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 66
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1 Governor Seymour, "Magazine of American History," 3 : 223.
The Aitken Bible, of which the above is a fac- simile of the title-page from the original in the possession of the Editor, is much rarer than the Mazarin or Gutenberg Bible. It was the first Eng- lish Bible printed in the New World. Only some
six or seven copies are known. One of these may be seen in the Lenox Library. An imperfect one was sold at the dispersion of the Brinley collec- tion, and since that time a thousand dollars has been paid for a copy of this small 12mo Bible. EDITOR
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 589
ningham. It also concerned the integrity of trial by jury in the prov- ince of New-York, or rather that feature of trial by jury which related to the legal effect of the jury's verdict. On October 26, 1764, a New- York jury rendered a verdict against one Cunningham for one thou- sand five hundred pounds damages and costs in an action brought by one Forsey for assault and battery alleged to have been committed by defendant. Only five hundred pounds actual damage was proven, and the balance was "smart money," or exemplary damages. The defen- dant moved to set aside the verdict as excessive, and the motion was denied. Under the prevailing practice the remedy was then by a writ of error in common-law cases, returning a bill of exceptions into the Court of Appeal of the province, which could review the errors of law but not inquire into the correctness of the verdict of the jury. The de- fendant's agent, conceiving that the thirty-second instruction to Gen- eral Monckton, then the governor of the province, had changed the practice by permitting an appeal in common-law cases whereby the court could investigate the facts found by the jury, tendered a petition of appeal accompanied by a bond for double the amount of the judg- ment. This petition the justices of the Supreme Court refused, as impertinent and unprecedented.1 The governor, as chancellor, then granted a writ of inhibition staying all proceedings on the verdict, and subsequently, by mandamus, the Supreme Court was directed to send up all the proceedings in the case. The result of this litigation was watched with great interest by the inhabitants of New-York, as the real question was thought to involve the right of the crown agents to reverse or examine the verdicts of New-York juries who could be trusted to stand firmly against tyranny. To review a verdict by appeal was thought something new and sinister. Appeals in English law had been borrowed from the civilians. When the review was by writ of error, the facts found by a jury could not be disturbed except by proceedings which grew out of the obsolete writ of attaint, the progenitor of the modern motion to set aside the verdict as against evidence. The instructions to Sir Danvers Osborn, as governor of New-York, first contained directions for appeal in common-law cases, and were deemed by the people of New-York to be in derogation of their political rights. The Court of Appeal of the province, on Jan- uary 11, 1765, rendered a decision that no appeal could be taken in a common-law case, but the lieutenant-governor dissented. In the minutes of the Supreme Court of New-York for October 27, 1765, is a petition of Robert Ross Waddel, attorney in fact for defendant Cun- ningham, by which it appears that the defendant had petitioned the king to review the entire proceedings in New-York, and that the king, by an order in council, had referred it to the lords of the committee
1 Aspinwall's Papers, Massachusetts Historical Society Publications, 10 : 540.
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for hearing appeals from the plantations, who had reported that such appeal ought to be allowed, and the governor and council directed to remit the record below. This report the king had confirmed, and upon these facts the petitioner prayed an appeal to the king in council. The Supreme Court, zealous for their jurisdiction, requested Mr. Waddel to exhibit his authority to act for Mr. Cunningham, and upon its production they declared it insufficient, intimating that had it been sufficient, they had no authority to send up a record of a higher court. The final decision fell upon most grateful ears in the province, for already personal liberty in New-York was zealously watched, and the inhabitants were extremely intelligent in the con- duct of all political or semi-political questions, including those which were as indirect in operation as the legal effect of judicial decisions.
Having now followed briefly some of the important trials which had a salutary effect upon the constitution of the province, it would seem next in order to take a brief survey of the state of the legal and governmental institutions of New-York about the year preceding the outbreak of the War of Independence. We can thus better contrast their continuity, or the degree of change effected in them by the Rev- olution and the ultimate political independence of the province. In the preceding volume (Ch. XIV) the form of the jurisprudence of New- York was outlined as far as the year 1700, but since then it had as- sumed greater completeness; and by the year 1775 the bar and bench had brought its administration to a high degree of efficiency, as is often realized by those who have occasion to undertake the examina- tion of old colonial records, patents and other legal instruments. The positive law of the province in 1775 consisted of the acts of the as- sembly of New-York, the statutes of England in which New-York was expressly mentioned or included, and certain acts passed in Eng- land before New-York had its own legislature, and confirmatory or declaratory of the common law. In practice, the judges seemed to exercise an arbitrary discretion in determining what English statutes were in force here. William Smith, the colonial historian of New- York, and a lawyer of prominence intimately acquainted with the subject, writing in the year 1732, said that "the state of our laws opens a door to much controversy. The uncertainty with respect to them renders property precarious, and greatly exposes us to the arbi- trary decisions of bad judges. The common law of England is gener- ally received, together with such statutes as were enacted before we had a legislature of our own. But our courts exercise a sovereign authority in determining what parts of the common and statute law ought to be extended .. .. In many instances they have also extended, as I have elsewhere observed, even acts of parliament passed since we have had a distinct legislature, which is adding greatly to our confu-
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 591
sion."1 The complaint of this colonial lawyer was not a solitary one, but in that day they reflected little on the difficulties of importing a ready-made jurisprudence from the country of its origin. At a later stage of colonial development there was a general rule observed in English colonies: namely, that in colonies settled by England the English statutes passed prior to the settlement of the colony, and in conquered provinces those statutes passed anterior to the edict put- ting in force the laws of the conqueror, prevailed. Until this rule was applied - and it possessed its exceptions, for not all anterior statutes were in force, but only suitable ones - there was naturally much con- fusion on the subject, which all the authorities admit and deplore. Yet in practice the early bar of New-York knew the working application of the rule, and as statutes were determined to be in force, the law of the province assumed a more settled state. In Forsey vs. Cunningham, Chief Justice Horsmanden (himself a reviser of the New-York laws) stated what was un- questionably the true rule on this subject in New-York prior to the Revolution : "That the Supreme Court proceeds in the main accord- ing to the practice of the courts at Westminster; and the common law of England with the statutes affirm- ing or altering it before a legislature W." Bradford" 2 was established here, and those passed since such establishment expressly extended to us, with our legisla- tive acts (which are not to be repugnant to the laws of England), constitute the laws of this Colony." 3
In addition to the English statutes indicated by Chief Justice Horsmanden, there can be no question that the English common law furnished the general rule, or that it was the common or unwritten law of the province of New-York. Nor can there be any question, as shown in the former volume of this history (Vol. I, p. 543), that the Dutch jurisprudence had been substantially displaced by the English. Yet it would be idle to deny what has been affirmed by many wise lawyers then and since, that portions of the more ancient Dutch law of
1 Smith's "History of the Province of New York," 1 : 309 (reprint of 1829).
2 There is unfortunately no portrait of Willian Bradford, New-York's first printer, the above being a copy from a miniature of his grandson. the pa- triot printer of the Revolution and the major of
Colonel John Bayard's regiment. His life was written by his grandson, John William Wallace, and published in 1884. Vide note on page 284. EDITOR.
3 See, to the same effect, Governor Tryon's re- port in 1774, "Doc. Hist. N. Y.," 1 : 754.
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the province remained in theory of limited effect down to the War of Independence. The opinion of Sir John Randolph, a very eminent Virginian lawyer of the last century, given about 1733, on the case of Cosby vs. Van Dam, truly states "that as New York was a conquered country it is very probable something may have been stipulated be- tween the crown of England in behalf of the subjects of Holland which were left there in possession of their estates and so became subjects to England. If there was any such treaty that must be looked upon as the fundamental law of the Province." The nature of the stipulation alluded to by the Virginian has also been discussed in the preceding volume (Chapter XIV). But in addition to the Dutch law reserved by the "Articles of Surrender," there was (pursuant to a principle or canon of all systems of recognized jurisprudence) a certain vague and undefined substratum of Dutch law left standing, for the laws of the conquered always remain in force until expressly abrogated by the conqueror. In the outline of the laws of the preced- ing century the course of this gradual abrogation of the Dutch com- mon law was noticed. Yet limited portions of the Dutch law, by the very force of this fundamental canon of jurisprudence, remained lurk- ing in the law of New-York after it had been long an English prov- ince. It is evident that such portions of the Dutch law would be of very limited application, and would affect, in the main, the rights in particular pieces of property originally held by Dutch subjects under Dutch ground-briefs before the capitulation of 1664. The total ab- sence of any systematic colonial law reports prevents our determining precisely how the English courts of the province, other than the pro- bate courts, dealt with this branch of the law of New-York prior to the Revolution. The courts of New-York, in this century and under the State government, have, with no very great consistency of prin- ciple, occasionally given effect to a limited portion of the ancient Dutch law of New-York, in a manner which enables us now to de- termine that only the isolated portion of such original Dutch law denoted was, after the year 1674, recognized by the courts of the province. As there are no reports of cases on this subject during the colonial epoch, it is not necessary to speculate further on this branch of the jurisprudence of the province.
In addition to the portions of the English common law in force here, the main source of law in the province of New-York prior to the Revolution was the legislative assembly of the province. Within its own sphere of action the laws enacted by this body were as effectual as acts of the parliament in England. From the year 1691 the acts of assembly are in print, but the collections extant are extremely incom- plete. After the year 1694, the laws were printed session by session. Bradford the printer continued, as the laws were struck off, to make
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK. 593
the pagination of the sheets successive, and the members bound them according to fancy, so that some of the earlier volumes now extant contain more laws than others. In the year 1710 the legislature di- rected William Bradford to print all the laws in force " since the arri- val of Colonel Sloughter";1 but in 1741 the house still remarked how "incorrectly the laws of New York had been printed and bound up," and resolved to employ Mr. Horsmanden, afterward the chief justice of New-York, to revise them. This he failed to do, and in the year 1750 another act "to revise, digest, and print the laws of the Colony"? was passed. The latter act also recites that the laws of New-York had from time to time been "very incorrectly printed and irregularly bound up." The first volume of this revision was made by Messrs. Livingston and Smith, and was published in 1752, and the second in 1762. The revisers announced that they had omitted many acts which they had been unable to find, and censured the earlier editions for con- taining "acts which have been practiced upon that were never passed by the whole legislature," and for omitting others duly passed. So bad was the condition of the printed laws, in part probably due to the power reserved to the crown of rejecting all acts of assembly after an examination, that in 1753 the lords justices of England recom- mended a codification of all the laws of New-York. But the assem- bly declined this proposition on account of the expense incurred in the Livingston and Smith revision.3 The last revision prior to inde- pendence was undertaken by Peter Van Schaack, pursuant to an act of assembly passed in 1772.4 It contains, in addition to the laws included in Livingston and Smith's revision, the acts passed between 1753 and March 8, 1773.5 The remaining acts of the provincial assembly, passed in the years 1774 and 1775, were published in one volume by the pub- lic printer, Hugh Gaine. The published laws, however adequate they may be for judicial purposes, do not accurately show the course of legislation in the province even after the year 1691, while they wholly fail to include the laws of the earlier assemblies, which had been en- acted and approved in due form. Of nearly two thousand statutes passed between 1691 and the American Revolution, hardly one third have been published, while others not approved or rejected have been treated with the authority once accorded to a rescript of a Roman em- peror. There is a great need, therefore, of a new edition of the colonial laws of New-York, similar to that undertaken in several others of the older States. In such an edition it would be possible to determine what acts had been rejected by the crown and the lord proprietor, and the fate of others only tentative or provisional. As it now is, the
1 " Assembly Journal," November 12, 1709.
? Livingston and Smith's "Laws of New-York," 1: 443.
$ " Assembly Journal," May 30 and June 1, 1753. + Ch. 1543, Van Schaack's Laws, p. 676. 5 13 Geo. III.
VOL. II .- 38.
594.
HISTORY OF NEW-YORK
subject is in much confusion, owing to the fact that the laws of a provincial assembly were like the by-laws of a private corporation- effectual only when they were authenticated in the manner prescribed by the fundamental law. So much for the form of the law in the province.
The substance of the jurisprudence of the province of New-York did not materially differ in theory from the contemporary law of England; but in practice there was a wide departure from many portions of the law of the older country which had no applica- tion to the conditions prevailing here. Such differences were slowly evolved by the courts or emphasized by the local legislature, yet the rationale of the English common law was always the animating element of the juris- prudence of New-York, at least after Saukeckelt the overthrow of the Dutch jurispru- dence in the manner pointed out in Chapter XIV of the preceding vol- ume. Mr. Smith, the historian, himself a member of the New-York bar, said in 1756, "the laws of our mother country have gradually obtained here."' This is, however, a general statement which re- quires the modification indicated. For example: the law of real property and the methods of conveyancing were essentially differ- ent in this province from the practice of England. In some man- ner many other institutes of the law had, either from accident or design, acquired a local flavor which denoted the beginning of a separate and particular jurisprudence.
It was not, however, to the changes in the form of the law introduced here that the best work of the assembly was directed. Throughout the entire period of its existence the assembly of the province was oc- cupied in a struggle with the English governing authorities for legis- lative supremacy. The "Charter of Libertys" of 1683 had asserted the doctrine of "taxation only by consent," from which there was no recession. After 1691 the assembly made a stand for their right to dis- pose of the revenue of the province through officers of their own selection, and exhausted themselves and their ingenuity in combating demands for a permanent revenue to the crown. In order to secure frequent assemblies and elections by the freeholders of the province they constantly refused appropriations beyond a year's requirements
1 Hist. N. Y., 1: 320.
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 595
of the crown government. They resisted all blandishments and bribes, and stood so boldly for the principles of home rule that, as Governor Hunter wrote to Dean Swift, "the Assembly claimed all the privileges of the House of Commons." When the crown finally de- manded a permanent revenue, "solid, indefinite, and without limita- tions," the assembly and not the crown was victorious, and the demand was withdrawn. Nowhere else did the colonial prerogatives of the crown meet with a more determined and obstinate resistance than in the New-York assembly. Indeed, as has been well said by a most acute writer, the sum of the entire political philosophy of New-York prior to the Revolution was "that England having granted New- York a representative assembly was bound to abide by the logic of that grant as it was illustrated and enforced in the history of her own Commons."1 In these efforts New-York was in advance of the other American colonies. Thus it happened that whether the question took the form of the crown's right to establish courts in New-York with- out an act of assembly, or of objections to a permanent revenue or to the tenure of the local judiciary, the assembly always stood for the highest conceptions of representative government. In these posi- tions they were consistent advocates of a local autonomy, and stood shoulder to shoulder with the more advanced thinkers on political questions elsewhere, who never admitted the abstract right of the English parliament to extend the operations of its acts to territories unrepresented. This consistency is the highest title to distinction of the New-York colonial assembly, and it is inconsequential, even if true, as asserted by the colonial historian Smith,2 that they refrained from much meddling with the common law of England through a sense of their incompetence and ignorance- a result Mr. Smith thought highly advantageous to the condition of the jurisprudence of the province. The extent of the power of the legislature of the prov- ince to punish a contempt of its authority has been much discussed,3 without noticing the case of Christopher Den in 1708, when the New- York assembly punished vigorously a slight interference, committed beyond the precincts of the house, against the liberty of a member.4 In practice the assembly of New-York assumed such powers of par- liament as were essential to efficiency and freedom of action.
The judicial establishment of the province at the outbreak of the Revolution continued on the footing of the preceding century. The courts of the justices of the peace for the trial of small causes had stood from the year 1683. The jurisdiction of the courts of common pleas in the city of New-York could be traced back even to the
1 S. N. Dexter North's "Constitutional Develop- ment of New York," Mag. Amer. Hist., 3: 161. 2 Hist. N. Y., 1 : 320.
3 People ex rel McDonald vs. Keeler, Sheriff, 32 Hun. 563. + Journal of N. Y. Assembly, October 15 and 22, 1708.
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Dutch epoch; the Supreme Court, which was the main law court of the province in causes involving more than twenty pounds, owed its jurisdiction to the ordinances of the royal governor referred to in the preceding volume of this work.1 The Court of Chancery had been established in 1683, and continued in like manner with the Supreme Court. The Court of Appeal in the province consisted of the governor and council, and had an appellate jurisdiction after 1753 in all cases involving five hundred pounds or more; prior to the year 1753, in all cases involving one hundred pounds or upward. In suits concerning the English Church, the appellate jurisdiction was not, however, restricted in amount. In addition to these courts were the courts of admiralty and the prerogative court with its pro- bate jurisdiction. Both of the latter courts had at the outbreak of the Revolution been established for more than a century, and their respective maritime and ecclesiastical jurisdictions were entirely clear and defined.2 The jurisdiction of the high law courts of the
ยท province was coextensive with that of the great English courts whose powers had been assigned to them as an exemplar; whilst that of the Court of Chancery of New-York was similar to that of the High Court of Chancery in England. Thus the judicial establishment of the province of New-York was simply that of England in miniature. It was an easy solution of all difficulties thus to invest these courts with the established common-law jurisdictions of the ancient courts of England.
Any account of the judicial establishment of New-York would be remiss in failing to point out that both the great courts of the prov- ince - the Supreme Court and the Court of Chancery-stood upon the footing of an ordinance of the royal governor, and owed their re- spective jurisdictions to the royal prerogative. While this power was always violently disputed in the province of New-York, where it was asserted that after the establishment of representative government the king could not erect courts of judicature without consent of the provincial assembly, yet even to this day the fundamental jurisdic- tions of the courts of New-York have no better origin than that indicated. Those who reasoned on the side of the crown's power as- serted that by erecting courts in the colonies the crown did not claim the right of enacting the jurisdictions of such courts or the laws by which they were to act. The crown merely named the court and the judges; the jurisdiction was settled by the laws of the realm and by immemorial usage. Such a course of reasoning undoubtedly guided
1 Vol. I, Chap. XIV.
" For a general view of the provincial courts of New-York, see Daly's "Judicial Organization of
. the State," I; E. D. Smith's "Reports," p. xvii; Street's "New-York Council of Revision"; "New-
York Civil List" of 1867, and 19 "Albany Law Journal," pp. 66-489; also Paine and Duer's " Prac. tice" and Graham's "Treatise on the Organiza- tion and Jurisdiction of the Courts of New-York."
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 597
those who first established the provincial courts, and led to the trans- fer of settled, rather than novel, powers and jurisdictions. While this line of argument answered very well in the case of the common-law courts, it was thought not to apply to the more undefined jurisdiction of the Court of Chancery in New-York; and in the case of Cosby vs. Van Dam (cited above) this distinction was taken by counsel, and it was urged that the king, by the common law, could not erect courts of equity by ordinance, some very ancient English authorities touching the prerogative being cited in support of this distinction. But by the time of the American Revolution it was tolerably well agreed that the crown1 could erect courts of equity in the col- onies without the assent of the legis- lature of a crown province. In any event, as thus erected by ordinance, the great courts of the province passed into the new order of things brought about by the War of Independence.
In all these tribunals except the chan- cery, trials by jury were demandable of right, and even in the justices' courts, empowered to try all causes to the amount of five pounds currency, juries of six men might be demanded by either party. The courts of criminal jurisdiction also corresponded to those in England. The Supreme Court exercised it in the city of New- York, as the King's Bench did at Westminster, and when the justices of the Supreme Court went the circuit they carried commissions of Oyer and Terminer and general jail delivery. In addition to these courts, courts of sessions were held by the justices of the peace, the powers and proceedings of which corresponded with the like courts in England. By an act of the legislature of the province any three jus- tices of the peace had a summary jurisdiction to try, with or without a jury, a party held for any offense under the degree of grand larceny, and to inflict punishment for small offenses where the party could not find bail within forty-eight hours.
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