USA > New York > The history of the late province of New-York, from its discovery, to the appointment of Governor Colden, in 1762. Vol. I > Part 27
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* See the printed opinion, and the arguments of Messrs. Alexander and Smith for the defendant Van Dam adsectum the attorney-general ; in support of a plea to the jurisdiction of the supreme court, on a bill filed there for governor Cosby in a course of equity. New-York, printed by John B. Zenger, 1733.
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freemen, and not slaves. "Tis the misery of an arbitrary government, that a man can enjoy nothing under it that he can call his own. Life, liberty, and property, are not his, but all at the will and disposal of his tyrannical owner. I don't wonder that our ancestors have been always so jealous of their liberties : how oft have they bravely fought, and nobly died, in the defence of them ? We have received our liberties and our laws, as an inheritance transmitted to us in the blood of our fathers. How highly therefore should we prize and value them ! And what care should we take, that we and our posterity may enjoy them in their full extent ? If this be our happy case, we shall sit under our own vines and our own fig-trees, and none will make us afraid. We shall see our country flourish, and ourselves a happy people. But if an arbitrary power over our liberties and properties be let in upon us, but at a back door, it will certainly drive many of us out of our habitations ; and 'tis to be feared, will once more reduce our country to a, wilderness, and a land without inhabitant : which we doubt not but this honourable house · will take care to prevent."
Mr. Murray laboured to show that the chancery, king's bench, common pleas, and exchequer, were of original jurisdiction by the constitution of England; and was fear- ful that our establishment of these courts here by an act of assembly, would draw into question our equal rights to all the liberties and privileges of Englishmen. He closed his opinion in this manner :-
"And now, Mr. Speaker, I have in the best manner that I was capable of, performed what this honourable house desired of me, in giving truly my sentiments upon the subject matter of these petitions.
" Mr. Smith in delivering his sentiments last Friday, did in so handsome and elegant a manner, fully prove that the people of this colony are undoubtedly entitled to the customs, laws, liberties and privileges of Englishmen, that it was needless for me to attempt the proof thereof, which otherwise I should have done. But I do entirely agree with him, in all
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that he said on that head ; and I hope I have proved that the fundamental courts, by the laws of England, are as much part of those liberties and privileges, and as much by the customs and laws of England, as any other of their liberties and privileges are ; and of consequence, the people here as much entitled to those fundamental courts, as to their other privileges ; and have endeavoured to answer all the objections that I had heard were, or thought could be, made against our being entitled to the same courts. And upon the whole thereof, as there has been much talked about the liberties and privileges of the people, I would beg leave only to pro- pound this one question: Who is he that argues most in favour of the liberties of the people ? He who affirms and proves, that they are entitled to those liberties and privileges, laws and customs of England, and the good old original courts, that are by those laws, without an act ? Or he who argues and says, we are not entitled to them, until an act is passed to establish them ? I suppose the answer would be given, without hesitation, in favour of the former.
" But, Mr. Speaker, if it yet should be said, that there is a necessity for making acts relating to those courts, I would beg leave to offer to this honourable house, the imitation of such laws relating to those courts, as the wise legislature of England have thought fit to make. I presume, it will not be said, there can be a better pattern offered for the assembly to go by. And it is not to be supposed, but that the parlia- ment at home has made all the regulations therein that can be thought necessary ; whereas going into new schemes and new inventions, may be attended with many inconveniences, which, when they happen, may not be so easily remedied.
" And I beg leave to conclude, by praying that God Almighty may guide, direct, and influence this honourable house in their debates and consultations upon this momen- tous affair, and that the end thereof may be for the good of all the inhabitants of this colony."
The opposition to the exchequer became now stronger than before the council were heard. And therefore, under
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these discouragements, the court has taken cognizance of no causes since Van Dam's, nor has that indeed ever been deter- mined .*
* Sir John Randolph wrote his sentiments concerning these disputes to captain Pearse. And as he was an eminent lawyer, in Virginia, I doubt not his letter will be acceptable to the reader.
"SIR-By your request, I have perused and considered the arguments of Mr. Smith and Mr. Murray, before the General Assembly of New-York, in rela- tion to the court of equity established there in a new court of exchequer ; which I perceive was done, principally, for determining a dispute between the governor and the president of the council, about their right to the salary annexed to the office of the commander-in-chief, whether he be the governor or president ; and it seems strange to me, that upon such an occasion, so extra- ordinary a step should be taken, as the erecting of a new court, exempted from the rules of proceeding at the common law, when the matter might have been decided in an action of the case upon an Indebitatus assumpsit, which is the settled method and most expeditious remedy in cases of that nature.
"Both of these gentlemen seem to have agreed in one point, that it was necessary to trace the court of chancery and the equity court in the exchequer back to their original institution, in order to show whether the governor of a new plantation hath a power or not to erect courts, in imitation of these high and ancient courts in England .- And from their researches, they seem to have made very different conclusions. Mr. Smith rightly concludes against the legality of this court ; but Mr. Murray is afraid all must be lost, if the four fundamental courts, as he calls them, can't be obtained in New-York .- I own I don't understand the force of this sort of reasoning, nor can I conceive, how any inquiry into the original of the high court of chancery, which must after all end in a mere conjecture, can afford the least assistance, in forming a right judgment upon this question, which must depend upon the particular constitution of these foreign colonies.
" The court of chancery in England has its being from custom and usage, to which it owes its legality. If it were to be erected now by the king's power it could not stand; therefore it is undoubtedly a great absurdity to suppose, that upon the planting every new colony by the subjects of England, new courts must spring up, as it were from the roots of the ancient courts, and be established without the consent of the legislature, because we can imitate their methods of proceeding, though we are very imperfect in comparison to their reason and judgment. Then I think there is another impropriety in the debate of this question ; they would argue from the power and prerogative of the king, to entitle the governor to act in the same manner. I think before they turn a governor into a king, they should take care, to provide for him the same sufficiency of wisdom and as able a council; therefore I must suppose, a mighty difference between the power of a king and the governors abroad. Their instructions as to the erecting of courts, or the authorities granted in their patents for that purpose, are not now, as they were in the beginning, when there were no courts; but proper judicatures being long since established. there is an
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The judges of this court, according to an act of assembly, are judges of Nisi Prius of course; and agreeably to an ordinance of the governor and council, perform a circuit
end of their power in that respect, and if any alteration is found necessary, it must certainly be done by the consent of the legislature. The kings of England have always, so far as I am acquainted with the history of the plantations, used a particular tenderness in the business of erecting their courts of judicature, by directing their governors to take the advice of the general assemblies in that matter, and I dare say, that if the patents and instructions of the governor of New-York were to be inspected, no sufficient warrant will be found in them, to exercise this high power of setting up new courts. But be that as it will, this is most manifest, that setting up one or more men, with power to judge men's properties, by other rules than those of the common law, by which alone we of the plantations must be governed, must subject the estates of that people to an arbitrary rule, so far as they are restrained from appealing to an higher jurisdic- tion, and may enslave them to the weak, if not corrupt, judgments of those men. It really seems to be a singular misfortune to the people of New-York, that a question of this nature should be so far countenanced, as to become a subject of argument, when I believe, in any other colony, it would not have been thought a matter of any doubt or the least difficulty. But above all, it is most extrava- gant, that a court of equity should be erected, for the trial of a cause of which, without doing violence to its nature, it cannot have any jurisdiction ; and I have wondered, in so warm a debate, that this point has been passed over. I think nothing could entitle the court of equity to proceed in the cause be- tween the governor and Van Dam, unless there was a want of proof of Van Dam's receiving the money in dispute, which I suppose is impossible, since it must have issued out of the public treasury of the province. If I had been to have argued this point, I should have taken a very different method from those gentlemen. Instead of taking so much pains, in running through so many book cases, to settle what the constitution of England is, I would have stated the constitution of this particular government, as it is grounded either upon treaties or grants from the crown of England; for as New-York was a conquered country, it is very probable something may have been stipulated between the States General and 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 funda- mental law of the province; and next to that, the king's charter must take place. I don't at all doubt, but some way or other, the common law was established there, and if not, as there is a legislature, I suppose it is adopted by the country ; for there is, undoubtedly, a great difference between the people of a conquered country, and colonies reduced by the king's consent by the subjects of England. The common law follows them wherever they go, but as to the other, it must rise either from treaties or grants; therefore it is a pity every thing in relation to this matter has been omitted, which would have been of great use to those . who are unacquainted with the facts, in forming a judgment in this case. I can't forbear observing a mighty weakness in the lawyers of New-York, in blindly
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through the counties once every year. They carry with them, at the same time, a commission of oyer and terminer and general jail delivery, in which some of the county jus- tices are joined.
The judges and practisers in the supreme, and all other courts, wear no peculiar habits as they do at Westminster- Hall and in some of the West-India islands; nor is there, as yet, any distinction or degrees among the lawyers.
The door of admission into the practice is too open. The usual preparatories are a college or university education, and three years' apprenticeship; or, without the former, seven years' service under an attorney. In either of these cases, the chief justice recommends the candidate to the governor, who thereupon grants a license to practise, under his hand and seal at arms. This being produced to the court, the usual state oaths and subscription are taken, together with an oath for his upright demeanour, and he is then qualified to prac- tise in every court in the province. Into the county courts, attornies are introduced with still less ceremony. For our governors have formerly licensed all persons, how indifferently soever recommended; and the profession has been shame- fully disgraced by the admission of men not only of the meanest abilities, but of the lowest employments. The pre- sent judges of the supreme court are the honourable (for that is their title)
JAMES DE LANCEY, esq. chief justice. JOHN CHAMBERS, esq. second justice.
DANIEL HORSMANDEN, esq. third justice.
They have but two clerks: one attendant upon the supreme
following a common error, in relation to the statutes of England being in force there; whereas there is no foundation in sense or reason for such an opinion. The common law must be the only rule, and if we wade into the statutes, no man can tell what the law is. It is certain all of them can't bind, and to know which do, was always above my capacity. Those that are declarative of the common law, serve us rather as evidences, than by any binding quality as statutes.
" I am, sir, your most obedient servant, &c.
" JOHN RANDOLPH."
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court at New-York, and the other on the circuits. The for- mer seals all their process and is keeper of the records.
THE COURT OF ADMIRALTY.
The only officers of this court are the judge, or commis- sary, the register and marshal. The present judge, Lewis Morris, esq. has, by his commission,* a jurisdiction in all maritime affairs, not only here, but in the colonies of New- Jersey and Connecticut. The proceedings before him are in English, and according to the course of the civil law.
THE PREROGATIVE COURT.
The business of this court relates to the probate of last wills and testaments, and the grants of letters of administra- tion on intestate estates. The powers relative to these matters are committed to the governor, who acts ordinarily by a delegate.
THE COURT OF THE GOVERNOR AND COUNCIL.
The authority of this court is best seen in the instruction on which it depends.
" Our will and pleasure is, that you, or the commander-in- chief of our said province, for the time being, do all in civil causes, on application being made to you, or the commander- , in-chief for the time being, for that purpose, permit and allow appeals, from any of the courts of common law in our said province, unto you or the commander-in-chief, and the coun- cil of our said province ; and you are, for that purpose, to issue a writ, in the manner which has been usually accustomed, returnable before yourself and the council of our said pro- vince, who are to proceed to hear and determine such appeal ; wherein such of our said council, as shall be at that time judges of the court from whence such appeal shall be so made, to you our captain-general, or to the commander-in- chief for the time being, and to our said council, as aforesaid,
* It is under the seal of the admiralty, and dated January 16, 1738,
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shall not be admitted to vote upon the said appeal; but they may, nevertheless, be present at the hearing thereof, to give the reasons of the judgment given by them, in the causes wherein such appeals shall be made.
" Provided nevertheless, that in all such appeals, the sum or value appealed for, to exceed the sum of * three hundred pounds sterling ; and that security be first duly given by the appellant, to answer such charges as shall be awarded, in case the first sentence be affirmed ; and if either party shall not rest satisfied with the judgment of you, or the com- mander-in-chief for the time being, and council as aforesaid, our will and pleasure is, that they may then appeal unto us in our privy council. Provided the sum or value so appealed for unto us, exceed five hundred pounds sterling, and that such appeal be made within fourteen days after sentence, and good security given by the appellant, that he will effec- tually prosecute the same and answer the condemnation, and also pay such costs and damages as shall be awarded by us, in case the sentence of you, or the commander-in-chief for the time being, and council be affirmed. Provided neverthe- less, where the matter in question relates to the taking or demanding any duty payable to us, or to any fee of office, or annual rent, or other such like matter or thing, where the rights in future may be bound, in all such cases, you are to admit an appeal to us in our privy council, though the imme- diate sum or value appealed for be of a less value. And it is our further will and pleasure, that in all cases where, by your instructions, you are to admit appeals to us in our privy council, execution be suspended, until the final determina- tion of such appeals, unless good and sufficient security be
* Before the arrival of sir Danvers Osborn, appeals were given to the gover- nor and council, in all causes above £100 sterling, and to the king in council, in all those above £300 sterling. By this instruction, the power of the supreme court and of the governor and council, is prodigiously augmented. In this infant country few contracts are equal to the sums mentioned in the instruction, and therefore an uncontrollable authority in our courts may be dangerous to the property and liberties of the people. Proper checks upon judges preserve them both from indolence and corruption.
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given by the appellee, to make ample restitution of all that the appellant shall have lost by means of such judgment or decree, in case upon the determination of such appeal, such decree or judgment should be reversed,, and restitution awarded to the appellant."
THE COURT OF CHANCERY.
1
Of all our courts, none has been more obnoxious to the people than this. There have been (as I have already shown) few administrations since its first erection, in which our assemblies have not expressed their disapprobation of its constitution by ordinance, and the exercise of the chancellor's power by the governor. During the administration of Governor Cosby, a bill was filed by sir Joseph Eyles and others, to vacate the oblong patent granted by his immediate predecessor to Hauley & Company. The defendants except- ed to the governor's jurisdiction, but being over-ruled they resorted to the assembly with a complaint, and the house, on the 6th of November, 1735, resolved,
" That a court of chancery in this province, in the hands or under the exercise of a governor, without consent in general assembly, is contrary to law, unwarrantable, and of dangerous consequences to the liberties and properties of the people."
The same sentiments obtained among the people in Mr. Clarke's time, as is very evident in the memorable address of the assembly, in 1737, a part of which, relative to the court of chancery, is too singular to be suppressed.
"The settling and establishing of courts of general jurisdic- tion, for the due administration of justice is necessary in every country, and we conceive they ought to be settled and established, by the acts of the whole legislature, and their several jurisdictions and powers by that authority limited and appointed, especially courts that are to take cognizance of matters in a course of equity. This has been the constant practice in England, when new courts were to be erected, or old ones to be abolished or altered ; and the several kings of
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England, in whose reigns those acts were made, never con- ceived, that the settling, erecting, or abolishing courts, by acts of the legislature, had any tendency to destroy or in the least to diminish their just and legal prerogatives. It was the method in use here, both before and since the revolution, and particularly recommended to the assembly to be done in that manner, by a message from governor Sloughter and council, on the 15th day of April, 1691. He was the first governor since the revolution ; and the governors that since that time assented to those acts, we suppose, never in the least imagined they were giving up the prerogative of their masters when they gave that assent ; nor did we ever learn that they were censured for doing so .- On the contrary, the constant instructions that have from time to time been given to the governors of this province, seem clearly to point out the doing of it by acts of the legislature, and not otherwise, as may be gathered from the instruction for the erecting of a court for the determining of small causes, by which there are positive directions given to the governors, to recommend it to the assembly that a law should be passed for that pur- pose ; but notwithstanding these directions, given in direct and express terms, the governors never would apply for such an act, but erected that court by an ordinance of themselves and council, as they did the court of chancery, which had before that time been erected by acts of the legislature in another manner. They could not be ignorant what dissa- tisfaction the erecting of a court of chancery in that manner gave the generality of the people. This was very manifest by the resolves of the general assembly at the time of its first being so erected, and often since, declaring the illegality of such a proceeding. And though these resolves have been, as often as made, treated by the governors with an un- reasonable disregard and contempt of them, yet to men of prudence they might have been effectual, to have made them decline persisting in a procedure so illegal, and so generally dissatisfactory ; and which (as they managed it) proved of no use to the public or benefit to themselves. For
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as few of them had talents equal to the task of a chancellor, which they had undertaken to perform, so it was executed accordingly. Some of them being willing to hold such a - court, others not, accordingly as they happened to be influ- enced by those about them. So that were it really esta- blished in the most legal manner, (as it was not,) yet being in the hands of a person not compellable to do his duty, it was so managed, that the extraordinary delays and fruitless expense attending it, rendered it not only useless, but a grievance to the inhabitants, especially those who were so unfortunate as to be concerned in it: which we hope you think with us, that it is high time should be redressed.
" Your honour well knows that the establishing that court, in the manner it has been done, has been a subject of con- tention between the governors and the assembly ; and since it is confessed by all, that the establishing both of that, and other courts, by act of the legislature, is indisputably legal, and gives them the most incontrovertible authority ; and, if unquestionably legal, what is so cannot be destruc- tive of his majesty's prerogative. We therefore hope, you will make no scruple of assenting to this bill, to put an end to the contention, that has not been, nor will be, while it continues, beneficial to his majesty's service."
From this time the chancery has been unattacked by the assembly, but the business transacted in it is very inconsi- derable. A court of equity is absolutely necessary, for the due administration of justice ; but whether private property ought to be in the hands of the governors, I leave others to determine .* As the public business of the colony increases, few of them, I believe, will be ambitious of the chancellor's office, as they have not the assistance of a master of the rolls. The present officers of this court (which is always held in the council-chamber at the fort) are, his excellency, sir Charles Hardy, knt. chancellor, two masters, two clerks, one examiner, a register, and a sergeant-at-arms, and not
* Some are of opinion, that the governor's jurisdiction in this and the spiri- tual, or prerogative court, are incompatible.
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one of them has a salary. In our proceedings we copy after the chancery in England, and indeed in all our courts, the practice at home is more nearly imitated in this and New- Jersey, than in any other province upon the continent. Few of our assemblies have been capable to concert any new regu- lations of this kind; and hence the lawyers have had recourse to the English customs and forms, which they have generally adopted. While the New-England colonies, through the superior education of their representatives, have introduced numberless innovations peculiar to them- selves, the laws of our mother country have gradually obtained here, and in this respect, the public has perhaps received advantages, even from the ignorance of our ancestors.
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