BENCH AND BAR (AMERICAN PERIOD).

The Constitutional Convention of 1846 differed from earlier constitutional conventions in one quite important element; it was a people's convention, whereas those of 1777 and 1821 were not. To the average citizen who broadly believes that democracy came in with the Revolution, this statement may seem strange. To him it seems when the people took the place of the King, as the party of the first part in state papers, when the republican State of New York assumed the prerogatives of the royal province of New York, there could be no doubt that the people were at the helm of the Ship of State. Closer study of the political log will convince him that until 1847 navigation did not always follow the course charted for full democracies. Government was rather for the people than by the people; and, actually, for only a portion of the people. The delegates to the first State Constitutional Convention, that of 1777, were mainly from the better classes, or at least represented great landed interests. The 'delegates to the next convention; that of 1821, were drawn from a larger class, but suffrage was not even yet universal. Electoral conditions in 1846, however, made it possible to send into conference a group of citizens who were much more representative of the people. That the people had resolved to be a dominant factor in government thereafter is indicated by the amendments proposed in 1846 to the existing Constitution. Articles VII and VIII of the Constitution of 1846 unmistakably show the trend, for they asserted the "supremacy of the People over the Legislature, of the Principal over the Agent." They added "a needed bulwark against the tyranny of a temporary majority-one of the greatest dangers incident to a republican form of government." These articles, it is said, "form a new Bill of Rights no less important than any which the Third Estate ever wrested from monarch or nobility." So far as the changes affected the judicial department of State government, the revision of the organic law had one outstanding feature: it discarded the appointive system of filling judicial offices. This was such a radical departure that the history of the bench and bar of the American period naturally divides at this point.

Among the delegates who gathered at Albany on June 1, 1846, were many lawyers of note. In the list are seen the names of: Charles H. Ruggles, who later became Chief Judge of the Court of Appeals; Charles P. Daly, who for forty-one years was to serve as a justice, latterly as presiding justice of the historic Court of Common Pleas of New York City; Samuel Nelson, a former Chief Justice of the State Supreme Court, and then a member of the bench of the United States Supreme Court, a judicial career which, in all, was to span almost fifty years; and Samuel J. Tilden, whose name will be forever associated with the ousting of the corrupt Tweed "ring" of New York City politicians. Other leading lawyers among the delegates included Michael Hoffman, Charles O'Conor, Churchill C. Cambrelang, Ira Harris, Henry C. Murphy, Charles P. Kirkland, John K. Porter, Lorenzo B. Shepard, Alvah Worden, Ambrose L. Jordan, William C. Bouck, and James Tallmadge.

Only those of the happenings of the convention that affected the judicial system need be referred to in this review. The principal changes wrought in the Judiciary Article by the Constitution of 1846 were (i) the judges were to be chosen by popular election; (2), they were to hold office for terms of eight years, but without limitation as to age; (3), the distinction between law and equity was abolished; (4) an ultimate court, composed only of lawyers, was substituted for the Court of Errors. That the latter would be abolished was a foregone conclusion; and there were many who felt that the Court of Chancery should suffer the same fate. It had never been a popular court, and very many citizens had long since tired of its head, Chancellor Walworth.

At this point in the narrative, the history of the Court of Chancery over the State period might be reviewed briefly. Continued under State control by authority of the Constitution of 1777, almost without change in jurisdiction, the Court of Chancery-which had been so obnoxious to the people during the Crown period-functioned without friction or noticeable offense under the first State Chancellor, Robert R. Livingston. He was succeeded in 1801 by John Lansing, Jr., who served as Chancellor until 1814. During this period of more than three decades, the Court of Chancery was inconspicuous as well as inoffensive. A great change came after James Kent was given the chancellorship in 1814. The condition of the Equity Court was at that time unsatisfactory, if not chaotic. The situation is clearly stated in Kent's own testimony, which in part reads:^[112] "I took the court as if it had been a new institution and never before known in the United States. I had nothing to guide me, and was left at liberty to assume all such English chancery power and jurisdiction as I thought applicable under our Constitution." As to Kent's constructive work the words of another might be taken.^[113] He writes:

The soundness, wisdom, and learning of his decisions placed the equity system of our State upon a firm foundation, and the influence of this great State, unsurpassed by any at that critical period, was a potent factor in creating the equity jurisprudence of the country. To play the part Kent did in establishing the common law and the principles of equity jurisprudence required the skill and qualities of a statesman. . . . His opinions were in many cases treatises elaborated to overcome the prejudices which he realized as obstacles to his purpose. His discussions of the Civil Law often were manifestly designed to soften the difference between the two systems.

But the State was not to have the services of James Kent for as long as it might have. In 1823, having reached the retiring age of sixty years, Kent had to resign the chancellorship. The later Chancellors-Nathan Sandford, 1823-26; Samuel Jones, 1826-28; Reuben H. Walworth, 1828-47-were undoubtedly unfortunate in having to follow so eminent a Chancellor as Kent; and disparaging comparison with him may have contributed to the dissatisfaction that was general. Certainly, during the second quarter of the nineteenth century the Court of Chancery steadily lost popular favor; and the cause of this disfavor should not be laid wholly to the last Chancellor, Reuben Hyde Walworth, though it is surprising that a man so inexperienced as he could hold the chancellorship for almost twenty years in the face of the frequent reversal of his decrees by the Court of Errors. Had the chancellorship been a desirable judicial office Walworth probably would never have been appointed. "It is said that the office was offered to all the judges of the Supreme Court and declined by them before it was offered to Mr. Walworth." He was himself taken aback; at least so one would infer from his address to the bar soon after taking office. With Democratic simplicity or frank humility, he said: "Brought up a farmer till the age of seventeen, deprived of all advantages of a classical education, and with very limited knowledge of chancery law, I find myself, at the age of thirty-eight, suddenly and unexpectedly placed at the head of the justices of the State, a situation which has heretofore been filled by the most able and experienced member of the profession." When Aaron Burr heard these confessions, he strongly advised the new Chancellor not to publish the address. "If the people read it," he said, "they will say if you knew you were not qualified, why the devil did you take the office." However, such was Walworth's destiny, and he did his best He made many enemies, but also many staunch friends who were convinced of his ability to administer the office. One biographer described Walworth as the Bautham of America, asserting that "what Bentham did in removing defects in English jurisprudence, Walworth did in renovating and simplifying the equity laws of the United States." Justice Story pronounced him "the greatest equity jurist living." His effort was at least thorough, and although it is said that in 1844 he was recommended by many "distinguished members of the Bar" of New York for elevation to the bench of the United States Supreme Court "merely because they were anxious to get rid of a querulous, disagreeable, unpopular Chancellor," fourteen volumes of Paige and Barbour's "Chancery Reports" testify to the fact that Walworth improved the system of equity practice. He took from it "many of those prolix and bewildering formalities which had their origin in the middle ages." With commendable industry, Walworth reduced the practice of his court to standard rule. He was personally obnoxious, however, and even his own political friends, it is said, "voted to abolish the office of Chancellor," so as to get rid of him. So the Court of Chancery went down with Walworth. The Constitution of 1846 vested equity jurisdiction in the Supreme Court, and thus ended a particularly discordant state of jurisprudence.

It seems that the popular dissatisfaction was more against the Court of Chancery than against Walworth. "It was regarded as tedious, costly and capricious, and as frequently announcing a worse rule of law while professing to utter a higher and better than the common-law courts." "The extreme inconvenience," writes Browne, "and the frequently ruinous consequences of the distinction between equitable and legal remedies excited great hostility. The suitor was frequently driven to and fro between the two courts, each insisting that the other was his appropriate tribunal. Between the two stools of law and equity he came to the ground. Essaying to enter the Temple of Justice he was expelled for coming in at the wrong door, and frequently was utterly denied admission because the guardians of each portal thought he should apply at the other." Browne asserts that the decisions of the Court of Chancery, however, were of far greater value than those of the Court of Errors, "thanks to the abilities and virtues of two Chancellors, Kent and Walworth, whose names are scarcely less conspicuous and splendid than those of Hardwicke and Elden." Walworth was thanked by the bar for his long and eminent service as Chancellor, but, though he lived another twenty years, he was never again elected to judicial office.

Since 1847 the two higher courts of New York State have been. the Court of Appeals and the Supreme Court; and, as subsequent constitutional amendments have not materially changed the status of either court, we may, perhaps, now separately follow the history of each over the three-quarters of a century in which they have functioned under the elective system.

Taking them in order, the Court of Appeals first calls for review. This court, the tribunal of last resort, was established in a spirit of compromise. The Convention of 1846 was determined to correct the flaws of the first two State Constitutions. The delegates were desirous of freeing the judicial system of the layman element, and of making it independent of political control. This they did by abolishing the Court of Errors and the Councils of Revision and Appointment; but they had to retain part of the old court, to constitute the new Court for the Trial of Impeachments. However, this latter court was entirely beyond the intended jurisdiction of the proposed Court of Appeals; and the retention of that much of the old court was, it seems, justifiable.

In considering the question of tenure of office, the delegates probably had the case of Chancellor Kent well in mind. They wished to make it possible for mentally vigorous, capable, and, of course, reputable jurists to hold office beyond the age of sixty, which was then the constitutional limit, but they did not wish to be pledged to them for life. This desire was met, in part, by providing that the jurists should be called before the electors every eight years. In the organization of the Court of Appeals the reformers, it seems, had to stop halfway, for of the eight judges who were to constitute the bench of that court only four were to gain office by election, the Governor being given the power to appoint the other four. Still, he was restricted in his choice, none but justices of the Supreme Court being eligible for appointment. The advocates of the appointive system were thus conciliated, and at the same time those who insisted upon the elective system were satisfied, for although the Court of Appeals bench would seem to be a compromise between the two systems, in reality it would be an elective body also, seeing that the Supreme Court would contain none but those who came into office by elective means.

On June 7, 1847, four judges were elected to form the permanent half of the Court of Appeals bench. They were Freeborn G. Jewett, Greene C. Bronson, Charles H. Ruggles and Addison Gardiner. Jewett, having the shortest term to serve, was chosen Chief Judge. To complete the bench, the Governor soon afterwards named four justices of the Supreme Court, to serve a brief term as associate judges of the higher court. They were Samuel Jones, William B. Wright, Thomas A. Johnson and Charles Gray. These four Supreme Court justices were to serve on the Court of Appeals for eighteen months-until December, 1848. Justices subsequently designated, however, were to serve as judges of the higher court for only one year.

Section 25 of Article VI, of the Constitution of 1846, provided for the formal transference to the new Court of Appeals of all business pending in the Court for the Correction of Errors, "and for the allowance of writs of errors and appeals to the Court of Appeals, from judgments and decrees of the present Court of Chancery and Supreme Court, and of the courts that may be organized under this Constitution." The election, limitations, compensation and removal of judges of the Court of Appeals were provided for by sections 7, 8, II, 12 and 13 respectively.

The new Court of Appeals, as constituted by the law of 1846. functioned until 1870, but not satisfactorily. We who during recent decades have become accustomed to an appellate court which changes in personnel only at rare intervals, find it hard to realize that the same court during the first twenty-three years of its life was served by 123 judges, although no more than eight could hold office at the same time. Drastic reorganization was necessary, and radical change came in 1870. How radical it was is seen at a glance, in the judicial roster of the last almost fifty years; it shows the names of only thirty-nine judges. Undoubtedly, the Court of Appeals as planned by the Constitution of 1846 was not an ideal court; the constant change in personnel made efficiency almost impossible, for before the incoming justices could become comfortable in their seats as judges, so as to become quite conversant with the procedure and business of the court, their term of office would be nearing its end. This unsettled state recurred year after year, making it difficult for the ever-changing bench to keep pace with the demands upon the court. Before it was decided to reorganize the Court of Appeals it is said that the calendar had become so deplorably in arrear that it took four years to reach an argument in an ordinary case. Furthermore, thoughtful people gradually realized that it was not quite proper to permit Supreme Court justices-in their higher temporary office, as judges of the Court of Appeals-to sit in review of their own decisions.

A Constitutional Convention sat in 1867, and although it attacked very many articles of the existing Constitution and separately put many amendments of it to the people for approval or rejection, only the amendments of the Judiciary Article became law, and those only by a majority of about 7,000 in a vote of 500,000. Still, it was well that even that much was favored by the people, for the new judiciary article laid the basis of a much better judicial system.

The new order came into effect on January 1, 1870, and at a special election held in April of that year, a Chief Judge and four associate judges of the reorganized Court of Appeals were elected. According to the revised article, the new bench was to number seven, but the minority political party was to be represented by two judges, hence only five were elected. The composition of the new Court of Appeals, in 1870, was as follows: Sanford E. Church, Chief Judge; William F. Allen, Rufus W. Peckham, Martin Grover, Charles A. Rapallo, Charles Andrews and Charles J. Folger, associate judges. The judicial term was now fourteen years; and the retiring age was definitely set at seventy years.

The new judiciary Article also provided for an auxiliary Appellate Court-a Commission of Appeals, which was to consist of four of the judges of the old court, and a fifth commissioner whom the Governor was to appoint. The two Appellate Courts were to attempt to bring the Court of Appeals calendar up to date during the period in which the people were deliberating upon the general system of incumbency, that is, were deciding whether or not the State should revert to the appointive system of filling judicial offices. This question was to be decided in 1873.^[114] Meanwhile, the Court and Commission were to apply themselves to their pressing duty of reducing arrearages of docket. The Commission of Appeals began its work on July i, 1870, constituted as follows: Judges John A. Lott, Robert Earl and Ward Hunt, of the permanent bench of the old Court of Appeals; Hiram Gray, one of the last Supreme Court justices designated to the old court; and William H. Leonard, appointed by the Governor. Judge Lott became chief commissioner. The commission was to have three years of life, but before this term expired its life was extended two years.

The Commission of Appeals was "a highly respectable body of lawyers"; but its decisions never ranked very high. During the last years of its functioning there was much dissent, occasioned "mainly through the excess of case-learning over sound judgment in one of the later commissioners," wrote Irving Browne. The commissioners of subsequent appointment were: Alexander S. Johnson, vice Ward Hunt; John H. Reynolds, vice Leonard; and Theodore W. Dwight, vice Johnson. All were appointed in January, 1873. Dwight, perhaps was the disturbing element, for he was the outstanding academician of the commission. Still, the discordance was the inevitable result of a divided Appellate Court, the decisions of the commission and the court clashing noticeably in nearly contemporaneous instances. Nevertheless, the commission accomplished much. It disposed of all the business originally assigned to it, and other cases later transferred; and in general gave satisfaction. Its decisions are reported in many volumes. In one volume there are thirteen cases of dissent; in another volume, No. 57, which reports one hundred and fifteen decisions, twenty-three were pronounced by a divided court; of these, thirteen were decided by a majority of one out of five commissioners; and of these thirteen six were reversals. Therefore, it follows that in five per cent of the cases one commissioner reversed the Supreme Court of three judges. The commission decided about 1,000 cases in five years, these being reported in five volumes; but during the same period the Court of Appeals decided three times as many and with far more harmony. They are reported in fourteen volumes. One of the cases in which the commission was unanimous^[115] was like one in which the court decided exactly the contrary.^[116]

The new Court of Appeals found its task by no means easy; it was called upon to construct a new system of jurisprudence, based on the most radical changes. The Code of Procedure more than once came under judicial condemnation; and the Married Women's Acts of 1848, 1849, 1860 and 1866 brought many puzzling inquiries before the court. These were followed by many laws permitting parties to be witnesses in their own behalf. Indeed, New York State was pioneering reforms of jurisprudence, and the lot of the judge was not enviable. One reminiscence might be cited to show how the innovations reacted upon the temperamental judges. The instance is of the Supreme Court, not the Court of Appeals, but the ruffled feelings of more conservative judges were alike at that time. Justice John A. Lott, a man of definite convictions, ultra-conservative perspective, and deeply-set opinions, was hearing a case in the Supreme Court of the Second District He was positively opposed to the new Code of Procedure, as the unfortunate lawyer who first drew his attention to it soon discovered.

"Do you mean to say that that is the law, sir?" interrupted Justice Lott testily.

"I do, your Honor," replied the lawyer with assurance. With even more assurance he added: "It is right here in the Code."

"I don't care," retorted Justice Lott. "It has no business in the Code; 't ain't law."

As to this period of reform and confusion, Hiram Denio, in the last volume of his "Court of Appeals Reports," made known his own opinion of the new Code. In prefatory remarks, he states that the fifth volume is evidence that "the ancient simplicity of the common law" had become so complicated by the new procedure that it was hardly possible to apply the law except "by approximation, and a series of elective affinity as tedious in its operation as it must be uncertain and fluctuating in its result." However, as the judges became more familiar with the masterly codes the latter were found to be simpler than had been supposed.

Still, the reforms which had been intended to accelerate legal business for a while hindered the courts. The Court of Appeals soon found itself slipping behind. In 1874, appeals were limited to cases involving at least $500, exclusive of costs, unless certified by the General Term of the Supreme Court to involve important questions of law; but this restriction did not meet the emergency. So other means of keeping up with the calendar had to be devised; Accordingly, in,888, a constitutional amendment was adopted, authorizing the Governor, on the certificate of the Court of Appeals that an overcrowded calendar called for judicial reinforcement, to designate seven justices of the Supreme Court to sit as a separate body, to aid the court until the latter should certify that such aid was no longer needed. ' In this way, the Second Division of the Court of Appeals came into existence, the Governor appointing to this Division, in 1890, the following justices of the Supreme Court: David S. Follett, George B. Bradley, Joseph Potter, Irving G. Vann, Albert Haight, Alton B. Parker and Charles F. Brown. All were jurists of pronounced ability and long experience. Justice Follett, who became their chief, was "one of the most accomplished scholars of the State." The Second Division functioned for nineteen months (March, 1891, to October, 1892,) and disposed of a considerable accumulation of cases with greater credit than the former commission had gained, their decisions reaching a higher standard. It was soon apparent that these temporary auxiliary courts could not do more than relieve congestion. The remedy seemed to lie in the enlargement of the permanent court. In other respects, the emergency establishments were unsatisfactory, for it was recognized that "two coordinate Courts of Appeal could not well co-exist without divergence of opinion and the introduction of a degree of uncertainty into the law." Either the permanent court should be enlarged, or another and intermediate Appellate Court with clearly defined jurisdiction, should take over part of the work of the Court of Appeals, the scope of the intermediate court being made so different to that of the highest court that danger of clashing would not be an ever-present apprehension. A commission, to consider revision of the judiciary article of the Constitution, sat in 1890, and came to this conviction. Their report in April, 1891, recommended a single Court of Appeals unchanged in size but with much less business, it being thought that the General Terms of the Supreme Court might be made the final appellate tribunal in more cases than was then the practice. The theory underlying the report was that an Appellate Court possessed two functions: 1, to apply the law as previously laid down by the courts and the Legislature to the case at bar, and to correct any substantial errors committed by the courts below; 2, to decide new questions of law, and to lay down rules for the guidance of courts in future cases. The first of these functions primarily concerns the individual; the second affects the community at large. The greater proportion of litigation,. upon this theory, should never be carried beyond the first Appellate Court-the General Term. It was thought that the General Term decisions in applying the law should be conclusive unless some doubt should arise as to the underlying . .principle of law, or unless such important questions were involved as to render it desirable in the interests of the State that the Court of Appeals should consider the case."

The recommendations of the Commission of 1890 were not favored by the Legislature, but the Convention of 1894 debated the same questions, and finally came to the same opinion, except that in place of General Terms they recommended Appellate Divisions, as the intermediate court. The report of the Constitutional Convention of 1894 states that it was hoped "to obviate the overcrowding of the Court of Appeals calendar by establishing more effective and satisfactory courts of intermediate appeal, and . enlarging their power and jurisdiction." The recommendations of the Convention of 1894 were favored by the people. Therefore, the Constitution of 1894, which came into force in January, 1896, divided the State into four judicial departments, and provided that in each should be established "a tribunal composed of five justices of the Supreme Court, with shall perform substantially no other duties, and shall be the court of last resort for that department upon all questions of fact and upon all interlocutory proceedings. The report of the convention further reeds: "The Court of Appeals is limited to its proper function of declaring the settling the law. . Believing that under the operation of the proposed Appellate Division of the Supreme Court and with the distribution of duties and jurisdiction above indicated strictly observed, the Court of Appeals will have no difficulty in meeting all demands upon it, we have done away with the makeshift of a Second Division and have prohibited the imposition of a money limit upon the right of appeal to the Court of Appeals."

There was an arrearage of about 175 cases in the Court of Appeals at the time of the Constitutional Convention of 1894, and it was predicted that before 1896, when the new order, if authorized, would go into effect the arrearage would be increased to between 300 and 400. To meet this imperative need, the convention suggested the organization of another Second Division, though it expected that after the Appellate Divisions had been established, the normal bench of the Court of Appeals would be able to cope with its normal business. The emergency Second Division does not, however, seem to have been established, but the Governor was able to add to the personnel of the Court of Appeals by virtue of a constitutional amendment of 1889, up to four justices of the Supreme Court, the latter being designated to serve as associate judges of the Court of Appeals while the congestion continued, or until the calendar had been reduced to 200, when the justices so designated would automatically return to the Supreme Court. This plan of assistance has been resorted to in all emergencies up to the present, and recently the calendar returned to reasonable limits. A Constitutional Convention was held in 1915, and at that time the state of the Court of Appeals calendar was even worse than in 1894. In 1915 there was an accumulation of more than 600 cases pending in the Court of Appeals, and the average time required between the date of filing return and that upon which it would be possible to hear argument was about two years. Each year added about a hundred cases to the accumulation. The Appellate Divisions were also overworked, this State indicating broadly that the general increase in court business corresponded with the growth of the State, and that there should be a corresponding expansion of the judicial establishment. Unfortunately, the work of the Convention of 1915 was set at nought, because all amendments recommended were rejected by the people. So the old order continued, with Supreme Court justices reinforcing the higher bench. However, during the war and post-war periods this reinforced bench applied itself so efficiently and effectively that the state of the calendar was in time considerably bettered. Indeed, the judges are now able to keep the calendar down to reasonable limits without asking for the assignment of any justices of the Supreme Court.

Another judiciary convention was held in 1921. The delegates gave eight months of intensive study to Article VT of the existing constitution, sections 6, 7 and 8 of which provide particularly for the Court of Appeals. The convention expressed itself as in favor of continuing the Court of Appeals as at present constituted, i. e., with a bench of a chief judge and six elected associate judges. Moreover, the delegates endorsed the present system of designating Supreme Court justices to serve as associate judges of the Court of Appeals during extreme pressure of work. They considered this system entirely satisfactory, for not only did the higher court receive efficient help when in need, but the designated justices thereby gained experience which made them the logical jurists to fill vacancies on the permanent bench. During the first twenty years of this century eleven justices were designated, and of these nine eventually became permanent judges of the Court of Appeals. . "In fact, it has come to be regarded generally that a temporary judgeship is the safest way of proving the merit of the jurist; and when found competent, the electorate has invariably shown a desire to promote the jurist to a permanent judgeship" of the State's highest court. The Convention of 1921 wished to insert a new provision in Section 6, leaving to the discretion of the Court of Appeals the release or retention of a designated Supreme Court justice who, by the existing law would have to return to the Supreme Court bench when the calendar of the Court of Appeals had been reduced to 200 cases.

As to the jurisdiction of the Court of Appeals, the Convention of 1921 agreed that the court should continue to be essentially and always a court of law. Two exceptions were provided: One is whenever the judgment is of death, which exception has long existed; the other is based on the principle of allowing the litigant at least one appeal on the facts. It is argued that if the Appellate Division actually makes new findings of fact, and thereupon renders final judgment, the litigant decided against ought to have a review of those findings in some appellate tribunal. This plea is not new; indeed, it was recommended by the Convention of 1915, after full discussion. The Convention Report of 1921, as amended by the Legislature in 1925 adds that "the right to appeal shall not depend upon the amount involved." It was also proposed to strike out of Section 9 that part which provides that no unanimous decision of an Appellate Division that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals. The delegates were of the opinion that "this provision has frequently precluded the review of what is always and essentially a question of law, a possibility not contemplated by the framers of the Constitution of 1894." The convention further wished to provide that all litigants should be secure as a matter of right in the privilege of appealing to the highest judicial tribunal of the State, and not be dependent upon leave to do so. It was, therefore, recommended that the existing provisions of sections 588 and 589 of the Civil Practice Act be embodied in the Constitution, so that they shall no longer be subject to constant change and alteration by the Legislature.

The recommendations of the Convention of 1921 met with general concurrence of both legislative houses in 1924 and 1925; the constitutional amendments therefore went to the people in November, 1925, and were accepted.

One very important new section of the Judiciary Article is that which would take the question of judicial salaries out of the Constitution altogether. It is generally agreed that the present compensation of the judges of the higher State courts, as fixed by the Constitution, is inadequate. Few will deny that the cost of living is now very much higher than in 1887; but there has been no change in the stipend of the Court of Appeals judges since that time.^[117] Several attempts have been made to fairly adjust the salary to the time, but without success. At best, the remedy by constitutional amendment is a slow and uncertain process, an indifferent electorate being apt to reject an amendment without giving the question the consideration it merits. If the question of judicial salaries were taken altogether out of the Constitution, it would be easier for the Legislature promptly to make the compensation for service meet the cost of service. Even then, however, it is by no means certain that justice would be done, for while State and Nation demand the highest standard of public service, they seem to have the regrettable habit of weighing remuneration for service on a short-weight scale. There are few of the capable public servants who could not command, and readily obtain, higher salaries in private service. At the election of November, 1925, it was made possible for judges' salaries to be raised by the Legislature.

As to the relation of the Court of Appeals to the Legislature, it appears that the jurisdiction of the Court is to an extent statutory, though its existence is constitutional. The power of the Legislature over the court has generally been seen in restriction, though it also has power to enlarge the jurisdiction; but the Constitution holds a curbing hand, and no legislation can clothe the court with power except where the judgment is of death, to pass upon any question of fact, "nor can any legislation clothe it with power to review, after an unanimous affirmance by the Appellate Division, the sufficiency of the evidence to support a finding or a verdict not directed by the court. For the same reason, where the appeal is from an interlocutory judgment, or an intermediate order, other than an order granting a new trial on exceptions, there would seem to be no power in the Legislature to dispense with the necessity for the allowance of the appeal by the Appellate Division. This would leave the jurisdiction over criminal causes as the chief field for the possible enlargement of the court's jurisdiction. That jurisdiction cannot, however, be enlarged by the stipulation of the parties. The jurisdiction of the court is designated and created by law, and it has no other,"^[118] states Judge Cardozo. The Constitutional Convention of 1921 was urged to leave the jurisdiction of the Court of Appeals elastic, to be dealt with as the Legislature from time to time might see fit; but the delegates were of opinion that the privilege of appeal to the highest judicial tribunal of the State should be fixed by constitutional means. The constitutional restrictions upon legislative power over the jurisdiction of the Court of Appeals are contained in Sections 7 and 9 of the Constitution of 1894. The statutory provisions affecting the court's jurisdiction are Sections 190 and 191 of the Code of Civil Procedure, and Sections 517, 519 and 528 of the Code of Criminal Procedure. The Convention of 1921 recommended that Sections 588 and 589 of the Civil Practice Act be also added to the Constitution.^[119] Sections 7 and 8 of the existing Constitution regulate the composition of the Court of Appeals, but Section 3 limits the power conferred, and provides that "no judge or justice shall sit in the Appellate Division or in the Court of Appeals in review of a decision made by him or by any court of which he was at the time a sitting member." The provisions as to the disqualification of a judicial officer to sit as a judge cannot be waived;^[120] "but a judge of the Court of Appeals, unlike other judges, except justices of the Appellate Division of the Supreme Court, may take part in a decision of a question which was argued orally in the court when he was not present and sitting therein as a judge."^[121]

In a footnote is given the list of all the Chief Judges of the Court of Appeals, from 1847 to 1925. Although the list is a long one, and the page space not illimitable, the names of all the associate judges will be listed also, inasmuch as the roster of the Court of Appeals may be taken as embracing the names of more great lawyers and jurists than could be named in any other roster of equal size, covering the same period of judicial history of any other State. This does not detract from the excellent record of the New York Supreme Court; indeed, the latter shares in the distinction, for very few of the names shown do not also have place on the bench registers of the Supreme Court. With few exceptions the bench of the Court of Appeals has been recruited from that of the Supreme Court.

Footnote 112: Am. Bar. Assn. Jnl.," Dec., 1924.

Footnote 113: Ibid. Address of Hon. E. M. Colie, Nov. 24, 1924, presenting the Kent Memorial Tablet to the Court of Appeals at Albany, N. Y., on behalf of the American Bar Association.

Footnote 114: The electorate then registered an emphatic confirmation of the elective system.

Footnote 115: Merch. & Trad. Bank vs. Dakin, 51 N. Y., 519.

Footnote 116: Thurber vs. Blanck, 50 N. Y. 80.

Footnote 117: Under the Constitution of 1846, the judges of the Court of Appeals received a salary of $2,5oo a year. The salaries of judges of this court whose terms were abridged by the constitutional limitation as to age, after 1870, and who had served more than ten years, were to be paid for their full term. Salaries became $3,500 a year in 1857. This was doubled in 1870, the Chief-Judge receiving $500 additional, making his salary $7,500. And a clause in the Appropriation Bill of 1871 gave each judge right to an additional annual allowance of $2,000. By act of March 17, 1887, the stipend of the Chief-Judge was increased to $10,500 and those of the Associate Judges to $10,000. In addition, all now receive an annual allowance of $3,000 for expenses.

There was a time when the Clerk and Reporter received higher salaries than the members of the bench. The clerk, however, now receives $6,000 and the Reporter $5,000 per annum.

Footnote 118: Jurisdiction of the Court of Appeals of the State of New York," a volume written in 1903 by Judge Benj. N. Cardozo.

Footnote 119: "Five judges constitute a quorum, and the concurrence of four is necessary to pronounce a judgment. If such concurrence be not had, the case must be reheard; but no more than two rehearings can be had, and if then four judges do not concur, the judgment of the court below is affirmed. The Legislature may authorize the judgments, decrees, and decisions of any inferior local court of record established in a city, having original civil jurisdiction, to be removed for review directly into the Court of Appeals."-"Legislative Manual, N. Y., 1924," p. 641.

Footnote 120: Oakley vs. Aspinwall, 3 N. Y., 547.

Footnote 121: Cardozo: and Code Civ. Pr., sect. 46