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ISSUE 5 AUTUMN 2007 The Historical Society of the Courts of the State of New York JOHN JAY AS NEW YORK'S FIRST TO BETTER THE BENCH: The Labor of CHIEF JUSTICE BY WalteR StahR C. C. Burlingham1 n the late spring of 1777, after finishing their work BY GEORge MARtin OFFICERS: on the state constitution, John Jay and the other del- egates meeting in Kingston turned to the question of Albert M. Rosenblatt, hat, YOU maY asK, who would fill certain key positions in the new state President I can a single lawyer, government. The constitution provided a procedure W not holding public office, for appointing justices and most other state officers: a council of John D. Gordan, III, do to improve the quality of appointment consisting of the governor and four Vice President his state’s judges? “Nothing” senators. However, fearing that the war doubtless would have been would delay the election of a governor Frances Murray, the answer given by most Secretary and senators and anxious for the new lawyers who practiced in New courts to start work, the delegates York City in the early twen- Stephen P. Younger, named the judicial officers imme- tieth century. But Charles C. Treasuer diately, with the proviso that they Burlingham, generally known Marilyn Marcus, ‘John Jay, by B.B.E.’, one of the earliest Executive Director portraits of Jay, by an artist now known only by his initials. BOARD OF TRUSTEES: Helaine M. Barnett would only continue to serve if con- Barbara A. Brinkley firmed by the council of appointment at its first session. The delegates in this Penelope D. Clute May 7 resolution named John Jay as the first 1 Norman Goodman Chief Justice of the New York State Supreme Court. Why Jay? In what way was this young lawyer (not yet 32) quali- Henry M. Greenberg fied for this high position? He had no prior judicial experience. Judith S. Kaye But then none of the New York revolutionaries had judicial experi- ence. The judges in New York prior to the Revolution were men like Robert G. M. Keating Daniel Horsmanden: born in England, educated in London, part of A. Thomas Levin the English establishment, loyal to the King. What Jay did have was A 1936 drawing of C.C. Burlingham Jonathan Lippman extensive litigation experience; he had argued dozens of cases before by Alexander Iacovleff every court in the colony of New York. And he had extensive politi- E. Leo Milonas cal experience; he was a delegate from late 1774 through early 1776 as CCB, certainly did try. Time Leon B. Polsky in the continental congress in Philadelphia. More recently, he was a and again, like Don Quixote, leader of the various New York conventions and committees in the Michael B. Powers he mounted his horse and revolutionary effort. charged the political wind- Roy L. Reardon It is quite clear that Jay viewed himself, from the time of the mills, often failing, but some- May 7 resolution, as Chief Justice. Indeed, within a few days he was M. Catherine Richardson times succeeding. The urge was writing to a friend to offer him the position of clerk to the Supreme in him. Susan S. Robfogel Court. He also viewed himself, however, as continuing to serve as It surfaced first in the a delegate to the convention; he was present as a delegate through Leon Silverman spring of 1906, when he was Edward O. Spain JOHN JAY continued on page 6 47, an age then considered rather late in life, but CCB Ex Officio Trustee INSIDE continued active until 1959, Christine W. Ward N.Y.S. Archivist From the President/Contributors to this Issue/Letters ........... 2 into his 101st year, and so had fifty years of crusading ahead A Tribute to Judge Harold A. Stevens by Margery Corbin eddy, Trustee Emeritus of him. Of his labors to better Lisa LeCours, PauL MCgrath, and FranCes Murray ............................ 3 Richard J. Bartlett the bench, here are four, typi- Historical Society Website News by FranCes Murray. .............. 12 cal in their success and failure. From the Executive Director ................................................ 13 In 1906, he was just another lawyer, the youngest Historical Society Membership ............................................ 14 CCB continued on page 9 1 FROM the PResident The Historical Society Dear Members of the Courts of the Although we published one issue of our historical journal in 2005, we have decided State of New York that it would be less duplicative and more sensible to combine the newsletter and historical journal by using an expanded newsletter format, with issues to appear twice 140 GRand stReet, suite 701 yearly. This issue includes articles – and future issues will as well – of a high literary and White Plains, N.Y. 10601 historic order, continuing the growth of this publication, which will no longer be called PHOne (914) 824-5717 a “Newsletter.” It has earned a less ephemeral title, and we invite readers to give it an FAX (914) 682-3229 appropriate name (see box at right). We are offering our readers E-mail: The_Historical_Society@ The pages to follow are filled with writings by the opportunity to submit courts.state.ny.us distinguished historians and presenters, furnishing three a suggested “name” for our WEB site: articles of enduring value. The first, John Jay As New York’s newsletter. Please e-mail your www.courts.state.ny.us/history First Chief Judge, is written by Walter Stahr, one of Jay’s suggestions to us along with BOARD OF EditORS prominent biographers. We are also fortunate to have your contact information. The Judith S. Kaye an article by George Martin on C.C. Burlingham. Martin winning name will appear Albert M. Rosenblatt published a full length biography on Burlingham in 2005. on our next issue and the Lastly, Margery Corkin Eddy, Lisa LeCours, Paul McGrath, contributor will be recognized. Leon B. Polsky and Frances Murray have combined to write a significant Frances Murray piece on Judge Harold Stevens, the first African-American to serve on the New York EditOR-in-Chief Court of Appeals. In all, three articles reflecting the expansion of this periodical into a Henry M. Greenberg publication of lasting historical value. Managing EditOR Marilyn Marcus This issue represents a turn in the road in connection with the Society’s written output. Readers will see that this publication has become a good deal more than a “Newsletter.” AssOciate EditOR Charlotte Owens It does, of course, contain news and information, but it has grown into a full-scale literary journal, with articles of historical substance and scholarship. Recent issues have design included articles on the Roberson privacy litigation, the Lemmon (anti-) slavery case, Patricia Everson Ryan the Barnes-Roosevelt Lawsuit, the Peggy Facto homicide, and many others. The Trustees have liked what they have seen and we hope our readers have too. CONTRIBUTORS: WalteR StahR is the author Albert M. Rosenblatt of a new book, John Jay on which President, the historical society of the Courts of the state of new york this article is based. He is General Counsel of EMP Global, LLC in Washington, D.C. GEORge MARtin is the author TO the EditOR of a dozen books, including biog- raphies of Frances Perkins and To the Editor: Giuseppe Verdi. He lives in Kennett Square, Pennsylvania. N MAY 22, I attended the reargument of Palsgraf v. FRances MURRAY is Chief O Legal Reference Attorney for the Long Island R.R. Co., 248 N.Y. 339 New York Court of Appeals. She is (1928). The proceedings were his- Law Journal New York a founding member and Secretary of the Historical Society and custo- torically informative and thought dian of reference materials on the provoking while at the same time Historical Society’s website. most enjoyable. The Historical : Rick Kopstein, MARGERY CORBIN EDDY is a Society of the Courts of the State PHOTO Principal Court Attorney with the New of New York received a well- York Court of Appeals' Central Legal Research Staff and a former Principal deserved round of applause at the The “bench” that heard the May 22, 2006 Palsgraf reargument Law Clerk to Hon. Victoria A. Graffeo, conclusion of the program. with the evening’s hosts, Chief Judge Judith S. Kaye and Judge Associate Judge of the Court of Appeals. I had thought that reargu- Albert M. Rosenblatt. The bench from left to right: Roy L. Reardon, Bettina Plevan, Hon. Howard A. Levine (CHIEF JUDGE), Judith A. LISA LECOURS is Senior Principal Law ment was a “slam-dunk” and Livingston and Caitlin J. Halligan. Clerk to the Hon. Victoria A. Graffeo, that the LIRR would prevail once Associate Judge of the New York Court of Appeals. again. After all, wasn’t Palsgraf still the law defense lawyer’s dream. Alas, I was mistaken. in New York? How could the railroad be The five members of the prestigious bench Paul MCGRath is Chief Court Attorney of the New York Court of Appeals held liable for fireworks causing a scale at unanimously voted to grant reargument and where he is responsible for supervising the the end of a platform to fall on the plain- upon reargument reverse the prior decision Court’s Central Legal Research Staff. tiff? The bizarre Palsgraf fact pattern was of the Court of Appeals and affirm the Order undeniably a law professor’s delight and a of the Appellate Division. At long last, Helen 2 Letter to the Editor continued on page 11 A T R I B ute TO Judge Harold A. Stevens UDGE HAROLD A. STEVENS WAS THE FIRST AFRICAN-AMERICAN TO SERVE ON THE NEW YORK COURT OF APPEALS.
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