USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 9
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William Smith, Jr., the historian, was born in New York City June 25, 1728, and died in Quebec, Canada, Dec. 3, 1793. Educated at Yale, from which he graduated in 1745, he studied law in New York, and was admitted to the bar in New York City in October, 1750. He began practice in partnership with William Livingston, who became Governor of New Jersey.
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members were averse to considering the petitions until they had heard counsel. Consequently "Mr. Smith and Mr. Mur- ray" were asked to attend on the following Friday "for the further Information of the House." On June 7, therefore, William Smith, who had appeared for Van Dam in the Cosby case, and Joseph Murray, "the recognized leader of the bar and in sympathy with the theory of prerogative government," at- tended. Smith spoke for about three hours,-to a House wherein the Court Party was in the majority, although on this question the strength of the minority, and the increasing popu- lar clamour, was too evident to be ignored-and in his address he "laid it down as an undeniable Pofition, that no Grant, Commiffion or Letters Patent, can erect a Court of Equity or Chancery ; and that it can only be by a Prefcription or Act of Parliament."36 Mr. Murray was not then prepared to ad- dress the House. He explained that "fome extraordinary bufinefs intervening fince he had Notice" had prevented him from preparing himself fully on the subject. He was given
These two young lawyers were appointed by the New York Assembly to revise the laws of the colony-a task which Chief Justice Horsmanden had left uncompleted. The first volume of their revision was published in 1752, and the second ten years later. The work was creditably performed, and possibly suggested to Smith the compilation of a general history of the colony. At all events his "History of the Province of New York From Its Earliest Settlement to 1732" appeared in the year 1757. It has been one of the basic sources for all historical students of New York ever since. A second volume bringing the history up to the time of the Revolution came from his pen eventually, but publication if it was, at his request, withheld until his death. Both volumes were published in 1825 by the New York Historical Society.
The first years of the Revolution were trying ones to Judge Smith, but he adhered to his Loyalist attitude despite personal restriction of liberty. His appointment as Chief Justice of Canada was, perhaps, a reward of his loyalty to the Crown; nevertheless, he was well fitted for the office in Canada, and was, indeed "literally the father of the reformed judiciary of that province."
30. Lamb's "History of the City of New York," Vol. I, p. 543.
31. Lawrence, in "Memorial History of New York," Vol. II, p. 224.
31. James de Lancey was the son of Stephen de Lancey, a Huguenot exile, who had become wealthy in the African trade, and by marriage with the daughter of Van Cortlandt had enhanced his standing in New York. Their son, James, was given unusual educational advantages, being sent to
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until the following Wednesday to present his opinion, which the House was especially desirous to have, for Smith's elo- quence had undoubtedly impressed the Assembly. He virtu- ally voiced Home Rule, and his logic was as convincing as his eloquence was impressive. His closing words painted a dark picture if the rights of English common law were to be denied to the colonies.37 "It is doubtful whether there was ever any clearer statement of the American position touching the Eng- lish supremacy"38 than was presented to the Assembly at that time. On the following Wednesday, Murray did equal justice to the case for the Crown. The entry in the "Journal of the General Assembly," Vol. I, p. 664, reads, in part, that Murray "laid it down, that the Courts of Chancery, King's Bench, Common Pleas, and Exchequer, were, by the Laws of England, of original Jurisdiction by the Conftitution of England, and as antient as the Kingdom itfelf: That as in this Colony, we are intitled to the fame Laws, Liberties and Privileges, and under the fame Conftitution, fo we are intitled to the fame
England to study at Cambridge University, where he was tutored by Dr. Thomas Herring, who became Archbishop of York, and eventually Primate of England. In 1725 young De Lancey returned to New York, and soon was admitted to the bar. In 1729 he became a member of the Governor's Council. The Montgomerie Charter of 1730 was drafted mainly by De Lancey, and this service to New York City was recognized by presentation to him of the freedom of the city, James de Lancey being the first to enjoy that distinction. He was then only twenty-seven years old, having been born in 1703. He was one of the wealthiest young men of the province, and his influence was increased by his marriage in 1728 to a daughter of Caleb Heathcote, one of the wealthiest men of New York. In June, 1731, he was appointed to an associate judgeship of the Supreme Court, and two years later was advanced to the Chief Justiceship, vice Morris, removed. He retained this office until his death in 1760. In many respects his record was good, and, notwithstanding that he was politically aligned against the popular party, yet he managed to keep the public confidence. There were many better lawyers in the province, but he had a remarkably retentive memory, and all that he had absorbed of law was at his command at the instant needed. His perception was acute, his judgment usually sound, and his action prompt and decisive. Thus he came into good repute' as a jurist-at least among those who had not followed his political activities closely. His otherwise irreproachable record as a jurist was unfortunately marred by some lapses during which he manifested the partisanship of a politician rather than the impartiality of a judge. Politics carried him
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Courts, and produced many Authorities in fupport thereof; and by feveral Arguments,39 fhewed, that if we fhould put thofe Courts upon any other footing here than they are in England, our own Act would draw into question whether we are intitled to the Liberties and Privileges aforfaid; but that he however conceived it would not be improper to regulate the Courts, and that the Judges might be (during good Behav- iour) by an Act, as it is in England." In conclusion, Murray recommended "that if new laws were passed they should be in imitation of such laws, relating to those courts as the wise legislatives of England have thought fit to make." This of course was the fundamental grievance that caused the Revo- lution-legislation without representation ; and there were no doubt many assemblymen in New York in 1734 who, though numbered among the Tories, were disposed to accept Smith's rather than Murray's interpretations. However, the petitions were laid aside. So also was the bill that prompted them. And Cosby did not again attempt to bring equity matters into the Supreme Court.
perhaps farther from the line of strict judicial probity than he intended, for in some instances his public acts were especially worthy. He was given the Lieutenant-Governorship, as well, in 1747, although, owing to a quarrel with Governor Clinton, he was not formally commissioned until the latter's administration had ended. Then, in 1753, he became Acting Governor, and in the next year presided over the Colonial Congress held at Albany. In the same year he granted a charter to King's College (now Columbia Uni- versity). Upon the arrival of Sir Charles Hardy De Lancey handed over the reins of government, and confined himself to his judicial office until 1757, when he again had to exercise the powers of governor, continuing as such until his death, in 1760. Judge Daly writes of him: "He was a man of more integrity than he received credit for during life; and when the gov- ernment was entrusted to his hands, he administered it with so much ca- pacity, and with so single an eye to the general welfare of the province, as to wring a reluctant tribute from his enemies."-See "Historical Sketch of the Judicial Tribunals of New York," p. 49; also "Memorial History of New York," Vol. II, p. 224.
32. "Memorial History of New York," Vol. II, p. 225.
33. The story of the election, despite all the efforts of De Lancey and the court party, is preserved for us in "Zenger's Journal," almost with the minuteness of a modern reporter. I shall abridge it for the reader, since it tells much of the manners of our ancestors. When Lewis Morris, in the
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But there was another matter, that he had to take cog- nizance of, one seriously undermining Crown authority. The power of the Press, even in its first attempt at freedom, was such that vigorous measures to suppress it were urgently nec- essary. Happenings reported in the official organ of the Gov- ernment, the "Gazette," conveyed an entirely different view to that seen, in the same happenings, by Editor Zenger, and those Whig leaders who supported him,-who conceived the newspaper enterprise in fact. At a time when in England the liberty of the Press was scarcely understood, and when at- tempts in some American colonies had been disastrous to the publishers, the leaders of the popular party in New York, Morris, Alexander, Smith and perhaps others, set out boldly to demand freedom of thought and speech.40 They found the opportunity in the experience John Peter Zenger, a German who had learned the art of printing in the employ of Bradford, who, six years or more before had founded the first New York newspaper, the "Gazette," a weekly sheet, or, to be exact, a
autumn of 1733, appeared as a candidate of the people for Westchester, a very remarkable election took place. Few modern politicians would care to undergo the fatigue and the dangers that awaited the patriotic voters in 1733. There was fear that the court party might practice some fraud; fifty electors kept watch all night at East Chester, where the polling was to take place, until the morning of election day. The other electors of Mor- ris's party began to move on Sunday afternoon so as to be at New Rochelle by midnight; on their way they were entertained at plentifully covered tables in each house as they passed; at midnight they were at the home of an active partizan whose house could not contain them all. A large fire was made in the street, and here they sat till daylight came, in the damp air of a Westchester morning. At daylight they were joined by seventy mounted voters from the lower part of the county, and then the whole body moved to the polling place at East Chester in the following order : first rode "two trumpeters and two violins," . . .; then came four freeholders, one of whom carried a banner, on one side of which was inscribed, in golden capitals, "King George," on the other, "Liberty and Law." Next came the candidate, Lewis Morris, Esq., late chief justice, then two colors; and at sunrise they entered the common at East Chester. Three hundred of the principal freeholders of the county followed Morris on horseback, the largest number ever known to be assembled since the settlement of the town. Three times they rode around the green, and then went to the houses of their friends. About eleven o'clock, perhaps with still more state and show, appeared the candidate of the opposing party.
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half-sheet of foolscap. Success increased the size of the "Gazette" a year or so later to a whole sheet of foolscap (4 pages). Zenger's journal began more ambitiously -using a full sheet of foolscap, for its first number.
Zenger had incurred the displeasure of the Governor by printing, in pamphlet form, the opinion of Chief Justice Mor- ris in the Cosby vs. Van Dam case. And another embarrass- ment was shrouding his future. He had been Collector of Taxes, and had been short in his accounts-through careless- ness not dishonesty it is pointed out ; and in his perplexity he had appeared before the Assembly, praying to be allowed further time-two years-in which to make good his deficien- cy. So that he had need of powerful friends; and he could find surer friends among the leaders of the people than in the Court Party. The popular leaders also had need of such a man as Zenger. Hence, they were drawn together. On No- vember 5, 1733, the first number of "The New York Weekly Journal," "Containing the frefheft Advices, Foreign, and
It was William Forster, Esq., once a schoolmaster sent over by the Society for the Propagation of the Gospel, but now clerk of the peace and justice of the Common Pleas by the appointment of Governor Cosby. It was sug- gested that he paid a hundred pistoles for his office. Next him in the procession were two ensigns borne by two freeholders, and then came James De Lancey, chief justice, and Frederick Philipse, second judge, baron, etc. They were followed by one hundred and seventy mounted freeholders, the magnates of Westchester County. They entered the green on the east side, rode around it, and, as he passed, it was noticed that De Lancey bowed to Morris and that the civility was returned. But now one of he Morris party called out, "No Pretender," and Forster said angrily, "I will take notice of you." It was reported that he was no friend of the Hanoverian family. An hour later came the high sheriff, finely mounted, with housings and trappings of scarlet richly laced with silver. The electors gathered on the green; the great majority was evidently for Morris, but the other side demanded a poll, and the voting began. It was rudely interrupted when the high sheriff refused to receive the vote of a Friend or Quaker of large estate, who would not take the usual oath. A fierce wrangle began. Morris and his friends insisted that an affirmation was sufficient; the sheriff, a stranger in the county, one of Cosby's instruments, persisted in his refusal. De Lancey and his friends sustained him, and thirty-seven Quakers who were ready to vote for Morris, were excluded by this unjust decision. Even in England they would have been allowed to vote. Fierce, no doubt, was the rage of the popular party. One of them called out that
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Domftick," came from the press. Most of the issue of "Mun- day, November 12, 1733," "was given over to a defence of the "Liberty of the Prefs," and the individual. The editorial writer, gaining courage as he proceeded, declared : "No nation ever lost the liberty of freely speaking, writing or publishing, but forthwith lost their liberty and became slaves."
The journal was a success, financially, and also from a po- litical aspect. This was pleasing to Zenger, and satisfactory to all who supported him. But methods of the writers spread consternation among the Governor's friends.41 Week after week, by serious dissertation on liberty, by quips at the ex- pense of the Court Party, by unveiled charges of extravagance and corruption, these unknown but able writers kept the anger of the Governor at storm intensity. Some court retainer re- marked that it would be best "to keep well with the governor." The "Journal" replied : "A governour turns rogue, does a thousand things for which a small rogue would deserve a halter , therefore it is prudent to keep in with him."
Forster was a Jacobite; Forster denied it. At last "the late Chief Justice" was returned by a large majority. He rebuked Forster and the sheriff for their attempt upon the liberties of the people, and threatened them with deserved punishment; but when all his followers answered with loud cheers, he restrained them from violence .- See article by Eugene Lawrence on "William Cosby and the Freedom of the Press, 1732-36," in "Memorial History of New York," Vol. II, pp. 233-234.
34. The ingenuity of Cosby's legal advisers prompted him to proceed against Van Dam in the Supreme Court, not according to the usual course at common law but by bill in equity, on the theory that the ordinances erecting the Supreme Court and the judges' commissions authorized the justices to sit as barons of the Exchequer, who in England heard cases in equity. It will be recalled that the Supreme Court of New York then had (and now has, for its jurisdiction is only a continuation) the jurisdiction possessed by the English Courts of King's Bench, Common Pleas, and Exchequer. To facilitate this theory of the Governor's an ordinance was promulgated.
In the case of Cosby vs. Van Dam the Supreme Court incident- ally passed on another important question, for they held that the demise of the king did not determine the ordinances of the governors of the prov- ince. The court certainly did decide also that the king had a right by ordinance of the royal governors to erect courts of judicature in the prov- ince of New York . .. this power was undoubtedly allowed by the colonial constitutions of that (the Dutch and early English) time. Lieu-
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Writing of the personal extravagance of the court party, a cor- respondent says : Men now contend who shall wear the finest clothes, drink the costliest wines, have the most dishes on the table, and not, as of old, who shall be of the most service to his country." A letter was delivered at the house of James Alexander, threatening him with ruin. In the next issue of the "Journal" it was made known to all New York. Some who looked upon it as a threat from the Court Party "feared for their lives and property." It was whispered that Harrison, a member of the Council, had written it. He angrily denied it, and asserted that it was a forgery. The Governor, to clear himself, offered a reward for the discovery of its author. So the struggle went on. Smith, the historian, believed that the Governor was planning a scheme "to hang Alexander and Smith"; certainly Lady Cosby had been frank in openly stat- ing that her "highest wish was to see them both on a gallows at the fort gate."
The undermining power of Zenger's paper was seen in the
tenant-Governor Colden said, in a letter to Lord Halifax, dated at New York, December 13, 1764, that the arguments against such a prerogative were all founded on what the king could do in England, and conclude that the king can do nothing in the colonies which he cannot in England; and he added, "If this were true it must be subversive of every government in the Colonies."-Robert Ludlow Fowler's "Constitutional and Legal History of New York in the Eighteenth Century," "Memorial History of New York," Vol. II, pp. 584-85.
35. Ibid, p. 578.
36. Die Veneris, 9 ho. A. M., June 7, 1734.
"The houfe, being informed that Mr. Murray and Mr. Smith did at- tend without, it was Refolved, that they fhould be heard on the Subject Matter of the three Petitions mentioned on the 31ft of May laft, and be defired, that they would at that Part thereof, which relates to Courts of Juftice, give their real Opinion, candidly, fincerely and upon Honour ; and that none of the Members fhould interfere or interrupt them therein.
Then the Gentleman above-named, were called in and the Doors opened for all Auditors, the feveral Members being firft feated in their Places; the Speaker then afked Mr. Murray and Mr. Smith whether they were prepared to inform the Houfe of their real Opinion on the Subject above- mentioned, which he defired might be done candidly, fincerely and upon Honour, Mr. Murray declared that fome extraordinary Bufinefs, intervening fince he had Notice, he had been prevented from preparing himfelf fully upon that Subject; Mr. Smith made an Apology of the fame Nature, but
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New York City election in September, 1734. The Court Party was completely overthrown, and the new Common Council had but a single Tory, a Mr. Moore. To celebrate the victory many new essays, songs, satires, and other discomforting mat- ters of print came from the Zeneger press. The Governor denied that he had had any interest in the election; but the election of a hostile Board of Aldermen stirred the Court Party to fatal energy. De Lancey "charged the grand jury, in angry terms, that Zenger's paper was inculcating treason and dissension." He pressed an indictment of the editor, but the grand jury boldly refused. Cosby next appealed to the As- sembly, Philip van Cortlandt appearing before the House on October 17, 1734, with a message from the Council, regarding "'Zenger's New-York Weekly Journals,' . . . and other fcurrilous Papers, tending to Alienate the Affections of the People of this Province, from his Majefty's Government; to raife Seditions and Tumults among the People of this Province and to fill their Minds with a Contempt of his Majefty's Gov-
adding, that as well on his own Score, as in Behalf of his Clients, he had for fome years been obliged to fearch into, and inform himfelf of that Matter ; he was defired to proceed : And the faid Petitions being read, he laid it down as an undeniable pofition, that no Grant, Commiffion or Letters Patent, can erect a Court of Equity or Chancery ; and that it can only be by a prefcription or Act of Parliament, and in Support thereof, produced many Authorities, and urged feveral Arguments to fhew the Inconveniences of fuch a Court, if erected in any other Manner than by the Legislature.
After he had fpoke about three Hours to thefe purpofes, Mr. Murray was afked whether he was ready to give his Opinion, he again declared that he was unprepared for the Reafons aforefaid; then all Perfons withdrew, and the House being defirous to have an Information from him likewife, he was again called in, and afked how soon he could be prepared, who declared that he believed by Wednefday next; and he being withdrawn, the Houfe agreed that he fhould be defired to attend at that Time; and he being again called in, the Speaker defired him, that he would attend the Houfe on next Wednefday Morning, which he promifed, and then with- drew." -- "Journal of the General Assembly of the Colony of New York," Vol. I (1691-1743), p. 663.
37. ""Tis the misery of an arbitrary government that a man can enjoy nothing under it that he can call his own. Life, Liberty and property are not his, but all at the will and disposal of his tyrannical owner. . . . If an arbitrary power over our liberties and properties be let in upon us, but at the back door, it will certainly drive many of us out of our habitations,
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ernment." The message, "confidering the pernicious Confe- quences that may attend fuch growing Evils, if not fpeedily and effectually put a Stop to" recommended a conference of a House committee with one of the Council, to "examine and in- quire into the faid Papers and the Authors and Writers there- of." The committees met the same evening, and after delibera- tion, the Council Committee reduced to writing the matters upon which they asked the concurrence of the House. They wished Zenger's Papers, No. 7, 47, 48, 49 and two printed bal- lads, "to be burnt by the Hands of the common Hangman"; that the Governor, by proclamation, make known a "Promife of Reward, for the Difcovery of the Authors or Writers of thofe feditious Libels ; that the printer be prosecuted ; and that the House concur with the Council in ordering the Magis- trates of New York City "to exert themselves in the Execution of their Offices." But the House thought differently, and on October 22nd, an entry in the "Journal of the General As- sembly" (Vol. I, p. 672) reads: "it was, Ordered, That the faid Requeft and Papers lie on the Table."
and 'tis feared, will once more reduce our country to a wilderness and a land without inhabitants."-Smith's "History of the Province of New York," Vol. I, p. 372.
38. Fowler's "Constitutional and Legal History of New York in the Eighteenth Century," "Mem. Hist., N. Y., Vol. II, p. 586.
39. "It did not follow from his (Smith's) authorities, as some imagine, that no court could be opened and organized in the colony without the aid of the legislature; nor would the passing of an act for that purpose, in the least degree shake our titles, as Mr. Murray asserted, to any other rights and privileges to which we are entitled by the common laws of England. Neither of these gentlemen, had the question been proposed by the house, would have denied that the colony was entitled, for instance, to a court of king's bench, nor that the law constituting the judges of it, suf- ficient for their exercise of all the powers of the court of king's Bench at Westminster, and so respecting either of the other courts. Mr. Smith's law authority did not militate against such a court because it would not be creating a new court; and if the crown had exceeded its authority in modelling it, by an ordinance or commission, though that act may be void, the right to such court would still exist, because it is not in the power of the crown to repeal an old law, and extinguish the rights and privileges of the subjects."-Smith's History of the Province of New York," Vol. II, p. 18.
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