USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 39
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17. "Die Sabbath, 25th November, 1727.
"Coll. Hicks from the Committee of Grievances reported that, as well as by the Complaints of several people as by the General Cry of his Majesty's subjects Inhabiting this Colony, they find that the Court of Chancery as Lately assumed to be Sett up Here renders the Libertys and properties of the said Subjects extremely Precarious, and that by the violent measures taken in & allowed by it some have been ruined, others obliged to abandon the Colony, and many restrained in it either by Imprisonment or by Excessive bail exacted from them not to depart even when no manner of suits depending ag't them and therefore are of opinion that the Extraor- dinary proceedings of the Court and Exhorbitant fees and charges Coun- tenanced to be Exacted by the Officers and Commissioners thereof are the greatest grievance and oppression this colony has ever felt, and that for
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that the resolutions were "unwarrantable and highly injurious to his majesty's prerogative." Thereafter, however, the Gov- ernors were reluctant to sit as chancellors, Historian Smith writing: "The wheels of the Chancery have ever since rested upon their axis-the practice being condemned by all gentle- men of eminence in the profession."18
However, going back to the time of Governor Dongan, and to the Act of 1683 establishing this court, it appears that John Spragg was appointed Master of the Rolls, with John Knight and James Graham as clerks. The commission of Secretary Spragg as Master of Rolls was issued on December 29, 1684; and at the same time he became register. The only other
removing the fatal consequences thereof they had come to several resolu- tions which being read were approved by the House and are as follows :
"Resolved, That the Erecting or Exercising in this Colony a Court of Equity or Chancery (however it may be termed) without Consent in Gen- eral Assembly is unwarrantable and Contrary to the laws of England and a Manifest oppression and grievance to the subjects and pernicious Conse- quence to their Libertys and propertys.
"Resolved, That this House will at their next meeting prepare and pass an Act to declare and adudge all orders, ordinances and Devisees and pro- ceedings of the court so assumed to be Erected and Exercised as above mentioned to be Illegal, Null and void by Law, and of right they ought to be. "Resolved, That this House will at the same time take into considera- tion whether it be necessary to Establish a Court of Equity or Chancery in this Colony in whom the Jurisdiction thereof ought to be vested and how far the powers of it shall be prescribed and Limited, examined and Com- pared with the Journal of the General Assembly."
18. Attacks continued to be made upon the governor's exercise of equitable jurisdiction, and in 1735 the Assembly, taking into consideration the action of Governor Cosby in a land case where a plea had been inter- posed to his jurisdiction, adopted a resolution : "That a Court of Chancery, in this province in the hands, or under the exercise, of the governor with- out consent of General Assembly is contrary to law, unwarrantable, and dangerous consequence to the liberties and properties of the people." When, in 1737, the Assembly passed a bill "for establishing and Regulating Courts to Determine Causes for Forty shillings & under," it again called the attention of the governor to the general desire of having all courts of gen- eral jurisdiction established, and their several jurisdictions and powers appointed and limited, by the Legislature, and not left any longer to the uncertain exercise of prerogative power. This representation of the As- sembly had little effect, and from this time to the Revolution the Chancery was not often attacked in the legislative body, but the business transacted in it gradually became small and unimportant .- Chester's "Legal and Ju- dicial History of New York," Vol. I, 298-99.
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appointment as Master of Rolls during the colonial period was that of James Jauncey, Jr., in 1774; and no Governor is listed as Chancellor after 1701, when the office of Master was created. Still the Court of Chancery functioned throughout the colo- nial period, and was recognized by the Constitution as being then in existence. The court was, of course, necessary, the only element of it that was chronically opposed being the royal prerogative.
Municipal Courts of New York City-On November 9, 1683, the New York magistrates (the mayor and aldermen) petitioned19 Governor Dongan to confirm, by a charter from the Duke of York the "ancient customes, Priviledges and Im- munityes" granted to the city by Governor Nicolls in 1665. They further prayed that the municipal government of New York be patterned more fully after that of London, by the appointment of a recorder, to assist the mayor in his court functions.20
New York City at that time was not a very important municipality, if compared with Boston; still it was the capital of the little21 province over which Governor Dongan had au-
19. In this petition it was asked that the city be divided into six wards, and the freeholders of each ward be empowered to elect an alderman and appoint a common councilman, with other local officers .- 3 "Colonial Doc- uments," 339.
20. "that the Recorder bee appointed by the Governor and Councill who shall be Judge of the City and Corporation and be aydeing and assisteing to the Mayor and Aldermen & Comon Councill in all matters that relate to the well beinge and supporte thereof."
And further that "a Sheriff bee annually appointed by the Governor & Councel."-O'Callaghan's "Documents Relative to the Colonial History of the State of New York," III, 338.
21. The Province of New York contained only about six or seven thousand inhabitants in 1674, when Andros took over the government from the Dutch governor, Colve. The population of New England at that time was not less than one hundred and twenty thousand. New York was the best natural harbor, but at that time any small and convenient harbor could accommodate the small vessels then upon the seas. The potentialities of New York seemed then to be as obvious as a century later, but its facilities were not generally needed, the bulk of settlement being in New England. The New York province increased in population about one-
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thority ; and he was disposed to favor it in every possible way. He granted the petition "in almost every particular," ordering that it be substantially put into operation without delay, although final decision could not be made "until such times as his Royal Highnesses pleasure shall be further known therein." On January 14, 1684, Governor Dongan commis- sioned James Graham as recorder, and on the next day all of the new magistrates went in a body to the Fort, where they were sworn into office by the Governor and Council, after which they returned to City Hall and opened court, the re- corder taking his seat on "ye right hand of ye mayor." John Tudor had received commission as sheriff, and John West as clerk of the city of New York. James Graham was destined to hold the office of recorder for seventeen years, with one slight interruption.
The legal status of New York Province, of course, under- went a change in 1685, when James, Duke of York and Al-
third during the period 1674-77, but even a century later New England had a population nearly three times as great as that of New York. It was not until the colony became a state that the pendulum of emigration and settlement swung New Yorkward. In 1678 Andros reported that he could muster 2,000 militia men; that the fort in New York City had forty- six mounted guns; that Albany had twelve guns, and Pemaquid, in Maine, 7 guns. The colony then had twenty-four villages or towns, and its estates had a total valuation of $150,000. The registered shipping totalled fifteen vessels, of an average tonnage of 100 tons, with an occa- sional arrival from England. The yearly imports amounted to about $50,000. A merchant deemed a substantial citizen was one who owned a thousand or even five hundred pounds; a wealthy planter would come into that category when possessed of £250. New York had no beggars, but no plutocrats. Its chief exports were flour and peltries. New York City tried to get and for some years enjoyed a monopoly in the manufacture of flour, and Albany was the centre of the Indian trade. Governor Dongan must have considered New York an unfortunate province. He complained that New Jersey robbed her of her trade and her settlers; that Connecti- cut was "as always grasping, tenacious, prosperous at her neighbor's ex- pense," exercising an evil influence over the New York towns of Long Island, the disaffected inhabitants of which would prefer to carry their oil to Boston and their whalebone to Perth, than to their own capital. While the population of New York had been increased by Huguenot immigration, Governor Dongan in 1687 wrote that "he believed there had not come into his colony within seven years twenty English, Scotch or Irish families."
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bany, became King James II; and the issuance of new com- missions to all provincial officers became necessary-from Governor Dongan down to the least important commissioned officer.22 And while the change brought the royal veto of the provincial Charter of Liberties and Privileges, it brought confirmation of municipal charter for New York City in April, 1686, and authorized the issuance of a similar municipal charter in July to create the city of Albany.
The Dongan Charter, as it has ever since been known, pro- vided that the inhabitants of each ward in the city of New York should elect, annually, one alderman, one assistant alder- man, and one constable. The mayor, recorder, and sheriff were to be appointed by the Governor, and the high constable by the mayor. The mayor, recorder, and any three of the aldermen, with any three of the assistants, were created a Common Council, which in convention were authorized to pass laws and ordinances for the government of the community. The mayor, recorder and aldermen, or any three of them, of whom the mayor or recorder must be one, were authorized to hold within the city a Court of Common Pleas, on every Tuesday, for the trial of all debts, trespasses, ejectment or other personal action, according to the rules of the common law and the acts of the General Assembly of the province; and it further provided that the mayor and recorder, or three or more of the aldermen (not exceeding five) should be jus- tices of the peace, and any three of whom the recorder or the
22. New York, no longer the private domain of a subject, now became a province of the crown. Theretofore, in respect to its local government, and the appointment of officers to administer it, New York was a county palatine like the counties of Chester, Durham and Lancaster, in England, in which from a remote period down to 27 Henry VIII, c. 24, the Earl of Chester, the Bishop of Durham and the Duke of Lancaster, respectively, had jura regalia as completely as the King in his palace, and consequently administered justice within their respective counties, by judges appointed by themselves and not by the Crown. But it was the King sitting in council who was now the immediate source of all power and new commis- sions to the provincial officers became necessary .- Redfield's "English Col- onial Polity and Judicial Administration, 1664-1776."
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mayor should be one, were empowered to hear and determine all manner of petty larcenies, riots, routs, oppressions, extor- tions, and other trespasses and offences of the city.23
The charter most satisfactorily separated the executive from the judicial functions of the city magistrates. Formerly, the Mayor's Court had held jurisdiction in all phases of the municipal affairs of New York, legislative as well as judicial matters coming before the Bench, though the magistrates seem to have accorded their magisterial duties priority in execution, the consideration of municipal affairs being under- taken after the sittings of court, for civil or criminal hearings. The new charter also differentiated between the powers of the local magistrates in civil cases and in criminal. Three tribunals were organized, with the same judicial personnel but with different duties. The tribunals were: the Common Council, the Mayor's Court, which now was to take the name of the Court of Common Pleas and the Court of Sessions ;. The authority of the Common Council is fairly clear in its name; the councilmen had power to pass laws and ordinances
23. "AND FURTHER, I do by these present grant, for an on behalf of his most sacred majesty aforesaid, his heirs and successors, that the Mayor and Recorder of the said city for the time being, and three or more of the Aldermen of the said city, not exceeding five, shall be justices and keepers of the peace of his most sacred majesty, his heirs and successors, and justices to hear and determine matters and causes within the said city and liberties and precincts thereof; and that they, or any three or more of them, whereof the Mayor or Recorder or one of them, for the time being, to be there, shall and may forever hereafter, have power and authority, by virtue of these presents, to hear and determine all and all manner of petty larcenies, riots, routs, oppressions, extortions and other trespasses and offenses whatsoever, within the said city of New York, and the liberties and precincts aforesaid, from time to time, arising and happening and which arise and happen, and any ways belonging to the offices of justices of the peace, and the correction and punishment of the offences aforesaid, and every of them, according to the laws of England and the laws of the said Province; and to do and execute all other things in the said city, lib- erties, and precincts aforesaid, so fully and in ample manner as to the commissioners assigned, and to be assigned, for the keeping of the peace in the said county of New York, doth or may belong.
"AND I DO, by these presents, for and on behalf of his most sacred majesty aforesaid, his heirs and successors, give and grant unto the afore-
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for the government of the city; the Court of Common Pleas was the civil court, which held weekly sittings, the mayor, recorder and aldermen having, however, only limited authority in this court; the Court of Sessions, or as it was first known, the Court of Quarter Sessions and as commonly known the Recorder's Court, sat once in every three months, for the hearing of criminal cases. In this court the recorder was the presiding officer, though the mayor and aldermen were associ- ate justices. The recorder was, however, intended to be the permanent city judge, one whose office would not be affected by the annual change of associate magistrates, the mayor and aldermen. To the Recorder's Court also were brought the more important civil actions, just as to the Court of Common Pleas were sent some of the minor criminal cases. It seems that the Court of Sessions and the Circuit Court of Oyer and Terminer overlapped in New York City, and that after a few years one was discontinued in the city.24
said Mayor, Aldermen, and Commonalty of the said city of New York and their successors that they and their successors shall and may have, hold, and keep within the said city and liberties and precincts thereof in every week in every year forever, upon Tuesday, one Court of Common Pleas, for all actions of debt, trespass upon the case, detinue, ejection and other personal actions ; and the same to be held before the Mayor, Recorder, and Aldermen, or any three of them whereof the Mayor or Recorder to be one, who shall have power to hear and determine the same pleas and actions, according to the rules of the common laws and acts of general assembly of the said province."
24. It (the Court of Sessions) continued in existence three years, but by that time it was apparent that the mayor's court and the oyer and terminer were sufficient for the despatch of the legal business of the city. The circuit of the Oyer and Terminer was held in the city twice a year, and as the Mayor's Court had equal jurisdiction with the Court of Sessions, with the advantage of sitting more frequently, there was com- paratively little for the Court of Sessions to do. It was not, therefore, embraced in the general provision made by the charter, nor yet was it rejected. The act creating it had been passed by the General Assembly, had been signed by Dongan before he granted the charter, and subsequently ratified by James. Consequently, it was not in Dongan's power to repeal it, but, with the general acquiescence of all parties, the court seems to have been dropped, and the Quarter Sessions, as a court of exclusive criminal jurisdiction, substituted in its stead .- Chester's "Legal and Judicial History of N. Y.," I, 214, 215.
C.&L .- 27
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Provincial Law Officers-Besides the two judges of the Court of Oyer and Terminer, Matthias Nicolls and Thomas Palmer, regarding whose service in this court Governor Don- gan wrote in commendatory terms, stating that "Their methods have been by arbitration and such other mild man- agement, that where there were ten suits formerly, there is but one now," the Governor followed up his appointment of a recorder for New York City by another innovation on the same day, in the appointment of Thomas Rudyard as attor- ney-general of the province. Rudyard, who had practiced as a lawyer in London, was a Quaker and had been closely asso- ciated with William Penn. Indeed, he was one of the twenty- four proprietors of East Jersey, who succeeded, by purchase, to the provincial rights of the Carterets in March, 1682-83. Rudyard was the first Lieutenant-Governor of East Jersey under this purchase, his authority being equivalent to that held by Dongan in New York. But in the next year he was dismissed, and came over to New York. He was attorney- general for only a year, his successor being Recorder Graham, who had been clerk of the Court of Chancery. These were all professional lawyers, as was also John Tudor, who was ap- pointed sheriff of New York, and as, presumably, was Isaac Swinton, who succeeded James Graham as clerk of the Court of Chancery. And, presumably, they all came within the re- quirement set by King James for all public officers : "That they bee persons well affected to Our Government," this being his particular admonition to Governor Dongan when, in 1686, he sent him a new commission, empowering the Governor anew "to erect courts of law, and if he should consider that necessary, to appoint judges, justices of the peace, and other officers."
The Governor does not seem to have made much change in 1686, under his new authority, other than to grant a new charter to New York City and one to Albany, and to establish a Court of Exchequer. The Governor followed the plan of
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his predecessors in retaining for himself the functions of a surrogate or probate judge for the province, and "though schooled in the profession of arms and not of law, seems to have given general satisfaction."
Court of Judicature-In a report which he made on Feb- ruary 22 1687, to the Committee of Trade, Governor Dongan referred at length to this new court of exchequer, which he called the Court of Judicature.25 Its purpose was to deter- mine all royal revenue cases. There was good reason for its erection, it seems, for "great difficulty had been experienced in enforcing payment of taxes and revenue, because of the imperfect organization of courts distant from New York." Several of the tax collectors, or deputies, were themselves de- faulters, the government in one case, indeed, losing the whole of the revenue from one district in this way, the deputy collec- tor, the bonds offered by the deputy proving to be worthless.
25. "The Courts of Justice are most Established by Act of Assembly and they are :
"I. The Court of Chancery, consisting of the Governor and Council, is the Supreme Court of this Province, to which appeals may be brought from any other Court.
"2. The Assembly finding the inconvenience of bringing of ye peace, Sheriffs, Constables & other persons concerned from the remote parts of this Government to New York did instead of the Court of Assizes, which was yearly held for the whole Government of this Province erect a Court of Oyer and Terminer to be held once every year within each County for the determining of such matters as should arise within them respectively, the members of which Court were appointed to bee one of the two judges of this province assisted by three justices of the peace of that County wherein such Court is held. Which Court of Oyer & Terminer has like- wise power to hear appeals from any inferior Court.
"3. There is likewise in New York & Albany a Court of Mayor & Aldermen held once in every fortnight from whence their can be noe appeal unless the Cause of Action bee above the value of twenty pounds, who have likewise privilege to make such by-Laws for ye regulation of their own affairs as they think fitt, soe as the same be approved of by ye Govr. & Council. Their Mayors, recorders, Town-Clerks & Sheriffs are appointed by the Governor.
"4. There is likewise in every County twice in every year (except in New York, where it's four times, & in Albany where its thrice) Courts of Sessions held by the Justices of ye peace for the resp'ive Countys as in Engld.
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Still, if such a case were submitted to a jury drawn from the collector's own district, their sympathies, the Governor thought might defeat the ends of justice. Therefore, the new court was to be composed only of the Governor and members of his Council, who would hold monthly meetings in New York. And in it were to be determined all suits between the King and the inhabitants regarding lands, titles, rents, profits and revenues. It was another of the unpopular courts,26 but does not seem to have functioned long, the Su- preme Court in later years generally having cognizance of all matters in exchequer.
Extended Jurisdiction of Governor and Council-Further articles of law reform under a commission sent out to Dongan, writes Scott, enlarged the appellate jurisdiction of the courts. "Appeals were allowed in cases of error, to the Governor and Council, where the amount involved exceeded one hundred
"5. In every Town wth ye Government there are 3 Commissioners appointd to hear and determin all matters of difference not exceeding the value of five pounds which shall happen within the respective towns.
"6. Besides these, my Lords, I finding that many great inconveniences daily hapned in the managemt of his Mats (Majesty's) particular concerns within this Province relating to his Lands, Rents, Rights, Profits & Rev- enues by reason of the great distance betwixt the Cursory settled Courts & of the long delay which therein consequently ensued besides the great hazard of venturing the matter on Country Jurors who over and above that they are generally ignorant enough & for the most part linked together by affinity are too much swayed by their particular humors & interests, I thought it fit in Feb. last by & with ye advice & Consent of ye Council to settle and establish a Court which we call the Court of Judicature (Exchequer) to be held before ye Govr. & Council for the time being, or before such & soe many as the Govr. should for that purpose authorize, commissionat & appoint on the first Monday in every month at New York, which Court hath full power and authority to hear, try & determin Suits, matters and variances arising betwixt his Maty (Majesty) & ye Inhabitants of the said Province concerning the said Lands, Rents, Rights, Profits and Revenues.
"The Laws in force are ye Laws called his Royal Highnesses Laws and the Acts of the General Assembly, the most of which I presume yr Lops (Lordships) have seen & the rest I now send over by Mr. Sprag to whom I refer yr Lops in this point."-See "New York Entries," Vol. II, p. 1; O'Callaghan's "Documents Relative to the Colonial History of New York," III, 389.
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pounds; in case the sum in litigation was in excess of three hundred pounds, the appeal could be taken to the King and Privy Council." Thus, the judiciary powers of the Governor and Council were threefold, having equitable jurisdiction, sit- ting as a Court of Exchequer, and constituting the final Court of Appeals in the province. At this period the Mayor's Court at Albany sat fortnightly, from which appeals might be taken from judgments in excess of twenty pounds.
In the last years of the Dongan administration, the Court of Oyer and Terminer was summoned to sit by the special commission, when the need arose. The writ issued named the judge and justices of the peace, and at the close of the term or circuit, the written pleadings in each case, with all other rel- ative papers-orders, records of judgment and a complete record of the minutes-were attached to the commission, and the whole deposited with the secretary of the province, for filing as the official record.
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