I. Introduction
An independent judiciary is an essential component of the American conception of separation of powers.Footnote 1 Not surprisingly, the framers who drafted the judicial article of the U.S. Constitution during the summer of 1787 were influenced, both positively and negatively, by the state practices of the day: they embraced some practices and rejected others. The result was a federal judiciary that forms a separate branch of the national government, judges who enjoy tenure during good behavior, and salaries that cannot be diminished while in office.Footnote 2 New York, among the most significant of the original thirteen states,Footnote 3 was prominent on the question of judicial independence. This essay explores the constitutional development of the judicial branch in New York and assesses the influence of New York's judiciary on the federal constitution that followed.Footnote 4 As will be seen, New York provides a vivid case study of a state “groping” toward a new ideal that became a reality a decade after its own constitution was enacted in 1777 and at a different level of government.Footnote 5
II. The Dutch Period, 1621–1664
A. Charter of the Dutch West India Company of 1621
In 1609, Henry Hudson, an Englishman sailing under Dutch colors, was searching for the Northwest Passage to the Orient (now Asia). Instead, he found the river that bears his name. His discovery provided the Netherlands with a claim to territory—also claimed by England—that includes present-day New York, New Jersey, Delaware, and part of Connecticut. On June 3, 1621, the Dutch government—their “High Mightinesses the States-General of the Netherlands”—granted a charter to a group of Dutch merchants operating as the Dutch West India Company that conferred upon the company for twenty-four years exclusive rights to trade in what was called “New Netherland.”Footnote 6
Although the Dutch West India Company was inspired by the previous successes of several trading posts along the Hudson River Valley and motivated by commercial concerns,Footnote 7 the charter conferred by the Dutch government was as much an organic law—a constitution—as a trade agreement.Footnote 8 It authorized the company to maintain naval and military forces, to exercise judicial and administrative powers, and to make war and peace with indigenous peoples.
The powers conferred upon the company were divided among five “chambers” representing the different cities of the Netherlands. These powers were then delegated to an “assembly of XIX” comprised of representatives from the constituent cities.Footnote 9 The charter authorized the company “to appoint and remove governors, officers of justice, and other public officers,” and the powers delegated to the assembly of XIX were themselves delegated to a governor—known as the “director-general”—and a council residing in New Netherland.Footnote 10 All officers were required by the charter to swear an oath of allegiance to both the company and the Dutch government. The “will” of the company, expressed in its instructions to the director-general and his council, “was to be the law of New Netherland.” There was no separation of powers: the director-general and council were to exercise all executive, legislative, and judicial authority.Footnote 11 The Amsterdam chamber, charged with the administration of the company's affairs in New Netherland, maintained supervisory control over the governmental decisions made in the province—a power delegated to it by the assembly of XIX.Footnote 12
Attorney Charles Z. Lincoln concluded in his landmark treatise The Constitutional History of New York that because of the small number of settlers and the need to concentrate on sheer survival, there was likely “little, if any, occasion for organizing courts” during the first decade or so of New Netherland's existence.Footnote 13 The director-general and his council were the court, with a “schout-fiscal” (a sort of attorney general) added to the mix in or about 1626. Commencing in 1638 and continuing for the next nine years, the province was ruled by an autocratic director-general, William Kieft, who retained “in his own hands the sole administration of justice.”Footnote 14 The people eventually demanded change, and, in 1647, Peter Stuyvesant, the most significant of New Netherland's directors-general,Footnote 15 established a court of justice—called the tribunal of the “Nine Men”—with plenary jurisdiction, subject, not surprisingly, to appeal to the director-general himself in certain situations.Footnote 16 This arrangement also proved unsatisfactory to the people. After years of requests by the settlers, the governing officials of the Dutch West India Company agreed to establish a court composed of one “schout” (a combination district attorney and sheriff), two “burgomasters” (a kind of mayor), and five “schepen” (a sort of alderman) for each part of the province.Footnote 17 Director-General Stuyvesant did not like these courts, but was forced to tolerate them.Footnote 18 He retained appellate jurisdiction for himself and his council, with arbitration being the preferred method of dispute resolution.
B. Charter of Freedoms and Exemptions of 1629
The assembly of XIX issued a Charter of Freedoms and Exemptions on June 7, 1629, to speed the settlement of New Netherland. This charter awarded special privileges and powers to “patroons” (rough translation: patrons or participants) willing to relocate there. (The plan resembled that of the English commercial colonizers.)Footnote 19 Any patroon who brought to New Netherland during a four-year period fifty or more adults was given a twenty-five kilometer riverfront plot, exclusive hunting and fishing privileges within his estate, and judicial and administrative authority over it (subject, of course, to review by the Dutch government and the company).Footnote 20
The charter mentioned “Courts of the patroons,” but historians have concluded that it is doubtful they took the form of feudal courts baron and leet (manorial courts that date from the early Middle Ages). Instead, disputes between a patroon and persons living on his estate were likely resolved by the previously described courts.Footnote 21 Moreover, only one of the patroonships, that of the Van Rensselaers, was successful.Footnote 22
In summary, what the framers of the U.S. Constitution would come to regard as constitutional government was subordinated throughout the administration of New Netherland to the commercial interests of the Dutch West India Company. Nonetheless, modest gestures were made in the direction of constitutionalism. Two of these merit brief mention. One occurred in 1657 when the burgomasters of New Amsterdam (today, New York City) established separate meeting days for their judicial and legislative responsibilities and also requested permission from Director-General Stuyvesant that these two powers of government be exercised by two separate sets of men. Although Stuyvesant denied the request and the court of schout, burgomasters, and schepens continued as a mixed tribunal until the end of Dutch control of New Netherland, the request itself represented an important step in the constitutional development of New York's judiciary.Footnote 23
The second gesture in the direction of constitutionalism arose from the contentious relationship between Adriaen Cornelissen van der Donck of the tribunal of Nine Men and Director-General Stuyvesant. Van der Donck was the author of two remonstrances condemning Stuyvesant's autocratic ways presented to the states-general in Holland. (Stuyvesant was accused of, among other abuses, governing as if his will was “law absolute.”) In fact, Van der Donck was largely responsible for forcing Stuyvesant to institute burgher government in the province. Had war not broken out between England and Holland, and Stuyvesant's expertise as a military commander not been potentially necessary, Van der Donck almost certainly would have been successful in getting Stuyvesant dismissed from his director-generalship.Footnote 24
III. The Ducal Proprietary Period, 1664–1685
A. Grant of the Province of Maine of 1663/64Footnote 25
Two nations with competing claims to the same territory constitute a war waiting to happen. For England and the Netherlands, the war over New Netherland ended without a fight. On August 27, 1664, Director-General Stuyvesant acquiesced to Articles of Capitulation with the English, whose much stronger forces were anchored off the coast.Footnote 26 The articles did more than simply transfer control of the territory from the Dutch to the English: they “also suggested how deeply entrenched charters of governance and the protection of personal rights were.”Footnote 27 The articles permitted all settlers—including those from the Netherlands—to continue to inhabit the province and to dispose of their property as they pleased. The articles also guaranteed liberty of conscience to the Dutch settlers.Footnote 28
Several months earlier, on March 12, 1663/64, “Charles II gave to his brother, James Duke of York, quite a gift”:Footnote 29 a grant of land that included, among other territory, “Hudsons River and all the land from the west side of Conecticutte River to ye east side of Delaware Bay.”Footnote 30 New Netherland thus became “New York” (named for the duke). The charter was the “briefest and most hastily executed of all the seventeenth-century colonial charters, as well as the only one ever issued in behalf of a member of the royal family and to one who was also heir to the throne.”Footnote 31
The nature of the grant was “in ffree and common soccage and not in capite nor by Knight service,” which meant it was unencumbered by the tenurial rights of a feudal overlord and awarded for honorable service. The duke and his heirs and assigns were to enjoy “full and absolute power and authority” over the province. This power specifically included—as if any specification were necessary following so comprehensive a grant—command of trade, land grants, and military matters. It also included, again by specification, the executive power (e.g., to “pardon governe”), the legislative power (to make “lawes orders ordinances direccons and instruments”), and the judicial power (over “all causes and matters capitall and criminall as civill both marine and others”). The duke and his heirs and assigns were empowered to appoint government officers, including judges, to help effectuate these powers. In fact, the only limitations on the duke's power over the proprietary were that (1) he was to deliver yearly forty beaver skins to the king upon the king's request (the king apparently never requested them),Footnote 32 (2) the laws he enacted were to be “as neare as conveniently may be agreeable to the lawes and statutes and government” of England, (3) the king retained appellate jurisdiction over judicial matters, (4) the colonists were to declare their allegiance directly to the king, and (5) all writs were to issue in the name of the king.
The Duke of York commissioned Colonel Richard Nicolls as his deputy governor, and vested in Nicolls the authority “to perform and exact all and every” of the powers granted to the duke by the king's patent.Footnote 33 These powers were codified in the famous Duke's Laws of March 1, 1664/65, an amalgam of the codes of Connecticut and Massachusetts and of English and Dutch law.Footnote 34 The Duke's Laws, which continued in force until 1683, represented both a digest of ordinances and a frame of government. With respect to governmental structure, no provision was made for a provincial assembly. However, a judicial system was put in place. A court of assizes was to sit once a year as the supreme judicial tribunal of the province, and it was to consist of the governor, the governor's council, and two justices of each of the judicial districts (called “ridings”). The court of assizes heard appeals from lower courts. Acting with a jury, it also had original jurisdiction over criminal cases and, in both law and equity, over civil disputes in which more than twenty pounds was in controversy. Appeal could be made to the crown in council from the judgments of the court of assizes, and special courts of oyer and terminer (from the Law French, “to hear and determine”) could be called by the governor and council to expedite the adjudication of criminal matters.
The court of sessions was next in rank, and it was divided into three districts, with each district manned by justices of the peace appointed by the governor and his council. The justices served at the governor's pleasure. The courts of sessions, sitting with a jury, were to meet three times (later twice) per year. They possessed civil jurisdiction over disputes involving five or more pounds and criminal jurisdiction over noncapital cases. They also sat as an orphans' court and performed many executive tasks for their particular districts. Appeals to the court of assizes were available in civil disputes in which twenty pounds or more was at issue and in criminal matters.
Town courts were also established. Each town had a board of eight (later four) overseers elected by the freemen, who governed the town, including as magistrates. One of the overseers was selected to serve as constable. The town courts had jurisdiction over civil matters in which less than five pounds was in dispute. In order to ease the transition to English control, Nicolls initially left the burgher government in place in distinctly Dutch towns such as Fort Orange (renamed Albany). By about 1674, these towns, with the notable exception of New York City, were integrated into the town court system. New York City retained the court of schout, burgomasters, and schepens, albeit operating under the appellation “mayor's court.”Footnote 35
B. Grant of the Province of Maine of 1674
New York changed dramatically in the decade following the 1663/64 grant. In 1665, the Duke of York awarded his friends Lord John Berkeley and Sir George Carteret the portion of his territory that is New Jersey today. In 1667, the western half of Connecticut was ceded to that colony.Footnote 36 And in 1673, the Dutch briefly recaptured New York. On June 24, 1674, following a second ouster by the English of Dutch control, King Charles issued to his brother James a second grant of the province of Maine. The 1674 charter was “new only in time not in content.”Footnote 37 The duke and his heirs and assigns were to enjoy the same “full and absolute power and authority” over the province that they had enjoyed under the 1663/64 grant. Neither grant contained a provision for a legislative assembly, and this omission, more than any other, became a source of great stress for the province.Footnote 38 As political scientist Peter J. Galie observes in his history of constitutionalism in New York, “James had created an absolutist state—government by a fixed code without an assembly.”Footnote 39 Indeed, Edmund Andros, the experienced colonial administrator the duke had made his first governor under the 1674 grant, advised the duke to authorize an assembly. The duke refused, at least initially, apparently believing that the court of assizes was the assembly.Footnote 40 However, in January 1675/76, he wrote to Andros, “if you continue of [the] same opinion, I shall be ready to consider any proposalls you shall send to [that] purpose.”Footnote 41
On January 23, 1682/83, the duke finally relented to the people's continuing clamor for a legislative assembly. (All the other American colonies already had assemblies.) He instructed his new governor, Thomas Dongan, to summon one. Both the duke and the governor were to possess veto power over laws written by the assembly, but the duke promised that “if such laws shall be propounded as shall appear to me to be for the manifest good of the country in general, and not [prejudicial] to me, I will assent unto and confirm them.”Footnote 42 Charles Lincoln concludes that these instructions marked “the dawn of a new era in the colony.”Footnote 43 They said nothing about the judiciary, although they did commit the duke to abide by the terms of the Magna Carta, the so-called Great Charter of 1215 that required the English monarch to declare certain rights, respect certain procedures, and accept that his will could be bound by law.
C. Charter of Liberties and Privileges of 1683
On October 17, 1683, New York's first legislative assembly convened. The assembly enacted as its first order of business “The Charter of Libertyes and privileges granted by his Royall Highnesse to the Inhabitants of New Yorke and its dependencyes.”Footnote 44 Its nearly thirty paragraphs contained a bill of rights and a frame of government for the colony. The bill of rights was clearly modeled on the Magna Carta. For example, one provision of the Charter of Liberties and Privileges provided:
THAT Noe freeman shall be taken and imprisoned or be disseized of his ffreehold or Libertye or ffree Customes or be outlawed or Exiled or any other wayes destroyed nor shall be passed upon adjudged or condemned But by the Law-full Judgment of his peers and by the Law of this province. Justice nor Right shall be neither sold, denyed or deferred to any man within this province.
The frame of government detailed both the legislative and executive powers. With respect to the legislative power, the charter specified “THAT The Supreme Legislative Authority under his Majesty and Royall Highnesse James Duke of Yorke Albany &c Lord proprietor of the said province shall forever be and reside in a Governour, Councell, and the people mett in Generall Assembly.” The charter addressed the executive power as follows: “THAT The Exercise of the Cheife Magistracy and Administracon of the Government over the said province shall bee in the said Governour assisted by a Councell with whose advice and Consent or with at least four of them he is to rule and Governe the same according to the Lawes thereof.” There was no separation of powers: notwithstanding the duke's capitulation to the creation of a legislative assembly, the Charter of Liberties and Privileges specified that the governor and his council were to possess legislative power (along with the representatives of every “ffreeholder within this province and ffreeman in any Corporacon”), in addition to executive power. Nothing was provided in the charter about the judicial power. However, near the end of the ducal proprietary period, the provincial assembly modified the court system articulated in the Duke's Laws: the court of assizes was replaced by a court of chancery consisting of the governor and council; a permanent court of oyer and terminer was established; the jurisdictional amounts of the town courts were reduced; and the jurisdictional limits on the courts of sessions were eliminated altogether—all in an effort to improve the administration of justice.Footnote 45
IV. The Royal Period, 1685–1776
The Duke of York signed the Charter of Liberties and Privileges on October 4, 1684. He never returned it to New York. On February 6, 1684/85, King Charles II died, and the duke became King James II. As king, James re-embraced his earlier view that parliamentary bodies were an “inconvenient adjunct of government” that interfered with the exercise of the royal prerogative. He therefore vetoed the charter on March 3, 1685/86.Footnote 46 New York was now a royal colony, rather than a proprietary one, and the government soon “reverted to a hierarchical pattern” of the governor and his council administering the executive, legislative, and judicial affairs of the colony, subject to the king's approval.Footnote 47 On April 7, 1688, New York, along with New Jersey, was annexed by royal decree to the Dominion of New England, a “megacolony” created by James II two years before. Edmund Andros served as governor of the megacolony.Footnote 48
A. Charter of Liberties and Privileges of 1691
King James II's reign was to be short-lived. On December 11, 1688, he abdicated the throne under pressure that had arisen in Parliament from his commitment to both absolute monarchy and the Catholic faith. On February 13, 1688/89, William and Mary became king and queen of England. The tumult in England had profound effects in New York and throughout colonial America. The Dominion of New England collapsed, and each of the constituent parts returned to its prior form of government.Footnote 49 In New York, Jacob Leisler, a wealthy local merchant, led a rebellion. Henry Sloughter, appointed governor by the new monarchs, managed to quell it. He also called a general assembly—in effect reviving the policy initiated by James Duke of York and later vetoed by James as king. The new assembly met on April 9, 1691, and quickly enacted “An Act Declaring What are the Rights and Privileges of Their Majestyes Subjects Inhabiting within Their Province of New York.” The 1691 Charter of Liberties and Privileges was virtually identical to the 1683 charter: legislative power was vested in the governor, the council, and the people's assembly; executive power resided with the governor and his council; and not a word was provided about the judiciary as a separate institution of government. The 1691 charter shared another trait with the 1683 charter: it, too, was rejected by the crown because it was perceived as a threat to the royal prerogative.Footnote 50
The judiciary act of 1691 did not suffer a similar fate. In fact, the act remained in effect without major change until the American Revolution.Footnote 51 Governor Sloughter's decision to permit the legislature to draft the judiciary bill “constituted a striking departure from the historic English pattern of courts arising under the authority of the executive.”Footnote 52 The governor's decision likely explains why the act endured: the legislative committee charged with writing the bill was more familiar with local needs than he was.Footnote 53 However, the governor's decision was inconsistent with the standard instructions he had received pertaining to the administration of justice. (I will discuss those instructions below after giving due consideration to the 1691 statute.)
New York embraced the prevailing practice in colonial British America of making justices of the peace the centerpiece of its judicial system, just as it had done since the time of the Duke's Laws. Justices of the peace were to be appointed by the governor. Individual justices were authorized to decide civil disputes involving forty shillings or less. All the justices of a particular county were required to meet at specified times as criminal courts of sessions to adjudicate minor infractions. Trial by jury could be requested, but rarely was. The justices performed a variety of nonjudicial functions, such as supervising road construction and issuing liquor licenses, as they did in other colonies and in England itself.
County courts of common pleas were established, and were to consist of one judge appointed by the governor sitting with three justices of the peace. The common pleas courts possessed jurisdiction, concurrent with the supreme court, over civil disputes involving more than five pounds. Both New York City and Albany had mayor's courts. These courts enjoyed jurisdiction similar to that of the county courts. The mayor's court of New York City, however, heard considerably more commercial cases than any other court in the province.Footnote 54
The 1691 judiciary act established a supreme court with jurisdiction “of all pleas, Civill Criminall and Mixt, … as the Courts of Kings Bench, Comon Pleas, & Exchequer within their Majestyes Kingdome of England.” As such, the supreme court possessed original jurisdiction over civil actions in which more than twenty pounds was in dispute, real property claims, and felonies. The supreme court was given appellate jurisdiction over the inferior courts. The court consisted of a chief justice and two (later three) associate justices appointed by the governor. The justices served during the governor's pleasure. A 1692 amendment required the justices to ride circuit once per year.
The governor and council were to serve as a court of errors for civil disputes involving at least one hundred pounds. They also were authorized to sit as a court of chancery to ensure that decisions based in law were not fundamentally unfair. The chancery court, which Governor Richard Coote, the first earl of Bellomont, eliminated in a 1699 ordinance because no one in New York knew how to conduct it, would later prove controversial—an issue that merits additional discussion in the next section.Footnote 55 Civil matters in which more than three hundred pounds was in controversy, and criminal matters in which at least two hundred pounds in fines were imposed, could be appealed to the crown in council.
Several special courts also were constituted, the most important of which were the periodic courts of oyer and terminer for the trial of felonies. Established separately from the 1691 judiciary act were a court of vice-admiralty, with a judge appointed by the governor, and a prerogative court for the probate of wills and the administration of estates, supervised by the governor.
The royal governors of New York received commissions and instructions from the crown similar to those issued to the other royal governors of British America. Their commissions authorized them to erect and constitute courts for the adjudication of matters in law and equity, while more than two dozen instructions related to the administration of justice.Footnote 56 Royal governors received an instruction to report on a regular basis to the crown on the judicial organization of the colony, an instruction to ensure regularity in court procedures, an instruction concerning the speedy and impartial administration of justice, an instruction not to erect or dissolve courts without special order from the crown, an instruction mandating the establishment of a small claims court, an instruction requiring the erection of a court of exchequer, an instruction about the appointment of special courts of oyer and terminer, and an instruction requiring appeals to the governor and council. They also received several instructions regulating appeals to the crown in council, an instruction specifying that judicial commissions issued by the governor were to be without limitations of time, an instruction that judicial appointments were to be at the crown's consent and pleasure (and a strongly worded circular letter reaffirming the instruction), an instruction that judges and justices of the peace were not to be displaced by the governor without good cause, an instruction about the legal security of life and property, and an instruction to prevent exorbitant salaries and fees (and a related circular letter regarding fees).
The only significant instructions relating to the administration of justice that were issued to some British American royal governors but not to the royal governors of New York were those about the regularity of court procedures and the appointment of special courts of oyer and terminer. New York nonetheless erected special courts of oyer and terminer. However, as mentioned above, Governor Sloughter violated the instruction not to erect other courts without “especial order” from the crown when he permitted the general assembly to construct the colony's judicial system in the 1691 judiciary act, although he likely did so with the tacit assent of the crown.Footnote 57
B. Persistent threats to judicial independence
Charles Lincoln declared in The Constitutional History of New York that the “departments into which a free government is deemed most wisely divided—namely, the executive, the legislature with two branches, and an independent judiciary—had already existed eighty-six years when the people of New York determined to transform the colony into a state.”Footnote 58 Surely, this is incorrect. The “eighty-six years” to which Lincoln referred were those between the 1691 Charter of Liberties and Privileges and the first New York state constitution in 1777. The 1691 charter said nothing about the judicial power, and it also failed to “divide” the legislative power from the executive power. In fact, New York, like other British American colonies during the years building up to the American Revolution, was beset by fights about the separation of powers in general and the independence of the judiciary in particular. Three famous incidents illustrate the point: (1) Governor William Cosby's dismissal of Chief Justice Lewis Morris, Jr., in the 1730s; (2) Acting Governor Cadwallader Colden's refusal to commission judges during good behavior in the 1760s; and (3) Colden's contemporaneous attempt to interfere with the appellate process in the colony.Footnote 59
The 1732/33 case of King v. Van Dam marked the climax of the first incident. Legalistically, the case involved a salary dispute between a governor, Cosby, and a former acting governor, Rip Van Dam: Cosby insisted that Van Dam pay him one-half of the salary, perquisites, and emoluments Van Dam had received as acting governor after the death of Cosby's predecessor, John Montgomerie, but Van Dam refused. Cosby's claim was buttressed by an instruction that Governor Montgomerie had received that an acting governor was entitled to one-half of the governor's compensation during the governor's absence from the colony, whereas Van Dam's position was bolstered by the instruction's failure to specifically address the contingency of the governor's death. To Van Dam, the instruction's silence on the matter meant that he was entitled to the entirety of the compensation, not simply half of it.
The attorney general filed an information in the king's name in the New York supreme court against Van Dam for the monies allegedly due Cosby. The equitable nature of this type of action raised a constitutional question, given the uncertain status of equity jurisdiction at this point in New York's history. More specifically, the question the supreme court was forced to confront after Van Dam filed a plea and demurrer to the attorney general's suit (what today would be characterized as a motion to dismiss for lack of jurisdiction) was whether the governor, acting pursuant to royal instruction, could establish a court—in this instance, a court of equity—or extend an existing court's jurisdiction, without an act of the general assembly. The assembly insisted that for the governor to do so would be an exercise of arbitrary power. The governor, in contrast, maintained that the executive enjoyed this power as a matter of prerogative. The supreme court split two-to-one on the question, and the governor removed the judge who disagreed with him (Chief Justice Morris) from office—an assault on the independence of the judiciary if there ever was one.Footnote 60 When this and related controversies concerning Cosby's governorship were reported in the New York press, the celebrated trial of John Peter Zenger for seditious libel was the result. Among the major grievances printed by Zenger about the Cosby administration were that “judges [were] arbitrarily displaced, [and] new courts erected without consent of the legislature.”Footnote 61 Although the Zenger case is rightly proclaimed as a pivotal moment for the freedom of the press—Zenger was acquitted by the jury that decided his case—the jury's decision also “brought an end to the Governor's dangerous experiment with political control of the legal system.”Footnote 62
The issue of judicial tenure obviously underlay the Cosby–Van Dam dispute. However, as mentioned above, that controversy was primarily about whether the governor could erect courts without the assent of the legislature. The question of judicial tenure took center stage during the administration of Acting Governor Colden in the 1760s. In fact, although the status of judicial tenure was being debated throughout British America at the time, nowhere was the debate more bitter than in New York.Footnote 63 The issue arose following the death of New York's longtime chief justice, James DeLancey. Colden had become convinced that DeLancey's extended tenure as chief justice from 1733 (following the removal of Morris) until DeLancey's death in 1760, had made the chief justice more powerful than the governor.Footnote 64 Colden therefore insisted on appointing the next chief justice at the crown's pleasure. The assembly protested loudly and frequently, and the province quickly reverted to the chaos that had marked the Cosby administration. A series of bills were enacted by the assembly on the matter, but Colden resisted every one.Footnote 65 Finally, the crown in council issued its famous circular letter in 1761 to the governors of all the British American colonies forbidding any governor from commissioning judges other than at the crown's pleasure “upon pain of being removed from Your Government.”Footnote 66 While Colden, like Cosby before him, may appear to have won the battle, what he actually achieved was an armistice. The American Revolution would settle the rest.Footnote 67
The final incident concerning the independence of the judiciary to be discussed in this section on New York as a royal colony culminated in Forsey v. Cunningham (1764). The case should have been an uneventful one: a straightforward instance of Waddel Cunningham battering Thomas Forsey, for which Cunningham paid a criminal fine and civil damages. However, Cunningham considered the jury's 1,500 pound civil award excessive—the criminal fine was thirty pounds—and he petitioned the supreme court to allow an appeal of both the law and the facts to the governor and council. The court refused, invoking the well-settled practice of permitting appeals from common-law courts to the governor and council by writ of error only (that is, for review for errors of law, not of fact)—a practice that respected the right to trial by jury.Footnote 68
The attorney general and the council agreed with the court. Acting Governor Colden did not, and he requested and received backing for his position from the crown in council. The court still refused to capitulate; the assembly passed a series of resolutions denouncing the overreaching by the executive; threats were made on Colden's life; and eventually he was forced to back down by his superiors in England. Although the matter was eventually dropped, one of the resolutions adopted by the assembly demonstrated how seriously that body took the acting governor's threat to the independence of the judiciary. The assembly declared that Colden's action was “illegal, an attack upon the right of the subject, and a most dangerous innovation, tending to encourage litigiousness and delay, promote perjury, prevent justice, subject the people to arbitrary power, and ruin the colony.”Footnote 69 In short, New York's history as a royal colony was dominated by a familiar question: Who possessed sovereignty—the governor, the legislature, or both?Footnote 70 The answer was provided by the New York Constitution of 1777.
V. New York Constitution of 1777
New York's first state constitution opened by transcribing verbatim the nation's July 4, 1776, Declaration of Independence from Great Britain.Footnote 71 Article I then answered the question posed above: the people of New York were sovereign in New York. With respect to the institutions of government, John Adams's Thoughts on Government—his 1776 paean to separation of powers—was “the starting point in drafting the constitution.”Footnote 72 Three alternative constitutional structures were considered by the committee charged with drafting a frame of government for the state, but unlike in a number of other new states such as Pennsylvania, there was unanimity in the committee for a balanced, or mixed, constitution. Peter Galie captures the situation well: “[T]he real debate involved the nature of this mix; that is, arguments took place not between the followers of [the simple, unicameral legislative government proposed by Thomas Paine in Common Sense (1776)] and the followers of Adams, but between those who would follow Adams closely and those who would modify the Adams model in the direction of majoritarianism.”Footnote 73
Article II provided that the “supreme legislative power” was to be vested in an assembly and a senate that met “once at least in every year.” The assembly was to consist of between seventy and three hundred members elected annually by voters in the respective counties of the state (Articles IV and XVI). The size of each county's delegation was based on population, and the assembly was to be reapportioned every seven years (Article V). Voters for assembly candidates were required to be residents of the county in which they voted, possess a freehold of at least twenty pounds free of debt, rent land whose annual value was at least forty shillings, or be a freeman in Albany or have obtained freemanship in New York City prior to October 14, 1775 (Article VII).
The senate was to consist of between twenty-four and one hundred senators elected to four-year terms (Articles X, XI, and XVI). Senators were required to own freeholds of at least one hundred pounds free of debt and were to be elected by voters who possessed the same degree of wealth (Article X). Senate seats were to be apportioned, and reapportioned, by population among the four “great districts” of the state (Articles XII and XVI).
Article XVII specified that the “supreme executive authority and power” was to be vested in a governor elected to a three-year term. There was no provision against reelection. The governor was required to be a freeholder of the state and was to be elected by the same class of voters who chose senators. He could summon the legislature into special session and prorogue it for up to sixty days. He was head of the state's militia and navy, could grant pardons and reprieves, and was to “take care that the laws are faithfully executed” (Articles XVIII and XIX). Article XX provided for a lieutenant governor, elected in the same manner as the governor, who also was to serve as president of the senate and cast tie-breaking votes. For all of these reasons, plus the governor's participation on the council of revision (discussed below), most scholars conclude that the New York Constitution of 1777 created the strongest state executive of the day.Footnote 74
The chancellor, judges of the supreme court, and the “first judge” of every county court were to hold their offices “during good behavior or until they shall have respectively attained the age of sixty years” (Article XXIV). A proposal to permit the legislature to remove judges for “incapacity” was rejected.Footnote 75 Justices of the peace and other local judicial officials were to serve at the “pleasure” of the appointing officers, so long as they were recommissioned at least once every three years (Article XXVIII). Nothing was said about judicial compensation.
Judges and other nonelected government officials were to be selected by a council of appointment (Article XXIII), a compromise between those who favored vesting the appointment power in the executive and those who preferred legislative selection of nonelected officials. The compromise was suggested by John Jay, one of the influential drafters of the New York Constitution of 1777 and later the first chief justice of the United States.Footnote 76 The council of appointment was to consist of the governor and one senator selected annually by the assembly from each of the four “great districts” of the state. The governor was authorized to nominate candidates,Footnote 77 but he could only vote on their confirmation to break a tie. Senators could not serve on the council for two consecutive years.
New York's first state constitution also created another commingled institution of government: the council of revision. Article III is worth quoting at length:
And whereas laws inconsistent with the spirit of this constitution, or with the public good, may be hastily and unadvisedly passed: Be it ordained, that the governor for the time being, the chancellor, and the judges of the supreme court, or any two of them, together with the governor, shall be, and hereby are, constituted a council to revise all bills about to be passed into laws by the legislature; and for that purpose shall assemble themselves from time to time, when the legislature shall be convened; for which, nevertheless, they shall not receive any salary or consideration, under any pretence whatever. And that all bills which have passed the senate and assembly shall, before they become laws, be presented to the said council for their revisal and consideration; and if, upon such revision and consideration, it should appear improper to the said council, or a majority of them, that the said bill should become a law of this State, that they return the same, together with their objections thereto in writing, to the senate or house of assembly (in whichsoever the same shall have originated) who shall enter the objections sent down by the council at large in their minutes, and proceed to reconsider the said bill. But if, after such reconsideration, two-thirds of the said senate or house of assembly shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and, if approved by two-thirds of the members present, shall be law.
The council of revision was unquestionably a substitute for providing the governor with the power to veto legislation. Not only does Article III read like a veto provision, but it was proposed during consideration of a draft section that would have empowered the governor with the veto.Footnote 78 The council of revision also was likely a compromise over the power of judicial review. Although many casual observers of American constitutional history credit the 1803 U.S. Supreme Court case of Marbury v. Madison with “inventing” judicial review, precedents for the practice existed at the time New York's first state constitution was written.Footnote 79 Article XXXIII, which created a “court” of errors and impeachments, likewise reflected an unwillingness on the part of the New York convention to confer upon the judiciary the degree of independence later afforded by the federal convention of 1787. This particular court was to consist of the president of the senate (i.e., the lieutenant governor), the senators, the chancellor, and the judges of the supreme court (“or the major part of them”). The court was to serve as the trial court for impeachmentsFootnote 80 and as a final appeals court on questions of law.Footnote 81 Clearly, such a court was inconsistent with the notion of an independent judiciary, joining as it did executive, legislative, and judicial officers of the state and empowering them to “correct” judicial rulings about the meaning of law. However, in an effort to limit the influence of the governor and legislators, court clerks, marshals, and registers were to be appointed by the judges of the apposite court (Article XXVII).Footnote 82 Another nod to judicial independence was found in Article XXV, which forbade the chancellor and the judges of the supreme court from holding any other office, except that of delegate to the continental congress “upon special occasions.” The “first judges” of the county courts were permitted to serve in the state senate. Proposals to permit the chancellor and the supreme court judges to sit as advisory members to the senate were replaced by the previously described council of revision.Footnote 83
VI. Conclusion
New York's first state constitution was not adopted until April 20, 1777.Footnote 84 The delay occurred because New York was the scene of many major military battles during the American Revolution and also because of the profound disagreements between the competing forces at the convention.Footnote 85 (Leading conservative members of the drafting committee, such as John Jay and Robert R. Livingston, were determined that New York should not adopt an organic law in the radically democratic vein of Pennsylvania.)Footnote 86 Certainly, New York had come a long way from its days as a Dutch commercial settlement and as an English proprietary and royal province in recognizing that the principal purpose of government was—as the Third Provincial Congress phrased it on May 31, 1776, when calling for a new congress to create a form of government for the soon-to-be-independent state—“to secure the rights, liberties, and happiness of the good people of the colony.”Footnote 87 Intriguingly, those who wrote the 1777 constitution anticipated by a decade the Madisonian theory of separation of powers by adding checks and balances to the mix: each department of government was vested with some authority over the others.Footnote 88 For example, the legislature was vested with executive power through the council of appointment, and the executive was vested with legislative power through the lieutenant governor's status as president of the senate. However, the New York Constitution of 1777 fell woefully short of the U.S. Constitution of 1787 in terms of creating an independent judiciary. Nothing was stated about judicial compensation; judges were required to retire at sixty; and their opinions could be reversed by a “court” of errors that included among its members the lieutenant governor and the senators. The chancellor and the supreme court judges also were required to exercise executive power in their service on the council of revision.Footnote 89
Indeed, New York's own Alexander Hamilton criticized both the judicial tenure provision of New York's 1777 constitution and judicial service on the council of revision in two of his Federalist Papers. With respect to judicial tenure, Hamilton wrote:
The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them.Footnote 90
Hamilton objected to a mandatory retirement age for judges primarily on practical grounds: he thought it unnecessary. He objected to commingling executive, legislative, and judicial functions on the council of revision on the principled ground of judicial independence. He wrote:
But perhaps the force of the objection may be thought to consist in the particular organization of the proposed [United States] Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and in that of this State [New York]. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim requiring a separation of the departments of power.Footnote 91
To summarize, the New York Constitution of 1777 was regarded as the “best” of the original state constitutions and one that “exerted a considerable influence upon the Federal Constitution” by no less a figure than historian Allan Nevins in his celebrated study The American States During and After the Revolution, 1775–1789. Footnote 92 However, New York did not have an independent judiciary prior to the U.S. Constitution of 1787, a point Nevins conceded.Footnote 93 In fact, New York has never had an independent judiciary in the federal conception of the institution. Although the New York Constitution of 1821 abolished the council of revision,Footnote 94 and the Constitution of 1846 eliminated the court for the correction of errors and added a provision for judicial compensation (which “shall not be increased or diminished during their continuance in office”), removal of judges by “joint resolution of the two houses of the legislature”—rather than solely by impeachment—was added by the 1821 constitution,Footnote 95 and New York judges always have been subject to a mandatory retirement age (at present, seventy-six).
No discussion of judicial independence in New York would be complete without mentioning one of the most famous of the early state court precedents for judicial review, Rutgers v. Waddington (1784), argued by Alexander Hamilton and decided by the mayor's court of New York City.Footnote 96 At issue was whether Hamilton's client, a British citizen named Joshua Waddington, committed a trespass by occupying plaintiff Elizabeth Rutgers's property during the American Revolution. Rutgers sued Waddington pursuant to New York's Trespass Act, a 1783 statute that barred defendants from pleading that military authority justified the trespass under acts of war and the law of nations. Hamilton emphasized in his argument to the court the need for the judiciary to protect his client's rights under both the Treaty of Peace, which had canceled claims for injuries to property during the Revolution, and the law of nations. He said: “The enemy having a right to the use of the Plaintiffs property & having exercised their right through the Defendant & for valuable consideration he cannot be made answerable to another without injustice and a violation of the law of Universal society.”Footnote 97
The court was fully aware of the thrust of Hamilton's argument. The judges noted that Hamilton's defense centered on the claim that “statutes against law and reason are void.” They appeared to accept his position:
[W]e profess to revere the rights of human nature; at every hazard and expence we have vindicated, and successfully established them in our land! and we cannot but reverence a law which is their chief guardian—a law which inculcates as a first principle—that the amiable precepts of the law of nature, are as obligatory on nations in their mutual intercourse, as they are on individuals in their conduct towards each other; and that every nation is bound to contribute all in its powers to the happiness and perfection of others!Footnote 98
Despite this strong language about the importance of protecting individual rights—here, the right of Hamilton's client to use the plaintiff's property during the war—the court upheld the statute, explicitly acknowledging the supremacy of the legislature.Footnote 99 The court did, however, deny the plaintiff relief. What the court's inconsistent actions suggest is that the judges were torn between their increasing awareness of the need for judges to protect individual rights and their lingering commitment to the doctrine of legislative supremacy. And while it is impossible to know for certain, perhaps the New York judges would have been more willing to exercise judicial review if the New York Constitution of 1777 had made them as independent of the political branches as the U.S. Constitution of 1787 soon would make the federal judiciary.
