USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 13
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Hardy was no more successful with the Assembly than former Governors had been. There was need of unity of ac- tion ; yet the Assembly by their actions as to money bills,
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seemed to curb and hamper military measures. In Decem- ber, 1755, Hardy asked them to abandon the system of annual appropriations, but was told in reply that what the Governor wished to deny them had been granted to other colonies. The Lords of Trade in February, 1756, in an address to the King, thought that steps should be taken "of checking such unwarrantable proceedings, and restoring the Constitution to its true principles."56 Yet, in March, 1756, they instructed Hardy not to press for the establishment of a permanent rev- enue, and for the present to consent to temporary bills "pro- vided they be in all other respects conformable to instructions with regard to the granting and disposing of public moneys."
These were empty phrases, written perhaps to pass on to other heads the responsibility for the departure from the King's instruction, for it was quite evident that the actions of the Assembly were not conformable to the royal instruc- tions. In December, 1756, the Assembly was again pro- rogued. Compromise measures seem to have been decided upon. In the appropriation bills, officers appointed by His Majesty or by the Governor were made payable by warrant, and officers appointed by the Assembly were paid by order of the House, said orders being signed by the Speaker. Legally, the Assembly had no right to appoint officials and no right to pay them on orders signed by the Speaker. However, it
56. The Lords of Trade to the King, February 4, 1756 :
"The late conduct of the Assembly of New York, in making use of this indulgence as an instrument to wrest out of the hands of your Majesty's government almost all the executive parts of government, by an annual nomination of officers, and by their own authority dispensing of the public money granted to your Majesty without a warrant from the Governor and Council, made it necessary that your Majesty should take this proper method of checking such unwarrantable proceedings and restor- ing the Constitution to its true principles. We are sorry to find that this construction has not had all the good effects which might have been hoped for from it, it is, however, a great satisfaction to us to observe that the present Assembly does not appear to be desirous of reviving the unwar- rantable and illegal claims and pretensions of former Assemblies, and have declared that they do not mean to take upon themselves the executive part of government."
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was a period of war, of serious vital national struggle; and the English ministers knew that they dared not risk a dead- lock in governmental affairs in New York. The Assembly met them half-way. A Stamp Act was passed, and an act imposing an excise duty of sixpence a pound on tea. Com- missioners were named in the bill, as being those "whom his Excellency the Governor, has been pleased to appoint," by which "the Assembly acknowledge the right of appointment, but appear to have reserved to themselves the power of putting a negative on the Governor's appointment." Thus the Assem- bly kept well to the forefront the sovereignty of the people. In March, 1757, the Lords of Trade surrendered on this point also; not without protest however. Their message stated that "although we cannot help expressing our great concern that in the manner of framing the laws for those and other purposes, the Assembly should have again reverted to the claims and pretensions which we had hopes, from former dec- larations made by them, they were willing to have receded from," yet, in the present exigency they would not advise their repeal.
On June 3, 1757, Governor Hardy handed over to De Lancey responsibility for government in New York, and took an office more to his liking, that of rear-admiral of the White Fleet. He went to greater distinction at sea, glad, no doubt, that he had no longer to worry about the perplexing course of New York politics. De Lancey maintained the government until his death, July 30, 1760. Whether the weight of office was the main cause of his death at the comparatively early age of fifty-seven years can only be surmised; it is said that on the day before his death he, who was a chronic sufferer from asthma, had crossed to New Jersey, on matters of gov- ernment, and had returned late at night, crossing the bay in an open boat in the damp night air. Next morning he was found dead in his chair in his library.
De Lancey had had three perplexing years in office, made
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so by an earnest endeavor to follow out his theory that it was possible in the development of the civil polity of the province to make it an efficient mechanism for executing the will of the people without impairing the efficiency of the Executive as the representative of the Crown. He did not succeed, though, perhaps, he did more for the people than English executives would have accomplished. At times, he had to bear censure from the Crown, and at other times from the Assembly. On December 19, 1758, he was censured for having approved an act relating to His Majesty's quit rents, which "so materially relates to and may so affect his Majesty's rights and revenues." In the next year the Assembly passed an act increasing the powers of Justices' Courts. This was criticized by the Lords of Trade. De Lancey, however, in reply showed that the po- sition of the Crown was indeed strengthened by the act, to which he had given approval: "Justices are appointed by the Governor with the advice of the Council; therefore, the greater their powers are, if they be not oppressive to the people, the greater weight and influence will the Governor have, and be better able to carry on His Majesty's service." On the other hand, there was no danger from erroneous de- cisions, for there existed the power of removal by certiorari to the Supreme Court.
In the same year that De Lancey died, George III ascended the throne of England. Cadwallader Colden, the oldest member of the Council and for many years its President, or Speaker, became Lieutenant-Governor upon the death of De Lancey. Colden was then seventy-two years old, had lived in New York for forty-two years, and had earlier been a prac- ticing physician in Philadelphia. He was probably one of the most learned men in New York at that time, a scientist of wide scope, "physician, botanist, astronomer, and historian," as one biographer describes him. He was also a capable executive, one well versed in the science of government. And,
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notwithstanding his age, he was a vital factor to the New York government for the next fifteen years.
With the death of King George II, several matters of dis- pute became increasingly active in New York. The principal bone of contention was the royal prerogative. It was at- tacked indirectly, the demise of De Lancey being most oppor- tune. Doubts were raised as to whether all commissions should not terminate with the death of a sovereign. It was necessary, of course, soon to have another Chief Justice, and the question was whether the said Chief Justice should be ap- pointed durante bene placito as had once been the custom, or quamdiu bene se gesserint, as Clinton, to his sorrow, had com- missioned De Lancey. It eventually became known that Benjamin Pratt who succeed De Lancey, was content to be commissioned "during pleasure." An anomalous situation would thus exist, for Chambers, one of the associate justices, had been commissioned by Clinton "during good behaviour." Possibly Horsmanden's commission was of like tenure. It raised the general subject of the right of the Crown. And the Assembly challenged the right promptly, proposing to pass an act to establish Courts of Judicature by law instead of by prerogative. Further, they wanted judges to be remov- able by the Governor, on an address from the Assembly, or by advice of at least seven members of the Council. Lieu- tenant-Governor Colden countered with the suggestion that the King be empowered to remove, thus preserving the prerog- ative of the Crown. Benjamin Pratt, came from Massachu- setts with his commission as Chief Justice during pleasure. He was frowned upon by the Assembly. He was not liked by the other justices, Daniel Horsmanden, John Chambers and David Jones, all of whose commissions were apparently in jeopardy owing to the death of George II and to the sub- sequent dispute as to the mode of appointment; it was but natural that they should expect to be confirmed in office, or recommissioned, and that one of them would be preferred to
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the Chief Justiceship eventually. Their indignation was therefore all the greater when a strange Chief Justice ap- peared with a commission that was revocable at will. All the discussion of many anxious months had gone for nought. An act had actually been passed that judges should hold office during good behaviour, instead of during the pleasure of the Governor. But the presence of Pratt confounded the As- sembly. It cannot be said that Colden favored the People in this. On January II, 1761, he wrote to the Lords of Trade, attributing the obstinacy of the Assembly in refusing sal- aries to the judges to "a formed design of undue influence," and to a determination "to have no Chief Justice unless he be a gentleman of estate in this province." This, he said, "takes with the People," but his own opinion was that both the King and the inhabitants may more safely trust the administration of justice with a stranger, who has no private connections, than with an inhabitant."57 A Chief Justice removable at the pleasure of the Governor could, indeed, be no more than a tool in the hands of the Crown. At least so thought the Assembly. And they rested easy, in the thought that victory must lie with them, because they held the purse. It was futile to point out to them that thus
57. Writing to the Lords of Trade on January II, 1761, Lieutenant- Governor Colden attributed the obstinacy of the Assembly in refusing sal- aries to the judges to "a formed design of undue influence," and a deter- mination to have no Chief Justice unless he be a gentleman of estate in this province"-a position, he says, which "takes with the people," but in his opinion, both the King and the inhabitants may more safely trust the administration of justice with a stranger, who has no private connections, than with an inhabitant. "Sure I am that men of greater abilities may be found out of the province than in it." To yield to the Assembly in this matter would, he thinks, affect disastrously the whole administration, for while few people had any dependence on the governor, "a chief justice has an influence on every man in it; because no man knows when he may have a dispute at law with his neighbor." "If, then," he continues, "a chief justice for life, with large family connections, form a party, to serve am- bitious or interested views, the governor must either become the tool of this party or live in perpetual contention. This is not a mere hypothesis; we had not long since a glaring instance of it."-"History of Bench and Bar of New York" (1897), p. 64.
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they also presented an independent judiciary. Colden's plan to overcome this curb was that the Chief Justice should be paid by the Crown, out of the quit-rents of the province. All this controversy, of course, pointed to what was inevitable. There was no place in the province for both the Crown and the people; the rougher, more independent life in the colonies could not be hedged in by restrictions such as were accepted in the narrow confines of the mother country.
It seems quite possible that Colden was mainly responsible for the appointment of Pratt as Chief Justice. Colden was Governor Clinton's chief assistant, and necessarily was op- posed to De Lancey in all things. Now that he was to all intents Governor, he wanted to save himself from hindrances that an independent Chief Justice could cause. If he did not control the Chief Justice the latter would control him. As he explained : "The Governor must either become the tool of this party, or live in perpetual contention" with a Chief Justice who was commissioned for life. So, in October 1761, Pratt came from Boston, and in November he was commissioned durante bene placito. The other judges were offered commis- sions of like tenure but all refused. Chambers was so indig- nant that he at once resigned his commission. This, how- ever, Governor Monckton refused to accept.
Monckton scarcely came into the controversy at all. Gov- ernor Hardy had formally resigned the governorship in 1761, and on March 20 1761, the King had appointed Robert Monck- ton Governor, and Colden Lieutenant-Governor. Monckton was well known and well liked by colonials. He, a son of the Viscount of Galway, had had a brilliant military career, had been campaigning in American for eight years, had com- manded American troops, and had been severely wounded in Wolfe's last battle on the Heights of Abraham, where he had been second in command. His commission as Governor reached New York on October 20 1761. Six days later he was sworn in, amid many evidences of his personal popularity
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among the people. But he abstained from any act of au- thority, for with his patent had also come permission to leave the province, to command an expedition that was being fitted out against Martinique. So that Colden was in almost un- interrupted control. On November 15, Major-General Monck- ton produced in Council his leave of absence, and then passed over the seals to Colden. He also, it seems, was not averse to letting Colden have all the emoluments that would fall to him, as Governor, during his absence. Some friction over the incompleteness of Monckton's appointment, and Colden's half-expressed doubt of the general's right to the Governor- ship, caused the latter to withdraw his generous offer, and de- mand his rightful share of whatever would have been his if in full performance of his gubernatorial duties. These emolu- ments were substantial, as will later appear. But for the present Monckton passed out of the area of political storm, and Colden was in charge.
The situation in which the new Chief Justice found himself was certainly embarrassing. He could get no judge to sit with him, and he had to sit alone during the whole of the January, 1762 term of court. Unacquainted as he was with the practice of the court and the laws of the province, he found himself so perplexed that as soon as the term ended he ap- plied to Mr. Colden begging him to fill up the bench. Colden could not attempt to do so at that time, however, for the ex- citement was still high. The Assembly had had several heated exchanges with the Crown, since they had passed an act that judges should hold office during good behaviour. The Lords of Trade, on November 21, 1761, held that this was "a subversion of that policy by which those colonies can be kept in a just dependence upon the government of the mother country." They said that "the change which the tenure of office underwent at the Revolution was in conse- quence of arbitrary and illegal interposition under the influ- ence of the Crown, upon points of the greatest importance to
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the Constitution and the liberty and rights of the subject," but salaries were at the same time settled upon them, The same circumstances, it was claimed, did not exist in the Ameri- can colonies. "It is difficult to conceive a state of govern- ment more dangerous to the rights and liberties of the subject, aggravated as the evil would be by the making the judges' commissions during good behaviour, without rendering them at the same time independent of the factious will and caprice of an Assembly," by providing permanently for their support. In accordance with these views, instructions were issued to Governors on December 2, 1761, "that you do not, upon any pretense whatever, upon pain of being removed from your government, give your assent to any act by which the tenure of the commissions to be granted to the Chief Judge, or other justices of the several courts of judicature shall be regulated or ascertained in any manner whatever, and that you are to take particular care in all commissions to be by you granted that they be during pleasure only, agreeable to ancient practice and usage."
The Assembly defied the Crown, absolutely refusing to grant any salary to the Chief Justice, or to any of the justices who held any other commission than of "good behaviour" tenure; and even in such cases they would provide salary for no more than one year at a time. Colden, upon his own responsibility, it seems, thereupon offered to grant commis- sions of such tenure, if the Assembly would make the system completely satisfactory, and the judges quite independent of both Crown and people, by settling upon them permanent salaries. This reasonable proposal was unacceptable to the Assembly, so Colden let the matter lie. Later, it seems, Colden was reprimanded by the Lords of Trade for approv- ing the act appropriating salaries to judges whose commis- sions were of "good behaviour" tenure. They wrote that no personal considerations "ought to have induced you to ac-
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quiesce in such an unprecedented and unjust attack upon the authority of the Crown."
The act appropriating salaries provided for Chief Justice Pratt, as well as for Associate Justices Chambers, Horsman- den, and Jones for one year. But it did not benefit Pratt, be- cause of the qualifying clause, making the liability of the As- sembly only "from the time of his being qualified." The act passed by the Assembly in December, 1761, "providing that the Judges of the Supreme Court shall have their commissions during good behaviour," had met with the concurrence of the Council (which by the way was certainly interested in the measure, for three of the four Councillors who sat and ap- proved the bill were the Puisne Judges themselves) and the Governor had signed the bill. Pratt, therefore, could not qualify. As a matter of fact, he received no salary from the Assembly at any time. In May, 1762, he requested that he be reimbursed out of the quit-rent funds, explaining that his salary had been denied him by three successive sessions of the Assembly, and that he had nothing to hope for from that or any future Assembly.
After being so severely censured by the home ministers for approving the "good behaviour" act, Colden seems to have taken the matter up with the old judges, who had refused to sit with Pratt. He offered them new commissions "during pleasure." Chambers apparently refused, but there is record that Horsmanden and Jones were commissioned in March, 1762. It is said however that they still refused to sit; and the matter was not settled until the next year, when Monckton, having returned from the Martinique expedition, cleared the situation by issuing new commissions. The people had more confidence in Monckton than in Colden, and there was not such keen opposition to his issuing commissions "during pleasure" as had been manifested in 1761, under Colden. Monckton was aided in settling the dispute by the death of Chief Justice Pratt, who died in January, 1763, while on a
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visit to England, whither he had gone to lay his own case be- fore the home authorities.58 On March 16, 1762, Horsmanden was appointed Chief Justice, and David Jones, William Smith, Sr., and Robert R. Livingston, First, Second and Third Puisne Justices, respectively. All succeeding justices of the Supreme Court during the colonial period held commissions of like tenure, durante bene placito. Horsmanden remained Chief Justice to the end, George D. Ludlow becoming an Associate Justice in 1769, Thomas Jones in 1773, and Whitehead Hicks in 1776.
Though they held office "during pleasure" only, the Jus- tices preserved their independence with dignity, not deviating from what they considered to be the strict judicial course even to obey peremptory orders of the King. In 1764, they had to take a decisive stand to preserve the integrity of trial by jury. The judges aligned themselves against the Government, in the matter of appeals in civil cases, which involved the gravest constitutional question, to wit: whether the King, in requir- ing, by his instructions to the Governor, the allowance of an appeal to the latter and his Council from civil judgments of the Supreme Court, was not exceeding the constitutional limits of his power, it being conceded that such an interfer- ence with judicial procedure in England was beyond his power. Then, why should it be within his right in an English colony?
58. According to Judge Thomas Jones, Chief Justice Pratt, during his brief service on the New York Supreme Court bench, was "insulted, abused and lampooned through the artful insinuations and cunning, sly, dark designs of the Republican faction, of which the two Smiths, senior and junior, William Livingston, John Morin Scott, Robert R. Livingston, Peter van Brugh Livingston, Philip Livingston and Thomas Smith were the principal leaders. He was opposed in every judicial act he did, plagued and harassed by the Smiths, Livingstons and Scott, the then leading gentle- men of the bar." Benjamin Pratt (1710-1763) was of humble birth, lost a limb at an early age, graduated at Harvard in 1737, studied law in Boston, and became one of the leading lawyers of that place, noted for his learn- ing and eloquence. He deserved better treatment than was given him in New York, but he unfortunately ran counter to the Assembly in what seemed to them a vital issue.
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Prior to the promulgation of this new instruction of George III, a Supreme Court judgment, in a civil action, could be re- viewed by the Governor and Council by Writ of Error only, on which only errors of law were assignable, the evidence not appearing on the record; whereas an appeal, as was now di- rected to be allowed, would bring up the whole record, in- cluding the evidence on which the verdict was found-having the effect, it was claimed, of enabling a defeated party, if rich or powerful enough to appeal, to defeat the verdict of a jury. In the case of Force vs. Cunningham, a verdict having gone against the defendant, at the fall term of 1764, the latter, by his attorney-in-fact, he being a non-resident, petitioned the Governor and Council for permission to appeal. This the Governor, Colden, granted, despite strong opposition from Horsmanden and other members of his Council. He instruct- ed John Tabor Kempe, the Attorney-General,58a to draft the writ. The Governor, though not a lawyer, and assisted only by the appellant's representative, drafted "a Writ of In- hibition," addressed to all the officers of the Supreme Court, staying all proceedings on the judgment. A day or so later, he sealed another writ, which directed the Chief Justice to send up all the proceedings in the case to the Governor and Council. The case excited keen interest among the people. There was, as Colden writes, "a popular clamour." Many of
58a. Attorneys-General: Thomas Rudyard, 1684; James Graham, 1685; George Farewell, 1687; Jacob Milborne, 1690; Thomas Newton, March 23, 1691 ; George Farewell, Apr. 17, 1691; James Graham, May 15, 1691; Sampson Sh. Broughton, Aug. 5, 1701; May Bickley, March 3, 1705; Sampson Broughton, appointed by Queen Anne, by letters mandatory, dated June 18, 1705, to Lord Cornbury, ordering him to constitute Sampson Broughton Attorney-General in place of his father, deceased; but Governor did not comply, pleading important cases in which service of Acting At- torney-General Bickley was advisable, Broughton being never commis- sioned; John Rayner, March 24, 1709; May Bickley, appointed vice Chat- field, resigned, July 7, 1709; David Jamison, appointed June 10, 1712, to act while Rayner was in England, and regularly appointed Jan. 22, 1759, reap- pointed Oct. 30, 1761 ; James Duane, appointed King's Attorney in 1767, in absence of Kempe; John Tabor Kempe, May 8, 1768.
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the leaders, who looked upon the question as sinister, were prepared to support the Supreme Court Justices to the limit. They would not brook tyranny. To review a verdict by ap- peal was to them sinister as well as new; and Justices Hors- manden, Smith, and Livingston who flatly refused to obey the writ, or to recognize the stay of proceedings, knew that a strong republican body was with them. Their attitude an- noyed Colden. Still, not being a lawyer and thus having no fellow-feeling with the profession but being well aware that lawyers had been in his way throughout his public life, the Lieutenant-Governor was perhaps thankful that Horsmanden had furnished him with "another opportunity to inveigh against the lawyers and judges"; these lawyers and jurists, he declared, appeared resolved to make the Supreme Court the ultimate resort of justice, "and thus increase their already enormous influence in the province." He pointed out that, in a province "almost universally ignorant," the few people who had a liberal education were, almost all, in the legal profes- sion. And in this dispute, involving the right of the King to establish courts and regulate practice in the colonies though he could not in England, would, if the contention of the judges and lawyers should prevail, be "subversive of every Govern- ment in the colonies, where all of them depend upon the King's charter, or on his commission to his Governor," not only for their executive but their judicial powers. Colden complained that the judges, instead of "giving the reasons for their judg- ments in private and simply," as he had expected, surprised him "by haranguing to a large audience to make his Magesty's Instructions appear illegal and arbitrary, and to render his Governor odious in the eyes of the people." Justice Living- ston was even more expressive than Horsmanden; he made political capital out of the incident.
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