "Observations on the Particular Jurisprudence of New York"; see "Albany Law Journal," XXII, 489.

Footnote 97: Ibid.

Footnote 98: Willis Fletcher Johnson, in "Political and Governmental History of New York State (Smith 1922), Vol I, p. 46.

Footnote 99: Coll. N. Y. Hist., MSS. Rev. Papers, I, 552.

Footnote 100: Jnl. Gen. Assembly, N. Y., Feb. 11, 1818, p. 156.

Footnote 101: Johnson, in "Political and Governmental History of New York State" (Ray Smith, 1922), Vol. I, p. 46.

Footnote 102: Ibid., I, 47.

Footnote 103: Jones' "History of New York During the Revolutionary Period"; New York Hist. Soc., 1879.

Footnote 104: The Convention on April 20, 1777, appointed Messrs. Robert R. Livingston, J. M. Scott, Morris, R. Yates, Jay and Hobart a committee "to prepare and report a plan for organizing and establishing the Government agreed to by the Convention." On May 8, 1777, this plan was adopted.

It appointed the higher judicial officers as stated above and County establishments as follows:

Albany-Volkert P. Doow, First Judge; Jacob Ten Eyck, Abraham Ten Broeck, Henry Bleeker, Walter Livingston and John H. Ten Eyck, Associate Judges.

Dutchess-Ephraim Paine, First Judge; Zephaniah Platt, and Anthony Hoffman, Associate Judges.

Westchester-Lewis Morris, First Judge; Stephen Ward and Joseph Strang, Associate Judges.

Ulster-Levi Pawling, First Judge; Dirck Wynkoop, Jr., Associate Judge.

Charlotte-William Duer, First Judge; John Williams and William Marsh, Associate Judges.

"No judges were appointed for the counties of Tryon, Orange, Curnberland, and Gloucester, but blanks were left in which the names of the judges for these counties could be inserted. No provision was made for the appointment of judges in the counties of New York, Kings, Queens, Suffolk, and Richmond, which counties were then in the possession of the British."-See McAdams' "History of Bench and Bar of New York," I, 103-104.

Footnote 105: In addition to their salary, the Chancellor and Justices were entitled to receive certain fees, which varied from time to time. As an instance of the fees received, the Act of April 18, 1785, 15 quoted:

The Chancellor was entitled to receive for the seal of every common writ, three shillings; for exemplifications, twenty shillings; for every decree, £2; for every opinion or order, on a petition or motion, LI; for every order appointing a guardian, ten shillings.

The Master in Chancery was to receive three shillings for every summons; £1 for every report or certificate made pursuant to order; five shillings for every certificate or report made upon petition or motion, and for drawing every report, one shilling per sheet.

The Justices of the Supreme Court were to receive: for allowing a writ of error, or marking the roll that the writ had been allowed, five shillings; for signing every writ of privilege, habeas corpus, procedendo, certiorari, or prohibition, three shillings; for acknowledging a deed, four shillings; for licensing an attorney, ten shillings; taxing a bill of costs, six shillings; for every attorney, when admitted, ten shillings. The attending judges were also paid five shillings on the first motion in every cause except a criminal one, which money was divided between them.-See McAdams' "History of Bench and Bar of New York," I, 105-06.

Footnote 106: The interesting procedure is thus described by Mr. Proctor:

"Precisely at half-past nine in the morning, the City Hall bell announced the arrival of the hour for the courts to convene. According to the custom of the times, in opening the terms of courts, the Sergeant-at-Arms, the Sheriff of the county, both in full uniform, the Mayor of the city, and the members of the Bar waited on the Chancellor at his hotel, and in procession escorted him to the City Hall. The courtroom was thronged with spectators. Amid the most impressive silence, the Chancellor took his seat on the bench, the crier made the usual proclamation, and the first Court of Chancery under our free government opened for business."-"Albany Law Journal," 1892.

Footnote 107: "Two years later, in 1780, Ludlow, in addition to his powers as Justice of the Supreme Court, was created Master of the Rolls, with power to 'hear and determine controversies until civil government should be restored.' He also acted as Judge of Admiralty, and was appointed Superintendent of Police for Long Island. In the same year, 1780, Robertson, the last of the royal governors, issued a conciliatory proclamation, announcing that he had brought out a royal appointment for supplying the place of Chief Justice, and as soon as the public exigencies would permit, he would give an order for opening the courts of judicature, and convene the Assembly. But his proclamation produced no effect, and he did nothing under it until the following year, when he held a Court of Chancery in person, about once a month, from the 24th of January, 1781, until the 9th of June, 1783."-Daly's "Account of the Judicial Organization of the State"; Smith's "Reports, New York Common Pleas," Vol. 1, LXVIII.

Footnote 108: The senators who most frequently delivered written opinions were: De Witt Clinton, William H. Seward, Gulian C. Verplanck, Alonzo C. Paige, Luther R. Bradish, William Ruger, Erastus Root, Harvey Putnam, John A. Lott, Lyman Sherwood, Elijah Rhoades, Henry W. Strong, Abraham Bockes, John Porter, Addison Gardiner, Hiram F. Mather, Nathaniel P. Tallmadge, John W. Edmonds, Albert H. Tracy, Leonard Marson, Samuel L. Edwards, David Wager, Gabriel Furman, John Crary, Charles Stebbins, Cadwallader Colden, John Sudam, and John C. Spencer. It will be noticed, however, that lawyers have preponderance in this list. Gardiner, Lott and Edmonds subsequently became judges of the Court of Appeals, which took the place of the Court of Errors in 1847. Senators Putnam, Verplanck, Colden, Tracy, Spencer, Edwards, Marson and Hopkins gave numerous opinions, "very generally characterized by extensive learning and careful elaboration." Verplanck's were among the most numerous, and "are among the most learned and elegant judicial essays ever written in the State," asserts Browne.

Footnote 109: "Brown's "Short Studies of Great Lawyers," p. 225.

Footnote 110: Dougherty's "Constitutional History of New York."

Footnote 111: Irving Browne, in "Public Service of the State of New York," Vol. III, p. 23.

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