USA > New York > Historical sketch of the judicial tribunals of New York from 1623 to 1846 > Part 6
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1 8 Col. Doc. 716. 1 Smith, 116. 1 Dunlap, 213.
2 Mans. Laws of 1692, in N. Y. State Library. This act is printed in Bradford's first edition of the laws, 1694.
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JUDICIAL ORGANIZATION OF THE STATE.
and a bill for the further continuation of the courts was passed, with alterations and amendments, and sent to the governor.1 Bellamont was of opinion that the original act had been designedly altered by the assembly, as a party movement, by the insertion of inconsistent amendments, and of provisions repugnant to the laws of England, for the purpose of compelling him to reject it, that the province might be left without any judicial tribunals, and the responsibility thrown upon him. He refused his assent, and the assembly declining to take any further action in the matter, immediately adjourned. The province was now without courts, and the assembly appeared to have gained their object; but in all the governor's commis- sions, from the time of Dongan, there was a general provision authorizing them to erect and establish courts. A provision to this effect existing in Bellamont's com- mission, he called in Chief Justice Smith, and Graham, the attorney general, and advised with them as to the extent of his powers. They were of opinion that the king could not establish courts of justice by his own authority, without the concur- rence of parliament, and that what he was incapable of doing himself, he could not delegate to his governors. But Bellamont had little confidence in the opinion of either Smith or Graham, neither of whom had been educated as lawyers; and he replied, that as all the commissions were prepared under the supervision of the attorneys general, and were passed under the eyes of the chancellors, such a provision would not have been inserted or suffered to remain, unless the power formed a part of the king's prerogative ;2 and accordingly, on the 15th of May, 1699, he published an ordinance, with the concurrence of his council, re-establishing all the courts, precisely as they had existed under the amendatory act of 1692, and the acts in continuation.3
Lord Bellamont died in 1701, and in the interval between his death and the arrival of Lord Cornbury, the government was assumed by Lieut. Governor Nanfan. Be- fore Cornbury's arrival, William Attwood came out as chief justice, having been appointed to the office by the king, bringing with him a commission from the lords of the admiralty, authorizing him to act as judge in admiralty.4 Though pro- vision was made for a court of chancery by Bellamont's ordinance, no court was established.5 Bellamont was anxious to erect one, but he seems to have been doubt- ful in respect to his powers, as he wrote home that many were likely to be ruined for the want of such court; but that he could not hold one without the presence of five of his council, and that that number rarely attended." Accordingly, the lords of trade sent out an order to establish the court, upon receiving which, Nanfan, on the 2d of April, 1701, published an ordinance erecting a court of chancery, to be com- posed of the governor and council, or any two of the board, to be held on the first Thursday of every month; and he appointed a register, clerks and masters."
This ordinance was strongly opposed by the assembly, who denied the right of the king to erect a court of equity in the province ; and in the following year a peti- tion was presented by William Hallett and others, to the assembly, complaining of the erection of the court, of the exorbitant fees taken by its officers, and of its arbi-
1 Jour. of Ass. 1698 and 1699.
2 4 Col. Doc. 515.
9 This ordinance will be found in the appendix to 2 Rev. Laws of 1818, No. 5.
4 4 Col. Dec. 1000. Jour. of Ass. 1701-2. 1 Smith, 163.
5 4 Col. Doc. 828.
6 4 Col. Doc. 884.
7 4 Col. Doc. 885. 1 Smith, 158. 1 John, Ch. R. preface.
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HISTORY OF THE COURT AND OF THE
trary and unjust decrees.1 On the arrival of Lord Cornbury, in 1702, an order was made in council suspending the court, until the governor and council should deter- mine upon such a regulation of its proceedings as would be "most agreeable to justice and equity ;" and the matter was referred to Chief Justice Attwood, and De Peyster, the second justice of the supreme court, who, after having the subject before them for nearly two years, sent in a report, including a table of fees, upon the re- ceipt of which, Cornbury published an ordinance, on the 7th of November, 1704, reviving and re-establishing the court, which he declared should be conducted there- after according to the method of the high court of chancery in England.2 Two sessions of the supreme court at the city of New York having been found insufficient for the dis- patch of public business, he also published an ordinance in the same year,3 directing that the supreme court should hold four terms a year, of five days each, in the city of New York, on the first Tuesdays in March, June, September and October, or at such other places as the governor and council might by proclamation appoint ; by virtue of which ordinance, the supreme court and the court of chancery were held down to the time of the revolution.
After Lord Lovelace came out as governor, in 1708, the opposition to the court of chancery was renewed. In that year the assembly resolved that the establishing of such a court, without the consent of the legislature, was contrary to law, without precedent, and dangerous to the liberty of the subjects ;4 and it would seem, that upon the governor's death, which occurred shortly after his arrival, and during the somewhat irregular administration of Ingoldsby, that the court again fell into dis- use. This was brought to the notice of the lords of trade and plantations, to whom the management of the colonies was chiefly entrusted, and when Governor Hunter was sent out in 1710, his attention was called to the subject ; and, shortly after his arrival, he re-established the court, appointing two masters, two clerks, an examiner and a register, and took upon himself the office of chancellor.5 This again roused the opposition of the assembly. They passed resolutions, declaring the illegality of the court, and sent a memorial on the subject to the lords of trade and plantations ; but it was followed by an answer declaring, that the erecting of a court of equity by the governor, with the advice of his council, was pursuant to the power granted by her majesty, under the great seal of Great Britain; and that the resolves of the assembly were very presumptuous, and a diminution of her majesty's royal preroga- tive, for that her majesty had a right to erect as many courts in the plantations as she should think necessary for the purposes of justice.6
While the most decided hostility to the court was thus manifested by the inhabit- ants of New York, a very different feeling prevailed among the people of New Jersey, where no such tribunal existed. At this very period, 1713, Hunter, in writing home to the lords of trade and plantation, says, that the people of the Jerseys " beg and crave for a court of chancery." The true ground, no doubt, of the hostility to the court in New York, was the one assigned many years afterwards by Governor
1 N. Y. Jour. of Ass. 1702.
2 2 Rev. Laws, 1813. App. xiii.
3 8d of April, 1704, 5 Col. Doc. 409. 2 Rev. Laws, 1813. App. No. 6.
4 Jour. of Ass. of N. Y. 1704, p. 224.
6 Lon. Doc. xxiv. SS0. 1 Smith, 220.
6 Pamphlets of N. Y. Hist. Soc. series C. No. 2. 1 Smith, 220. 1 Dunlap, 280.
7 4 Col. Doc. 861.
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Cosby.1 The quit rents reserved upon the sale of all lands, belonged, as a preroga- tive to the crown; and, through the neglect of the governors, who were mainly oc- cupied in enriching themselves, these rents had been suffered to run greatly in arrear. When the diminution in the king's revenue began to be sensibly felt, orders were sent out to collect the quit rents, and the court of chancery and the exchequer branch of the supreme court were resorted to, to compel payment. If the rents had been collected as they had fallen due, payment would have been readily made ; but the people had enjoyed their immunity so long, and the rents had accumulated to such large sums, that the payment of what had accrued was looked upon as a burden, and the attempt to enforce it awakened a feeling similar to that so recently exhibited in the late anti-rent movement. There was, in addition to this, another reason for the prevailing hostility to the court of equity. The governors, almost with- out an exception, were men of impaired fortunes, or adventurers, who accepted the appointment in the hope of enriching themselves. As the salary was small, the only means of making the office profitable, was by granting patents of land, and re- ceiving from the grantee a gratuity, or, what in this day would be called a bribe, in proportion to the value or extent of the tract granted. In this way immense tracts had been disposed of-some of them, to use the language of an authority of the day, " as big as provinces "2-a few of the governors, like Clarke, amassing large fortunes. The manner in which these grants were made, was undoubtedly a fraud upon the rights of the crown; and, as fears were entertained that proceedings might one day be instituted by the attorney general, in the court of equity, to invalidate these titles, nearly all the large landed proprietors of the colony had a common interest to get rid, if possible, of this dreaded jurisdiction. In the long controversy respecting the equity courts, these reasons were not ostensibly put forth; but that they lay at the bottom of the movement, at least at the beginning of it, there is little reason to doubt.
From 1713 to 1727, the court of chancery was regularly continued; but in 1727, several important decrees made by the court, gave rise to loud and general com- plaint ; and at the meeting of the assembly, the committee on grievances reported, that through the violent measures taken in and allowed by the court, several persons had been ruined, others obliged to abandon the colony, and that many had been re- strained from departing from it, by imprisonment and by excessive bail, even when no suits were depending against them, and that they were of opinion that the exor- bitant fees countenanced and exacted by its officers and practitioners, had made it the greatest grievance and oppression the colony had ever felt; and, after passing a resolution, declaring the illegality of the court, they resolved, that at their next meet- ing they would prepare and pass an act, declaring and adjudging all orders and ordi- nances, devices and proceedings of the court, to be null and void.3 The leading man in this movement in the assembly was the speaker, Adolph Phillipse. He had re- cently lost a suit in the court of chancery ; and Governor Burnett, as chancellor, had signed the decree against him but two days before the passage of these resolutions. Burnett, indignant that a branch of the legislature should allow themselves to be in- fluenced against the court by a defeated party to a suit, dissolved the assembly ;
1 Lon. Doc. xxiv. 880.
2 Lon. Doc. xxiv. Morris Letter.
3 Journals of Col. Assembly, for 1727. 2 Smith, 280, 281.
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HISTORY OF THE COURT AND OF THE
and, in assigning his reasons for doing so, stated, that Phillipse had been a member of Hunter's council when the court was re-established, and concurred in the act ; that, if the object was really to correct abuses in the court, some measures should have been proposed; but that the passage of the resolution in a clandestine manner, at the end of the session, was designed to bring him, the governor, into discredit, and to impress the people unfavorably towards the government.ยช It certainly had that effect; for the excitement produced was so great, that, in the spring following, the whole matter was referred to a committee of the council, which resulted in the publication of an ordinance correcting many of the abuses of the court, and so ma- terially reducing the fees, that, says Smith, writing forty years afterwards, " the wheels of the chancery hath ever since rusted upon their axis-the practice being contemned by all gentlemen of eminence in the profession."?
Though provision had been made in all the previous acts and ordinances, for the appointment of a chancellor, none appears to have been commissioned; but when the governor did not act in person, the decision of matters in equity were left to the chief justice or his associates, who were generally members of the council, or to one of these judges, with other members of the council, who were of the legal pro - fession. The act of 1691 declared that the governor might be assisted in the court of chancery, by such members of the council as he might think fit and necessary ; and by Nanfan's ordinance of 1701, the court was to consist of the governor and his council, or any two of the board. Lord Cornbury sat occasionally as chancellor, with Attwood to assist him ;3 but his successor, Governor Fletcher, would have nothing to do with the judicial determination of any thing affecting property, until the matter came regularly before him, upon appeal, or by writ of error.4 During the ten years that Hunter was governor, he sat constantly as chancellor. Upon re- establishing the court, he wrote to the attorney general in England respecting his powers, who advised him that he was the sole judge of the court; and throughout his term he presided alone," as did also his successor, Governor Burnett.6 Burnett, who was the son of Bishop Burnett, the celebrated author of the "History of his Own Times," took especial pleasure in sitting as chancellor. He was no lawyer ; but being a man of extensive reading, of good sense, and of a cultivated literary taste, he fulfilled his duties as chancellor respectably. Smith says, that no governor before him ever did so much business in the court; but, according to the same authority, he had one great defect, which he frankly confessed himself, that of acting first, and thinking afterwards.
Montgomery came out as governor in 1728. He was a soldier by profession ; had been a courtier and a member of parliament, and with an honest acknowledg- ment of his unfitness to discharge the duties of such an office, he refused to act as chancellor. This refusal was highly gratifying to the assembly, and strengthened the opposition to the court. As soon, however, as it was known in England, a spe- cial order was sent out, directing him to assume the duties of the office. He com-
1 Lon. Doc. xxiii. 5 Col. Doc. 847. Pamphlets of the N. Y. Hist. Soc. series C, No. 2, Appendix.
2 1 Smith, 280.
8 4 Col. Doc. 885, 923, 1010.
4 5 Col. Doc. 409.
5 Lon. Doc. xxiv. 880.
5 Lon. Doc. xxiii., xxiv. 880. 5 Col. Doc. 847.
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JUDICIAL ORGANIZATION OF THE STATE.
plied, but with great reluctance and aversion, frankly confessing to the practitioners before him that he was entirely unqualified for the station. In fact, he never delivered but one decree, and made but three orders, which, both as to matter and form, he left to his council to settle.1
The propriety of hearing equity business on the exchequer side of the supreme court, had frequently been suggested, and Chief Justice Morris encouraged the law- yers to bring equity cases before him,2 but no one felt willing to take a decisive step as long as the governor saw fit to act. On the death of Montgomery, however, a meeting took place between the lawyers and the judges. It was thought that the people would be better satisfied to have their rights determined by competent and sworn judges; and the judges concluding that they had power to hear equity mat- ters on the exchequer side, several bills were filed in the supreme court ;3 but Rip Van Damm, who, as oldest counsellor, assumed the administration of the govern- ment, received peremptory instructions from England to act as chancellor,4 which he did until the arrival of Governor Cosby. The three governors thereafter, Cosby, Clarke and Clinton, acted as chancellors; and during the several years that Chief Jus- tice Delancey was lieutenant governor, he sat as chancellor with the puisne judges of the supreme court, or members of the council as assistants." He was succeeded by Sir Charles Hardy, who came out in 1753. Hardy was by profession a seaman; and Smith describes6 the perplexed state in which he found himself, immediately after his arrival, when four eminent counsel, Murray, Nicolls, Smith, the historian, and his father, appeared before the governor to argue a demurrer to a bill in equity : "Gentle- men," said Hardy, "my knowledge relates to the sea ; that is my sphere. If you want to know when the wind and tide will suit for going down to Sandy Hook, I can tell you ; but what can a captain of a ship know about demurrers ? If you dispute . about a fact, I can look into the depositions, and perhaps tell who has the best of it ; but I know nothing of your points of law." He wanted them to arbitrate the mat- ter. This they would not consent to, insisting that the determination of the demur- rer was a branch of his office, when, to his great relief, Chief Justice Delancey arrived who heard the argument and sustained the demurrer.7
Hardy undertook to hear a case alone, as it involved principally questions of fact; but he succeeded so badly, that, in the next case, he called in the three justices of the supreme court to assist him.8 In the address of the assembly, in 1737, it is said, that " few of the governors had talents equal to the task of chancellor, and so it was executed accordingly-some of them being willing to hold the court-others not, according as they happened to be influenced by those about them." As to the man- ner in which proceedings were conducted, or as to the correctness of the decisions of the governors, or of those who assisted them in the determination of matters in equity, but little information can now be gathered, as but few records of the court of
1 Lon. Doc. xxiv. 102, 108. 5 Col. Doc. 850. 1 Smith, 282, 233. 1 Dunlap, 292, 293.
2 Lon. Doc. xxiv. 880, Cosby's Letter.
3 Pamphlets in N. Y. Hist. Soc. series C. No. 2, p. 29.
4 Lon. Doc. xxv. 198. Doc. 102.
6 2 Dunlap, Appendix, C. L. xxix.
6 2 Smith, 274.
7 Tingley v. Aldwick, Admx., &c., Rec. in Chancery, No. 54.
8 Rec. No. 54, p. 64.
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HISTORY OF THE COURT AND OF THE
chancery, before the revolution, exist, or at least could be found, after a diligent search, and the few that remain are in a very imperfect condition.
In the instructions given governors Sloughter and Fletcher, under William and Mary, they were required to see that a court of exchequer should be convened, at such times as should be needful, and both of them were required to ascertain and inform the board of trade and plantations whether the service of the crown required that a permanent court of exchequer should be established.1 Whether they took any measures, or whether any such court was held during the ten years that inter- vened from the arrival of Sloughter to the death of Bellamont, is not known. Smith says that Nanfan erected a court of exchequer; but this is evidently a mistake. An order in council was made in 1702,2 reciting, that whereas there were several mat- ters depending in the court of exchequer, which could not be finished by the time limited in the ordinance for establishing courts of judicature; that an ordinance should be prepared empowering the court of exchequer to sit and determine all mat- ters which then were, or might thereafter be commenced, or depending before it, until the same should be finished and ended. This had reference merely to the accu- mulation of cases on the exchequer side of the supreme court ; the terms of that court, as fixed by Bellamont's ordinance, not continuing long enough to enable the judges to dispose of the exchequer business; and, in pursuance of this ordinance, Chief Justice Attwood, and the two puisne judges, held sessions of the exchequer side, at a time different from the regular sessions of the supreme court; though, in a short time, the practice appears to have fallen into disuse, or the ordinance may have been repealed; for there appears to have been no proceedings in exchequer thereafter, for thirty years.3
In 1733, a dispute arose between Rip Van Damm and Governor Cosby, respect- ing a mutual claim upon the salary which Van Damm had received, while acting as governor ; and as it involved a question of account, cognizable only in a court of "equity, the governor, in virtue of his office as chancellor, was cut off from bringing a suit in the court of chancery. The attorney general, consequently, filed a bill be- fore the judges of the supreme court, as barons of the exchequer, and this brought up the right of the crown to create a court of exchequer, and revived all the former agitations against the establishment of courts of equity. Van Damm engaged Messrs. Alexander and Smith, two of the most eminent lawyers of the time, who plead to the jurisdiction, insisting, among other objections, that the supreme court had no power to proceed in equity. The question was argued at length, and the plea overruled-the two puisne judges, Delancey and Phillipse, concurring, and the chief justice, Lewis Morris, dissenting. This decision, which was pronounced before a crowded court, was received with a general burst of indignation. The chief justice delivered a long, dissenting opinion, in writing ; the governor demanded a copy, which was sent; but Morris, to prevent misrepresentation, published the opinion in the newspapers. This gave offence to the governor. Morris, who had been twenty years chief justice, was removed, and Justice Delancey appointed in
1 3 Col. Doc. 688, 821.
2 6th April, 1702.
3 N. Y. Hist Coll. 355. Pamphlets of N. Y. Historical Soc. series C. No. 2 containing copies of records and entries before Attwood, C. J., and De Peyster and Walter, in Exchequer.
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JUDICIAL ORGANIZATION OF THE STATE.
his place.1 This decision, and the removal of Morris, augmented the excitement which already existed, and divided the province into two violent factions-the demo- cratic, or popular one, led by Van Damm, and " the people of figure," who took sides with the governor. The right of the supreme court to exercise jurisdiction in equity, was brought before the general assembly at its next session. Petitions were presented for the repeal of the court of exchequer, as a branch of the supreme court, and for the general re-establishment of all the courts, by an act of the assembly. The governor had a majority ; but the opposition was so formidable, from the men that composed it, and the strength derived from the popular support, that a resolution was agreed to, inviting the two most prominent lawyers of the respective parties to argue the question before the bar of the house. Mr. Smith, the father of the histo- rian, was heard on the democratic side, and Mr. Murray, the oldest member of the bar, in reply, in an argument evincing on both sides a great deal of ability, and an amount of research and antiquarian information that was scarcely to have been ex- pected ;2 and, as generally happens in the argument of difficult legal questions before a popular body, the members, according to Smith, were so confounded, that they de- termined to postpone the matter until they could take the sense of their constituents.
The personal bitterness which the controversy provoked, found a ready expression in the public newspapers; and the organ of the popular party, which was published by a printer named Zenger, gave especial offence to the leaders of the party in power, by making them the subject of satiric effusions in verse. - The offensive bal- lads were directed, by an order in council, to be burned by the public hangman ; and an information was filed in the supreme court against Zenger, for the publica- tion of other articles, reflecting on the government. The attention of all parties was now drawn off to the prosecution against Zenger. Messrs. Smith and Alexan- der, as the legal champions of the popular side, volunteered in his defence ; and feeling that he must be convicted of libel, if the case was brought to a trial, they excepted to the validity of the commissions of the judges. This was treated by Chief Justice Delancey as a high affront, and Smith and Alexander were stricken from the rolls. On the day of trial, however, Mr. Hamilton, an eminent lawyer of Philadelphia, appeared for Zenger, and by his skill in managing the court, and by insisting upon the doctrine, not then established in England, that in prosecutions for libel, the jury were the judges of the law and the fact, he secured, against the charge of the chief justice, the acquittal of the printer. This was hailed as a great popu- lar triumph, and Smith and Alexander followed it up by renewing the attack upon the court of chancery. In an equity case, then pending before the governor, they excepted to his right to sit as chancellor; and the exception being overruled, they again brought the question before the assembly.3
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