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How difficult Bellomont's task really was may be imagined by the history of the first Admiralty case Chief Justice Att- wood dealt with.10 One does not wonder that Bellomont aroused the animosity of the Anti-Leislerians, who were the moneyed men of the province, the class most likely to be in- terested, or implicated, in the violations of the Navigation Act, possibly in piratical ventures also. Their connection with the latter was probably only indirect, through the out- fitting of ostensible privateering vessels and the handling of their spoils in trade. But it can be understood that such violent interference with their investments as that by Chief Justice Attwood must have spread consternation among the implicated "men of good estates," who had become so accus- tomed to an easy confidence as to the outcome of any case in which they were involved, if tried before local judges, that a hearing before a hostile judge was a calamity that was well- nigh intolerable. Of course the moneyed interests attributed their troubles to Bellomont. He was dead, but his admin-
Io. Chief Justice Attwood and Attorney-General Broughton were sent out from England in 1701, specially commissioned to suppress the illicit trading and piracy (see Footnote 6, this chapter).
Upon Attwood's arrival, in 1701, he took his seat in the Court of Ad- miralty. "In the summer of 1701 he learned of the case of a vessel which, seized for lack of registry under the navigation acts, had been discharged by the admiralty judge whom he succeeded. What was wanted was some jurisdiction somewhere to prohibit, by writ, the execution of the decree discharging the vessel until the admiralty proceedings could be reviewed. But there was no court in the province having an unquestioned right to issue a writ of prohibition against the decree of the Admiralty Court. The chancerv jurisdiction of the Governor was questioned; the Supreme Court was claimed by the lawyers to be a court of law only. He con- cluded, however, that by its constitution, as gathered from the original act of 1691, and the subsequent ordinances continuing the court, the Supreme Court, sitting as a Court of Exchequer, had power, by writ of prohibition, to prevent the discharge of the vessel and the consequent defeat of his Majesty's forfeitures, under the Navigation Acts, pending an inquiry by it unto the legality of the vessel's discharge. He thereupon, assuming to sit as a Baron of the Exchequer, directed "a suggestion to be exhibited to it for a prohibition to the Court of Admiralty upon its sentence in that matter. But, as "one of the persons designed for a judge in the Supreme Court had given the obnoxious sentence in favor of the ship," and the other "was a merchant who might be concerned in interest, the Governor thought fit to
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istration had inflicted upon the province a judge who, sitting alone, could work his untrammelled will upon their interests. Still, no one can say that Bellomont would have gone to such extremes as those of his temporary successor, Acting Gov- ernor Nanfan, who so connived with Chief Justice Attwood that the commissions of local judges were deferred until Att- wood, sitting alone, could dispose of certain cases which may have been differently construed had the English judge had beside him on the bench some puisne justices who, having a wider knowledge of provincial magnates, would be more im- pressed by the integrity, moral and financial, of the "men of good estates," who were implicated in these alleged violations of the Navigation Act.
But it may here be pointed out that Bellomont was not the only Governor who came to the opinion that the inhabitants could more safely entrust the administration of justice "with a stranger, who had no private connections, than with an in- habitant." Even before Bellomont's time, a pernicious influ- ence had become deep seated in the provincial judiciary. The judges were not free and impartial agents of justice. They were dependent for their very stipends upon their standing with politicians. And the violations of the Navigation Acts were just as glaring, and the penalties just as hard to enforce,
suspend the granting of their commissions till this matter should be over in the Supreme Court, and therefore," he writes, "the enclosed Ordinance was made empowering me alone to determine this matter." In justification of his assumption of this extraordinay jurisdiction, Attwood assures the Board of Trade that the matter "had been solemnly argued by Council on both sides," that he had taken due time to compare the authorities cited to him, and to collect others which are produced at large in his "long argu- ment" enclosed, given at his granting the writ of prohibition. Notwith- standing a prompt appeal directly to the King by the vessel's owners, "men of good estates," as he had reported, he proceeded to try the Crown's claim to a forfeiture. The captain refused to appear, though "his former attorney offered several things as amicus curae, principally the pendency of the appeal." On the facts found a forfeiture was declared, under which the vessel was sold at public auction, to the consternation, we may suppose, of the "men of good estates" engaged in the prevailing illicit trade .- Red- field, in "History of the Bench and Bar of New York," pp. 75-76.
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in the last decades of Crown government as in the first years of the eighteenth century when Attwood's judicial storms threatened to shake commercial gilt out of the legal structure. There was no pirasy, of course, but there were still many men of "good estates" who did not feel unbearable qualms of con- science when opportunity came to cheat the Crown out of revenue it considered was its right.11
The Seventh Assembly was so dominantly Leislerian that its course was uneventful by comparison with the Eighth As- sembly. Even James Graham, who had been recorder of New York City for more than a decade, and attorney-general since 1691, and had sat as Speaker in every General Assembly, save two, since 1691, had to give up his office as Speaker on March 21, 1699. On May 15 of that year Abraham Gouver- neur, an alien, who had married Mrs. Milborne, the widowed daughter of Leisler, was elevated to the speakership. Noth- ing particularly exciting occurred in the House under his chairmanship until after the death of Bellomont; but Gouver- neur was a storm centre of the next, the Eighth Assembly.
The Earl of Bellomont died in New York City on March 5, 1701. At that time his Lieutenant-Governor, John Nanfan,
II. The great landlords-so-called lords of manors-and the rich city merchants, always in control of the assembly, were as apt as not, accord- ing to their interests, to be leaders of the opposition to the government in its endeavors to enforce, in the courts, the navigation acts, suppress smuggling, and collect the crown's quit-rents. As between the assembly which granted their salaries, and the governor, who could at any time recall or revoke their commissions, the judges found themselves more than once grievously embarrassed. Their annual stipends and their tenure of office were equally uncertain. All of them were, almost of necessity, what would now be called politicians; that is, participants in the endless disputes be- tween the assembly and the executive, which make our colonial history such tiresome reading. The chief justice was ex-officio president of the council, and many of the puisne judges were, while in office, its members. They were, therefore, legislators as well as judges, and not infrequently blocked the legislative efforts of the assembly. . . . It was repeatedly charged against the assembly, controlled as it generally was by those who resented anything like a strict enforcement of the navigation acts, and an honest collection of the crown's quit-rents, that it attempted to control the ap- pointment of judges, or to coerce their judicial decisions, by withholding their salaries .- Ibid, p. 64.
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was in Barbadoes. So there was a struggle for temporary governing power. The Council and General Assembly con- curred in the opinion that the administration of the Govern- ment devolved upon the Council, which was Leislerian. Colonel William Smith-the former Chief Justice-however was of opinion that the government vested in him, as Presi- dent of the Council. As he was aligned with the Anti-Leis- lerians, the minority in the General Assembly-five members -signed a paper condemning the opinion of Council and As- sembly. Whereupon, the Assembly adopted a resolution de- claring that the subscribers had "offered the greatest scandal to the Whole House of Representatives" and were "liable to the severest rebukes of this House for their disloyalty and in- solence, and that Major Matthew Howell, being the writer and deliverer of the said paper, be forthwith expelled this House."
However, Lieutenant-Governor Nanfan hurried to New York and became Acting Governor, taking over the admin- istration from the Council on May 19. Chief Justice Attwood arrived in the summer, with his son, an attorney, and also Samuel Shelton Broughton, another English lawyer, who was to become attorney-general, to fill the vacancy caused by the death of James Graham. The office of advocate-general was also merged with that of attorney-general, because of the important Admiralty Court business Broughton was to prose- cute. Apparently, there had been particular judicial business which Bellomont had wished to prevent Chief Justice Wil- liam Smith from deciding, for on October 30, 1700, he had appointed Stephen van Cortlandt in his place. Within three weeks, however, Smith had again become Chief Justice, through the death of van Cortlandt. But he had soon to again vacate the first place to Abraham de Peyster, one of the puisne judges, whose commission as Chief Justice is dated Janu- ary 21, 1701. William Smith was however judge of the Admiralty until the coming of Attwood, the latter taking
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control on August 4, and the next day taking the office of Chief Justice of the Supreme Court also. Judge Attwood, however, asked to have unrestricted jurisdiction and, by alleged irregular practice, was able to have his wish, as has been stated. (See footnotes 6 and 10 of this chapter, footnote 5 of Chapter XXIV, also context and several footnotes of Chapter XXII).
Acting Governor Nanfan dealt with legal matters reso- lutely. With the assistance of Chief Justice Attwood and Receiver-General (Collector of the Port of New York) Weaver he held firm grip of judicial processes that led to the replenish- ment of the royal exchequer. Bellomont had intended estab- lishing a Court of Chancery, but had decided to await the coming of the English lawyers before making a decree. But Nanfan evidently acted without their advice, for on June I, 1701, "he ordered the Court of Chancery to be held, com- mencing the first Thursday in the following August," with sessions monthly thereafter. He himself held the chancel- lorship, but on September 2 he appointed two masters and other officers. (See Chapter XXII, particularly footnote 15).
Nanfan had also called a new Assembly, the Eighth. Its first session opened on August 19, 1701. Excitement began on that day, with the election of Abraham Gouverneur as Speaker. William Nicoll, the other candidate for the speak- ership, received nine votes against ten cast for Gouverneur. Two members refused to vote. The House was apparently evenly divided, and arbitrary tactics could not therefore be successfully attempted. Notwithstanding this, however, the Leislerians tried to unseat two members, William Nicoll and Dirck Wessels, who were declared to be "disqualified for non- residence." They were asked to withdraw on the first day. They did so on the second day, August 20, but with them went eight other members, who declared that they would not sit in an Assembly presided over by an alien, who was, in fact, for that reason disqualified from all public offices. They
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seceded, "notwithstanding the speaker commanded them, in the name of the House, to stay and attend to the business of this House." Fortunately, there was a way of bringing the House up to a bare quorum, eleven; and this way was promptly taken, Ryer Schermerhorn, the "next highest can- didate" to Wessels in the Albany district, being admitted on August 20. Six days later another member was found in Henry Fowler, who had challenged the election of Joseph Purdy, of Westchester-one of the seceders-and had been awarded his place. The seceding members were declared ex- pelled, "for non-attendance," on August 26, and new elec- tions were ordered. New assemblymen took their seats two or three weeks later, but three of these were expelled on Sep- tember 22, for taking the same stand as the old members. They presented a paper "writ in barbarous English," declar- ing that all the proceedings of the House were illegal while Gouverneur, an alien, sat in the chair. This stormy session ended on October 18; and in the next session, April 21 to May 2, 1702, some of the minority members, after taking the oath, refused to sit, thus leaving Nanfan, Attwood and Weaver free to do as they wished with governmental affairs.
The opposition had had good reason for adopting passive tactics, for some of their leaders at that time were uncom- fortably resting in jail, under sentence of death because of their more than usually imprudent acts of opposition. It appears that "Protestants of New York" (who otherwise, and accurately described, would be Anti-Leislerians) suffering under the despotism and injustice of the Bellomont-Nanfan administration, had thought it proper to bring their plight to the notice of the King and the English Parliament in Sep- tember, 1701, when news reached New York that Lord Corn- bury had been commissioned to succeed the Earl of Bello- mont as Governor. In their address to the King, the me- morialists had declared that "the late differences were not grounded on a regard for his interests, but were the corrupt
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designs of those who had laid hold of the opportunity to enrich themselves by the spoils of their neighbors." And, so that the English Parliament might better understand the situation, the petitioners reviewed the history of the last ten years, set- ting forth "that Leisler and his adherents had oppressed and imprisoned people without just cause, had plundered them of their possessions, and had compelled them to flee from the province, notwithstanding that they were well affected to the Prince of Orange." They accused Governor Bellomont of malfeasance in office; but the bitterest complaints were against Acting Governor Nanfan, and his vigorous officials. "The addresses questioned the authority of the acts of the late Assemblies, and in this connection attacked the Lieutenant- Governor (Nanfan) and Chief Justice (Attwood), charging that the House had bribed them-the one to pass desired bills, and the other to defend the legality of the Assembly pro- ceedings." In a memorial to Lord Cornbury they gave fur- ther evidence of a desire to impart useful information, as to the province, in general, and as to their own political party in particular. All this secret use of scrivener and parchment occurred on dark evenings of September and October, of 1701, in the tavern of Alderman Hutchins, of New York City. When Nanfan heard of it he arrested some of the ringleaders, and also Alderman Hutchins, who would not disclose the names of signers. Nicholas Bayard, Rip Van Dam, Philip French and Thomas Wenham were charged with high treason and arrested on January 2, 1702. Although Attorney-Gen- eral Broughton had given an opinion to the effect that "there was nothing criminal in the addresses, and that Hutchins' refusal to give up the names was not a criminal contempt justifying his commitment," the Grand Jury had been induced to bring in an indictment, and as Broughton would not prose- cute, he was temporarily suspended-being commissioned by the Crown he could not be removed-Collector Weaver being appointed solicitor-general to conduct this case, before a
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specially commissioned Oyer and Terminer, composed of Chief Justice Attwood, and Puisne Judges De Peyster and Walters. The defence was undertaken by William Nicoll and James Emott, "both able and fearless lawyers." Bayard seemed likely to be "hoisted by his own petard," one of his own bits of unreasonable legislation of 1691 being the law by which his conviction of treason was secured.12 For this crime Bayard was, on March 2, 1702, sentenced to be hanged, drawn and quartered. Alderman Hutchins received a like sentence. Fortunately, Lieutenant-Governor Nanfan was merciful and prudent. He knew that he would soon have to hand over the government to Lord Cornbury. Perhaps he remembered the experience of Governor Sloughter. At all events Nanfan's Council did not attempt to inveigle him into signing the death warrants of Bayard and his associates in the way Bayard is stated to have trapped Sloughter, in the case of Leisler. So Nanfan left the disposal of the Bayard case to his successor, Lord Cornbury.
12. "whatsoever person or persons shall, by any manner of ways, or upon any pretence whatsoever, endeavor by force of arms or otherwise to disturb the peace, good and quiet of their Majesties' government, as it is now established, shall be deemed and esteemed rebels, and traitors unto their majesties, and incur the pain, penalties and forfeitures as the laws of England have for such offences made and provided."
CHAPTER XXVII. CORNBURY TO TRYON-1702-1775.
Edward Hyde, Viscount of Cornbury, son of the second Earl of Clarendon, and grandson of the English commoner whose daughter married King James II, was of such disrep- utable record that few who knew of his life in England have had much confidence in him as Provincial Governor. Pos- sibly some consolation was found by the convicted Anti-Leis- lerians, in the belief that the new Governor's sympathies would naturally incline to their side-to that of the aristocrats against the commoners. Snobs are apt to be found among the recently exalted; and Lord Cornbury might well have all the snobbishness that relationship to royalty, without actually being of royal rank, could bring. Macaulay refers to Corn- bury as (in 1691) a "tool of Marlborough," and "son of a non- juror and notorious plotter." Another record describes him as "simply a disreputable profligate, and so overwhelmed with debt that he could only escape a jail by quitting the king- dom." Still, as a cousin of Queen Anne, he had to be pro-
*AUTHORITIES-Bryant and Gay's "History of the United States"; "Colonial Documents of New York"; Eastman's "Courts and Lawyers of Pennsylvania"; "New York Civil List and Constitutional History of the Colony and State of New York," 1888 ed .; Smith's "History of New York"; Chester's "Legal and Judicial History of New York"; Redfield's "English Colonial Polity and Judicial Jurisdiction, 1664-1776," "History of Rench and Bar of New York" (1897) ; "Memorial History of New York," 1892; "Journal of the General Assembly of the Colony of New York"; "Journal of the Legislative Council of the Colony of New York"; Lamb's "History of New York"; Valentine's "New York Manual"; Daly's "Judicial Organization of the State"; Smith's "Reports of New York Court of Common Pleas," 1; Fowler's "Constitutional and Legal History of New York in the Eighteenth Century"; O'Callaghan's "Documents Relative to the Colonial History of the State of New York"; Brooks' "History of the Court of Common Pleas"; Burke's works; Bancroft's "History of the United States"; Sharpe's "London and the Kingdom"; Madison's "Let- ters and Correspondence"; Campbell's "Lives of the Chief Justices"; Howell's "State Trials," Vol. XVII; Colden's "Letters," New York His- torical Soc. publications (1868) ; Thomas Jones' "History of New York."
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vided for in some way, and to transfer to the colonies the bur- den of his extravagance was not perhaps thought an unhappy way out of the difficulty by the royal providers.
Either Cornbury was not so well known in New York, or the lot of some New York interests under Nanfan and Att- wood was so desperate, that the sufferers were glad to en- courage even this spendthrift. At all events, the sum of £2,000 was, it is said, sent over to pay for his passage. Maybe part of it was used to quiet his creditors. He reached New York in May of 1702. Of all the royal Governors Lord Corn- bury seemed the most positive that his office had been given him mainly that he might enrich himself. He came up to expectations in party affiliation, for he promptly took the side of the Anti-Leislerians, reversing all that Nanfan and Attwood had done. But he soon was at odds with the Assembly,1 and
I. Throughout his administration Lord Cornbury was completely at odds with the Assembly. The opposition to the autocratic rule of the Eng- lish governors and the claimed prerogative of the Crown, especially in rela- tion to the institution of courts, was already strong and continued re- peatedly to be expressed. . . . The governor's frequent denunciations of the actions of the Assembly and of the resolutions which were from time to time passed by that body clearly indicated the difference of opinions be- tween the people and their English rulers, and were significant of the ever- widening breach between the two as touching these matters ..
, the Assembly was no less frequent and positive in its assertions of what it considered its rights and the rights of the people. Again and again, resolutions were reported and passed showing the temper of the legislators .. . and troubles thickened around Cornbury as his admin- istration continued. Not only was he opposed in matters of theory and principle, but he was in disagreement with both bodies in regard to many practical public affairs, especially as related to his salary and to appropri- ations for fortifications and administrative measures .- Chester's "Legal and Judicial History of New York," 1911, Vol. I, 238.
I. Cornbury was by no means singular among colonial governors in that he regarded his office as given him solely that he might enrich him- self. He entered upon its duties with that purpose, with enthusiasm and success. The Assembly was persuaded to appropriate £ 1,500 under a pre- tense of fortifying the Narrows at the entrance of New York harbor, in anticipation of a French invasion. The Narrows remained un fortified, and the Governor was the richer by ££1,500. The lesson was not lost on the Assembly, and they appointed a Treasurer of their own, who was to see that future appropriations were spent in accordance with their inten- tions .- Bryant and Gay's "History of U. S.," III, 39.
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by his personal use of public moneys stirred the legislators to angry acts, to protect the public treasury. Bancroft wrote of Lord Cornbury : "He joined the worst form of arrogance to intellectual imbecility" and that "happily for New York, he had every vice of character necessary to discipline a colony into self-reliance and resistance."
But Cornbury was prompt in acting against Nanfan and Attwood. These two men, who so recently had been all- powerful in the colony, thought it prudent to leave the colony very soon after the arrival of the new Governor. Attwood was accused of corruptly perverting justice in cases before him, in which his son was counsel.2 He was suspended by Lord Cornbury; and when Attwood became aware that an order of arrest had been, or was about to be, issued against him, he escaped, crossing the river to New Jersey under cover of darkness and travelling to Virginia disguised under the name of Jones. Both Attwood and Nanfan eventually reached England, where Attwood died in 1709.
Former Chief Justice William Smith, "Tangier" Smith as he is sometimes referred to to distinguish him from a later Chief Justice of same name, was restored to the Chief Justice- ship on June 9, 1702. He may have known that his reap- pointment was merely of temporary character, for Lord Corn- bury, like his predecessor, Bellomont, preferred English law- yers ; but the appointment was nevertheless satisfactory, for Smith could at least look upon his reinstatement as a vindi- cation. In 1703 he had to give way to an English lawyer,
2. In a letter to the Lords of Trade (4 "Colonial Documents," 1010), Lord Cornbury says: "Attwood in the execution of his office as Chief Jus- tice and First Judge, in almost all cases that came judicially before him, by general report of all present, did openly, notoriously and most scandalously, and with wonderful partiality, in almost all cases in which his son was concerned as counsel, espouse and indeed plead and give countenance to such causes, and finally gave judgment on the son's side, by means of which justice was perverted, the laws abused and the subjects exceedingly injured ; which recommended his son to great practice, and large sums of money were by parties given to him, to buy his father's favor."
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