USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 3
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I. The great object of Bellomont's administration, and to this he de- voted himself with almost passionate zeal, was the suppression of that form of piracy which in the guise of privateering had almost supplanted honest commerce in nearly all the colonial seaports. The success of the English privateers in the long wars with France bred a race of men- the successors of the buccaneers-who cruised in all latitudes, and became quite indifferent whether the unfortunate ship which they captured was of one country or another. The ease with which commissions were granted for privateering increased the evil. The governor of a province like New York, when it had not ten thousand inhabitants, had no doubts as to his right to commission a rover who might never return to the harbor of New York, and might be a terror in all seas.
It was under such a system of naval lawlessness that New York became a "nest of pirates."-Bryant and Gay's "History of United States," III, 33.
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prise which went the way of so many privateering ventures and evolved into piracy under the notorious Captain Kidd. The King himself had had a share in this venture. But when Bellomont knew that Kidd had gained his wealth by piracy, instead of by preying upon pirates, he did not hesitate to send Kidd to England for trial, and refuse the thousands of pounds of ill-gotten treasure offered to him as his rightful share. However, legislation or action against piratical practices, per- haps had little to do with the truculent attitude of the Sixth Assembly.2
The Governor professed to be very much embarrassed by one action of the Assembly. The Fifth Assembly had, in 1697, continued the Acts of 1691 and subsequent years by renewing the courts for another year. Consequently Bello- mont called the attention of the Sixth Assembly to the fact that if no further extension act were passed the courts would cease to exist in that year. The Assembly took action, but, to the continuation bill, they added amendments "which were obnoxious to the Governor." At least, Bellomont declared that they were. His expressed opinion was that "the amend- ments which the Assembly had made to the previously exist- ing law were put forth as a political move for the purpose of
2. Bellomont had a difficult but definite royal purpose to carry out. His instructions as to the right of the Crown to the forests, and the ex- portation of naval stores from the colonies, were very positive. It was believed that the royal provinces could be made to contribute largely to the support of the Royal Navy, and relieve England from its dependance upon Norway for ship timbers and other stores. "The supply was to be enforced by arbitrary and inconsiderate acts of Parliament, and not as the result of a legitimate commerce. Bellomont possibly thought that the provinces would, with commendable but not surprising loyalty, be eager to meet the King's wishes; he thought perhaps that the private landowner would deem it a pleasure as well as an honor to permit the King's foresters to go among his standing timber and choose the monarchs of the forest to defend upon the seas the monarchy of England. Even though his choicest timber went into the wooden walls of the King's Navy or "to be the mast of some great admiral," without recompense in money being made to himself, he, the colonist, should be happy in the possession of wholesome loyalty.
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embarrassing him, by compelling him to reject the laws and thereby be responsible for the province being without courts in the future."
But it seems possible that Bellomont himself was resort- ing to craftiness. He was suspected of being somewhat hypocritical in religious matters, and may not have been quite as open and frank in political matters as he wished to be thought. Though the Anti-Leislerians seemed to wish to bring chaos to Bellomont's law courts, it seems almost that the Assembly was "playing into his hand." Certainly, no royal Governor kept a stricter watch over the prerogatives of the Crown than he. His commission gave him broad powers.3 His private instructions may have given him even more lati- tude. And the action of the Sixth Assembly made it pos- sible for him to remove promptly an element of provincial government that was prejudicial to, or at least objectionable to, the King. The judicial system of 1691 jeopardized the royal prerogative in certain respects. The erection of a high court by statute instead of by executive ordinance, made its revocation at the King's pleasure more difficult. It weakened the King's will, or the people's recognition of it. For this reason King William had only reluctantly consented to the
3. The spirit of the Royal government is shown in the veto of the Charter of Liberties, and in the commission and instructions to Earl Bello- mont as Governor, the first issued June 18, 1697, and the second dated August 31 following. He was given an absolute negative on the acts of the Assembly and Council, to the end that nothing may be passed dangerous to the prerogatives of the Crown; he had the power to prorogue the Assembly, to institute Courts, to appoint Judges and to disburse the Revenues. Officers were not to be displaced "without good and sufficient cause," in writing of his Majesty. Schoolmasters must be licensed by the Bishop of London. "For as much as great inconveniences may arise by the liberty of printing within the province of New York, you are to provide all necessary orders, that no person keep any press for printing, nor that any book, pamphlet or other matter whatsoever be printed, without your especial leave and consent first obtained." In other words, the Royal government of Great Britain over the province was a Royal despotism .- Werner's "Civil List and Constitutional History of the Colony and State of New York" (1888), p. 70.
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functioning of the Code of 1691 for a period of two years.4 Possibly because other matters of more serious moment were occupying the royal mind at the expiration of that time, the provincial legal code was permitted to be renewed by legisla- tive enactment for a further like period. And this practice was observed by successive Assemblies, the courts thus being continued by statute up to the time of Lord Bellomont's Gov- ernorship. But in the amendments attached to the continu- ation bill of 1698 the Governor had the opportunity of remov- ing altogether the objectionable basis of the judicial system by withholding his approval of the legislation. He promptly vetoed the measure, and declared the Assembly to be disloyal. Thus attainted, the Assembly seemed to him to have no right to exist; so, on June 14, he dissolved it.
This meant, of course, that the province would at the end of that year be altogether without a judicial system author- ized by the Assembly, or even by the Governor, with the con- sent of his Council "and the People Met in General Assem-
4. The reluctance with which William III consented to the erection of this high court (Supreme Court) by statute, rather than by a mere exec- utive ordinance revocable at will, is made apparent by the proviso of the act creating it, which limited the court's existence to two years. As noth- ing occurred, however, in the conduct of the court, during the first two years of its existence, inimical to the King's ideas of governing the province by royal prerogative, the limitation was extended, from time to time, by subsequent legislation, until 1698. The court was thereafter continued not by legislation but by the governor's proclamation of January 19, 1699, and then finally by the order of the governor in council, under date of May 15 of the same year. This assumption, on the part of the crown, of a right to erect a court of justice, or to revive a defunct court, gave excuse, on at least one notable occasion, for a great popular outcry against the court, on a plea to the court's jurisdiction being raised in a pending case; the contention on the part of counsel being, in effect, that the court had had no legal existence subsequent to the expiration of the limitation fixed by act of assembly; that the fundamental principles of the English constitution were as controlling in New York as in England, and that as the king could not constitutionally, of his own will, erect and maintain a court of justice at home, he could not do so here. The king's claim of right to rule by prerogative in the colonies, any further than in England, was contested in New York mainly by the lawyers, in pending litigation at the bar of the Supreme Court, and this, with a frequency and persistency unknown, because uncalled for, in neighboring colonies which lived under the guaran-
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bly." However, the future was not altogether dark for Bello-
mont. It almost seems that the situation suited him. There was still plenty of time of that year left in which to elect an- other Assembly, had he wished to do so, though perhaps not enough time to organize the districts so as to make it reason- ably possible that those elected would be more of his mind. So he pursued his other plans ; and, as he could not carry these plans through with the consent of his existing Council, he did not hesitate to reorganize that body. On September 28, 1698, the complexion of his Council changed, the violent Anti- Leislerians giving way to milder councillors. Also at about the same time he removed from office some of his aristocratic sheriffs, who were inclined more toward their kind, the Anti- Leislerians, than toward the Governor-at least in the en- forcement of some of his special missions. (The existing sheriffalty and judiciary were, indeed, serious hindrances to Bellomont's plans).
The lines were evidently being drawn tight. "Controversy concerning the respective rights of the Governor and As- sembly in regard to establishing these courts had reached a critical point." But Bellomont did not doubt what he should do. Maybe, it was only to confirm a theory-not the one submitted-that the Governor appealed to Chief Justice Wil- liam Smith and to Attorney-General James Graham for their opinions. As he perhaps had surmised, they were not of his mind, for they declared "that the King himself had no such
tees of written charters, by which the right of government by prerogative was to a greater or less degree surrendered by the crown to the people. These forensic discussions at the bar, as they occurred from time to time, filled the courthouse with eager and sometimes applauding and even riotous audiences; they were subsequently rehearsed in every tavern tap-room, and thus was begot that familiarity with, and stubborn devotion to, the underlying doctrines of institutional liberty, under English law, which became characteristic of the province, notwithstanding the diversity of nationalities which, from first to last, made up its population .- Redfield's "English Colonial Polity and Judicial Administration, 1664-1776," "History of Bench and Bar of New York," I, 63-64.
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power of establishing courts without the concurrence of Par- liament, and that consequently he could not delegate to his Governors powers which he did not himself possess."5
Bellomont paid little heed to their advice, though it did confirm his theory-that matters in which the King was con- cerned should be in the hands of Englishmen, not provincials. He may not have thought that all New Yorkers were dis- honest, but he seemed to be quite positive that those who were connected with the administration of the laws knew little of law. Did he not have evidence of it in the highest legal officials of the province, Chief Justice Smith and Attor- ney-General Graham, neither of whom were lawyers? And, in general, he seemed to have little confidence in any of the provincial officials. In one communication to the English authorities he expressed his conviction that none but English- men should be admitted to the provincial service of the King ; that the officials ought, "from the Governor to the meanest official, to be not men of the country, but Englishmen."
It was not only insular pride that made him wish for such a staff. He had particular and good reason for so wishing, for without an impartial judiciary-nay, a partial judiciary, but one to which the interests of the Crown took precedence over those of the people of the province-he could not ef- fectively prosecute certain legal matters that affected the royal purse, matters upon which he had been especially instructed
5. In the present emergency the governor appealed to the chief justice, William Smith, and the attorney-general, James Graham, for their opinions as to the course he should pursue. They advised him that the king himself had no such power of establishing courts without the concurrence of parliament, and that consequently he could not delegate to his governors powers which he did not himself possess. But Bellomont, when he found that the opinions of his legal advisors were against his wishes, rejected them upon the ground that he had little confidence in either Smith or Graham, because neither of them were lawyers, notwithstanding the fact that they held judicial and legal offices. He persisted in holding that this power of establishing courts was a prerogative of the king, and was therefore rightly delegated to his representatives or governors .- Chester's "Legal and Ju- dicial History of New York, I, 227.
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before leaving England." With these matters in mind, Bello- mont had made a prompt survey of provincial institutions, and had decided that legal aid from England should be forth- coming. In his appeal for an English lawyer, to take the place of Chief Justice Smith, he said his object "was to have an English lawyer sent over by the King, a man of sufficient wealth and social position to be above the temptations of the low arts and practices then prevalent in the colony." In course of time-though not in Bellomont's time-William Attwood arrived from England, and assumed the Chief Jus- ticeship, for which high office he was especially fitted, both so- cially and professionally. Alas! that he, too, should fail. The record reads : "His gross behaviour on the bench, during his brief occupancy of little more than a year, had brought out,an order for his arrest," to escape the execution of which "Att- wood was forced to flee the province under cover of darkness." His offence was not so disgraceful as this quotation would indicate, for much of his peril arose from a sudden change of political fortunes ; still, had Bellomont lived and been cognizant
6. . . the hostility of the popular party to the assumed chancery jurisdiction of the governor and council was due to the crown's denial of the exclusive right of the assembly to erect its own courts and fix the limits of their jurisdiction, though any court exempted from the rules of common- law procedure, as courts of equity were supposed to be, was always and everywhere in the American colonies regarded with distrust. It is not surprising, therefore, that every attempt of the Supreme Court to exercise equity powers, though made under the guise of exchequer business, should excite an instant and persistent opposition on the part of the whig bar, than which nothing was surer to receive popular applause.
The first exchequer-chamber business attempted in the Supreme Court was made by Chief Justice Attwood, shortly after his arrival here in 1701, Lord Bellomont being governor. The latter had come out under special instructions to suppress the illicit trade, not to say piracy, at that time largely engaged in by merchants and traders of New York. To assist him in this arduous task, a new chief justice (Attwood), and a new attor- ney-general (Sampson Shelton Broughton) had been respectively commis- sioned directly by the king-no resident being trusted in the emergency ---- to assist in stamping out the evil. The seat of corruption seemed to have been in the Court of Admiralty. Attwood was accordingly armed with a commission as Judge of Admiralty for New England, New York and New Jersey, in addition to the chief justiceship of New York .- Redfield, in "History of Bench and Bar of New York" (1897), p. 75.
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of the alleged practices of Chief Justice Attwood in the pro- vincial courts, his faith in an exclusively English personnel might have been violently shaken.
However, at the end of 1698, he had no confidence in the legal opinions of provincial men of the law. So he went his own way, confident that the power of establishing courts was exclusively a royal prerogative-at least in the provinces ; and, inasmuch as such power had been delegated to him, in his vice-regal capacity, he thought that in the existing emer- gency he would not be acting improperly if, at the expiration of the limitation fixed by the act of Assembly, he continued the courts by proclamation, pending the completion of other arrangements he had in hand. So, on January 19, 1699, he issued such a proclamation; and, finally, on May 15, 1699, "with the concurrence of his Council," he published "an ordi- nance reestablishing the courts as they had existed "under the Constitution of 1691, and later renewals.7
By that time Bellomont had come to a satisfactory com- pletion of his preliminary plans for the reorganization of the governmental affairs of New York, and especially of those that particularly concerned the King. The Governor pos- sessed a Council that was amenable to his will, rather than one by whose counsel he should be guided; and he had had the pleasure of proroguing a new Assembly which had been so fortunately constituted as to pass through a session without seriously disturbing the gubernatorial equanimity. After the death of the Earl of Bellomont, his opponents-in a mem- orable remonstrance to England-alleged that his late Excel- lency had so far departed from the processes of honorable gov- ernment as to have brought about this happy legislative state by appointing "as sheriffs indigent men who, in the discharge of their official duties had returned to the Assembly as mem- bers, those who were unduly elected. The remonstrants had
7. The ordinance is in Appendix of Vol. II of the "Revised Laws of 1813," No. 5.
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not thought it necessary to affirm that earlier Assemblies, dur- ing the time when aristocratic sheriffs had held authority, had not been filled by the same regrettable electioneering ex- pedients. The remonstrants further "charged that Bellomont had put in his Council men who were simply his tools and who had acted in support of his purposes, instead of being faithful servants of the Crown." But, in passing, it may be noted that the leading remonstrants were the unseated councillors, and that the defeated candidates for Assembly were Anti- Leislerians. So, in the first session of the Seventh Assembly, March 2 to May 16, 1699, the Governor had been able to se- cure prompt passage of legislation which indemnified the fam- ily of Leisler, "that unfortunate victim of party hate." He had also carried through his resolution to get the bodies of Leisler and Milborne reinterred in consecrated ground.
So it happened that the Earl of Bellomont was able to bring into existence, in New York in the last year of the sev- enteenth century, a judicial and governmental system more congenial to the Crown than any previous royal Governor. In the next year, Chief Justice William Smith, when he was about to go out of office, summarized the state of law in New York, reporting that the provincial courts derived their powers from ordinance of the Governor and Council, with the single exception of the municipal courts, which functioned by charter privilege.8 His report further states that the common
8. "That the Courts of Law in this province establish'd are the Cor- poration Courts, who derived their powers from Charters granted from several persons who have heretofore commanded this province. And the provincial courts which are authorized from an ordinance of Your Excellcy and Councill, in virtue of the powers given you by his Majties letters patents, under the great Seal of England, and am humbly of the opinion that the coppyes of such Charters and of the Ordinances aforesaid would best manifest to their Excellcies by what rules and methods we are govern'd in all trylls which is the common law of England, and with statutes there made declarative thereof, and near as may be according to the manner and methods of His Majestys Courts at Westminster Hall, except in the Court of Appeals, which consists of the Governour or Coun- cillor in Chief and his Majesty's Councill for the time being, and is con- stituted by His Majesty's letters pattents."-See "Report of Chief Justice Smith, 1700.
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law of England was the basis for the legal procedure of the province, English statutes being recognized as in force in New York.
Having, during the first fourteen months of his governor- ship, set the provincial clock facing royalward, the Earl of Bellomont journeyed to Boston, where he was welcomed, having done little as yet to wound the susceptibilities of New Englanders. The most exciting event of that year, 1699, was his disposition of the Captain Kidd case. An unpleasant ex- perience was, no doubt, the refusal of the General Court of Massachusetts to vote him a fixed salary. They were jealous of their chartered rights, and would not burden themselves with any liability to vote permanent salaries to Crown offi- cials, Governor, Lieutenant-Governor, judges and so forth. However, they were not averse to taking appropriations from time to time; and in this way they amply recompensed the Governor, granting him nearly ten thousand dollars in little more than a year for his use.9 He handled the question of religion tactfully, for while he was instructed to make the Church of England the established church of the provinces, and, indeed, make academic teaching the monopoly of Church of England appointees, he did not arouse the Congregation- alists to resentment. He attended High Church on Sundays, but was wont to go regularly to the Thursday lecture of the First (Congregational) Church in Boston. Again, in May, 1700, he called the attention of the General Court to the con- dition of French Huguenots in Boston, advising that provi- sion be made for the Huguenot clergyman, who was in want owing to the poverty of his congregation. "Let the present
9. During fourteen months' stay in the province of Massachusetts, he was granted £ 1,875 by the General Court, an amount larger than that given to any previous governor. But, although they did this, they refused the request he had been instructed, in England, to make, for a fixed annual allowance; and thus early the dispute announced itself, which lasted with interruptions for half a century, and was finally decided in favor of the province by the parent government's desisting from its pretension .- "Nat. Cyc. Am. Biog.," VII, 374.
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raging persecution of the French Protestants in France," he said, "Stir up your zeal and compassion toward them." So Massachusetts did not find Bellomont's administration very irksome. He returned to New York in July of 1700, and in that city he died on March 5, 1701.
Rhode Island was not as well treated as Massachusetts. Bellomont perhaps remembered that this little colony, with Connecticut, had brought to nought the plan to make him Governor-General over all the northern colonies. Maybe such a thought did not enter his head. But certainly from Bellomont, obsessed as he was by his special mission to stamp out piracy and enforce the Navigation Acts, Rhode Island could not expect gentle treatment, for of all the privateering ports, Newport was the favored one, the most convenient at all seasons of the year. And the need of rigorous measures against it made Bellomont take advantage of the boundary disputes between Rhode Island and neighboring New Eng- land colonies, and forbid Rhode Island to levy taxes or assert any authority whatsoever in the disputed territories, if she would not obey his military requisitions. Bellomont visited Newport, but his judgment was severe. He wrote to England declaring that the government of Rhode Island was "the most irregular and illegal in their administration that ever any English government was." Her Chief Justice, Samuel Crans- ton, he denounced as "conniving at pirates and making Rhode Island their sanctuary." Block Island was a much frequented haunt of the sea rovers of that lawless time.
What the final estimate of Bellomont's value as a royal Governor would have been had he lived to carry through his plans need not be conjectured. His actual prosecution of offenses against the Navigation Laws had not even begun- at least not in a court presided over by an English judge- before death ended his administration. And so he was not caught in the whirl of the Leisler party strife as disastrously as was his deputy, Lieutenant-Governor Nanfan.
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