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Published online by Cambridge University Press:  30 November 2010

Scott D. Gerber
Law, Ohio Northern University


Article III of the U.S. Constitution establishes an independent federal judiciary: federal courts constitute a separate branch of the national government, federal judges enjoy tenure during good behavior, and their salaries cannot be diminished while they hold office. The framers who drafted Article III in 1787 were not working from whole cloth. Rather, they were familiar with the preceding colonial and state practices, including those from New York. This essay provides a case study of New York's judicial history: the Dutch period, 1621-1664; the Ducal proprietary period, 1664-1685; the Royal period, 1685-1776; and the early state period. As will be seen, New York—among the most significant of the original thirteen states—was a state groping towards a new ideal of judicial independence: an ideal that became a reality a decade after its own constitution was enacted in 1777 and at a different level of government. Significantly, the uncertain status of New York's judiciary had profound consequences for the ultimate expression of judicial independence, judicial review.

Research Article
Copyright © Social Philosophy and Policy Foundation 2011

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1 Gerber, Scott D., “The Court, the Constitution, and the History of Ideas,” Vanderbilt Law Review 61, no. 4 (2008), 10671126Google Scholar.

2 Article III, section 1, of the U.S. Constitution provides: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

3 To mention the most famous example in support of this proposition, The Federalist Papers, a series of newspaper articles penned pseudonymously by Alexander Hamilton, James Madison, and John Jay that are almost universally regarded as the best guide to the framers' understanding of the Federal Constitution of 1787, were written to persuade the people of New York to ratify the U.S. Constitution. The fear was that, without New York's approval, the U.S. Constitution would not be enacted. See, for example, Rakove, Jack N., Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996)Google Scholar. See generally The Federalist Papers, ed. Rossiter, Clinton (New York: New American Library, 1961)Google Scholar.

4 Gordon S. Wood, the preeminent early American historian, has been calling for a study such as this for four decades. See, for example, Wood, Gordon S., The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969), 624Google Scholar; Wood, Gordon S., “The Origins of Judicial Review,” Suffolk University Law Review 22, no. 4 (1988): 1293, 1304–5Google Scholar. Wood is a historian; I am a lawyer and a political scientist. He almost certainly would approach the subject differently than I do. I discuss the development of an independent judicial power in light of what Montesquieu famously identified as three separate types of government power. I also focus on constitutional texts, where ideas about political architecture are memorialized.

5 E-mail to the author from Daniel J. Hulsebosch, Professor of Law, New York University (January 8, 2009).

6 The 1621 charter is available online at

7 Kammen, Michael G., Colonial New York: A History (New York: Scribner, 1976), 19–20, 23–26Google Scholar. See also Chester, Alden, Courts and Lawyers of New York: A History, 1609–1925, 3 vols. (New York: American Historical Society, 1925), 1:51Google Scholar n. 1: “Adventure brought men to Virginia; politics and religion to New England; philanthropy to Georgia; but New York was founded by trade for trade and for nothing else.” A 1614 charter issued to several Amsterdam merchants sought to encourage exploration of the territory by promising generous trade rights. The charter expired in 1618. James Sullivan, The History of New York State, book 1, chap. 3, part 7, available online at In a bibliography of New York colonial legal research materials, law librarian Robert A. Emery observes that “writings on New York colonial law are voluminous, and it would be pointless to list them all.” Emery, Robert A., “New York Prestatehood Legal Research Materials,” in Chiorazzi, Michael and Most, Marguerite, eds., Prestatehood Legal Materials: A Fifty-State Research Guide, Including New York City and the District of Columbia, 2 vols. (New York: Hawthorne Information Press, 2005), 2:795, 809Google Scholar. I concur. I limit my citations in this essay to the most useful of the existing research related to my topic. Much of the secondary literature is repetitive. For a well received recent treatment, see Hulsebosch, Daniel J., Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005)Google Scholar.

8 Lincoln, Charles Z., The Constitutional History of New York, 5 vols. (Rochester, NY: The Lawyer's Cooperative Publishing Co., 1906), 1:56Google Scholar. Lincoln's treatise was the first constitutional history of New York.

9 Ibid., 412.

10 Galie, Peter J., Ordered Liberty: A Constitutional History of New York (New York: Fordham University Press, 1996), 12Google Scholar.

11 Lincoln, Constitutional History, 1:413. The commissions to the various directors-general echoed the charter's command regarding the government of the province. Ibid., 12–13.

12 Ibid., 412–13.

13 Ibid., 455.

14 Ibid. However, in August 1641 Kieft called a meeting that became the first representative body in the province. Galie, Ordered Liberty, 12.

15 Kammen, Colonial New York, 48–72. An earlier director-general, Peter Minuit, has attained mythical status for his purchase of Manhattan from Native Americans for goods valued at a mere sixty guilders. Chester, Courts and Lawyers of New York, 1:181–82.

16 The tribunal of Nine Men was antedated by the boards of Twelve Men (1641) and of Eight Men (1643 and 1645), but these preceding boards did not exercise judicial power. Chester, Courts and Lawyers of New York, 1: chap. 15. The tribunal of Nine Men was the first inferior court established in what is now the state of New York. Ibid., 221.

17 Lincoln, Constitutional History, 1:456–58. In 1653, New Amsterdam (present-day New York City) became the first locality to enjoy burgher government. Outlying settlements soon followed suit.

18 Ibid., 457.

19 Andrews, Charles M., The Colonial Period of American History, 4 vols. (New Haven, CT: Yale University Press, 1937), 3:82Google Scholar. The English commercial colonizers offered financial and political incentives to speed settlement of their provinces.

20 Ibid.; Chester, Courts and Lawyers of New York, 1:79; Lincoln, Constitutional History, 1:413; Kammen, Colonial New York, 32.

21 Andrews, The Colonial Period, 3:82 n. 3.

22 Ibid., 83. See generally Chester, Courts and Lawyers of New York, 1: chap. 8. An amended Charter of Freedoms and Exemptions was issued in 1640. It reduced the number of adults a patroon was required to bring to New Netherland from fifty to five. Kammen, Colonial New York, 34. In 1650, the Charter of Freedoms and Exemptions was again amended, but not in any material respect. Lincoln, Constitutional History, 1:12.

23 See Chester, Courts and Lawyers of New York, 1:133–34 (describing the incident).

24 Ibid., 235–44.

25 The British American colonies did not adopt the Gregorian calendar until 1752. Pre-1752 Julian calendar dates between January 1 and March 25 necessitate reference to both the Gregorian and Julian years.

26 Kammen, Colonial New York, 69–72.

27 Galie, Ordered Liberty, 17.

29 Kammen, Colonial New York, 71.

30 The grant is available online at The 1663/64 grant included what had been the province of Maine. It was incorporated into the province of New York, which had been surrendered by the Netherlands.

31 Kammen, Colonial New York, 76.

32 Andrews, The Colonial Period, 3:97.

33 Chester, Courts and Lawyers of New York, 1:302 (quoting Nicolls's commission).

34 My discussion of the Duke's Laws benefited from Chester, Courts and Lawyers of New York, 1: chap. 18.

35 Ibid., 305.

36 Kammen, Colonial New York, 75.

37 Andrews, The Colonial Period, 3:111. The 1674 grant was virtually a verbatim replication of the 1663/64 grant. The 1674 grant is available online at

38 Lincoln, Constitutional History, 1:425–27; Kammen, Colonial New York, 100.

39 Galie, Ordered Liberty, 18.

40 Chester, Courts and Lawyers of New York, 1:390.

41 As quoted in Lincoln, Constitutional History, 1:427.

42 As quoted in ibid., 430.

43 Ibid., 429.

44 The charter is available online at

45 Goebel, Julius Jr., “The Courts and the Law in Colonial New York,” in Flick, Alexander C., ed., History of the State of New York, 10 vols. (New York: Columbia University Press., 1933), 3:3, 18–21Google Scholar.

46 Lincoln, Constitutional History, 1:434–35.

47 Galie, Ordered Liberty, 23.

48 Kammen, Colonial New York, 120. For more on the Dominion of New England, see Barnes, Viola Florence, The Dominion of New England: A Study in British Colonial Policy (New Haven, CT: Yale University Press, 1923)Google Scholar.

49 Andrews, The Colonial Period, 3:124.

50 Galie, Ordered Liberty, 24. The two charters were technically statutes, but they functioned as grants of “constitutional powers and privileges.” Lincoln, Constitutional History, 1:438.

51 Budd, Martin L., “The Legal System of 1691,” in Hershkowitz, Leo and Klein, Milton M., eds., Courts and Law in Early New York: Selected Essays (Port Washington, NY: Kennikat Press, 1978), 1, 7Google Scholar. Budd's essay, a reprint of his 1967 Harvard Law Review student note, is an excellent treatment of New York's 1691 judiciary act. The general assembly renewed the judiciary act on several occasions. Beginning in 1699, virtually the same judicial system existed via ordinances issued by New York's royal governors. Minor modifications included increasing the amount in controversy requirement from 300 pounds to 500 pounds for appeals to the crown in council.

52 Ibid., 9.

53 Ibid., 9, 122 n. 10.

54 Richard B. Morris, “The New York City Mayor's Court,” in Hershkowitz and Klein, eds., Courts and Law in Early New York, 19 (reprinting the introduction to Morris's edited book on the New York City mayor's court).

55 Budd, “The Legal System of 1691,” 15. Governor Robert Hunter reintroduced the court in 1711, and it operated almost continuously, with the governor serving as chancellor, until the American Revolution. Katz, Stanley N., “The Politics of Law in Colonial America: Controversies Over Chancery Courts and Equity Law in the Eighteenth Century,” in Fleming, Donald and Bailyn, Bernard, eds., Law in American History (Boston: Little, Brown and Co., 1971), 255, 273Google Scholar. See also Joseph H. Smith, “Adolph Philipse and the Chancery Resolves of 1727,” in Hershkowitz and Klein, eds., Courts and Law in Early New York, 30.

56 Labaree, Leonard Woods, Royal Government in America: A Study of the British Colonial System before 1783 (1930; reprinted, New York: Frederick Ungar Publishing Co., 1958), 373Google Scholar. The royal instructions concerning the courts are collected in chapters 7 and 8 of volume 1 of Labaree, Leonard Woods, ed., Royal Instructions to British Colonial Governors, 1670–1776, 2 vols. (1935; reprinted, New York: Octagon Books, 1967)Google Scholar.

57 See Budd, “The Legal System of 1691,” 10: “In deciding that the legislature should enact the required law, Sloughter probably was not seriously constrained by the explicit language of his instructions; the chief representative of a government 3,000 miles away had to have considerable leeway in interpreting his commission in light of what he knew the purposes of his superiors to be.”

58 Lincoln, Constitutional History, 1:470.

59 The first incident is chronicled in Smith, Joseph H. and Hershkowitz, Leo, “Courts of Equity in the Province of New York: The Cosby Controversy, 1732–1736,” American Journal of Legal History 16, no. 1 (1972): 150CrossRefGoogle Scholar. See also Katz, “The Politics of Law in Colonial America,” 273–82; and Katz, Stanley Nider, Newcastle's New York: Anglo-American Politics, 1732–1753 (Cambridge, MA: Belknap Press of Harvard University Press, 1968), chap. 4CrossRefGoogle Scholar. The second and third incidents are discussed in, among many other places, Klein, Milton M., The Politics of Diversity: Essays in the History of Colonial New York (Port Washington, NY: Kennikat Press, 1974), chap. 7Google Scholar. The latter two incidents were of such constitutional significance that Klein entitles his chapter about them “Prelude to Revolution in New York.” All three incidents are also described, in varying degrees of specificity, in Labaree's Royal Government in America, chap. 9.

60 Morris was the leader of Cosby's political opponents. Bonomi, Patricia U., A Factious People: Politics and Society in Colonial New York (New York: Columbia University Press, 1971), chap. 4Google Scholar. The financial dispute between Cosby and Van Dam was never resolved on the merits: Van Dam failed to file an answer and Cosby refused to accept process on a separate claim filed by Van Dam. Smith and Hershkowitz, “Courts of Equity,” 31.

61 As quoted in Smith and Hershkowitz, “Courts of Equity,” 40.

62 Eben Moglen, “Considering Zenger: Partisan Politics and the Legal Profession in Provincial New York,”*. See also Bonomi, A Factious People, 105–6.

63 Labaree, Royal Government in America, 391.

64 Governor George Clinton once had liked DeLancey, and had conferred upon the chief justice in 1744 a commission during good behavior. The two later became bitter political enemies. Bonomi, A Factious People, 149–50.

65 Colden consented to one bill that tied life tenure for judges to an annual appropriation for official salaries—including Colden's own—but explained the assembly's extortion (as Colden viewed it) to his superiors in England and prorogued the legislature. Klein, The Politics of Diversity, 164.

66 Labaree, ed., Royal Instructions to British Colonial Governors, 1:368.

67 Klein, The Politics of Diversity, 165.

68 The colonial practice itself made plain that the judiciary was not independent at this point in New York's history: the governor and council exercised judicial authority. For a discussion emphasizing the right to trial by jury in the reaction to the case, see Carney, Thomas E. and Kolb, Susan, “The Legacy of Forsey v. Cunningham: Safeguarding the Integrity of the Right to Trial by Jury,” The Historian 69, no. 4 (2007): 663–87CrossRefGoogle Scholar.

69 As quoted in Labaree, Royal Government in America, 417.

70 Galie, Ordered Liberty, 25–26.

71 The New York Constitution of 1777 is reprinted in, among other places, Poore, Benjamin Perley, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States, 2 vols., 2d ed. (Washington, DC: Government Printing Office, 1878), 2:1329–39Google Scholar.

72 Countryman, Edward, “Legislative Government in Revolutionary New York, 1777–1788,” Ph.D. diss. (Ithaca, NY: Cornell University, 1971), 85Google Scholar.

73 Galie, Ordered Liberty, 39.

74 For example, Galie, Peter J., The New York State Constitution: A Reference Guide (New York: Greenwood Press, 1991), 5Google Scholar.

75 Lincoln, Constitutional History, 1:535. The New York state constitutional convention also rejected a sixty-five-year-old retirement age. Ibid.

76 Galie, Ordered Liberty, 42. Scholars disagree about how large a role Jay played in writing New York's first state constitution, but all conclude that he played an influential part. Compare Lincoln, Constitutional History, 1:471, and Richard B. Morris, “John Jay and the New York State Constitution and Courts after Two Hundred Years,” in Schechter, Stephen L. and Bernstein, Richard B., eds., New York and the Union (Albany: New York State Commission on the Bicentennial of the United States Constitution, 1990), 161, 163, 165Google Scholar (calling Jay the principal architect of the document), with Galie, Ordered Liberty, 38, and Mason, Bernard, The Road to Independence: The Revolutionary Movement in New York, 1773–1777 (Lexington: University of Kentucky Press, 1966), 225–29Google Scholar (maintaining that Jay's role has been overemphasized).

77 Whether only the governor could nominate candidates under the 1777 constitution was addressed by the New York constitutional convention of 1801. The 1801 convention decided that the governor and the council of appointment had concurrent power to nominate candidates. Galie, Ordered Liberty, 64–70.

78 Lincoln, Constitutional History, 1:554.

79 See generally Gerber, Scott D., “The Myth of Marbury v. Madison and the Origins of Judicial Review,” in Graber, Mark A. and Perhac, Michael, eds., Marbury versus Madison: Documents and Commentary (Washington, DC: CQ Press, 2002), 115Google Scholar; and Treanor, William Michael, “Judicial Review Before Marbury,” Stanford Law Review 58, no. 2 (2005), 455562Google Scholar.

80 If a member of the court of errors and impeachments was himself being impeached, he could not sit on the tribunal. The assembly was assigned the power of bringing articles of impeachment (Article XXXIII).

81 Neither the chancellor nor the supreme court judges were to vote on appeals from their own courts, but they were expected to participate in the deliberations (Article XXXII).

82 William A. Polf, “1777: The Political Revolution and New York's First Constitution,” in Schechter and Bernstein, eds., New York and the Union, 114, 134.

83 Lincoln, Constitutional History, 1:537.

84 New York's 1777 constitution was not presented to the people for ratification. In 1778, New Hampshire became the first of the original states to submit a constitution to the people. (The people of New Hampshire rejected the proposed 1778 constitution.)

85 Sol Wachtler and Stephen L. Schechter, “‘Liberty and Property’: New York and the Origins of American Constitutionalism,” in Schechter and Bernstein, eds., New York and the Union, 3, 12–13.

86 Mason, The Road to Independence, 230.

87 As quoted in Lincoln, Constitutional History, 1:482. Similar language was included in the preamble of the constitution of 1777. The constitution did not contain a bill of rights, although a number of rights were guaranteed in the body of the document (e.g., religious freedom, trial by jury, due process). The record is silent as to why there was no bill of rights—the convention was charged with drafting both a frame of government and a declaration of rights for the state—but it has been suggested that a bill of rights was considered by the drafting committee to be unnecessary. Bernard Mason, “New York State's First Constitution,” in Schechter and Bernstein, eds., New York and the Union, 167, 180. As is well known by students of American constitutional history, an identical argument would be made a decade later with respect to a bill of rights for the U.S. Constitution.

88 The distribution of powers among the branches of government was one of the central issues of the convention. Galie, The New York State Constitution, 3.

89 The fact that the convention stripped the governor of the equity and probate jurisdiction he exercised when New York was a colony did increase the judiciary's separateness and independence. Ibid., 4.

90 Hamilton, Federalist No. 79, in Rossiter, ed., The Federalist Papers, 474.

91 Hamilton, Federalist No. 81, in ibid., 483.

92 Nevins, Allan, The American States During and After the Revolution, 1775–1789 (1924; reprinted, New York: Augustus M. Kelley Publishers, 1969), 161Google Scholar.

93 Ibid. That does not mean New York's judiciary was not powerful. Willi Paul Adams went so far as to say that “[n]o other early [state] constitution gave so much power to the judiciary.” Adams, Willi Paul, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era, expanded edition (Lanham, MD: Madison House, 2001), 266Google Scholar. Adams emphasized participation by New York supreme court judges on the council of revision and the court for the trial of impeachments.

94 The council of appointment also was abolished by the 1821 constitution. An executive veto replaced the council of revision, and the executive was empowered to nominate judges subject to the advice and consent of the senate. Both provisions mirrored the federal model.

95 So-called removal by address was objected to as a threat to judicial independence, but proponents of the provision maintained that limiting removal to impeachable offenses made the judiciary too independent. Lincoln, Constitutional History, 4:556–62.

96 The case is reported in Goebel, Julius Jr., ed., The Law Practice of Alexander Hamilton: Documents and Commentary, 5 vols. (New York: Columbia University Press, 1964), 1:393419Google Scholar. The mayor's court was comprised of the mayor, various aldermen, a professional judge, and the city recorder.

97 Ibid., 373.

98 Ibid., 395, 400.

99 Ibid., 415: “The supremacy of the Legislature need not be called into question; if they think fit positively to enact a law, there is no power which can controul them. When the main object of such a law is clearly expressed, and the intention manifest, the Judges are not at liberty, altho' it appears to them to be unreasonable, to reject it: for this were to set the judicial above the legislative, which would be subversive of all government” (emphasis in the original).