USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 2
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New York was the first to return to the ancient practice of township rep- resentation in the county court, it was in Pennsylvania that the capabilities of the independent county was first tested. New York is the parent of the supervisor system."-Professor Howard's "Local Constitutional History of the United States, I, 387.
IO. "An Act for settling a ministry and raising a maintenance for them in Westchester County. An act for settling the militia. An act offering twenty shillings for a grown wolf killed by a Christian in Westchester County, and ten shillings for such a wolf killed by an Indian; one-half that sum respectively for a whelp. An act for the further laying-out and regulating and better clearing public highways throughout this Colony."- "History of Westchester County, N. Y." (1925), p. 69.
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assigned as a reason that the Act gave "great and unreason- able privileges" to members of Assembly, and "contained sev- eral large and doubtful expressions" which, of course, might at some time be taken as curtailing the royal prerogative. As a matter of fact, New York received scant consideration from either the King and Queen or from Whig statesmen until maladministration by one of their Governors, Fletcher, af- fected the provincial revenue. Perhaps the indifference can be understood if the belief was general in England that the province of New York consisted of "only Long Island and some other small islands, Zopus, Albany and the limits thereof" to add to its one town of moderate size, New York City, which then had a population of only four thousand. At all events, the whole province cannot have loomed large in the perspective of English Statesmen of that time. They were, of course, very eager to thwart French aims every- where, but with this exception New York Province, with a population of about ten thousand white people, took only a minor place in British governmental considerations.
But to the members of the First Assembly of the Province of New York the affairs of its 10,000 inhabitants were prime interests; and they proceeded with their legislative efforts accordingly. On May 6, 1691, the Assembly passed "An act for the Establishing courts of judicature for the Ease and benefitt of each respective Citty, Town and County within thie Province."11 "This act changed the town courts into Courts of Justices of the Peace; created a Court of Common Pleas for each county, except the counties of New York and Albany, to be held by a judge commissioned by the Gov- ernor, and Courts of General Sessions for each of the counties ; also it made for a Court of Chancery the same provisions that
II. This act is chapter four of Livingston & Smith and Van Schaick, where the title only is printed. It is printed in full in Fowler's Bradford, p. 2. The title only is printed in Baskett, p. CV. The act is also printed in full in Colonial Laws of New York, Vol. I, pp. 226-231.
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had been made by the Act of 1683. But the most important feature in the Act was the creation of a Supreme Court. It declared that a Supreme Court of Judicature should be estab- lished in the city of New York, to be composed of a Chief Jus- tice and four Assistant Justices, to be appointed by the Gov- ernor, and that it should have cognizance of all actions, civil, criminal or mixed, as fully and amply as the courts of King's Bench, Common Pleas or Exchequer in England, and should have power to establish rules and ordinances, and to regulate the practice of the court. Also, Courts of General Sessions of the Peace were organized as criminal tribunals, distinct and separate from the Courts of Common Pleas, which were courts for the trial of civil actions only. In all the counties except New York and Albany the Courts of General Sessions were held twice a year; in Albany three times a year; and in the city of New York four times a year. The civil jurisdic- tion of the Court of Common Pleas was essentially the same as that of the former Court of Sessions; and the term of the court began on the day after the sitting of the General Ses- sions, the term of both courts being limited to two days each. By this act the Court of Oyer and Terminer was abolished, but in conformity to the organization of the courts of West- minster, its name was retained, to designate the criminal branch of the Supreme Court."12
In July, 1691, Governor Sloughter died. His successor might, perhaps, have been the senior member of the Council, Chief Justice Dudley, had he been in the province at the time. But he was then in the West Indies. Perhaps Dudley had deemed it prudent to leave the province for a while after the death of Leisler, or maybe his judicial duties had taken him away. At all events, he was out of reach in this emergency ; so Major Ingoldsby was entrusted with the executive respon- sibilities. He continued as Acting Governor for thirteen
12. Chester's "Legal and Judicial History of New York," I, 223-224.
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months. No matters of grave import arose during that time, so Ingoldsby may be dismissed from New York guberna- torial record with at least little to discredit, save perhaps his somewhat unfortunate prominence in the Leisler affair.
The next Governor, Benjamin Fletcher, was of different type to Sloughter, though his type was not an especially worthy one. His acts as Governor were exasperating to those he governed, and not satisfactory to the British ministers, either ; but no historian writes of him as besotted. His was not a fortunate appointment for any other party than him- self, as will be seen. The military need of that time of war and of aggressive action by the French Governor of Canada, was unity of command of English forces in America; but the English authorities seem to have given as little thought to that as to Fletcher's executive ability. They appointed Fletcher commander-in-chief of the militia forces of Connec- ticut and Rhode Island; and gave the same command to Sir William Phips, who at the same time was Governor of Massa- chusetts. But the Governors of Connecticut and Rhode Island also considered themselves in command of the local forces; so there was three-sided friction.
Colonel Fletcher was, perhaps, of greater value as a soldier than as a Governor; and being denied the former status, he made his functioning of the latter office as unpleasant as he could to those who were concerned thereby. His commis- sion was almost identical with that of Sloughter. "He was empowered to erect courts of judicature and appoint justices with the advice and consent of the Council, but in the private instructions which were issued to him, he was admonished to create no courts or offices of judicature not already estab- lished." Fortunately, the courts authorized by the legisla- tion had already been established, so perhaps Fletcher found pleasure in producing the legislators, and in insisting on Sab- bath observance by those who were disposed to gambol and make merry on that day. Fletcher was by no means sancti-
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monious ; indeed, it is said that his "principal occupation" was "rifling the revenue." But he had been admonished to enforce the Test Act, which would "permit liberty of conscience to all persons except Papists"; and this, under Fletcher resolved itself into the introduction of the Book of Common Prayer and the form of Episcopal service "among Presbyterians, Huguenots and Dutchmen." In pursuance of this religious vigilance he seems to have consented to the mustering of militia on Sundays, for exercise in arms if they would not go to church ;13 and in 1693 secured the passage of an act for the maintenance of religion. The act charged the counties or towns with the maintenance of the ministers, presumably Episcopal ministers.14 But, privately, Fletcher was suspected of fostering lawlessness. Under his sway, said Bellomont, his successor as Governor, New York became "a nest of pirates," this state developing out of Fletcher's practice "of dealing with privateers and pirates, to whom he sold licenses, quite indifferent how they were used." His one creditable year was, it seems, 1692, when somewhat late he arrived in Albany at the head of militia reinforcements for Schuyler, who had already thrown back a raid by Frontenac.
13. Colonel Caleb Heathcote, a member of Governor Fletcher's Coun- cil, and in command of the militia, wrote in 1704 as follows, regarding the inhabitants of the province :
"I first came among them .. about twelve years ago. I found it the most rude and heathenish country I ever saw in why whole life, which called themselves Christians, there being not so much as the least marks or footsteps of religion of any sort. Sundays were only times set apart by them for all manner of vain sports and lewd diversion, and they were grown to such a degree of rudeness that it was intolerable. I having then command of the militia, sent an order to all the captains . . . that in case they would not in every town agree among themselves to appoint readers and to pass the Sabbath in the best manner they could . . . that the captains should every Sunday call their companies under arms and spend the day in exercise."-"Westchester County History," (1925), p. 70.
14. The bill provided for good, sufficient Protestant ministers to offici- ate and have the care of souls. It required that there should be two min- isters in the county of Westchester (like provision presumably be made for other counties) . . . and that fifty pounds should be raised for each of the incumbents; and also whatever sum might be necessary for the maintenance of the poor, which amounts were levied by the wardens and vestrymen, for whose election the act also provided .- Ibid, p. 69.
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For the remainder of his term as Governor, Fletcher had to apply himself to berating the Assemblymen, and admin- istering public funds as he saw fit. His unpleasant encoun- ters with colonists of independent opinion caused him to describe New Yorkers as "divided, contentious and impov- erished." His disappointment at the rejection of some legis- lation he had initiated was thus expressed : "There never was an amendment desired by the Council Board but what was rejected. It is a sign of a stubborn, ill-temper. . . . While I stay in this government, I will take care that neither heresy, schism nor rebellion be preached among you, nor vice and profanity be encouraged." His further observation to the Assemblymen: "You seem to take the power into your own hands and set up for everything," was probably not devoid of truth. The members of the first few Assemblies were not so amenable to his authority and recommendations as were the members of his Council. Toward the end of 1694, for instance, the Assembly had the effrontery to ask Governor Fletcher to account to them for the disbursement of the nearly £40,000 which had been collected in taxes and revenue during the previous three years, and which seemed to them to have been generally misapplied. Fletcher refused to be account- able to them, declaring that "it was the business of the Assem- bly to raise money and of the Governor and Council to lay it out." Fletcher dissolved the Assembly; and the next as- sembled was, it is declared, "packed," and thus more apt to look kindly upon the recommendations of the Governor.
The members of Governor Fletcher's Council were Chief Justice Dudley, Frederick Phillipse, Steven van Cortlandt, Nicholas Bayard, William Smith, Gabriel Minville, Chidley Brooks, William Nichols, Thomas Willett, William Pinhorne, Thomas Johnson, Peter Schuyler, John Lawrence, Richard Townley and John Younge. Five of these were members of the Court of Oyer and Terminer before which Leisler was tried ; some were of Andros' Council; and others were of
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Sloughter's cabinet. All, probably, were of the Anti-Leis- lerian faction. Caleb Heathcote, who became one of the prominent leaders of this party, joined the Council a year later, when Chief Justice Dudley relinquished his colonial ap- pointments and went to England, where he became a member of Parliament. Matthew Clarkson was provincial secretary. In 1693, he gave "An Account of all Establishments of Juris- dictions within this Province," showing that the courts then functioning were: Petty Justice of the Peace Courts, Quar- ter Sessions, County Court, Mayor's, Supreme, Chancery, Pre- rogative, Admiralty, and also a Court Marshall at Albany, that "being a frontier garrison and in actuall warr."15
Governor Fletcher's schemes to gain money, and his quar- rels with the Assembly, at last came to the knowledge of the
15. "Single Justice. Every Justice of the Peace hath power to determin any suite or controversy to the value of fourty shillings.
Quarter Sessions. The Justices of the Peace in quarter sessions have all such powers and authorities as are granted in a Commission of ye Peace in England.
County Court. The County Court or common Pleas both cognizance of Civil accons to any value excepting what concerns title of land and noe accon can be removed from this Court if the damage be under twenty pounds.
Mayor & Aldermen. The Court of Mayor and Aldermen hath the same power with the County Courts.
Supreme Court. The Supreme Court hath the powers of Kings Bench, Common Pleas & Exchequer in England and noe accon can be removed from this Court under £ 100.
Chancery. The Governour and Councill are a Court of Chancery, and have powers of the Chancery in England, from whose Sentence or decree nothing can be removed under £ 300.
Prerogative Court. The Governour discharges the place of Ordinary in granting administracons and proveing Wills & The Secretary is Register. The Governr. is about to appoint Delegates in the remoter parts of the government with supervision for looking after intestates estates and orphans.
Court Marshall. The Governr. hath established a Court Martiall att Albany whereof Major Richd. Ingoldsby is President and Robert Liv- ingston Judge Advocate, who with the other commissioned Captains att Albany have power to exercise Martiall Law being a frontier garrison and in actuall warr.
Admiralty. Their Magesties reserve the appointment of a Judge, Register and Marshall."-See O'Callaghan's "Documents Relative to the
· Colonal History of New York, IV, 28.
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English ministers. Queen Mary had died in 1694, but in 1697 William and Anne commissioned Richard Coote, Earl of Bello- mont, an active sympathizer with the Leislerians, as Governor of New York, Fletcher being recalled "to answer many charges of maladministration brought against him."
C.&L-31
CHAPTER XXVI. BELLOMONT-NANFAN PERIOD .*
The Earl of Bellomont did not arrive until April 2, 1698, though it seems that his appointment had been under consid- eration for some time, in connection with a plan to consolidate all of the northern colonies, somewhat after the New England Dominion plan Andros had unsuccessfully introduced. But those ministers who negotiated the preliminaries soon dis- covered that some of the colonies were determined to maintain distinct entity, and continue as separate governments. Rhode Island and Connecticut, under their renewed charters, were both beginning to feel a new consciousness of independence. They were especially jealous of their rights, and were ultra- sensitive in such matters. Being small States, they had to go to greater pains to assert their importance than the more populous Massachusetts, or the more cosmopolitan New York; their efforts were keener, more strenuous in almost all directions, possibly because of consciousness of their lesser territorial importance. And their tenacity of purpose defeated the projected merger of colonies. Their predicament, indeed, had been serious. They knew that under such a centralized government their smaller affairs would soon be submerged in the flood of legislation of the larger areas. But Massachu- setts, which had fought the Andros dominion, apparently rested easily now, believing, perhaps, that in a New England Dominion she would have dominant status under better
*AUTHORITIES-Redfield's "English Colonial Polity and Judicial Ad- ministration, 1664-1776," "History of Bench and Bar of New York" (1897); Byrant and Gay's "History of the United States"; Werner's "Civil List and Constitutional History of the Colony and State of New York" (1888); Chester's "Legal and Judicial History of New York"; "Revised Laws of 1813"; "National Cyclopaedia of American Biography"; "History of Westchester County" (1924) ; Hawthorne's "United States"; Lossing's "United States"; "Du Cimitiere," in New York Historical Society Collec- tions, 1868.
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auspices ; on the other hand, New York, perhaps, did not resist the consolidation because she felt sure that the new Gov- ernor would bear well in mind the rude way in which Massa- chusetts had disposed of Andros, and thus would seat his ad- ministration in New York to its definite advantage. And they liked the man chosen as Governor. At least, they had evidence that he, Richard Coote, Earl of Bellomont, was well disposed toward New York. Had he not shown it in the English Houses of Parliament, in the investigation of the Leisler case?
But it was not to be. Out of consideration for Connecticut and Rhode Island, the plans were curtailed so that only Massachusetts, New York and New Hampshire were placed under the control of Bellomont, in matters of general gov- ernment, although in military matters he was given supreme control of all the colonial forces, being appointed Captain- General of the forces of Connecticut, Rhode Island and the Jerseys as well as of the three provinces of which he was Governor. His commissions were dated June 18, 1697, and August 31, 1697.
It seemed to the people of New York that their hope would prove true, for the new Governor took up his residence in New York. They may not have read his character very accurately, from those of his actions which concerned New York. Indeed, it seems that their perspective reached beyond the zone of fact, being magnified disproportionately by re- membrance of Bellomont's part in the parliamentary inves- tigation of the Leisler case. It did not occur to many, per- haps, that Bellomont's noticeable support of the Leisler com- plainants might have been prompted by his personal opposi- tion to Governor Fletcher. However, the Earl benefited by the prevailing good feeling of New Yorkers toward him, and his coming to New York "was hailed as a promise of just and tranquil government."
Fortunately, the people of New York knew only hazily the
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purposes for which he came. At the outset, they were happy in aligning him with themselves, i. e., the people. They knew he had gained an earldom in the English revolution which seated William and Mary. They knew that William was a friend of popular government, or at least they knew that the Stuarts had been opposed to popular government, and that William had opposed them ; hence Bellomont, who had aided William, must also be a friend of the people. Some New York enthusiasts went further. Because he had championed the cause of Leisler before the English Parliament, he must be the champion of popular government in New York, a leader of the Leislerians-who were drawn almost wholly from the common people-against the Anti-Leislerians, who were the aristocrats of the province.
With the one exception of the Leisler case, there does not seem to have been much in the English record of Richard Coote, Earl of Bellomont, that would justify New Yorkers in so classifying him ; and he may not have professed or even in- tended that he should be so aligned. As a matter of fact, he would, one would think, have striven to make it clear that he favored no party ; that as Governor he should and would main- tain an impartial attitude. Certainly his actions in adminis- tering New York affairs were such as to soon shake the faith of both local parties in him, for it soon became clear that some of the objectionable features of former royal Governors were discernible in Lord Bellomont. Still, the people of New York had to pass a couple of months under his government before they became cognizant of this; at the time of his arrival, in early April of 1698, New York-or rather one fac- tion in New York-thought kindly of him, and welcomed him with optimism.
On the day of his arrival, the "packed" legislative body, the Fifth Assembly, of the outgoing Governor was formally dissolved, though it had not been in session since April of the previous year. A new broom is expected to sweep clean ;
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but the experience of the new Governor with the next As- sembly, which he soon called, must have made him doubt the wisdom of such a hasty dissolution of so tractable a Legis- lature as that of his predecessor.
Bellomont had to travel a rough road for some time; and some of his acts showed that he was as vigilant a custodian of royal prerogative as the most despotic of his predecessors. He soon furnished ample justification for the charge that he was arbitrary in his actions. Whether he was so because of provoking opposition that arose out of the bitterness of local politics, or because of the more exacting requirements of the Crown, is open to question. He came to New York at a dif- ficult period-at a time when party feeling was intense, and lawlessness somewhat general. The thoughts of legislators and public men were not so much centred upon constructive legislation as upon destructive. The efforts of one party were subordinated to the aim of bringing discomfiture and defeat to the other party, a purpose not altogether foreign to the politics of even recent times. Then, however, the bitter- ness had almost reached the intensity of a blood feud. And those who were not of either party but had dealings with one or the other were apt soon to be swept into the strife, making necessary some vigorous ruthless efforts of their own, if they would extricate themselves. Bellomont was soon drawn in- on the side of the Leislerians, though in fact he was neither Leislerian nor anti. He was not interested in the strife more than to see, as an honorable man, that justice was done and an indemnity paid to an injured family. But he found that his larger governmental plans were jeopardized, delayed, thrown back and imperilled by the buffetings they had to pass through on their course between raging parties. The Gov- ernor no doubt realized that it was hopeless to expect his Council, constituted as it almost wholly was of the bitterest enemies of Leisler, to approve of an indemnity being paid to
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Leisler's widow. And he had soon to recognize that their in- fluence controlled the Sixth Assembly also.
For the first six months Bellomont had to endure a Council composed of Anti-Leislerians, almost wholly. Three-Bay- ard, Van Cortlandt, and Phillipse-had been the Council to which Governor Nicholson had transferred his authority when Leisler and his militia assumed control ; these three and two more of Bellomont's Council-William Smith and Gabriel Monvielle (Minvielle)-had been of Sloughter's Council; two -William Smith and John Lawrence-had actually sat as judges in the Leisler trial ; so it may be surmised that Bello- mont could not further his Leislerian plans with that Council. Still, as they were of the moneyed class-the wealthiest and most influential men of the province-he perhaps thought that the Leisler strife would soon pass, and that in the greater current matters of government these leading citizens would be the logical material for his Upper House, his Council. How- ever, he had to change his mind, and reorganize his Council in September, 1698, Bayard, Phillipse, Monvielle and Law- rence giving way to Robert Livingston, Abraham de Peyster, Samuel Staats and Robert Walters. Peter Schuyler was also a member ; and James Graham was added in 1699.
The Governor had to resort to what may have been thought arbitrary measures with the lower house, the Sixth Assembly, also. There, the same faction was dominant; and that party was vitally interested in defeating several of the particular purposes Bellomont had been sent out to prosecute. The Sixth Assembly opened on May 19, 1698; but before the end of the month the Governor had to berate the legislators "with a scolding address." On June 14, he lost patience altogether, dissolving the body on that day as "disloyal." It was evident that certain moneyed interests in the province did not take kindly to Bellomont's missions. They would rather have no judiciary at all than a bench that was unsympathetic; and they knew that if Bellomont pursued his plans without check
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their influence with or power over the local justices would count for little.
One of the particular purposes entrusted to the Governor by the Crown and the English ministers was the suppression of piracy,1 which had developed serious proportions during the Fletcher administration. This lawlessness had developed out of the indiscriminate licensing of privateersmen, who found that French prizes were few and far between. They spread over the seven seas searching for their legitimate prey, and when that failed found the heavily-laden merchantmen of other nations too tempting to avoid. Licenses being so easy to obtain in New York-Fletcher caring little to whom he issued them, for he figured that they would soon become lost in one of the distant seas, and would hardly come back to a little province of 10,000 inhabitants-the port had gradually become the rendezvous of very many lawless sea rovers; and the inhabitants had become so familiar with men of privateer- ing and smuggling, if not piratical, propensities that such did not seem to them to be especially discreditable. In a letter to the Lords of Trade, Earl Bellomont wrote of New York: "The people have such an appetite for piracy and unlawful trade that they are ready to rebel as often as the government puts the law in execution against them." In 1699, Lord Bello- mont gave evidence that he at least would live within the law. He had himself become involved in one maritime enter-
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