MEMOIR OF THE HON. JAMES DE LANCET.

629

The two puisne Judgeships of the Supreme Court becoming vacant in 1731, Mr. De Lancey wasappointed to be second, and Mr. Adolph Philiipse third judge. Their commissions bear date thesame day, June 24 ll >, 1731. Up to this time Mr. De Lancey had been steadily practising his profes-sion, and had acquired the character of an able advocate and an honest lawyer. His fellow barristerswere men well known, and nearly all his seniors in age. Among them were Joseph Murray,James Alexander, Francis Harrison and William Smith, the elder.

In 1730 a new charter was granted to New York, the corporation ol which, in token of Mr. DeLancey ’s zealous exertions in their favor upon the occasion, presented him with the freedom of thecity, being the first person to whom they voted that honor under the new 7 instrument.

Upon the death of Montgomerie in July 1731, Rip Van Dam, the eldest councillor, succeeded tothe command and retained it till August 2 d , 1732, when Col William Cosby, the new Governor,arrived and took the reins of government. The great dispute concerning the salary soon afterarose between them, Van Dam having received the whole, and Mr. Cosby producing an order inCouncil, dated May 31 st , 1732, and given to him in England soon after his appointment, directingits equal division between them. Mr. Van Dam w r ould agree to this if Mr. Cosby would also dividecertain funds which he alleged came to his hands in England The Governor declined this proposal,as the order referred only to the salary given by the colony and the perquisites arising from thegranting of lands within its limits.

Van Dam then refused to pay over any thing and claimed a balance as due to himself. TheGovernor u r as thus compelled either to institute legal proceedings or give up his claim. Being amatter of account and therefore cognizable only in a court of Equity, an action could not bebrought in the Supreme Court which was a court of Law. Being Chancellor ex officio the Governorwas shut out from the Chancery as he could not of course hear his own cause. He proceededtherefore before the Judges of the Supreme Court as Barons of the Exchequer. This Court whichhad sat occasionally before, and the Chancery were however extremely unpopular, owing to a strangebut inveterate prejudice against Courts of Equity which very early seized the people of New York .

Taking advantage of the popular feeling Mr. Van Dam’s counsel pleaded to the jurisdiction, butthe exception after full argument was overruled by the Court , the Barons standing tw 7 o to oneJudges De Lancey and Philiipse in the affirmative and Chief Justice Lewis Morris in the negative.The latter delivered a dissenting opinion, on this occasion reflecting upon Gov. Cosby, who shortlyafter requested a copy of it in writing. This irritated the Chief Justice, who took the unheard ofcourse of sending him a copy in print, with a very insulting letter, 1 and at the same time publishedbotli to the world. This extraordinry and insulting conduct of the highest judicial officer of thecolony rendered Gov. Cosby very indignant, and he at once wrote the Duke of Newcastle, thenminister, regarding the Chief Justice’s conduct and urged his removal from office. 2 To this letter,dated May 3 d , 1733, he must have received an early answer from the Duke coinciding with hisviews, for on the 21 st of the folio wing August, Mr. Morris was removed from office and James DeLancey was appointed Chief Justice of New York 3 in his stead.

The appointment was made under the usual clause in the Governor’s commissions, whichauthorized them to “constitute and appoint judges.” A power which they exercised independentlyof the council, and not with its “advice and consent,” as in the erection of courts and theexercise of a few other powers. 4

1 Bolton’s Hist, of Westchester; II., 307.

2 Cosby’s Letter, dated May 3d, 1733, in Lond. Doc.: XXIV., 232.

3 His. Coinn. is recorded in Book of Comns., III., 272 in Sec. of State’s Office, Albany .

4 See similar clause in Sir Danvers Osborn’s Commission. Appendix to Smith’s Hist, of N. Y. ; I , 299.