SSStttooonnnyyy BBBrrrooooookkk UUUnnniiivvveeerrrsssiiitttyyy The official electronic file of this thesis or dissertation is maintained by the University Libraries on behalf of The Graduate School at Stony Brook University. ©©© AAAllllll RRRiiiggghhhtttsss RRReeessseeerrrvvveeeddd bbbyyy AAAuuuttthhhooorrr... Justices of the Peace, Lawyers, and the People Local Courts and the Contested Professionalization of Law in Late Colonial New York A Dissertation Presented by Sung Yup Kim to The Graduate School in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy in History Stony Brook University August 2016 Copyright by Sung Yup Kim 2016 Stony Brook University The Graduate School Sung Yup Kim We, the dissertation committee for the above candidate for the Doctor of Philosophy degree, hereby recommend acceptance of this dissertation. Donna J. Rilling - Dissertation Advisor Associate Professor, Department of History Ned C. Landsman - Chairperson of Defense Professor, Department of History Susan Hinely Lecturer, Department of History Simon Middleton Senior Lecturer in History, Department of History, Sheffield University This dissertation is accepted by the Graduate School Nancy Goroff Interim Dean of the Graduate School ii ABSTRACT OF THE DISSERTATION Justices of the Peace, Lawyers, and the People Local Courts and the Contested Professionalization of Law in Late Colonial New York by Sung Yup Kim Doctor of Philosophy in History Stony Brook University 2016 Legal professionalization in New York was a contested social process entailing myriad local struggles over the use of land and credit. New York’s legal professionalization gained momentum in the mid-eighteenth century, as provincial lawyers pursued a collective mission to monopolize doctrinal interpretation and procedural application of English common law in the colony. The on-the-ground application of that mission frequently pitted lawyers against commoners, many of whom preferred the informal resolutions provided by lay justices, jurors, arbitrators, and town meetings. Professionalized law determined cases with doctrines and procedures alien to most laypeople. It disrupted the local communities’ means of equitable dispute resolution, and aroused widespread suspicion that it solely benefited those who could hire lawyers. iii Those suspicions were well grounded. Lawyers aided land speculators in every step of their contentious land grabs, and helped wealthy creditors profit from interest, penalties, and mortgaged property. New York’s prohibitively high legal expenses made professionalized law more attractive to wealthy landowners, creditors, and speculators seeking to monopolize opportunities for further economic gain. In order to facilitate the economic elite’s privileged commercial enterprises, New York’s professionalized legal system continually deprived the people of opportunities for economic betterment, exposing them to further economic insecurity. Popular anxiety over the law deepened further when the colony’s leading lawyers vigorously sought to restrict a key area of localized adjudication—the small claims jurisdiction of justices of the peace. More attentive to popular legal needs than trained judges, many lay justices handled the colony’s voluminous small debt claims in a distinctively speedy, flexible, and inexpensive manner. Lawyers opposed the enlarged jurisdiction of justices as inimical to their vision of orderly social development grounded in the stabilizing influence of professionalized law. Popular support of the enlarged justices’ jurisdiction and the strong response to the DeLancey party’s anti-lawyer electoral campaign in the late 1760s showed that many ordinary New Yorkers repudiated the lawyers’ vision of legal and social development. They desired, instead, a more inclusive legal system in which lay people would have a larger say in shaping the laws that affected their daily economic lives. iv TABLE OF CONTENTS Introduction 1 1 “Arbitrary and Unjust”: Complaints and Criticisms against Justices of the Peace 16 2 “Those Innumerable Litigations of a Civil Nature Arising among the Lower Sort”: 57 Justices of the Peace and Small Debt Litigation 3 Squires and Tavern Keepers: Justices of the Peace and the People 100 4 “Licensed to Practice Law”: The Advent of Legal Professionals 141 5 “I am not a Judge of the Law”: Local Courts and Legal Professionalization 197 6 “The Surest Support of their Enormous and Iniquitous Claims”: Lawyers and 257 Economic Privilege 7 “Exertions of Pretended Legality of Law”: Lawyers and the People 317 8 The Five Pounds Act and Its Enemies: Legislation, Legal Change, and Popular 390 Politics Conclusion 460 Bibliography 466 v ABBREVIATIONS AIHA Albany Institute of History and Art CUL Columbia University, Rare Book and Manuscript Library Doc. Rel. N.Y. O’Callaghan, E. B, John Romeyn Brodhead, Berthold Fernow, New York (State), and Legislature. Documents Relative to the Colonial History of the State of New-York: Procured in Holland, England, and France. Albany, 1853. Doc. Hist. N.Y. O’Callaghan, E. B, and Christopher Morgan. The Documentary History of the State of New-York. 4 vols. Albany, N.Y.: Weed, Parsons, and Company, 1850. N.Y. Col. Laws The Colonial Laws of New York from the Year 1664 to the Revolution, 5 vols. (Albany, 1894). NYHS New-York Historical Society NYPL New York Public Library NYSL New York State Library and Archives vi INTRODUCTION In 1754, New York’s provincial legislature passed a bill to enlarge the jurisdiction of individual justices of the peace to cases of up to five pounds’ value—a more than two-fold increase from the previous ceiling of 40 shillings.1 Often simply referred to as the “Five Pounds Act,” the statute was renewed and continued throughout the remaining years of the colonial period, but not without facing strenuous opposition from some of the colony’s prominent lawyers and judges. The crux of their dissent was that the act would worsen an already deplorable “debasement” of the colony’s local legal practice, for which they blamed the ignorance and misconduct of lay justices. Enlarging the jurisdiction of these unqualified magistrates would seriously undermine the authority of law, leading to a “horrid confusion and disorder in [the] government.”2 William Smith, Jr., the eminent lawyer and historian, made sure this negative portrayal of the Five Pounds Act and New York’s justices of the peace would be remembered by posterity, asserting in his History of the Province of New-York that there were some justices “who can neither write nor read,” and that “the conduct of the justices has given just cause to innumerable complaints.”3 A decade or so later, lawyers became the subject of a heated public debate surrounding their suitability as representatives of the people. The debate was occasioned by the candidacy of John Morin Scott, a leading lawyer in New York City and member of an influential political faction. Scott’s opponents launched a negative campaign against him, which they quickly turned into an all-encompassing indictment of the colony’s lawyers. They blamed lawyers for the rampant 1 “An Act to impower Justices of the Peace to Try Causes from Forty Shillings to Five Pounds,” Dec. 7, 1754, N.Y. Col. Laws, III: 1011-1016. 2 Journal of the Legislative Council of the Colony of New York - Began the Eighth Day of December, 1743; and Ended the 3Rd of April, 1775, (New York Senate, 1861), 1329. 3 William Smith, Jr., The History of the Province of New-York, 2 vols. (Cambridge, Mass.: Harvard University Press, 1972), ed. Michael G. Kammen, II: 244. 1 “abuses in the law, so generally and so justly complained of,” and argued that lawyers, if seated in the provincial assembly, would “give up the liberties and interests of their constituents and wantonly dispose of their property, to serve their own private interest or that of individuals with whom they are connected.” The lawyers’ earlier opposition to the Five Pounds Act, which Scott’s adversaries deemed a most “beneficial and useful law,” was offered as proof that lawyers in public offices would “act inconsistent with, and repugnant to, the general interest of the community.”4 Taken together, the two controversies suggest that New Yorkers were deeply dissatisfied with their legal system during the late colonial period, although with little agreement about whom and what to blame for the unsatisfactory state of the law. Was the incompetence of lay justices and the resultant inefficacy of local courts the main problem? Or was it the lawyers’ self-interested subversion of justice and equity on behalf of clients that was ruining the system? Answering these questions is as difficult now as it was two and a half centuries ago. It entails a broad examination of the law as was practiced in late colonial New York. We would have to look well beyond official court records in order to find out how justices, lawyers, and litigants each sought to use the law, and to what extent each group was able to affect judicial processes and outcomes. Further, we would need to know how the law was understood by each of these parties, and how their disparate understandings of the law contributed to tensions both in and out of courtrooms. Upon examining all these aspects of late colonial New York’s legal practice, we can finally explain what drove the New Yorkers’ widespread discontent with the law, and why the enlarged jurisdiction of lay justices and the candidacy of lawyers as representatives aroused such controversy. Therein lies the immediate goal of this study. In its broader reach, this is a study of the social dimension of legal change in early America, 4 A Few Observations on the Conduct of the General Assembly of New-York (New York, 1768). 2 particularly regarding the rules governing the appropriation and use of land and credit. Much has been written on social change in early America. Although summarizing the vast literature under a single thread would be impossible, declension may be proposed as a theme underlying many recent studies of this period. In “declension models,” to borrow Jack P.