USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 8
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nance enabling judges of the Supreme Court to sit as a Court of Exchequer; and he appointed Stephen de Lancey and Adolph Philipse to act with Chief Justice as equity judges. His cause seemed to be safe, for De Lancey and Philipse were in full sympathy with Cosby. Van Dam was represented by William Smith and James Alexander, both eminent lawyers. They contended that the Governor had no right to give equity jurisdiction to that court; indeed they went further, denying that a royal council had authority to legislate for New York, and arguing that to erect a Court of Exchequer, or any other court, "or to extend an existing court's jurisdiction," without an act of the Assembly, was an act "of arbitrary power"; that no court of equity could be legally established except by prescription or an act of the Legislature ; that arbitrary power, though "let in but at a back door," was a menace to every possession a man could call his own, for all would be "at the will and disposal of his tyrannical owner."
The case aroused considerable excitement among the peo- ple of New York. So great was the popular interest that, we are told, "the Exchequer Court bell scarce ever rang, but the city was all in confusion." The cause passed beyond that of a court trial ; the plea of the defence was virtually a plea for in- dependence ; and there were no doubt many in the colony at that time who would have supported an armed effort in that direction. As to the proceedings before the Court, one writer22 states that "The Court having sustained its exchequer juris- diction in equity by the votes of De Lancey and Phillipse, second and third judges, as against Morris, C. J., dissenting"; but most historians state that without even hearing the oppos- ing counsel defending the Governor, Chief Justice Lewis Mor- ris, "to the surprise of Cosby and his adherents," interposed, and delivered a decision in favor of the plea of Van Dam, "His two colleagues, De Lancey and Phillipse, astonished at his
22. Redfield, in "English Colonial Polity and Judicial Administration, History of Bench and Bar of New York" (1897), p. 77.
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boldness, gave opposing opinions defending the governor ; they overruled even the Chief Justice."23 There was consider- able commotion ; and out of the proceedings grew two violent political factions, with most bitter feelings. The Van Dam case, however, was subsequently dropped without settlement, and Cosby never received any of the Van Dam share, notwith- standing the king's order.
Cosby was beside himself with rage. Chief Justice Morris' decision seemed to him to be preposterous, treason in fact against the Crown, and a personal insult to himself. He promptly sent a message to Morris requesting a copy of his opinion ; and the governor's request was couched in such terms as to cast aspersions on the honor and good faith of the Chief Justice. The latter perhaps had anticipated the request ; at all events, the copy was soon forthcoming. To make sure that there should be other record of it, Morris had had the opinion printed ; and had arranged for its publication. In pamphlet form it covered thirteen pages of a folio tract.24 Apparently, the Chief Justice had needed no argument by Van Dam's counsel to confirm him in his own opinion ; as his letter enclos- ing the opinion to Governor Cosby shows, he had previously protested to the Governor against the ordinance which gave equity jurisdiction to the Supreme Court.25 The Governor
23. "Memorial History of New York," Vol. II, p. 218.
24. entitled "The Opinion and Argument of the Chief Justice of New York Concerning the Jurisdiction of the Supreme Court of the Said Prov- ince to Determine Causes in the Court of Equity." In a letter addressed by Lewis Morris to Governor Cosby, New York. Printed and sold by J. P. Zenger, 1733.
25. "This, sir, is a copy of the paper I read in court. . . . I have no reason to expect that this or anything else I can say will be at all grateful, or have any weight with your Excellency, after the answer I received to a message I did myself the honor to send to you concerning an ordinance you were about to make for establishing a court of equity in the Supreme Court, as being, in my opinion, contrary to law, and which I desired might be delayed till I could be heard on that head. I thought myself within the duty of my office in sending this message, and hope I do not flatter myself in thinking I shall be justified in it by your superiors, as well as mine. The answer your Excellency was pleased to send me was, that I need not
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should therefore not have been surprised that Morris ruled as he did, though he might have been chagrined to realize that the Chief Justice could not be intimidated.
The Chief Justice of course was removed from office, and both of Van Dam's counsel were denounced by Cosby, who wrote to the Lords of Trade declaring that Alexander was "unfit to sit in the council," and was of "known very bad character." James de Lancey was elevated to the place of Morris, the former's commission as Chief Justice being dated August 21, 1733.
But these actions by the Governor only fanned the flame of popular resentment, and more clearly drew the lines be- tween the Crown and the People. "Cosby, in the course of a few months, had contrived to revive all the suspicions, the fears, and the factious strife that had been quieted under the prudent rule of Montgomerie and Rip van Dam; they now rose to new violence. Against his opponents he resolved to use all the powers of an arbitrary rule. "The rights of the people," said Smith, as late as 1756, "lie even now at the mercy of their governeurs." Under Cosby, their rights seemed to have disappeared altogether. The Assembly petitioned con- stantly for his own dissolution, but he refused, though he al-
give myself any trouble about that affair; that you would not receive a visit or any message from me; that you could neither rely upon my in- tegrity, nor depend upon my judgment; that you thought me a person not at all fit to be trusted with any concerns relating to the king; that ever since your coming to the government I had treated you, both as to your own person and as the king's representative, with slight, rudeness, and impertinence; that you did not desire to see or hear any further of or from me.
"I am heartily sorry, sir, for your sake, as well as that of the public, that the king's representative should be moved to so great a degree of warmth, as appears by your answer, which I think would proceed from no other reason but by giving my opinion, in a court of which I was a judge, upon a point of law that came before me, and to which I might be innocently enough mistaken (though I think I am not), for judges are no more infallible than their superiors are impeccable. But if judges are to be intimidated so as not to dare to give any opinion but what is pleasing to a governor, and agreeable to his private views, the people of this province, who are very much concerned both with respect to their lives and fortunes
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lowed it to meet only seldom, and at long intervals. In truth, he feared the popular will, and would have no new elections. The Twentieth Assembly lasted from 1728 to 1737, and dur- ing Cosby's years as governor (1732-36) sat less than two hundred days. But some elections he could not prevent. For instance, he could not prevent the people of Westchester County, at a by-election in 1733, choosing as their representa- tive the man he so bitterly hated-Lewis Morris, the former chief Justice.
Still, Cosby had most powerful connections in England, and he seemed to feel that they would sustain him through his imprudent arrogant course. He was a brother-in-law of the Earl of Halifax; and the Duke of Newcastle, then in min- isterial power, was his patron. His daughter had just mar- ried Lord Augustus Fitzroy, son of the Duke of Grafton, a descendant of Charles II. Therefore it is not hard to under- stand why this choleric colonel-a commoner who had risen to such dazzling connection with the aristocracy and even with royalty-should look with such disdain upon mere pro-
in the freedom and independency of those who are to judge of them, may possibly not think themselves so secure in either of them as the laws of his Majesty intend they should be."
Chief Justice Morris in the next paragraph explains that in the half a dozen times he had conversed with the Governor he had not said as much as could be contained "on a quarto side of paper"; that he may unwit- tingly have been impertinent, "for old men are too often so," but he had intended no rudeness. "If a boy, awkwardly made, or anything of that kind, or some defect in the ceremonial of addressing you, has occasioned that remark, I beg it may be attributed to the want of a courtly and polite education, or to anything else, rather than the want of respect to his Majesty's representative. As to my integrity, I have given you no occasion to call it in question. I have been in this office for twenty years. My hands were never soiled with a bribe; now am I conscious to myself, that power or poverty hath been able to induce me to be partial in the favor of either of them; and, as I have no reason to expect any favor from you, so I am neither afraid nor ashamed to stand the test of the strictest inquiry you can make concerning my conduct. I have served the public faithfully according to the best of my knowledge, and I dare and do appeal to it for my justification.
"I am, sir, your Excellency's most humble servant, "Lewis Morris."
C.&L .- 35
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vincials of a province that could count in 1731 only 43,058 white inhabitants.
But these white inhabitants were not disposed to tolerate arrogance in any Crown official ; they had passed beyond that stage of colonial government; and while Governor Cosby, in setting up a social despositism, ostracized all who would not bow to his will, the independent citizens in great measure ostracized him and all who fluttered around him. The court dinners and social functions at the Fort were dazzlingly gay, and those citizens who were persona grata with the Governor gained some reflected viceregal sheen by attending such fes- tivities ; but the true representatives of the people avoided the Palace, and were no more than courteous when chance or pub- lic affairs brought them before the governor. Morris26 as-
26. Lewis Morris was the son of Richard Morris, a Welshman, who served under Cromwell, and who fled to Barbados at the Restoration. There he married well, and emigrated to New York. He purchased the Indian title to wild land in Westchester County, a tract now known as Morrisania. His son, Lewis, was born at Morrisania in 1671. Both parents died while Lewis was still in infancy, and he was reared by his uncle, Lewis Morris. As a youth he showed a wayward inclination; at least he was strong-minded and hard to control. Resenting a reprimand by his uncle, the boy ran away from home, and his wanderings took him to Vir- ginia, and even to the West Indies and Jamaica. This early independence of spirit was the forerunner of a somewhat erratic temperament in later life, but withal his experiences developed remarkable qualities in him. In his years of vagrancy, he supported himself by scrivening, but after some years he returned to Morrisania, was reconciled to his uncle, and took up the study of law. He married a daughter of James Graham, "a woman of rare good sense and refinement," with whom he lived "in perfect har- mony" for fifty years. Her father, though not a lawyer, comes into legal history as the first recorder of New York City; he was also Attorney- General under Bellomont. Lewis Morris was soon in busy law practice in the provinces of New York and New Jersey. Most of his early profes- sional years were spent in the latter province. In 1692 he was appointed to a judgeship of the Superior Court of New Jersey, becoming also a mem- ber of the Council of Lord Cornbury. But it was hardly to be expected that a man like Morris could long remain in harmony with an executive so corrupt as Cornbury was; the outcome was that Morris was expelled from Cornbury's Council; but in return Morris drew up an indictment against Cornbury, took it himself to England, was bold enough to carry the matter personally to Queen Anne, who was Cornbury's cousin, and was so convinc- ing in his arguments and facts that Cornbury was recalled.
Subsequently Judge Morris was appointed to the New Jersey Supreme
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serted that he had never waited on the governor; Rip van Dam27 had always been been belligerent ; and Alexander28 and Smith29 were but two of many prominent public men who determinedly opposed the arrogant governor. Probably, three-fourths of the people of the province were on their side. Lewis Morris had an evidence of this spirit soon after he was elected as member from Westchester County. When he en- tered the City, cannon were fired from merchant-ships in the harbor, and a large number of citizens met and escorted him with cheers and flying banners to an elegant entertainment."30 It was the last day of the session, but in the next session, the former Chief Justice at once became an influential factor in the House, in which his son, Colonel Lewis Morris, also sat.
The other side, the Tory faction, was headed by James de Lancey, a man of the highest educational qualification, and a scion of one of the wealthiest families of New York. He was chosen to succeed Morris as Chief Justice, and he was no doubt well fitted for the office. Indeed, "no one was better
Court, but never took his seat on that bench because almost immediately (March 15, 1715,) he succeeded Mompesson as Chief Justice of New York and New Jersey. His elevation probably did not come to him because of "some warm words" he had expressed as an assemblyman of New Jersey under Hunter, but he was a popular man, and one of the most learned of his profession. Moreover, as the Governor pointed out, in appointing him to succeed Mompesson : that "he was able to live without salary." Governor Burnet thought highly of Morris; so probably did Montgomerie; but Cosby and Morris were of distinctly opposite types; and the Chief Justice probably soon saw that he could not long hold his judicial office. And after he had been removed, and De Lancey had been appointed Chief Jus- tice, Morris gave his earnest effort to weaving a strong fabric for the People's party. The party lines formed at that time were strong enough to endure throughout he remaining decades of colonial history. "Morris, with William Smith and James Alexander, was of that extraordinary tri- umvirate in the colony of New York who, with voice and pen and in the courts, made the fight for liberty of opinion, and of the press, and of free criticism of the existing government and exposure of any follies or cor- ruption of which it might be guilty, which was echoed through the thir- teen colonies, sowing the harvest reaped in the successful struggle for in- dependence a half-century later." They were the talented publicists sup- porting Zenger's "New York Weekly Journal," founded in November, 1733, the first attempt to establish freedom of the press. Judge Morris was. chiefly instrumental in bringing about the entire separation of the govern-
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fitted to attain the highest rank in his profession. His mind was clear and strong ; his opportunities for mental cultivation had surpassed those of his fellows; he was industrious, am- bitious, and his family influence insured him success."31 Had he joined the other side, the Whigs whose fight was sterner, he might have become an outstanding figure even among the great lawyers of that time. But he, and other wealthy New Yorkers of pronounced capability, chose to flout the party of reform and align themselves on the side of the Crown. The viceregal court was no doubt alluring to provincials who had sufficient wealth to follow the social rounds of court life; so that while Morris, Alexander, Smith, Colden, Living- ston, Van Dam, and others gave their time to the sterner thoughts of the people's interests, the De Lanceys, Phillipses, Van Cortlandts and others did not better their state generally, or their aptitude for public affairs, by following the round of social gaieties in the reflected glitter of the Crown. De Lan- cey probably was the most capable, and his record as a jurist
ments of New York and New Jersey. He was governor of the latter from 1738 until his death in 1746. His son, Lewis Morris, 2d. (1698-1762) was an assemblyman for several years, and became Chief Justice of the Vice- Admiralty Court. He was the father of Lewis Morris, 3d, signer of the Declaration of Independence, and of Gouverneur Morris.
27. Rip van Dam was born in Albany, N. Y., in about 1660. Biog- raphers do not agree as to the year of his birth, one giving it as 1670. He was married, however in 16 -. From about 1690 until his death he was among the prominent citizens and merchants of New York. His father was Claes Ripse van Dam, an Indian trader, operating from Albany; and in his younger years of manhood Rip van Dam was a captain of trading ves- sels, this expanding into merchandizing connections in New York. He was a prominent Anti-Leislerian, and was still of that alignment when Bellomont was governor. The rigorous application of the navigation laws by Bello- mont caused Van Dam serious concern, for he owned several vessels then engaged mainly, in the West Indian trade. He was even more violently opposed to Governor Nanfan and his Chief Justice, Attwood. However, with the coming of Lord Cornbury, he and other Anti-Leislerians came into official favor; he was appointed to the Governor's Council in 1702, with which council he remained a member until the coming of Cosby, as Gov- ernor, in 1732. In his last year he was Acting-Governor; and though he had an imperfect knowledge of the English language and was essentially Dutch in his antecedents and inclinations, he governed the English colony with substantial success at a difficult time. His wife was "of pure Dutch
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for a generation, and as governor for two periods, was in gen- eral good. Unfortunately, the heat of partisan politics carried him beyond judicial caution at times. It is said that he be- came both the leader and the victim of the court party, the Tories ; also that "he lent powerful aid to Cosby in some of his most iniquitous measures"; that he "covered up his pecula- tions, defended his tyranny"; and that his persecution of the opposite faction "was fatal to the best interests of his native city."32
An indication of the intensity of party feeling is seen in the story of the election of Ex-Chief Justice Morris to the As- sembly, as given in Zenger's journal.33 The High Sheriff, "one of Cosby's instruments," ruled that thirty-seven Quaker sup- porters of Morris could not vote because they would not take the usual oath, except by affirmation. Nevertheless, the late Chief Justice was elected by a large majority.
Thereafter, "every measure of the government was con- tested in the Assembly." The Twentieth Assembly began its
extraction," and they were both members of the Dutch church in New York, most of their numerous offispring (fifteen were born to them, it is said) being recorded on the registers of baptism of that church. Rip van Dam was a Master of Chancery in 1720; but he went out of official favor altogether with the coming of Cosby. The animosity of Cosby was so intense that Rip van Dam and Lewis Morris felt that their only protection lay with the press. Hence they supported Zenger's effort; but Rip van Dam was then an old man, and the leadership passed to others. He died June 10, 1749, "in extreme old age," states Valentine's "Manual" for 1865. 28. James Alexander was born in Scotland about 1690, and died in New York, April 2, 1756. He was a political refugee, leaving England in 1716 because of his participation in the Stuart cause. He soon began to gain prominence at the New York and New Jersey bar. His service as an officer of Engineers in Scotland brought him appointment as Surveyor- General of New Jersey soon after he was appointed (1718) as Recorder of the town of Perth Amboy. These official duties were not arduous, and he used his leisure profitably in the study of law. He was Attorney-General in 1721-23, and for some time Secretary of the Province. As a lawyer his most strenuous efforts were put forth during the Cosby administration ; and his opposition of that governor resulted in his being disbarred. He was reinstated after Cosby's death, and until 1756, when death "resulted from รก severe illness occasioned by the fatigue and exposure of a trip that he made to Albany to oppose a ministerial scheme inimical to the rights of the colony," he was one of the leading Whigs, and also one of the most eminent
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seventh session on April 25, 1734, and very soon gave indica- tion that while on minor matters they were prepared to meet the recommendations of the Governor and his Council, the members of the Assembly were more determined than ever to oppose Cosby's manner of establishing a Court of Exchequer. Cosby had some degree of precedent for his action,34 but he might well have hesitated had he studied the histories of previous administrations. The judicial establishment of New York undoubtedly "furnished the theatre for nearly all the ultimate contentions of the political parties of the province down to the time of the Revolution."35 It, time after time, solidified the popular party in stern opposition to the gov- ernors, not only in matters of the courts but in many other measures in which the leaders of the people seemed to see an attempt by the Crown to encroach upon their liberties. Early in the seventh session of the Twentieth Assembly, in 1734, an act for settling fees and bills was before the House. Concern- ing it petitions began to pour in from many counties, the
lawyers of New York. Many studied law in his office; John Tabor Kempe, William Smith, Jr., James Duane and Peter R. Livingston were students under him at the same time. He left a large estate, and although he did not pursue his claim to the earldom of Stirling, his son, William, was the celebrated Lord Stirling of the Revolution.
29. William Smith, who was destined to have such close association with Alexander in legal and political activities, came over to America on the same ship as Alexander, the vessel reaching New York on August 17, 1715. Also on board were his father, Thomas Smith, and his two brothers, John and Thomas. William was still in nonage, having been born in 1697, (October 17). He was able to attend Yale College, from which he was graduated in 1719. For five years thereafter he remained as tutor at Yale, being learned in the sciences, a good theologian and linguist, being proficient in French, Latin, Greek and Hebrew. He declined the rector's chair at Yale, having resolved to take up the practice of law in New York City, probably influenced thereto by his friend Alexander, who for some years had been Attorney-General. William Smith was admitted to the bar in New York City on May 20, 1724, and his eloquence brought him soon into notice as an advocate. He was disbarred by Cosby, but reinstated after the death of the latter. In 1751 Governor George Clinton appointed Smith Attorney-General and Advocate-General; and he served one year as such, though his appointment was not confirmed by the English authorities, because of Smith's previous prominence in opposing the government under Cosby. However, Smith remained in office, as member of the Governor's
WILLIAM SMITH
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signers, who claimed "to be entitled to the liberties of English- men," protesting that the erection of any court, and "especial- ly the Court of Equity lately erected in the Supreme Court of this Province" was a "grievance and destructive to the lib- erties of the people, as it is now constituted," i. e., by execu- tive ordinance. The petitions were of such importance that the Assembly decided to hear counsel on the matter. On May 30, 1734, the House refused leave of absence to two mem- bers, Col. Philipse and Col. Lewis Morris, Jr., who were due to hold circuit court in Duchess, Ulster and Albany counties. It was explained that "there are still several matters of Im- portance depending" before the House, of such serious import as to demand the attendance of the whole House. On the next day, the petitions were presented, the petitioners praying that the House would act "to preferve the Liberties of his Majesty's Subjects from arbitrary Encroachments."
The question was a vital one, for it involved the whole theory of English domination in America. Therefore the
Council, from 1753 to 1767, and was Recorder for some years. He was an ardent patriot, and eloquently advocated the scheme of union of the Amer- ican colonies at the opening of the French and Indian War. He was the New York member of a committee appointed by the Colonial Congress at Albany in 1754, to draft the plan of union. In 1760 he refused appointment as Chief Justice of the Supreme Court "on a technicality involving a prin- ciple respecting the dignity of the court and the extent of royal inter- ference"; but three years later he accepted an associate-justiceship of the same court, and he held that connection with it until his death in 1769. An obituary notice in the New York "Gazette," following his decease, char- acterizes him as "a gentleman of great erudition, the most eloquent speaker in the province, and a zealous and inflexible friend to the cause of religion and liberty." Had he lived a few more years, his influence would have been great in the councils of the republican leaders of the next and stormy decade. He probably was of stronger republican principal than his son, of same name-and generally known as William Smith, the historian-who consented to act as Chief Justice under the Crown, during the British oc- cupation of New York City (1778-83), and who departed with the British troops to England, subsequently becoming Chief Justice of Canada.
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