USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 7
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The victory of the People went beyond the Parliamentary successes in Great Britain. It not only established the great doctrine that the Exec- utive shall collect no taxes not first granted by the Legislative power ; but it established the important principle that the taxes shall be collected and paid over to the Executive by the servants of the Assembly, in such manner as the Assembly may direct. The People, through their representatives, took absolute control of revenue; no longer as a grant to Royalty, but as the Sovereign, raising the money needed to pay its own expenses and the salaries of its agents and subordinates .- Ibid, pp. 78-80.
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His record, in general, was good, but he stumbled disastrously in the exercise of the chancellorship of the Equity Court. This seemed to him to be a prerogative of the Governor; and he delighted in the exercise of it.10 But he was not well fitted for judicial office. He was impulsive, and some of his hasty decisions as chancellor increased his enemies,11 adding many among the traders when he forbade trading with the French. Burnet was also unfortunate in literary efforts, a commentary he wrote on the Book of Revelations prompting the New Jer- sey Assembly, it is said, to pass "An Act against denying the divinity of our Saviour, Jesus Christ, the doctrine of the Blessed Trinity, the truth of the Holy Scriptures and spread- ing Atheistical Books." Still, his actions as chancellor rankled most. Opposition reached such intensity in 1727 that the New York General Assembly, on the closing day of its session and of the Nineteenth Assembly, adopted resolutions denouncing Burnet's action in setting up a Court of Chancery that ren- dered "the Libertys and properties of the subjects extremely Precarious," and had brought ruin to some subjects and im- prisonment to others. The Governor's insistence in conduct-
10. The office of chancellor was his delight. He made a tolerable figure in the exercise of it, though he was no lawyer, and had a foible very unsuitable for a judge. I mean his resolving too speedily, for he used to say to himself, "I act first and think afterwards."-Smith's "History of New York," Vol. I, p. 249.
II. His interest in chancery affairs was one of the causes which ulti- mately led to his removal as governor. One of these related to the French congregation of New York City, which had by that time become large and flourishing. A difference had arisen between the members of the church in regard to the pastorate, and the incumbent of that office, the Rev- erend Louis Rou, being removed by the consistory, filed a bill in chancery to compel the consistory to reverse its action. When the case came up the consistory pleaded against the jurisdiction of the court, and this plea was overruled by the governor. The opponents of Mr. Rou, seeing clearly the final outcome of the case in the hands of the governor as chancellor, left the church and became thereafter frank and outspoken enemies of Burnet ; among these was Stephen de Lancey, then one of the leading men of the province. Adolph Phillipse also had become estranged from the govern- ment on account of a suit which he had in chancery in relation to a dif- ference about money matters with a former business partner. In chan-
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ing this court, and of assuming the chancellorship of it, was all the more exasperating because the Assembly felt that "the erecting and exercising in this colony a Court of Equity or Chancery . . without Consent in General Assembly is unwarrantable and Contrary to the laws of England." The Assembly further resolved that in the next session a bill "to make null and void all acts, decrees and proceedings of the court under Burnet" would be introduced. Alas! The Nine- teenth Assembly did not again sit.
When these resolutions were brought to the notice of the Governor and his Council, the latter forthwith declared that they looked upon the resolutions of the Assembly "as unwar- rantable and highly Injurious to his Majesty's Prerogative for the recovery of his just Rights in this Province, and to the Libertys and propertys of the Subject, who would, if the said Resolutions were of any force, be thereby deprived of all rem- edys in Equity which they are entitled unto by the Laws and fundamental Constitution of Great Britain." In addition, the Council ordered that "this Minute be published and printed and dispersed throughout this Province And that the Gentle- men of this Board or any five of them be a Committee to make their observations on the said Resolves & that they may report their opinion thereon to this Board."
It was not until August 30, 1728, however, that the com-
cery the governor dismissed the bill of Phillipse, who thereafter was one of the governor's active opponents.
Thus having arrayed two of the strongest and most influential men of the province against him, Governor Burnet found that, for the rest of his career as a governor, he had a difficult path to pursue. Upon the meeting of the Assembly in September, 1725, Adolph Phillipse was elected speaker, and Stephen De Lancey was one of the new members. The governor refused to administer the oath to De Lancey, averring that he was not a citizen, but the assembly favored De Lancey and availed itself of the occa- sion to declare its right to judge of the qualification of its own members, asserting that the governor had no authority in such matters. Thereafter, the combined influence of De Lancey and Phillipse was brought strongly to bear against the governor, and all the governor's supporters and most of the members of the assembly supported them in this opposition .- Chester's "Legal and Judicial History of N. Y.," Vol. I, pp. 243-45.
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mittee reported to the Council ;12 and by that time Burnet was no longer Governor of New York and the Jerseys. Moreover, his successor, John Montgomerie, a former groom of the chamber of George II, was so chary of countering the will of the Assembly that he refused to act as chancellor of the Court of Equity until ordered to do so, it is said. Montgomerie reached New York on April 15, 1728, and very soon there- after Burnet left for Boston, having been appointed Governor of the Massachusetts Bay Province, where he died an acci- dental death eighteen months later.
Governor Burnet had dissolved the Nineteenth Assembly on November 25, 1727, the day upon which the House resolu- tions, so obnoxious to him and his Council, were adopted. Montgomerie, therefore, was able to start with a clean legisla- tive slate, as it were. The Twentieth Assembly began its first session on July 23, 1728. The Nineteenth and Eighteenth had been stormy Assemblies of but one session, but the Twentieth was to have almost as long a life as the Seven- teenth, dissolution not coming until 1737. Its composition was not much different from that of the Nineteenth Assembly.
12. At the meeting of the council, August 30, 1728, the committee, of which Cadwalader Colden was chairman, made its report to the governor in council, in which, however, they content themselves with reflecting upon the motives and the irregular manner of passing the resolutions rather than answering the alleged grievances, and wishing the assembly's resolves might never affect "the propertys and Libertys of the people more than any Act of Council." It is declared, however, "that unless such attempts as this be Effectually discouraged, The Authority of His Majesty's Courts may often be in danger from the Artifices of popular man That Judges may be frightened even in Cases where the King is highly concerned from giv- ing Judgment against a Leading man of an Assembly, and that the poor may have no means Left of Defending or receiving their right when Invaded by rich & powerful men. If such an open invasion of the King's prerog- ative should now be passed with neglect, any Discourse of it for the future may become the Test of the people." Finally, "we must Zealously En- deavor to discourage all attempts on the Royal prerogative & the Safety of the people in the properties & Liberties from whatever hands they come. The prerogative of the Crown is so closely interwoven with the Safety of the People that no attempt can be made upon one without manifest Injury to the other."-Redfield's "English Colonial Polity and Judicial Jurisdiction, 1664-1776," "History of Bench and Bar of New York" (1897).
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New York City was again represented by four of its leading citizens-Stephen de Lancey, Adolph Phillipse, Garret van Horne, and Anthony Rutgers. They had sat in the Nine- teenth, and had bitterly opposed Burnet. Adolph Phillipse, whose election to the Speakership of the Seventeenth Assem- bly had been the beginning of the trouble for Governor Burnet was again Speaker; and within the first week it was quite evident that the Twentieth Assembly meant to retain a firm grip of the government. A resolution was passed on July 30, 1728, "that for any act, matter, or thing done in General As- sembly, the members thereof are accountable and answerable to the House only, and to no other persons whatsoever." Attorney-General Bradley, writing to the Lords of Trade, deplored this, by which "the Assembly seem in express words to claim an independency." The Assembly threatened with expulsion members who would disclose their secrets. Their animosity against Crown officers was so pointed that, wrote Bradley : "Persons in power dare not yet venture to displease these people so far as to show much countenance to officers of the Crown."
The Assembly, in 1729, with the approval of the Governor, closely considered the salaries of all the officers of the Gov- ernment, increasing some but reducing most. As a member of the Council, Lewis Morris, Jr., son of the Chief Justice, protested against the signing of the warrants by the Gov- ernor ; but the Governor was so far in accord with the policy of the Assembly, or so anxious to avoid friction with the House, that he signed the warrants, and gave further evi- dence of his alignment with the Assembly by removing Mor- ris from his Council. The latter's place was taken by Phillip van Cortland, "a man more inclined to give up the rights of the Crown," wrote Morris, in a letter of complaint to the Lords of Trade in 1732. It might in passing be noted that the stipend of his father, Lewis Morris, as Chief Justice, was reduced, by the signed warrants, from £300 to £260; so that loyalty
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to the Crown and King may not have been the only reason for Morris' vehement protest.
There is no doubt that the Assembly recognized that they had a man of mild temperament to deal with in Governor Montgomerie;12a but it is also not to be doubted that the Assemblymen were at that time so determined to hold firmly the reins of government, in regard to taxation and expendi- tures at all events, that they would have been as insistent with even the strongest governor. The Morrises, father and son, were both popular men, and had been prominent in As- sembly and Council for many years; but even though the As- sembly plans for economy affected the pocket of this family, it did not cause the legislators to deviate in the slightest from their set course. Certainly, the Lower House, the Assembly, had gone very far by this time, in assuming even legislative control of executive power. The significance of this trend was pointed out to the Lords of Trade, by Attorney-General Bradley in November, 1729. "Most of the previous and open steps," he said, "which a dependent province can take to render itself independent at their pleasure, are taken by the Assembly of New York."13
12a. He is represented to us, however, in all accounts of him as a person of very dull intellect. But he possessed the eminent merit, unusual in persons of his caliber, of acknowledging his deficiency, of not pretending to know more than he did. -"Memorial History of New York," Vol. II, 180.
12a. Governor Burnet's successor in New York was Colonel John Montgomery. He was fresh from Court, having been Gentleman of Honor to George II, while Prince of Wales. He was a soldier by profession, though a courtier by practice. He knew something of diplomacy, but very little of the world in general. He had spent an indolent, frivolous life, and was without sufficient character to inspire opposition .- Lamb's "History of the City of New York," Vol. I, p. 525.
13. Among these steps he instances first, that "they have long struggled for and at last gained their point, viz., that the salaries of all officers of the Crown should be such as they are pleased to vote them." Again, he says, "the Assembly of late will never pass any money bill unless some injurious bill to Her Majesty's prerogative and interest be passed at the same time, which (as things are at present circumstanced) must be complied with or no money can be had for the necessary support of government. The As-
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Montgomerie, may not have been of strong character or commanding personality, but he certainly succeeded in getting readier grants from the Assembly than either Hunter or Burnet.14 He was not of contentious mind, and so his admin- istration, while not uneventful was not stormy. As to Chan- cery jurisdiction, he may not have been as dull and incapable as he would like the politicians and public men of New York to believe. Behind a veneer of indolence may have lain a shrewd mind. That he was not lacking in intelligence may be inferred from one notable item of an inventory of the effects of Governor Montgomerie, taken soon after his sudden death
sembly likewise appoint a Treasurer of their own, though Her Majesty has a Receiver-General Here."
The Attorney-General complained that they had threatened with ex- pulsion those who have disclosed their secrets, and preferred other accusa- tions. In their votes of the 30th July, 1728, they have resolved "that any act, matter or thing done in General Assembly, the members thereof are accountable and answerable to the House only, and to no other persons whatsoever," said he, "by which resolve the Assembly seem in express words to claim an independency, for none but a supreme power can be exempted from rendering an account of their actions." This supremacy of the People was quite displeasing to the law officer of the province. "Persons in power dare not yet venture to displease these people so far as to show much countenance to officers of the Crown. Assemblies seem already to be got beyond all manner of check or restraint whatsoever, and this at a time, too, when other neighboring provinces seem to show the same kind of spirit, and a strong intention to take the earliest opportunity of setting up for themselves. While assemblies dare act thus, and seem to have it in their power to obtain what laws they please, how can Her Majesty's interests be secure in so remote a country? Would it not be ad- visable that a commissioner of the Crown sit with the Assembly as in Scotland, and that the officers of the Crown be rendered independent ?"- "Civil List of New York," 1888 edition, pp. 80-81.
14. . . . his indulgent or indolent good nature enabled him to act more harmoniously than his able predecessors or successors with the refractory provincial assemblies. In the matter of that burning question regarding the grant of revenue without specified appropriations, and for a number of years at once instead of from year to year, around which the battle of popular rights and royal prerogative had raged and was yet to rage for many a year, Montgomerie actually obtained more concessions than had Hunter or Burnet, because he brought no special pressure to bear, and advanced no unpalatable arguments in support of the claims of the crown. We may regard the Montgomerie administration, therefore, as a suspension of the struggle which made us a nation at last .- "Memorial History of New York," Vol. II, p. 180.
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in 1731 ; it showed that he had possessed a private library of 1,400 volumes, a possession which would have been remark- able even had it belonged to a man of the learned professions at that time.15 Maybe, his aversion to taking office as Chan- cellor of the Court of Chancery lay more in his reluctance to exert himself unnecessarily than to a belief that that office had brought disaster to some of his predecessors. At all events, he contrived to make his connection with it inoffensive. "In it he never gave a decree and issued no more than three orders, and even these, both as to form and matter, were first settled by the Council." He died during a small-pox epidemic in 1731, death coming during the night of June 30-July 1.16 He had many friends among the people of New York, and few enemies.17
The only outstanding event of his administration was the
15. The Public Library of New York was founded during the Mont- gomerie administration, beginning with only 1,700 volumes, and another small private collection.
16. On pp. 921 and 924 of "Documents Relative to the Colonial His- tory of New York" are two of Van Dam's letters, dated July I and Sep- tember II, 1731, respectively. In the first he refers to Governor Mont- gomerie as having "departed this life last night." In the second letter he is more explicit : "I hope the accompt I transmitted to your Lordships by way of Boston and Bristol on the Ist of July last, of the death of our late Govr. Coll. Montgomerie, being the next day after his decease, has been laid before your Lordships." Still the Council Minutes are probably more exact. Entry of July 1, 1731, after stating that the Board convened at 6 o'clock a. m., because his Excellency had "about an hour ago departed this life."-See Council Minutes XVI, III; also "Doc. Rel. Col. Hist. N. Y.," V; 840, 921, 924. The "Journal of the General Assembly of New York" decides the point, entry of August 25, 1731, when first session under Rip van Dam opened, reads, as to Montgomerie's death: "our late Governor, John Montgomerie, Efq. (who departed this Life on the first Day of July, 1731)."-See "Journal of the General Assembly of the Colony of New York, 1691-1743," p. 623.
17. The sudden death of Governor Montgomery on the Ist of July, 1731, cast a brief shadow over the skies. He had avoided quarrels, conse- quently had made few enemies. He had had no particular scheme to pur- sue for his own or others' aggrandizement, and, drifting along in a peace- ful, uninterrupted stream of commonplaces, was regarded as amiable, and probably came as near inspiring affection as is possible for any good- natured, inactive man of moderate abilities .- Lamb's "History of the City of New York," Vol. I, p. 536.
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granting of a new municipal charter to New York City. It is known as Montgomery's Charter, and in later periods proved to be a very important factor in the development of the city. It weathered all the changes incident to the Revolutionary period, and the drastic alteration of status of State and Nation. While the British occupied New York during the Revolution, its functions were suspended, but the State Constitution of 1777 and that of 1821 confirmed the charter in all its essential particulars so that, as Chancellor Kent wrote in 1836: "It re- mains to this day with much of its original form and spirit, after having received by statute such modifications and such a thorough enlargement in its legislative, judicial and execu- tive branches, as were best adapted to the genius and wants of the people, and to the astonishing growth and still rapidly in- creasing wealth and magnitude of the city."18
Upon the death of Governor Montgomerie, the government devolved upon Rip van Dam. This was quite regular and in accordance with Governor Montgomerie's instructions as to his successor in case of his death ;19 and in view of the subse- quent dispute between Van Dam and Governor Cosby, it was well that one point in connection with the succession was care- fully considered and definitely settled, viz: the emoluments of office to which President Van Dam would be entitled. On September 3, the Council had before them the question of passing the warrant for two months' salary to Van Dam as Acting-Governor. Consideration was postponed, a full Coun- cil not being present; meanwhile a committee was appointed to consider the question. The matter was also referred to in the Assembly, and the Speaker preferred to leave the decision to the Council. Final action was taken on February 7, 1732,
18. Kent's "Book of Charters of New York."
19. These were clear to the effect that until the next governor should arrive from England the duties of Chief Magistrate were to devolve upon the member who had been longest in the Council, and by virtue of which he was also president thereof .- See "Council Minutes," XVI, p. III.
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the Board then deciding that "the President is Entitled to the whole Sallary" settled on the late Governor.20
Van Dam, who is always referred to as President (of the Council) not as Lieutenant-Governor or Acting-Governor, was a man of wealth and was highly esteemed. He was level- headed, and made no effort to overreach his authority. His acts were consistent with those of an honest servant of the public, and he quietly but resolutely maintained his views of right and justice without regard even to himself. He felt him- self entitled to the salary that had been settled on Montgom- erie, but he steadfastly refused to take the opportunity of lucrative perquisites that would come to the Governor as Chancellor of the Court of Chancery. Van Dam was opposed to such courts, and refused to take the oaths as Chancellor, "notwithstanding direct instructions from the English Gov- ernment, and the damage it was likely to inflict upon the revenue."
Van Dam, it appears, had not a very thorough understand- ing of the English language. One not unfriendly critic re- ferred to Van Dam and to another member of Montgomerie's Council, in this respect, as follows: "If they understand the common discourse, 't is as much as they do." Historian Smith averred that Van Dam was "distinguished more for the in- tegrity of his heart than his capacity to hold the reigns of government." However, no one can with reason accuse Van Dam of having the Crown rather than the People in mind. And, after the arrival of the next Governor, Cosby, he showed that he did not lack tenacity of purpose. Van Dam had been a councillor for twenty-nine years, and was one of the most
20. "The warrant for the payment of the President's Sallary being this day moved to the Board, and the reasons for and against the Presidents having the whole Sallary settled on the late Governour being read, and Maturely considered of, It is the opinion of the Board that the President is Entitled to the whole Sallary and afterwards a Warrant for paying the President the Sum of £390 for his Quarters Sallary after having been read was signed by his Honour."-"Council Minutes," XVI, 178.
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substantial merchants of New York, so that when Cosby, soon after reaching New York, demanded that Van Dam deliver to him one-half of his salary as Acting-Governor-in accordance with Cosby's understanding with the King, when commis- sioned-Van Dam did not hesitate to refuse; and persisted in his refusal when threatened with legal proceedings. At least, he refused to share his salary with Cosby, if the latter would not share the larger sum he had received, while still in Eng- land, out of New York funds for certain services.21
Cosby decided to prosecute Van Dam, and the latter deter- mined to sue the Governor. The sympathy of the people was with Van Dam, and more positively on his side after Cosby had decided to erect a Chancery Court to try the case. An equity court had of course been especially obnoxious to the people of New York for several decades but that created by Cosby for his own purposes was especially so. He would have preferred to institute proceedings in the ordinary way in the Supreme Court but could not do so, the case being one of ac- count and as such cognizable only in a court of equity. But obviously he could not hear his own cause, which he would have to do if brought in the regular way before the Court of Chancery, of which he, as Governor, was ex officio Chancellor. So, on December 4, 1732, he promulgated an ordi-
21. Van Dam caused still fiercer emotions in the breast of the new- comer (Cosby) when a settlement of accounts was instituted. Van Dam. who had been in the governor's chair for thirteen months, received the salary. Cosby brought with him the king's order for an equal division (between himself and the President of the Council) of the salary, emolu- ments, and perquisites since the commencement of Van Dam's adminis- tration. Cosby proceeded to demand one-half of the salary which Van Dam had received. The latter was willing to divide the salary, but it must be with division also of emoluments and perquisites, according to the sov- ereign's order. Van Dam was aware that Cosby had received, while yet in England, for pretended services and expenditures for Indian presents never given, for overcharges of clothing, subsistence, etc., for troops, sums of money which exceeded what had been paid to himself by over £2,400. The governor refused to divide, and Van Dam not only refused to refund any part of the salary, but demanded the balance due him."-Lamb's "His- tory of N. Y.," Vol. II, p. 538.
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