"History of New York State 1523-1927"
^{(Click Here to view entire document in PDF format)}

Little need be written in this chapter regarding the Leisler administration, which concerns political history more than legal. He was Acting Governor from June, 1689, to March, 1691, and during the latter part of his administration was able to make his authority seem more regular by getting his Assembly or Council to consider that a commission as Lieutenant-Governor, sent by King William was properly Leisler's, seeing that Nicholson had vacated the office, and that the commission had been addressed to Nicholson or, in his absence, "to such as for the time being take care for preserving the peace and administering the laws " Leisler appointed his son-in-law, Jacob Milborne, as provincial secretary, attorney-general and advocate-general; and the government was largely in their hands. They were destined eventually to pay with their heads for these and other irregular proceedings; and the politics of the succeeding three or four decades was to crystallize mainly into Leislerian or anti-Leislerian factions, as has been stated in another chapter. The unfortunate happenings for Leisler began on January 29, 1691, when Major Richard Ingoldsby, in command of a company of regular soldiers, reached New York as the advance guard of the new Governor, Sloughter, who had been delayed at Bermuda. Ingoldsby demanded that Leisler deliver the fort to him. Leisler resisted. There was some fighting, but Leisler did not surrender until after the new Governor arrived, in March. Up to this stupid resistance of the King's troops, Leisler's administration had been good. But lives had been lost. So Leisler and his Council were arrested and indicted for murder and treason. Governor Sloughter promptly issued a special commission for a session of Oyer and Terminer. Those who were commissioned to constitute the court were: Joseph Dudley, of conspicuous-some would think notorious-Massachusetts record, who had just been appointed judge of admiralty of New York and New Jersey; Thomas Johnson, also a judge of admiralty; Sir Robert Robinson, Colonel William Smith, Recorder William Pinhorne and Mayor William Lawrence, of New York City; Jasper Hicks, captain of the frigate "Archangel", Major Ingoldsby, an infamous choice, Colonel John Young, and Captain Isaac Arnold. Six of the prisoners pleaded in form, but Leisler and Milborne refused to plead until the court had decided that the King's letter and papers accompanying it gave no power to Leisler. After eight days \the trial ended in sentence of death being passed upon all. The Governor, however, by the advice of the judges, reprieved the prisoners until such time as the King should make known his pleasure.

This outcome did not please some of Leisler's enemies, most vindictive among whom might be named one or more of the ousted Council of Nicholson. It is said that Governor Sloughter was'inveigled into signing a death warrant while "in his cups" as a guest of Nicholas Bayard, and that Leisler and Milborne were led to the gallows and hanged "before the Governor had recovered his senses." The record has it that these unfortunate misguided patriots were afterwards decapitated "in the presence of an indignant people." However, Nemesis came later to Bayard, almost by his own hand, for he' had caused to be made law an attainder act, which, when political power changed, was used to indict Bayard himself. He was tried by another administration for treason and narrowly escaped being "hanged, drawn and quartered," for such was the sentence found in his case. Sloughter died within a couple of months of signing the Leisler death warrant, and rumor has it that he was poisoned.

However, much was done by Sloughter during that brief period to reorganize the provincial government. His Council consisted wholly of anti-Leislerians; Frederick Philipse, Stephen van Cortlandt, Nicholas Bayard, William Smith, Gabriel Minvielle, Nicholas de Meyer, Francis Rombout, Chidley Brook, William Nicolls, Thomas Willett, William Pinhorne and John Haines. A Boston lawyer, Thomas Newton, "who was reputed to be the best lawyer in America," was appointed attorney-general but resigned a month later, James' 'Graham taking his place.

No time was lost by 'Governor Sloughter and his Council in bringing the new order into effect. The King's commission gave the Governor authority to summon general assemblies "of the Inhabitants being freeholders." None but 'Protestants could sit in the Assembly; and the Governor, "by & with 'the consent of our said Councill and Assembly;" had full power "to make, constitute, and ordaine Laws, Statutes & ordinances for ye republique Peace, welfare and good Government: of our said Province." "Approbation or disallowance" of any laws ' passed rested with the King and Queen. All laws were to be submitted to the King and Queen within three months of passage, but the royal veto might be declared at any time.

The new Constitution, as a matter of fact, was vetoed by the King six years later and from that time until the Revolution the provincial government was continued under an unwritten constitution, with the common law of England as the fundamental law of the province, and a "bicameral" Legislature, of Council and Assembly, the' former invariably voicing the opinions and will of the Governor and the Assembly, with increasing persistence and stubborn reiteration, making known to the successive Governors the rights that Magna Charta and subsequent laws of England and the province gave to provincials.^[71]

On April 6, 1691, the Assembly was "summoned to meet" on April 9. The session ended on May 18. The second session began on September I I of that year and ended October 2. In the next year two sessions were held, one in April, and the other in August-September. While the Dongan Assembly of 1683 was the first Assembly to function under English Government in New York, it is not counted as the First Assembly, because it was summoned by the Governor. The first people's body to be called together under direct authority of the Crown was that of 1691, and the latter, therefore, comes into provincial records as the First Assembly. Its personnel is stated below.^[72]

One of the first measures enacted in the Assembly of 1691 was that which reenacted most of the vital legislation passed by the Dongan Assembly in 1683, to legalize "the several Ordinances, or reputed Laws, made by the preceding Governors and Councils for the Rule of their Majesties Subjects within this province" that were then recognized as still in force.^[73] Most of the acts of the Assembly of 1691 followed word for word, with only slight variation, those of the Dongan Assembly. On May 6, 1691, the House passed "An Act for the Establishing of courts of judicature for the Ease and benefit of each respective Citty, Town and County within this Province." "This act changed the town courts into Courts of Justices of the Peace; created a Court of Common Pleas for each county, except the counties of Albany and New York, to be held by a judge commissioned by the Governor and Courts of General Sessions for each of the counties; also it made for a Court of Chancery the same provisions that had been made by the act of 1683. But the most important feature in the act was the creation of a Supreme Court. It declared that a Supreme Court of Judicature should be established in the city of New York, to be composed of a Chief Justice and four assistant justices, to be appointed by the Governor; and that it should have cognizance of all actions, civil, criminal or mixed, as fully and amply as the courts of King's Bench, Common Pleas or Exchequer of England, and should have power to establish rules and ordinances, and to regulate the practice of the court. Courts of General Sessions of the Peace were also organized as criminal tribunals, distinct and separate from the Courts of Common Pleas, which were courts for the trial of civil actions only. In all the counties except New York and Albany the Courts of General Sessions of the Peace were held twice a year, in Albany three times a year, and in New York quarterly. The civil jurisdiction of the Court of Common Pleas was essentially the same as that of the former Court of Sessions; and the term of court began on the day after the sitting of the General Sessions, the term of both courts being limited to two days each. By this act the Court of Oyer and Terminer was abolished, but, in conformity to the organization of the courts of Westminster, its name was retained to designate the criminal branch of the Supreme Court."^[74]

Seven days after the passage of the Judiciary Act the Assembly reenacted the "Charter of Libertyes and Privileges," not realizing that kings are much alike, and that Crown and people can never have much in common. The legislators on May' 13, 1691, passed "An Act declaring what are the Rights and Privileges of their Majesties' Subjects inhabiting with the Province of New York" fully believing that King William had basically different thoughts to King James. The Assemblymen kept their rights and privileges so much to the fore during the next few years that Governor Fletcher, who succeeded Sloughter, was once prodded by angry impatience to remark: "There are none of you but what are big with the privileges of Englishmen and Magna Charta." However, the Assemblymen were destined to be rudely disillusioned as to King William, for in 1697 he vetoed the provincial "Charter of Libertyes and Privileges," objecting indeed to the first sentence, which contained a phrase that might be interpreted as curtailing the royal prerogative. "People met in General Assembly" was one of the "several large and doubtful expressions" that William pointed to in the charter as obnoxious to himself, and as giving "great and unreasonable privileges" to the Assembly. It is doubtful whether William attached much importance to the province of New York, which at that time did not have more than 10,000 white inhabitants. However, to the legislators, the province of New York was their world; so they strove to lay the governmental bases properly, for the good of the 10,000 and their posterity.

Sloughter died in July, 1691, and for the next thirteen months Major Ingoldsby acted as Governor-with the consent of all parties, and without disastrous consequence such as came to Leisler. Benjamin Fletcher, the next Governor, duly arrived. He was a man of military experience, a colonel, and in that time of war his military qualifications seem to 'have been looked at more closely than his executive record by the King's ministers. He was commissioned as Governor of New York and New Jersey, but was also commander-in-chief of the militia of Connecticut and Rhode Island. There was a duplicating of military commissions, and the friction became three-sided by the contention of the Governors of Connecticut and Rhode Island, that the command of local forces devolved upon themselves.

However, we need not here further refer to the military troubles of Governor Fletcher. His commission as Governor of New York empowered him "to erect courts of judicature not already established." He does not seem to have enforced the laws very strictly, for under his sway New York City became "a nest of pirates"; at least so Lord Bellomont, his successor as Governor, reported. Certainly, Fletcher was kept busy issuing licenses to captains of seagoing vessels who wished to act as privateers. It is said that Governor Fletcher sold such licenses to all who applied, "quite indifferent" as to the records of applicants; and it was later thought that many lawless buccaneers, on hearing of the ease with which governmental protection of their questionable practices might be had in New York, set sail for the harbor and, having procured a privateering license, set sail again for some distant point of the seven seas, there to prey upon the commerce of France and Spain. These Nations not being able to furnish sufficient practice for the privateers, the latter in some cases drifted into piracy, paying little heed to the nationality of the prize so long as they possessed it.

Governor Fletcher became incensed with the Assembly in 1694, when the latter dared to ask him to account for the nearly $40,000 of taxes and revenue he had used during his brief period. Fletcher dissolved the Assembly, feeling that "it was the business of the Assembly to raise money and of the Governor and Council to lay it out." Queen Mary, wife of William of Orange, died in 1694, and in 1697 William and Anne commissioned Richard Coote, the Earl of Bellomont, as Governor, recalling Fletcher "to answer many charges of maladministration brought against him." The courts of the Fletcher period were: The petty courts of single justices of the peace; the Quarter Sessions Courts; the county courts of Common Pleas; the municipal courts of New'York and Albany; the Supreme Court; the Court of Chancery; the Prerogative Court; the Admiralty Court, and the military court.^[75]

Lord Bellomont arrived in April, 1698, as the Governor of three provinces, New York, Massachusetts, and New Hampshire, and also having military command, as Captain-General of Connecticut, Rhode Island and the Jerseys, as well as of the three provinces of which he was Governor. The original plan was to commission Bellomont to organize a New England dominion somewhat after the Andros plan, but in deference to the protests of Connecticut and Rhode Island the consolidation was curtailed. New York did not object, thinking that Bellomont, who had shown an active interest in the Leisler case and sympathy with New York, would make New York City his headquarters. He did come first to New York, perhaps because he wished first to deal with the situation Fletcher had made difficult, before proceeding to Boston.

New York welcomed him with evident signs of appreciation in April, 1698-at least, the Leislerian faction in the province did-and for more than a year thereafter his activities centred in that city. His task was difficult. For six months he had to endure a Council that was anti-Leislerian. The Assembly also was of the opposition, for Bellomont was aligned with the Leislerians, though in fact he was of neither party. His council included Bayard, Van Cortlandt and Philipse, the three to whom Nicholson had entrusted the government in 1689; two other councillors-Smith and Lawrence-were two of the judges who had sentenced Leisler and his associates; and Monvielle had been of Sloughter's Council. In September, 1698, Bayard, Philipse, Monvielle, and Lawrence gave way to Robert Livingston, Abraham de Peyster, Samuel Staats and Robert Walters. Peter Schuyler also was a member; and James Graham was added in 1699.

Bellomont had been able to deal with the anti-Leislerian Assembly earlier Fletcher's "packed" Fifth Assembly had,, with Bellomont's coming, been dissolved; but the Sixth Assembly, which began its first and last session on May 19,,698, was as anti-Leislerian as the Fifth had been. Before the end of May the Governor had to berate the legislators "with a scolding address," and on June 14 he lost patience with the body altogether. On that day he dissolved the Assembly as "disloyal." Certain moneyed interests in the province did not take kindly to the reorganization plans of Lord Bellomont, especially the plans which would disturb the dealings New York merchants had with the sea rovers, privateers, and those of even piratical tendencies. Under Fletcher the law had had little effect; if enforced, to the detriment of those engaged in maritime enterprises, the loyal justices of the peace had been apt to manifest greater partiality to the people than the Crown, and so the ends of justice were not gained. Bellomont wrote to the Lords of Trade soon after reaching New York: "The people have such an appetite for piracy and unlawful trade that they are ready to rebel as often as the Government puts the law in execution against them." It was very difficult for reputable merchants to avoid having dealings with the pirates, for if they traded in ship's supplies at all-and there were few New York merchants of that day who did not-they could hardly refuse to deal with captains who held Fletcher licenses; and if a captain who had been outfitted by a New York merchant should happen to return with a cargo of spices and silks from the East, the merchant could hardly be expected to refuse such goods when offered by the captain, to meet his debt to the merchant. Bellomont's plan was to bring those suspected of piracy before the courts for punishment, and for condemnation of cargo. To do this it was necessary to reorganize the courts.

A reorganization of the judicial system was necessary for another reason, the King having vetoed the Charter of Liberties of 1691, and seen grave danger to royal prerogative in the continuance of the Judicial Code of 1691. William had only reluctantly consented to the functioning of the code of 1691 for a period of two years, and although the Assemblies since that time had "continued" the code for further like periods, the King had been too much involved in other more weighty matters to take definite action to reorganize the legal system. Undoubtedly, King William recognized that a high court which had been erected by statute instead of by executive ordinance would be difficult to revoke at his pleasure; so Bellomont was given particular instructions in regard to the Supreme Court. Maybe Bellomont was not therefore very much displeased when he found that the local legislators were so inclined to thwart him. He professed to be much embarrassed when the Sixth Assembly, in 1698, after he had notified them that the courts would cease to exist at the end of that year, if there were no extension act passed by the Assembly, should pass an act which while continuing the existing courts added amendments which he could not accept without surrendering the royal prerogative.^[76] Bellomont's expressed opinion was that the amendments were "put forth as a political move," so as to compel him to reject the bill and so leave the province without any courts at all. But certainly this move, and the consequent rejection of the legislation, made it possible for Bellomont to do away with the statutory courts, and also the intractable Assembly. He dissolved the latter on June 14, 1698, and on January 19, 1699, by proclamation, continued the courts, this action being confirmed in the following May by an order of the Governor in Council.

The Governor had been either very conscientious and especially crafty. He seems to have been an Englishman of pronounced insularity, certainly, he had little confidence in provincial lawyers Before continuing the courts by proclamation he had asked Chief Justice William Smith and Attorney-General James Graham for their opinions They had both declared that the King himself had no such power of establishing courts without the concurrence of Parliament, and that consequently he could not delegate to his Governors powers which he did not himself possess." These opinions, however, had merely confirmed Bellomont's own theory-that matters in which the King was concerned should be in the 'hands of Englishmen, not provincials. In a communication to the home minsters, Bellomont had declared that all provincial officials, from the Governor to the meanest official, ought to be not men of the country, but Englishmen. Particularly, he urged that English lawyers be sent out. In the place of Chief Justice Smith he wished "to have an English lawyer sent over by the King, a man of sufficient wealth and social position to be above the temptations of the low arts and practices then prevalent in the colony."^[77]

With the issuance of ordinance, in May, 1699, "reestablishing the courts as they had existed" under the Constitution of 1691 and later renewals, Governor Bellomont brought the affairs of government in New York sufficiently into line with the King's wish and instructions; therefore, he went to Boston, to look more closely into Massachusetts matters. In July, 1700, he returned to New York, and on March 5 of the next year he died.

Lieutenant-Governor Nanfan was at that time in Barbadoes, and the Council and Assembly-which bodies were both Leislerian-concurred in the opinion that the administration of the province devolved upon the Council, as a whole. On the other hand, Colonel William Smith-the former Chief Justice-considered that he himself was, in fact, Acting Governor by virtue of his office of president of the Council. He had been removed from the office of Chief Justice in October, 1700, Stephen van Cortlandt taking his place. Three weeks later Smith had been again Chief Justice through the death of Van Cortlandt; but he had had to vacate first place, in favor of Abraham de Peyster, one of the puisne judges, in January, 1701, Bellomont indeed showing such insistence in removing Smith that when two months later the demise of the Governor rightly made Smith the executive head it is not to be wondered at that the followers of Bellomont's policies should take alarm at the developments, and endeavor, even by irregular means, to prevent Smith from becoming Acting Governor, even for a few months. However, Lieutenant-Governor Nanfan returned from Barbadoes on May 19, and at once took over administrative control from the Council; and with the coming of Chief Justice Attwood from England in the early summer the policies of Bellomont, in one respect, were continued. An English lawyer, Attwood was in charge of the courts; another Englishman, Sampson Shelton Broughton, had come to fill the vacancy caused by the dismissal of James Graham as attorney-general; and another English lawyer, the son of Justice Attwood, was at hand to reap a rich harvest for himself-and, it was charged, for his father-in legal fees for service to litigants who appeared in Justice Attwood's court.

Nanfan and Attwood dealt resolutely-their opponents said ruthlessly-with legislative and judicial matters. Smith was still in judicial office as judge of Admiralty when Attwood came; but the latter on August 4, 1701, took over the charge of the Admiralty Court, and next day of the Supreme Court also. Furthermore, he decided to sit in judgment without the assistance of the three puisne judges-De Peyster, Pinhorne and Walters.^[78] What Attwood lacked in legal precedent for his actions was compensated for by support he received from Nanfan. By their joint efforts they were able to appreciably add to the royal exchequer, at the expense of the moneyed interests in the province. Their rulings in the courts brought such consternation, and pecuniary loss, to certain "protestants of New York" that the latter-who might otherwise be accurately identified as anti-Leislerians-mem0rialized the King and Parliament in September, 1701, declaring that "the late differences were not grounded on a regard for his (the King's) interests, but were the corrupt designs of those who had laid hold of the opportunity to enrich themselves by the spoils of their neighbors." The remonstrants accused the deceased Governor, Lord Bellomont, with malfeasance in office, and accused Lieutenant-Governor Nanfan and Chief Justice Attwood of receiving bribes from the Legislature-"the one to pass desired bills and the other to defend the legality of the Assembly proceedings." The memorialists had drafted their remonstrance in the tavern of Alderman Hutchins, in New York City. Nanfan and Attwood deemed such action as seditious. Action was promptly taken against the ringleaders. Nicholas Bayard, Rip Van Dam, Philip French and Thomas Wenham were arrested on January 2, 1702, and charged with 'high treason. Alderman Hutchins had refused to disclose the names of all the signers, and Attorney-General Broughton had been honest enough to give an opinion to the effect that "there was nothing criminal in the addresses, and that Hutchins' refusal to give up the names was not a criminal contempt justifying his commitment." After the ' Grand Jury had been induced to bring in an indictment, and Broughton had refused to prosecute, Nanfan went a step too far. He temporarily suspended Broughton-who being commissioned by the King could not be removed-and appointed Tax Collector Weaver as Solicitor-General to conduct the case, which was heard before a specially commissioned 'Court of Oyer and Terminer, composed of Chief Justice Attwood and Puisne Judges De Peyster and Walters. Two "able and fearless lawyers," William Nicoll and James Emott, defended the accused anti-Leislerians, but the outcome was the conviction of prisoners. Bayard, who had been one of the most active in bringing death and decapitation to Leisler, was found guilty of high treason, and was sentenced to be hanged, drawn, and quartered. Alderman Hutchins received a like sentence. Bayard came very near death in this way. Indeed, it is said that his own children spent so much of his estate in prevailing upon the Acting Governor to defer execution of the sentence from time to time that at last they appealed to their sentenced father to permit the sentence to be carried out, lest his estate be entirely absorbed and they, 'his children, be without means.

However, fortune was to favor Bayard; Nanfan and Attwood had almost reached the end of their reign. Lord Cornbury reached New York in May, 1702, as Governor He immediately suspended Attwood, and when worse seemed to be impending, both Nanfan and Attwood disappeared, eventually to emerge in Virginia, where they obtained safe passage to England.

Cornbury's coming did not benefit the province, but for a while the anti Leislerians lived easily Former Chief Justice "Tangier" (William) Smith was vindicated by reappointment to his old office; those under sentence of death for high treason were released, and in the same month of the next year the Assembly passed legislation "reversing and making null and void said judgments and all proceedings thereon," the Governor making further recompense by appointing some of the convicted remonstrants to his Council.

The Assembly, while expressing loyalty to Queen Anne, yet did not hesitate to contend, at its first session under Cornbury, that no courts of law could be established without the consent of the legislative houses, e. g., of Parliament in England and of the General Assembly in the provinces. In 1702, to make this opinion clear, the Ninth Assembly passed "An Act to declare the illegality and frustrate the irregular proceedings, Extortions and Decrees, of the late pretended Court of Chancery." They referred particularly to the Chancery Court which had been erected by Nanfan, with himself as chancellor. The act, which was read three times between November 25 and 27, 1702, had followed resolutions adopted declaring that "the setting up of a court of Equity in the Colony, without Consent in General Assembly is an innovation without any former Precedent, inconvenient and contrary to the English Law"; further, that the Court of Chancery "was and is unwarrantable, a great Oppression to the Subject, of pernicious Example and Consequence," and that, therefore, "all proceedings, Orders and Decrees in the same are, and of right ought to be declared null and void."

Lord Cornbury was prevailed upon to sign this act; and, consequently the functioning of the Court of Equity came to an end on June 13, 1703. Less than eighteen months later, however, the unpopular Court of Chancery was revived by Lord Cornbury, without the consent of the Assembly, by the obnoxious method of executive ordinance instead of by statute. Thereafter, the governmental course of Governor Cornbury became rougher and rougher. The Assemblies of New York and New Jersey became firmer and firmer in insisting upon their rights, and in pointing out the limitations of royal and vice royal prerogative. The Lords of Trade regarded one act that was passed as "highly presumptuous in the Assembly to pretend to propose or pass any clause whereby Her Majesty is restrained in her Royal prerogative of pardoning or reprieving her subjects whenever she sees it reasonable and convenient. The New York Assembly was not the only disturbing element during Cornbury's administration, for in 1707 the New Jersey Assembly addressed Governor Cornbury recounting their grievances that came from maladministration, and there was grim warning in their ending words: "Liberty is too valuable a thing to be easily parted with."

New York had no Assembly from October, 1706, to August, 1708; nevertheless, when the Eleventh Assembly got well into session, Lord Cornbury had to realize that there was little difference between assemblies, if properly elected by the people. This Assembly endorsed the opinions of previous Legislatures: "That the erecting of a Court of Equity without consent in General Assembly is contrary to law, without precedent, and of dangerous consequence to the liberty and property of the subjects."

Troubles began to multiply round Cornbury, and eventually became so troublesome to the home ministers that Cornbury, though a cousin of the Queen, was recalled. Notwithstanding his royal connections, this profligate Governor was arrested in New York for debt, as soon as it became known locally that he was no longer Governor. Cornbury was held in the custody of the sheriff of New York until the death of his father, the Earl of Clarendon, brought him his inheritance. With this he was able to appease his New York creditors sufficiently to purchase release.

The Chief-Justice of New York during the latter part of Lord Cornbury's administration was Roger Mompesson. He came to New York in 1703 as Judge of Admiralty. His English record was good, including a term in Parliament, and some time as Recorder of Southampton. Wilham Penn testified to Mompesson as "well grounded in the law and an honest and sober gentleman." In 1704, upon the death of Chief-Justice John Bridges, Mompesson became Chief-Justice, and for a while also acted as Chief-Justice of Pennsylvania and of the Jerseys. Mompesson was the most capable jurist of his time in New York, and was the first to bring into the province the English forms of procedure. O'Callaghan declares that Mompesson "did more than any other man to mould the judicial system of both New York and New Jersey." He resigned from the Pennsylvania office in about 1706, the Quaker Assembly having persisted in refusing to grant him a salary, complaining that he was "too well-affected to Penn," and also "that he drank too much." In 1709 Mompesson, fearing removal from office, resigned the Chief-Justiceship of New Jersey, but he held the Chief-Justiceship of New York until his death in 1715.

Lord Lovelace, the next Governor of New York, arrived on December 18, 1708. He was well received. His administration was brief, death ending it on May 5, '709, before he really had time to become perplexed by the insistence of the Crown and home ministers and the stubbornness of Provincial legislators. Still, Bancroft writes of the Twelfth Assembly: "The assembly which in April, 1709, met Lord Lovelace began the contest that was never to cease but with independence."

Lieutenant-Governor Ingoldsby became Acting-Governor upon the death of Lord Lovelace, and, though unpopular, he contrived to hold it for almost a year. In April, 1710, however, he was removed, Geraldus Beeckman being temporarily entrusted with the Governorship. In July, 1710, Beeckman gave the reins of government to Robert Hunter, who had just arrived from England, properly commissioned by Queen Anne, to succeed Lovelace.

Hunter soon became convinced that government of New York would continue to be difficult until the Crown conceded to the people the right they claimed of control over the public purse, and, in general, of vital legislation. Governor Hunter handled a difficult situation well. Queen Anne was desirous of bringing the processes of government more into line with those of the Stuart period, and of cancelling the aims of the Revolution of 1688-89. Her ministers, in 1712, after being advised that the New York Assembly had persistently refused to pass revenue measures unless assured that they would not be altered by the Governor's council, wrote to Governor Hunter pointing out that "the Assembly sit only by virtue of a power in Her Majesty's commission to you, without which they could not be elected to serve in Assembly." This was communicated to the Assembly, but made no difference; the Assembly still calmly asserted "that they do not sit as an Assembly and dispose of money by virtue of any commission, letters patents or other grant from the Crown, but from the free choice and election of the People." This attitude was maintained over the first six years of Hunter's administration, and it affected the salaries of judicial officers, as well as of other provincial officials. Crown appointees, in general, were expected to look to the King's treasury for their stipends, since the people had had no chance of stating their opinion before appointment. Chief-Justice Mompesson, it would seem, was paid out of the King's purse, for when, after his death, it became necessary to appoint a successor, Lewis Morris was given the office because, as Governor Hunter explained to the Lords of Trade, he was "able to live without a salary, which they (the Assembly) will most certainly never grant to any in that station."

However, by that time, a fundamental change had taken place in the status of the monarchy. Queen Anne died in 1714, and George, Elector of Hanover, became King George the First of England, by virtue of the fact that Anne had no living child, and that the descendants of Charles I were "forbiddingly Catholic." But when this Hanovarian "foreigner," of the line of James I, was accepted as the successor of Anne, the English Parliament incorporated in the Act of Succession some remarkable restrictions of royal prerogative. For instance, no judge could be removed from office, save on an address from Parliament to the Crown; and in all things the King must act only through his ministers, and the ministers must be directly responsible to Parliament This had been decided upon soon after the death of Anne's only child, the Duke of Gloucester, in 1701. While Anne lived there was always a possibility-at one time it seemed a probability-that the Act of Succession would be revoked, However, with her death in 1714 and the accession of George as a "constitutional King," subordinate to Parliament, England-and of course England's overseas possessions-began a great political change. "No sovereign since Anne's death has appeared at a Cabinet Council or has ventured to refuse his assent to an Act of Parliament," states Green.

With the English situation so established, Governor Hunter, in 1715, perhaps by the advice of the English ministers, was influenced to bow to the will of the New York Assembly, and bring the provincial government more in conformity with the English. Thereafter, until the end of his term, Governor Hunter's relations with the Assembly and people were comparatively amicable. Some obnoxious institutions continued, but the strife was not as bitter as in Hunter's first years in the Governorship. Especially obnoxious was the functioning of the necessary court of Chancery. Governor Hunter, with the advice of his council, had begun to exercise the office of chancellor, in a reorganized Chancery Court, and, having appointed Rip Van Dam and Adolph Philipse as masters of chancery, he had made known, by proclamation, that the court henceforth would sit weekly. The Assembly emphatically protested and that and some other matters were still in active disputation in 1719 when the Governorship passed from Hunter to Burnet.

William Burnet, son of Bishop Burnet, did fairly well as Governor, but he stumbled disastrously in the exercise of the chancellorship, in which he delighted, but for which office he was not well fitted. He was impulsive, and rendered some ill-considered decisions. To the end of his term as Governor he insisted upon sitting as chancellor and thus exasperating the Assembly, which felt that "the erecting and exercising in this Colony a Court of Equity or Chancery . . . . without Consent in General Assembly is unwarrantable and Contrary to the laws of England." In 1727, the Nineteenth Assembly adopted resolutions denouncing Burnet for his action in setting up a Chancery Court that rendered "the Libertys and properties of the Subjects extremely Precarious" and had wrought financial ruin to some and personal degradation by imprisonment to others. The Assembly further resolved that in its next session a bill "to make null and void all acts, decrees, and proceedings of the court under Burnet" would be introduced. Burnet met this threat by dissolving the Assembly and his more tractable council appointed a committee to "make their observations" on the said "resolves" of the Assembly.

The committee did not report to the council until August of the next year, 1728, by which time Burnet had passed from the Governorship of New York and the Jerseys. The choice of his successor had been a happy one, for John Montgomerie was as naturally disinclined to act as chancellor as Burnet had been eager. Perhaps he recognized the power of the Assembly, and wished to avoid all unnecessary friction; and although the committee, in August, 1728, reported to him in council, through their chairman, Cadwallader Colden,^[79] that "unless such attempts as this be Effectually discouraged, the Authority of His Majesty's Courts may often be in danger from the Artifices of popular man That Judges may be frightened even in Cases where the King is highly concerned," and further that "if such an open invasion of the King's prerogative should now be passed with neglect, any Discourse of it for the future may become the Test of the people," Governor Montgomerie still persisted in declining to exercise his right to sit as chancellor. He can hardly have forgotten that a month earlier the Twentieth Assembly had given clear indication that it was as sternly insistent upon the rights of the House and the people as earlier Assemblies had been. Indeed, the Assembly had shown such animosity to Crown officers that Attorney-General Bradley had written to England reporting that "persons in power dare not yet venture to displease these people so far as to show much countenance to officers of the Crown"; in his opinion, the Assembly seemed "in express words to claim an independency."

Governor Montgomerie handled the Assembly more skilfully than some of his predecessors, and was able to get appropriations with comparative regularity and satisfaction, but, by the power the Assembly held over Crown officials-who were dependent upon their will for their stipends year by year-there is no doubt that the people's representatives had assumed legislative control of executive power. Montgomerie, to avoid friction with the House, dismissed Lewis Morris, Jr., son of Chief Justice Lewis Morris,^[80] from membership in his council, and appointed in his place "Phillip van Cortlandt, Esq., a man more inclinable to give up the rights of the Crown," complained Morris himself. To the Governor, as to some of the leading officials, the future for the Crown in America must have seemed dark. Attorney-General Bradley, in November, 1729, felt impelled to point out to the Lords of Trade the ominous significance of this trend. "Most of the previous and open steps," he said, "which a dependent province can take to render itself independent at its pleasure, are taken by the Assembly of New York."

Montgomerie, however, was not of contentious mind, and behind a veneer of indolent gentlemanliness may have lain a shrewd mind. He gained his ends in most cases without much friction, and although he was at last commanded to act as chancellor of the Court of Chancery, to protect Crown interests, he contrived to make his connection with it inoffensive. "In it he never gave a decree and issued no more than three orders, and even these, both as to form and matter, were first settled by ' his council." Governor Montgomerie died of small-pox in New York City in the summer of 1731.

The outstanding achievement of Governor Montgomerie's administration was the granting of a new municipal charter to New York. Known as "Montgomery's Charter," this form of municipal charter was destined to serve the great city for long thereafter, and prove to be a very important factor in its development. Chancellor Kent, writing in 1836, considered the charter as the one "best adapted to the genius and wants of the people."^[81]

Rip Van Dam, as president of the council, became Acting-Governor upon the demise of Governor Montgomerie. This was quite regular and according to the deceased Governor's own wish; but the appointment gave rise to litigation which seriously disturbed the administration of the next Governor, William Cosby, who reached New York thirteen months later, and demanded from Van Dam a portion of the emolument of the latter as Governor. Van Dam, according to the historian, Smith, was "distinguished more for the integrity of his heart than his capacity to hold the reins of government," but he certainly had tenacity of purpose. The salary as Governor had been granted to him in a regular way by the council, and he did not feel disposed to relinquish any portion of it, not even in face of the King's Order, which Mr. Cosby exhibited, providing "for the equal partition between himself and the president (of the council, i. e., Rip Van Dam) of the salary and all perquisites and emoluments of government" during the period. Of course, Colonel Cosby would not consent to Van Dam's demand that if division be made the salaries of both be divided. Van Darn, during the period, had received "no more than one thousand nine hundred and seventy-five pounds, seven shillings and ten pence," whereas the Governor's receipts were, Van Dam asserted, six thousand four hundred and seven pounds, eighteen shillings and ten pence.

Cosby decided to prosecute Van Dam, proceeding against him in the exchequer. He dreaded a suit at common law, dependent upon the verdict of a jury, "the president being a popular and reputable merchant." At the same time, he recognized the inadvisability of bringing the case into a Chancery Court of which he, as Governor, would be the chancellor. So it was pointed out to him that the Supreme Court "exercised the ample authorities both in the King's Bench and Common Pleas," and that in certain instances the Supreme Court judges had acted as a Court of Equity, their commissions directing them "to make such rules and orders as may be found convenient and useful, as near as may be agreeable to the rules and orders of our courts of King's Bench, Common Pleas and Exchequer." Thus supported, he decided upon a proceeding in equity before the justices of the Supreme Court, sitting as Barons of Exchequer. On December 4, 1732, he promulgated an ordinance enabling justices of the Supreme Court to sit as a court of Equity.

The Supreme Court then consisted of a Chief Justice and two associate justices. The two latter, DeLancey and Philipse, "were the Governor's intimate friends," although he had not "equal confidence" in Morris, the Chief-Justice. However, Cosby's mind was easy, for he had a majority of the Bench. Van Dam was represented by William Smith and James Alexander, "two lawyers in high reputation." "They took exception to the jurisdiction of the court, and boldly engaged in support of the plea," writes the historian, Smith, "but when judgment was given by the puisne judges for overruling it, the Chief-Justice opposed his brethren in a very long argument in writing, in support of his opinion; at which the Governor was much offended, demanding a copy, and then the judge, to prevent misrepresentation, committed it to the press."^[82]

Out of this action developed another celebrated case, one in which the freedom of the press was tested. The Van Dam case was subsequently dropped without settlement, but a few months after the trial Lewis Morris was removed and James DeLancey was commissioned as Chief-Justice on August 21, 1733. This was unfortunate for Cosby. He was further discomfited by the defeat of his choice and the election of the people's choice (Lewis Morris, the ex-judge) as a member of the Assembly. Such a reception as that accorded to Assemblyman Morris upon his next visit to New York after election must have added to the uneasiness of Cosby.^[83] He, however, went his arrogant way seemingly unconcerned, and in any case felt assured that his influential English connections^[84] would bring him any support necessary to defeat whatever plans the People's party might have to flout his will. Undoubtedly, Cosby in a few months had done more than any recent Governor to make the cleavage between the Crown and the people wider. Party feeling became so keen that James Alexander, one of the counsel for the defense in the Cosby vs. Van Dam case, was threatened with death if he did not leave the province; and it is said that Mrs. Cosby "frequently, and without reserve, had declared that it was her highest wish to see them (Alexander and Smith) on a gallows at the fort gate." Lewis Morris, the former Chief-justice, had, it is said, escaped arrest, perhaps death, by leaving the province, after Cosby had determinedly resolved to find and punish the author of some scurrilous political articles published in 1733 in Zenger's Journal. Zenger had earlier also dared to print Chief-Justice Morris' opinion in the Cosby vs. Van Dam case, and so had incurred the displeasure of the Governor. There were many troublesome elements in Cosby's life. He was worried by chronic and hopeless physical ailments, but more, perhaps, in 1734, by the effective opposition that arose to his government. The Twentieth Assembly, after the election of Lewis Morris, contested "every measure of the Government."

The judicial establishment of New York was the main bone of contention. Over it wrangled patriots, loyalists, demagogues, all angry. Undoubtedly, the judiciary "furnished the theatre for nearly all the ultimate contentions of the political parties of the province down to the time of the Revolution." The seventh session of the Twentieth Assembly was showered with petitions from many parts of the province, all condemning the governmental method of creating courts by executive ordinance, "especially the Court of Equity lately erected in the Supreme Court of this Province." Such a manner of establishing courts of judicature was "destructive to the liberties of the people," the petitions stated. The Assembly decided to hear opinions, and called upon two leading lawyers to address the House. William Smith, one of Van Dam's lawyers, spoke for three hours to the House, and "laid it down as an undeniable position that no Grant, Commission or Letters Patent can erect a Court of Equity or Chancery; and that it can only be by a Prescription or Act of Parliament." Smith's eloquence impressed the House, and, although addressing a legislative body in which his own, the People's party, constituted only a troublesome minority, he spoke convincingly and fearlessly, voicing the spirit of home rule with forceful logic. His closing words "painted a dark picture if the rights of English common law were to be denied to the colonies." Fowler writes: "It is doubtful whether there was ever any clearer statement of the American position touching the English supremacy" than that presented to the New York Assembly in 1734. Murray, "the recognized leader of the bar and in sympathy with the theory of prerogative government," addressed the House a week later, presenting the other side. He "laid it down that the Courts of Chancery, King's Bench, Common Pleas and Exchequer were, by the Laws of England, of original Jurisdiction by the Constitution of England, and as antient as the Kingdom itself; That as in this Colony, we are entitled to the fame Laws, Liberties and Privileges and under the fame Constitution, so we are entitled to the fame Courts and produced many Authorities in support thereof, and by several arguments showed that if we should put those Courts upon any other footing here than they are in England, our own Act would draw into question whether we are intitled to the Liberties and Privileges aforsaid; but that he however conceived it would be improper to regulate the Courts, and that (the tenure of office of) the judges might be, during good Behavior, by an Act, as it is in England." So reads the entry in the "Journal of the General Assembly," (I, 644). Murray recommended, in conclusion, "that if new laws were passed, they should be in imitation of such laws, relating to those courts as the wise legislatives of England have thought fit to make."

It seems that the aim of the People's party really was to draw the House "into the quarrel between the Governor and Mr. Van Dam," writes Smith, "for they saw that he would put a negative upon any bill sent up for the purpose." However, no definite action was taken; the Assembly merely "laid aside" the petitions, but also the act which prompted them. No further attempt was made by Cosby, however, to bring equity matters into the Supreme Court.

The case against Editor Zenger was of another class. The first number of Zenger's paper, "The New York Weekly Journal," came from the press on November 5, 1733. The next issue, that of November 12, was given over almost entirely to a defense of the liberty of the press and of the individual. A paragraph from one of the editorials reads: "No nation ever lost the liberty of freely speaking, writing, or publishing, but forthwith lost their liberty and became slaves." 'Week after week, by serious dissertations on liberty, by quips at the expense of the Court Party, by unveiled charges of extravagance and corruption, some unknown but very effective writers kept the anger of the Governor at storm intensity." Some court retainer remarked that it would be best "to keep well with the governor." The "Journal" retorted: "A Governour turns rogue, does a thousand things for which a small rogue would deserve a halter . . . . therefore it is prudent to keep in with him." So, the political warfare went on. The undermining power of Zenger's paper was seen in the New York City election in September, 1734. The Court party in the municipality was completely overthrown, only a single Tory gaining place in the new Common Council. The lampooning of Cosby and his supporters thus received fresh impetus. Zenger's "Journal" became bolder, and from the Zenger press came other discomforting literature. Chief-Justice DeLancey, in October, called the attention of the Grand Jury "to certain low ballads, which he charged to be libels." "Sometimes," he said, "bean half-witted men get a knack of rhyming, but it is time to break them of it when they grow abusive, insolent and mischievous with it." The Governor's council, at about the same time, sought to get concurrence of the Assembly, "in an address to the governor, for the prosecution of the printer." But the Assembly did not act in the matter, and the council, "converting themselves into a privy council, made an order for burning the libels."^[85] To carry this out, it was necessary for the sheriff to get "compliance of the magistrates (of the city) at the quarter sessions." The magistrates, however, "would not suffer the order to be entered, and the aldermen offered a protest against it, as an arbitrary and illegal injunction." The aldermen forbade "even their whipper" to obey the order of the Governor in council, and the public burning of the libellous papers was done "by a negro slave of the sheriff's."

Some days later Zenger, "on the Lord's day," was seized, upon an order of the Governor, and thrown into jail. Morris was then in England, but Alexander and Smith hastened to the aid of the printer. Such a heavy bail was exacted that Zenger had to remain in jail for a while. His paper was still published, and on January 28, '735, the Grand Jury refused to find a true bill against him. He was released, of course, but the case was not ended. The Governor, upon the advice of his Attorney-General, decided to proceed against Zenger without indictment, "by information for a misdemeanor." This brought further commotion. In DeLancey's court in April, 1735, exception was filed by Smith and Alexander to the "commissions of the Court." Chief-Justice DeLancey angrily inquired of the lawyers whether they had considered the possible consequence of their boldness. Smith replied that he had, adding "that he was well satisfied of the rights of the subject to except to the commission of his judges, if he thought it illegal, that he would stake his life upon the question." The matter was adjourned until next day, but then, upon Mr. Smith's motion to renew discussion of the exceptions, Chief-Justice DeLancey, "in great heat," said he "would neither allow nor hear the exceptions," adding: "You thought to have gained a great deal of popularity and applause by opposing this court as you did the Court of the Exchequer, but you have brought it to that point that either we must go from the bench or you from the bar." He then disbarred both Alexander and Smith.^[86]

Zenger's fortune was then at its lowest. There were only two other attorneys, Murray and Chambers, from whom choice of his counsel could be made. Murray was very able, but of the court party. Chambers was "more distinguished for a knack of haranguing a jury than for erudition in the law." However, the Chief Justice assigned Mr. Chambers to the Zenger case as counsel for the defense. Chambers abandoned the line of defense set by Alexander and Smith, but obtained a rule for a struck jury. August 4, the day of the trial, was hot, the humidity being such as New York City experiences only occasionally in the height of summer. Chief Justice DeLancey and Puisne Justice Philipse sat upon the bench; Attorney-General Bradley was the prosecutor, alert yet confident of the outcome; and Attorney Chambers was, it seems, as concerned in taking ground that would be safe for himself as in bringing advantage to his client. The courtroom was crowded, the public interest being intense. Some irregularity by the clerk of the court brought Chambers to his feet to protest; and there was some difficulty in impanelling the jury. Eventually, however, Attorney-General Bradley opened the case against Zenger, and evidently expected it to be quickly disposed of; but when he found that another and greater lawyer than Chambers rose to defend Zenger, he was probably as much surprised as anyone present. A thrill of excitement ran through the courtroom when the great Andrew Hamilton, who has been referred to as "The Day Star of the Revolution," arose and said: "May it please your Honor, I am concerned in this cause on the part of Mr. Zenger, the defendant." It is interesting to compare the common review^[87] of this case with that written by William Smith, a Tory judge of New York, a son of Attorney Smith, who was disbarred by Chief Justice DeLancey.^[88] Andrew Hamilton, at the time he appeared in the Zenger case was sixty-four years old, almost at the end of his career of notable practice of law in Pennsylvania and Maryland. In his defense of Zenger, a defense so masterly as to be "repeatedly printed" in England and America, and to "justly establish its author's fame as the first lawyer in the British Provinces," Hamilton forcefully quoted the William Penn trial, one of the most flagrant cases of judicial intimidation of the jury. Hamilton did not hesitate to admit the publication, but contended that as the statements were true there could be no libel. Chief Justice DeLancey differed, and delivered a scathing charge to the jury, who, however, were so impressed by the eloquence of Hamilton, who made the "first plea ever heard in America for the freedom of the citizen and of the press, from the tyranny of the rulers," that they quickly brought in a verdict of Not Guilty.

The verdict occasioned considerable commotion. The whole city strove to do honor to Hamilton, and Zenger's fortune seemed at its highest. Popularity, however, was the latter's ruination, eventually, it seems.^[89]

Cosby also came to his end soon after the excitements of the Zenger case had subsided; he died in New York City on March 7, 1735, vindictive and arbitrary to the end. One of his last acts was to remove Rip Van Dam from his Council, his motive being that Van Dam, as senior councillor, would upon Cosby's demise become Acting Governor. Such an eventuality was unthinkable to Cosby, who wished his gubernatorial mantle to fall upon George Clarke. The Council, after Cosby's death, ignored Van Dam's claims and recognized Clarke as president.

Government was difficult, and civil war was not beyond the bounds of possibilities for a year or more after Cosby's death. However, the followers of Van Dam gave up claims for him when the King commissioned Clarke as Lieutenant-Governor. Lewis Morris returned from England in 1736, vindicated; and in 1737 James Alexander, the disbarred attorney was elected to the Assembly from New York City.

In 1741 the Negro Plot stirred New York City into one of those uncontrollable panics that are apt to grip large cosmopolitan communities, seemingly without sensible reason. New York City, i. . e., the white people of New York City, had discovered that some negro slaves had planned to strike a blow for freedom-their own freedom from slavery- and that this would involve the burning of the city. Incidentally, slave-owners were to be killed; and as most of the wealthy citizens owned slaves, the apprehension was general. The Supreme Court was the venue of somewhat hysterical legal proceedings, and the outcome was the hanging of John Hughson, an innkeeper, his wife, and John Ury, a priest. Daniel Horsmanden, who was at that time recorder of the city, was one of the judges; and he later published his "Journal of the Proceedings in the Detection of the Conspiracy." His journal is the best evidence that the panic extended even to the bench, making justice impossible. "For its disregard of all rules of legal evidence, for its prostitution of the forms of law, for the perpetration of cruelty, for popular credulity and cowardice, for the abnegation of all sense of mercy, for. the oppression of the weakest and most defenseless, the whole transaction was without precedent, and has no parallel in any civilized community," wrote Mr. Gay.^[90] As a matter of fact, there were other panics, in other communities and other countries, that might be referred to as bringing as disgraceful scenes as those that blot New York history of that time; for instance, the "Popish Plot" of 1679 mars the English record as badly as the Negro Plot does that of New York. Lord Campbell considered the Popish Plot trials as "more disgraceful to England than the massacre of ..St. Bartholomew's to France."

The Clarke administration was unusually long for a Lieutenant-Governorship. For eight years after Cosby's death Clarke was Governor, though never commissioned as such. Cosby's successor was Admiral George Clinton, who arrived on September 22, 1743, and for the next ten years was Governor-in-Chief of the province of New York. New Jersey was no longer governed from New York, Lewis Morris having been commissioned as the first separate Governor of New Jersey.

Admiral Clinton was a blunt sailor, used to command, but a novice in the art of politics. He chafed under the restrictions of the Assembly; and had England not been passing through a very serious war period he would have undoubtedly acted with greater vigor and independence. Situated as he was, however, he endured the "encroachments" of the Assembly until after the signing of the Treaty of Aix la Chapelle, in 1748. Then, he flatly refused to assent to the revenue bill passed by the House, determined that thereafter his governmental departments should not be hampered by a yearly grant of revenue. He wanted a five-years grant. The Assembly persisted in their attitude, reiterating "that the faithful representatives of the people would never recede from the method of an annual appropriation." This Governor Clinton looked upon as "a dangerous invasion of the King's prerogative." Clinton had to confess to the home ministers that since he had rejected an annual grant "every executive part of the government has stood still." While the English ministers sympathized with Clinton, they realized that the Government could not function without the Assembly, and, as Clinton could not get along amicably with the legislators, the home government thought a change of Governors might be advisable.

Undoubtedly, Clinton was disappointed with Chief Justice DeLancey. It seems also clear that DeLancey had to some extent, undermined the confidence of the English ministers in Clinton; It appears that when first puzzled by legal and political problems in New York, Clinton had had too implicit confidence in DeLancey's loyalty to him. In all matters of law Clinton had leaned upon the Chief Justice, and the latter seizing the opportunity, had contrived to get himself recommissioned for life, or at least during good behavior, instead of as formerly, during the pleasure of the Governor. The Governor and the Chief Justice, in June, 1746, quarrelled "over a bottle of wine," it is said, and they became outspoken enemies thereafter. Still, the separation was really of earlier date, and first became noticeable soon after the Chief Justice gained his new judicial status in 1744. After the quarrel in 1746, Clinton resolved to "get even" with DeLancey, and in pursuing such folly did some vindictive and unwise things, bringing more discredit upon himself than upon DeLancey. He attempted to bring discredit upon the Chief Justice by accusing the latter's brother, Oliver DeLancey, of stabbing Dr. Alexander Calhoun in a tavern brawl in 1749. The two attorneys, Alexander and Smith, who had been disbarred by DeLancey, under Cosby, were readmitted to practice by Clinton, who took no heed of the opinion of the Chief Justice in the matter. Moreover, he tried to bring further honor to Smith, and thus further discredit to DeLancey, by planning to make Smith attorney-general. Also, Clinton recommended that judges be "imported," because New York judges "were interested in all quarrels of account before them, and by their connections with the politics and the politicians rendered the administration of justice impossible." The English ministers, however, rejected his recommendations.

The personal enmity between Clinton and DeLancey had made the aristocratic judge a staunch supporter of the Popular party. A serious clash between Governor and Chief Justice in 1750, resulting from an order issued by DeLancey to arrest a royal sailor, notwithstanding that admiralty law strictly exempted naval offenses committed on shipboard from the jurisdiction of the provincial courts, encouraged Clinton to believe that he could remove DeLancey for misdemeanor, the charge being that he had "wilfully disregarded the royal commands, by trying to borrow the Crown's jurisdiction in admiralty cases." DeLancey was also president of the Council, and Clinton thought that if removed from the one office DeLancey would automatically vacate the other, opening the way for the appointment of Dr. Cadwallader Colden as Lieutenant-Governor. Fortune seemed to favor Clinton, for in 1751 Puisne Justice Philipse died; so also did Attorney-General Bradley. To the bench the Governor elevated John Chambers, one of the Zenger advocates of 1734; and he gave William Smith a pro tern appointment as attorney-general. He added to the cup of bitterness by appointing James Alexander to his Council, and made Cadwallader Colden "Speaker" of the Council, so as to prevent the Governorship devolving upon DeLancey in the event of his own death or departure.

Then the home ministers intervened. They saw that such friction was harmful; and they decided in favor of DeLancey. The latter was commissioned as Lieutenant-Governor, and he also tenaciously held to the "life" justiceship William Smith was not confirmed in the attorney-generalship, William Kempe being sent out as such in November, 1752. So the Governor was completely discomfited. Clinton then asked to be permitted to resign, but was told that he was needed in the office, and must not look upon New York as a "place of punishment."

Still, Clinton's term was almost at an end. In July, 1753, Sir Danvers Osborne was commissioned as Governor. He reached New York in October of that year. Two days after Osborne had taken the oath, he was dead-by his own act-and DeLancey, the Lieutenant-Governor, was in full control of the province. DeLancey nevertheless, clung to the Chief Justiceship, though he was forced to leave all judicial matters to the puisne justices. While he was Acting Governor, DeLancey also assumed the office of Chancellor. He was, in 1754, unpleasantly reminded of certain court proceedings of twenty years earlier, for when DeLancey presided at a term of the Court of Errors in 1754, his inveterate opponent William Smith rose to challenge DeLancey's right to sit also as Chief Justice, "arguing that on account of the incompatibility between his old position as Chief Justice and his new political dignity, his right to the former naturally became extinct." DeLancey, however, was of different mind.

With the coming of Sir Charles Hardy as Governor, the chancellorship was vacated by DeLancey, who resumed his work as Chief Justice, also continuing as Lieutenant-Governor. Hardy arrived in September, 1755. Like his predecessor, he was an experienced sailor but had no knowledge of politics. He had even less liking for judicial office than Clinton had, and he was even more disposed to lean on DeLancey, contented in being only nominally Chancellor.^[91] Therefore, Hardy looked with disfavor upon the movement initiated shortly after his arrival to prevent DeLancey from returning to active duty as Chief Justice. The protest was carried even to England, but the Lords of Trade sided with DeLancey, after the attorney-general had given an opinion. In 1757 Hardy was called to active war service at sea, and in his absence DeLancey was again Acting Governor. Still, he would not relinquish his judicial office, and the court duties devolved upon the puisne justices, Chambers and Horsmanden. In one case in 1758 it so happened that both judges were interested parties; therefore it was necessary to appoint an additional justice. David Jones received the appointment, and the Supreme Court thereafter, to the end of the provincial period consisted of a Chief Justice' and three associates.

Hardy was still in sea command when death came, on June 30, 1760, to Acting Governor DeLancey. The last three years had been trying ones for the Chief Justice, but probably were the most creditable of his life. With increase of responsibility, he had become aware that . both sides, the Crown and the people, had rights in the province; and, in his conscientious endeavor to develop the civil polity of the province so as to make it an efficient medium for executing the will of the people, without impairing the authority of the crown, he had had to face perplexities which demanded all his strength. He apparently spent himself upon his public office. On the day of his death he crossed the harbor, to transact urgent governmental matters. These matters occupied his whole day; indeed, the night was far spent before he was able to return; and it is thought that the effect of the night crossing in an open boat had so distressed him, a chronic sufferer from asthma, that the remainder of the night he dared not move from a sitting posture. He was found dead in his chair in his library next morning.

Dr. Cadwallader Colden, then seventy-two years old and for many years president, or speaker, of the Council-in fact, its oldest member at that time-became Acting Governor upon the death of DeLancey. Colden was a man of somewhat different type; and as Governor his first thought seemed to be to safeguard Crown interests. He could begin with the judiciary. The question of tenure of judgeships . could be opportunely taken up at that time, for the demise of DeLancey occurred in the same year that King George the Second died. Colden had been so close to Clinton and had seen how independent of the Governor a. judge commissioned quamdiu bene se gesserint-to all intents for life-instead alas formerly durante bene placito-during the pleasure of the Governor, that he perhaps wished to save himself from a. predicament like that of Clinton. Upon the death of King George II was a good time therefore. to ask whether all commissions should not also then terminate. Colden was able to find a Chief Justice who would accept a commission "during pleasure", but with the appointment of Benjamin Pratt to that office on such a status, the anomalous situation existed of having a Chief Justice removable at will, and two or three puisne justices who could not be removed at all, if they behaved themselves The associate justices took umbrage at the appointment of Pratt, a stranger from Massachusetts, but they were more indignant when offered new commissions on the revocable basis. 'They all refused, and for a while Pratt, who knew nothing or very little of New York law, had to conduct court proceedings unaided. He sat alone during the January, 1762, term of court, and at its end implored Colden to fill the bench. This Colden did not then do. He had had explicit instructions from the Lords of Trade on December 2, 1761, "that you do not, upon any pretense whatever, upon pain of being removed from your government, give your assent to any act by which the tenure of commissions to be granted to the Chief Judge and other justices of the several courts of judicature shall be regulated or ascertained in any manner whatever (by the People) and that you are to take particular care in all commissions to be by you granted that they be during pleasure only, agreeable to ancient practice and usage." On the other hand, the Assembly had defied the Crown, refusing to grant any salaries to jurists who held any other commissions than those of "good behaviour" tenure; and even in such cases they would grant salaries for no more than one year at a time. Colden offered to compromise with the Assembly, by offering to make the judiciary entirely independent of both Crown and people, if the Assembly would settle permanent salaries upon them. ' Colden risked his own office in this, and was sternly reprimanded by the Lords of Trade, for signing an act which provided present salaries for those justices who still held their old commissions, of "good behaviour" tenure. They wrote that no personal consideration "ought to have induced you to acquiesce in such an unprecedented and unjust attack upon the authority of the Crown." It seems that Pratt did not benefit by this act, because of a qualifying clause, making the liability of the Assembly only "from the time of his being qualified"; but Puisne Justices Chambers, Horsmanden and Jones, having "good behaviour" commissions, were provided for. Pratt, as a matter of fact, received no salary at any time from the Assembly, and was opposed "in every judicial act he did" by the Republican faction. According to Justice Jones, the unfortunate Massachusetts jurist was made the victim of the political factions of the time, was "insulted, abused and lampooned through the artful insinuations and cunning, sly, dark designs" of the faction that opposed Colden. Finally, Pratt went to England, "to lay his own case before the home authorities." There death' overtook him in January, 1763.

Just as DeLancey had been Acting Governor while the Governor was still in office but on leave of absence, so had Colden been in charge during a long period of absence of the appointed Governor. Hardy did not resign the governorship until 1761, though he remained in naval command; and Robert Monckton, who had been second in command in Wolfe's last battle before Quebec, did not reach New York, as Governor, until October, 1761. Monckton abstained from any act of government, and a few weeks later left the province to command an English expedition against Martinique. Major-General Monckton handed over his seals to Lieutenant-Governor Colden on November 5, 1761. The Governor did not return until 1763, Colden, therefore, having had to handle himself the difficult judicial situation that had developed since DeLancey's death in 1760 Monckton, in 1763, found the Assembly more tractable. The puisne justices also were not so indignant as when Colden had first offered them new commissions of "during pleasure" tenure. The death of Chief Justice Pratt enabled Monckton to reorganize the bench, on revocable tenure. Horsmanden, who had consented, in March, 1762, to serve as second justice on "during pleasure" status, was offered the Chief Justiceship, and David Jones, William Smith, Sr., and Robert R. Livingston became the puisne justices, all accepting commissions durante bene placito. No further "good behaviour" commissions were issued during the provincial period Horsmanden remained Chief Justice until the Revolution, George D. Ludlow became puisne justice in 1769, Thomas Jones in 1773, and Whitehead Hicks in 1776.

Although the commissions were revocable at will, the justices maintained a commendable independence of opinion. In 1764 they did not hesitate to refuse to deviate from the strict judicial course, even to obey peremptory orders of the King. The justices aligned themselves against the Government to preserve the integrity of trial by jury; and they flatly refused to obey a writ of inhibition drafted by the Governor himself, against the advice of the Supreme Court. This dispute, "involving the right of the King to establish courts and regulate practice in the colonies though he could not in England, would, if the contention of the judges and lawyers should prevail be subversive to every Government in the colonies, where all of them depend upon the King's charter, or on his commission to his Governor," pointed out Lieutenant-Governor Colden, "not only for their executive but their judicial powers." He complained that the judges, instead of "giving the reasons for 'their judgments in private and simple," as he had expected, surprised him "by haranguing to a large audience to make his Majesty's Instructions appear illegal and arbitrary, and to render his Governor odious in the eyes of the people."

Colden's complaint brought from the Privy Council a peremptory order of the King in Council, commanding the judges to send up the proceedings to the Governor and Council for review. This occurred on July 26, 1765. Meanwhile, Attorney-General John Tabor Kempe had given his opinion that the Council could only correct errors; and the Council itself had unanimously decided that no other than an appeal of error would lay to them. Still, in the face of the King's command, a writ was issued to the Supreme Court in October, 1765. The determination of the justices did not waver. On November 12, the Chief Justice replied that the justices of the Supreme Court found it impossible to comply with the command, the law knowing no appeal from a verdict. A month later the Assembly adopted resolutions supporting the Supreme Court, sustaining their action, condemning the illegal proceedings, affirming the right of trial by jury, and declaring "that an appeal from the verdict of a jury is subversive of that right, and that the Crown cannot legally constitute a Court to take cognizance of any such appeal."

This "mutiny" of the judges was not the only trouble then before the Crown's representatives. The Stamp Act excitement of that year had given the English ministers and the colonial governments ominous indication of the gathering storm. Sons of Liberty began to organize into bands, after Barre had corrected Townshend, in the British Parliament, and declared that "Americans are Sons of Liberty" rather than "children of England's planting." Lawyers, it is worthy of remark, were well in the lead in these republican units; indeed, "it is asserted that the New York Association of the Sons of Liberty had existed since 1744, when the Bar entered into an association to free the Bench from the exercise of the King's prerogative." New York in 1765 was heading more definitely towards independence than any other colony, states Bancroft. In May of that year Colden wrote to Monckton, who was then in London, that "the gentlemen of the law seem to have placed the chief stress of their cause in raising public clamour." New York seems to have been the seat of the forces of liberty. Deputies of a Continental Congress met in New York City in October, the convention going into 'history as the "Stamp Act Congress." Colden's life was in danger in November, when Sons of Liberty threatened to storm the fort, seize the stamps and burn them; they hanged Colden in effigy, riddled another effigy of him with bullets, and dared him to issue the stamps, warning him that if he did he would die "a martyr" to his own "villainy and be hanged like Porteous upon a 'high post, as a memento to all wicked governors."

Sir Henry Moore was Governor at that time, but had not yet arrived. He reached New York on November 13, easing the situation which had been so critical under Colden. New York was at least thankful that they were "rid of the old man" (Colden). Governor Moore gave evidence that he had no arbitrary or belligerent intentions, and in 1766 the Stamp Act was repealed. Still, Liberty was abroad in the land, and could not, or would not, be shackled. There were other obnoxious Crown institutions that gave the Sons of Liberty, or the agitators for independence, something to abuse. For instance, the Courts of Admiralty and Chancery; tenure of judgeships. The ever-present royal prerogative rankled most, but feelings on both sides of the Atlantic were becoming more sensitive, and eyes more fault-finding.

Colden was again in office, as Acting-Governor, in 1796, when Governor Moore died. Though the times were dangerous and he was eighty-two years old, Colden seemed to revel in a resumption of the difficulties of office. Watts, writing to Monckton of him, said: "He fairly lives himself into office, being, they tell me, as hearty as when you knew him . . . . The old man seems to be the Son of Fortune in his advanced years." Certainly, he accumulated a considerable sum, £10,000 it is said, in fees for the execution of patents left in abeyance by the deceased Governor; and when the next Governor, John Murray (Lord Dunmore) arrived, and demanded of Colden one-half "of all fees, perquisites and emoluments that had accrued during his year as Acting-Governor," he precipitated litigation somewhat like that between Cosby and Van Dam. Colden would not part with a farthing, and eventually retained the whole of the £10,000. Murray sat as Chancellor and heard the case, but James Duane, counsel for Colden, so convinced the Chancellor Governor that he dared not decide in his own favor against Colden that Murray submitted the case to the Supreme Court justices. They promptly decided that Duane's demurrer was well taken, the justices finding so, notwithstanding that they were bitter enemies of Colden, and that the Governor could, if vindictively minded, have removed them from office.

Lord Dunmore was a man of broad mind and good character. He took the ruling as right, and went on with other matters of government. If other Governors, and the English ministers-as well as many of the provincial leaders of the people, no doubt-were as broadminded and open to conviction as Lord Dunmore was, the course of American affairs might not have led inexorably to revolution. However, it was not to be.

Provincial records show that the real champions of the people were the lawyers. This is not surprising, for no other class could better point out the grievances, or see how far from the fundamental laws the English ministers had drifted, in their instructions to provincial Governors. Edmund Burke declared: "In no country, perhaps, in the world is law so general a study as in America." Fowler, in his "Constitutional and Legal History of New York" wrote: "A complete history of the Bar of last century (eighteenth) would be almost the history of independence." When, in the last few years of Crown government in New York the Assembly veered more to Tory influence, the lawyers transferred the people's cause to other organizations, lawyers being most prominent in the Congresses and committees.

There was confusion for a while in judicial matters after the outbreaking of war The judges, with one notable exception, were aligned with the Tory or Loyalist faction, and to the end all but Livingston considered that they were sitting in Crown courts. A Republican local committee actually haled a Tory suspect before Justice Thomas Jones at his last session of circuit court at White Plains (in April, 1776) and had so confused an idea of the judicial situation as to expect a Crown judge in the Crown court to deal sternly with a townsman suspected of loyalty to the Crown. The suspect was, of course, promptly discharged. However, no more sessions of the provincial courts were held, except in those parts occupied by British troops during the Revolution. The Crown "ceased to be the general Conservator of the Peace and the Fountain of Justice in the Province when the Declaration of Independence was adopted, on July 4, 1776." The State courts, when organized, were merely a continuation of the Crown courts; the common law of England still ruled in American courts; and the Royal Prerogative, which provincials had so stubbornly resisted, as encroaching upon their Magna Charta rights, merely became State Prerogative. In the minds of the people, however, there was this satisfying difference: that all who had part in the government were fellow-citizens, men of their own State, their brothers, as it were, instead of distant kinsmen, and that whatever new laws might be necessary would be enacted by those they themselves had chosen to make such laws. In other words, they felt that they were free to manage their own affairs, instead of having their affairs directed by a government seated three thousand miles away. The people of New York felt no apprehension when their own delegates in Provincial Congress drafted and brought into effect a State Constitution which they themselves had had no opportunity of considering. When, however, it was proposed to set up a federal government, the United States, by which the several States were to be bound by a National Constitution, the people of New York, in common with those of other States, began to look more closely into the proposals. They were jealous of their own rights, and suspicious of all interference. So there was nothing inconsistent in the political psychology of New Yorkers in the last decades of the English period and the same New Yorkers in the first decades of the State period. Some of the actions of English ministers in the last decade of Crown rule in America were drastic and imprudent, and brought condemnation and protest from even English bodies of prime importance;^[92] but the fact seems to be that the seed of liberty, sown by governmental indifference, to neglect of common rights, had grown into a strong and fertile plant, had propagated its kind and spread Liberty until it covered the whole of the American colonies. Nothing short of independence would satisfy those of the people's leaders who were most active in agitation, and although the advocates of separation were not a majority of the people of the colonies and provinces of America, the definite opinions of the positive faction swayed the average peaceful colonist into belligerency, just as the English advocates of drastic measures fanned the flame of National impulse until the average Englishman felt indignant that American Englishmen should defy the will of the Mother Country.

So, the two English-speaking peoples drifted into war; and, in the' regrettable incidents that come when aroused passions dash, they drifted farther and farther apart during the Revolution, never again to be quite reconciled to each other, though in the last great war they fought side by side, in appreciating kinship.

Footnote 71: The charters of 1683 and 1691 made a shadowy differentiation between executive, legislative, and judicial authority. They followed in the main the English theory of colonial government. The council and assembly constituted a bicameral legislature. The governor, and after him the king, had an absolute veto on all its acts. Landed proprietors alone were recognized as entitled to share in the business of government. The members of the council received their commissions from the crown, but the governor had a qualified right to fill vacancies. Besides sitting as an upper legislative chamber, the council sat as a privy council to advise and assist in political cases. The governor was empowered to adjourn, prorogue, and dissolve the assembly in his discretion.

Substantially this type of government was continued until the Revolution, but under an unwritten constitution, no actual charter having been in force after 1697. As has been well said by Mr. Lincoln in his exhaustive treatise upon our constitutional history, the student who would understand the essentials of the institutions which by degrees had been evolving in the colony, will find them formulated in the commission issued in February, 1771, three years before the commencement of the Revolution, by George III, to Governor William Tryon, and in the instructions that accompanied and explained the commission.

In an explanation of the nature of the colonial constitution, transmitted by Governor Tryon to the home government in 1774, its salient features are briefly and admirably described. Its constitution, since it became a royal province, "nearly resembled that of Great Britain and the other royal governments in America." The governor was the king's appointee and held office during royal pleasure; he had a council in imitation of his majesty's council; the province "enjoyed a legislative body," consisting of the council and representatives of the people, "chosen as in England," which the governor might adjourn, prorogue, or dissolve; it could make no laws repugnant to the laws and statutes of Great Britain, and over all its enactments the governor possessed an absolute veto. Within three months after its passage, every law was required to be sent to his majesty for his approval. The governor was not to give his consent to any law that was not to remain in force for two years. No clause foreign to the import of the title of an act might be inserted in that act, and no act might be suspended, altered, continued, revived or repealed by general words, but the title and date of any such act was required to be particularly mentioned in the enacting part. The province had a court of chancery in which the governor sat as chancellor, and courts of common law, the chief being the supreme court, the judges of which held their commissions at the king's pleasure, and there were minor courts of less jurisdiction, and the justices of the peace to try minor cases. There were also criminal courts "correspondent with those in England." Besides these tribunals, all administered according to the common law, there was a court of admiralty which proceeded "after the course of the civil law," and a prerogative court, charged with the probate of wills, the administration of estates and the issuing of licenses for marriage. The governor was commander-in-chief and appointed all military officers, who held office at his pleasure. He had power to suspend the lieutenant-governor and members of the council, and to grant pardons, except in cases of treason and murder. The colony could erect forts and other means of defence and establish and maintain a militia. Public money was to be paid only to the governor's warrant, approved by the council. The common law of England was considered the fundamental law of the province, and, continued the governor: "It is the received doctrine that all statutes not local in their nature, and which can be fitly applied to the circumstances of the colony, enacted before the province had a legislature, are binding upon the colony; but that statutes passed since do not affect the colony, unless by being specially named. Such appears to be the intention of British legislation."- Dougherty's "Constitutional History of New York," II, 15-17.

Footnote 72: First Assembly-Speaker, James Graham, of New York; clerk, John Clapp, of Westchester sergeant-at-arms Benjamin Phipps doorkeeper William Welsh Representatives, and districts:

Albany-Dirck Wessels, Levinus van Schaick. Kings-Nicolas Stillwell, John Poland.

New York City-James Graham, William Merrett, Jacobus van Cortlandt, Johannes Kipp.

Queens-John Bound, Nathaniel Pearsall. (They were Quakers, and, as they refused to take the oath they were dismissed ) Daniel Whitehead was admitted April 14, 1691. John Tredwell was admitted same day, but was expelled two days later, being arrested on a "scandalous charge." John Robinson was elected in place of Tredwell.

Rensselaerswyck-Killiean van Rensselaer who was admitted on May 1, 1691.

Richmond-Elias Duksberry and John Dalley Lambert Dorland was admitted September 17, 1691, in place of Dalley, deceased.

Suffolk-Henry Pierson and Matthew Howell.

Ulster and Dutchess-Henricus Beekman Thomas Garton who resigned on April 10, 1691; William Demiere admitted April 25 1691, in Garton's place.

Westchester-John Pell.

Footnote 73: "Upon an information brought into this House by several Members of the House declaring: That the several Laws made formerly by the General assembly, and his late Royal Highness James Duke of York &c and also the several Ordinances or reputed Laws made by the preceding Governors and Councils for the Rule of their Majesties Subjects within this Province are reported amongst the People to be still in force:

"Resolved, Nemine Contradicente, That all the laws consented to by the General Assembly under James Duke of York and the Liberties and Privileges therein contained granted to the People and declared to be their Rights not being observed and not ratified and approved by his Royal Highness, not the late King, are null, void, and of none effect. And also the several Ordinances or reputed laws made by the late Governors and Councils, being contrary to the Constitution of England, and the Practice of Government of their Majesties other Plantations in America are likewise null void, and of none effect nor force within this Province."-See "Journal of the New York Assembly," p. 8.

Footnote 74: This ad is chapter four of Livingston and Smith and Van Schaick, where the title only is printed. It is printed in full in Fowler's "Bradford," p. 2. The title only is printed in Baskett, p. 105. The act is also printed in full in "Colonial Laws of New York," Vol. I, pp. 226-231.

Footnote 75: Single Justice-Every Justice of the Peace hath power to determin any suite or controversy to the value of fourty shillings.

Quarter Sessions-The Justices of the Peace in quarter sessions have all such powers and authorities as are granted in a Commission of ye Peace in England.

County Court-The County Court or common Pleas both cognizance of Civil accons to any value excepting what concerns title of land and noe accon can be removed from this Court if the damage be under twenty pounds.

Mayor & AIdermen-The Court of Mayor and Aldermen hath the same power with the County Courts.

Supreme Court-The Supreme Court hath the powers of Kings Bench, Common Pleas & Exchequer in England and noe accon can be removed from this Court under œ100.

Chaucery-The Gouvernour and Council are a Court of Chancery, and have powers of the Chancery in England, from whose Sentence or decree nothing can be removed under œ300.

Prerogative Court-The Gouvernour discharges the place of Ordinary in granting administracons and proveing Wills & the Secretary is Register. The Governr. is about to appoint Delegates in the remoter parts of the government with supervision for looking after intestates, estates and orphans.

Court Marshall-The Governr. bath established a Court Marshall att Albany whereof Major Richd. Ingoldsby is President and Robert Livingston Judge Advocate, who with the other commissioned Captains att Albany have power to exercise Martiall Law being a frontier garrison and in actuall warr.

Admiralty-Their Majesties reserve the appointment of a Judge Register and Marshall-See O'Callaghan's "Documents Relative to the Colonial History of New York," IV, 28.

N.Y.-122

Footnote 76: The reluctance with which William III consented to the erection of this high court (Supreme Court) by statute rather than by a mere executive ordinance revokable at will is made apparent by the proviso of the act creating it which limited the court s existence to two years. As nothing occurred, however, in the conduct of the court during the first two years of its existence inimical to the King s ideas of governing the province by royal prerogative the limitation was extended from time to time by subsequent legislation until 1698. The court was thereafter continued not by legislation but by the governor s proclamation of January 19, 1699 and then finally by the order of the governor in council under date of May 15 of the same year This assumption on the part of the crown of a right to erect a court of justice or to revive a defunct court, gave excuse, on at least one occasion, for a great popular outcry against the court on a plea to the court s jurisdiction being raised in a pending case the contention on the part of counsel bemg in effect that the court had had no legal existence subsequent to the expiration of the limitation fixed by act of assembly that the fundamental principles of the English constitution were as conrolling in New York as in England and that as the king could not constitutionally of his own will erect and maintain a court of justice at home he could not do so here The king s claim of right to rule by prerogative in the colonies any further than in England was contested in New York mainly by the lawyers in pending litigation at the bar of the Supreme Court, and this with a frequency and persistence unknown because uncalled for in neighboring colonies which lived under the guarantees of written charters by which the right of govenment by prerogative was, to a greater or less degree, surrendered by the crown to the people These forensic discussions at the bar as they occurred from time to time, filled the courthouse with eager and sometimes applauding and even riotous audiences; they were subsequently rehearsed in every tavern taproom, and thus was begot that familiarity with and stubborn devotion to the underlying doctrines of institutional liberty under English law which became characteristic of the province notwithstanding the diversity of nationalities which from first to last made up its population -Redfield's English Colonial Polity and Judicial Administration 1664 1776 McAdam's "History of Bench and Bar of New York."

Footnote 77: ...the hostility of the popular party to the assumed chancery jurisdiction of the governor and council was due to the crown's denial of the exclusive right of the assembly to erect its own courts and fix the limits of their jurisdiction though any court exempted from the rules of common-law procedure, as courts of equity are supposed to be, was always and everywhere in the American colonies regarded with distrust. It is not surprising, therefore, that every attempt of the Supreme Court to exercise equity powers, though made under the guise of exchequer business, should excite an instant and persistent opposition on the part of the whig bar, than which nothing was surer to receive popular applause.

The first exchequer-chamber business attempted in the Supreme Court was made by Chief-Justice Attwood shortly after his arrival here in 1701, Lord Bellomont being governor. The latter had come out under special instructions to suppress the illicit trade, not to say piracy, at that time largely engaged in by merchants and traders of New York. To assist him in this arduous task, a new chief justice (Attwood), and a new attorney-general (Sampson Shelton Broughton) had been respectively commissioned directly by the king-no resident being trusted in the emergency. The seat of corruption seemed to have been in the Court of Admiralty. Attwood was accordingly armed with a commission as Judge of Admiralty for New England New York and New Jersey, in addition to the chief-justiceship of New York.-Ibid., p. 75.

Footnote 78: Attwood, upon arrival early in the summer of 1701, took his seat in a Court of Admiralty. "In the summer of 1701, he learned of a case of a vessel which, seized for lack of registry under the navigation acts, had been discharged by the admiralty judge whom he succeeded. What was wanted was some jurisdiction somewhere to prohibit, by writ, the execution of the decree discharging the vessel until the admiralty proceedings could be reviewed. But there was no court in the province having an unquestioned right to issue a writ of prohibition against the decree of the Admiralty Court. The chancery jurisdiction of the Governor was questioned; the Supreme Court was claimed by lawyers to be a court of law only. He concluded, however, that by its constitution, as gathered from the original act of 1691, and the subsequent ordinances continuing the court, the Supreme Court, sitting as a Court of Exchequer, had power, by writ of prohibition, to prevent the discharge of the vessel and the consequent defeat of his Majesty's forfeitures, under the Navigation Acts, pending an inquiry by it into the legality of the vessel's discharge. He thereupon, assuming to sit as a Baron of the Exchequer, directed "a suggestion to be exhibited to it for a prohibition to the Court of Admiralty upon its sentence in that matter." But, as "one of the persons designed for a judge in the Supreme Court had given the obnoxious sentence in favor of the ship," and the other judge "was a merchant who might be concerned in interest, the Governor thought fit to suspend the granting of their commissions till this matter should be over in the Supreme Courts," and "therefore," he writes, "the enclosed Ordinance was made empowering me alone to determine this matter." In justification of his assumption of this extraordinary jurisdiction, Attwood assured the Board of Trade that the matter "had been solemnly argued by Council on both sides; that he had taken due time to compare the authorities cited to ' him, and to collect others which are produced at large in his "long argument" enclosed, given at his granting the writ of prohibition. Notwithstanding a prompt appeal direct to the King by the vessel's owners, "men of good estates" as he had reported, he proceeded to try the Crown's claim to a forfeiture. The captain refused to appear, though "his former attorney offered several things as anticus curiae, principally the pendency of the appeal." On the facts found, a forfeiture was declared, under which the vessel was sold at public auction, to the ' consternation, we may suppose, of the "men of good estates" engaged in the prevailing illicit trade.-Redfield, in "History of Bench & Bar of New York" (McAdam), pp. 75-77.

Footnote 79: See McAdam's "Bench and Bar of New York," Vol. I, p. 72.

Footnote 80: Lewis Morris, Jr., had protested against the signing of the warrants, one of which warrants submitted by the Assembly touched him closely, inasmuch as it reduced his father's stipend, as Chief-Justice, from œ300 to œ26O.

Footnote 81: Chancellor Kent wrote: "It remains to this day with much of its original form and spirit after having received by statute such modifications and such a thorough enlargement in its legislative judicial and executive branches as were best adapted to the genius and wants of the people and to the astonishing growth and still rapidly increasing wealth and magnitude of the city."-Kent's "Book of Charters of New York."

Footnote 82: "The exceptions were three: That the supreme court, which claimed this jurisdiction in equity, was established by an ordinance of the late king George the first, and expired at his demise, and had not been reestablished in the present reign; that his present majesty, by his commission to governor Montgomerie, under the great seal of Great Britain, having commanded him to execute all things in due manner, according to the powers granted by that commission, and the instructions therewith given, by the 39th article of which he was required to grant commissions, with the advice of the council, to persons fit to be judges, and that he had commissioned Mr. Delancey and Mr. Philipse without such advice; that they had no jurisdiction or authority todefendanthe defen4ant to appear upon oath, concerning the matters in the bill; and there is no prescription, act of parliament, nor act of assembly, to establish any supreme court, nor to empower any court or persons to hold cognizance of pleas in a court of equity, in or for this province."-Smith's "History of New York," Vol. II, pp. 7-8.

Footnote 83: .... their joy on Mr. Morris's next arrival there was announced by the explosion of the cannon of the merchants' ships in the harbour and by the citizens meeting and conducting him, with loud acclamations, to a public and splendid entertainment."-Ibid., p. 9.

Footnote 84: Cosby had most powerful connections in England, and he seemed to feel that they would sustain him through his imprudent arrogant course. He was a brother-in-law of the Earl of Halifax; and the Duke of Newcastle then in ministerial power was his patron. His daughter had just married Lord Augustus Fitzroy, son of the Duke of Grafton, a descendant of Charles II.-"Courts and Lawyers of N. Y.," chapter XXVII.

Footnote 85: Following is copy of entry in Minutes of Council:

"At a council held at fort George, in New York, the 2nd of November, 1734:

Mr. Clarke. Mr. Livingston. Mr. Courtlandt.

Mr. Hanson. Mr. Kennedy.

Mr. Lane.

"Whereas, by an order of this board of this day, some of John Peter Zenger's journals, entitled 'The freshest advices, foreign and domestic,' Nos. 7, 47, 48, 49, were ordered to be burnt by the hands of the common hangman or whipper, near the pillory in this city, on Wednesday the 6th instant, between the hours of eleven and twelve in the forenoon, as containing in them many things tending to sedition and faction, to bring his majesty's government into contempt, and to disturb the peace thereof; and containing in them, likewise, not only reflections upon his excellency the governor in particular, and the legislature in general, but also upon the most considerable persons in the most distinguished stations in this province. It is therefore ordered, that the mayor and magistrates of this city do attend at the burning of the several papers or journals aforesaid, numbered as above mentioned."

Footnote 86: Entry in Court Minutes:

"James Alexander, esq., and William Smith, attorneys of this court, having presinned (notwithstanding they were forewarned by the court of their displeasure, if they should do it) to sign, and having actually signed, and put into court, exceptions in the name of John Peter Zenger; thereby denying the legality of the judges, their commissions, though in the usual form, and the being of this supreme court:

"It is therefore ordered, that, for the said contempt, the said James Alexander and William Smith be excluded from further practice in this court, and that their names be struck out of the roll of the attorneys of this court."-See Smith's "History of New York," Vol. II, 25.

Footnote 87: See "Courts and Lawyers of New York" (Chester-Williams, 1925), Chap. XXVII.

Footnote 88: Smith's "History of New York," Vol. II, 27.

Footnote 89: "As it happens on such occasions as these, the scribblers of the day grew more wanton than ever, and a low printer, dandled upon the knee of popular applause, gave into prodigalities which contributed to his indolence, and ended, as the ferment subsided, in the ruin of his family."-Ibid., p. 29.

Footnote 90: "Bryant and Gay's "History of the United States."

Footnote 91: Sir Charles Hardy . . . . was a typical sailor, and had no liking for political intrigue.... He knew even less of law yet he was chancellor Historian Smith describes the perplexed state in which Hardy found himself immediately after his arrival when four eminent counsel-Murray Nicolls 'and the two William Smiths- appeared before the Governor to argue a demurrer to a bill of equity. Hardy had asked the Chief Justice to be at hand, but DeLancey had failed to appear. So his excellency had to act alone He called the counsel of both sides into a private room and asked: 'Does this matter turn upon a point of law?' When assured that it did, he frankly confessed I have been justice of the peace in England but know nothing of the law. My knowledge, gentlemen, relates to the sea; this is my sphere. If you want to know when the wind and tide will suit for going down to Sandy Hook I can tell you that but what can a captain of a ship know about demurrers in law? If you dispute about a fact I can look into the depositions and perhaps tell who has the better of it but I know nothing of your points of law ' Fortunately Chief Justice De Lancey came to his aid at that moment. Smith writes: "The cause was afterward debated and a decree pronounced by DeLancey, who dictated the entry in the register. The Governor, who awkwardly sat by, interfered only to pronounce an amen."- "Courts and Lawyers of New York," Chap. XXVII.

Footnote 92: "The Corporation of the City of London; see Sharp's "London and the Kingdom."

Page 5

     

The Historical Society of the Courts of the State of New York
140 Grand Street, Suite 701
White Plains, N.Y. 10601
phone: (914) 824-5717