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GENEALOGY COLLECTION
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COURTS AND LAWYERS -OF-
NEW YORK
A HISTORY
1609-1925
- BY -
F967 M-1 8
ALDEN CHESTER
Justice of the Supreme Court of New York, 1895-1918
In Collaboration with E. MELVIN WILLIAMS Historian
VOLUME II
THE AMERICAN HISTORICAL SOCIETY, Inc. NEW YORK and CHICAGO 1925
COPYRIGHT THE AMERICAN HISTORICAL SOCIETY, INC. 1925
1154019
CHAPTER XXV. ANTI-LEISLERIANS IN POWER .*
15.00 (Erols)
The Prince of Orange undoubtedly did England and Eng- land's colonies substantial good by ousting James II, for had he not done so, and had no other Protestant force checked the bigoted Catholic King, there is little doubt that the impending transferrence of ecclesiastical power from the Church of Eng- land to the Church of Rome would have had a bloody trail to mark its progress-in America, perhaps, as well as in Eng- land. But apart from this inestimable service, the "happy revolution" which seated Prince William as William III of England, co-ruler with his wife, Queen Mary, a daughter of James II, did not accomplish much for Englishmen. Amer- icans especially were disappointed when they realized ulti- mately what little change William and Mary effected in gov- ernmental processes.
Possibly, the shrewder public men of the colonies did not expect much, knowing that fundamentally Crown interests were alike. Apart from the demands that arise from religious differences, what suited the outgoing King would very nearly meet the requirements of the incoming ruler. It was so with William. Governor Sloughter's commission was almost iden- tical with that given Governor Dongan; and the officials who served James II in America were generally acceptable to William III. Accordingly, the procedure of Governor
*AUTHORITIES-O'Callaghan's "Documents Relative to the Colonial History of New York"; "History of Westchester County," 1925; Chester's "Legal and Judicial History of New York"; Dougherty's "Constitutional History of New York"; Howard's "Local Constitutional History of the United States"; Goodnow's "Comparative Administrative Law"; "Journal of the New York Assembly"; Werner's "Civil List and Constitutional His- tory of the Colony and State of New York"; "History of the Bench and Bar of New York"; Hawthorne's "History of the United States"; Bryant's "History of the United States."
C.&L .- 30
7
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COURTS AND LAWYERS
Sloughter was very much like that followed by Dongan.1 Possibly, William was so much concerned with the greater affairs of state, and the perplexities that were developing out of the uncertain course of the war then proceeding, that he overlooked that Dongan, acting on his commission, had called an assembly of freemen, in 1683, who passed certain acts which were positively damaging to royal prerogative. The Charter of Liberties then passed was "the earliest charter dis- tinctly to formulate the principle of representation as a con- dition of taxation."2 Perhaps William did not overlook this,
I. In New York especially the hopes aroused by the seating of the new sovereigns on the throne soon suffered a dismal defeat-the event being attended by tragic circumstances, which originated social and political di- versities unexampled for their bitterness and long continuance. The King, a born Netherlander the citizen of a republic, and the life-long enemy of Louis XIV, the impersonation of Absolutism, might naturally be counted on as a friend of civil and religious liberty at home and abroad. If his Dutch kin, in ancient New Netherland ever imagined that he would turn a more kindly eye or listening ear to them now that he had become their sovereign king, the illusion was but transitory. He had no heart, it is said, for anything but continental politics, and incidentally to preserve from further curtailment, in home affairs, as much of the royal prerogative as the wreck of the revolution had left intact. Colonial affairs seem never to have attracted his attention or excited his interest further than to resist the sug- gestion made to him, to surrender some portion of his prerogative powers of governing the colonies himself in council. It was the Englishmen at home who gained new guarantees of constitutional rights, enlarged freedom from arbitrary power and security against unrestrained prerogative. As for Englishmen in the colonies, their relation to the Crown remained what it always had been, which was, according to William's first chief justice of the King's Bench, Holt, that "their law is what the King pleases"; for, accord- ing to Granville, a member of the Privy Council, "the Governor's instruc- tions are the law of the land, for the King is the Legislator of the Col- onies." Under the instructions-copied nearly verbatim from the Duke of York's instructions to Dongan-given to Colonel Henry Sloughter, Wil- liam's first governor, who arrived March 19, 1691, writs were issued for a general assembly of freeholders, which accordingly convened on April 9 .- Redfield, in "History of the Bench and Bar of New York," (1897), Vol. I, 58.
2. The assembly which was accordingly chosen was a notable one . but its chief title to lasting recollection comes from its promulgation, on October 30, 1683, of the famous instrument known as the Charter of Liberties and Privileges." The charter declared that the supreme legisla- tive authority, "under his Majesty and Royall Highness should forever be and reside in a governor, counsell and the people mett in General As- sembly," and it provided for government by and according to the laws of
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ANTI-LEISLERIANS IN POWER
but was shrewd enough to see that he could do just as James had; he could permit the colonists to have the temporary satisfaction of passing such legislation, and at his pleasure and leisure could destroy their work by withholding his con- sent. This he did, giving yet another instance that Crown and people do not hold kindred interests. England won some substantial constitutional guarantees from William, but only by force of circumstances which made it unwise for William to resist the popular will. America, however, continued to be a "sop" to kingly dignity.
Still, when Colonel Sloughter reached New York in 1691, to establish the new order of government ushered in by William and Mary, the colonists perhaps did not realize that all royalty were alike-that kings would look askance at com- moners who presumed to wear the royal purple, and look askew at all governmental processes that jeopardized the royal prerogative. So, one might surmise that the legisla- tors who, at Governor Sloughter's call, assembled in April, 1691, to enact laws for the province of New York, were sin- cerely of the opinion-if they had time for any other opinion just then than that arising out of the Leisler case-that in themselves and not the King, was vested the right to make the laws under which the province would henceforth be governed.
Governor Sloughter's commission named as his Council men who were in reality Anti-Leislerians. They were: Fred-
England, liberty of choice for all freeholders in elections, and toleration in religion. In the plainest terms it announced that no taxes of any kind should be levied within the province without the assent of the people's representatives.
This charter was not exactly the "pioneer among charters or constitu- tions conferring upon the people the right of representative government, as it was preceded not only by the "Union of Utrecht" in Holland, but also by the Connecticut charter of 1639. This Connecticut charter was the first practical assertion in America of the right of the people to choose their officers and define their powers. . .. The Charter of Liberties, how- ever, was, perhaps, the earliest charter distinctly to formulate the principle of representation as a condition of taxation .- Dougherty's "Constitutional History of New York," Volume II of Chester's "Legal and Judicial His- tory of New York," pp. 12 and 13.
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erick Phillipse, Stephen van Cortlandt and Nicholas Bayard, the three to whom Lieutenant-Governor Nicholson had delegated his authority ; William Smith, Gabriel Minvielle, Nicholas de Meyer, Francis Rombout, who were nominated by Governor Dongan; Chidley Brook, William Nicolls, Thomas Willett, William Pinhorne and John Haines. These public men promptly gave the Governor their eager assistance, their ad- vice in the main being anti-Leislerian, it would seem. The new Governor promptly issued commissions to John Law- rence and William Pinhorne, as mayor and recorder respect- ively of New York City, and also appointed sheriffs for the counties.3 Probably, in view of the important cases pending, Governor Sloughter selected as his attorney-general the Bos- ton lawyer, Thomas Newton, "who was reputed to be the best lawyer in America." Newton resigned his appointment in the following month, however, and James Graham became attorney-general. Within five days of the arrival in New York of the Governor, the special commission of Oyer and Terminer, for the trial of Leisler and his associates, was issued, as has been stated in Chapter XXIV.
The Governor and his Council soon took the necessary steps to summon general assemblies "of the Inhabitants being Freeholders," in accordance with a clause in the King's com-
3. Gasper Teller was appointed Sheriff of Albany in March, 1691 ; Gerrit Strycker was appointed March 21, 1691, for King's County, suc- ceeding Myndert Coerten, sheriff under Leisler; Johannes Jansen was sheriff of New York from Oct., 1689 until January, 1691, when Abraham Brasher took office, vacating it, however, on March 2Ist for the Gov- ernor's appointee, Thomas Lyndal. Floris Willemse Crom was appointed for Orange County February 9, 1690. John Coe was Leisler's sheriff in Queens County until January 19, 1691, when John Lawrence was appointed, John Jackson succeeding him on March 21, 1691. Eli Crosson was sheriff of Richmond County during Leisler's administration; Thomas Stillwell was appointed March 21, 1691. Matthew Howell was sheriff of Suffolk County from December, 1689, to March, 1691, when Josiah Hobart took office. Ulster County had William de la Montagne as sheriff for first half of 1690, and Johannes Hardenbrook from July, 1690, to March, 1691, when Cornelius Bogardus was appointed. Thomas Statham was Leisler's sheriff in Westchester County, Benjamin Collier succeeding him in March, 1691.
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ANTI-LEISLERIANS IN POWER 469
mission to Sloughter.4 The freeholders were ordered to meet in their respective districts, and elect delegates to represent them in the General Assembly of "our Province and the Terri- tories thereunto belonging." No legislator who did not take the test, i. e., who was not a sworn Protestant, could sit in the Assembly, even though he took the oaths of allegiance and supremacy. The Governor, "by & with the consent of our said Councill and Assembly," had full power "to make, constitute and ordaine Laws, Statutes & ordinances for ye republique Peace, welfare and good Government of our said Province," but he was required to transmit a draft of such laws to the King and Queen within three months of their
4. "And we do hereby give & grant unto you full power and authority, with the advice and consent of our said Councill from time to time as need shall require, to summon & call generall Assemblies of the Inhab- itants being Freeholders within your Government, according to the usage of our other plantations in America. And our Will and Pleasure is that the persons thereupon duely elected by the Major part of the Freeholders of the respective Countys and places and so returned and having before their sit- ting taken the oaths of Allegiance and Supremacy and the Test-which you shall Commissionate fit persons under our seal of New York to administer, and without taking which none shall be capable of sitting though elected- shall be called and held the Genral Assembly of that our Province and the Territories thereunto belonging. And that you, the said Henry Sloughter, by and with the consent of our said Councill and Assembly, or a major part of them, respectively have full power and authority to make, constitute and ordaine Laws, Statutes & ordinances for ye republique Peace, Welfare and good Government of our said Province and of the people & Inhabitants thereof, and such others as shall resort thereto & for the benefit of us, our Heirs and Successors. Which said Laws, Statutes and Ordinances are to be as near as may be) agreeable unto the Laws, Statutes of this our king- dom of England. Provided that all such Laws, Statutes & Ordinances, of what nature of Duration sowver, be within three months, or sooner, after the making thereof, transmitted to us, under our seal of New York for our Approbation or Disallowance of the same, as also Duplicates thereof by the next conveyance. And in case any or all of them, being not confirmed by Us Shall at any time be disallowed & not approved, and so signified by Us, our Heirs & Successors, under our or their Sign Mutual and Signet, or by order of our or their Privy Council unto you the said Henry Sloughter, or to the Commander in Chief of the said Province for ye time being, then such and so many of them as shall be soe disallowed and not approved shall from thenceforth cease, determine & become utterly voyd and of none effect, anything to the contrary thereof notwithstanding." -See O'Callaghan's "Documents Relative to the Colonial History of the State of New York," III, 624.
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COURTS AND LAWYERS
enactment, for their "Approbation or Disallowance." The royal veto, however, was not likewise hedged in by a time limit. Their majesties might consider the acts at their leisure, and declare their will at their pleasure. This they did, the status of the laws thus made being somewhat like that of executive ordinances, revocable at will. Six years after the passage of the Charter of 1691, the King vetoed the measure, and from that time until the Revolution government was continued under an unwritten constitution, with the common law of England as the fundamental law of the province.5
On April 6, 1691, the Assembly was "summoned to meet." The first session began on April 9 and ended on May 18. The second session of that year began on September II and ended on October 2. In the next year, the spring session was from
5. The charters of 1683 and 1691 made a shadowy differentiation between executive, legislative and judicial authority. They followed in the main the English theory of colonial government. The council and the assembly constituted a bicameral legislature. The governor and after him the king had an absolute veto on all its acts. Landed proprietors alone were recognized as entitled to share in the business of government. The mem- bers of the council received their commissions from the crown, but the governor had a qualified right to fill vacancies. Besides sitting as an upper legislative chamber, the council sat as a privy council to advise and assist in political cases. The governor was empowered to adjourn, prorogue and dissolve the assembly in his discretion.
Substantially this type of government was continued until the Rev- olution, but under an unwritten constitution, no actual charter having been in force after 1697. As has been well said by Mr. Lincoln in his exhaustive treatise upon our constitutional history, the student who would understand the essentials of the institutions which by degrees had been evolving in the colony, will find them formulated in the commission issued in February, 1771, three years before the commencement of the Revolution, by George III, to Governor William Tryon, and in the instructions that accompanied and explained the commission.
In an explanation of the nature of the colonial constitution, trans- mitted by Governor Tryon to the home government in 1774, its salient features are briefly and admirably described. Its constitution, since it became a royal province, "nearly resembled that of Great Britain and the other royal governments in America." The governor was the king's ap- pointee and held office during the royal pleasure; he had a council in imi- tation of his majesty's council; the province "enjoyed a legislative body," consisting of the council and representatives of the people, "chosen as in England," which the governor might adjourn, prorogue, or dissolve; it could make no laws repugnant to the laws and statutes of Great Britain,
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ANTI-LEISLERIANS IN POWER
April 20 to 29, and summer session from August 17 to Sep- tember 10. This assembly, which comes into colonial records as the first of the thirty-one assemblies of the colonial period of English rule, was dissolved September 13, 1692. Some of the legislation enacted by this assembly was important, but if only because of its distinctive place in colonial history as the first people's body called together "under direct authority of the Crown" (the Duke of York, not King Charles, having authorized the summoning of the Dongan Assembly of 1683), its personnel should be recorded. The members of this
FIRST ASSEMBLY
and their respective districts were as follows :
Speaker: James Graham, of New York. Clerk: John Clapp, of Westchester.
and over all its enactments the governor possessed an absolute veto. Within three months after its passage, every law was required to be sent to his majesty for his approval. The governor was not to give his consent to any law that was not to remain in force for two years. No clause foreign to the import of the title of an act might be inserted in that act, and no act might be suspended, altered, continued, revived or repealed by general words, but the title and date of any such act was required to be particularly mentioned in the enacting part. The province had a court of chancery in which the governor sat as chancellor, and courts of common law, the chief being the supreme court, the judges of which held their commissions at the king's pleasure, and there were county courts of less jurisdiction, and the justices of the peace to try minor cases. There were also criminal courts "correspondent to those in England." Besides these tribunals, all administered according to the common law, there was a court of admiralty which proceeded "after the course of the civil law," and a prerogative court, charged with the probate of wills, the administration of estates and the issuing of licenses for marriage. The governor was commander-in-chief, and appointed all military officers, who held at his pleasure. He had power to suspend the lieutenant-governor and members of the council, and to grant pardons, except in cases of treason and murder. The colony could erect forts and other means of defence and establish and maintain a militia. Public money was to be paid only on the governor's warrant, approved by the council. The common law of England was con- sidered the fundamental law of the province, and, continued the governor, "it is the received doctrine that all statutes not local in their nature, and which can be fitly applied to the circumstances of the colony, enacted before the province had a legislature, are binding upon the colony; but that statutes passed since do not affect the colony, unless by being specially named. Such appears to be the intention of British legislation."-Dough- erty's "Constitutional History of New York," II, 15-17.
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COURTS AND LAWYERS
Sergeant-at-Arms : Benjamin Phipps.
Doorkeeper: William Welsh.
From Albany : Dirck Wessels, Levinus van Schaick.
From Kings: Nicolas Stillwell, John Poland.
From New York: James Graham, William Merrett, Jacobus van Cortlandt. Johannis Kipp.
From Queens: John Bound, Nathaniel Pearsall. (They were Quakers and refused to take the oath, and so were dis- missed). Daniel Whitehead was admitted April 14, 1691. John Tredwell was admitted same day, but expelled two days later, being arrested on a "scandalous" charge. John Robin- son was elected in place of Tredwell.
From Rensselaerswyck: Killian van Rensselaer, who was admitted on May 1, 1691.
From Richmond: Ellias Duksberry and John Dalley. Lambert Dorland was admitted September 17, 1691, in place of Dalley, deceased.
From Suffolk: Henry Pierson and Matthew Howell.
From Ulster and Dutchess: Henricus Beekman, Thomas Garton, who resigned on April 10, 1691; William Demiere, admitted April 25, 1691, in Garton's place.
From Westchester : John Pell.
Under the impression that most of the acts of the 1683 Assembly were null and void6 because they had not received the approval of Charles II or the Duke of York, the legis-
6. One of the first resolutions adopted by the First Assembly in 1691 reads as follows :
"Upon an information brought into this House by several Members of the House, declaring. That the several Laws made formerly by the Gen- eral Assembly, and his late Royal Highness, James, Duke of York, &c., and also the several Ordinances, or reputed Laws, made by the preceding Governors and Councils for the Rule of their Majesties Subjects within this Province, are reported amongst the People, to be still in force :
"Resolved, Nemine Contradicente, That all the laws consented to by the General Assembly, under James, Duke of York, and the Liberties and Privileges therein contained granted to the People and declared to be their Rights not being observed and not ratified and approved by his Royal High- ness, nor the late King, are null, void, and of none effect. And also the several Ordinances or reputed laws made by the late Governors and Coun- cils, being contrary to the Constitution of England, and the Practice of the Government of their Majesties other Plantations in America, are likewise null, void, and of none effect nor force within this Province."-"Journal of the New York Assembly," p. 8.
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ANTI-LEISLERIANS IN POWER
lators of 1691 proceeded to reënact most of the important measures of the Dongan Assembly that were then in force. They did not suppose that their Majesties had any other wish than that the people should be granted the governmental privileges they had, in their naive confidence, believed it had been the intention of the Duke of York to grant them. It is, indeed, said that the Duke actually did approve of 1683 legis- lation, although the approving papers were never returned, for the extraordinary reason that the unexpected demise of King Charles changed the aspect of colonial affairs for the Duke of York.7
Most of the acts followed word for word, with only slight variation, those of the Dongan Assembly. Important among them was that establishing county government, a system of administration by supervisors elected by the freemen of the several towns, and a county treasurer, elected by the voters of the county at large, which is substantially the system of local government still in force in New York State. The sys- tem was abolished in 1701, but reestablished in 1703, and thereafter developed into a satisfactory permanency which "was destined to have a profound influence on the subse- quent development of local administration in the United States."8 In New England the county has only incidental authority, the towns being well-nigh independent political entities, dominating local government in the county divi- sions. The same conditions prevail in many parts of the Southern States, but the West adopted the New York and Pennsylvania system of supervisors, and have held to it.9
7. The Acts of the New York Assembly of 1683 were duly transmitted for approbation to the Duke of York; but although they were, with some ... amendments approved by him and his Commissioners, and although the documents were signed and sealed which were to declare this, the death of Charles II, in the succeeding February, changed the whole current of action. The Duke ascended the throne as James II. The approving papers were never returned .- "History of Westchester County, N. Y." (1925), p: 66. 8. "Comparative Administrative Law," by Frank J. Goodnow, I, 168. 9. "To New York first, and next to Pennsylvania belongs the honor of predetermining the character of local government in the west. But if
.
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COURTS AND LAWYERS
Some of the minor acts passed by the 1691-92 Assembly affecting the counties may be supposed to include those to which reference is made in Westchester County records.10 But, in all probability, the minds of the Assemblymen were set more upon the reenactment of the "Charter of Libertyes and Privileges." One might reasonably think so, for the personnel of the Second Assembly was almost identical with that of the First, and the attitude of the Second Assembly once drew from Fletcher, the successor of Sloughter as Gov- ernor, the angry observation: "There are none of you but what are big with the privileges of Englishmen and Magna Charta." So, on May 13, 1691, the legislators passed "An Act declaring what are the Rights and Privileges of their Majesties' Subjects inhabiting with the Province of New York." In their ignorance of royal characteristics and prece- dents, they were not cognizant "that the Crown could take no steps backward," which theory Whig statesmen of William and Mary were just as ready to bring to their notice as would have been the most loyal Tory lawyer of James II. William could comfortably wear the coat of James if he could wear his crown. It follows, therefore, that what suited James in the government of his American provinces would, in general, suit William. In vetoing the Charter of Liberties and Privileges James II had objected to the first sentence, which contained a phrase, "People met in General Assembly"; and in trans- mitting William's veto of May II, 1697, the Lords of Trade
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