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 67
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The jurisdiction of the provincial courts thus established, as has been already pointed out, did not differ materially from their English prototypes. The Supreme Court, as the King's Bench of the province,
1 Since the beginning of the present century the power of the crown to erect courts which do not proceed according to the course of the com- mon law in the colonies is denied. (See Forsyth's
" Opinions on the Constitution," p. 272.) Before this the opinion was otherwise. (Chalmers's "Colo- nial Opinions," p. 194; Forsyth, " Opinions on the Constitution," p. 169.)
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issued the great prerogative writs, and its justices had the superin- tending authority of the supreme justiciars in England. The works on practice and jurisdiction current in England in the last century were of equal authority here, and the courts of the province followed their principles in taking cognizance of causes. The Court of Chancery of the province had the judicial powers of the English court, but not the powers which the lord high chancellor exercised as a great officer of state. After the establishment of the State government, there was much discussion and some divergent opinions touching the extent of the jurisdiction of the original Court of Chancery of New-York.
The chief justice of the Supreme Court was always a salaried offi- cial, and after 1702 had certain perquisites. The associate justices were ultimately paid in like manner. The Court of Chancery was held at first by the governor and council or the law members of the council, but subsequently by the governors alone. Many of the latter were entirely inadequate to the performance of the duties of chancel- lor, but as they were assisted by a corps of professional masters, exam- iners, registrars, and clerks, the usual officers in the English courts of equity, the governors managed to perform the routine duties of the office. It is a very interesting fact that though many of the English colonies had no court of chancery, this institution was established in New-York as early as 1683, a time when few of the leading doctrines and edicts of the English Court of Chancery -which has done so much to ameliorate the conditions of English civilization - had been formulated; so that the establishment of the court in New-York actually preceded the era of the great English chancellors Notting- ham, Somers, Cowper, Macclesfield, Hardwicke, and Eldon. While many of the provincials questioned the propriety of the erection of this court by royal ordinance, they often admitted the advantages of the court by attempting to fix its jurisdiction by acts of assembly, and finally by permitting this tribunal to survive the War of Indepen- dence. In this course they recognized the nature and growth of the early forms of English jurisprudence, which depended on two forces- the rule and the exception. The common-law courts dealt with the rule, the chancery courts with the exception. From these two ele- ments was finally evolved a consistent and rational principle com- bining law and equity. Irrespective of the actual work accomplished, the mere existence of a court of chancery in an English-speaking state in the seventeenth and eighteenth centuries operated poten-
- tially as an amelioration of the rigors of contemporary law. It would not be singular if these subtle forces, operating so early in New-York, ultimately led to its preeminence in the field of equity, where it ac- complished most toward the development of the jurisprudence of the United States.
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The tenure of the judiciary of the province was regarded by the people of New-York as a weak point in the governmental establish- ment, for so long as the judges were appointed by the crown or its delegates, without the consent of the local government, so long the judgments of the tribunals would at times be regarded with suspicion in the province. But the astuteness of the assembly did something toward remedying this defect, for by a series of resolves (not acts of the legislature) they fixed the compensation of the judges and attor- ney-general for short periods and in a man- ner which operated as an easy check on the pro-prerogative tenden- cies of these gentry. At THE FLY MARKET.1 the death of King George II., October 25, 1760, the commissions of the judges were thought to have expired, and as they held them then during good behavior, or quamdiu bene gesserint, it was an anxious moment in the province. The chief-justiceship was then vacant by the death of De Lancey, who had held office under a commission dur- ing good behavior. The lieutenant-governor, Colden, seized the occa- sion to strengthen the crown, and offered to renew the commissions of the junior judges to run during the king's pleasure, which was declined. Benjamin Pratt, of Boston, an accomplished lawyer, was accordingly made chief justice, but as he was a stranger to the local practice and the junior judges refused to sit with him and the as- sembly to grant him a salary, he soon returned to Boston. Owing to the fact that the province was greatly inconvenienced by the want of courts, the old judges finally accepted commissions to run during the king's pleasure. The commissions continued so to run until the War of Independence.
As the constitution and laws of the province were materially influ- enced by the courts of justice, the nature of the judicial establish- ment has been indicated. The extent of its power in molding institutions is perhaps best illustrated by the manner in which that most famous writ in English law, the great writ of habeas corpus, was domesticated here. It was said that the habeas corpus act (31 Car. II.) did not extend here;2 but as early as 1689, in the case of Philip French, committed to prison by Leisler, the writ was issued, and it finally became a common practice (as in Makemie's case cited) to issue 1 The Fly Market was located at the foot of Maiden Lane. ED. 2 Doc. rel. Col. Hist. N. Y., 3: 357.
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the writ here, thus justifying the statement of Hallam,1 that the habeas corpus act was only a declaratory act, "and introduced no new prin- ciple nor conferred any right upon the subject."
By the time of the Revolution the practice in the law courts of New-York and the jurisprudence of the province had assumed in some aspects a character of their own, some features of which were first formally pointed out in the year 1794 by William Wyche, formerly of Gray's Inn, London, in his "Treatise on the Practice of the Supreme Court of Judicature of New York."
Toward the end of the provincial epoch the members of the bar of the province had come to enjoy a very high character, and to recall
their excellence it need only be re- membered that they were the preceptors of some of the founders of the federal govern- ment and of nearly all the dis- tinguished lead- ers of the bar of New-York prior to the year 1800. WASHINGTON'S HEADQUARTERS AT NEWBURGH. A complete his- tory of the bar of the last century would be almost the history of in- dependence. Long ago, in language which has since been adopted by far higher authority,2 the writer of this chapter pointed out that the lawyers of the colonies were of necessity better fitted for constitution- making than any body of legislators in the world. This fitness was due to the fact that their whole professional vocation had been con- cerned with the process of adapting old laws to new conditions. The English colonial law consisted largely of a series of acts and decisions dealing with new social and political factors. The daily problem of the early American lawyers, therefore, was how to treat best the new conditions of society. Necessarily they had more constant reference than the English lawyers of that day to the speculative writings of those philosophic legists who dealt with abstract problems of legis- lation, government, and the philosophy of history. But their specu- lations were tempered by sound canons found in English law only, and such speculations, therefore, were restrained within proper limits.
1 Hallam's "Constitutional History of England," 3: 19.
2"Constitutional History as seen in American Law," p. 23.
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Thus it was that the colonial lawyers were unconsciously fitted to be legislators by the very vagueness of the fundamental canon of all English colonial law, namely, that the old jurisprudence must be suited to the new conditions of society before it could have precise application here.
At the outbreak of the American Revolution, the bar of New-York, both politically and socially, was the most influential class of resi- dents in the province. Combined with the large landholders, whose originally wild estates had become valuable and tenanted by force of their natural advantages on the waterways, the lawyers formed the nucleus of a political oligarchy which survived independence. Resident mainly in the colonial trading and seaport capital, the lawyers of New-York, as befitted their surroundings, were simple in their demeanor and habits, and did not even follow many of the other colonies in adopting wigs and gowns or any other distinctive professional dress. They never obeyed a rule of court of 1765 re- quiring counsel to be habited in the bar gown and band used by the English barristers. Indeed, for two hundred and fifty years- so long that it ought to have become a tradition of dignity here- neither the judges nor practitioners of New-York wore any peculiar professional habit in the New-York courts. The usual preparation for the provincial bar was a college education and three years' ap- prenticeship, or, without the college education, seven years' service under an attorney. Licenses were granted, on the recommendation of the chief justice, by the royal governor. In the lower courts the re- quirement for attorneys was even less, and Mr. Smith, the colonial historian, deplores the too widely opened door. But, as at present, the real faculty of advocates was graded upon attainment, which sub- sequent to admission regulated itself.
The practice of the courts of the province, while modeled after the English courts, differed, as has been already intimated, in some par- ticulars, and was in reality more simple. Justices of the Supreme Court, like the English justices, went the circuit, and, until the year 1741, when an act of assembly obviated the necessity to some extent, carried the authority of itinerant English judges in the form of spe- cial commissions of the peace and nisi prius, as well as commissions of Oyer and Terminer and jail delivery. The act of 1741 did not affect the latter commissions, which continued to be issued until the establishment of the State government. The sessions in banc of the Supreme Court were held within the city of New-York in the old City Hall. The Court of Chancery was generally held in the fort.
But we are not left to the deductions of historians for an account of the state of the civil institutions of the province at the end of the British domination. A report of Governor William Tryon, who was
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the last crown governor recognized by the people of New-York, made to the lords of trade in June, 1774,1 contains a very excellent precis of the institutions then existing in New-York. In answer to an inquiry of the lords of trade, he reports that from the time of the accession of the Duke of York, New-York had been
a royal government and in its constitution nearly resembles that of Great Britain and the other Royal governments in America. The governor is appointed by the King during his Royal Will and pleasure by Letters Pattent under the Great Seal of Great Britain with very ample powers. He has a Council in Imitation of His Majesty's Privy Council. This Board when full consists of Twelve Members who are also appointed by the Crown during Will and Pleasure ; any three of whom make a Quorum. The province enjoys a Legislative body, which consists of the governor as the King's Representative ; the Council in the place of the House of Lords and the representatives of the Peo- ple who are chosen as in England. Of these the City of New York sends four .- All the other Counties (ex- cept the new Counties of Charlotte and Gloucester as yet not represented) send two. The Borough of West- chester, the Township of Schenectady and the three Manors of Rensselaerwyck, Livingston and Cortlandt each send one; in the whole forming a Body of Thirty- one Representatives. The governor by his commission is authorized to convene them with the advice of the Jos. Reed" Council, and adjourn, prorogue or dissolve the General Assembly as he shall judge necessary. This body has not power to make any Laws repugnant to the Laws and Statutes of Great Britain. All Laws proposed to be made by this Provincial Legis- lature, pass thro' each of the Houses of Council and Assembly as Bills do thro' the House of Commons and House of Lords in England, and the governor has a negative voice in the making and passing of all such Laws. Every law so passed is to be trans- mitted to His Majesty under the Great Seal of the Province, within three months or sooner after the making thereof and a Duplicate by the next conveyance, in order to be approved or disallowed by his Majesty; And if His Majesty shall disallow any such Law and the same is signified to the governor under the Royal Sign manual or by Order of his Majesty's Privy Council, from thence forth such law becomes utterly void. A law of the province has limited the duration of the Assembly to seven years.
At the date of the War of Independence, the city of New-York had long been the center of the political and commercial life of the province. Indeed, as the seat of the courts and the legislature, the residence of the leading crown officials, a garrison town, and, above all, as the chief mart and seaport of the territory, it was then rela- tively as important in the economy of the whole people of New-York
1 Doc. Hist. N. Y., 1: 739-772.
2 From an exceedingly rare collection of thirteen portraits of "American Legislators, Patriots and Soldiers." drawn from life by Du Simitière, and published by Richardson of London in 1783. The
other portraits in the quarto volume, in possession of the writer. are Washington, Steuben. Deane. Morris, Gates, Jay. Drayton, Laurens. Thompson. Huntington, Dickinson, and Arnold, given in the order named, Reed being the fourth. EDITOR.
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as it has ever been since. To be sure, its population had attained only to about twenty thousand, which was about one tenth that of the entire province; but among these twenty thousand burghers, the officials naturally counted for much more than one each. Since the beginning of the century the city had grown from five thousand to twenty thousand inhabi- tants, or fourfold, while the ratio of increase in the other parts of the province had been much greater.
Until the year 1730 the city derived its corporate authority from the Don- gan Charter of 1686, which, while confirming the prior charters and recognizing the city as an ancient Dutch municipality, had SEAL OF 1777. yet provided that no right or franchise anciently held or enjoyed should be inconsistent with or repugnant to the laws of England or the general assembly of the province. The Dongan Charter omitted to provide for the happening of vacancies during the municipal year, and in 1702 Lord Cornbury reported a bill passed by the assembly to remedy this defect. In 1708 a charter of importance to the corpora- tion was granted, relative to certain dock and ferry rights and privi- leges. It seems that the Dongan Charter had been erroneously sealed with the ducal seal, although it was granted after the accession of the Duke of York to the throne. In the year 1730 the city fathers petitioned Governor Montgomerie to validate the defect in the sealing of the charter. They also requested that the mayor be empowered to appoint a deputy to succeed in case of the absence or death of the former; that the ordinances of the common council might remain in force for twelve months instead of three; and that the offices of mayor, recorder, sheriff, coroner, and town clerk might be made elective. The Montgomerie Charter granted all the requests except the last.1 This instrument and the earlier Dongan Charter were founded almost entirely on English precedents, and the powers of the municipal officers are to be traced mainly in the history of English municipal- ities. The early charter of the city of New-York much resembles that of Norwich,2 but as the sheriff was a county officer, the desire to retain in this position the old schout of the Dutch made the limits of the city of New-York conterminous with the county lines.
1 See an excellent paper on the charters of New-York, by Professor John Franklin Jameson, Mag. of Amer. Hist., 8 : 315, 598. 2 Mag. of Amer. Hist., 8 : 609.
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The charter of 1730, known as the "Montgomerie Charter," was much longer lived than its predecessor. The later charter declared that the city should remain a "free city." It owed its effect to the royal prerogative, although the assembly confirmed it by an act passed October 14, 1732. In the sense that the city was to remain internally free from legislative interference, it never was free; yet the assembly of the province did not attempt to circumscribe the muni- cipal jurisdiction as laid down in the charter, or to subtract from it any of its ancient privileges. In this sense the city was a "free city." The Montgomerie Charter survived the War of Independence, and was confirmed by the State constitutions of 1777 and 1821, although the latter rendered the mayor, sheriff, and coroner appointive by the common council of the city. Prior to 1821 they had been appointed at first by the royal governor, and next by the governor of the State and his council of appointment, on the day of St. Michael the Arch- angel, or September 29.
From 1686 down to the year 1804 the "freedom of the city" meant a great deal, and conferred upon its recipient, among other privileges, that of voting for certain municipal officers, and of being exempt from serving as juryman or assessor out of the limits of the free city. Thus, from the founda- PITT STATUE.1 tion of the city to the beginning of the present century the status of the freemen of the city of New-York was the most desirable one in the entire commonwealth, not excepting that of the city of Albany, which enjoyed similar privileges. In the thinly settled country outside of the city of New-York, the population was composed mainly of agriculturists when the War of Independence be- gan. In fact, a decade after the war there were few urban communi- ties of any size. Albany, although an ancient Dutch settlement, then contained hardly three thousand souls. There were, in addition to Albany, several shire-towns of importance in the province, and a number of market-villages, but even in these the population was largely agricultural in character. Outside of the manors, the farmers then generally owned their farms in fee simple, and were a fine stock of native provincials of English and Dutch descent, with a sprinkling of people of other nations-Huguenots, Germans, Scotch, and Irish. Owing, however, to the fact that the manor grants had at a very early day improvidently conveyed away much of the now accessible and
1 The above illustration shows the condition to which the statue of William Pitt was reduced by the British soldiery. It excited their animosity because it had been erected by the citizens in re-
cognition of Pitt's warm sympathy with their cause previous to the actual Revolution.
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CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 605
fertile lands, a large part of the population of the province were then tenant-farmers. It is difficult for us now to comprehend how much of the available wild forest-lands of the province had, for little or no consideration, been conveyed away in the seventeenth century to a few applicants of no particular distinction. Sauthiers's map of 1779 shows that of the lands near the water highways of New- York, nearly all the east bank of the Hudson was composed of the manors of Philipseborough, Scarsdale, Pelham, Morrisania, Fordham, Cortlandt, Livingston, and Van Rensselaer; or was embraced in the Rombout and Philipse patents. Much of Long Island was also pat- ented. In several counties, notably Orange and Ulster, the lands were generally owned in fee simple by the occupants. In the manors the tenures were of the nature of leaseholds, which had greatly re- tarded the settlement of the province. Lord Bellomont, in the seven- teenth century, pronounced the manor grants fraudulent; and as early as 1732, Cadwallader Colden, then surveyor-general of the prov- ince, said that where these large grants were made the country remained uncultivated. He adds : " And every year the Young people go from this Province and purchase Land in the neighboring Colonies, while much better and every way more convenient Lands lie useless to the King and Country. The reason of this is that the Grantees themselves are not, nor never were, in a Capacity to im- prove such large Tracts, and other People will not become their Vassals or Tenants; for one great reason as peoples (the better sort especially) leaving their native Country was to avoid the depen- dence on landlords, and to enjoy lands in fee to descend to their pos- terity, that their children may reap the benefit of their labour and industry."1
Notwithstanding the reasonable moral objections to the vast grants of territory to speculators who were not, as in some of the other colonies, persons of capital or influence in the Old World, and able to improve them, nevertheless by the year 1775 the manors had, owing to their greater accessibility to market, become very well tenanted. These manor grants of New-York evince strongly the tendency of men to reproduce old forms under new conditions. In deference to custom such grants contained a right - seldom or never exercised here - to hold courts leet and baron, which last was the essence of a manor in English law. Sometimes the grants conferred the right of advowson or presentation to church livings. Yet at the time the manor grants were thus drawn, in the correct and stereotyped phrase- ology of the ancient English precedents, only a few Indian nomads and wild beasts ever broke the silence of the primeval forests which densely covered these tentative manors. But in the eighteenth cen-
1 Doc. Hist. N. Y., 1 : 384.
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tury matters had greatly changed, and the descendants of the original manor proprietors had become the real capitalistic class in the pror- ince, and until the rise of the purely mercantile fortunes such propri- etors largely monopolized the leisure necessary for political pursuits. They thus became influential politi- cians. Indeed, the relations of the proprietors to the crown authorities became each year more fixed and asser- tive, and to some extent these large landholders had before 1775 come to resemble the more influential members of the squirearchy and lairds of Eng- land and Scotland. Yet the ownership of a New-York manor conferred no peculiar privilege or political status on the proprietor, and no title of no- bility, as it is sometimes erroneously said.1 As the value of land increased, the influence and power of the large landed proprietors were augmented, and toward the middle of the eighteenth century, by alliances between the landed families and the more influential of the crown officers stationed in the province, they had come to have a sensible political interest which they exercised to the fullest extent.2 But influence is a very different thing from privilege, and before the War of Independence there was no privileged class of freemen in the province. The jurisdiction of the crown, the sheriff, and the courts of justice was similar, whether in the manor lands or in the non-manorial lands of the province. In the War of Independence most of the manor proprietors espoused the cause of the Revolution, and their estates were saved to them. In this course they were entirely consistent, for in the provincial period they had joined in the constitutional efforts made to restrict the Eng- lish authority within bounds which were consistent with the security of those dignities and liberties that the proprietors had been so fortunate as to attain in the new country. They had thus allied themselves with the best constitutional development from the earliest history of the province. But when the constitution of 1777 was formed, the interest of the landowners of the province was sedu- lously guarded, and by the thirty-sixth section of the constitution, all grants from the crown were expressly confirmed unless made
1 De Lancey's "Origin and History of Manors in New York," p. 87. 2 Smith's "History of the Province of New York in 1762," 2: 142.
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