USA > New York > Historical sketch of the judicial tribunals of New York from 1623 to 1846 > Part 9
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10
1 Graham on Jurisdiction, 142.
2 April 17, 1823.
3 Laws of 1831, p. 12.
4 Laws of 1840, chap. 314.
5 W. J. McCoun was the first vice chancellor of the first circuit. He held the office until he
58
HISTORY OF THE COURT AND OF THE
The courts of common pleas, other than for the city and county of New York, were re-organized after the passage of the constitution of 1823, and consisted of a first judge, who was required to be of the degree of counsellor at law, and four asso- ciate judges, all of whom were appointed by the governor. In 1828, the superior court of the city of New York was created, with a chief justice and two associate justices, appointed by the governor and senate, for the term of five years. It was empowered to try all actions at law, without any limitation as to amount, where the process was served in the city of New York; to grant new trials, and generally to exercise all the powers of a court of record, and it was made the appellate court for the review of the judgments of the marine court, and the courts of assistant justices in the city. This appellate jurisdiction, however, was afterwards transferred to the court of common pleas. By subsequent enactments the number of justices was increased to six.1
The courts of justices of the peace have undergone too many modifications and changes since the revolution to be noticed in detail. An enumeration of the various acts relating to them will be found in Chancellor Kent's notes to the Charters of the city of New York.2 In 1807, assistant justice's courts were established in each of the wards in the city of New York, with jurisdiction to the extent of $25. They have also been the subject of many statutory enactments and changes, and are now de- nominated district courts. In the same year, 1807, a justice's court was created for the city of New York, consisting of three justices, with power to try causes be- tween $25 and $50, and marine causes, between master and mariner, though beyond that amount.3 In 1819, its name was changed from the justices' court to the marine court. In 1817, its jurisdiction was increased to $100 ; and, in 1853, it was authorized to try actions of assault and battery, false imprisonment, malicious pro- secution, libel and slander, and its general jurisdiction was extended to five hundred dollars.4
As there is a chasm in the public records of the city of New York, from the 27th of June, 1774, to the 10th of February, 1784, it is not known whether the mayor's court was held during that period. At the breaking out of the revolution, White- head Hicks, an eminent lawyer, was mayor-a position he had held uninterruptedly for ten years. He resigned in 1776, and was appointed a justice of the supreme court, in place of Livingston ; but inclining to the republican cause, he went, shortly after, into retirement, and died before the end of the war. He was succeeded in the office of mayor by David Matthews, then an alderman of one of the wards-sub- sequently tried by a revolutionary committee for a conspiracy against the republican cause, and condemned to death, but reprieved,5 and who appears to have been acting, afterwards, as mayor, in 1780.6 Upon the evacuation of the city by the enemy,
reached the age of sixty, when he was succeeded by Lewis H. Sandford. Murray Hoffman was appointed assistant vice chancellor, and was succeeded by Lewis H. Sandford, in 1843, who was succeeded by Anthony L. Robertson, as assistant vice chancellor.
1 Laws of 1828, p. 141.
2 Kent's Notes, xliv. 261.
3 Laws of 1807, chap. 139.
4 Laws of 1853, chap. 617.
5 Minutes of the Trial and Execution of certain Persons for Conspiracy against the Liberties of America. London, J. Burr, 1776.
6 2 Dunlap, App. cexxxiv. ccxli. Valentine's Manual of City of New-York, for 1853, 409 and 410.
59
JUDICIAL ORGANIZATION OF THE STATE.
measures were taken to reorganize the municipal government. In the beginning of 1784, James Duane was appointed mayor, by Governor Clinton, and Richard Varick, recorder, and the mayor's courts and the courts of sessions were re-opened. Immedi- ately upon his appointment, Duane framed a series of thirty five rules, to regulate the practice of the mayor's court, which he convened on the 10th of February, 1784, a few days after his appointment ; and, after publicly adopting the rules, and breaking up the monopoly which, for over half a century, had limited the practitioners of the court to eight, by an order authorizing all attorneys of the supreme court to practice in it, he adjourned the court for three weeks, to afford an opportunity for the issuing and return of process. Upon the adjourned day, 24th of February, 1784, Colonel Varick took his seat as recorder, with Duane, and the regular business of the court was resumed. On that day, one hundred and sixteen writs were returned, and the leading practitioners who appeared to prosecute, or answer to them, were Alex- ander Hamilton, Aaron Burr, Colonel Troup, William S. Livingston and William B. Livingston. On the next adjourned day, there were one hundred and sixty-seven new writs returned, and, at the session in July, there were one hundred and ninety-eight.1 The concentration, at once, of this large amount of business in the court-which was quadruple that of the supreme court, and embraced actions of all kinds and descrip- tions-was owing to the great confidence felt in the legal ability of Duane, and the facility afforded, by the frequent sessions of the court, for the speedy dispatch of business. From his learning, industry and capacity, Duane had attained a high rank in his profession before the revolution, and was in large practice when that event took place.2 Through the whole of the war, he had been a member of the provincial congress of New-York, of the committee of safety, and of the convention that adopted the constitution of the state, and a delegate to the continental congress. He was a member of that body at the time of the signing of the Declaration of Independence, though then attending the provincial congress of New York, was afterwards a mem- ber of the celebrated committee appointed to state the rights of the colonies, and framed the preamble and resolutions reported by it, and adopted by congress, and he was one of the special committee of three, in 1777, that prepared the final draft of the articles of confederation. The high character of Duane drew into the court every lawyer of ability ; and, for more than a quarter of a century afterwards, it became, in view of the men who presided in it, and of those who practiced before it, not only the leading court in the city, but one of the most eminent judicial tribu- nals in the state. During the mayoralty of Duane and Varick, and while Samuel Jones-father of the late chief justice-Chancellor Kent and Richard Harrison were successively recorders-that is, until the close of the year 1800 : the leading prac- titioners in the court were Alexander Hamilton, Aaron Burr, Colonel Troup, Edward Livingston, Brockholst Livingston,8 Egbert Benson, Morgan Lewis and Josiah Ogden Hoffman ;4 all of them, at the commencement of this period, young men, whose first forensic efforts were made in the mayor's court.
1 Rec. of Mayor's Court, for 1784.
2 4 Doc. History, 461. Jones' Memoir of Duane.
8 Judge of the Supreme Court of New York, until 1806, and from that year, until 1823, one of the associate justices of the Supreme Court of the United States.
4 Father of Ogden Hoffman, Esq. Attorney general from 1795 to 1802, and associate justice of the New York Superior Court, from its creation until his death.
60
HISTORY OF THE COURT AND OF THE
In fact, so popular was the court, so great the confidence felt by suitors and by the profession, that although it was in the power of the defendant to remove a cause into the supreme court for trial, where the amount exceeded £20, the privilege was rarely resorted to; and its records show, that cases presenting questions of the highest importance, and involving large amounts of property, were constantly adju- dicated before it.
Burr got more rapidly into practice than Hamilton. The extent of a lawyer's business, at that time, was judged by the number of writs he sued out or to which he appeared ; and at the first day of the session of the court, in July, 1784, Burr prosecuted or appeared to seventeen writs. Hamilton's, at the following term, amounted to thirteen; but William S. Livingston exceeded both of them, in the amount and variety of his business. , At a single session, in July, he answered to sixty seven writs. At the preceding May term, Cornelius Bogert was admitted to practice, upon the production of a license from the supreme court. He is the first lawyer whose name appears upon the rolls as specially admitted; and after the lapse of seventy years is still alive, having retired but recently from the active pursuit of his profession.
The first case in which Hamilton appeared, and one of the most important judgments of Duane, was Rutgers v. Waddington, a case which brought under discussion the powers of the confederated states and the rights of the individual states, and which is especially interesting, as it first drew Hamilton's attention to the consideration of principles growing out of the union of the states, and the establishment of independence, principles which he afterwards elaborated in the discussion of the National Convention of 1787, in the papers of the Federalist, and in the debates of the New York Convention of 1788; and which were subse- quently embodied in the constitution of the United States. In 17831 an act was passed providing, that any one who, by reason of the invasion of the enemy, had left his place of abode, might bring an action of trespass, and recover damages against any person who had occupied it, or had injured his real or personal property, or against any one who had received his goods or effects, while the same was under the control of the enemy; and prohibiting the defendant from pleading or giving in evidence, as a defence, that the property was occupied, injured or destroyed by a military order or command. The action, which was the first under the statute, was brought to recover six years' rent for the occupation by the defendant, of a brew house in the city of New York, while the city was in the possession of the British. The defendant plead the possession of the city by the British army ; a license from the commissary general, in 1778, to him, a British subject, residing in the city for the purposes of commerce, to use and occupy the premises until the 30th of April, 1780; and a direct authority from Sir Henry Clinton, the commander in chief, to do so, after that period; and also the treaty of peace, ratified at Annapolis, on the 14th January, 1784, by which all claims that the citizens or subjects of either of the con- tracting parties might have against each other, for indemnity for injury or damage done to the public or individuals, during the war, was relinquished and released ; to which the plaintiff demurred. To enact, after articles of peace had been agreed to, that one belligerent might maintain an action against another, to recover damages
1 March 17, 1783. Laws of N. Y. 1783. 6 Sergt. Mckesson's edition, 284.
61
JUDICIAL ORGANIZATION OF THE STATE.
for injuries or loss occasioned by the war, was without precedent in the history of nations, and can be explained only by the intense bitterness felt towards the tories by the revolutionary party in New York, who had suffered so heavily, in a pecuniary point of view. From the importance of the principle involved in the suit, and the large number of cases, covering claims to an enormous amount, that depended upon it, it excited a degree of interest that no single case in this state has ever produced. The defendant, in addition to William S. Livingston and Morgan Lewis, retained Hamilton, who had then no rank or position as a lawyer, for having been engaged throughout the war in the army, he had begun to study law but little more than a year previous, was then but twenty seven years of age; and his defence in this case was the first exhibition of those extraordinary powers afterwards brought into play upon a wider theatre. For a man ambitious of legal fame or reputation, he had every stimulant to exertion, for the full weight of public opinion was against him, the excitement that prevailed not being confined to those who had a pecuniary interest at stake, but extending to the whole community. The revolutionary struggle had just been brought to a close ; the city was still in a disordered state, and the antago- nistic views in respect to the course and policy of government, which afterwards led to the formation of the federal and democratic parties, had already become a subject for public agitation. The interest, moreover, in this particular case, was heightened by the relative position of the parties, the defendant being a wealthy merchant, and a British subject, who had adhered throughout to the cause of the crown; while the plaintiff was a poor widow, who had lost every thing by the war; and, as if nothing might be wanting to give it an imposing effect, and excite the popular feeling, the attorney general appeared on behalf of the plaintiff, in connection with her counsel, Col. Troup and Messrs. Lawrence and Wilcox ; and the argument took place before
a crowded auditory, in a hall which had been desecrated and defaced by the British troops. Six of the counsel engaged were heard upon the argument, but the leading points were discussed mainly by Egbert Benson, the attorney general, and Hamilton. Hamilton contended in opposition to the attorney general, who relied upon the statute and upon the right of the state, in its sovereign capacity, to pass it; that the act was in violation of the law of nations, which, being part of the common law, had become, by the constitution, the law of the state ; and followed it up by an elaborate and masterly exposition of the rights of war, and of the relation of belligerents to each other, in their capacity as individuals, when the war is put an end to. He claimed that the defendant was covered and protected by the treaty, and insisted that it was not in the power of the state to deprive him of that which the treaty had secured to him. The general congress had become a party to that treaty, and if they could not violate it, the state could not. The attorney general urged, that each state was an independent sovereignty, in respect to its own citizens ; that it had the power to pass laws to regulate their rights, or fix their liabilities; and that it might enact a law affecting the property or person of any one within its jurisdiction, the sovereignty of the people of each state, in that respect, being absolute and beyond control. To which Hamilton answered, that if such was the case, then the confederation was but the shadow of a shade; and he went into an examination of the nature of the Union, and the principle of popular sovereignty.
The sovereignty of the people, he said, began by the compact which united them together in the attempt to throw off the sovereignty of Great Britain and to establish their own. They were not an aggregation of states, each independent of the other,
62
HISTORY OF THE COURT AND OF THE
but had confederated together for a common object, and by the articles of confedera- tion, had vested in a general or national congress certain powers, essential to the due administration of their affairs in their united or confederate capacity. The external sovereignty of the United States could only be recognized by a foreign nation, as it was represented by the states, in their confederate character, and that was through the national congress, composed of delegates sent from the separate states, and which represented the whole people. A state was prohibited from going to war, except in cases of actual invasion, or of a threatened invasion from Indians, or of making treaties with foreign nations. The general power of making war, or of concluding peace, or of entering into treaties, being vested exclusively in the national congress. The making of the treaty was consequently within the power of con- gress ; it bound each state, and no state could pass a law repugnant to it, or which would violate any of its provisions.
The attorney general claimed, that whatever might be the nature of the con- federation, it could exist only by the consent of the states, as long as they saw fit to continue members of it; and that if a state thought proper to return again to its original sovereignty, it had the power to do so. To this Hamilton replied by an argument, then advanced for the first time, and which has ever since been regarded as the principal one, in support of the indissolubility of the Union, and was relied upon during the discussion of the question of nullification, by Web- ster and others, as unanswerable. The state of New York, he said, was a party to the declaration of independence, and also to the articles of confederation. The first was a league entered into by the thirteen colonies, by which they cast off their allegiance to the crown of Great Britain, and, as united colonies, declared themselves free and independent ; and the other was an agreement, which, by its terms, was for the formation of a "perpetual union." As separate states, they had, therefore, entered into a contract for purposes expressed in the instrument, by which the con- tract was formed, and like any other contract, no one party to it could withdraw or be released from its obligation without the general consent of the whole. To the objection that the mayor's court, as a state tribunal, could not disregard a law of the state, though it might be in conflict with what had been done by the national congress, he answered, that the articles of confederation having made no provision for the establishment of a judiciary, except in cases of disputes between states, or in cases of captures or of felonies upon the high seas, the state tribunals must, of neces- sity, recognize judicially, and carry out the measures of the national congress.1
In delivering his judgment, Duane noticed the uncommon ability with which the case had been argued, particularly by Hamilton and the attorney general. He held, that the defendant was liable for the rent of the premises for the first three years, as its use, during that period, could not be regarded as having any relation to the war. The license from the commissary general, conferring upon the defendant no right to the possession, that officer having no authority to grant one ; but for the re- maining three years, during which it was held under an order from Sir Henry Clin- ton, to whom, or to whose agent, the rent had been annually paid, he held, that the defendant was not liable. By the law of nations, restitution of the rents or issues
1 Rec. of Mayor's Court, 1784. Papers in Rutgers v. Waddington, on file in the Court of Com- mon Pleas. Synopsis of Hamilton's Brief, in 2 'Hamilton's Life, by his Son, p. 244. 2 Davis' Memoirs of Burr, 45. 4 Doc. Hist. of N. Y. 641.
63
JUDICIAL ORGANIZATION OF THE STATE.
of houses or land, collected bona fide, under the authority of a commander in chief, while in the possession of the city, during a state of war, could not be enforced. The law of nations had become, by the state constitution, the law of the state ; and must be regarded as a fundamental law, applicable to and in force throughout the whole confederacy. By the federal compact, the states were bound together as one independent nation. In respect to each other, and in their national affairs, they exercised a joint sovereignty, the will of which could only be expressed by the acts of the delegates of the separate states in congress assembled. Abroad, the states could only be recognized in their federal capacity ; and having combined together and formed a nation, they must be governed by the law of nations. No one state could arrogate to itself the right of changing at pleasure those laws which are received as a rule of conduct by the common consent of the civilized world.
For a separate state to alter or abridge any one of the known laws of nations, was contrary to the nature of the confederacy, in conflict with the intention of the articles, and dangerous to the Union. The defendant was residing in the city in pursuit of his private affairs, taking no part in the acts of the military ; and to hold under the sta- tute, that he could not plead as a defence that he had paid for the use of the pre- mises, to those who, in the plentitude of military power, were exercising dominion over the city, was such a clear violation of every principle of right, that it was not to be presumed that such was the intention of the legislature. It was not to be presumed that it was their intention, by the generality of the terms employed in the act, to repeal the law of nations, and violate the compact of the confederacy; it being a familiar rule, that where two laws were in any of their provisions repugnant to each other, the latter was not deemed to be a repeal of the first, unless the in- tention to do so was clear and unmistakable. Even if such was the intention in the passage of the act, the state had no power to make such a law. The power to go to war and to make peace was vested in the national congress. They had concluded peace by a solemn treaty, and peace worked an oblivion of the past. Nor was it necessary to inquire whether the particular amnesty embodied in the treaty would meet the defendant's case, for his defence rested upon a right, included and pro- tected by that general amnesty or immunity thereafter, for any act done during, or having relation to the war which, as between belligerents, is implied in every treaty of peace, whether expressed or not. The treaty bound the whole confederacy, and every state, and no member of the compact could alter, abridge or impair it.1
When the decision was made known, it was followed by a burst of popular indig- nation. A public meeting was called a few days after, and an address to the people of the state adopted, said to have been prepared by Melancton Smith, a prominent lawyer, and afterwards the leader of the anti federal side, in the state convention that ratified the national constitution; in which, after acknowledging the uncommon ability and learning displayed in the argument, and while conceding the necessity of the independence of courts of justice both of the people and of the legislature, the address denounced the decision as a violation of the privileges of the people, and as an act of judicial tyranny, and closed with a resolve to carry the case, on behalf of the plaintiff, to the court of errors. Nor did the agitation end with the adoption of this
1 Argument and judgment of the mayor's court of the city of New York, in a cause between Elizabeth Rutgers and Joshua Waddington, New York. Samuel Loudon, 1784, in tracts, collected by the late Thomas B. Chandler, D. D., and vol. xxxiii. pamphlet No. 8, and now in the posses- sion of Edward B. Corwin, Esq., of New York. Rec. of Mayor's Court, for 1784, Aug. 27.
64
HISTORY OF THE COURT AND OF THE
address, but the subject was brought before the legislature, and a resolution passed, declaring the decision to be subversive of all law and order, and calling upon the council of appointment to appoint such persons mayor and recorder as would be governed by the law of the land. Waddington, in view of the threatened appeal, compromised the claim, but the decision of Duane settled the law, and the act was afterwards, in effect, repealed upon the motion of Hamilton, in 1787.1 Duane con- tinued to preside in the court until he was appointed by Washington, after the organization of the United States' courts, towards the close of 1789, district judge of New York, when he was succeeded by Col. Varick, as mayor. During the six years that he sat in the court, he delivered a number of important decisions, nearly all of them affirmed by the supreme court. Some of them are to be found in the early volumes of Johnson's Cases, but as our reports do not begin until ten years after he ceased to act, very few of his decisions have been preserved.
In the thirty five years that followed, the mayors and recorders who sat in this court and in the court of sessions, embraced a succession of the most eminent men in the state, all of whom, with one exception, were distinguished lawyers. During this period the mayors of the city were, Edward Livingston, De Witt Clinton, Col. Marinus Willet, Jacob Radcliffe and Cadwallader D. Colden; and the recorders, Samuel Jones, father of the late chief justice, James Kent, Richard Harrison, John B. Prevoost, Maturin Livingston, Pierre C. Van Wyck, Josiah Ogden Hoff- man, Jacob Radcliffe, Peter A. Jay and Richard Riker. In 1802, Edward Living- ston, the well known author of the criminal code of Louisiana, who was then mayor, prepared and published a small volume of reports.ª It contains thirty nine cases, very concisely reported, somewhat in the manner of Anthon's Nisi Prius, nearly all of them upon questions of importance. As the volume was intended for private distribution, but a small number of copies were printed, and it is now exceedingly rare, no copy existing even in our public libraries.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.