USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 38
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Second Session-October 21-29, 1684 .- Matthias Nicolls, speaker; Robert Hammond, clerk. SECOND ASSEMBLY. Convened October 20, 1685. Speaker : William Pinhorne. Clerk: Robert Hammond.
Assembly adjourned November 3, 1685, to meet September 25, 1686. King James II, however, abolished the General Assembly June 16, 1686. Intel- ligence of his action was received in New York September 14, eleven days before the time fixed by Assembly for its Second Session. Governor Don- gan had, in meantime prorogued the Assembly until March 25, 1687. In compliance with the edict of the King, this action was superceded on the 20th of January, 1687, by an order dissolving the General Assembly.
8. "The great principles enunciated in the Charter of Liberties are drawn from the immortal Magna Charta, which had for nearly five cen- turies been the source and strength of English free institutions; yet these Dutchmen, no less zealous for liberty than their English neighbors, were willing to accept, adopt, and assert as their own, the rights of citizens as defined by the Great Charter. This charter, closely resembling our modern constitutions in form and substance, and continuing many pro- visions which have been continued in these instruments, might properly be called the original Constitution of New York." -- Lincoln's "Constitutional History of New York.
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in General Assembly." The King saw objectionable features in almost all of its clauses, but none perhaps so objectionable as that which plainly stated "that no taxes of any kind should be levied within the province without the assent of the people's representatives."9 So the Charter of Liberties came under the royal veto at the time when New York and New England again came under the sway of the arbitrary Andros.
But there were other important acts of the first General Assembly that did not come under the royal ban. Among
9. The first act of this the first General Assembly of the Colony of New York was entitled: "Charter of Liberties and Privileges granted by His Royal Highness to the Inhabitants of New York and its dependencies." Its first sentence contained the phrase : "People met in General Assembly," to which James objected, when he became King of England, on the ground that it is "not found in any other Constitution in America"; and this royal objection, with the character of the charter, places New York in advance of any other colony, and proves that it held the leadership in the struggle for equal rights and ancient liberties. The entire sentence read that "under His Majesty and Royal Highness, James, Duke of York, Albany, etc.," "supreme legislative power shall forever be and reside in the Governor, Council and People met in General Assembly." The year of its adoption witnessed the establishment of a free and representative government in Pennsylvania, and the first session of its General Assembly.
James became King of England in February, 1685. At a meeting of the Committee of Trade and Plantations March 3, this minute was ordered entered: "The Charter of Incorporation of the Province of New York being read, His Majesty doth not think fit to confirm," and the govern- ment was ordered assimilated to that projected for New England. Ob- servations upon the charter were entered, which show that the objections were political, and demonstrate that the colonists were in advance of the inhabitants of other colonies, in their demands upon the Crown as well as in their concessions of personal liberty.
The Charter opened grandly. It declared "that for the better establish- ing of the government of this province of New York, and that Justice and Right may be equally done to all persons within the same, Be it enacted by the Governor, Council and Representatives now in General Assembly met and assembled, and by the authority of the same." And the charter, after providing for the election of a General Assembly, enacted that the Repre- sentatives of the Province, with the Governor and his Council, shall be Supreme and only legislative power. To this the King quietly inquired : "whether this does not abridge the acts of Parliament that may be made concerning New York." His observation upon this provision seemed to be somewhat in conflict with his remarks on the provision that the inhabitants be governed by and according to the laws of England. "This privilege," he said, "is not granted to any of His Majesty's plantations." Of the provision that sheriffs and other officers of justice be appointed with like
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them was "An Act to Settle Courts of Justice." This act created four distinct tribunals : a Petty Court, or Town Court, in every town for the trial of small causes, with fortnightly or monthly sittings; a County Court, known as the Court of Sessions or Quarter Sessions, meeting quarterly or half-yearly in each county ; a Court of Oyer and Terminer, and General Gaol Delivery, with original and appellate jurisdiction; and a Court of Chancery, which was to be the supreme court of
powers as in England, he said: "This is not so distinctly granted or prac- ticed in any other plantation." The charter provided "that the exercise of the chief magistracy and administration of the government over the said province shall be in the said Governor, assisted by a Council with whose advice and consent, or with at least four of them, he is to rule and govern the same according to the laws thereof." To this the King objected that "no other Governor is restrained from doing anything without the Council." The charter provided "that according to the usage, custom and practice of the Parliament of England, sessions of the General Assembly be held in this province once in three years at least," to which the King demurred, stating that triennial sessions are "an obligation upon the government greater than has been ever agreed to in any plantation, and the grant of such a privilege has been rejected elsewhere, notwithstanding a revenue offered to induce it." The provision that acts be presented to the Governor and Council for approval, said the King "seems to take away from the Gov- ernor and Council the power of framing laws as in other plantations." The provision limiting to two years the power of the Lord Proprietor to dissent to bills, said James, "does abridge the King's power and has been thought inconvenient in other plantations." The provision that the As- sembly is to judge of the elections and the qualifications of its members "may be inconvenient, and is not practiced in some other plantations," he said.
Of the provision guaranteeing liberty of conscience, the King remarked that it "is practiced in the proprietaries"; and it was the only section which he seems to have affirmatively approved, although there were other im- portant provisions which he did not explicity disapprove.
The view of the legislative function contained in the New York Charter of Liberties is Roman, not Saxon. It recognizes the joint pos- session of this power by the Executive and his Councillors and the People, corresponding to the old Roman Executive, Elders and Burgesses. Some of the colonists of New York had experienced oppression at the hands of the people of New England. Also, the evils of executive and of par- liamentary supremacy had each been made manifest, in turn, in England. Hence, it was thought to guard against tyranny of majorities as well as of rulers, by providing checks against both. It was thought that ancient and vested rights would be best preserved by associating the Executive and his advisers with the representatives of the people, and giving to them jointly the supreme legislative power.
The entire Charter we are considering is a clear and crisp declaration
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the province.10 The act provided that the courts should "not be or remaine Longer in force than for the time and space of Two Years and until the End of the sitting of the next As- sembly after the expiration of the said Two Years." Evi- dently, it was the purpose of the legislators to meet by further legislation any adverse action by the Duke or governor on the Act of 1683.
Unquestionably, the year 1683 was a memorable one in the constitutional and judicial history of New York, for the first General Assembly passed legislation which was destined to have part in all subsequent systems of government of the colonial period. The Charter of Liberties and Privileges although vetoed by King James II, was revived, though not for long, in almost its original form, by William and Mary ; and although the Act to Settle Courts of Justice was amended even in Dongan's time, it was not substantially altered, "and in the end became incorporated in the laws of the colony."
The second session of the First General Assembly opened on October 21, 1684. During the next nine days the legis- lators passed thirty-one acts. The last measure passed in
of the ancient liberties of all Aryan freemen. The remaining portion reads substantially as follows: "Every freeholder and freeman shall vote without restraint. No freeman shall suffer by judgment of his peers, and all trials shall be by jury of twelve men. No tax, tillage, assessment, custom, loan, benevolence or imposition whatever shall be laid, assessed, imposed or levied, on any of his Majesty's subjects within this province or their estates, upon any pretense but by the act of the Governor, Council, and Represen- tatives of the People in General Assembly met and assembled. No seaman or soldier shall be quartered on the inhabitants against their will. No martial law shall exist. No person professing faith in God by Jesus Christ shall at any time be in any way disquieted or questioned for any difference of opinion." Appended to the charter was a continued bill of customs. Its approval by the Governor was the signal for great rejoicing .- Werner's "Civil List and Constitutional History of the Colony and State of New York," 1888 ed., pp. 49-52.
10. A copy of this act is in the manuscript compilation of the Dongan Laws formerly in the office of the Secretary of State, but now in the State Library at Albany. That the act was received by the Board of Trade on February 17, 1684, appears from the transcript of the journal thereof .- See O'Callaghan's "Documents Relative to the Colonial History of the State of New York," Vol. III, 354, and "Colonial Laws of New York," Vol. I, 125.
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that session abolished the Court of Assizes.11 The Second General Assembly convened in New York on October 20, 1685, and after passing six acts adjourned to meet again in Septem- ber, 1686. Before that month arrived, however, the political changes had been so momentous that the session was never held.
Town Courts-Under the act of 1683, the town courts were to sit on the first Wednesday of every month, the magistrates being three commissioners appointed by the governor. Their jurisdiction extended to actions of debt or trespass, wherein the amount involved did not exceed forty shillings. A trial by jury of the issues joined could be had only at the special re- quest of either side upon payment of the proper cost and charge.
The Mayor's Court of New York had a different status, however; so also did the Mayor's Court of Albany, from the year 1686. They had jurisdiction up to twenty pounds.
Courts of Sessions-The Courts of Sessions were substan- tially as under the Nicolls Code, a court being established in
II. An Act for the confirming all Judgments and proceedings in the former Courts, taking away the General Court of Assizes.
"And forasmuch as the General Court of Assizes, heretofore held annually in this Province, is of great charge and Expense to the same, and by reason of the Great number of the members thereof nott so fit & capable to heare and determine matters and Causes of Civil nature, usually brought to the said court; Bee itt enacted by the Authority of this Present Assembly ; That the said Court called the General Court of Assizes, and all Jurisdiction, power and Authority belonging unto or used and exercised in the said Court or by any the Judges, Ministers or members thereof, bee from the first day of November next ensuing clearly and absolutely dissolved, taken away and determined, and that from and after the said first day of November next ensuing, Neither Judge, Justice, Member or Minister of the said Court whatsoever shall have any power or Authority to heare, Examine or determine any matter or thing whatsoever in the said court called the General Court of Assizes, or to pronounce or deliver any Judgment, Sentence, Order or decree, or to do any Judiciall or Ministeriall act in the same Court; provided always that all actions, suits or Com- plaints now pending in the said Court of Assizes either by Bill, Plaint, Dec- laracon, appeale, review, by Peticon to the Governor and Councell, or any other ways or means whatsoever, shall be ended determined and finished by the High Court of Chancery."-See "The Colonial Laws of New York," Vol. I, 172.
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each county, and constituted by three or more justices of the peace, who met at least twice each year, except that in the city of New York the sessions were quarterly, and in Albany three times a year. All trials were to be by jury.
"In the city of New York, sessions were to be held by the mayor and aldermen; like the former Court of Sessions, it had both criminal and civil jurisdiction, without limitations as to amount, and all cases were triable by jury. Other officers of court were a clerk, known as the Clerk of Sessions, and a marshal and crier."
Court of Oyer and Terminer-The Court of Oyer and Terminer and General Gaol Delivery, which was to be in fact a circuit Court of Assize, had power to function with one judge of the Supreme Court and four or more justices of the local Sessions Court. Governor Dongan appointed two cir- cuit judges, Matthias Nicolls and Thomas Palmer, both of whom were barristers. It would, therefore, seem that there were two circuits, or judicial districts. A regular term of this court was held in each county twice in every year; and when on a circuit, the sheriff of the county would meet the judge and his attendants upon his entrance into the county town and conduct him to his lodging, which, according to the etiquette of the time, was not to be the same as that occupied by the lawyers. In New York City the mayor and aldermen, to the number of four, sat with the circuit judge; and under the new city charter, the recorder also was seated in the local Court of Oyer and Terminer. The Court of Oyer and Ter- miner had unlimited jurisdiction of criminal and civil cases, and generally acted as an appellate court.
Court of Chancery-The Court of Chancery, which became the highest court of the province, assumed some of the func- tions of the Court of Sessions of the Nicolls administration. Under the old system "proceedings in equity were conducted by bill and answer. Witnesses were examined according to
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the manner of the Court of Chancery in England at that time, and all suits in equity were determined by the court without the intervention of the jury."12 By the act of 1683 the Court of Chancery was to be composed of the Governor and his Coun- cil, the Governor having power to depute or nominate in his stead "a Chancellour and be assisted with such other persons as shall by him bee thought fitt and convenient."13 The act creating the Court of Chancery gave only "a high-sounding but hated name to a body which, from the first, had assumed chancery jurisdiction"; the only effect of this act was in giving legislative sanction to a jurisdiction which had hitherto been exercised as a prerogative of the Crown. And, despite oppo- sition, it remained so constituted to the end of the colonial period. "From first to last the court was the most unpopular judicial establishment in the colony." This can be well be- lieved ; but it had a vital purpose, and the successive Gov- ernors determinedly sustained it substantially as originally purposed and constituted. The Assembly of 1691 by Act of
12. The earliest record of a proceeding in chancery is cited by Murray Hoffman in "A Treatise Upon the Court of Chancery" It was during the rule of Governor Andros.
"To the Right Honorble Major Edmond Andross, Esqr, Left & Governr Generall of his Royal Highness, his Territoeries in America. Thomas Wandall, Complainant. Oliffe Stephens, Deft. And the deft. to ye Complaints bill humbly answereth yt alt 30 years last past. The Land in questione was by ye authority then in being-Ordered for a Lane or Alley -- abt 16 years within sd time aforementioned-The 2d ground by Orde of the Burge Masters of this City was exposed to sale -; thereupon this Complaint and deft joyntly purchased ye same -; & soon after made eqwale divisione thereof; upon the sd ground this complaint hath built; & ever since the purchase enjoyed e quietly possessed ye same-And all soe this deft hath until ye 7th Novembe, 1676,-by virtue of his Title aforesd & his quiett possessione he humblt conceives, makes him an undoubted right and ye Mutual agreemt upon partitione as aforesd being confirmed by a judgment given In the Mayors C. T. as p record appeers : In tende Consideracon whereof humbly prays yr Honr and honble Bench to take the ye into yr Grave Consideracon & be pleased to grant judgmt according to Equity & Justice, and this deft as in duty bound shall pray &c (Endorsed) The Answer. Tho Wandall plf, Oloff Stevens, deft, 1677, put off by the Go."-Chester's "Legal and Judicial History of New York," I, 293.
13. "There shall bee a Court of Chancery within this province, which said Court shall have power to heare and determine all matters of Equity
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May 6,14 continued the court for seven years, after which "the only authority for the exercise of equity jurisdiction by the successive governors was by ordinance or executive order." The "Court of Chancery as held by one man, and that man generally a stranger to the country, and always the immediate representative of the Crown, was especially obnoxious to pub- lic prejudice," wrote Butler in his "Outline of the Constitu- tional History of New York. Bellomont wrote to the Lords of Trade in 1700: "There is a great want of a Court of Chan- cery here, but no body here understanding it rightly I delay appointing one till the Judges and Attorney-Generals come from England." In January, 1701, he again wrote: "I am extremely importun'd to erect a court of chancery, many people being like to be ruin'd for want of one. I shall there- fore very soon settle that court tho' I should make no decrees till the arrival of the judge and attorney-general." A court was erected in that year, but the objectionable conditions re- mained, the royal prerogative continuing to be the dominating factor.15 Lord Cornbury took heed of the popular opposition
and shall be Esteemed and accounted the Supreme Court of this province. And be it further Enacted That the Governor and Council bee the said Court of Chancery, and hold and keep the said Court; And that the Gov- ernour may Depute or nominate in his stead a Chancellour, and be assisted with such other persons as shall by him bee thought fitt and Convenient. Together with all necessary Clerkes and other officers as to the said court are needful." "Colonial Laws of New York," I, 128.
14. "Be it further Enacted by the Authority aforesaid that there shall be a Court of Chancery within this Province, which said Court shall have power to heare and determine all matters Equity and shall be Esteemed and accounted the High Court of Chancery of this Province: And Be it Further Enacted by the authority aforesaid that the Governor & Councill be the said High Court of Chancery, and hold and Keep the said Court; and that the Gouvernour may Depute, Nominate & Appoint in his Stead A Chancelor, and be assisted with such other Persons of the Councill as shall by him be thought fitt and Convenient, together with all Necessary offi- cers, Clerks and Registers as to the said High Court of Chancery are needful."-Ibid, I, 230.
15. It was left for Bellomont's successor, Lieutenant Governor Nanfan, finally to erect this court. In June, 1701, he ordered the Court of Chancery to be held, commencing the first Thursday in the following August, the sessions to be monthly thereafter. The court consisted of the governor,
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to this court when he became Governor, for on June 13, 1703, he suspended its sessions. However, on November 7, 1704, he had to reestablish it, and did so by ordinance. Thus it had not even the semblance of sanction by a popular body, and
two or more members of the council, and a register, clerks, and masters, who were appointed.
It was the undeviating policy of the Crown to refuse to give up its prerogative claim to equitable jurisdiction, or to submit it to such limita- tions as a provincial legislature might see fit to impose. On the other hand, the general ground of opposition to the court was that, being founded on mere prerogative, personal liberties were subject, not to law, but to the conscience or disposition of the royal representative; they were made pre- carious by the extortionate fees of officers who were not under control of the provincial Assembly, by the excessive bail exacted in cases of ne exeat writs, and by various delays of justice through "the manifold con- trivances of lawyers, by their voluminous bills of complaints, answers, and dilatory pleas," which were countenanced by the court officers. One specific and pronounced cause of opposition to the court grew out of the question of land rents Upon the sale of land by the Crown, quit rents were reserved, and were allowed to accumulate in arrears. The Court of Chancery was a medium for collecting these rents. Small land holders thus had personal reason for hostility to the court, and many great land holders feared lest the court should invalidate their titles to land which they had received in grants from corrupt governors .- Chester's "Legal and Judicial History of New York," I, 295-96.
15. Until the end of the Dutch domination, and even long afterward, the governors of the colony counted it a right to preside in Court, and to order the affairs of justice, and this was a particular embarrassment of the cause, not only because they knew no law, but also because some of them seem to have been fitter subjects for its discrimination than inter- preters of its principles. Indeed, most of them were adventurers, pure and simple; men whose careers had been "unfortunate" on the other side, and who had come to the New World to begin again.
In addition to their salary, the governors claimed and received a large income in fees or perquisites for arranging patents or grants of land, and, on account of this malfeasance, the Crown was constantly defrauded, while . they, its servants, set worthy examples to the ring politicians of later generations. Yet, while their understanding of law was extremely "liberal," there was always the fear of that dreadful bogey the "reformer," who might some day disturb the peace of the colonists and instigate proceedings in the name of the Crown to void the grants thus fraudulently made. This fear was the real upshot of the almost frantic opposition of the colonists to the establishment of the Court of Chancery, or any court of equity whatsoever, for had some wealthy Knickerbocker been sued to make a test case, it is probable that the majority would speedily have found them- selves sans house, sans land, sans patent, sans everything; and there had been fewer vast fortunes to accrue from New York real estate holdings.
This, then, was a bond of sympathy and common cause between col- onists and their often rascally governors, which rendered the former only
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the opposition to it became more and more radical.16 In 1727 the Assembly, moved to action by the defeat of its speaker, Frederick Phillipse, in a case in the Court of Chancery wherein Governor Burnet sat as Chancellor, resolved: "That the Erecting or Exercising in this Colony a Court of Equity or Chancery (however it may be Termed) without Consent in General Assembly is unwarrantable, and Contrary to the laws of England, and a Manifest oppression and grievance to the subjects and pernicious Consequence to their Libertys and propertys."17 The answer of the Governor and Council was
too thankful to bear any forms of tyranny rather than the dread assizes of the Court of Chancery .- "History of the Court of Common Pleas of City and County of New York," (James Wilton Brooks), p. 17-18.
16. Opposition to the court was so pronounced that when Cornbury arrived he suspended its sessions and directed an investigation into the complaints regarding it. But in 1704 he reëstablished it by ordinance, and it continued from that time until the breaking out of the war for inde- pendence. Cornbury made some changes in the conduct of the court, especially in lowering the fees, but the hostility to it became more and more radical, and in 1708, just after Lovelace had come out as governor, the Assembly passed a resolution declaring the establishment of such a court by the government was illegal, unprecedented, and dangerous to liberty. During the time of Lovelace and Ingoldesby the court fell into disuse. In 1710 Hunter revived it, assuming the office of chancellor and appointing two masters, two clerks, an examiner and a register. As a result of this action by Hunter, hostility to the court again became outspoken. In No- vember, 1711, the Assembly resolved that "the erecting a court of equity, without consent in general assembly, is contrary to law, without precedent, and of dangerous consequence to the liberty and property of he subjects. The lords of trade answered the declaration by asserting the right of the Crown, and for sixteen years thereafter the court was continued without serious opposition .- Ibid, I, 296-97.
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