USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 5
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46
510
COURTS AND LAWYERS
John Bridges, a Doctor of Laws; but the latter died in less than a year, and Smith also died soon afterwards.3
Cornbury strengthened his administration by appointing to his Council many of the Anti-Leislerian leaders. Colonel Caleb Heathcote, Geraldus Beeckman, Rip van Dam, Mat- thew Ling, Thomas Wenham, John Bridges, Sampson S. Broughton, William Laurence, Wolfgang W. Romer, Kil- liaen van Rensselaer, Roger Mompesson, Adolph Phillipse, John Barbarie were members of the Council of Lord Corn- bury at some time during his Governorship. Some were Eng- lish lawyers, but the local members were Anti-Leislerians.
The Assembly also showed remarkable change in consti- tution, scarcely a member of the Eighth Assembly being re- turned to the Ninth, save those who had withdrawn altogether from the sessions of the Eighth Assembly, refusing to sit under an alien Speaker. Abraham Governeur, who had se- cured the Speakership of the Eighth Assembly by one vote more than had been cast for William Nicoll, had no place in the Ninth Assembly, whose Speaker was William Nicoll. The House of Representatives, therefore, seemed so constituted that its legislation might be expected to reflect the will of the
3. Whether the unhealthiness of New York at that time was the prime cause of the death, in the early years of the eighteenth century, of so many of the men who had had leading part in the governmental affairs of New York can only be conjectured. It is known that in 1702, when Lord Corn- bury began his administration, more than five hundred New York City people died of yellow fever, and that among them were "some of the most distinguished citizens." The disease was epidemic in New York City in that year, but may have been present earlier and later. Certainly, many of the leading men of New York passed out of public record in the first decade of the eighteenth century. Lord Bellomont died in 1701. A few months earlier Stephen van Cortland, his Chief Justice, died. James Graham, Attorney-General, died in 1701. Broughton, the English barrister who succeeded him as Attorney-General, died in 1704. Bridges, who suc- ceeded Smith as Chief Justice in 1703, died in less than a year after his arrival in New York. In the same year, 1704, the former Chief Justice, William Smith, also died, though he was only fifty years old. Lord Corn- bury "escaped" the epidemic by retiring to Jamaica, Long Island. Lord Lovelace, who succeeded Lord Cornbury in December, 1708, died six months later.
5II
CORNBURY TO TRYON-1702-1775
noble Governor. The contrary proved to be so, however. The members were not averse to the passing of legislation which would secure a reversal of the conviction of Bayard and others for high treason, the act "reversing and making null and void said judgments and all proceedings thereon" being passed in May, 1703, and being approved by the Gov- ernor on June 19; but by that time it had become evident to the Governor that the Assembly considered itself an in- dependent body, or at least not subservient to the Governor or his Council; also that it would not permit His Excellency to disburse public funds as he saw fit. The sessions of the Ninth Assembly were as follows: First session, October 20 to No- vember 27, 1702; second, April 13 to June 19, and October 14-20, 1703; third, April 13 to June 27, and October 6 to No- vember 6, by which time the Governor had so far lost patience with its insistence upon the "rights" and "liberties of free Englishmen" that he dissolved the Assembly.
In its first session, that of 1702, the Ninth Assembly, in an address to the Queen affirmed their "readiness to support the government of England, as by law established." These laws did not permit the establishment of courts of law with- out the consent of the legislative house, the Parliament in England, and the General Assembly in the colonies. At least, such was the contention of the New York Assemblymen. Consequently, they promptly passed "An Act to declare the illegality, and frustrate the irregular proceedings, Extortions and Decrees of the late pretended Court of Chancery," which had been created by Governor Nanfan. The act, which was read three times between November 25 and November 27, 1702, followed resolutions adopted declaring that "the setting up of a court of Equity in the Colony, without Consent in General Assembly, is an innovation without any former Precedent, inconvenient and contrary to English Law," that the Court of Chancery "was and is unwarrantable, a great Oppression to the Subject, of pernicious Example and Consequence," and
512
COURTS AND LAWYERS
that consequently all proceedings, Orders and Decrees in the same are, and of right ought to be declared null and void." The Governor's signature was eventually obtained, therefore the Court of Equity was suspended on June 13, 1703, the Governor, perhaps, feeling that his approval was but the quid pro quo of other measures passed which had well lined his pockets. But when it soon became evident that the Assem- bly, which had appropriated for his use, to fortify the Nar- rows, the sum of £1,500, had resolved that henceforth the public treasury should be in the keeping of a treasurer who was of the colony, to prevent further misappropriation of New York funds, the Governor, perhaps, felt that the quid pro quo of this restrictive financial measure would be the reestablish- ment of the unpopular Court of Chancery by the objectionable method of executive ordinance, instead of by statute. At all events, the Court of Chancery was revived by Lord Cornbury, without the consent of the Assembly, in November, 1704.
Observant men might have gauged the true character of Lord Cornbury by one incident of 1702. For ten weeks, dur- ing that summer an epidemic of yellow fever raged in New York City. Lord Cornbury "escaped" to Jamaica, where, by the courtesy of Mr. Hubbard, the Presbyterian minister, he obtained the use of the Presbyterian parsonage, the best house in the town. And, when he no longer needed it as the Executive Mansion, Lord Cornbury "delivered it to the few Episcopalians of the village, and the glebe attached was leased for the support of their church." Little confidence could be placed in such a man ; and, as the years passed his offences against the people accumulated until they could be borne no longer. Still, New Jersey suffered worse than New York.
The receivers-general appointed by Lord Cornbury to suc- ceed Thomas Weaver were Caleb Heathcote, Thomas Wen- ham, Peter Fauconnier. Colonel Heathcote had been in the colony for about seven years, but the others were strangers. In any case, the Governor, like his predecessors, did not feel
513
CORNBURY TO TRYON-1702-1775
that he was accountable to the Assembly for disbursements from the public treasury. When the Assembly adopted an address to the Governor on June 16, 1703, relative to exor- bitant fees and exactions, and requested the appointment of a treasurer who could qualify as "a freeholder and inhabitant," the Governor resented this as "a reflection upon his conduct and interference with his will." Eventually, it was necessary to appeal to the Crown.
In 1704 there were some serious clashes between the Gov- ernor and the Assembly. The Council, on May 9, insisted that the General Assembly consisted of the Governor, Council and the House of Representatives, with the last-named body in advisory capacity only. The Assembly objected to the in- sertion of the word "advice" in an enacting clause, objecting also to reference to the colony as a "province." In other words, they balked at the thought that as a royal province their rights under English law might be jeopardized. How- ever, the House yielded so far as to accept the word "advice"; but they added : "always saving their rights, this compliance notwithstanding." Thereupon, the Governor, on June I, asked the Assembly to define their "rights," saying that he knew of none possessed by the Assembly "but such as the Queen is pleased to allow." The Governor even objected to the use of the title "General Assembly." Perhaps he pre- ferred "Upper Council" and "Lower Council." The House, in reply, pointed out that the commissions issued by the Crown referred to the "deputies of the People" as the "Gen- eral Assembly." Further, they did not hesitate to assert that the Governor had a distorted view of his and their place in the government, saying: "Your Excellency is not directed in the making of laws, to take the Advice of Council or Assem- bly, or both, but manifestly the contrary. Your Lordship's own prudence being wholly and solely intrusted to prevent that whatsoever might be agreed on by the Council and As-
C.&L .- 33
514
COURTS AND LAWYERS
sembly (in his judgment) to the prejudice of the Crown should not receive the sanction of law." Beyond this absolute veto of acts of the Council and Assembly, the Governor had no power, they contended. Certainly, his commission did not empower him to thwart the will of the People where it did not jeopardize the right of the Crown; inasmuch as colonial gov- ernment was recognized as based on English law, and that "English histories and laws" were "the birthright of English- men," whether of the colonies or the homeland, they insisted that the words "common consent in Parliament" settled the question of their right to repudiate all colonial legislation enacted without their consent. The reply of the General Assembly proceeded : "This Assembly being intrusted by the People of this plantation with that care of their liberties and properties, and sensible of their own weakness, lest through ignorance or inadvertency they should consent to anything hurtful to themselves or their posterity (in all things admit- ting of doubts) are willing to save their rights, and those rights they mean to be that natural and civil liberty, so often claimed, declared and confirmed by the English laws, and which they conceive every free Englishman is entitled to whatsoever else may admit of controversy, the people of this colony think they have an undoubted, true and entire prop- erty in their goods and estates, of which they ought not to be divested, but by their free consents, in such manner and to such ends and purposes as they shall think fit, and not other- wise ; if the contrary should be admitted, all notion of property would cease."
New Jersey was even more emphatic. The proprietors of East and West Jersey had in 1702 surrendered to the Queen their right of civil government, and Lord Cornbury had been commissioned as its Governor. But soon the New Jersey Assemblymen complained that Cornbury gave little thought to their affairs. It seemed to them that he looked upon New Jersey as "merely an outlying possession to be farmed for his
515
CORNBURY TO TRYON-1702-1775
benefit." He rarely visited Perth Amboy or Burlington, and his Lieutenant-Governor, Ingoldsby, and other government officials "ruled New Jersey in their own and their master's interest, without the smallest regard to the rights and welfare of the people." But the people of New Jersey had many champions, one of the wisest and boldest being the Quaker preacher, Samuel Jenings. He was Speaker of the Assembly, and stated his opinion of Cornbury before Cornbury, with calm and fearless dignity. The Governor's opinion of Jenings was that he "had impudence enough to face the Devil."
However, Cornbury did not permit himself to be greatly perturbed by these evidences of general unrest. He did not think the colonists could go so far as the stage of armed revolt. And his agents, both in New Jersey and New York, were gathering revenue by diverse and not always regular ways, to his satisfaction. If a General Assembly should be- come too troublesome, it could with ease be stifled altogether. A stroke of his pen could dissolve it. And his agents might be able to arrange that the next House would be more
tractable. Nevertheless, there were some things beyond the schemings of even the most unscrupulous Governor. Even he could not prevent the election of enough of the capable and incorruptible representatives of the people to form a strong minority that could not be silenced. It was so in New York, and certainly so in New Jersey. The Ninth New York Assembly was dissolved on November 6, 1704; but the Tenth Assembly which convened in June, 1705, under the same Speaker, was even more troublesome. The House per- sisted in demanding control of the public purse, or the appoint- ment of a treasurer who would be accountable to the Assem- bly. On the other hand, the English ministers supported Cornbury. In October, 1705, instructions came to him from England "not to permit any clause whatsoever to be inserted in any law for levying money or the value of money, whereby
516
COURTS AND LAWYERS
the same shall not be made liable to be accounted for to us here in England," and not "to suffer any public money what- soever to be issued or disposed of otherwise than by warrant under your hand, by and with the advice and consent of our said Council." The Assembly, however, held to its demand. The House pointed out that the treasurer though accountable to them could also render account to the Crown; and they denied the right of Council to amend money bills.
The fight went on. Several bills were passed by the As- sembly, only to be promptly vetoed by the Governor, on the ground that they were contrary to his instructions." In September, 1706, he addressed the Assembly, saying that he had been commanded to advise them that the Lords of Trade had ruled that the Council "have undoubtedly as much to do in passing of bills for the granting and raising of money as the Assembly, and consequently have a right to alter or amend any such money bills as well as the Assembly." In reference to another act he said that the Lords of Trade regard it as "highly presumptuous in the Assembly to pretend to propose or pass any clause whereby Her Majesty is restrained in her Royal prerogative of pardoning or reprieving her sub- jects whenever she sees it reasonable and convenient."
Evidently Cornbury's government of New York was as ir- regular as that of New Jersey. The Assembly of the latter addressed the Governor in 1707 recounting their grievances4
4. These grievances were recounted-among them the want of due ad- ministration of justice and the pardon or permitted escape of convicted murderers; the exorbitant fees of courts and the exaction of illegal fees generally, the want of an office of the Secretary of the Province and of a Court of Probate, in the Eastern Division, whereby one-half the people were compelled to take long journeys on business of constant occurrence ; the keeping of the provincial records, which contained all the evidences of titles to estates, by a person who was not even a resident of the colony, and had given no security for the faithful discharge of his trust; the assump- tion by the Governor of the right of granting land-warrants, which be- longed to the Proprietors; the evasion of quit-rents, and the alleged pay- ment of large sums of money to the Governor for the dissolution of the Assembly to that end : and, adds the remonstrants : "we cannot be but very uneasy when we find by these new methods of government, our liberties and
517
CORNBURY TO TRYON-1702-1775
arising from maladministration. The remonstrance ends dolefully, yet with significant warning words: "Liberty is too valuable a thing to be easily parted with."
The Tenth New York Assembly had existence for only two years, for before it could hold a session in 1707, the Gov- ernor dissolved it. And the voice of the people was not again heard in legislative halls for almost two years-from October, 1706, to August, 1708. But the will of the people was not weakened thereby; Lord Cornbury found the Elev- enth Assembly more determined than the earlier bodies to check his malpractices. In fact, the Assemblymen took such a firm stand that they appointed a "committee on grievances," under the chairmanship of William Nicoll, who was still Speaker, which committee, in due course, reported several resolutions, which were unanimously passed, "claiming the ap- pointment of coroners without their being chosen by the people as a grievance and contrary to law ; declaring that it is and always has been the unquestionable right of every free- man in this colony that he had a perfect and entire property in his goods and estate; that imposing and levying of any moneys upon her majesty's subjects of this colony, under any pretense or color whatsoever, without consent in General Assembly, is a grievance and a violation of the people's prop- erty ; that extravagant and unlimited fees have been exacted, which are unreasonable and unlawful." Again, the courts of equity were condemned, one resolution reading: "That the erecting of a Court of Equity without consent in General As- sembly is contrary to law, without precedent, and of danger- ous consequence to the liberty and property of the subjects."
Storms soon reached tempestuous force around Cornbury, petitions being drawn up in different parts of the colonies.
properties so much shaken, that no man can say he is master of either, but holds them as tenant by courtesy and at will, and may be stript of them at pleasure." Therefore, it is that they seek some relief from their manifold burdens, "for," they reflect, "Liberty is too valuable a thing to be easily parted with."-Bryant's "U. S.," III, 41-42.
518
COURTS AND LAWYERS
These, with memorials from the Assemblies, were sent to England, "and a request was made for the removal of the Governor, whose general immorality, both as regards his pri- vate life, his maladministration of affairs, and his misappro- priations of public funds, had long been a public scandal."5
He was recalled, Lord Lovelace being commissioned to suc- ceed him. But Lord Cornbury could not escape the penalty of his misdeeds in America as easily as he had from his English creditors. When it became known that he was no longer Governor, private creditors caused him to be arrested for debt. And the ex-Governor, though a cousin of the Queen, remained in the custody of the sheriff of New York until the death of his father, the Earl of Clarendon, brought him his in- heritance, with which he was able to discharge his debts, or at least to appease his creditors in New York.
The Chief Justice of the later years of Lord Cornbury's administration was Roger Mompesson, who was commis- sioned on July 15, 1704, to succeed John Bridges, deceased. Mompesson was a man of good English record, having been a member of Parliament; and his knowledge of law could be inferred from the fact that he had been recorder of South- ampton. He came to America, bearing a letter of introduc- tion from William Penn, who testified that the bearer was "well grounded in the law and an honest, good-tempered and sober gentleman." Penn thought so well of of him that when Mompesson came in 1703 as judge of Admiralty for New York, the Jerseys and Pennsylvania, he granted him a commission Chief Justice of Pennsylvania also." However, the Pro- as
5. Chester's "Legal and Judicial History of N. Y.," I, 240.
6. On August 27, 1703, William Penn wrote to Secretary Logan, of Pennsylvania, as follows, regarding Mompesson :
"The gentleman who brings this is constituted Judge of the Admiralty of Pennsylvania, the Jerseys and New York, and is yet willing to be my attorney general, to rectify matters in law, and to put you into better methods; in which respect he is, by the judicious here, thought to be very able. .. . It (he) is a moderate Churchman, knows the world here, has been in two several Parliaments and recorder of Southampton; only steps
519
CORNBURY TO TRYON-1702-1775
vincial Assembly of Pennsylvania refused to grant him a salary, and after Colonel Quary had superceded Mompesson as judge of Admiralty in West Jersey and Pennsylvania, early in 1704, the latter appeared to have lost interest in Pennsyl- vania.7 Penn offered Mompesson twenty pounds, and his viaticum, or expenses, if he would attend each session, spring and autumn, of the Provincial Court as Chief Justice, the money being provided out of his private purse, "'till those un- worthy people that hindered an establishment upon thee are amended or laid aside." And although Mompesson was then also Chief Justice of New York and the Jerseys, he seems to have attended sessions in Pennsylvania up to 1706. Secre- tary Logan, writing to Penn on May 28, 1706, reported that "Mompesson has accepted the commission of Chief Justice," also that he had been paid twenty pounds for the last Provin- cial Court, and about "ten pounds more for what thou calls his viaticum." Later in the same year Logan sought to have the judiciary bills passed by the Assembly. He wrote to Penn : "What made us mostly incline to have it done by Act of As- sembly was the hope of procuring a salary for Judge Mom- pesson ; but that we now see is vain." Thereafter, until 1715, when he died, Mompesson seems to have given his judicial services wholly to New York and New Jersey.
Though it was charged against Mompesson by those who
abroad to ease his fortune of some of his father's debts, he was early unwarily engaged for. It (he) is a favorite of Lord Cornbury's father, the Earl of Clarendon. I have granted him a commission for chief justice, in case the people will lay hold of such an opportunity as no government in America ever had before, of an English lawyer, and encourage him by a proper salary of at least one hundred pounds, if not one hundred and fifty per annum."-"Penn and Logan Cor.," Vol. I, p. 212, quoted in Eastman's "Courts and Lawyers of Pennsylvania.
7. On July 14, 1704, Secretary Logan wrote to Penn :
"Judge Mompesson has been here during their late sittings, and of great service in council, but going to New York, as he said, for a few days, has not returned yet, nor I fear intends it, to stay with us, Bridges, the chief justice there, being lately dead, whose place 'tis expected he will supply. He seems to be tired of us, as we have reason to be of ourselves, all things considered."-Ibid, Vol. I, 299.
520
COURTS AND LAWYERS
opposed his appointment as Chief Justice of Pennsylvania, that he was "too well affected to Penn," also "that he drank too much," it was generally conceded that he was the most capable jurist then in America. Mompessons, it seems, was the first to bring into the colony the English forms of procedure. In a petition to the Lords of Trade in 1709 it was stated that the procedure of the colonial courts was now "more conformable to the practice of Westminster Hall than any other of Her Majestie's plantations in America." O'Callaghan declares that Mompesson "did more than any other man to mould the judicial system of both New York and New Jersey." He seems to have been more heedful of his New York responsibil- ities than those he had in the Jerseys. The administration of justice in that province was the subject of serious com- plaint in 1707; and in 1709, after Mompesson had signed an address to the Queen justifying Lord Cornbury's conduct as Governor, he resigned the Chief Justiceship of New Jersey, fearing removal; but he retained the Chief Justiceship of New York until his death, in March, 1715.
Lord Cornbury was succeeded, as Governor, by John, Earl of Lovelace and Baron of Hurley. His commission as Governor of New York and New Jersey was dated March 28, 1708, so that decision to remove Governor Cornbury had evidently been made before the New York Assembly appointed its Committee on Grievances, which drafted the series of resolu- tions condemnatory of the Cornbury administration. Action was probably taken by the English ministers as a result of New Jersey complaints of 1707.
Lord Lovelace reached New York on December 18, 1708, and was welcomed, not because the populace had had good reports of him, or that they treasured happy remembrance of the former Governor Lovelace. The people's opposition of Lord Cornbury naturally found its reaction in kindly feelings toward his successor. The legislative voice was not heard, for the Assembly was not in session, and was dissolved in
521
CORNBURY TO TRYON-1702-1775
January, 1709. However, the Twelfth Assembly, which began its first session on April 6, 1709, was not much different in membership. It was even sterner in policy. In their address to Lord Lovelace the representatives were somewhat doleful : "Our wishes are that measures may be taken to encourage the few inhabitants left to stay in the provinces and others to come." Lord Lovelace was gracious in his address; yet real- ities could not be evaded, and the Assembly could not see eye to eye with the Governor on matters of finance. They did not wish to quarrel with the Governor, and they voted him £1,600 for that year; but they reserved to the Assembly the right to renew or refuse another such grant. They were de- termined that all matters of revenue should be ordered or authorized by the Assembly before being put into effect. However, Lord Lovelace was destined to have little part in the struggle between the people and the Crown, for on the very day that the bill was passed, May 5, 1709, he died. Nevertheless, others would follow him, as the representative of the Crown, and the Assembly had reached the point whereat they fully recognized their place in the colonial structure. They saw clearly that Crown and People were not synony- mous. Bancroft writes of the Twelfth Assembly: "The As- sembly which in April, 1709, met Lord Lovelace began the contest that was never to cease but with independence"
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.