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"Browne, The Judiciary" | |
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The Colony fell into the hands of the English in 1664, and New Amsterdam and New Netherland then became New York, so called after the Duke of York. A code of laws was framed by Lord Clarendon, for the government of the Colony, called "The duke's laws." This code prohibited slavery; forbade religious persecution of professing Christians, but decreed death for atheism; and denounced death to any child who should strike its parent except in self-defense. It established justices of the peace, and town courts composed of overseers and constables, with jurisdiction to five pounds in actions of debt and trespass. The Province was divided into three "ridings." An appeal lay to the Court of Sessions, which consisted of all the justices living within the "riding," and was held twice a year. All causes were tried before a jury, consisting of the overseers of the towns in the "riding." In civil cases seven constituted a jury, and a verdict was pronounced by a majority. In criminal cases the jury was twelve in number, and the verdict was required to be unanimous. It had jurisdiction above five pounds, and exclusive jurisdiction up to twenty pounds. An appeal lay to the Court of Assize, the ultimate court. It was held annually in the city of New York, and was constituted of the Governor and Council, and such justices of the peace as chose to attend. It had original civil jurisdiction above twenty pounds, and criminal jurisdiction. All cases, both original and appellate, were tried by a jury, originally of six, afterward of twelve. The Governor had power to call a special session, and to summon a court of oyer and terminer for the trial of criminal offenses when no Court of Assize was appointed to sit within two months. The latter power seems to have been used but twice. The Court of Assize ultimately grew into a legislature. The court of burgomaster and schepens continued for ten months after the conquest, when Governor Nichols abolished the Dutch government, and substituted for burgomaster, schepens and schout, the mayor, aldermen and sheriff,—a change nominal rather than substantial—and called the court the Mayor's Court. The records were kept in English and Dutch, and civil causes were to be tried by a jury of twelve. Otherwise causes continued to be tried by the summary proceedings of the Dutch, and indeed jury trials did not come much into vogue for many years. There was no distinctive Court of Chancery until 1683. The town court had equitable jurisdiction to five pounds, and in the Court of Sessions this jurisdiction was unlimited. This court granted a divorce for adultery in 1671. The court of burgomaster and schepens had exercised the same power. This power was vested in the Court of Chancery by act of the Legislature in 1787. It seems that no absolute divorces were granted from 1683 until after that act. In 1673 the city was retaken by the Dutch, and remained in their hands a year, when it was again surrendered by treaty. During the interim the old court of burgomaster and schepens was re-established. On the surrender, the English mode of administration was resumed. There were two Courts of Sessions on Long Island, one at Esopus (Kingston) and one at Albany. A Court of Assize was held at New York in 1682, with twenty-nine members. English special pleading was introduced about the latter date, but the English procedure did not supplant the Dutch until between 1704 and 1718. Special pleading seems to have driven out the custom of arbitration, but actions of account continued to be arbitrated or referred until 1772, when the practice was settled by statute. Governor Andros was authorized by the King to erect a court of admiralty, but he simply issued a few special commissions for such trials, and otherwise the Mayor's Court entertained them. In 1683 a General Representative Assembly was convened by Governor Dongan, and constituted four courts:—a petty court for towns; a county court of sessions; a court of oyer and terminer or general jail delivery; and a court of chancery for the whole Province. The Town Court was held monthly, by three commissioners appointed by the Governor, without a jury, and had jurisdiction of debt and trespass not exceeding forty shillings. The Court of Sessions was held by the mayor and four aldermen, quarterly, in the city of New York; and by three justices of the peace, three times a year, in Albany, and semi-weekly in other counties. Its jurisdiction, both civil and criminal, was unlimited; it had no jury; and it had a clerk, a marshal and a crier. The Court of Oyer and Terminer was composed of two judges, appointed by the Governor, each holding a circuit semi-annually in every county, and associating with him four justices of the peace of the county, and in the city of New York the mayor, recorder and four aldermen. This court had general original and appellate jurisdiction, at common law, both civil and criminal. The Court of Chancery was held by the Governor or Council, the Governor having power to depute a chancellor. The Court of Assize was abolished by the General Assembly in 1684. The first judges of the Court of Oyer and Terminer were Matthias Nicholls and Thomas Palmer. The King, displeased with the acts of the General Assembly, vested all legislative power in Governor Dongan and his Council, in 1686, and specially authorized him to erect courts and appoint judges. This new commission also provided an appeal to the Governor and Council in all cases involving more than £100, with a further appeal to the King and Privy Council where the amount at issue exceeded £300. Dongan made no changes in the judicial organization, except to constitute himself and his Council a "court of judicature," sitting monthly, to determine all matters of difference between the King and the inhabitants concerning lands, rents, rights, profits, and revenues. The Governor and Council were thus a court of chancery, a court of exchequer, and a final provincial court of appeal. The first session of the Court of Chancery was on the 16th of February, 1683, and it was to be held six times a year thereafter. In 1686 Dongan granted a charter to the city of New York, empowering the inhabitants to elect mayor, recorder and aldermen, any three of whom,—the mayor or recorder always making one,—were constituted a court of common pleas, to sit weekly, in personal actions, and to hear and determine all complaints of petty criminal offenses. The latter court sat every two or three weeks, and soon practically superseded the Court of Sessions in the trial of such criminal complaints. On the accession of William and Mary, a representative assembly of the Province was authorized, which organized the judicial department anew.[7] This act changed the town courts into courts of justices of the peace ; made a court of common pleas for each county, except New York and Albany, to be held by a judge appointed by the Governor; made courts of general sessions for each county ; and continued the Court of Chancery, as under the act of 1683. The General Sessions had only criminal jurisdiction; the Common Pleas only civil. The former were held twice a year except in Albany and New York, where they were held respectively three and four times a year. The jurisdiction of the Common Pleas was the same as of the former Court of Sessions, and its term began the next day after the close of the Sessions, each being limited to two days — a significant commentary on the amount of litigation and crime, and the preparedness of the lawyers, in those days as compared with these. By this act also was created the Supreme Court in the city of New York, composed of a chief justice and four assistants, to be appointed by the Governor, and having unlimited jurisdiction of all actions, civil and criminal, as fully and amply as the Courts of King's Bench, Common Pleas, and Exchequer in England, with power to make rules and ordinances and regulate its practice. The Court of Oyer and Terminer was abolished, but its name was bestowed on the criminal side of the Supreme Court. Joseph Dudley was the first chief justice, with Thomas Johnson as second judge, and William Smith, Stephen Van Cortland and William Pinthorne as associates. The act was but for two years, but it was continued by successive renewals until 1698. By the renewal of 1692 the court was required to sit twice a year in the city of New York, and one of the justices to go the circuit and hold court once a year if necessary in every other county. Owing to dissensions between the Assembly and Governor Bellamont in 1698, the act was not renewed, and the Province was without courts for a short period; but in the next year the Governor, by virtue of the power to erect courts, specified in his commission, re-established all the courts as they had lately existed, except the Court of Chancery. This was re-established by his successor, Lieutenant-Governor Nanfan, in 1701, by order of the English lords of trade. About this time William Attwood came out, commissioned by the King as chief justice, and authorized to act as judge in admiralty. At this early day the Court of Chancery excited the opposition of the colonists. They complained of its arbitrary decrees and its exorbitant fees. Mr. Butler says, in his Outline of the Constitutional History of New York: "The Court of Chancery, as held by one man, and that man generally a stranger to the country, and always the immediate representative of the Crown, was especially obnoxious to public prejudice." Lord Cornbury, in 1702, suspended the court, and referred the matter of fees to Chief Justice Attwood, and De Puyster, second justice of the Supreme Court, who two years afterward reported a table of fees. Cornbury then re-established the court, ordering it to be conducted according to the practice of the English Chancery. He also ordered four sessions of the Supreme Court, of five days each, to be held in the city of New York, and by virtue of this order that court was held down to the Revolution. The opposition to the Court of Chancery continued, and became more radical. The Assembly, in 1708, resolved that the establishment of that court by the Government, without consent of the Legislature, was illegal, unprecedented, and dangerous to the liberty of the subjects. The court fell somewhat into disuse; but Governor Hunter, in 1710, revived it, assuming the office of chancellor, and appointing two masters, two clerks, an examiner, and a register. The opposition intensified. One source of it grew out of the subject of rents, the feeling of anti-rent being thus early exhibited. On the sale of lands by the Crown, quit-rents were reserved, which had been negligently suffered to accumulate in arrear, and the Court of Chancery was used as an instrument in their collection. Thus the small land-holders were hostile to the court. On the other hand, the great land-holders, who had received inordinate grants from the Governors, and in return had conferred "gratuities" on them, feared that the Crown officers might seek to invalidate these corrupt dealings in that court, and thus they were hostile to it. The court was regularly continued till 1727, when the Assembly having adopted violent resolutions against its corruption and oppression, the Council passed an ordinance correcting many of the abuses, and materially reducing the fees. The consequence of the latter expedient was, as the historian Smith says, that "the wheels of the Chancery have ever since rested upon their axis—the practice being contemned by all gentlemen of eminence in the profession."[8] Up to Hunter's time the court seems to have been composed of the Governor and one or more members of his Council, or when the Governor did not act, of the chief justice and some of his associates, who were generally members of the Council. But Hunter and most of his successors generally sat alone as chancellors down to the Revolution. An early but unsuccessful attempt was made by the justices of the Supreme Court to assume equity jurisprudence on the Exchequer side. The records of the Court of Chancery before the Revolution are few and scanty. The Assembly in 1737, however, declared that "few of the Governors had talents equal to the task of chancellor, and so it was executed accordingly—some of them being willing to hold the court, others not, according as they happened to be influenced by those about them."[9] The hostility to the Court of Chancery extended to the Court of Exchequer, the colonists insisting that the Crown had no right to erect courts to adjudicate their affairs except such courts as the colonists should approve. This theory was just as fatal to the Supreme Court as to the Courts of Chancery and Exchequer, for all alike sprang from the warrant of the Crown. The dispute between the Assembly and the Governor reached its climax in the conflicting claims of Van Damm and Cosby to the Governor's salary in 1733, when a bill having been filed in the Supreme Court on the equity side, that court held that it had no jurisdiction, the chief justice, Morris, dissenting. Out of this grew the famous accusation of libel, against the printer, Zenger, in which Andrew Hamilton, of Philadelphia, urged the doctrine that in such cases the jury were judges of the law as well as of the facts, and procured an acquittal.[10] This dispute became a party question, but at length subsided in the more absorbing interest of the Spanish and French and Indian wars. From 1735 to the Revolution the business of the Chancery was very small and unimportant. The judges of the Supreme Court at first were appointed by the Governor, and held office during his pleasure. The chief justices, however, after Smith, with one exception, were appointed in England by warrant requiring the Governor to issue letters patent. Thus the chief justices held during the pleasure of the Crown, the puisne judges during the pleasure of the Governor. This precarious tenure led to removals for party reasons. The exception in the appointment of chief justices above alluded to was the case of De Lancey, to whom Governor Clinton, in 1746, without warrant from the Crown, issued a commission to hold during good behavior. On his death, in 1760, the other judges demanded new commissions upon the like tenure, but this being refused by the Crown, they resigned. The demand never was acceded to. After 1758 the number of judges was reduced to four. The colonial chief justices were Joseph Dudley, William Smith, Abraham De Puyster, William Atwood, John Brydges, Roger Mompesson, Lewis Morris, James De Lancey, Benjamin Pratt, and Daniel Horsmanden. They were nearly all men of ability. Smith, however, was not bred to the law, and Atwood was removed within a year by Lord Cornbury for corruption. The judges salaries were meagre, varying at different periods from £100 to £500. Neither judges nor lawyers wore any official costume. The puisne judges were generally selected from the great landowners, and generally knew but little law and were men of small capacity. In 1753 the appeal to the Governor and Council was limited to cases involving over £300, and the further appeal to the King and Privy Council to cases involving over £500. In 1730, by Governor Montgomery's charter, the Court of Sessions in the city of New York was ordered to sit quarterly, and the Mayor's Court every Tuesday. The mayor, recorder and aldermen, or any one of them, might hear cases up to forty shillings, with or without a jury. Eight specified attorneys were appointed to practice in the Mayor's Court, and their successors were nominated by the court and approved by the Governor. These courts continued thus until the Revolution. Probate jurisdiction, originally vested by the Duke's laws in the Court of Sessions, gradually fell exclusively into the hands of the Governor. In counties distant from New York, however, the proofs were taken in the Common Pleas and transmitted to the secretary's office at New York. The Governor appointed a delegate at that place for this business, and this court was called the Prerogative Court.[11] Subordinate delegates were appointed by the Governor for other parts of the Colony, who were called surrogates. In 1754 a judge of probate for the Province with general powers was appointed, with the title of the Court of Probate. Thereafter the Prerogative Court seems to have been directed by the Governor's secretary, and continued until the Revolution. The lawyers of the early English period do not appear to have been a very admirable body. The first on record was John Tudor, who was recorder from 1704 to 1710, and died in 1715. Lord Bellamont, in 1698, said, as Judge Daly informs us, that "nearly all who then called themselves lawyers, and practiced in the colony, were men of scandalous characters; that none of them had ever been barristers, or aimed at any thing higher in England than the duties of an attorney; that one had been a dancing master, another was by trade a glover, and that a third, one Jamison, had been condemned to be hanged in Scotland for burning a Bible and blasphemy; that it was grievous to see the miserable way in which they mangled and profaned 'the noble English law, and that in addition to their ignorance they were all, with one or two exceptions, violent enemies of the government, and were doing a world of mischief by infecting the people with an ill disposition toward it." The bar at a later period improved in tone. In the time of Chief Justice De Lancey, "as a body they could have done no discredit to Westminster Hall." Distinguished among them were William Smith, father of the historian; William Murray, and James Alexander; and just before the Revolution, flourished William Smith, the historian; Samuel Jones, father of the chief justice; John Morin Scott, Richard Morris, William Livingston, Benjamin Kissam, John Jay, James Duane, Gouverneur Morris, Peter R. Livingston, Jr., Egbert Benson, and Peter Van Schaick. Mr. Robert Ludlow Fowler says (Observations on the Particular Jurisprudence of New York, 20 Albany Law Journal, 330): "The dexterity of the pre-revolutionary lawyers, both in the court and in the Legislature, the studied decisions of the colonial courts, the splendid opinions of the colonial jurists and publicists, collected by the tory, Chalmers, all demonstrate the attainment of the colonial bar, and convince one that the law of English original came in systematically and accurately. This conviction is supported by the respectful way in which Sir Henry Maine lately spoke of the education of the bar of America anterior to the Revolution of 1775. * * * * The chief reason we know so little of the colonial bar and its professional work is the utter absence of colonial reports; but he who reads the elaborate briefs of the colonial lawyers will have no cause to regret his study. In many respects, the industry, the intelligence, and the vigor of thought of many a colonial lawyer now stamps the character of American legislation, and in many respects does their work survive." |
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 The Historical Society of the Courts of the State of New York | |