USA > New York > New York City > The Memorial History of the City of New York: From Its First Settlement to the Year 1892, Volume II > Part 65
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was the case with the portraits of the diarists Samuel Pepys and John Evelyn that appeared in the previous volume. EDITOR.
3 Doc. rel. Col. Hist. N. Y., 4 : 635.
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lawyers, not always eminent, but generally of respectable attainments. Lord Bellomont's criticism on the attainments of the lawyers of the province in his time now ceased to apply .! By 1733 the bar of the province had assumed a high character, and was perhaps as efficient as at any subsequent period of New-York history. As early as the year 1704 the English forms of special pleading were introduced in the province of New-York."
Lord Bellomont's death in 1701 left Lieutenant-Governor Nanfan the executive of the province. Lord Cornbury was, however, appointed to succeed Lord Bellomont. So soon as the news of Lord Cornbury's appointment was gazetted at New-York, Colonel Nicholas Bayard, a leader of the anti-Leislerian party, promoted several addresses to the king, the parliament, and the new governor. These were generally subscribed by the inhabitants and the soldiers of the garrison at the tavern of John Hutchins, an alderman of the city of New-York. The addresses accused the lieutenant governor of bribing the assembly, and reflected on the council generally. When Nanfan heard of them, an order was at once made in council, dated January 16, 1702, directing Hutchins to deliver them up; and upon his refusal he was committed to the common jail "for the signing of libels said to be against the administration of the government." Colonel Bayard and Rip Van Dam, as leaders of their party, immediately petitioned for Hutchins's release, and thereupon Nanfan and the council, contrary to the opinion of the attorney-general, issued a warrant committing Bayard to the common jail on a charge of high treason, under a statute of the New-York assembly of 1691. By this statute any overt act disturbing the peace of the crown was made treason, pun- ishable according to the course of the common law. Colonel Bayard himself had been prominent in procuring the passage of the very act' under which he was indicted.
Lieutenant-Governor Nanfan did not await Lord Cornbury's arri- val, but at once issued a special commission of Over and Terminer to Atwood, then chief justice of the Supreme Court, and to De Peyster and Walters, the puisne judges, before whom Bayard was brought to trial at New-York city. The New-York statute under which Bayard was indicted, in terms, made the law of England concerning treason the law of New-York. The evidence in the case, the motion in arrest of judgment, and the opinions of the court are fully reported in the Eng- lish State Trials by Howell.' Colonel Bayard was convicted and sen- teneed to be hanged, drawn and quartered. He appealed to the king in, council, and Queen Anne, having succeeded to the throne in 1702, reversed the attainder," and at the October term, 1703, the remittitur, so
1 Doc. rel. Col. Hist. N. Y., 4 : 441. 2 Daly's "Judicial Organization of the State," p. xliii. 3 See the act, Howell's State Trials, 14 : 471. 4 Ib., p. 471. 5 Doc. rel. Col. Hist. N. Y., 4 : 1023.
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reversing the judgment, was regularly entered in the Supreme Court of New-York. The important incident in Bayard's case concerns the office of the jury. Mr. Emott, of counsel to Colonel Bayard, contended that the jury were to pass upon the mixed question of law and fact. The chief justice appears to have been very much against the pris- oner, and was ultimately censured for his course in this trial. The reversal of the conviction and the attitude of the prisoner's counsel in this important case aided a better administration of justice in New- York. The official report shows a more careful attention to the forms of procedure, and a quiet dignity and firmness on the part of counsel, which in themselves guaranteed additional security to the liberty of the province.
In 1706 occurred another legal trial of importance in forming the colonial constitution. Lord Cornbury's instructions prompted him to be zealous in the work of establishing the Church of England in the province. The Dutch in New-York were still of the professed religion of the Synod of Dort, and subject in church government to the Classis of Amsterdam. Lord Cornbury's efforts led him into a con- flict with the courts, where he was discomfited. On January 21, 1706, Francis Makemie and John Hampton, two Presbyterian min- isters, were arrested under the governor's warrant for preaching without a license. After some weeks' confinement they were brought before Chief Justice Mompesson of the Supreme Court by virtue of a writ of habeas corpus, and admitted to bail. The writ and return are given in the fourth volume of Force's "Historical Tracts" (No. 4). The mittimus of Lord Cornbury failed to specify any crime, and the prisoners hoped to be discharged; but before the return to the writ Lord Cornbury issued another mittimus, in form somewhat more regular. At the March term the grand jury found a true bill against Makemie for unlawfully preaching without a license, "against the peace of our Lady the Queen her crown and dignity," and for the un- lawful use of other rites and ceremonies than those contained in the Book of Common Prayer. The last clause of the indictment was for an unlawful meeting in a conventicle. When Makemie's trial came on, the attorney-general rested his case on an English statute of Henry VIII. asserting the crown's supremacy in ecclesiastical affairs, the private instructions to Lord Cornbury, the English uniformity of worship act, and the English penal laws against conventicles. These statutes were all leveled against Romish recusants, and were restricted to England, Wales, and Berwick-upon-Tweed. Makemie's counsel contended that these acts had no operation here, and they rested on the New-York "Charter of Libertys,"' which provided for absolute religious toleration. The attorney for the crown suggested
1 Vol. I, pp. 406, 407, of this work.
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that the "Charter of Libertys" had been disallowed, which was the fact : but not being prepared to prove his assertion, the defense had the benefit of the act. The counsel for the crown moved that as the accused admitted the fact, the jury should bring in a special verdict, as they were not judges of the law. Chief Justice Mompesson charged the jury that if they "chose to bring upon themselves to judge the law they might do so, or bring it in specially." He had some doubt how far the governor's in- structions had the force of law. The jury promptly found the de- fendant not guilty. This case added another link in the chain THE BIL.LOP RESIDENCE ON STATEN ISLAND. 1 of guarantees for personal liberty. It extended the province of New-York juries decidedly beyond the contemporary practice of England. There were other notable cases during this epoch, which will be noticed at the proper time.
I'nder Lord Corubury's government the Court of Chancery in New- York was to proceed according to the method of the High Court of Chancery in England." The early establishment of an equity court had an ameliorating effect upon the rigor of proceedings at law, which were then very technical and arbitrary. The mere fact that the court was established gave a reserve force to legal administration which can- not be overestimated. But the Court of Chancery, as established by ordinance, was obnoxious to the people of the province: the searching character of its inquiries, the multiform relief which could be obtained there, and, above all, the absence of juries, combined to render it a hated institution. Its maintenance as organized without act of assem- bly finally became a spirited political issue between the popular party and the governmental party in the province. Many other causes con- tributed to make Lord Corubury's government an extremely unpopular one : his efforts to establish the Church of England, his assertion of the fullest ecclesiastical jurisdiction as exercised in England over education and benefices, although according to his instructions from the crown, were wholly inconsistent with the liberty of the people and the measure of self-government which the province had already de- termined on. It is not an exaggeration to say, therefore, that the . germs of independent government can be detected in the spirited
1 The above illustration shows the residence of Christopher Billop, on Staten Island. He repre- sented Richmond County in the provincial as- sembly. During the occupation of the island by the British, previous to the Long Island cam-
paign. this house served as headquarters to General Howe.
EDITOR. 2 See his Ordinances, 2 Rev. Laws of N. Y., 1813. Appendix VIII.
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assertions of the people of New-York as early as the beginning of the eighteenth century.
It is unnecessary to our subject to follow, at this time, the details of the administrations of the various royal governors, lieutenant-gover- nors, and presidents of the council succeeding Lord Cornbury. Under some of them important political events took place, and under all of them there was an assertion by the assembly and the people at large that this was a quasi-independent state, entitled to the same full measure of liberty enjoyed in England. Indeed, in some instances the political claims of the more sturdy already went beyond those of their most advanced kinsmen in England. It seemed by the nature of things to be reserved to this country to work out the more logical sequence of the earlier achievements of Englishmen in the region of constitutional law.
At the death of Governor Montgomerie, who succeeded Governor William Burnet in 1728, the government of New-York devolved on Rip Van Dam, Esq., as president of the council. The latter was an opulent merchant and a native provincial of Dutch descent. Van Dam had held the government some thirteen months, when Colonel Cosby, previously the Governor of Minorca, arrived out as Governor of New-York. Colonel Cosby brought with him the king's order, dated May 31, 1732, for an equal partition between himself and Rip Van Dam of the salary, perquisites, and emoluments received by the latter dur- ing his administration. Mr. Van Dam astutely offered to accede to the king's order provided Colonel Cosby would divide his official receipts during a like period - some four thousand pounds in excess of those received by Mr. Van Dam.
This dispute led to an assault on the entire judicial establishment of the province, and turned public attention very pointedly to the nature of the government as then constituted. In some measure it contributed to the expression of party doctrines which culminated in revolution. Governor Cosby could not enforce his demand against Mr. Van Dam in chancery, for the governor was ex-officio chancellor, and might not be the judge in his own cause. In an action at law Governor Cosby dreaded the verdict of a New-York jury, for Mr. Van Dam was a popular citizen, and New-York juries had begun to take into their keeping the people of their own country. The ingenuity of Cosby's legal advisers prompted him to proceed against Van Dam in the Supreme Court, not according to the usual course at common law, but by bill in equity, on the theory that the ordinances erecting the Supreme Court1 and the judges' commissions authorized the justices to sit as barons of the Exchequer, who in England heard causes in equity .? It will be recalled that the Supreme Court of New-York then
1 See Vol. I, Chap. XIV. : 3 Blackstone's Com., 44, 427.
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had (and now has, for its jurisdiction is only a continuation) the juris- diction possessed by the English Courts of King's Bench, Common Pleas, and Exchequer. To facilitate this theory of the governor's, an ordinance was promulgated on December 4, 1732, enabling the Su- preme Court judges to appoint sittings of the Court of Exchequer as they or any of them might direct.
Before the case of Cosby vs. Van Dam, the Supreme Court of New- York had not exercised an equity jurisdiction, all such matters being relegated to the Court of Chancery. It was now proposed to establish the equity chamber of the Court of Exchequer. Mr. Van Dam's coun- sel, in order the better to maintain their client's counter-claim, pre- sented a summons in an action at law to the clerk of the Supreme Court, but this official refused to seal a writ to run against the gover- nor. They then applied to the Supreme Court justices for a letter directed to the governor, in a manner analogous to the practice in England when a peer of the realm was defendant. This the judges refused as unprecedented. Meanwhile the attorney-general had pro- ceeded against Mr. Van Dam in equity to a commission of rebellion, and he was compelled to appear in equity in the exchequer chamber of the Supreme Court. His treatment awakened great popular sym- pathy. His counsel, James Alexander and William Smith, filed a plea of exceptions to the jurisdiction, which evince that they went to the extent of questioning the governor's right to establish by ordi- nance, independently of the New-York assembly, courts of justice in the province. They further argued that there was'no equity jurisdic- tion in the Supreme Court of New-York, which had only the jurisdic- tion common to the three great English law courts, the King's Bench, Common Pleas, and Exchequer, and not their collective jurisdiction. These exceptions were overruled by Justices De Lancey and Philipse, although the chief justice, Morris, dissented, in an opinion which expressed the political creed of the popular party in the province. This opinion denied the right of the king to erect any court of equity.
At a later stage the equity branch of the Supreme Court, thus as- serted, seems to have fallen into disuse, and Mr. Wyche, in the first work on the practice of the New-York courts, claims for the Supreme Court only the legal branch of the jurisdiction of the English Court of Exchequer. In the case of Cosby vs. Van Dam the Supreme Court incidentally passed on another important question, for they held that the demise of the king did not determine the ordinances of the gover- nors of the province. The court certainly did decide also that the king had a right by ordinance of the royal governors to erect courts of judicature in the province of New-York. In the preceding volume1 it was pointed out that, though disputed in New-York, this power was
1 Vol. I, p. 562.
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undoubtedly allowed by the colonial constitutions of that time. Lieu- tenant-Governor Colden said, in a letter to Lord Halifax, dated at New-York, December 13, 1764, that the arguments against such a prerogative were all founded on what the king could do in England, and conclude that the king can do nothing in the colonies which he cannot in England; and he added, "If this were true it must be sub- versive of every government in the Colonies."
Governor Cosby was so much exasperated at the dissenting opin- ion of Chief Justice Morris that, in an unguarded moment, he removed him from the chief-justiceship and appointed Judge De Lancey in his place. This imprudent act, without the advice of the council, added to the general excitement in which the province was thrown by the majority decision in Cosby vs. Van Dam. Morris, induced by the injustice of his removal to seek an ascendancy in the assembly, was promptly elected to represent his county of Westchester, and his son was elected a burgess of the incorporated town of Westchester. In this election party spirit ran so high that when Judge Morris arrived at the capital he was wel- comed by a salute of cannon and a pub- lic entertainment. Judge Morris now became the leader of the popular or democratic party of the province. The acrimony of the canvass found expres- sion in Zenger's "New-York Weekly Jour- W Corby nal," which, in addition to the "freshest advices foreign and domestic" announced in its advertisement, con- tained matter highly offensive to the governor, and which finally became so intolerable that Zenger's prosecution for libel ensued.
After Judge Morris's election every measure of the government was contested in the assembly. Petitions praying relief against the new Court of Equity established in the Supreme Court were addressed to
1 The above portrait was received too late to appear in its proper place. Colonel Robert G. Cosby writes from Stradbally Hall, Queens County, Ireland, under date May 4, 1892: "I am sorry to have been so long in sending you the accompanying photograph, which is from an oil painting hanging in this house. In the catalogue of the family por- traits I find it described as follows :- "Picture of His Excellency Gen. William Cosby, formerly Governor of New-York and Colonel of the Royal Irish Regiment of Foot, sixth son of Alexander Cosby of Stradbally Hall, and Elizabeth, daugh- ter of Henry L'Estrange of Maystorm, in Kings County; married the Hon. Grace Montague, sister
of George, Earl of Halifax, and died in his govern- ment in 1735. He left issue Henry, a captain in the navy ; Elizabeth, married in 1733 to Lord Augustus Fitzroy, and Grace, married to Joseph Murray, Esquire, of New-York." It may be worth mentioning that the salaries of England's colonial governors have changed since Cosby's time. In 1892, Bermuda, with fifteen thousand party-colored inhabitants and two thousand acres under cultiva- tion, pays three thousand pounds ; Jamaica, about six thousand ; Fiji, with its handful of white set- tlers, pays its governor five thousand pounds, and British Guiana the same sum, with a lieutenant- governor at fifteen hundred pounds. EDITOR.
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the assembly. The petitions recited that it was well known "that the courts are not established by act of assembly as by the laws of England they ought also to be, especially the Court of Equity lately erected in the Supreme Court of this Province, which they take to be a grievance and destructive to the liberties of the people as it is now constituted." The petitioners asserted "that being inhabitants of the Province of New York, part of the dominions of Great Britain, they did take themselves to be entitled to the liberties of Englishmen." The petitions were brought into the house May 31, 1734. They con- tained a clear statement of the issue between the governed and the royal authority as exercised in New-York. The petitions were con- sidered so important that counsel were introduced on the floor of the house to support them. The question was indeed a new question, for it involved the whole theory of the English domination in America. The popular party was asserting a principle of home rule, in main- taining that no act could be done here which was inconsistent with the principles of the English constitution and English liberty. There- after the struggle continued down to independence, but it is doubtful whether there was ever any clearer statement of the American posi- tion touching the English supremacy.
The party struggle finally ended in an order of the governor's council, dated November 2, 1734, directing that certain issues of Zen- ger's "New-York Weekly Journal" be "burnt by the hands of the common hangman." On the 17th of the same month Zenger was ar- rested, by order of the council, for printing seditious libels. He was subsequently brought by writ of habeas corpus before the Supreme Court, where his counsel contended for his right to be bailed, citing Magna Charta, the Petition of Right (3 Car.), the habeas corpus act (31 Car. II.); also the English provisions against excessive bail. Neverthe- less, his bail was made so excessive that Zenger could not furnish it. Then the grand jury refused to find a true bill against him, and the governor directed the attorney-general to proceed without indictment, by information for a misdemeanor. The counsel for the prisoner filed exceptions to the "being of the Court," because the judges' com- missions ran only during the king's pleasure, and not for good be- havior as in England, and because they were granted without the consent of the council for the province. The exceptions went almost to the length of questioning the king's authority in the colonial gov- ernment. The court promptly struck the names of the counsel filing the exceptions from the rolls of the court, saying, "You have brought it to that point that either we must go from the bench or you from the bar." The judges then assigned inferior counsel to the prisoner.
The populace became intensely excited, and when the day set for trial had arrived the counsel for the crown were more than matched
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 587
by Mr. Andrew Hamilton, the leader of the Philadelphia bar, who had been quietly brought over for the occasion and instructed by the disbarred lawyers. The case is fully reported in the English State Trials.1 The libel being admitted, the attorney-general claimed a for- mal verdict, as he asserted it was the province of the court only to judge whether the matter was libelous, and that the truth was no justification. To this the court assented, but Mr. Hamilton, in an eloquent speech, contended against the doctrine, and maintained the right of juries to determine the law as well as the fact. Contrary to the direction of the court, the jury found for the defendant. This celebrated case was declared by Gouverneur Morris to be "the germ of the American Revolution"; but, as has been indicated, it was only a link in a chain of correlated events which were leading to revolution. As bearing on the constitution of the province of New-York and the state of the law, the case was of the utmost consequence. More than fifty years before Lord Erskine's eloquent arguments in support of the right of juries to find a general verdict in libel cases, and more than fifty years before the remedial statute to this effect2 was enacted in England, a verdict of a common jury in the province of New-York had settled the law of New-York on this point in favor of liberty, and established here the freedom of the press. But this was not the only point where the law of New-York was in advance of that in England. In England counsel were not allowed to prisoners indicted for felony until the statute 6 and 7 William IV., c. 114, sec. 1, but the practice seems to have been uniformly otherwise in this province, a hundred years earlier. In England the origin of the excessive technicality of crim- inal pleading was largely due to the fact that the accused had no counsel in cases of felony.
Governor Cosby did not long survive Zenger's trial. Shortly be- fore his death in the year 1736, his old enemy Judge Morris was in- strumental in preferring an impeachment of the governor to the lords of trade. Lord Mansfield (then Mr. William Murray) appeared in support of the petition, but the lords of trade were of the opinion that the charges were insufficient to warrant the governor's removal.
In 1741 occurred one of the most shocking incidents in the history of New-York. Many persons, including an alleged Romish priest, were tried and condemned for complicity in the so-called negro plot to burn the city of New-York. The records of the proceedings indi- cate a great panic, rash procedure, and numerous hasty executions by burning and hanging. When the public calm was restored the people looked back in horror to find that so great a number of persons had been executed. No other incident in American history affords better evidence of the necessity of a calm review of criminal trials by delib-
1 Vol. XVII, p. 675. 2 32 Geo. III, c. 60.
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erate appeals and an accurate and formal criminal procedure. The only satisfaction a retrospect of these trials furnishes is that they were a direct result of the baneful institution of slavery, and not a result of anything vitally defective in our own early legal institutions. One of the last of the great legal con- troversies which took THE place before the War HOLY BIBLE, of Independence was intimately concerned Containing the OLD and New with the constitution- al rights of the peo- TESTAMENTS: ple of the province of New-York. From Newly translated out of the 1755-56 until the year 1763 the struggle be- ORIGINAL TONGUES; tween France and England for the mas- And with the former tery in America was TRANSLATIONS depending. This strug- gle concerned one of Diligently compared and reviled. the greatest of all po- litical questions which have yet arisen on this continent, "Should its civilization, cus- toms and laws be those of France or of England ?"1 The so- lution, at a cost to England greater than PHILADELPHIA: PRINTED AND SOLD BY R. AITKEN. AT POPE'S HEAD, THEER DOORS ABOVE THE COFFEE HOUSE. "IN. MARKET STRAST. M.D.CO.LXXXII. the American Revolu- tion, has led, or must lead ultimately, to the solidarity of North America. Amidst the din of the conflict just indicated was begun another very celebrated litigation, styled the case of Forsey vs. Cun-
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