USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 40
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26. Its unpopularity was assured from the beginning, for the people were not content to have the causes in dispute between themselves and the government left to the arbitrary decision of the representative of the gov- ernment. One of the charges brought against Leisler in 1690 rested upon this point :
"That by his instruments he hath and doth exact (by pretense of pre- rogative and for the use of the Crown) Customs Impositions and Excise never granted to the Crown; which that he might the better accomplish, he hath taken upon him to erect a Court of Exchequer, consisting as mem- bers of said Court, viz .: Samuel Edsall, Benjamin Blagg, Johanes Provest, Hendrick Jansen, John Cowenhoven, who begin their session on the 20th January, the 18th of the same month several of the Inhabitants received summons to appear at this unusual court on the day above said, to give their reasons why they would not pay the monies they were indebted to the King for Custom."
In the royal instructions to the governors who immediately succeeded Dongan were directions to erect a court of exchequer, but none appears to have been established. By the Assembly Act of 1691, the Supreme Court had cognizance of all matters in exchequer as in the Court of Exchequer in England. The first exchequer-chamber business attempted in the Su- preme Court was made by Chief Justice Attwood, shortly after his ar- rival in 1701. Attwood and Attorney General Sampson Shelton Broughton had been sent out from England to assist Governor Bellomont to suppress the piracy which was largely engaged in by the merchants and traders of New York. Attwood had a commission as Judge of Admiralty for New
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Under the Nicoll's Code, or the Duke's Laws, matters of probate were dealt with in the Courts of Sessions in the ridings, or in the municipal courts. In exceptional instances, Governor Andros gave his judgment upon the construction of a will, and sometimes granted letters without any proceed- ings in court; but these matters were generally left to the inferior courts. In 1686, under Dongan, the Governor as- sumed further responsibility,27 these methods being instituted in the Prerogative Court of 1691, to which reference will later be made.
There is one other court of the Dongan period to which reference should be made, that which exercised admiralty jurisdiction.
Court of Admiralty-The first English governors dealt with admiralty proceedings, as matters within their own pre- rogative, and under their general commission. In 1678 the Duke of York strengthened the authority of the Governor in
England, New York, and New Jersey, in addition to the chief justiceship of New York. Soon after his arrival he took up the case of a vessel which, seized for lack of registry under the Navigation Acts, had been discharged by the Admiralty judge. Although it was desired to prohibit, by writ, the execution of the decree, discharging the vessel until the admiralty proceed- ings could be reviewed, no court in the province appeared to have an unquestioned right to issue such a writ. The chancery jurisdiction of the governor was questioned, the Supreme Court was claimed by the lawyers to be a court of law only. Attwood concluded that the Supreme Court, sitting as a court of exchequer, had the required power and thereupon, assuming to sit as a baron of the exchequer, he directed "a suggestion to be exhibited to it for a prohibition to the Court of Admiralty upon its sen- tence in that matter." But as "one of the persons designed for a judge in the Supreme Court had given the obnoxious sentence in favor of the ship," and the other was a merchant who might be concerned in interest, the governor suspended the granting of their commissions till this matter should be over in the Supreme Court, and empowered Attwood alone to determine the matter. Notwithstanding the owners of the vessel, "Men of good estate," as they were called, appealed directly to the King, the Chief Justice proceeded to try the Crown's claim to a forfeiture. The captain refused to appear, but on the facts found a forfeiture was declared, under which the vessel was sold at public auction. It does not appear that Attwood's exercise of equity jurisdiction in this instance was followed as a precedent by any of his immediate successors. Exchequer matters were heard at the regular terms of the Supreme Court. When, however, as
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this respect by giving him a special commission to act as vice- admiral "throughout the entire colonial government." At the same time Governor Andros was authorized to appoint "a Judge, Register and Marshall of the Admiralty."28 Andros did not immediately act in the matter, contenting himself by issuing special warrants as formerly, for the trial of admiralty cases. Many cases of this character were left to the Mayor's Court of New York City for hearing and determintion. In practice it became evident that this court was the logical tri- bunal; therefore, on October 5, 1678, Governor Andros took his personnel for a Court of Admiralty from the officials of the municipal court. He appointed the Mayor of New York, Stephen van Cortlandt, to be Judge of Admiralty, and decreed that his assistant justices should be the aldermen of the city. To complete the Court of Admiralty he appointed City Clerk William Leet to be Register of Admiralty, and Sheriff Thomas Ashton to be Marshal of Admiralty. It was planned
frequently happened, the ordinary business of the court consumed the full term, the exchequer matters were taken up at the conclusion of the regular sessions. Soon the exchequer business accumulated so that it could not be disposed of in regular terms, and in April, 1702, Lieutenant-Governor Nan- fan ordered separate terms of the Supreme Court for the determination of these cases. The practice of holding these special terms did not long con- tinue, and there was very little, if any, exchequer proceedings until in 1733 Governor Cosby, by his Attorney General, filed a bill in the Supreme Court as a court of exchequer against Rip Van Dam. In 1734 public feel- ing in the colony against exchequer proceedings was further intensified by the celebrated trial of John Peter Zenger, charged with seditious libel. After the trial and acquittal of Zenger, proceedings of importance were had on the exchequer side of the Supreme Court during the colonial period. In 1742, during the administration of Lieutenant-Governor Clarke, the Assembly passed an act for the regulating of the payments of quit rents and the partition of lands. This act gave jurisdiction to the Supreme Court. As Clarke expressed it in a letter to the Lords of Trade: "a Court of Exchequer is in effect by this act established, whereas the uncer- tainty arising from the different opinions of lawyers on the legality of such a Court without an act to countenance it, was one principal Cause of the unhappy animosities that a few years ago miserably divided the people and had almost ruined the place. The subject of the reestablishment of such a court continued to be agitated by the successive royal governors. As late as 1766, Governor Moore, writing to the Earl of Dartmouth, one of the Lords of Trade, declared his opinion that such a court was necessary
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that the outgoing mayor of New York City should thereafter be ex officio Judge of Admiralty, with the several other city officials presumably also serving the court in their respective ex officio capacities. In this way Thomas Delavall succeeded Van Cortlandt in 1679. But the sequence seems to have ended there, for the next Judge of Admiralty appointed was Lucas Santen, in 1683; and he was then the collector of the port not mayor, of New York. In the next year Santen was succeeded as judge by John Palmer, who had sat in the first General Assembly representing Westchester, and in 1683 was sheriff of Richmond, also a member of the Governor's Council. His successor in 1686 was Circuit Judge Matthias Nicolls. The next register after William Leet was William Nicoll, who was appointed in 1683. He was also clerk of Queens County in that year, and later became a member of the Gov- ernor's Council. John Spragge, who succeeded him in 1684, was the clerk of Assembly in the previous year, and also provin- cial secretary ; and in 1684 he was commissioned Master of the
and added: "It is a Court much dreaded by the Inhabitants here, and one which they do not wish to see established among them, as it must neces- sarily bring to light many dark transactions which have been committed against the Crown, but as there are no salaries appointed for the Executive Officers, it will be impracticable to obtain anything of the kind from the Legislature here, for the reason above mentioned. Answering this com- munication, the Lords of Trade, conceding the importance of establishing such a court, gave their opinion that "It is a consideration of too great im- portance to be hastily taken up." And it appears never to have again been taken up .- Chester's "Legal and Judicial History of New York," Vol. I, pp. 299-303.
27. The Courts of Sessions and the mayor's courts exercised the same functions as before, but the Governor and the Secretary of the Province also took proof of the execution of wills and directed the inventory and appraisement of estates. The scope and authority for this procedure was clearly indicated in 1691, under Lieutenant-Governor Ingoldsby, when a clause in all letters granted declared that the hearing of accounts, the granting of probates, the discharge of executors and all cognate matters belonged to the governor and not to the inferior judges.
Wills were proved by the Secretary, and he annexed a certificate that "being thereunto delegated" the will had been duly proved before him. Then an authentication, in the name of the governor, in the form that continued in use down to the time of the Revised Statutes, "that the will had been proved, approved, and allowed," under the prerogative seal, was annexed,
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Rolls of the Court of Chancery. Thus, it appears that the officials of this court, under Governor Dongan, were very near to the government. Another office in this court seems to have been created by Governor Dongan, who appointed John Tudor advocate-general in 1684. In 1700 this became the ex officio responsibility of the attorney-general.
Lord Cornbury, writing to the Lords of Trade in Septem- ber, 1702, stated that his inquiries led him to believe that no "regular Court of Admiralty" was established in New York until that by Colonel Fletcher about 1694.29 But the "New York Civil List" records the names of twelve who were Judges of the Admiralty before that year, also seven appointments as register, and six as marshal. So the court must have been operating when needed earlier than 1694.30 And Governor Dongan seemed to have been determined that it should func- tion efficiently, for he appointed to it some of his most capable officials.
and the whole was recorded in the Secretary's office-the validity of the record being attested by his signature. Gradually, this department in the Secretary's office assumed great importance, and ultimately it became the Prerogative Office, while its records were named the Registry of Prerog- atives. In 1691, the entire institution was denominated the Prerogative Court-"Chester," I, 31I, 312.
28. "Whereas it may be convenient for you to be authorized and em- powered to appoint a Judge, Register and Marshall of the Admirality within your governont by reason of its distance from hence (notwithstanding the clause in your commission of Vice Admirall wch reserves the nomination of them to myself). These are therefore to authorize and empower you, and I hereby authorize and empower you from time to time dureing the va- cancyes of the said places to nominate, constitute and appoint the Judge Register and Marshall of the Admiralty aforesd to continue dureing my pleasure only. Given under my hand and seale at St. James's ye 20th day of May, 1678."
29. "I have made the best enquiry I can, and find that the first time there was a regular Court of Admiralty here it was established by Coll. Fletcher by virtue of a warrant from the Lords of the Admiralty impower- ing him to appoint a Judge, Register and Marshall for the Court of Ad- miralty. After that, in my Lord Bellamont's time there was a commission from the Lords of the Admiralty appointing Coll. Smith Judge of the Ad- miralty here, and since that Mr. Atwood brought over with him a Commis- sion from the Lords of the Admiralty constituting him Judge of that Court."-See O'Callaghan's "Documents Relative to the Colonial History of the State of New York," Vol. IV, 1000.
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Governor Dongan has been described as "a good New Yorker." He certainly was one of the most liberal-minded Governors New York had during the colonial period. He had to guard the royal prerogative, of course; yet his actions as Governor do not seem to indicate that he was as thoroughly conscious as was his successor, Andros, that "Liberty is never more agreeable than under a pious King." (Nunquam libertas gratior extat, quam sub rege pio), which motto King James II partly incorporated in the seal of the reconstituted New Eng- land he expected Andros to consolidate. Dongan was faith- ful to his royal master, but not less faithful to the interests of New York. He followed the sensible policy of Andros in dealing with the powerful Iroquois nations, and was more successful than his predecessor in checking French influence among the Indians, for, being a Catholic, he was able to call English Jesuits to his aid, to satisfy what religious sentiment the Indian manifested toward Christianity, the symbols of the Church of Rome impressing the natives more than the simple forms of the Protestants. Dongan had many arbitrary royal commands to execute, yet in all of his official acts a tolerant interest in the governed was seen. "The despot's heel was
30. William Smith, who was appointed judge of the court in 1697, described the method of admiralty proceeding in a communication which he made to the Earl of Bellomont. He said that "in the Court of Vice Admiralty here we have in all things as near as possible followed the proceedings of the Admiralty Court in England save only where greater power is given here in the plantations by act of parliament to the Admiralty, than allowed of or practicable in England which hath been duly observed in my administration in that Court in this province."-(See O'Callaghan's "Colonial Doc.," IV, 828).
In 1763, the fourth year of the reign of King George III, an act of Parliament was passed relative to trade in American colonies and planta- tions. The forty-first section of this act directed :
"That all the forfeitures and penalties inflicted by this or any other act or acts of Parliament relating to the trade and revenues of the said British Colonies or Plantations in America which shall be incurred there, shall and may be prosecuted, sued for and received in any Court of Record or in any Court of Admiralty in the said Colonies and Plantations where such offense shall be committed, or in any Court of Vice-Admiralty which may or shall be appointed over all America (which Court of Admiralty
HOME OF GOVERNOR THOMAS DONGAN (Later Earl of Limerick) Site: Port Richmond, Staten Island, square bounded by the Terrace, Dongan, and Cedar Streets. Erected 1661; Burned in 1878
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not shod with iron, nor was it stamped down too hard." Don- gan, a "kindly Kildare Irishman, would not make oppression bitter." His very interest in the people and the province of New York, his desire to make it a more important colony, ulti- mately brought about his downfall, if his recall can be so considered. He insistently pleaded with the King to author ize the annexation to it of neighboring colonies, so that the province might be restored to its original territorial im- portance. And his arguments evidently did not fall upon deaf ears, nor materially conflict with the King's own opinions as to the best manner of reorganizing the government of his American colonies, though the King did not centre his plans so much on New York. Indeed, when it became known that New York was to virtually lose its identity in the reorgan- ization of New England under Andros, Dongan probably shared with New Yorkers the feeling of humiliation and chagrin that was general throughout the province-among the Dutch as well as the English inhabitants it would seem.
Thomas Dongan was born at Castletown, County Kildare, Ireland, in 1634, the youngest son of Sir John Dongan, Bart., whose wife was a sister of Richard Talbot, who, as Earl of
or Vice-Admiralty is hereby respectively authorized and required to pro- ceed, hear and determine the same) at the election of the informer or prosecutor."
This action of the British Parliament created great dissatisfaction among the colonists. The opposition to the king's prerogative in estab- lishing and directing the administration of the courts had developed to an acute point during the preceding half century, and it was no more tolerable to the citizens of the later period than it had been to their ancestors, when the courts were first established in the early years of the century. On October 18, 1764, the General Assembly, giving voice to the popular opinion, petitioned the King in regard to the matter, and also at the same time communicated to the House of Lords and the House of Commons its opinions in regard to the matter. The petition to the King said that :
"The unavoidable delegations of the royal authority which necessarily expose us to the designs of wicked men leave us neither rest nor security, while a custom house officer may wantonly seize what a judge of your Majesty's Court of Vice-Admiralty may condemn in his discretion, or at best restore to the honest proprietor without a possibility of a restriction for the injury."
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Tyrconnel, became commander of the military forces in Ire- land, and so purged the army of Protestants that when James II stepped down from his throne and went to France, at the coming of William of Orange, it was with the knowledge that in Ireland Tyrconnel had an army which might win for him his kingdom again. Dongan had been reared in the Catholic environment of the Court of France, during the exile of the Stuarts, and had served in the Continental wars, in an Irish regiment of the army of Louis XIV of France. He cam- paigned in the Low Countries, and in 1674 gained a colonelcy. In 1678 he was offered advancement in the English army, but in the same year was commissioned Lieutenant-Governor of Tangier, Africa, where he remained for two years. In Sep- tember, 1682, he received commission as Governor of New York, and on June 10, 1686, was recommissioned. Outstand- ing achievements of Dongan's administration, other than those already noticed, include : his disposal-at least for some time -of the boundary dispute between New York and Connec- ticut, in 1683; his circumvention of William Penn in 1683, in the matter of extinguishing Indian title to the upper Susque- hanna Valley, which territory Penn keenly sought to acquire ;
The communication to the House of Lords said, among other things: "That the amazing powers vested by some of the late acts of trade in the Judges of the Vice-Admiralty Courts, who do not proceed according to the course of the common law, nor admit of trials by juries, one of the most essential privileges of Englishmen, has so unfavorable an aspect on the property of the subject, that we could not, consistent with our duty, sup- press our apprehensions."
The petitions to the Commons said :
"We cannot stifle our regrets that the laws of trade in general change the current of justice from the common law, and subject controversies of the utmost importance to the decisions of the Vice-Admiralty Courts who proceed not according to the old wholesome laws of the land, nor are always filled with judges of approved knowledge and integrity."
Admiralty jurisdiction in the colony extended to decisions in all mari- time causes. Proceedings in the court were the same as in the High Court of Admiralty in England. The Court particularly tried cases and rendered decisions as to whether captures and hostilities between Great Britain and other powers were legal prizes .- Chester's "Legal and Judicial History of New York," I, 304-306.
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his service to Penn, in 1684, in the boundary dispute between Pennsylvania and Maryland; his division of the province of New York into twelve counties;31 and his circumvention of the plans of the French Canadian Governor, Denonville, for the extension of French influence along the interior waterways of northern and western New York. He may have undone even himself by his success in these moves, for his recall seems to have been in some measure caused by this good stewardship, the French King strongly protesting to King James against Dongan's activities among the Iroquois nations who were opposing Denonville. King James was further prej- udiced against Dongan by William Penn, who had not for- gotten that Dongan had outwitted him in his Susquehanna Valley aim. Still, these were but contributory factors. Dongan's recall seems to have been due rather to the fact that the new royal plans for New England called for harsher char- acteristics in the Governor than Dongan had shown. So Andros was thought of, New York and New Jersey were added to his New England commission, and in due course he reached New York. On August 1I, 1688, he took the seals and records of the province of New York from Colonel Don- gan, who then stepped down. The outgoing Governor, how- ever, did not at once return to England. Maybe, he did not incline eagerly to the England of that time of the Bloody As- size; Catholic though he was, and cognizant of some of the ultimate aims of his sovereign lord, he cannot have looked
31. The province of New York was divided by Dongan into twelve counties : the City and County of New York, Richmond, Queen's, King's, Suffolk, Duke's, Ulster, Orange, Duchess, Albany, and Cornwall. Ulster was probably so called because the Duke of York was also Earl of Ulster ; Orange probably was to honor William of Orange, who married the daugh- ter of James II, a relationship that had little restraining effect some years later; Richmond, after the Duke of Richmond, illegitimate son by the Duchess of Portsmouth, mistress of Charles II; Duke's County, which com- prised Nantucket, Martha's Vineyard, Elizabeth Islands, and No Man's Land, was probably named after the Duke of York. The county of Corn- wall included Pemaquid and other Maine territory the Duke possessed.
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with sympathy upon the judicial infamies of the most atrocious judge of English history, "Bloody" Jeffreys, of whom Dickens wrote: "It is astonishing, when we read of the enormous injus- tice and barbarity of this beast, to know that no one struck him dead on the judgment-seat." Possibly, Dongan thought that Andros may have been expected to establish some such in- famous judicial atrocities in the colonies, and for that reason he wished to stand by, knowing that the colonists would not meekly bear such injustice. Certainly, James could not hope to stamp out Protestantism in New England as he was fran- tically striving to do in England. But he was running a heedless race in the homeland; and in any case, the future could not be very certain under a Catholic King who was stubbornly opposed by the lords, the gentry, the trading classes and the peasantry of a Protestant country, and whose policy did not even find approval among his own bigoted Catholic courtiers, yet who declared : "I will lose all or win all." Don- gan may have been a better judge of political factors than King James was. At all events, he declined a home appoint- ment as major-general, and stayed on in New York, where he witnessed, and had part in some exciting happenings during the next two years.32
32. Declining the command of a regiment with the rank of major-gen- eral offered by the King, he remained in New York, his residence being situated on Broadway between Ann Street and Maiden Lane. On the downfall of James II, Dongan was accused of instigating the adherents of that monarch to seize the province, and was forced to flee for his life. For a time he lived in New London, Conn., then returned to Hempstead ; finally, in 1690, being included among Roman Catholics for whom apprehension writs were issued, he again fled, and after hiding in New Jersey made his way to Boston, where, in 1691, he embarked for England. In 1698 he suc- ceeded to the earldom of Limerick, but did not regain the family estates which had been confiscated for several years, and at the last had but little to live on. He died unmarried, and his estates in America passed to three nephews, one of whom, Walter Dongan, left descendants. He was one of the most popular of the royal governors, owing to his regard for the rights of the people, his judicious policy and his courteous treatment of those who differed with him in religious matters. Governor Dongan died in London, England, Dec. 14, 1715 .- "Nat. Cyclop. Am. Biog.," X, 241.
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