USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 15
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62a. Supreme Court During the English Period. The Chief Justices were: Joseph Dudley, appointed May 15, 1691 ; William Smith, November II, 1692; Stephen van Cortlandt, a merchant, October 20, 1700; William
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office at the time of the adoption of the Declaration of Inde- pendence-Horsmanden, Thomas Jones, Ludlow and Hicks -adhered to the Crown, as did Jauncey62b the Master of the Rolls.
The real champions of the People were the lawyers. They for decades had fought the cause of institutional liberty, their fight for the English people in America indirectly aiding the cause of the people in the mother-country. Buckle stated in his "History of Civilization," that "there remains no doubt that the American war was a great crisis in the history of England, and that if the colonies had been defeated, our lib- erties would have been for a time in considerable jeopardy." Edmund Burke declared: "In no country perhaps in the world is law so general a study as in America. The profession itself is numerous and powerful; and in most provinces it
Smith, reappointed vice Van Cortlandt, deceased, Nov. 25, 1700; Abraham de Peyster, appointed Jan. 21, 1701; William Attwood, Aug. 5, 1701 ; William Smith, reappointed June 9, 1702; John Bridges, April 5, 1703; Roger Mompesson, vice Bridges, deceased, July 15, 1704; Lewis Morris, vice Mompesson, deceased, July 15, 1704; James de Lancey, vice Morris, removed, August 21, 1733; Benjamin Pratt, vice De Lancey, deceased, Nov. II, 1761 ; Daniel Horsmanden, vice Pratt, deceased, March 16, 1763.
The Associate or Puisne Justices were: Thomas Johnson, William Smith, Stephen van Cortlandt and William Pinhorne, appointed May 15, 1691; William Pinhorne, appointed Second-Judge April 3, 1693, appointed Chief Justice on Jan. 21, 1701 ; and Assistant-Judge Aug. 5, 1701 ; Chidley Brooke, April 3, 1693; John Lawrence, same day; John Guest, June, 1698; Abraham de Peyster, appointed Oct. 4, 1698, removed September 22, 1747; Robert Walters, Aug. 5, 1701 ; John Bridges, June 14, 1702; Robert Mil- ward, April 5, 1703; Thomas Wenham, April 5, 1703; James de Lancey, June 24, 1731; Frederick Phillipse, June 24, 1731; Daniel Horsmanden, appointed Jan. 24, 1736, reappointed October 14, 1761, and resigned Nov. 18, 1761 ; appointed Second Judge March 26, 1762 and Chief Justice March 16, 1763; John Chambers, appointed July 30, 1751, reappointed October 14, 1761 ; David Jones, November 21, 1758, reappointed March 31, 1762 and March 16, 1763; William Smith, Sr., March 16, 1763; Robert R. Living- ston, March 16, 1763; Geo. D. Ludlow, Dec. 14, 1769; Thomas Jones, Sept. 29, 1773; Whitehead Hicks, Feb. 14, 1776. Where not otherwise stated, the date given is that of appointment.
62b. Colonial Court of Chancery.
Chancelors: The Governor or his Deputy, 1684; Stephen van Cort- sandt, Nov., 1696; the Governor, March, 1697; the Governor, August 28, 1701, and later.
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takes the lead."63 Redfield wrote: "It was a frequent taunt in ministerial circles, at Westminster, that the whole unfortu- nate trouble, from the Stamp Act on to the Declaration, was an affair of the colonial lawyers."64 The campaign "slogan" of the Crown Party, in the New York Assembly elections of the spring of 1769 was: "No lawyers, no Presbyterians"; and Colden had no words sufficiently strong to convey his detesta- tion of the brilliant New York lawyers who had so often thwarted him. Fowler, in his "Constitutional and Legal His- tory of New York," wrote: "A complete history of the Bar of the last century would be almost the history of independence." And when, in the last few years, the New York Assembly be- came less ardent for independence than of yore, and at last became a strong body for peace and reconciliation with Eng- land, the lawyers held high the torch of liberty in other con- gresses of those dark days, lighting the way to freedom, to in- dependence. They joined with the merchants and others in forming the "Patrician" class.
Tryon, 64a the last royal governor of New York, soon be-
Masters of the Rolls: John Spragg, Dec. 29, 1684; James Jauncey, Jr., March 24, 1774.
Masters: Thomas Noell and Johannis de Peyster, Sept. 2, 1701; Ebenezer Wilson and William Peartree, 1705; John Abell and Evert Bancker, Oct. 13, 1705; Rip van Dam and Adolph Phillipse, Oct. 4, 1711 ; Caleb Heathcote, Nov. 1, 1711; Robert Walters and Rip van Dam, Dec. 22, 1720; Robert Lurting and Cadwallader Colden, Dec. 22, 1720; John Cruger and John Roosevelt, July 23, 1735; Henry Holland, May 20, 1743; Edward Holland, Sept. 12, 1748; Anthony Rutgers, Apr. 19, 1750; John van Cort- landt, Jan. 31, 1754; P. P. Schuyler, 1768; Stephen de Lancey, March 27, 1770; Cary Ludlow, 1775.
Registers: John Spragg, Dec. 29, 1684; the Secretary of the Province, Oct. 12 1691 ; Barne Cozens, Sept. 2, 1701; Henry Wileman, Oct. 4, 17II ; Gilbert Livingston, Dec. 22, 1720; Isaac Bobin, July 3, 1721; Frederick Morris, November 6, 1730; Goldsborow Banyar, May 5, 1753; Samuel Bayard, 1774.
63. "Burke's Works," Vol. I, 188.
64. "History of Bench and Bar of New York," (1897), Vol. I, 93.
64a. Governors during first English period: Richard Nicolls, Septem- ber 8, 1664; Francis Lovelace, August 17, 1668, until August, 1673, when Dutch again took possession.
64a. Governors, during second English period : Edmond Andros, Nov.
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came convinced that the colonial period was almost at an end; and some of his actions appear almost as intended to be the closing chapter of the colonial record. For instance, in June, 1774, he reviewed constitutional development from the time of the accession of the Duke of York. This report to the Lords of Trade is an authoritative account of the state of the
10, 1674; Sir Edmond Andros, August 7, 1678; Anthony Brockholls, Jan. 13, 1681 ; Thomas Dongan, August 27, 1683; Sir Edmond Andros, August II, 1688; Henry Sloughter, March 19, 1691 ; Benjamin Fletcher, August 30, 1692; Earl of Bellomont, April 2, 1698; Earl of Bellomont, July 24, 1700; Lord Cornbury, May 3, 1702; Lord Lovelace, Dec. 18, 1708; Robert Hunter, June 14, 1710; William Burnet, September 17, 1720; John Montgomerie, April 15, 1728; William Cosby, August 1, 1732; John West, seventh Lord de la Warr, who was appointed Governor in June, 1737, but resigned three months later and never came to this country; George Clinton, Sept. 22, 1743; Sir Danvers Osborne, Oct. 10, 1753, committed suicide next day; Sir Charles Hardy, September 3, 1755; Robert Monckton, October 26, 1761 ; Robert Monckton, June 14, 1762; Sir Henry Moore, Nov. 13, 1765; John Murray, Earl of Dunmore, Oct. 19, 1770; William Tyron, July 9, 1771 ; William Tryon, June 26, 1775. to date of his final departure for England, July 9, 1780. James Robertson was commissioned as Governor on March 23,1780, and Andrew Elliott, as Lieutenant-Governor on April 17, 1763, but these were military appointments and are not recognized in State records.
64a. Other Chief Executives, Acting-Governors, Lieutenant-Governors, Presidents of Council, and so forth, who were in gubernatorial authority in absence through death, resignation, removal, or leave of absence of governor : Anthony Brockholls, Lieutenant-Gov., Nov. 16, 1677 to Aug. 7, 1678; and again from Jan. 13, 1681, to Aug. 27, 1683; Francis Nicholson, Lt. Gov., Oct. 9, 1688, to June 3, 1689; Jacob Leisler, seized government June 3, 1689, and held it latterly as Lt. Gov. until March 19, 1691 ; Richard Ingoldsby, in control as Commander-in-Chief, July 26, 1691, until August 30, 1692 ; John Nanfan, Lt. Gov., May 16, 1699 to July 24, 1700; and again, May 19, 1701, to May 3, 1702; Provincial Council in control from March 5, 1701, when Gov. Bellomont died, to May 19, 1701, when Lt. Gov. Nanfan returned; Peter Schuyler, Pres. of Coun., May 6, 1709, in charge as Acting Governor for three days; Richard Ingoldsby, Lt. Gov. from May 9, 1709, to April 10, 1710; Geraldus Beekman, Pres. of Coun., in charge, April 10, 1710, to June 14, 1710; Peter Schuyler, Pres. of Coun., in charge, July 21, 1719, to Sept. 17, 1720; Rip van Dam, Pres. of Coun., in charge, July 1, 1731, to Aug. I, 1732; George Clarke, as Pres. of Coun., in charge, March 10, 1736, to Oct. 30, 1736, when he was appointed Lieut. Gov., continuing as Acting Governor until Sept. 22, 1743; James de Lancey, Lt. Gov., as Acting Gov. from Oct. 12, 1753, to Sept. 3, 1755, and again from June 3, 1757, to his death, July 30, 1760; Cadwallader Colden, in charge as Pres. of Council, Aug. 4, 1760, to Aug. 8, 1761, when commissioned Lt. Gov., continuing as Acting Gov. until Oct. 26, 1761; again, from Nov. 18, 1761, to June 14, 1702; again, from June 28, 1763, to Nov. 13, 1765; again, from Sept. 12, 1769, to Oct. 19, 1770; again, from Apr. 7, 1774, to June 26, 1775.
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civil institutions of the province at the end of the colonial period. It is given at foot.65
The relations existing between England and the American plantations by the year 1774-75 had become very different from those of the prior century. The early English institu- tions, founded on feudalism, which depended wholly on con- tiguity between lord and feudatory, had not contemplated a transmarine empire, writes Fowler. The vast intervening distance of this country compelled a total delegation of the paramount feudal and governmental authority ; and as such delegation was necessarily written, these various writings came finally to serve here as constitutions and, by the year
65. In answer to an inquiry of the Lords of Trade, Governor Tryon, in June, 1774, reported that from the time of the accession of the Duke of York New York had been a royal government, and in its constitution nearly resembles that of Great Britain, and other Royal governments in America. The governor is appointed by the King during his Royal Will and pleasure by Letters Pattent under the Great Seal of Great Britain with very ample powers. He has a Council, in imitation of His Majesty's Privy Council. This Board, when full, consists of Twelve Members, who are also appointed by the Crown during Will and Pleasure; any three of whom make a Quorum. The province enjoys a Legislative body, which consists of a governor as the King's Representative; the Council in the place of the House of Lords and the representatives of the People who are chosen as in England. Of these the City of New York sends four --- All the other Counties (except the new Counties of Charlotte and Glouces- ter as yet not represented) send two. The Borough of Westchester, the Town- ship of Schenectady and the three Manors of Rensselaerwyck, Livingston and Cortlandt send one each; in the whole forming a Body of Thirty-one Representatives. The governor by his commission is authorized to convene them with the advice of the Council, and adjourn, prorogue or dissolve the General Assembly as he shall judge necessary. This body has not power to make any Laws repugnant to the Laws and Statutes of Great Britain. All Laws proposed to be made by this Provincial Legislature, pass through each of the Houses of Council and Assembly as Bills do thro' the House of Commons and House of Lords in England, and the governor has a negative voice in the making and passing of all such Laws. Every law so passed is to be transmitted to His Majesty under the Great Seal of the Province, within three months or sooner after the making thereof, and a Duplicate by the next conveyance, in order to be approved or disallowed by His Majesty; And if His Majesty shall disallow any such Law and the same is signified to the governor under the Royal Sign manual or by Order of His Majesty's Privy Council, from thence forth such law becomes utterly void. A law of the province has limited the duration of the As- sembly to seven years .- "Doc. Hist. N. Y.," Vol. I, 739-772.
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1775 had accustomed Americans to the fundamental written charters which are now the chief characteristic of our political institutions of government. The main point of difference be- tween the English and the American construction of these written delegations related to two subjects: the extent of the prerogative of the Crown here, and the right of the inhabitants of the colonies to the entire public law of England, or that department regulating the relations between the English state and the people of the colonies. The most radical difference in a construction of the colonial constitutions related to the ex- tent of the jurisdiction of the British Parliament here, which had always been denied by the more consistent American colonial politicians, because of their non-representation in that body. The extent of the Crown prerogative in the Colonies had by the year 1774 become tolerably well settled in sub- ordination to the principles of English common law. The difference as to the power of Parliament to legislate for the Colonies finally became irreconcilable. In this connection it will be recalled that the first Constitution of the State recites that the new government was formed for the sole purpose of opposing the usurpation of the British Parliament.
In England, the struggle of the colonists was in some well-informed quarters, recognized as not against the English people but against the English Government. The Common Council of the City of London had petitioned against the Quebec Bill, as "contrary to many of the fundamental princi- ples of the English Constitution." The Livery of the City of London also, in April, 1775, drew the attention of the King to the ruinous effect to commerce of the Governmental policy. Their words were as frank, fearless and emphatic as any to be found in petitions of the New York Assembly. They told their king: "Not deceived by the specious artifice of calling Despotism-Destiny, your petitioners plainly perceive that the real purpose is to establish arbitrary power over all Amer- ica." When news of actual armed conflict with the colonists
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reached them, the Livery on June 24th, 1775, voted a Remon- strance to the King, declaring that "every moment's prose- cution of this fatal war may loosen irreparably the bonds of that connection on which the Glory and Safety of the British Empire depend."
But war had come. Passions aroused had gone beyond the point where reconciliation was possible. So the People went forward, to their destiny. For a while, New York had two governments-that emanating from the Crown and the other formed by the People, with lawyers leading the latter in all matters of civil government. The colonial courts, notwith- standing the confusion, continued to function to some extent, the Supreme Court circuit calendar being followed, where practicable. However, "the Crown ceased to be the general Conservator of the Peace and the Fountain of Justice in the Province when the Declaration of Independence was adopted on July 4, 1776." The Declaration ended the administration of justice by the old régime. As a matter of fact, the end of the Supreme Court of Judicature of the Province of New York came in April, 1776, when Justice Thomas Jones held circuit court at White Plains. In that session he discharged from custody several persons arrested as Loyalists by the West- chester County Committee. Thereafter, Americans suspected of being on the side of the Crown had to face Republican tribunals.
PART THREE
THE AMERICAN PERIOD
Editorial Note-In reviewing the judicial and constitutional history of the Dutch and English periods in New York, it has been possible to maintain a continuous narrative, inasmuch as the developments revolved mainly around the Governors and New York City. But since the establishment of republi- can government, the expansion of New York State has been so vast that a like plan of compilation cannot be satisfactorily followed in Part III. It has, therefore been thought advisable to divide the history of the American period into three sec- tions :
a. Constitutional History of State of New York from 1777 to 1924; b. the Higher Courts, including the histories of the Court of Errors from 1777 to 1847; that of its successor, the Court of Appeals, from 1847 to 1924; that of the Court of Chancery from 1777 to 1847; and the history of the Supreme Court covering the whole period, 1777-1924; also some reference to other courts.
c. the Judicial Districts, tracing the County System, and giving in more detail the local histories of Bench and Bar.
A brief statement of the contribution made by the State of New York to the Supreme Court of the United States will also be incorporated.
C.&L .- 40
CHAPTER XXVIII. GENESIS OF STATE GOVERNMENT.
The Constitution of 1777.
The political unrest of the last ten years of Crown gov- ernment outlined clearly, in 1774, three parties in New York State: The Peace Party, which controlled the General As- sembly ; the Party of Action, consisting of the mechanics, of "Tribunes," who favored the Boston plan of suspension of trade; and the Party of Union, the middle class, merchants, professional men and other patriots, known as "Patricians," who favored a General Congress to bring about coordinated action by all the colonies. On January 19, 1774, the Assembly of New York appointed a new committee of correspondence, consisting of John Cruger, James Jauncey, Benjamin Seaman, Frederick Phillipse, Zebulon Seaman, Simon Boerum, James de Lancey, Jacob Walton, Isaac Wilkins, Daniel Kissam, John Rapalje, John de Noyelles and George Clinton. The
AUTHORITIES-The following chapters of constitutional history of New York are mainly an abridgement of the excellent work written by J. Hamp- den Dougherty, and published in 1911 as Volume II of Chester's "Legal and Judicial History of New York," and also Mr. Dougherty's revised work, the "Constitutional History of New York," published in 1915. Material has also been drawn by present reviewer from many other works, among them: Lincoln's "Constitutional History of New York"; Daly's "Judicial Organi- zation of the State of New York" (I E. D. Smith XVII, N. Y. Court of Common Pleas) ; "Constitutional Convention, 1894," and "Judiciary Article, Constitution of 1894," papers to N. Y. Bar Association, 1894; "Constitu- tional Convention, N. Y. State, 1894," Chas. E. Fitch, Vol. V .; "Constitu- tional Convention of 1894," review by Henry Wayland Hill, in "Buffalo His- torical Society Publications," Vol. V; Fowler's Constitutional and Legal History of New York in the Nineteenth Century, Memorial History of New York," Vol. III; paper by J. G. Schurman, on "The New Constitution for the State of New York," in "Cornell Law Quarterly," Vol. I (1915) ; article by H. S. Gilbertson, on "The New York County System," in "American Political Science Review," Vol. VIII; "Reports to Legislature on New York Judiciary Constitutional Convention, 1921;" Johnson & Smith's "Political and Governmental History of the State of New York" (1922).
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Sons of Liberty, which had reorganized in 1773 sent a vigor- ous letter to Boston on May 14, 1774, urging a General Con- gress, whereupon the conservative merchants of New York organized another committee, which became known as the Committee of Fifty-one, to urge concerted action in a General Congress. Boston called the Congress, and concerted action resulted. The American Association for Commercial Non- Intercourse was organized; the rights of the colonies were set forth in a Declaration of Rights, framed by a committee con- sisting of John Jay. Philip Livingston and Richard Henry Lee ; and it was resolved "that this Congress approve the opposition of the inhabitants of Massachusetts Bay to the execution of the late Acts of Parliament, and if the same shall be attempted to be carried into execution by force, in such case all America ought to support them in their opposition."
The significance of this concert of action was not un- noticed by the ministers of the Crown. Lord Chatham, in January, 1775, pronounced it as "solid, permanent and effec- tual"; and he followed this opinion in bringing before Par- liament in February his plan for "true reconciliation and national accord." This was defeated on its first reading, and on February 9 the address to the King from Parliament was virtually a declaration of war.
The strength of the opposition in America was, it would seem, not so evident to the Tory Assembly of New York as to Lord Chatham. On February 16 Colonel Schuyler's motion to place on record the correspondence of the Assembly Committee of Correspondence was voted down, as was Colonel Woodhull's motion on the 17th, that thanks be expressed to the delegates1 to the Continental Congress ; and other actions of the New York Assembly during the next few weeks en- couraged Crown officials and ministers to believe that
I. Continental Congress-First delegates, John Alsop, Simon Boerum, James Duane, William Floyd, John Haring, John Jay, Philip Livingston, Isaac Low, Henry Wisner.
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Chatham had overestimated the resistance that was threat- ened. But the last colonial Assembly could not stay the hand of Fate, and the Assembly ceased to sit on April 3, 1775, though it continued, in a dormant state, for another year.
The Committee of Fifty-One, which had succeeded in bringing united action, was dissolved in November, 1774, and was succeeded by a Committee of Sixty, charged with the duty of "carrying into execution the Association entered into by the Continental Congress." As the General Assembly had refused to send delegates to the next Continental Congress the Committee of Sixty issued a call, in March, 1775, to the sev- eral counties throughout the province, to elect deputies to a Provincial Convention to be held in New York City on April 20, for the purpose of electing delegates to represent New York in the Second Continental Congress. On the date named, the Provincial Convention2 was held in New York under the presidency of Philip Livingston, and elected dele- gates3 to the Continental Congress "to concert and determine
2. Delegates to Provincial Convention-President, Philip Livingston; Secretary, John Mckesson. Albany: Peter Livingston (a) (b), Walter Livingston, Philip Schuyler (b), Abraham Ten Broeck (b), Abraham Yates, Jr. Dutchess: Egbert Benson, Morris Graham, Robert R. Liv- ingston, Jr. (b). Kings: Simon Boerum (b), Denice Denice, Theodorus Polhemus, Richard Stillwell, John Vanderbilt. New York: John Alsop, Abraham Brazier, James Duane, John Jay, Francis Lewis, Leonard Lis- penard (c), Philip Livingston (c) (d), Isaac Low (a), Alexander McDou-
gall, Isaac Roosevelt, Abraham Walton. Orange: Peter Clowes, John Haring, Ann Hawkes Hay, Israel Seely, Henry Wisner. Queens: Jacob Blackwell, Joseph Robinson, John Talman, Zebulon Williams. Suffolk: Phineas Fanning, William Floyd, John Sloss Hobart, Thomas Tredwell, Thomas Wickham (a), Nathaniel Woodhull (b). Ulster: George Clin- ton (b), Charles DeWitt (b), Levi Pawling. Westchester : Samuel Drake, Robert Graham, James Holmes (a), Lewis Morris (d), Jonathan Platt (a), John Thomas, Jr., Philip Van Cortlandt, Stephen Ward.
(a) Did not attend convention.
(b) Members of last General Assembly.
(c) Member of General Assembly 1759-68.
(d) Member of last General Assembly, but unseated for non-residence in district elected from.
3. Delegates to Continental Congress-April 20, 1775 (a). John Alsop, Simon Boerum, George Clinton, James Duane, William Floyd (b), John Jay, Francis Lewis (b), Philip Livingston (b), Robert R. Livingston, Col.
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upon such measures as shall be judged most effectual for the preservation and reestablishment of American rights and privileges, and for the restoration of harmony between Great Britain and her colonies."
Having thus fulfilled the purpose for which they convened, the Provincial Convention dissolved on April 22. On the next day rumors of the Lexington engagement reached New York, and those who were acting independently of the Co- lonial Assembly immediately resolved to strengthen their organization. The Committee of Sixty gave way to a Pro- visional War Committee, or Committee of Resistance, on May I, the new body being generally known as the Com- mittee of One Hundred.4 The committee indignantly spurned the offer made by Crown officials, who sought to bribe New York to withdraw from the union with her sister colonies, and thus bring about the defeat of the others. The committee resolved "to stand or fall with the liberty of the Continent, and on May 5, John Jay headed the signatures
Lewis Morris (b), Col. Philip Schuyler, Henry Wisner. March 29, 1777. William Duer. May 13, 1777 (c). James Duane, William Duer, Philip Livingston, Gouverneur Morris, Philip Schuyler. October 3, 1777 (d). James Duane, William Duer, Francis Lewis, Philip Livingston, Gouverneur Morris. March 25, 1778. Philip Schuyler (e). October 16, 1778. James Duane, William Floyd, Francis Lewis, Gouverneur Morris, Philip Schuyler. November 4, 1778. John Jay (f) (1). October 1, 1779. James Duane, William Floyd, John Jay, Ezra L'Hommedieu, John Morin Scott. October 3. 1779. Philip Schuyler (g), Robert R. Livingston (h), Chancellor. September 12, 1780. James Duane, William Floyd, Ezra L'Hommedieu, Alexander McDougall, Philip Schuyler, John Morin Scott, Robert R. Liv- ingston (i). October 26, 1781. Egbert Benson, James Duane, William Floyd, Ezra L'Hommedieu, Philip Schuyler, John Morin Scott. July 22, 1782. James Duane, William Floyd, Alexander Hamilton, Ezra L'Homme- dieu, John Morin Scott. February 3, 1784. Egbert Benson, Charles DeWitt, James Duane, John Jay, John Lansing, Jr., Walter Livingston, Alexander McDougall, Ephraim Paine. October 26, 1784. Egbert Benson, John Jay, John Lansing, Jr., Walter Livingston, Zephaniah Platt (j). December 2, 1784. Robert R. Livingston. March 19, 1785. John Lawrence, Alexander McDougall, John Haring, Ephraim Paine, Melancton Smith (k). March 29, 1785. Peter W. Yates, John Lawrence, John Haring, Zephaniah Platt, Melancton Smith. February 27, 1786. John Haring, Melancton Smith, Zephaniah Platt, John Lawrence, Peter W. Yates. January 26, 1787. John Haring, Melancton Smith, Peter W. Yates, Abraham Yates, Jr., Egbert
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