The Origins of an Independent Judiciary in New York, 1621-1777Mike Rappaport

Scott D. Gerber (Ohio Northern University - Pettit College of Law) has posted The Origins of an Independent Judiciary in New York, 1621-1777 (Social Philosophy & Policy, Vol. 28, p. 179, Winter 2011) on SSRN. Here is the abstract:

One of the central features of the U.S. Constitution is its establishment of an independent judiciary, in which the federal courts constitute a separate branch of the national government, federal judges enjoy tenure during good behavior, and their salaries cannot be diminished while they hold office. In "The Origins of an Independent Judiciary in New York, 1621-1777," Scott D. Gerber explores the development of the concept of judicial independence in New York State and traces its influence on the drafters of the federal constitution. Gerber recounts New York's judicial history through four periods. From 1621 to 1664, the territory was administered by the Dutch West India Company under a charter from the Dutch government. During this period, the Company established "schout" courts in various parts of the territory, courts made up primarily of mayors and aldermen, whose members exercised both legislative and judicial power. In 1664, the Dutch ceded control of the territory to England, and from 1664 to 1685 New York was under the authority of James, the Duke of York, brother of Charles II, the King of England. In contrast with the earlier period, legislative and judicial powers were divided. The duke established a judicial system consisting of: town courts (with jurisdiction over minor civil disputes); a court of sessions (with jurisdiction over more significant civil disputes, as well as noncapital criminal cases); and a court of assizes, which handled capital cases and appeals from the lower courts. After the death of Charles II in 1685, the Duke of York became King James II, and New York became a royal colony. This period (from 1685 to 1776) saw the establishment of county courts of common pleas, as well as a supreme court whose justices were appointed by the colony's governor and served at his pleasure. Finally, during the early state period, after the adoption of the New York Constitution of 1777, significant steps were taken toward increasing the independence of the judiciary. Judges of the supreme court and the county courts were selected by a council of appointment-rather than by the governor-and they held office during good behavior (though they faced an age limit of sixty years). The history of the judiciary in New York, Gerber concludes, represents a slow and imperfect progress toward the ideal of judicial independence, an ideal that would become more fully realized with the institution of an independent federal judiciary in the United States Constitution of 1787.