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 69
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12 and 13 Wm. III., c. 2. 2 Charles O'Conor, "the Constitution," New-York, 1877. p. 8.
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the military authority, and with the hope of reestablishing the civil authority, the crown, in 1780, commissioned Lieutenant-General Rob- ertson as civil governor of the province, and on March 23 of that year, his commission was read with the usual ceremonies at the City Hall in New-York.1 A provincial council, with the usual powers, legislative, judicial, and executive, was again designated, and the greater part of the former civil machinery was reestablished. The records of the prerogative court under the royalist governor remain during this period the repository of wills and probates affecting prop- erty in the lower counties. General Robertson's commission as gov- ernor was, however, never recognized by the State, although under the final treaty his political authority was complete within his jurisdiction until the formal evacuation of the province.
The State government established at Kingston, April 20, 1777, was, until 1783, itinerant and desultory, while its actual jurisdiction was confined to the upper river counties. Before adjourning, the convention which had framed their constitution desig- nated a committee to report a plan for organ- izing the government agreed to by the convention. This committee, in order to provide for the temporary representation of those counties within the British lines, re- CLINTON ARMS. ported a plan, subsequently acted on, by which delegates to the assembly were chosen to represent the counties within the royalist lines by the members elected in the State's juris- diction. The convention continued in session until May 13, 1777, when it finally dissolved, having previously appointed a committee or council of safety to administer the government until the organ- ization contemplated by the convention should be perfected. A temporary judiciary was designated, consisting of Robert R. Living- ston as chancellor, John Jay as chief justice, and Robert Yates and John Sloss Hobart as puisne justices of the Supreme Court. They were to hold office until a permanent judiciary was appointed by the council of appointment in the manner prescribed by the new constitution. The proceedings of the council of safety intrusted with the temporary government of the State, though historically inter- esting, are unimportant to the subject of this chapter. The "re- solves" of the provincial congresses and convention - the purely Revolutionary government-were, by the thirty-fifth section of the
1 N. Y. Gazette, March 28, 1780. 2 1 Journ. Provincial Convention, 916.
F
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constitution of 1777, made a part of the fundamental law of the State, provided they were not repugnant to the constitution. Yet, in a permanent sense, these "resolves" were not important to the jurisprudence of the State, for as late as 1818 no copy of them was to be found in the State archives.1 It was not until 1842 that the legis- lature directed that these "resolves" be printed, so that the legislative records of the State might be complete and accessible. They were generally of a temporary or provisional char- acter, and had no enduring effect. The "re- solves" of the provincial convention were of a higher order than those of the congresses. By one "resolve" of the convention, the quit-rents due to the crown by the holders of land in the province were vested in the State .? This "resolve" served a double purpose-it was a formal act of confiscation or escheat of the estate of the crown, and it preserved the rela- EXITUS ACTA PROBAT tions existing under the socage tenure between George Washington the landowners and the head of the State. This subject received further consideration in the year 1779, and again in 1798.3 WASHINGTONS' BOOK-PLATE.
At an early period of the State government the condition of the laws attracted the attention of the authorities. At the opening of the second session of the State legislature (October, 1778), Governor Clinton, in his annual message, said: "By the 35th Section of our Con- stitution the laws of this State are necessarily become complicate, and as every member of society is materially interested in the know- ledge of the laws by which he is governed, I am induced to believe a careful revision of the laws of this State would be an acceptable service to your constituents and attended with the most salutary effects." In pursuance of this resolution, a committee was appointed to ascertain what laws were expiring and what new laws were neces- sary. Nothing of importance, however, was done toward the revision until after independence was assured. In 1779, long and confidently anticipating the time when the English power should be completely broken and the State in the control of the new authorities, the State legislature, sitting at Poughkeepsie, passed an act providing for the temporary government of the southern part of the State by a com- mission. But not until 1783 could this measure be effected, and then for several months it was in operation, and the southern counties were governed by a legislative commission until a general election for members of the assembly was held.
1 Journ. N. Y. Assembly, Feb. 11, 1818, p. 156. 2 Journ. Prov. Conv., 554. 3 Laws of N. Y., c. 33.
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When the definitive treaty of peace was signed with England, and the evacuation of 1783 completed, the independent State government would have been completely sovereign here had it not been for the articles of confederation between the various colonies, effectuated in this State by an act1 passed February 6, 1778. Before proceeding farther with this narrative of events, we should glance at the effect which these celebrated articles and the subsequent federal constitu- tion had upon the sovereign power of the new State government. These instruments in question may be and are regarded from two opposite points of view : as expressions either of political conditions actually subsisting between the colonies, or else of relations created anew by conventions expressed in the instruments themselves. His- torically speaking, neither the articles of confederation nor the sub- sequent constitution were the first efforts to form a union of the seaboard colonies of England. The first Count bas fathery ? formal declaration of a living principle in national unity was as early as 1643. In that year the New England planta- tions confederated for united action of a defensive nature. By the terms of this union each colony preserved its jurisdiction and powers of internal government intact, and without regard to size or population was represented by the same number of delegates at the federal council. As this example was independent of outside dictation, the civil war then raging in England, it may be re- garded in the light of subsequent events as establishing a spontaneous principle of national union which, for convenience, may be called the decentralized principle. The plan of the convention of 1754, though abortive,-it being rejected by both English and Americans,- had some regard for the same principle. The Stamp Act Congress of 1765 is important politically rather than as a manifestation of any principle in national unity. The congresses of 1774, 1775, and 1776 enunciated a like principle, and in these national councils each of the colonies had an equal voice. Thus we perceive that all the prior political unions of the colonies were pursuant to that principle of decentralization ultimately embodied in the union. The Declaration of Independence declared the allegiance to the British crown absolved and the "United Colonies" free and independent States. This language and that of the subsequent terms of union, the federal constitution, gave rise to the celebrated controversy concerning the nature and extent of State sovereignty, a controversy much simplified if we have regard to the
1 1 Jones and Varick, 15.
2 The autographs of the burgomasters of New Amsterdam - Van Hattem. Crigier, Anthony, Van- diegrist, and Van Brugh - which appear on this page and on others following, were obtained too
late to insert in their proper places in the first volume. Those of Burgomasters Steenwyck and De Peyster have already appeared there.
EDITOR.
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 619
fact that the colonists could not, according to all accepted canons of the publicists, rebel as colonies, but only as individuals. Conse- quently they could only succeed in subverting the ancient English sovereignty and authority as individuals living in separated commu- nities. Successful rebellion always transfers the sovereignty from the unsuccessful to the successful. Thus, in the eye of the publicist, individuals living in the province of New-York succeeded to the en- tire political authority of the former government in New-York, and they also succeeded, in common with the warring people in all the other colonies, to the subverted general authority of the crown in its relations to the other seaboard colonies. There was no question that the people of a particular colony suc- ceeded to the former sovereignty over that colony; the real question related to the manner in which they succeeded to certain imperial prerogatives of the crown, of far more general extent. A close analysis will perhaps demonstrate that the subverted imperial authority was ultimately invested by the people of all the colonies in the new general or federal government, and that the subverted sovereignty in a particular colony was transferred by its recipients THE STATE OF NEW YORK to the new State government. If we Camel toe Jameine of may act on this rigid analysis, it may be said that the original articles of con- federation failed to express the real partition of the subverted political power, while the federal constitution MONTGOMERY'S MONUMENT. of 1787 accurately expressed the relations which the people in all the original colonies antecedently bore to the new order of things.
While the articles of confederation were articles of perpetual union, which invested a single chamber, in which each State had an equal vote, with certain portions of the ancient imperial authority, yet they were regarded by Washington, Jefferson, Hamilton, Adams, and many other statesmen of that day as purely provisional and temporary. To some extent they regulated merely the status belli of the thir- teen communities engaged in the pending war, and they were com- monly regarded as preserving to each State its practical autonomy and as regulating only its external and foreign relations rather than its internal and domestic conditions. The federal constitution, how- ever, did declare the natural limitations of the autonomy of the State, and subordinated it in the sphere of federal law to the authority of the
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people of all the States (including its own), without reference to State demarcations of territory. The ratification in 1788 by New-York of the federal constitution brought it in the class of States called by the publicists "imperfectly sovereign." Its status as a member of the federal union was thereby fixed, whether in conformity or not to the preexisting facts, so that it retained complete jurisdiction of some departments of law and an inferior jurisdiction of other departments. The state in one aspect was now as sovereign as the most independent State, while in another aspect it had not the power and jurisdiction of a free and independent State, for its citizens were also citizens of another and larger government, but one of limited powers. Both governments could punish the same persons for treason against their several authority. The limitations of this dual citizenship in the na- tion and the State form the most subtle and interesting of the forces now at work making the nation; but they are extrinsic to our theme. Between these two spheres of government the law detects the most perfect harmony of action. The perfected jurisdiction of each is essen- Ja Rivington tial to the permanence and efficiency of both, and exaggerations of the prescribed authority of either inter- fere with the perfect harmony and adjustment which should reign supreme. It will be noted that the new State government was after 1788 placed back in the relative posi- tion which it had occupied as a province. As a province it had not been what publicists term a perfect State, and as a State of the United States it occupied toward the new general government no very dissimilar position to that it had occupied toward the ancient crown government. Indeed it may be said, with some truth, that the new general government simply succeeded to those prerogatives of the crown which were of an imperial character. But the new king was the entire people of all the colonies acting together in their col- lective political capacity. Had Hamilton's early proposal to have the governors of the States appointed by the federal authorities pre- vailed, the relation of the State to the federal government would have been very similar to those relations which the province bore to the headship in the colonial era.
When the federal constitution came into operation in 1789, the Court of Admiralty of the State of New-York ceased to exist, the constitu- tion having vested the admiralty jurisdiction exclusively in the federal establishment. Prior to 1789 the State claimed the admiralty juris- diction as successor to the crown, and established a local court recog- nized by the State constitution of 1777. Having now pointed out generally the nature of sovereignty in a composite state, we may pro- ceed to the further consideration of the State of New-York, viewed as
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 621
a separate political community. During the Revolution the State legislature had been too much engrossed with the perils of the times to institute any sensible change in the ancient law of the province, perpetuated by the new State constitution. The act to organize the State government was the first step taken;1 it declared, among other things, the jurisdiction of the Court of Probate to be that prerogative jurisdiction formerly exercised by the royal governor as judge of the Court of Probate. It directed the judges of the "four great courts," Chancery, Supreme, Probate, and Admiralty, and of the inferior courts of Common Pleas, to cause seals to be made for their respective courts, and provided that the terms of such courts should begin on the same days as those on which they had been held when under the authority of the crown.
With the cessation of hostili- ties, the legislature of New- York began to turn its attention more vigorously to the condi- POUGHKEEPSIE COURT-HOUSE.2 tion of the laws of the new State. In the year 1782, the first of the series of laws affecting real property was passed.3 Estates tail were converted into estates in fee simple absolute, the law of primogeni- ture was formally abolished, and the canon of descents was made to conform to more rigid conceptions of democratic institutions. In the year 1784 several acts were passed repealing, as repugnant to the new constitution, the immunities, emoluments, and privileges accorded to the Episcopal communion, sometimes called the Church of England, in New-York. All the acts of the assembly of the province by which the inhabitants of New-York, Richmond, Westchester and Queen's counties had been compelled to pay taxes for the support of the Episcopalian clergy were repealed. The repealing clause included the act of 1700, before noticed, directed against Jesuits and Popish priests in New-York.
The journals and records of the assembly disclose that with the year 1786 greater activity in legislation began; the act of 1782 abol- ishing entail and altering the law of descents was now more carefully reenacted. Samuel Jones and Richard Varick were appointed to col- lect and to reduce into proper form for reenactment all such statutes of Great Britain and England and of the colonial legislature as were
1 1 Jones and Varick, 22.
2 In the Poughkeepsie court-house, illustrated above, was held the convention of New-York dele- gates called to discuss the adoption of the federal
constitution. They assembled on June 17, 1788, and on July 11 ratified the new constitution, with some recommendations for amendment. EDITOR. 3 C. 2, Laws 6th Session, 1782.
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continued in force by virtue of the thirty-fifth section of the constitu- tion of 1777.1 The proposed revision was in some respects the most important yet contemplated in New-York. The whole statute law of England and the province was to be explored and revised with the in- tent that when the revision was completed all other statutes should cease to be operative in New -York, under the thirty-fifth section of the constitution of 1777. From time to time the revisers reported to the legislature the revision of the English statutes deemed in force in New-York. The bills thus reported were generally adopted by both the legislature and the council of revision. When the necessary Eng- lish statutes had been thus recast and reenacted, the legislature in 1788 passed an act declaring that after May following "none of the Statutes of England, or of Great Britain shall operate or be con- sidered as laws of this State."2
The revision of Jones and Varick now became the authoritative and final legislative interpretation of the thirty-fifth section of the first John Lamb constitution, in so far as it determined what part of the statutes of England and Great Britain were continued as not repugnant to the new order of things. To enumerate in a brief space the various English statutes substantially incorporated in this revision would be impossible : they illustrated and embodied many of the most important reforms - constitutional and legal - accomplished by the English in the course of their history as a nation. Among the various acts incor- porated in the revision of Jones and Varick was a new bill of rights containing the substance of the most important sections of Magna Charta, the English bill of rights, the habeas corpus act (31 Car. II.), and other acts which are recognized as composing the English constitution. Among the other notable English acts contained in this revision were the statute of uses, 27 Henry VIII., c. 10; the stat- ute of distributions, 22 and 23 Car. III., c. 10; the statute of frauds, including the substance of 13 and 27 Elizabeth against fraudulent conveyances, and of 29 Car. II., c. 3, relative to the memoranda in writing necessary to the enforcement of certain undertakings; a statute of wills taken from 32 Henry VIII. and 29 Car. II .; and a statute of limitations embracing various English acts on the same subject.
There was also an act passed concerning tenures, containing the substance of 12 Car. II., c. 24, which had reformed the earlier English feudal tenures. This act, as revised, contained a new provision to the effect that the tenures of all patents or future grants under the great seal of the State should be allodial and not feudal. This was the be- ginning of the legislation declaring all lands allodial-a reform much
1 C. 35, Laws of 1786. 2 C. 46, Sec. 37, Laws of 1788; 2 J. & V., 282; 19 N. Y., 74.
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 623
vaunted but of little consequence after the statute 12 Car. II., c. 24, so long as escheats were not abolished.
Although the " Act for revising and digesting" the laws directed Messrs. Jones and Varick to correct and reduce all the public acts of the assembly of the late province continued by virtue of the thirty- fifth section of the constitution, yet this part of the contemplated work was not accomplished. The revisers, however, reported a bill repealing a large number of such acts,1 but stated that the acts not so repealed remained operative.2 All the acts of the assembly of the province were not formally repealed until the following cen- tury.3 The revision by Messrs. Jones and Varick may be regarded as the only comprehensive digest or revision of the laws of New- York down to the year 1800. Yet it instituted very few changes in the prior laws, which remained substantially as before the Revo- lution. This revision was in fact simply an authoritative defini- tion of the thirty-fifth section of the first constitution. Down to the year 1800 the character of the legislation may be said to have JOHN WATTS, SR. been declaratory rather than reformatory, although some sensible re- forms were instituted in the manner already noticed.
Until the year 1796 the criminal laws of this State were of extreme severity, as in England; but in that year the death penalty was limited to treason against the State, murder, and stealing from a church. Whipping as a punishment for offenses under the degree of grand larceny was abolished by the same act.' The Revolution of itself made no change in the criminal laws of the State. By the constitution of 1777, Section 34, the accused were allowed counsel in all criminal cases, thus remedying forever a palpable defect in the ancient English law. In the year 1788 benefit of clergy was abolished in this State," and the common law was ameliorated by lessening the punishment of minor offenses. In 1796, by the act mentioned, the crimes of grand larceny, burglary, highway robbery, arson, forgery, counterfeiting, and the like became punishable by imprisonment in the State's prisons first established by this act.6 In the same year,
12 J. & V., 354. 2 Preface, 1 J. & V. 3 C. 21, Laws of 1828. 4 C. 30, Laws of 1796.
5 2 J. & V., 242. 6 3 Greenleaf, 291, c. 30.
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1796, a very important act was passed to facilitate the trial of crimi- nal cases, and for the better prosecution of crimes against public jus- tice. By Chapter 8 of the laws of this year the State was divided into districts, over each of which an assistant attorney-general was to be designated to conduct the ordinary prosecution of offenders. In colonial days the attorney-general alone was charged with all public prosecutions. Thus originated the present system of public prosecu- Martin Burguer tions for each county. The attorney-general of the State is still regarded as the chief public prosecutor, although he also acts as solicitor-general in civil causes. The extent of the powers of the present office of attorney-general and his coadjutors, the district-attorneys, is somewhat vague, and claimed to be regulated by the common law.1
In the year 1799 a citizen of New-York who had lived in the provin- cial era would have detected but slight change in the jurisprudence and judicial establishment of his commonwealth. The public law had undergone a transformation in accordance with the tendencies and aspirations of the two centuries of New-York history, but the private law still bore the conservative mark which betokened its feudal and undemocratic origin. The old Court of Chancery still stood, but the executive of the State was no longer burdened with the duties of , chancellor; the judicial and executive branches of government were in process of separation, finally consummated by the abolition of the council of appointment and revision, in the next century, although, until an act of 1790, the governor retained the seals of the court in conformity to the custom of the province. In 1788 the court had been reorganized by the convention of representatives. A seal had been ordered by an act of the legislature passed March 16, 1778. In like manner the old Supreme Court of Judicature still stood in 1799 as the great common-law court, possessing also supervisory powers over all other common-law jurisdictions vested in the inferior judicatories of the State. Two terms of the court were held at Albany and two in the city of New-York. The justices of the Supreme Court still went the circuit in vacation and held nisi prius sittings in each county of the State, precisely as directed by the ordinance of Lord Bellomont, re- ported in council, May 15, 1699. From time to time acts had been passed by the assembly empowering the justices to go the circuit with- out the necessity of carrying special commissions of nisi prius and assize, as formerly. Although there are no published reports of the adjudication of this tribunal prior to the year 1794, yet we can per- ceive that the administration was of a very high order. The rapid succession of chief justices, John Jay, Richard Morris, Robert Yates, and John Lansing, Jr., between 1777 and 1800, gave little oppor- 1 See brief in Henry Bergh's case, 16 Abb. P. N. S., 274-284.
CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK 625
tunity for distinction to any of them; but they were all accomplished lawyers. Some of the associate or puisne justices of this period were also very able men, among them one who afterward became the dis- tinguished chancellor, James Kent; also Morgan Lewis and Egbert Benson. As a master of special pleading, Justice Benson has been said to have been hardly surpassed by Chief Justice Saunders him- self;1 while Chancellor Kent stated that Justice Benson did more to reform the law than any other member of the court before or since.2 Benson drew the rules of this court, which were adopted April term, 1796. They are sometimes erro- neously called the first rules of the court; but they were not. Wyche refers to rules adopted in 1727, or seventy years before,3 and the rules of 1791-93 are published in "Coleman's Cases " (p. 31). The practice of the Supreme Court in the year 1799 presented but few features peculiar to itself, and was substantially that in use un- der the crown government, and, as formerly, supplemented by that of the King's Bench at Westmin- ster Hall.4 Yet there were differ- enees in the several practices, which are best noticed at length in the first treatise on "The Prac- MRS. JOHN WATTS.5 tice of the Supreme Court of Judicature of the State of New-York," by William Wyche, who subscribed himself as "of the Honorable Law Society of Gray's Inn, London, and Citizen of the United States of America."" After the Revolution the tendency of the judges of the Supreme Court and Chancery seems to have been to conform rather to the practice of the English courts than to that of the courts of the former province,7 and there was very little disposition shown until the present century toward innovation on the English precedents. The slight change in the Supreme Court of New-York in the last century is perhaps well indicated by the minutes of the court. The last ses- sion under the crown was at April term, 1776; the first under the State was at October term, 1777. Between the minutes of the ses- sions is nothing but a few blank leaves. Were it not that the first
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