USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 14
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Colden's report to the Privy Council brought back a per- emptory order of the King in Council, commanding the judges to send up the proceedings. This occurred on July 26, 1765.
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Meanwhile the Attorney-General had decided that the Coun- cil could only correct errors ; and on January 11, 1765, the Coun- cil of the Province had unanimously rendered an opinion, that no other than an appeal of error would lay to them. Still, upon receipt of the King's command, which was laid before the Council on October 9th, by Colden, a writ was issued to the Supreme Court. On November 12, 1765, the Chief Justice replied that the Justices of the Supreme Court found it im- possible to comply with the command, the Law knowing of no appeal from a verdict. On December 15th, the General As- sembly adopted resolutions thanking the Supreme Court and the Council, sustaining their action, condemning the illegal proceedings, affirming the right of trial by jury, and declaring "that an appeal from the verdict of a jury is subversive of that right, and that the Crown cannot legally constitute a Court to take cogniance of any such appeal."
The fight for supremacy went persistently on, with the Assembly ever victorious. However, America was not alone in opposing the royal prerogative. At least there were many fair-minded men in England who felt that the English Govern- ment was not dealing rightly, nor prudently, with the Col- onies. The city of London itself had had many causes for grievance with Court and Parliament. The records of the Corporation of the City of London, as traced by Dr. R. R. Sharp in his "London and the Kingdom," show that London- ers of that time were fighting the same system as the colon- ists and did not really come into their own until the passing of the Reform Bill in 1832. The many petitions and remon- strances of the Livery and Common Council of London, "though loyal and respectful to the Sovereign, display a re- markable boldness in defining his powers and criticising Min- isters and Parliament." And, as the years went by, and feel- ing against the King and Parliament became more acrimoni- ous in America, it was not forgotten, by New York leaders at
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all events, that there was a strong bond of sympathy between London and New York.
In a brochure published in 1920 by the Library Committee of the Corporation of the City of London regarding this phase of colonial history certain facts not generally known were pointed out, to prove that there were many far-sighted English statesmen and students of government who joined the mer- chants of London in denouncing "the arbitrary measures of the Government," and in sympathizing with the colonists.59 And it was New York's destiny to have at that time men of such strength of character that not even cleavage of family would turn them from the political course they deemed to be the best for their country.
Matters might have been more tolerable for the colonists and provincials if the Whigs had remained in power in Eng-
59. . . , the War of Independence was in no true sense a war between the American and British peoples. Except for a strain of Dutch blood in New York, and other slighter elements, American and Briton were of the same race and associations.
The line of division was in fact not national but political, passing not only through communities, but even between the members of families. As the idea of separation took shape numbers of colonists after a difficult decision ranked themselves as "loyalist." On the other hand in England, the merchants of London were throughout in sympathy with the colonists and deplored the war, Lord Chatham denounced the arbitrary measures of the Government, and the Earl of Effingham resigned his commission in the Army rather than draw his sword against the lives and liberties of his fellow-subjects, being thanked for his action by the Livery of the ancient City Guilds of London "in Common Hall assembled" in Guildhall. In the House of Lords a protest against the act prohibiting commerce with the colonies, signed by the Dukes of Richmond and Manchester, the Marquis of Rockingham, the Earls of Abingdon and Fitzwilliam and Lords Pon- sonby Abergavenny and Chedworth contain the words: "The English on both sides of the Atlantic are now being taught by Act of Parliament to look upon themselves as separate nations, nations susceptible of general hos- tility and proper parties for mutual declarations of war and treaties of peace. We are by this Act preparing their minds for that independence which we charge them with affecting, whilst we drive them to the necessity of it by repeated injuries."-Prefactory Note of "A Letter from the Com- mittee of the Association of New York to the Lord Mayor and Corpora- tion of the City of London, 5th May, 1775," printed under the direction of the Library Committee of the Corporation, 1920, and reprinted in 1924, upon the occasion of the visit of the American Bar Association to London.
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land. They however, became disorganized, and their oppo- nents, a faction known as "the King's friends," came into con- trol of Parliament. The Press exercised a strong influence for the people, however. Bute was driven from office in 1763, and Granville took his place. In that year, the first British measure for taxing American colonies to help in rehabilitating British finances, so seriously depleted by the many years of war, was introduced in the British Parliament. In 1764, op- pressive commercial enactments passed by Parliament, led to earnest remonstrances by the Colonies. In an address to the Lieutenant-Governor, dated September IIth, the New York Assembly expressed the hope that he would join with them "in an endeavor to secure that great badge of English liberty, of being taxed only with our own consent." It is claimed that in the same year American Union had its birth in the action of the New York Assembly,60 that body, on October 18th, adopting resolutions approving the petition of New York mer- chants, relative to the oppressive commercial legislation of Parliament. The Assembly directed that the memorial be for- warded to the Agent of the Colony in London, and the House assumed the expense of urging it upon the attention of the Government. It also "Ordered that the committee appointed to correspond with the said Agent be also a committee during the recess of this House to write to and correspond with the several Assemblies, or committees of Assemblies, on the sub- ject-matter," of these acts, "and also on the subject of the im- pending dangers which threaten the colonies, by being taxed by laws to be passed in Great Britain." This Committee of Correspondence was first appointed by the Assembly on April 5, 1761. It remained active until 1768.
Regarding the address of the Assembly to the Lieutenant- Governor in September, 1764, the Lords of Trade, on Decem- ber IIth, in an address to the King said that the Assembly
60 "New York Civil List" (1888 edition), p. 103. C.&L .- 39
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"avow powers and make declarations of a dangerous tend- ency." They found that Massachusetts also was deserving of censure, for there "the acts and resolutions of the Legislature of Great Britain are treated with the most indecent respect, and principles of the most dangerous nature and tendency openly avowed." Their opinion, also, of the addresses of the New York Assembly to the King, Lords and Commons, under date of October 18, 1764, probably was that they were danger- ous, for to the King, the Assembly had written: "The sub- ject, by the laws of our happy Constitution, carries with him his allegiance to the most distant corners of the earth; and the protection of his constitutional rights and privileges is the true reason of that allegiance." They claimed to "have the highest reason, from the hitherto uninterrupted enjoyment of their civil rights and liberties as individuals, to consider them- sleves in a state of perfect equality with their fellow subjects in Great Britain, and as a political body enjoying, like the in- habitants of that country, the exclusive right of taxing them- selves ; a right which, with the most profound submission be it spoken, whether inherent in the People or sprung from some other cause, has received the Royal sanction, is at the basis of our Colony State, and become venerable by long usage." To the Lords they wrote: Ever since the glorious Revolution, in which this Colony displayed the most distinguished zeal and alacrity, we have enjoyed the uninterrupted privilege of being taxed only with our own consent, given by our Representa- tives in General Assembly. This we have ever considered as the inextinguishable right of British subjects, because it is the natural right of mankind. . . The amazing powers vested by some of the late acts of trade in the Judges of the Vice- Admrialty Courts, who do not proceed according to the course of 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, con- sistent with our duty, suppress our apprehensions." Still,
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they were prudent in pointing out that "the claim of an ex- emption from being taxed by the supreme legislative power is far from involving in it the notion of independency." They were more emphatic in dealing with the House of Commons ; their stated opinion was: "An exemption from the burthen of ungranted involuntary taxes must be the great principle of every free state. . . . The People of this colony, inspired by the Genius of their Mother Country, nobly disdain the thought of claiming their exemption as a privilege. They found it on a basis more honorable, solid and stable ; they challenge it and glory in it as their right."60a
The events of the remaining years of the colonial period are too well known to make more than passing reference here necessary. New York was taking the lead in resisting the English Government, Colden admitting in December, 1765, that "whatever happens in this place has the greatest influence on the other Colonies." Colden found occasion to condemn the "New York Gazette," which was strongly Republican, as "a licentious abusive weekly printed paper," and had said, re- garding some other scathing editorials that had appeared in the "Sentinel": it is "universally believed that the scurrilous abusive and malicious papers were written by two or three distinguished lawyers in the city." (Livingston, John Morin Scott, and William Smith, it is believed).
There had been a storm of protest in New York and else- where when news came that Grenville had, in 1765, introduced the Stamp Act into Parliament. The storm had been hardly less violent in Parliament, Barré correcting Townshend, and declaring that "Americans are Sons of Liberty" rather than "children of England's planting."
Sons of Liberty sprang up everywhere, and lawyers were at hand to lead them. The organization was not new, at least not in New York. It is asserted that the New York Associa-
60a. Ibid, p.
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tions of the Sons of Liberty had existed since 1744, when the Bar entered into an association to free the Bench from the exercise of the King's prerogative. The assertion is made by Dawson, in his tract on the Sons of Liberty.61
John Morin Scott, in the "Gazette" in 1765 startled the people to the consequence of non-resistance to the Stamp Act. "It is not the tax," he wrote, "it is the unconstitutional man- ner of imposing it that is the great subject of uneasiness to the colonies." He asserted that sooner or later connection be- tween Great Britain and the Colonies must inevitably cease, if the latter were denied their right, to which the English Constitution entitled them. "They desire no more; nor yet can be satisfied with less," he declared. Their eyes were on Independence, however. Bancroft wrote that the situation at that time was that Virginia marshalled resistance, Massachu- setts entreated union, but that New York pointed to inde-
61. Colden, who is Dawson's authority, in a letter to the Earl of Hali- fax, February 22, 1765, complains of the dangerous influence which the profession of the law has obtained in this province, and that by their asso- ciation they proposed nothing less to themselves than to obtain the direction of all measures of government by making themselves absolutely necessary to every governor, by assisting him when he complied with their measures, and by resisting him when he did otherwise." He closed the complaint by saying : "Their power is greatly strengthened by enlarging the powers of the popular side of government and by depreciating the powers of the Crown." . This faction, as Colden terms it, was led in the beginning by James Alexander and William Smith, the elder, whose mantle of judicial and popular leadership had fallen in the next generation upon William Living- ston, William Smith, the younger, and John Morin Scott. . . . These three gentlemen, whom Jones styles "the young triumvirate," were edu- cated at Yale; they "served regular clerkships to the law in the same office at the same time and under the wings and guidance of William Smith the elder, were all at this time Presbyterians by profession and republicans in principle." Determined as early as 1752 to pull down church and state, continues Jones in his savage anathema, and to raise their own government and religion upon its ruins, the triumvirate formed a club, under the appel- lation of the King's Arms (thought to be the tavern in Broad Street near the Long Bridge).
At this Whig Club, says Jones also, the usual customary toasts drunk were "the immortal memory of Oliver Cromwell, of Hugh Peters, of General Ludlow" and others of the regicides .- "Memorial History of New York," Vol. II, p. 346.
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pendence. In May, 1765, Colden wrote to Monckton, who was in London: "the gentlemen of the law seem to have placed the chief stress of their cause in raising public clamour. Notwithstanding this, I am fully persuaded the People of this Province will quietly submit to the King's determination whatever it is." But the burning in effigy of Crown officials indicated a different state of mind in the people. By Septem- ber, Colden himself became alarmed. Mob-rule was apparent in New York, and he wrote to Governor Moore (Monckton having resigned, reluctant it is said to have part in oppressive or repressive measures against the Colonies) stating that nothing would give him more pleasure than his presence in New York.
Deputies of a Continental Congress met in New York City Hall in October, John Cruger, Robert R. Livingston, Philip Livingston, William Bayard and Leonard Lispenard being the New York representatives to that convention which goes into history as the Stamp Act Congress. When the stamps reached New York, the Sons of Liberty threatend to storm the Fort and burn them. Colden was hanged in effigy in November. Another effigy of the Lieutenant-Governor was riddled with hundreds of bullets, and he was told that unless he that night did "solemnly make oath before a magistrate and publish to the people" that he woud "not introduce or execute the Stamp Act" he would die "a martyr" to his own "villainy and be hanged like Porteous upon a high post, as a memento to all wicked governors." He gave satisfactry assurances, explain- ing that even if he would, he could not distribute them, Sir Henry Moore being Governor, though not yet arrived.
Governor Moore arrived on November 13, 1765, and created a favorable impression, easing the situation, which had be- come critically strained by, or under, Colden. Moore was de- scribed as "an easy sensible well-bred man and experienced in business; everybody likes the change extremely." Still, as Watts wrote to Monckton, "indeed nobody could come amiss
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so they were but rid of the old man," i. e., Colden. Moore disarmed suspicion by promptly dismantling Fort George, razing the parapet, and opening the gates of the fort. And in 1766, of course, the Stamp Act was repealed, thus ending in favor of the Colonies another dispute with the Crown.
Still, enough has been written hereinbefore to make it clear that the trend of American thought had set inexoribly to in- dependence long before the Stamp Act was conceived. Liberty was abroad in the land, and could not, would not, be shackled. The Sons of Liberty were not satisfied with the repeal. They insisted upon the removal of all restrictions of trade, and the abolishment of post offices and Courts of Admiralty. So passed the years, some reason for contention and agitation being ever-present on both sides of the Atlantic.
Governor Moore unfortunately died in 1769, much re- gretted ; one might almost say generally mourned. Certainly, he had administered his trust well, ever trying to conciliate opposing factions, and to meet the people in every possible way. But, with his demise harsh elements again clashed. Colden, remarkable man, took up the reins of government again, nothwithstanding that he was then eighty-two years old. He did not shrink from the responsibilities of the office, even though he knew that he was probably the most detested man in New York, and that the time was one in which men's feelings were quite apt to prompt them to bloodshed. Had he pleaded extreme age as an excuse for declining office again, no man would have accused him of cowardice. But Colden did not hesitate. Indeed, he seemed eager to again be the Chief Executive. As Watts wrote of him to General Monck- ton: "He fairly lives himself into office, being, they tell me, as hearty as when you knew him. . . The old man seems to be the Son of Fortune in his advanced years." Old though he was, and wealthy, Colden evidently lost no opportunity of adding to his wealth. He held tenaciously to the emolu- ments of his office notwithstanding that John Murray (Lord
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Dunmore) the next Governor demanded of him, soon after his arrival, one-half "of all fees, perquisites and emoluments that had accrued during his year as Acting-Governor."62 These emoluments amounted to about £ 10,000, and the dis- agreement as to the ownership of the sum precipitated litiga- tion between Governor and Lieutenant-Governor. Colden would not part with a farthing of it, and eventually had it all, for the Governor was not able to establish his right to any part, notwithstanding that the case came before him, as Chan- cellor, for adjudication. Colden, it must be admitted, had worked hard for these patent fees, but undoubtedly he had to thank his attorney, James Duane, for convincing Lord Dun- more, the judge, that he dared not decide against Colden in his own favor. In this quandary, Dunmore submitted the case to the four Justices af the Supreme Court. They promptly and unanimously decided that Duane's demurrer was well taken. In their action we see a striking illustration of the independ- ence, integrity and probity of the Colonial Bench; the Jus-
62. One of the governors of New York, Sir Henry Moore, Bart., who was appointed executive in 1765, unfortunately died in 1769, leaving a number of patents unexecuted to the total value in commissions of some- thing like 10,000 pounds. None more thoroughly appreciating the oppor- tunity than Cadwallader Colden, who had through several administrations exercised the office of lieutenant-governor and was conversant with the "duties" of the executive office. He at once assumed the duties of gov- ernor pro tem. With pertinacious industry, he worked literally night and day on the matter, and had finally issued the last patent.
The succeeding governor, John Murray, further known by the title of Lord Dunmore, straightway he landed in his realm, made formal demand on Colden for "a moiety of one half part" of all fees, perquisites and emolu- ments that had accrued during his year as acting governor, and was, of course, refused.
Dunmore, however, was a man of ready expedients, and friendly per- suasion having failed, proceeded to institute proceedings against his lieu- tenant after the most approved burlesque fashion. He ordered the attor- ney-general to file a bill against Colden in the Court of Chancery, where the governor was sole judge, and directed that it should be in the name of the Crown.
Colden, nevertheless, was not at all intimidated by these drastic meas- ures, but deliberately set about employing counsel to plead his case. He found an Attorney, by name James Duane, subsequently a judge who was sufficiently emancipated from the current awe and dread of those in author-
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tices were bitter enemies of Colden, yet they decided in his favor against the Governor, who could, if he chose, remove them from office.
But Lord Dunmore was apparently a man of broad mind and good character. He showed no vindictive trend. He viewed the political situation hopefully. Writing to England a few days after his arrival, he stated that he had the greatest reason to be pleased with the reception of the people. He "con- ceived hope of an easy and peaceful administration." To some extent, the reconciliation was made possible in 1770 and 1771 by the common apprehension of danger in war between Spain and England, then impending. This perhaps explains why the people did not view with disfavor Dunmore's plans to re- build the fortifications. But the active resentment against the Crown again became evident when news reached New York, in February, 1771, that the King had disapproved four acts passed by the New York Assembly. Dunmore wrote : "The whole Province except the lawyers express great dis- satisfaction."
ity, and a good lawyer for that day when good lawyers were apparently few, to argue his case. At the day of trial, Lord Dunmore took his seat in the capacity of Chancellor, and despite that Duane showed conclusively in his argument that the suit could not be maintained, would allow nothing, not even legal principles, to thwart the "rights of the Crown." The at- torney-general and his colleague, Smith, the historian of the Court, argued so ably on the other side as to impress the worthy Colden most unfavorably. He is quoted as saying of Smith, that he displayed "an easiness of principles that enabled him to affirm, deny, or pervert anything, with a degree of con- fidence that might deceive the unwary."
Even Dunmore seemed to have considered that his (the Crown's) case had been argued too well-over-argued, in fact,-and in spite of his incli- nation to reward the talents of Smith, found himself unexpectedly faced by the unquestioned principles of law and equity. He pretended to consider the case one of such moment as to require some little review and considera- tion, appointing the following Thursday for the rendering of his decision. Thursday came, and the matter was adjourned a fortnight. Meanwhile, he and his advisers, busily consulted law and precedent, but in vain. Then, doubtless, in confidence of his official prestige the case was referred to the four judges of the Supreme Court. They presently unanimously decided that Duane's demurrer was well taken and that the suit could not be main- tained .- Brooks, in "History of the Court of Common Pleas," pp. 19-21.
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The acts were passed in 1767, 1768 and 1769. That of De- cember, 1767, had had reference to billeting of troops ; the sec- ond, that of December, 1768, had empowered the city authori- ties to try causes under ten pounds value; the third was to prevent suits being brought in the Supreme Court for sums under fifty pounds. The lawyers were quite satisfied with the repeal of this measure, but the people in general were not. The fourth act disallowed by the King was that of May, 1769, regulating the election of representatives in the General As- sembly. This act, which declared that "they which shall be chosen shall be dwelling and resident within the cities, coun- ties, and manors," had brought about the dismissal, from the Assembly, of Philip Livingston, who had been Speaker in the previous Assembly and had been outspoken in the cause of the People. He had been elected from the Manor of Living- ston, but it had been ruled that he was not a resident therein. While his case was being discussed, Livingston had intro- duced a bill to vacate the seat in the Assembly "of all who should accept of any post or place of honor, profit, or trust, after his being elected to serve in the General Assembly." As finally radically amended, that bill was made to specifically refer to the Supreme Court, part of it reading: "Whereas, it is not constitutional in England for the judges of either Eng- land or Scotland to sit or vote in the House of Commons, therefore that no judge of the Supreme Court shall for the future have a seat or vote as a member of the House." Colonel Schuyler moved to unseat present members, but this motion was laid on the table. But it is evident that the Justices of the Supreme Court were exercising greater power in the House than some members liked. Possibly, the judges were by this time drawn more to the cause of the Crown than that of the People. At all events, the judges62a in
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