USA > New York > Historical sketch of the judicial tribunals of New York from 1623 to 1846 > Part 7
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The objection made to the court of chancery, that it was not in the power of the crown to erect such a court without the consent of the legislature, applied with
1 Lon. Doc. xxv. 9. 5 Col. Doc. Cosby and Morris Letters. 2 Smith, 8. 1 Dunlap, 296. Me- moir of Chief Justice Delancey, 4. N. Y. Doc. Hist. 627.
2 Pamphlets of the N. Y. Historical Society, series C. Nos. 1 and 2. 1 Smith, 371, and 2 Smith, 17.
$ 5 Col. Doc. Morris and Crosby's Letters. 2 Smith, 24-28. 1 Dunlap, 300. N. Y. Hist. Soc. Col. 2d series, 47. Mr. Butler's Discourse. Memoir of Delancey. 4 Doc. Hist. of N. Y. 630. Howell's State Trials, vol. xvii. 75. Jour. of Col. Assembly, 1732 to 1737. Bradford's American Weekly Mercury, Nos. 883, 884, for 1735.
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HISTORY OF THE COURT AND OF THE
equal force to the supreme court, for both tribunals existed by virtue of the same ordinance. This was strongly put by Murray in his argument before the house. The supreme court had continued under Bellamont's ordinance for nearly forty years ; and to declare that it had existed without authority, and that all its proceedings were null and void, would have been to disturb titles, and beget a multitude of questions, which an act of the legislature affirming the validity of its proceedings might not be sufficient to settle. So little bad been done in the court of chancery, or in the court of exchequer, that the validity or invalidity of either of these courts was comparatively unimportant. But the supreme court was the principal law tribunal of the province, and to disturb all its proceedings, would have been attended with serious consequences. This was felt by Smith and Alexander, and the other leaders of the party with whom they acted. Upon Zenger's trial, they carefully avoided taking any exception to the validity of the court, thinking to gain their object by excepting to the judges' commissions. As they expressed it, they admitted the being of the court, but denied that the judges had been duly commissioned to sit in it. Though they were cut off from discussing the regularity of the appointment of the judges by the high handed measure of Delancey, their object was gained by the subsequent acquittal of Zenger. But the abolition of courts of equity had now become a party question. As political leaders, they were bound to pursue it, though conscious that nothing could be done. Their motion before the governor, as chancellor, was over- ruled; and had they appealed, the governor and his council were the court of re- view. An appeal lay from that tribunal, it was true, to the king, but the matter had already been brought to the attention of the home government, and its decision had been adverse. There was no hope, therefore, in pressing it as a legal question, and nothing could be accomplished by an act of the assembly. The result of Zenger's trial had produced many changes in that body, and the opposition had now a majority ; but had the assembly passed an act abolishing the court, it could be of no effect with- out the concurrence of the governor. In this dilemma, a few of the more sagacious of the leaders of the opposition tried to effect a compromise. They knew that equi- table jurisdiction must be vested somewhere, and that it was of little practical im- portance in what tribunal it was lodged. They proposed, therefore, that an act should be passed, with the concurrence of the governor, reinstituting all the courts precisely as they stood, and reaffirming all their previous proceedings, so that the courts should exist thereafter by the authority of the legislature, instead of being left to depend for their validity upon the ordinances of Bellamont and Cornbury. Cosby, however, now felt his advantage. He would not consent ; and the assembly, finding that nothing could be accomplished, both parties united in an unanimous re- quest that he would dissolve them, and order a new election, to ascertain the wishes of the inhabitants of the province. But Cosby's pride was aroused. He had been personally assailed through the public newspapers, and in private circles; and this he also refused. Indignant at his refusal, the assembly passed a resolution against the court of chancery, similar to those already referred to, and adjourned the session for four months.1 The question now seemed farther removed from settle. ment than ever, when an unexpected event changed the whole course of affairs. In the interim Cosby died. He was succeeded by Clarke, a member of the council,
1 2 Smith, 32. Jour. of Col. Assembly, 1736.
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JUDICIAL ORGANIZATION OF THE STATE.
as acting governor, an able, prudent and conciliatory man. Clarke dissolved the as- sembly, after an existence of ten years ; and though the next assembly were hostile to him, and in reply to his address, renewed the subject of the courts, he managed so judiciously as to calm the turbulence of party spirit, secured the popular support, and brought the leaders of the opposition into discredit, even with their own con- stituents. One of his first acts was to effect a reconciliation between the judges and Messrs. Smith and Alexander, who were restored to their professional position; and he afterwards kept the assembly busy by his active measures for improving the financial condition of the colony, and rescuing its internal affairs from the state in which they had been left by the neglect of his predecessors.
Other and more important matters began to engross the public attention. The Spanish war, and the events which shortly after led to the French and Indian wars, engaged the thoughts of the colonists, until the old agitation respecting the courts gradually passed from the public mind, and was at length entirely forgotten.
1.769
During the forty years that preceded the revolution, the court of chancery was regularly held, all the remaining governors continuing to preside alone as chancel- lors.1 It does not appear that the judges of the supreme court undertook again to hold a court of exchequer; but, singularly enough, a court so obnoxious to the popular party in the days of the colonists, was revived immediately after the revo- lution, as a branch of the supreme court.2 In 1770, the evil of allowing the gov- ernors to act as chancellors was put to the proof. It has been before stated that the governors, in addition to their salary, derived a large income from the fees or perquisites exacted upon granting patents for land. When Sir Henry Moore died, in September, 1669, a number of patents were left unexecuted, the fees upon which amounted to the large sum of £10,000. To secure this sum to himself, Lieutenant Governor Colden hurried through the business of passing the patents, and having completed it before the arrival of Moore's successor, he received the ten thousand pounds. When the new governor, Lord Dunmore, came out, towards the close of 1770, he demanded from Colden the one half of all the fees, perquisites and emolu- ments of the office, that had accrued from the date of his commission to the time of his arrival, which Colden refused to give up. Dunmore then directed the at- torney general to file a bill against him in the court of chancery, in which the governor was the sole judge, to recover back one half of the perquisites, which the governor directed should be filed, nominally, in the name of the crown, but in reality, for his own benefit. The suit was commenced, and Colden, after several counsel had declined, through fear of the governor's displeasure, retained James Duane, of whom we shall have occasion to speak hereafter. Duane, on behalf of his client, demurred to the bill; and when the case came on to be argued, Dunmore, unblushingly, took his seat in court to hear and determine the cause, as chancellor. Duane opened the argument, and showed, conclusively, that the suit could not be maintained, without, however, producing any effect upon the governor, and was replied to by the attorney general and by Smith, the historian; the latter, according to Colden, exhibiting an easiness of principles that enabled him to affirm, deny or pervert any thing, with a degree of confidence that
1 Rec. from 13th of May, 1749, to 81st of March, 1770.
2 Laws of 1786. Gaine's Ed. 241.
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HISTORY OF THE COURT AND OF THE
might easily deceive the unwary. After hearing the argument, Dunmore fixed the following Thursday for giving his decree, but when the day arrived, he put it off for a fortnight longer, and when that time expired, he was still unprepared to decide. According to Colden, he had resolved to decree against him, but consider- ing it prudential, and to avoid its being thought that he was interested, he then re- ferred the matter to the four judges of the supreme court, for their opinion, who unanimously declared that the demurrer was well taken in all its essential points, and that the suit could not be maintained. What the governor would now do, was looked forward to with much interest. Wholly destitute of integrity or principle, he would not decide in favor of Colden, and dismiss the bill, while if he made a de- cree sustaining it, an appeal might he taken to the king and privy council, where, even if the decree was affirmed, it would not benefit him, the suit having been brought on behalf of the crown; and, in any event, whether it was affirmed or not, the real motive that prompted the suit, and his own conduct in assuming to sit in judgment in a case instituted for his own benefit, would undoubtedly be exposed. He accordingly suffered the matter to remain undetermined, until, in about two months, he was superseded by Governor Tryon, when he left the colony, having been appointed governor of Virginia.1 In 1774, James Jauncey was commissioned by Governor Tryon as master of the rolls.ª He was empowered to hear and de- termine all cases in the court, with the general powers belonging to the master of rolls in England.8 But, throughout the whole of this period, that is, from 1735 until the revolution, the business of the court was exceedingly small, and its posi- tion, as a judicial tribunal, comparatively unimportant.4
At first, the judges of the supreme court were appointed by the governor, and held their office during his pleasure. Smith, the chief justice, who succeeded Dudley, though a sensible man, had not been bred to the profession ; and Bellamont had no confidence in his opinion respecting the law, in the many difficult questions that were constantly arising. He therefore urged the home government to send out an able lawyer as chief justice ; and, after repeated solicitation, Attwood was appointed.5 He received his appointment in England, in the shape of a warrant or mandamus, which was the usual mode of appointing judges for the colony ;6 requiring the gover- nor to commission him, by letters patent, to be issued under the seal of the province, and attested by the governor." And, as respects the chief justices, this mode of ap- pointment, with one exception, was adhered to thereafter. The motive that induced Bellamont to bring about this change, was a good one; but it produced an effect very different from what he intended; for Attwood was one of the worst chief jus- tices the colony ever had.
A leading object with Bellamont was, to obtain chief justices whose education and
1 The writer is indebted for this interesting piece of information to Mr. Bancroft, the historian. It is collected from copies of manuscript letters of Colden, obtained by Mr. Bancroft. There is also a brief reference to the matter in Jones' Memoir of Duane, in which Governor Monckton is confounded with Governor Dunmore. 4 N. Y. Doc. History, 644.
2 24th March, 1774.
8 6 Rec. of Coms.
4 Minutes of Court of Chancery, No. 54, 1754 to 1770.
5 Col. Doc. 441, 515, 550.
6 Stokes' View of the Constitution of the British North American Colonies, 261 to 267.
7 Recs. of Coms. ii. 144.
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JUDICIAL ORGANIZATION OF THE STATE.
social position in England would place them above the low arts and the corruption that prevailed in the colony ;1 but Attwood had scarcely been in office over a year, when he was removed by Lord Cornbury; and the charge of corruption was the principal reason assigned for displacing him. " Atwood," said Cornbury, in his letter to the home government, "in the execution of his office, as chief justice and as judge, in almost all cases that came judicially before him, by the general report of all present, did, openly, notoriously and most scandalously, and with wonderful partiality, in almost all cases in which his son was concerned as counsel, espoused, and, indeed, pleaded and gave countenance to such causes, and finally gave judgment on ye (son's) side; by means of which, justice was perverted, ye laws abused, and ye subjects exceedingly injured ; which recommended his son to great practice, and large sums of money was by parties given to him, to buy his father's favor."2 The puisne judges continued, as before, to be nominated and commissioned by the governor. They held their office, during his pleasure, while the chief justices held during the pleasure of the crown. A tenure so precarious was pro- ductive of very injurious consequences. It not only lessened the independence of the judges, but, as they were generally members of the council, and, consequently, mixed up with all the political questions of the day, they were liable to be removed, and many were removed, upon the change of parties. When Governor Clinton came into office, in 1746, an alteration was made. As a compliment to Chief Justice Delancey, he gave him a new commission, to hold during good behavior ;3 and similar commissions were afterwards granted to some of the puisne judges. The good effects of this change was soon apparent, in the open and long continued oppo- sition of the chief justice to the measures of the governor ; an opposition in which Delancey was sustained by the general voice of the colony, and which laid the foundation of the great popularity he afterwards enjoyed. As Delancey's commis- sion was granted by Governor Clinton, without a warrant from the crown, its validity and the tenure of the office was called in question, in 1753; but Sir Dudley Ryder, the attorney general, and Lord Mansfield, who was then solicitor general, to whom the matter was submitted for their opinion, replied, that though it should not have been granted contrary to the usage, still, as a grant, it was good in law, and could not be revoked without misbehavior.4 Upon Delancey's death, in 1760, doubts were entertained, whether the judge's commissions did not expire with the death of the king-an event which took place in the same year ; to remove which, and to render the judges thereafter independent, either of the governor or of the crown, an act was passed by the general assembly, to compel a reappointment of judges, who should hold their offices upon the tenure of good behavior. To this act, Lieutenant Gove- nor Colden refused his assent ; and when the time approached for holding the term, the judges demanded from him new commissions, upon the former tenure, of good behavior. This was refused, and the judges threw up their commissions. The chief justiceship, rendered vacant by the death of Delancey, was offered to Smith, the father of the historian, to hold during the pleasure of the crown; but he declined accepting it upon that tenure, and the question remained unsettled for some time;
1 4 Col. Doc. 515, 550.
2 Cornbury's Letter to the Lords of Trade. 4 Col. Doc. 1010.
3 3 Rec. of Coms. 420. 2 Smith, 194.
4 Lon. Doc. xxxi. 65.
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HISTORY OF THE COURT AND OF THE
until, finally, two of the old judges, Horsmanden and Jones, accepted commissions during the king's pleasure.1
In 1763, the general assembly sent a memorial to George III., requesting that, in accordance with the example set by William III., and in conformity with the recommendation contained in his own speech upon ascending the throne, that the appointment of the judges should be perpetual during their good behavior. The memorial was referred to the treasury board, of which Lord North was a member, and it was determined, doubtless through his influence, that the tenure of the chief justice should be the king's pleasure, as well as the amount and the payment of his salary ; and the judges remained thereafter entirely dependent upon the crown.2
It has already been stated, that after the creation of the court, in 1691, five judges were appointed. When Attwood came out, in 1701, all the puisne judges had ceased to act, and Attwood sat alone on the bench, until Abraham De Peyster, who had preceded him as chief justice, and Robert Walters, were commissioned as puisne judges. The act of 1691 had fixed the number of the justices at five, but Bellamont's ordinance made no provision as to their number, and three, probably, having been found sufficient for the wants of the province, no change was made for fifty six years, the court, during the whole of that period, consisting of a chief justice and two puisne judges. When Chief Justice Delancey was appointed lieutenant governor he did not resign his office as chief justice, but left the duties of the court to be per- formed principally by his two associates. This was found to be very inconvenient; and in 1758, a case arising respecting lands claimed by Trinity Church, of which the two puisne judges, Chamber and Horsmanden, were trustees or vestrymen, David Jones, the granduncle of the late Chief Justice Samuel Jones,4 was appointed by Delancey an additional judge of the court ; and it consisted thereafter of a chief justice and three puisne judges.
The salary of the judges was at no time sufficient to maintain them.5 Chief Jus- tice Dudley received £150 per annum; the second judge, Johnson, £100; the remain- ing judges and the attorney general had no compensation. When Attwood was appointed, his salary was raised to £300 ; the second judge's increased to £150, and the third judge was allowed £50.6 Montgomery, in 1729, reduced the salary of the chief justice to £250;7 but after the accession of Delancey to the office, it was restored to £300; and Gov. Tryon, after 1772, raised the salary of Chief Justice Horsmanden to £500.8 The smallness of the salary and the uncertainty of the tenure prevented the eminent lawyers from aspiring to the station; and the puisne judgeships were filled by men of affluence, but few of whom had any knowledge of law, or were men of much capacity.º
1 2 Smith, 832.
2 4 Bancroft, 429-441. 5 Id. 84. Stokes' View of the Constitution of the British North Ameri- can Colonies, 264.
9 4 Col. Doc. 923.
4 Rec. of Com's, v. 147-224.
5 Lon. Doc. xxxvi. 1.
6 5 Col. Doc. 104.
7 Lon. Doc. xxiv. 880.
· Lon. Doc. xlvi. 157.
9 Stokes on Const. of British North American Colonies, 264 to 267. 1 Smith. 4 Col. Doc. 441, 515, 550.
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JUDICIAL ORGANIZATION OF THE STATE.
From the manner in which lands had been obtained by grant and patents, a feudal aristocracy had sprung up in the colony, and the influence of dominant families was felt, either in controlling the administration of public affairs, or in active opposi- tion to those who had the mastery.1 From these families the puisne judges were usually selected, and as they were generally members of the council, the station was eagerly sought, from the dignified position it gave, and the political influence it commanded. While presiding in court, none of the judges wore any official cos- tume, as was customary at the time in England, in the West Indies, and in some of the other colonies ; nor was any distinguishing costume worn by the lawyers, though in other respects the forms and ceremonies of the English courts were adhered to.2
There were thirteen colonial chief justices : Joseph Dudley, William Smith, Abraham De Peyster, William Attwood, John Bridges, Roger Mompesson, Lewis Morris, James Delancey, Benjamin Pratt and Daniel Horsmanden, nearly all of them men of ability. Delancey, who filled the office for twenty seven years, was the most prominent, and perhaps the most distinguished. He was the son of a French Huguenot, who had amassed a large fortune in the colony. Having received a university education abroad, he became, at an early age, an active leader in public affairs, and continued, until the close of his life, to occupy a public station. In legal learning he was inferior to several prominent lawyers of the time, but he had remarkable natural abilities, upon which he depended, as he read but little, and was very averse to writing. Upon the bench he applied himself closely to the matter before him, and having a very retentive memory, acute perception and a sound judgment, he was enabled to dispose of elaborate cases with great readiness, and to the general satis- faction of the bar. Whatever he had read or had acquired in the way of legal learning, in the course of his experience, he could produce upon the instant. Having all his knowledge thus promptly at command, and with a mind so constituted, that it lost its force or its grasp of a subject in proportion as he delayed to deliberate, he was generally ready to act at once ; his first thoughts being always the best, express- ing himself, whether from the bench or in the halls of legislation, with clearness, brevity and point. As a political manager he was intrepid, prompt and sagacious, fertile in expedients ; in critical emergencies baffling his opponents, and attaining bis end with consummate tact and judgment. In public contests he was a master of the arts that win popularity, and, as a ruler, equally a master of the more difficult art of retaining it; for though a strong conservative in his politics, and generally opposed to the popular party, no man in the colony ever worked himself so fully into the public confidence, or had the same amount of personal influence. He is described by his contemporaries as remarkable for his convivial qualities, as easy of access, assiduous in the despatch of public business, and steadfast in his friendships. It is to be regretted that he marred his otherwise irreproachable conduct on the bench by giving way, in political cases like that of Zenger, to the feelings of a partisan ; and involved, as he was, throughout his long career, in every political intrigue and party movement, his character, in other respects, has not escaped without reproach. But he was a man of more integrity than he received credit for during life; and when the government was entrusted to his hands, he administered it with so much ca-
1 Lon. Doc. xxxvi. 1.
2 1 Smith, 376.
.
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HISTORY OF THE COURT AND OF THE
pacity, and with so single an eye to the general welfare of the province, as to wring a reluctant tribute from his enemies.
Of the colonial lawyers, whose lives were devoted exclusively to their profession, but little is necessarily known. In most mental pursuits, an opportunity is afforded for achieving something which may remain as a memorial of the life and labors of the mind that created it. The sculptor who works out a statue from a block of marble, has the satisfaction of knowing that his efforts are embodied and adequately represented in what he has produced; but the life of a lawyer is usually devoted to attaining results that cease to be of interest when the end is accomplished, and it matters not how great may be his talents, how extensive his learning, or unwearied bis industry, unless he has had leisure to compose judicial works, he can leave little behind him that will interest posterity, or which will serve to show of what he was capable. A forensic argument, or the occasional report of a trial, may survive, but such fragmentary memorials are not of themselves sufficient to prove that a man had attained to commanding eminence in a profession, where general excellence depends upon the possession and thorough cultivation of so many qualities. Even those endowments which are looked upon as the highest in this most difficult and onerous profession, which are deemed the greatest, because the most essential, and in which the chief excellence of a lawyer lies, are not those which attract general attention or lead to great public renown. The foreshadowing sagacity that perceives in advance all the probable exigencies of a case, the close attention which suffers nothing to escape, but upon a trial keeps every faculty intent upon the case as it is developed, the cool collectedness which is never disturbed by the unexpected disclosures of evidence, or embarrassed by a legal objection, but is able at the instant to meet each emergency, and put the best aspect upon it, the skillful and adroit management of partial, prejudiced, thoughtless or dishonest witnesses, and the power at the close of a trial, or upon an argument, of resolving a complicated mass of facts into their due relation to each other, and, of deducing the principles which grow out of the case and by which it must be governed, together with the power of using his learning with nice and discriminating judgment, are the qualities which secure the successful end aimed at in every legal controversy, but are not those which bring down the plaudits of the multitude. This eminent professional merit, the fruit of strong natural ability, coupled to great industry and experience, has, during the lifetime of its possessor, but a few select admirers; and when he has passed away from the stage of life, there is nothing but their recollections to float him down the stream of time, until he is lost in the mist that finally enshrouds all that is traditional.
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