Bi-centennial history of Albany. History of the county of Albany, N. Y., from 1609 to 1886. With portraits, biographies and illustrations, Part 34

Author: Howell, George Rogers, 1833-1899; Tenney, Jonathan, 1817-1888
Publication date: 1886
Publisher: New York, W. W. Munsell & Co.
Number of Pages: 1452

USA > New York > Albany County > Albany > Bi-centennial history of Albany. History of the county of Albany, N. Y., from 1609 to 1886. With portraits, biographies and illustrations > Part 34

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The proceedings of the court at that early day were very similar to those in the courts at the pres- ent time. For instance: The following is the proclamation of the crier before the presiding judge charges the grand jury :

" Hear Ye ! Hear Ye ! All men or persons are strictly charged and commanded to keep silent whilst his Majesty's Commission of the Inferior Court of Common Pleas is reading."

Proclamation to open court :

"Hear Ye ! Hear Ye! All men or persons that have anything to do at this Inferior Court of Com- mon Pleas, let them draw near, give their attention, and they shall be heard."

Proclamation to adjourn the court :

" Hear Te ! Hear Ye ! All men or persons that have here appeared at this Court of Common Pleas may for the present depart, and attend again as the Court orders."

Juror's Oath : "You shall well and truly try the issue joined between A. B., Plaintiff, and C. D., Defendant, and a true verdict give according to the evidence, so help you God !"

It appears that in those days there were two constables sworn to attend the jury, with different oaths ; one of. them was probably to sit at the out- side door of the jury-room, and the other to sit by the door on the inside. Their oaths will be re- garded by the officers of the present court as some- what singular. The outside constable's was as follows :

GRAND JUROR'S OATH.

"You shall go out with such jurors as shall have leave of the Court ; you shall not suffer any person to speak to them, neither shall you speak to them, but bring them in presently, so help you God."

Constable's oath who attended the jury inside : " You shall well and truly keep every person sworn on this jury together in some private and convenient room, without meat, drink, fire, candle or lodging, or anything that shall minister to their comfort ; and you shall not suffer any person whatever to speak to them, or any of them, neither shall you, yourself, speak to them, unless it be to ask them whether they be agreed on their verdict. So help you God."

One of the most stubbornly contested cases was that of Masta Winne, who appeared in person against Hendrick Van Buren, by Rutgert Corry, his attorney. The case was tried by a jury, and a large number of witnesses were sworn for the re- spective parties. The jury found a verdict for the defendant, upon which judgment was entered. Whereupon Mr. Winne moved for forty days to file his declarations, and the defendants moved for forty days more to file their pleas, which the court granted accordingly.

APPEALS.

This procedure will hardly be understood by lawyers of the present day. As we understand it, however, this was the course adopted to remove the case to an Appellate Court. When a party was defeated, he asked leave to file his declaration or plea, as the case might be. This compelled the other party to do the same. At the expiration of the time for filing the respective pleadings, and they being filed, the case was appealed ; the pro- ceedings were stayed on granting the first motion.

Judge Gansvort was one of the judges of the Court of Common Pleas under the Federal Gov- ernment.

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HISTORY OF THE COUNTY OF ALBANY.

At a Court of Common Pleas for the City and County of Albany, held at the City Hall, in the City of Albany, on the 2d'of October, 1759, Volkert P. Douw was one of the judges of that court. This is the first time we find Judge Douw occupying the Bench of the Colonial Court of Common Pleas. He continued to preside on the bench until Janu- ary 10, 1771, when hewas succeeded by Rensselaer Nicolls.

The Colonial Court of Common Pleas continued to hold its regular terms of court under the Colo- nial laws until January, 1776, when the increasing spirit of American Independence caused it to dis- solve. Its last presiding judge was Henry Bleeker; its last term began at the City Hall, in the City of Albany, January 19, 1776.

LAST COLONIAL COURT.

There is a singular incident connected with the recorded proceedings of this term. Opposition to all manner of British rule, executive, legislative and legal, had now manifested itself to such a degree that the judges and officers of the court at the term about which we are writing organized under the immediate fear of a popular outbreak. Neverthe- less the court convened and proceeded with its busi- ness. The sheriff returned a few writs, a few judg- ments by confession and by default were taken, and some unimportant business was transacted, when the following cause was reached :

SOLOMON ECKER agst. HARME QUACKENBOSS.

The entry in the rule book then proceeds as fol- lows : "On motion of Peter W. Yates, attorney for the defendants, ordered that the plaintiff show cause at --. " Here the entry is suddenly broken off, probably by fear of the popular outbreak of the Sons of Liberty, and it is the last proceeding of the Colonial Court of Common Pleas.

On July 26 following the Declaration of Inde- pendence was read in front of the City Hall to a vast assembly of the citizens of Albany and the surrounding country.

It is proper to add that the only attorney present at the court we have described was Peter W. Yates. Henry Ten Eyck was sheriff at this time, the last under the English government ; Stephen De Lancy, clerk. The associate judges were John H. Ten Eyck and Henry Van Schaack. Judge Van Schaack had just been appointed. He was a lawyer con- trolling a very respectable practice.

It was the practice of the clerk of the Colonial Court to enter in the common rule book at the

term of court the names of all the lawyers having causes to dispose of, as follows:

" Mr. Gansevoort's rules." Then would follow a list of his causes, and the manner in which they were disposed of. Then would follow:

" Mr. Peter W. Yates," and his causes and the manner of their disposition, and so on.

At some of the terms the leading lawyers would have from ten to twenty cases under their rules, with a brief entry opposite each cause, like the fol- lowing: "The def't in this cause has confessed the action and suffered jud. before Judge Douw for £6 4s. 2d. damages, besides costs of suit. On motion of Mr. Gansevoort, attorney for pl't'f, judg- ment is ordered for the same." Often the entry would be, "Interlocutory judgment."

PROMINENT LAWYERS.

Of the lawyers whose names most frequently appear in those courts were Richard Gansvort, A. Sylvester, Mr. Corry, Robert Yates, Peter W. Yates, Mr. Bleeker. The two Yateses, Robert and Peter W., seem to have controlled for many years an ex- traordinary amount of legal business.

The Court of Common Pleas which we have de- scribed was establishsd in the State of New York by the Provincial Governor and Council, May 15, 1699, and continued in the County of Albany down to January 19, 1776. But we can find no earlier record of the court than we have given.

This court had cognizance of causes above five pounds, and, as we have seen, had three judges and three assistant judges. With some of the jus- tices they held at the same time a Court of General Sessions of the Peace for the trial of criminals.

After the adoption of the first Constitution this Court of Common Pleas was reorganized without any material change in their procedure; it continued in existence in this way until the adoption of the Constitution of 1821, when some changes were made in it, one of which was increasing the number of judges in some counties to the number of twelve.

The Constitution of 1821 provided for the ap- pointment by the Governor of five judges in each county, of whom one was designated as First Judge. This court continued until it was abolished by the Constitution of 1846, and a county court instituted in its place.

The First Judge of the Albany County Court of Common Pleas was Volkert P. Douwe. He was ap- pointed First Judge of the county by a provincial convention, by which he was commissioned January 6, 1778.

129

THE BENCH AND BAR.

FIRST COURT AFTER THE REVOLUTION.

We have seen that Judge Douw was presiding judge of the Court of Common Pleas for many years; he served with ability and learning down to May, 1775, when, moved by his patriotic spirit, he declined to hold his office under the British Gov- ernor-General of New York, and resigned.

Owing to the unsettled state of the country, few courts were held under the Constitution of the State until after the close of the war. We can find no record of any court at which Judge Douw presided, nor of any court in the County of Albany until 1785. In the meantime Judge Douw was by reason of his age compelled to retire from the bench, and on March 6, 1781, Abram Ten Broeck was appointed by Gov. George Clinton First Judge of the Court of Common Pleas of Albany County. Peter Van Ness, John Price and John M. Beekman were appointed associate judges or jus- tices. The first record of the sittings of the Court of Common Pleas in the County of Albany after the Revolution, which can be found, is the following: " At a Court of the Common Pleas, held for the City and County of Albany, at the City Hall, in the City of Albany, on Tuesday, the 10th day of January, 1785. Present --

" Abraham Ten Broeck, Esq., First Judge.

" Peter Van Ness, Esq.,

" John Price,

Associate Judges.

" John M. Beekman,

" After organizing the court adjourned until the 19th day of January, 1785.

" The court met pursuant to adjournment, January 19, 1785. Present-

" Peter Van Ness, Esq.,

" John Price, Associate Judges.

" John M. Beekman,

" On reading a license under the hand of Richard Morris, Esq., for the admission of Killiaen Van Rensselaer, Esq., to the bar of the Supreme Court, ordered that the said Killiaen Van Rensselaer be admitted an attorney and counsellor at law in this court.

" Abraham Ten Broeck, Esq., First Judge, took his seat."

LAWYERS PRESENT.

Among the attorneys present at this court were Mr. Visscher, who had a large number of causes on the calendar; Mr. Gilbert, Mr. Gansevoort, Mr. Wynkoop, Mr. Bay, Mr. Sill, Mr. Graham, Mr. Sylvester and Mr. Lush. These gentlemen repre- sented a large number of causes, of which there 17

were 131 on the docket; but none of them appear to have been tried, although several were referred, showing that the practice of trying causes in that manner was as prevalent then as at the present.

There were several judgments taken by default, and many "interlocutory judgments" entered. It seems to have been a law term of the court, as there is no record of a grand or a petit jury.

This term of court was succeeded by regular terms thereof down to 1821. The following is a list of the first or presiding judges of that court down to 1846 :

Leonard Gansvort, appointed March 19, 1794; John Taylor, appointed February 7, 1797; Nicho- las N. Quackenboss, appointed January 13, 1803; David McCarthy, appointed March 13, 1804; Charles Cooper, appointed March 29, 1806; Jacob Ten Eyck, appointed June 8, 1807; Apollo Moore, appointed June 6, 1812.

Mr. Judge Moore discharged the duties of this office till March 15, 1828, when he was succeeded by James L'Amoreaux, who discharged the duties of the office till March 12, 1833, when he was succeeded by Samuel Cheever. Judge Cheever was, on the 17th day of May, 1838; succeeded by Jacob Lansing, who presided till April 17, 1843, when he was succeeded by Peter Gansevoort, who held the office of First Judge until the court was abolished by the provisions of the Constitution of 1846.

This court was continued without material change by the Constitution of 1821 until its abolishment in 1846. The judges were appointed by the Governor and Senate for a period of five years. By the Constitution of 1846 all judicial officers were made elective.

The following is a record of the earliest Mayor's Court we can find:

" At a Mayor's Court, held at the City of Albany, at the City Hall of the said city, on the 20th day of May, 1760. Present-

"SYBRANT G. VAN SCHAICK, Esq., Mayor.

" JACOB TEN EYCK, Esq., 1 Aldermen.

" JACOB LANSING, Esq.,

" BENSON TURNER, agt.

" JOHN BARRON, -

- by Corry. by Yates.

"The sheriff returned the venire in the above cause with the panel of the jurors annexed."

Then follow the names of twelve jurors, after which appear the names of the witnesses sworn, and the following entry: "The jury charged and

130

HISTORY OF THE COUNTY OF ALBANY.

retired under two constables. The jury returned, and being asked whether they were agreed on their verdict answered 'Yes;' being asked for whom they found it, answered 'for the plaintiff, thirty- nine pounds damages, and six pence costs.'

"On motion of Mr. Yates, attorney for the defendant, the judgment being deferred until next court."

There were seventy-five causes on the calendar.

At this term "Robert Yates produced license appointing him an attorney at law for the Mayor's Court and for the Court of Common Pleas for the City and County of Albany, and was accordingly admitted." Mr. Yates was one of the most dis- tinguished lawyers of his times.

The last record of the Mayor's Court under the Colonial government closes with the year 1768. It was a court of much importance, and had, as we have said, both civil and criminal jurisdiction. After the adoption of the Federal Constitution an- other Mayor's Court was organized for the City of Albany, to which reference will be made hereafter.

THE SUPREME COURT UNDER THE FIRST STATE CONSTITUTION. - On the 19th of February, 1777, the "Convention of the Representatives of the State of New York," assembled by adjournment to Kingston, N. Y., and on the 20th of April suc- ceeding adopted, agreeably to the recommenda- tions of the Continental Congress, the first Constitu- tion of the State of New York. In it the existence of the present Supreme Court of the State was recognized. On the 3d of May, 1777, the Con- vention elected John Jay Chief Justice, and Robert Yates and John Morin Scott Associate Justices. Scott, however, declined, and John Sloss Hobart, who received the next number of votes, was de- clared elected. Judge Hobart was one of the most distinguished men of his times. He was one of " the Sons of Liberty," organized in the City of New York in November, 1765, to oppose the exe- cution of the Stamp Act. From that time till the day of his death, February 4, 1805, he was con- stantly in public life, serving in various legislative and judicial offices, as United States Senator and a Judge of the United States Court in New York. When Hobart was appointed a Justice of the Su- preme Court, Robert R. Livingston was appointed Chancellor, and Egbert Benson Attorney-General.

Fifteen persons were, on the same day, elected a Council of Safety to carry on a temporary govern- ment until the Constitution could be put into oper- ation. On the 8th of May, 1777, a plan of gov- ernment was reported, in which were the names of

the above members of the Supreme Court, as were those of the Chancellor and Attorney-General, and was adopted by the Convention. The plan also provided for the election of a Governor, Lieuten- ant-Governor, a Senate and an Assembly.

The Convention dissolved on the 13th of May, and on the 14th the Council of Safety went into operation. On the 20th a commission for holding Courts of Oyer and Terminer and General Jail De- livery in the State, drafted by Chief-Justice Jay, was issued by the Council. On the 5th of June follow- ing the Council directed that, until Legislature should otherwise provide, the Supreme Court should sit at Kingston, and that the terms should be the same as throughout 1774. These terms were the same as provided for in the ordinance of 1760. The seal of the Supreme Court was like- wise ordered to be delivered to the Council.

On the 9th of August, 1777, the first term of the Supreme Court of the State under the Constitution was held, and Chief-Justice Jay delivered the first charge to the Grand Jury.

In 1778 the Judges of the Supreme Court were empowered to devise a seal, and it was directed that all proceedings of the Court should be before the " People of the State of New York," instead of, as heretofore, " Before our Sovereign Lord the King," etc.

On the 18th of May, in 1784, the first Grand Jury of the Court of Oyer and Terminer after the Revolution sat in the City of New York. Judge Hobart, with whom was associated James Duane, Mayor of the city, held the court ; Judge Hobart delivered the charge to the Grand Jury.

FIRST COURT UNDER THE CONSTITUTION HELD AT ALBANY .- On January 1, 1785, the terms of the Supreme Court were directed to be held at Albany on the last Tuesday of July and the third Tuesday in October, and that in the City of New York on the third Tuesday in January and April in every year ; the April and October terms to continue for three weeks, and the January and July terms for two. Accordingly the first term of the Supreme Court ever held in the City of Albany convened on the last Tuesday of July, 1785. Hon. Richard Morris, who had been appointed Chief Justice in place of John Jay, presided.

From that time down to the present the Supreme Court of the State has held regular terms, accord- ing to appointment, in the City of Albany.

The most practical and, perhaps, the most per- fect manner of presenting the history of the Bench and Bar of Albany County is to give it in the lives

131

THE BENCH AND BAR.

of the judicial officers, the eminent jurists and law- yers, who made that history. We begin with

ROBERT YATES.

ROBERT YATES was an eminent jurist, prominent in the legal and legislative history preceding and during the Revolution. With John Jay, John Sloss Hobart, William Duer, Gouverneur Morris, Robert R. Livingston and others, he was a mem- ber of the memorable committee appointed on the first of August, 1776, to prepare a form of govern- ment for the then new State of New York. The committee reported March 12, 1777, which report was debated until April 20 following, when the first constitution of the State of New York was adopted. He was a member of the first Provincial Congress, which assembled May 22, 1775, and adjourned the following November. He was also a member of the second Congress, which convened February 12, 1776, and adjourned May 13 follow- ing. On May 8, 1777, he was appointed a Jus- tice of the Supreme Court of the State, serving till October 28, 1790, wlien he was appointed Chief Justice of the State. In 1787 Judge Yates was appointed by the Legislature of the State, with Alexander Hamilton and John Lansing, Jr., a del- egate to the convention which formed the Consti- tution of the United States. According to the form of the resolution, they were appointed "for the sole and express purpose of revising the Ar- ticles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Con- gress and confirmed by the several States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union."

Chief-Justice Yates and John Lansing withdrew from the convention, because it did not more ef- fectually secure the rights of the individual States; they were anti-Federalists or Republicans.

"To these men and their copatriots the nation is indebted for the ten important amended Articles which were subsequently made a part of the Con- stitution." Hamilton was the only delegate from this State who signed it.

Judge Yates was also a commissioner to settle the rival land claims of New York and Vermont, also of Massachusetts and Connecticut. He was born in 1738 and removed to Albany early in life, where he spent the remainder of his days. He died in 1801.

JOHN LANSING, JR.

JOHN LANSING, Jr., was born at Albany, on the 30th of January, 1785. He studied law with Robert Yates, afterward Chief Justice, in Albany, and with James Duane, in the City of New York.

In 1776 and 1777 he was the military secretary of Major-Gen. Schuyler, Commander of the Northern Department, and who was engaged in the summer of the latter year in active operations. to resist the advance of Burgoyne. In a letter to James Duane, dated at Saratoga (now Schuyler- ville) on the 30th of November, 1776, Mr. Lan-

sing declined accepting, by reason of his holding the above post under Gen. Schuyler, a commission of lieutenant in the new levies of troops.

After being admitted to the Bar, Mr. Lansing pursued the practice of his profession in the City of Albany with great success.

From 1780-1 to 1784 he was a member of Assembly (the 4th, 5th, 6th and 7th Sessions) from the City of Albany.

On the 3d of February, 1784, he was appointed Member of Congress, under the articles of confed- eration, and on the 26th of October following was reappointed.

On the 13th of January, 1786, he was elected Speaker of the New York Assembly. On the 28th of April following he, together with John Haring, Melancthon Smith and Robert Yates, was appointed (in place of John Jay and Walter Livingston, resigned) on the commission that met at Hartford, in that year, and made final decision of the territorial claims of New York and Massa- chusetts.

On the 29th of September, in the same year, he was appointed, by the Council of Appointment, Mayor of Albany.

In 1786 he was again elected Member of As- sembly from the City and County of Albany.

On the 26th of January, 1787, he was once more delegated a Member of Congress under the Confed- eration.

On the 6th of March, in the same year, the New York Legislature appointed Mr. Lansing, Alex- ander Hamilton and Robert Yates to the Phila- delphia Convention, which assembled on the 25th of May, and framed a Constitution of the United States. Mr. Lansing, together with Mr. Yates, was opposed to the principles of the Constitution, as presenting a system of consolidated government at variance with the riglits of the States. He retired from the Convention with Mr. Yates, on the 5th of July, 1787, before the Constitution had been defi- nitely settled upon by that body, but not until it was seen how it was to be established, and published his reasons for so doing in a letter jointly with Mr. Yates to Gov. George Clinton.

In 1788 Mr. Lansing was again a Member of the New York State Convention which ratified the Constitution from Albany County.

On the 12th of December, 1788, the Assembly of the State of New York re-elected him Speaker.

By an act of March 6, 1790, he was appointed by the Legislature one of the commissioners on the part of the State of New York to settle the controversy of that State with Vermont; and on the 28th of September following he was appointed one of the justices of the Supreme Court of the State.

In the succeeding year, by an act of the Leg- islature passed on the 6th of July, Judge Lansing, Abraham Van Vechten and Robert Yates were ap- pointed commissioners to determine the claims of citizens of the State of New York to lands situated in Vermont, ceded by New York at the settlement of the controversy, and what portion of certain moneys ($30,000) each claimant should receive.

132

HISTORY OF THE COUNTY OF ALBANY.

On the 15th of February, 1798, Judge Lansing received the appointment of Chief Justice of the Supreme Court of the State, in place of Chief- Justice Robert Yates, who had resigned under the constitutional limit of sixty years.

On the 21st of October, 1801, Chief-Justice Lansing was appointed Chancellor of the State of New York, in place of Chancellor Robert R. Liv- ingston, who had also resigned under the above limit.

On February 4, 1804, Chancellor Lansing was nominated by a Republican legislative caucus to the office of Governor of the State of New York, but in a letter of the 18th of that month he de- clined the nomination.

On the 28th of January, 1817, he was appointed a Regent of the University.

In 1824 he was chosen a Presidential Elector from the City and County of Albany.

On December 8, 1829, Chancellor Lansing visited the City of New York on business, which detained him several days. He was a guest at the City Hotel. The evening of December 12 was dark and stormy. Having an important letter for Albany, which he desired to mail, he left the hotel with a view of depositing it in the mail box on board a steamer that was to leave New York that evening. He did not return to the hotel, and was never seen or heard from after leaving it. It is generally believed that he fell into the river and was drowned, and yet his body was never re- covered.

Fifty-five years have passed away and the mys- tery that hung over this sad event has been deepened by the lapse of each succeeding year. The sudden disappearance of a citizen so illustrious, whose long life had been mostly devoted to the interest of the State, produced a sensation at Albany as deep as did that of the sudden death of De Witt Clinton, a little less than a year previous. Although Chan- cellor Lansing was in his seventy-sixth year at the time of his death, he was vigorous and active in mind and body. In person he was large and handsome, with remarkably fine features. He was a fascinating conversationalist, dignified and impres- sive in his bearing.

He was married in 1781 to Miss Ray, daughter of Robert Ray, Esq., a distinguished citizen of the City of New York; four children, all daughters, were born to this marriage.

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Bi-centennial history of Albany. History of the county of Albany, N. Y., from 1609 to 1886. With portraits, biographies and illustrations, Part 34

Author: Howell, George Rogers, 1833-1899; Tenney, Jonathan, 1817-1888 Publication date: 1886 Publisher: New York, W. W. Munsell & Co. Number of Pages: 1452

Author: Howell, George Rogers, 1833-1899; Tenney, Jonathan, 1817-1888
Publication date: 1886
Publisher: New York, W. W. Munsell & Co.
Number of Pages: 1452