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COURTS AND LAWYERS -OF-
NEW YORK
A HISTORY 1609-1925
- BY - :
ALDEN CHESTER
Justice of the Supreme Court of New York, 1895-1918
In Collaboration with
E. MELVIN WILLIAMS Historian
:
1
VOLUME I
THE AMERICAN HISTORICAL SOCIETY, Inc. NEW YORK and CHICAGO
1925
COPYRIGHT THE AMERICAN HISTORICAL SOCIETY, INC. 1925
1154018
PREFACE
T IS THE habit of authors to write their concluding chapter as a preface to their labors. That duty remains to be performed.
Napoleon once said that "History is only a collec- tion of lies that have been agreed to." That statement may have been appropriate to some of the history upon which much of his great renown rests, but with respect to the subject matter of these volumes it can have no application. The effort here has been to get at the truth and such time as could be spared from a somewhat active and busy life, has been devoted for sev- eral years in an endeavor to accomplish that purpose.
It was Lord Chesterfield, I believe, who wrote in one of his letters to his son that "History is only a confused heap of facts." No less a person than Carlyle took another view and said in one of his essays that "History is the essence of innumerable biog- raphies." The facts upon which these volumes are based and which cover a period dating back to the earliest settlements of the country were not readily available and it took much of research to bring them into a chronological narrative. It is hoped that much of the confusion with respect to the "heap of facts" which disturbed Lord Chesterfield has been eliminated by following the suggestion made by Carlyle, for the development of the nar- ration attempted has been found to a considerable extent in the biographies of the men whose names have been mentioned and whose lives have been briefly referred to. If it were not for them these volumes would be neither desirable nor possible.
The participation of lawyers in the public life of the country and their contribution to its development are known by all well informed people. This was true to a large extent during our provincial and colonial history and to a much greater extent in
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PREFACE
the Revolutionary period. The fervid eloquence of Adams and Otis, of Patrick Henry and many other of the eminent lawyers of that day created in the minds of the colonists the spirit which ultimately led to our independence. The Constitutional Conven- tion of 1787 was dominated by lawyers and the language of the Constitution itself was largely that of a few of the members of that body who had been trained to the law. So too the first constitution of New York was prepared in great part by John Jay with the aid of other lawyers in the convention which adopted it. Of the thirty presidents of the United States twenty-one of them have been lawyers, and in comparatively recent years four eminent New York lawyers, three Democrats and one Republican, have been unsuccessful nominees of their respective parties for the presidency, viz .: Samuel J. Tilden, Alton B. Parker, Charles E. Hughes, and John W. Davis, which clearly shows the type of men the people are willing to put up as their leaders. The Con- gress and the legislatures of the various states, including our own, have had during our entire history a very considerable proportion of lawyers in their membership.
Notwithstanding all this, and probably because of it, the Bench and Bar have been the subject of severe criticism from time immemorial. Literary critics have always abounded and have appeared to get much satisfaction from their caustic comments.
It is reported that Horace Greeley, so long the trenchant editor of the New York "Tribune," said in connection with the political excitement following the decision of the Supreme Court in the Dred Scott case that the opinions of the prevailing Justices there were entitled to no more respect than the utterances of a lot of loafers in a Washington barroom.
A prominent newspaper, not many years ago in a leading editorial, predicted that the age of the law and the lawyers was passing away and that its knell had been struck. The argument was that in an early stage of social development the profession of arms embodied the principal intellectual and moral forces in the
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PREFACE
world; that the teachers of theology were the leaders of the people and the chief agents in the work of advancing civilization. It admitted, however, that after the warriors and the theologians, the lawyers and judges had interpreted, developed and reformed codes of rights and remedies which the interests of society and the necessities of government demanded. But it stated that in later years their influence and power were on the wane and fall- ing into relative decay.
Even Lord Bryce in the "American Commonwealth" (edition of 1908) marked "a decline in the tone and standing of the Bar." In a later work however ("The Modern Democracies"), he said that "legal education is probably nowhere so thorough as in the United States."
In this connection I want to quote from an address delivered in 1924 by R. B. West, Esq., as President of the Wyoming State Bar Association, on "The Social Value of the Lawyer." He said among other things :
True it is, that at different times, the profession has been severely criticized. It has been said among other things, that its members are par- asites of society, living upon values but creating none. Francis M. Burdick has given the answer to this so plain and so clear that it seems that little can be left upon which this criticism may rest. He says: "Is this the correct view? If it were, we ought to find those nations the happiest, the most peaceful and orderly, the richest and most progressive, in which the legal parasites are the fewest. But the actual state of things is just the opposite of this. China has no lawyers. In Russia the proportion of population of lawyers is one to thirty-one thousand. In Germany, one to eighty-seven hundred; in France, one to forty-one hundred; in England, one to eleven hundred; in the United States, one to seven hundred. These statistics would tend to show that the legal profession is a blessing rather than an evil; that its members are not parasites of society, but on the other hand, if not direct creators of value, they are the protection of those en- gaged in production." These words were uttered more than ten years ago and it is still of some interest to note how true Professor Burdick spoke. . . . England alone of the European nations stands four-square to every wind that blows . ... while the United States with its excessive number of so-called parasites, rides the majestic seas of time serenely, her colors
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PREFACE
flying, the eyes of the world upon her, the hope of the liberties and free- dom of mankind throughout the world. With this object lesson before us, surely we can agree with Mr. Burdick when he said: "I am sure that you will agree with me that if the lawyer is a pest, he is a liberty-loving, free- dom-promoting, property-guarding pest."
The statues of few lawyers or judges will occupy niches in the Hall of Fame. Their work is largely of the present, and is recorded, if at all, only in the dry and musty reports of the courts which the general reader rarely sees. It seemed to the publishers, therefore, that a work of the character of this one was needed. The endeavor has been to produce a history of greater scope and breadth of treatment than has heretofore been attempted.
While the subject matter of the work appeals more directly to the lawyer and the jurist, it is hoped that it may not be without interest and value to the students of history who are engaged in other walks of life. Such as it is it is submitted to the candid criticisms of its readers.
The writer could not have entered upon this work without having the knowledge in advance that he was to have the valuable assistance of Mr. E. Melvin Williams, of the publisher's editorial staff, who has spent many years in historical research and writing. He has devoted many months in the New York State Library in culling from its vast treasures materials for use in this work. To him too much credit cannot be given for the aid he has rendered in making the work what it is. It is not only a pleasure but it is fitting that recognition be made here of his literary attainments, his diligence in research and his discriminating judgment in an- alysis. I also desire as does Mr. Williams to acknowledge the obligations we owe to Dr. James I. Wyer, the efficient director of the State Library ; to John T. Fitzpatrick, Esq., and Miss Frances D. Lyon, of the State Law Library, and to Mr. William E. Han- non, Miss Ruth L. Montgomery, and Miss Ruth G. McClelland, of the Legislative Reference Library, for the many facilities they have freely afforded for research in the library, and for the many courtesies they have all so willingly extended to us. Acknowledg-
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PREFACE
ment is also made to the several jurists and lawyers upon the Advisory Board of this history for many highly appreciated suggestions.
Perhaps I should add that in the preparation of the work, especially that portion relating to the provincial and colonial peri- ods, much matter has been given that does not relate directly to the courts and lawyers of those periods, but which it seemed important to include in order more fully to elucidate the principal scope of the subject.
To each chapter is prefixed the names of most of the author- ities which have been consulted in preparation for the writing of such chapters, and therefore no further credit is deemed essential.
ALDEN CHESTER.
Albany, N. Y., 1925.
CONTENTS
PART ONE-THE DUTCH PERIOD. PAGE
Chapter I-The Bases of American Law.
3
Chapter II-Anterior to Hudson's Coming 2I
Chapter III-Hudson Heads Dutch Expedition. 3I
Chapter IV-The Early Dutch Traders. 37
Chapter V-The Dutch West India Company
49
Chapter VI-The Coming of the Walloons
59
Chapter VII-The Dutch Legal System. 63
Chapter VIII-The Patroons and Their Courts. 75
Chapter IX-The Directors-General 89
Chapter X-New Netherland Under Stuyvesant. II3
Chapter XI-Burgher Government 129
Chapter XII-The First Convention and Its Result. I53
Chapter XIII-Dutch Magistrates (The Governors and the Patroons ) I71
Chapter XIV-Dutch Magistrates (The Governor's Coun- cil) 197
Chapter XV-Dutch Magistrates: Of the Inferior Courts 217
Chapter XVI-Dutch Magistrates and Lawyers (Municipal Courts ) 257
PART. TWO-ENGLISH PERIOD.
Chapter XVII-The Conflicting Land Titles. 289
Chapter XVIII-The Duke of York's Laws 30I
Chapter XIX-The Nicolls and Lovelace Administrations. 333
Chapter XX-The Brief Colve Period. 369
Chapter XXI-First Andros Administration 385
Chapter XXII-The Dongan Régime. 397
Chapter XXIII-Second Andros Period. 43I
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CONTENTS
PAGE
Chapter XXIV-The Leisler Case. 453
Chapter XXV-Anti-Leislerians in Power 46
Chapter XXVI-Bellomont-Nanfan Period 483
Chapter XXVII-Cornbury to Tryon-1702-1775 . 507
PART THREE-AMERICAN PERIOD.
Chapter XXVIII-Genesis of State Government-The
Constitution of 1777 627
Chapter XXIX-Constitutional History 659
Chapter XXX-Constitutional History-The Convention of 1846 677
Chapter XXXI-Constitutional History-The Convention of 1867 691
Chapter XXXII-Constitutional History-Commissions of 1872 and 1876 7II
Chapter XXXIII-The Constitution of 1894. 729
Chapter XXXIV-Constitutional Convention of 1915. 745
Chapter XXXV-Constitutional History-The Existing
Constitution 757
Chapter XXXVI-Constitutional History-The Judiciary Bill of 1925. 777
Chapter XXXVII-The Courts of Last Resort 789
Chapter XXXVIII-The Supreme Court .. 829
Chapter XXXIX-The Court of Chancery. 867
PART FOUR-JUDICIAL DISTRICTS.
Chapter XL-The Judicial Districts and the County Sys- tems 879
Chapter XLI-First Judicial District 891
Chapter XLII-Second Judicial District. 93I
Chapter XLIII-Third Judicial District.
977
Chapter XLIV-Fourth Judicial District 1089
Chapter XLV-Fifth Judicial District II3I
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CONTENTS
PAGE
Chapter XLVI-Sixth Judicial District ..
1165
Chapter XLVII-Seventh Judicial District. 1213
Chapter XLVIII-Eighth Judicial District.
I253
Chapter XLIX-Ninth Judicial District.
1297
Chapter L-Associations of the Bar, Law Libraries and Law Schools I323
Chapter LI-New York's Contribution to the Supreme Court of the United States, 1789-1925 I343
PART ONE
THE DUTCH PERIOD
CHAPTER I. THE BASES OF AMERICAN LAW .*
The Common Law of England is the substratum of Amer- ican jurisprudence. This is generally admitted. Indeed, the statement can hardly be disputed, for the fundamental laws of England held the basic protection demanded by the Amer- ican colonists and provincials themselves, privileges claimed as their birthright by them in the Declaration of Rights and framed in the American Declaration of Independence. But while the American legal system owes much to the English, it is not unknown on both sides of the Atlantic that, in some respects, English Law has profited by American. This is not surprising ; we build by experience, and profit by the experi- ence of others. A little research in historical jurisprudence uncovers the fact that both English and American legal codes have drawn, with advantage, from other codes. Instances are seen in the constitutions of the states of New York and New Jersey, both of which states reflect, to some extent, the influence of their early Dutch communities upon their soci- eties and institutions. Further research convinces the student that the fabric of Roman law had place in the Dutch legal system of mediæval and later times; indeed, he sees clearly that Roman influence permeated the polities of almost all
*AUTHORITIES-Guizot's "History of Civilization in Europe"; Green's "Short History of the English People"; Macaulay's "History of England"; Usher's "Rise of the American People"; Hawthorne's "History of the United States"; Hunt's "Madison's Notes"; Wessenaer's "Historia van Europa"; Mommsen's "History of Rome"; Lecky's "History of European Morals"; Motley's "Rise of the Dutch Republic"; Hallam's "History of the Middle Ages"; Dougherty's "Constitutional History of New York State"; Chester's "Legal and Judicial History of New York"; Eastman's "Courts and Lawyers of Pennsylvania"; Werner's "Civil List and Constitutional History of the Colony and State of New York"; "Encyclopedia Britannica"; Maine's "Early History of Institutions"; and a pamphlet published in Phil- adelphia, by William Bradford, in 1687, entitled; "The Excellent Privilege of Liberty & Property being the Birth-right of the Free-born Subjects of England."
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western nations, that of England least of all perhaps.1 No human experience is forever lost. The German tribes of the period of the Roman Empire maintained their independence of thought and custom; yet we find that the great German princes who ruled the greater part of Europe for some cen- turies after the fifth were Christianized and Romanized; and, as we have recently seen, the spirit of the Roman Empire lived again in the militaristic policy of the Teutons, fifteen centuries after the supremacy had passed from the Latins and Rome had been sacked by the Vandals. No nation is entirely original in its polity, not even the English, although Guizot found among the Anglo-Saxons "the most perfect type of barbaric royalty." When the royalty became Christian the Roman influence crept in, but in the early centuries the Teu- tonic tribes north of the Rhine successfully resisted the Latin trend, while other tribes of the Aryan race-the Celts in Britain, for example-adopted Roman customs and language, though not commonly. And even after the Christian religion, under Roman missionaries, had displaced the religion of Woden and Thor in Britain-which island the Engles and Saxons, during a century of conquest, had made the land of the English-the Latin speech "could not stand its ground against the Anglo-Saxon."2 Instances of the etymological
I. "The old English government (before the Reformation) was one of a class of limited monarchies which sprang up in Western Europe during the middle ages, and which, notwithstanding many diversities, bore to one another a strong family likeness. That there should have been such a like- ness is not strange. The countries in which these monarchies arose had been provinces of the same great civilized empire, and had been overrun and conquered about the same time, by tribes of the same rude and warlike
nation. They were members of the same great coalition against Islam. . Their polity naturally took the same form. They had institutions derived partly from imperial Rome, partly from papal Rome, partly from the old Germany."-Macaulay's "History of England, Vol. I, 22.
2. Nothing in the early existence of Britain indicated the greatness which she was destined to attain. . She was subjugated by Roman arms; but she received only a faint tincture of Roman arts and letters. . No writer of British birth is reckoned among the masters of Latin poetry and eloquence. . .
. . . In our island the Latin appears never to have superceded the old Gallic speech, and could not stand its ground against the Anglo-Saxon. Ibid., Vol. I, 2.
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THE BASES OF AMERICAN LAW
independence of the Anglo-Saxon are in the days of the week, derived from the gods of the barbarians.3 And, as the Eng- lish are looked upon as "the one purely German nation that rose from the wreck of Rome," one might, in looking for bases, lose sight of the subsequent merging of British and English and the Romanizing of both to some extent in medieval times by the Popes, and expect to find that English law is an original structure, a polity built of fixed principles which permit of no deviation and accept no innovations. The contrary is what one does find however. Certain vital principles, it must be admitted, have been immovable. But in the application of these fundamentals sensible flexibility has been gained by legal interpretations which meet the case and the time.4 Es- pecially noticeable for its flexibility has been the Common Law of England as adapted to American needs.5 Pinckney at the memorable convention which drafted the United States Constitution in 1787, said: "A system must be suited to the habits and genius of the People it is to govern, and must grow out of them." Such probably has been the trend of thought of publicists since the beginning of political history. A close study of fundamental law, however, fails to determine in what ancient period the principles which have been the main pillars
3. Wednesday is Woden's-day, as Thursday is the day of Thunder (Thor), the god of air and storm and rain. Friday is Frea's-day, the deity of peace and joy and fruitfulness. Saturday commemorates an obscure god Saetere; Tuesday the dark god, Tiw, to meet whom was death .- Green's "Short History of the English People," Book I, Chap. I.
4. Macaulay shows that while the English polity has adhered to cer- tain fundamental principles, "so ancient that none can say when they began to exist," it has been expanded, and flexibly applied, to meet the needs of the nation's growth. He writes: "The present constitution of our country is, to the constitution under which she flourished five hundred years ago, what the tree is to the sapling, what the man is to the boy. The alteration has been great. Yet there never was a moment at which the chief part of what existed was not old."-Macaulay's "History of England," Vol. I, 20. 5. "It is one of the noblest properties of this common law (of Eng- land, as adopted in America) that, instead of moulding the habits, the man- ners, and the transactions of mankind to inflexible rules, it adapts itself to the business and circumstances of the times, and keeps pace with the im- provements of the age."-C. J. Gibson, in Lyle v. Richards, 9 S. & R., 351 ; quoted in Eastman's "Courts and Lawyers of Pennsylvania," Vol. I, 157.
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of the jurisprudence of Western civilization were first placed in the polity of a sovereignty.6
The student might take up the study of Magna Charta of 1215 A. D. What would he find? That that great code had as its base the Charter of Henry the First, with additions which, for the most part, were but formal recognitions of the judicial and constitutional changes introduced by Henry the Second. If he would go farther back in English history-to the sixth century-he would find the sons of Hengest and Aelle settling down in their new land in little pastoral village-common- wealths of kinsfolk, tilling the soil, observing the blood-bond in judging by witness of the kinsfolk, making laws in the assembly of the freemen, and choosing their own leaders much as their forefathers had in former centuries beside the Weser and the Elbe, thus manifesting traits akin to those of their Aryan ancestors of the time of the northwestern migration from Central Asia, and not unlike those of the Aryan tribes of the southeastern migration-the Indians and Persians who, in their village communities of even modern times, have shown similar habits of life. All of which leads to the thought that, in principle, free institutions such as we in America enjoy may
6. The Roman Republic of course was essentially based upon the peo- ple; and the imperial royalty which began the Roman Empire and struggled for fifteen centuries against the ruin of the Roman world, was based on the recognition, at least by the early emperors, for instance Augustus and Tiber- ius, that the emperor "is the representative of the senate, the comitia, and the whole republic." The emperors named felt themselves in the presence of the late sovereign people, and "addressed them as their representatives and ministers."
In the great German invasion of the fifth century, the power was with the people. Barbarian royalty was essentially elective, though in some tribes the candidates for election were drawn only from the families of gods and demi-gods. In the religious royalty which gradually gained power in the seventh and eighth centuries we find principles not unlike those of the familiar Magna Charta of five centuries later. Quoting from the canons of the Council of Toledo, the status of king, in his relation to the people, in the seventh century, was as follows :
"The king is called king (rex) because he governs justly (rectè). If he acts with justice (rectè) he legitimately possesses the name of king; if he acts with injustice he miserably loses it. Our fathers, therefore, said with good reason : Rex ejus, eris si recta facis, si autem non facis, non
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THE BASES OF AMERICAN LAW
perhaps be traceable back to our Aryan ancestors of ancient days, before the migration from Central Asia-the cradle of mankind, some think.
Another point seems clear, viz .: That the determining factor in the science of law is evolution-the evolution of custom. Established custom grows out of the basic habits of mankind, which are instinctive-second nature, as it were. So custom is inherited, passed on from one generation to the next, from one people to another, from one civilization to another, chang- ing with the passage, in degree or intensity, but remaining fundamentally the same; for the simple reason that human nature does not basically change, the primitive being always the basic elements that govern man's instincts, even though the modern may control his action. Law follows custom. Law seems to be, indeed, but the reflection of custom. Laws may be changed to suit the selfish interests of scheming pow- erful minorities, but the customs followed by the common people eventually, inevitably, shape the legal pattern. The habits of the few cannot govern the acts of the many ; at least, not for long. The grooves into which the laws, to live long, must fit are those made by the weight of mankind, by the
eris. The two principal royal virtues are justice and truth (science of the reason).
"The royal power is bound, like the people, to respect the laws.
Obedience to the will of Heaven, gives to us and to our subjects wise laws which our greatness and that of our successors is bound to obey, as well as the whole population of our kingdom.
"God, the creator of all things, in disposing the structure of the human body, has raised the head on high, and has willed that the nerves of all the members should proceed therefrom. And he has placed in the head the torch of the eyes, to the end that from thence may be viewed all things that might be prejudicial. He has established the power of intellect, charg- ing it to govern all the members and wisely to regulate their action. .
It is first necessary, then, to regulate what relates to princes, to watch over their safety, and to protect their life, and then to order what relates to the people ; so that in guaranteeing, as is fitting, the safety of kings, they at the same time guarantee, and more effectually, that of the people."-Forum Judicum, I Lib., 2; Tit., I, 1, 2; 1, 4; quoted in Guizot's "Civilization in Europe," eighth lecture.
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