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THE COURTS OF JUSTICE, IN GENERAL.
SECTION 19. The several courts of this state.
20. They are courts of record, except that some of them are courts not of record for certain purposes.
§19. The following are the courts of justice of this state:
1. The court for the trial of impeachments:
3. The supreme court, including the circuits:
4. The superior court of the city of New-York:
5. The court of common pleas of the city of NewYork:
6. The courts of oyer and terminer:
7. The county courts:
8. The surrogates' courts:
9. The courts of sessions:
10. The city courts of the cities of Albany, Brooklyn, Buffalo, Hudson, Oswego, Troy and Utica:
11. The justices' courts:
12. The marine court of the city of New-York:
14. The courts of conciliation.
§ 20. These courts are courts of record; except that the justices' and police courts are deemed inferior courts not of record, within the section of the constitution providing for the removal of justices of the peace and judges or justices of inferior courts not of record, and their clerks, by such county, city or state courts as may be prescribed by law, but for no other purpose.
This section abolishes the distinction between courts of record and courts not of record ;-a distinction which is of no practical utility, and which has introduced much confusion, in the attempt to ascertain its precise meaning.
It is thus defined by Blackstone. "A court of record is that, where the acts and judicial proceedings are enrolled in parchment, for a perpetual memorial and testimony: which rolls are called the records of the conrt, and are of such high and supereminent authority, that their truth is not to be called in question. For it is a settled rule and maxim, that nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary. And if the existence of a record be denied, it shall be tried by nothing but itself; that is, upon bare inspection whether there be any such record or no; else there would be no end of disputes. But if there appear any mistake of the clerk in making up such record, the court will direct him to amend it. All courts of record are the king's courts, in right of his crown and royal dignity, and therefore no other court hath authority to fine or imprison; so that the very erection of a new jurisdiction with power of fine or imprisonment, makes it instantly a court of record. A court not of record is the court of a private man, whom the law will not intrust with any discretionary power over the fortune or liberty of his fellow subjects. Such are the courts-baron, incident to every manor, and other inferior jurisdictions, where the proceedings are not enrolled or recorded; but, as well their existence as the truth of the matters therein contained shall, if disputed, be tried and determined by a jury. These courts can hold no plea of matters cognizable by the common law, unless under the value of 40 s.; nor of any forcible injury whatsoever, not having any process to arrest the person of the defendant. 3 Bl. Com., 24, 25.
In view of this definition of the distinction between courts of record and courts not of record, which was recognised by the supreme court, as late as 1840, in Wheaton v. Fellows, 23 Wend. 377, the statutes of this state have at various times declared certain inferior courts, such as the marine court of the city of New-York, the late municipal court of the city of Brooklyn, and some of the justices' courts in cities, in express
terms to be courts of record. And yet, notwithstanding this declaration, the courts have held that, while for certain purposes they are deemed courts of record, they are not such, as between party and party. For example, it was held in The People v. The Marine Court of the city of New-York, 12 Wend. 220, that the marine court had not the power, incident to a court of record, to set aside a judgment and grant a new trial. Though in the subsequent case of Watson v. Smith, 13 Wend. 51, it was held, that, being a court of record, it has power to issue a commission to examine witnesses residing abroad. More recently it has been held, both by the court of errors and by the superior court of the city of New-York, that it is not a court of record for the purpose of appointing a crier, a power incident to courts of record, as that term is understood at common law; and in Wheaton v. Fellows, 23 Wend. 377, already referred to, it was held, that the justices' court of the city of Albany, which is declared in terms, by the statute creating it, to be a court of record, though a court of record for some purposes, is not such in the exercise of its jurisdiction between party and party.
The practical result of these decisions is, that the attributes of courts of record are entirely wanting in these courts, in the powers and forms of proceeding with which they are invested, and that they exercise this jurisdiction only in reference to the right of naturalization, which is conferred by Congress upon every state court of record having a clerk and seal.
court in this
From the brief review thus given, it will be readily perceived that the distinction is one in name only. If we recur to the definition given by Blackstone, there is no state, which is not in reality a court of record. For there is none, of which it may not be said, that its records cannot be called in question. Nothing is better settled, than that the record of every court in this state imports absolute verity, and is conclusive upon the parties as to the matter which it contains. To preserve the distinction, therefore, prolific as it is, of difficulties and embarrassments, is not only unnecessary, but useless. Its only practical importance, as has been already remarked, grows out of the investment of courts of record with the power of naturalization; but the difficulty in this re(CIVIL. CODE.]
spect is readily obviated, by withholding, as is done in a subsequent portion of the code, from inferior courts, to which this power should not be intrusted, the attributes of a clerk and seal, both of which must be added to their functions as courts of record, to enable them to exercise this
While this general distinction is abolished, however, the section under consideration provides that justices' and police courts are deemed inferior courts not of record, within the section of the constitution providing for the removal of justices of the peace, and judges or justices of inferior courts not of record, and their clerks, by such county, city or state courts as may be prescribed by law, but for no other purpose.
THE COURT FOR THE TRIAL OF IMPEACHMENTS.
SECTION 21. Its jurisdiction.
22. Members of the court.
23. Who to preside.
24. Clerk and officers of the court.
25. Court, when to meet.
26. Oath of the members.
27. Compensation of the members and officers of the court.
§ 21. The court for the trial of impeachments has power to try impeachments, when presented by the assembly, of all civil officers of the state, except justices of the peace, justices of justices' courts, police justices, and their clerks, for wilful and corrupt misconduct in office.
§ 22. The court is composed of the president of the senate, the senators, or a majority of them, and the judges of the court of appeals, or a majority of them. But on the trial of an impeachment against the governor, the lieutenant-governor cannot act as a member of the court.
§ 23. The president of the senate, or in case of his impeachment, death or absence, the chief judge of the court of appeals, or in the absence of both, such other member as the court may elect, is the presiding judge of the court.
§ 24. The clerk and officers of the senate, are the clerk and officers of the court for the trial of impeach
§ 25. There are no stated terms of this court; but upon the delivery of an impeachment from the assembly, the president of the senate must cause the court to be summoned to meet at the capitol in the city of Albany, on a day not less that thirty nor more than sixty days from the day of the delivery of the articles of impeachment.
§ 26. At the time and place appointed, and before the court proceeds to act on the impeachment, the clerk must administer to the presiding judge, and the presiding judge to each of the members of the court then present, an oath or affirmation truly and impartially to hear, try and determine the impeachment; and no member of the court can act or vote upon the impeachment or any question arising thereon, without having taken such oath or affirmation.
The preceding sections of this chapter, are the same as are contained in the Code of Criminal Procedure, sec. 17—22. They are explained in the notes to that code, p. 12-14.