USA > New York > Historical sketch of the judicial tribunals of New York from 1623 to 1846 > Part 5
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2 3 Col. Doc. 230.
$ 3 Col. Doc. 235.
4 8 Col. Doc. 237.
5 Field's Provincial Court of New Jersey, 56.
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HISTORY OF THE COURT AND OF THE
authority to keep courts, administer justice, and rule and govern the inhabitants, ac- cording to the laws of the province, and the privileges and practices of the city."1 The mayor, with any four aldermen, were authorized to sit as a court of sessions, but they did not organize any separate criminal tribunal, but continued, as before, to discharge criminal, civil and municipal business at the regular sitting of the court, which was fixed for every three weeks; and an order was made that all causes should be tried before a jury, though it was not strictly adhered to. The most beneficial features of the Dutch court of referring causes to arbitrators, was continued and practised very generally, until English lawyers began to increase in the colony, when the system of special pleading grew more refined and subtle, and arbitrations were no longer resorted to, except in cases of accounts, which were usually referred to three persons, at first styled arbitrators, and afterwards referees; and all cases of accounts continued to be so referred until 1772, when the practice was perma- nently fixed and regulated by statute.2
In 1678, James authorized Andros to erect a court of admiralty. No regular tribunal was established, but in one or two instances Andros issued special commis- sions for the trial of admiralty causes ; and in other cases the hearing and determina - tion of matters in admiralty was left to the mayor's court.3
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In 1682, Dongan was appointed governor. Through the advice of William Penn, and in consequence of requests made to him by men of every rank in the province, James yielded to the general wish for a representative assembly,4 and authorized Dongan to call one,5 and immediately after his arrival, a general assembly was convened. Though the power to create courts was vested in the new governor, by his commission and instructions, he appears to, have left the matter entirely to the assembly. That body met in October, 1683, and after passing a charter of liberties and privileges, and dividing the province into twelve counties, they passed an act to " settle courts of justice."6 This act created four distinct tribunals-a petty court, for the trial of small causes for every town-a court of sessions for each county-a court of oyer and terminer, or general good delivery-and a court of chancery for the province at large.
The town court was held on the first Wednesday of every month, by three persons commissioned by the governor, without a jury, and had cognizance of action of debt and trespass when the amount did not exceed forty shillings. The court of sessions was held by three justices of the peace, twice a year, in each county, except, that in the county of Albany it was held three times, and in the city and county of New York, four times a year. In the city of New York it was held by the mayor and four aldermen. Like the former court of sessions, it had both civil and criminal jurisdiction, without any limitation as to amount ; and all causes before it were tried by a jury. There was attached to it a clerk, known as the clerk of the sessions, a marsball and a crier. The court of oyer and terminer was composed of two judges, commissioned by the governor, each of whom held a circuit of the court in every
1 2 Rec. of Mayor's Court.
2 Rec. of Mayors, vols. il. to vii. Laws of 1772 and 1781.
3 8 Col. Doc. 260. Rec. of Mayor's Court, vols. ii. and iii.
4 1 Chalmers' Introduction to Revolt of North American Colonies, 145. 1 Dunlap, 134.
5 8 Col. Doc. 331, 333.
6 2 Rev. Laws, Appendix, Mans. Laws of 1683, in N. Y. State Library.
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JUDICIAL ORGANIZATION OF THE STATE.
county in the province twice a year, having associated with him four of the justices of the peace of the county, and in the city of New York, the mayor, recorder and four aldermen. The oyer and terminer had general jurisdiction in cases civil and criminal, triable at the common law, and was the general appellate court. The court of chancery was held by the governor or council, with power in the governor to appoint a chancellor to act in bis stead. It had jurisdiction of all matters in equity, and was declared to be the supreme or highest court in the province. Im- mediately after the passage of this act, Governor Dongan appointed, as judges of the court of oyer and terminer, Matthias Nicolls, before referred to as mayor of the city of New York, and Thomas Palmer, both of whom were lawyers by profession; and com- missioners were appointed for the various town courts, additional justices of the peace created, and sheriffs and other officers commissioned.1 In the following year, 1684, the court of assize was abolished by an act of the general assembly, and in the same year, Thomas Rudyard, an eminent London lawyer, who had come out in 1682, as deputy governor of New Jersey, was appointed by Dongan to the office of attorney general .?
Upon Dongan's arrival in the city of New York, he dismissed all the old magis- trates, and appointed new ones. The November following his arrival, the mayor and aldermen presented a petition, asking a confirmation of their franchises and privileges, and among other things, that the city should be divided into six wards, that the freeholders of each ward should have power to elect an alderman and a common council man, with other local officers; and that a recorder might be ap- pointed by the governor, to aid and assist the mayor.3 This petition Dongan trans- mitted to James, but he complied with the request for the division of the city into wards, and for the appointment of a recorder.4 On the 14th of January, 1684, he issued a commission, appointing James Graham to the office-an office which he con- tinued to fill, with but one interruption, for seventeen years afterwards.5 On the day following Graham's appointment, all the new magistrates went in a body to the fort, and being sworn iu before the governor and council, returned and opened court ; "the recorder," says the record, " taking his seat on ye right hand of ye mayor."
The general assembly convened by Dongan had power to pass laws, subject to the approval of the governor and the duke. Dongan approved the laws enacted at the two sessions of 1683 and 1684, and transmitted them to England ; but before any action was taken upon them, James had ascended the throne. He was highly dis- pleased with the conduct of the general assembly in passing a charter of liberties and privileges; the matter was taken up in council, and this charter rejected, but the other laws were approved." The passage of this charter was enough for James. He resolved that there should be no more representative assemblies, and accordingly a new commission was issued to Dongan, in 1686, by which all legislative power was exclusively vested thereafter in the governor and his council, subject to the approval of the king and privy council. By this commission, Dongan was specially empowered to erect courts of law or equity, if necessary, and to appoint judges,
1 N. Y. Colonial Mans. vol. xxiv.
2 He was succeeded in 1685 by James Graham, Recorder of New York, who appears to have been succceded by James Emot, a prominent lawyer in the colony.
3 London Doc. New York Papers, i. 177. 2 Dunlap, App. cxxx.
4 8 Col. Doc. 339, 340.
5 N. Y. Col. Mans. vol. xxxiii.
6 8 Col. Doc. 257, 870.
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HISTORY OF THE COURT AND OF THE
justices of the peace or other officers ; and in the instructions accompanying the com- mission, he was directed " always to take care that they (the judges) be men of estate and ability, and not necessitous people, or much in debt, and not to displace judges, justices or sheriffs, without good and sufficient cause, to be signified to the king; and to prevent their arbitrary removal, that no time should be expressed in the commission for the duration of their offices."1
The act "to settle courts of justice" having been approved by the king, the courts established by it were continued regularly thereafter, the only change Dongan made, being to create what he called " a court of judicature," but which was, in fact, a court of exchequer. Having found great difficulty in enforcing the payment of the king's revenues, from the imperfect organization of distant courts, and the intractability of country jurors, he created this court, which was held by the governor and council, on the first Monday of every month, for the determination of suits or matters arising between the king and the inhabitants, concerning lands, rents, rights, profits and revenues.2 He also held, together with his council, a court of chancery. The first court of chancery was held on the 16th of February, 1683, immediately after the passage of the act to settle courts of justice, and it was directed to be held thereafter on the first Thursday of every second month, or six times a year.3 By the new commission, sent out to him, it was provided that appeals should be allowed in cases of error from any of the courts to the governor and council, where the amount involved exceeded £100, with a right to appeal from the decision of this tribunal to the king and privy council, where the amount exceeded £300. The judicial powers, therefore, of the governor and council, were threefold. They had general jurisdiction in all matters in equity, sat as a court of exchequer, and constituted the final court of appeal of the province. There was also, at this period, 1686, a mayor's court, at Albany, which sat every fortnight, from which, as from the mayor's court at New York, an appeal might be brought in cases above £20.4 A special com- mission was always issued for holding each court of oyer and terminer, and the par- ticular judge who was to hold it, with the justices of the peace who were to be associated with him, were named in the commission. At the close of the circuit or term, the written pleadings in each case, with all orders made, records of judgment, in short, everything that took place before it, and that had been reduced to writing, was tacked to the commission, and enclosed to the secretary of the province, and placed on file as the official record. Of the two regular judges, Nicolls and Palmer, Dongan spoke in the highest terms. In a report made by him, on the state of the province in 1686, he says, "their management has been such by arbitration, and such other mild courses, that where there were ten actions formerly, there is not one now." It was before this court that Leisler was tried for alleged treason and rebellion in usurping the government, but by judges specially appointed. It continued in existence for eleven years.
1
In the same year that Dongan received this new commission, he granted to the city of New York the well known charter that bears his name.5 By this charter
1 3 Col. Doc. 369.
2 3 Col. Doc. 390.
3 N. Y. Col. Mans. Council Minutes, vol. v. p. 48.
4 8 Col. Doc. 379, 390.
5 Kent's Charter and note, 41-209.
1
33
JUDICIAL ORGANIZATION OF THE STATE.
it was provided that the inhabitants of each ward in the city should elect annually one alderman, one assistant alderman, and one constable; and that the mayor, recorder and sheriff should be appointed by the governor and council, and the high constable by the mayor. The mayor, recorder, and any three or more of the aldermen, with any three or more of the assistants, were created a common council, which, when duly convened, was authorized to pass laws and ordinances for the government of the city. The mayor, recorder and aldermen, or any three of them, of whom the mayor or recorder were required to be one, were authorized to hold within the city, a court of common pleas, upon every Tuesday, for the trial of all actions of debt, trespass, or trespass upon the case, detinue, eject- ment, or other personal action, according to the rules of the common law and
the acts of the general assembly of the province; and it was provided that the mayor or recorder, or three or more of the aldermen, not exceeding five, should be justices of the peace, and any three, of whom the mayor or recorder were re- quired to be one, were empowered "to hear and determine all manner of petty larcenies, riots, routs, oppression and extortions, and other trespasses and offences in the city."
Up to the time of granting this charter, there was united in the mayor's court, as had formerly been the case under the Dutch, the twofold function of a council or board, for the regulation of the municipal affairs of the city, and of a court of justice. Matters, whether legislative or judicial, came before the same body, and no distinction was made, except that it was usual, after the business of the court was gone through with, to attend to municipal affairs. By the charter, however, a separation was made between the legislative and judicial functions of the mayor, recorder and aldermen, and as respects their judicial powers, there was a further separation between the powers they possessed, as criminal magistrates, and those which they exercised as judges in civil cases. Three tribunals were accordingly organized, each composed of the same persons, but each tribunal having duties assigned to it wholly distinct and different from the others. These were the common council, the mayor's court, for though called in the charter the court of common pleas, it still retained its former title, and the sessions. In the common council was vested exclusively the power of passing laws and ordinances for the government of the city. The mayor's court was for the trial of civil actions only, and under the provisions of the charter authorizing the mayor, recorder and aldermen to try criminal offences, a criminal tribunal was organized, at first denominated the quarter sessions, and after 1688, the court of sessions.1 As has been previously stated, a court of sessions was established in the city by the act to settle courts of justice, which, like the same courts in the other counties, had both civil and criminal jurisdiction. It was in view of the establishment of this additional court in the city, and from the desire to have a per- manent law officer attached to the corporation, who should not go out upon the annual change of magistrates, that the mayor and aldermen applied to Dongan, in 1683, to appoint a recorder. Immediately after the appointment of Graham, this court was organized by the mayor, recorder and aldermen, the recorder presiding as the chief officer, and as it sat but once every three months, while the mayor's court sat every two or three weeks, it was deemed a court of a higher grade, in which at first,
1 Rec. of N. Y. Quarter Sessions, vol. i. Rec. of N. Y. Court of Sessions, 1688.
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HISTORY OF THE COURT AND OF THE
the more important civil actions were brought, and the principal criminal offences tried. It continued in existence three years, but by that time it was apparent that the mayor's court and the oyer and terminer was sufficient for the dispatch of the legal business of the city. The circuit of the oyer and terminer was held in the city twice a year, and as the mayor's court had equal jurisdiction with the court of ses- sions, with the advantage of sitting more frequently, there was comparatively little for the court of sessions to do. It was not, therefore, embraced in the general pro- vision made by the charter, nor yet was it repealed. The act creating it had been passed by the general assembly, had been signed by Dongan before he granted the charter, and subsequently ratified by James. It was not, consequently, in Dongan's power to repeal it, but with the general acquiescence of all parties, the court seems to have been dropped, and the quarter sessions, as a court of exclusive criminal juris- diction, substituted in its stead.
In 1688, Dongan, the most independent and liberal minded of all our governors, was recalled, and lieutenant governor Nicholson left in charge of the province. At the close of the same year, William Prince of Orange landed in England, James aban- doned bis throne, and the government of William and Mary was established. When the news of this event reached New York, the populace, apprehensive that the lieu- tenant governor and his council were unfriendly to the Prince of Orange, and ex- cited by a rumor that Nicholson designed to massacre the Protestants, and declare for James, armed themselves, and under the direction of Jacob Leisler, took posses- sion of the government by force, and Leisler, after organizing a council, and pro- claiming William and Mary, held the province, and administered its affairs until the arrival of Governor Sloughter, in 1691. During the twenty one months of Leisler's administration he issued several commissions for courts of oyer and terminer at New York, and upon Long Island, and appointed Peter De Lanoy a member of his coun- cil and the mayor of the city, chief judge of the oyer and terminer.1 The adherents of William and Mary were divided into two factions-the Dutch and French party- headed by Leisler and the English Episcopalians, known as the anti Presbyterian party, in which were included all who had been in power under Dongan or Nichol- son; and the latter having secured the confidence of Sloughter, Leisler and Mil- bourne, his son-in-law and chief adviser, were brought to trial before a special court of oyer and terminer, for alleged usurpation of the government, convicted and executed.2
By his commission from William and Mary, Sloughter was authorized to convene a representative assembly, which he accordingly did, and this body met in the beginning of 1691. They do not appear to have understood the precise effect of the act of settle- ment, even if they were at that time informed of its adoption ;3 and being, moreover, under the erroneous impression that none of the acts of the general assembly of 1683 and 1684 had been affirmed by James, and were therefore null and void, they passed an act for the general judicial re-organization of the province.4 This act changed the
1 2 Doc. Hist. of N. Y. 36, 164.
2 Papers in 2 Doc. Hist. of N.Y. from page 3 to 250. 1 Dunlap, 150 to 211. 1 Smith, 90 to 111.
3 Hume, chap. Ixxi. Journals of Assembly of 1691.
4 This act will be found in the first edition of the colonial laws, printed by Bradford, in 1694; the only perfect copy of which now supposed to exist is in the library of a private gentleman in New York. It has also been reprinted in the appendix to 2 Paine and Duer's Practice, 715.
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JUDICIAL ORGANIZATION OF THE STATE.
town courts into courts of justices of the peace, created a court of common pleas for each county, except the counties of New York and Albany, to be held by a judge commissioned by the governor, and courts of general sessions of the peace for each of the counties, and made the same provision for a court of chancery, which had been made by the act of 1683. But the most important feature in this act was the crea- tion of the present supreme court. It declared that a supreme court of judicature should be established In the city of New York, to be composed of a chief justice and four assistant justices, to be appointed by the governor, and that it should have cognizance of all actions, civil, criminal or mixed, as fully and amply as the courts of king's bench, common pleas or exchequer in England, and should have power to establish rules and ordinances, and to regulate the practice of the court. By this act, courts of general sessions of the peace were organized as criminal tribunals, distinct and separate from the courts of common pleas, which were courts for the trial of civil actions only. In all the counties, except New York aud Albany, the courts of general sessions of the peace were held twice a year; in Albany three times a year; and the court of sessions in the city of New York was held four times a year. The civil jurisdiction of the court of common pleas was essentially the same as that of the former court of sessions; and the term of the court began on the day after the sitting of the general sessions-the terms of both courts being limited to two days each. By this act, the court of oyer and terminer was abolished ; but in conformity to the organization of the courts of Westminster, its name was re- tained, to designate the criminal circuit of the supreme court.
Immediately upon the passage of this act, the supreme court was organized, and Joseph Dudley appointed chief justice,1 Thomas Johnson second judge, and William Smith, Stephen Van Cortland and William Pinthorne, associate justices. Thomas
1?
1 JOSEPHI DUDLEY, the first chief justice of the state, was the son of Governor Dudley of Massa- chusetts. Ile was born in 1647, and graduated at Harvard. Having been designed by his parents for the ministry, he studied divinity, but the limited sphere and unostentatious life of a New Eng- land clergyman, at that period, presented no attraction to a man of his worldly views and ambi- tion. He accordingly gave up divinity, entered into political life, and was shortly after elected a delegate from Roxbury. In 1632, he was the agent of the colony of Massachusetts, in England, and upon the union of Massachusetts and New Hampshire under one government, in 1635, he returned to Boston, and was made, under Andros, president of the governor's council; at which period he is enumerated by Dongan, as among a very few who might be relied upon as loyal and well affected to the king. Throughout the administration of Andros, he supported all the measures of that unpopular governor ; and as he presided as judge upon political trials, was especially service- able in enforcing the despotic colonial policy of James. When the people of Boston rose against the government of Andros, upon receiving intelligence of the revolution in England, of 1683, and of the declaration of the Prince of Orange, Dudley, with other obnoxious persons, was thrown into prison. To a more scrupulous or less indefatigable man, the downfall of James, and the part he had played under his government, would have cut off all hopes of immediate advancement; but Dudley was no sooner released from prison, than he went to England, and ingratiated himself so fully into the favor of the new ministry, that in little more than a year he received an appoint- ment as a member of the council for New York, with the promise of a judicial station when the government of Sloughter should be fully established. Upon his arrival in New York, at the close of 1690, he at once joined the anti Leislerian party, and upon the arrival of Governor Sloughter, in 1691, he was placed at the head of the special commission of the oyer and terminer, for the trial of Leisler, which he conducted as chief, or principal judge. After the passage of the act above re- ferred to, he was appointed chief justice; but the Leislerian party having obtained the mastery in 1692, he left the province, and was shortly thereafter removed by Governor Fletcher from the office of chief justice, and Chief Justice Smith appointed in his place. This second reverse of
D
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HISTORY OF THE COURT AND OF THE
Newton was appointed attorney general, but he held but for a month, and was suc- ceeded by James Graham, recorder of New York, who had previously filled the office.1
This act took effect but for two years ; but in the following session of the general assembly, in 1692, an act was passed renewing it for one year longer, with an addi- tional provision, that the supreme court should sit twice every year in the city of New York, on the first Tuesdays of April and October, and continue in session five days; and that one of the justices of the court should annually go the circuit, and hold a court at least once a year, if need should require, in the other counties.2
As thus organized, with a fixed tribunal established at New York, and an annual circuit made by one of the justices through the other counties, the court was con- tinued by successive re-enactments of one or two years each, until 1698.
In that year the act of renewal expired. Governor Bellamont called the atten- tion of the assembly to the fact; but, becoming dissatisfied with its proceedings, he dissolved it before any action was taken. Another assembly was convened in 1699,
fortune, however, was but of temporary duration. He again went to England, in 1693, and in a very short time became a member of parliament for Newtown, where, some years afterwards, he made strenuous but ineffectual opposition to the reversal of Leisler's attainder. He sat in par- liament for eight years, during which time he was appointed lieutenant governor of the Isle of Wight. He had now reached a position that might have satisfied a man of ordinary ambition ; but, to quote the language of a New England writer, he preferred to be the first man in New England, to any subordinate position in the mother country ; and, accordingly, in 1702, he received a commission from Queen Anne, appointing him governor of Massachusetts. He was governor of Massachusetts for thirteen years, and died in 1720, after a life marked by many vicissitudes and changes, at the age of 72. Governor Dudley, or, as he is usually designated by Massachusetts writers, the second Governor Dudley was, in an intellectual point of view, a highly accomplished man. He had the advantage of an excellent education at his outset in life; had studied divinity and law ; afterwards, and in an age distinguished for its activity in metaphysical inquiries, he was attracted to and devoted much of his time to the cultivation of philosophy. His love of study, however, and the extensive knowledge he had acquired, had little effect upon his character, for he was essentially a wordly minded man, with whom the possession of power and of exalted station was the chief end and object of life. Struggling throughout the principal part of his career for power and place, he was not over scrupulous as to the means he employed. Cringing with low servility to those he despised, and using the information he possessed, secretly, to the disad- vantage of the interests of the colonies, when he expected thereby to forward his own. The thir- teen years that he was governor was the most useful and blameless period of his life ; but his antecedents had been such, that his government was bitterly assailed by his enemies; unfounded charges of corruption were made against him, and he was frequently referred to as mainly respon- sible for the guilt of Leisler's blood, and held up to publie execration as a common murderer. It is to be taken in vindication of his character, that if he was fiercely assailed by his enemies, he was warmly supported and steadfastly adhered to by his friends ; and that some of his good quali- ties were so prominently conspicuous, as to be fully acknowledged by those who were opposed to him. As a public man, he was exacting and ceremonious ; diligent in the discharge of the duties of his station, and disposed to administer publie affairs uprightly, where it did not conflict too much with his own interests. Throughout his life he was scrupulous in the observance of the outward conventionalities of religion ; and in the latter part of it, had the reputation of being, and may have been, a sincere Christian. In all that belongs to the domestic duties, and in the more private relations of life, his conduct would seem to have been unexceptionable; and his character is very well summed up by the remark of Hutchinson, that he had as many private virtues as was con sistent with a man of his wordly aims and aspiring ambition. 3 N. Y. Col. Doc. 364, note. 1 Smith, 123. 2 Hutchinson's Mass. 193. Allen's Biographical Dict'y, 350. 2 Bancroft, 427, 445.
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