1. On the current status of American colonial legal history, see Katz, Stanley N., ‘The Problem of a Colonial Legal History’, in Greene, Jack P. and Pole, J.R., eds., Colonial British America: Essays in the New History of the Early Modern Era (Baltimore, 1984) 457–89Google Scholar.

2. Roscoe Pound, 1936 Livingston lectures at Tulane University, published as The Formative Era of American Law (Boston, 1938)Google Scholar.

3. Gilmore, Grant, The Ages of American Law (New Haven, 1977) 8–11.Google Scholar

4. Horwitz, Morton J., The Transformation of American Law 1780–1860 (Cambridge, Mass., 1977)Google Scholar.

5. Klein, Milton M., ‘New York in the American Colonies: A New Look’, New York History liii (1972) 132–56Google Scholar. See also Bonomi, Patricia U., ‘The Middle Colonies: Embryo of the New Political Order’, in Vaughan, Alden T. and Billias, George A., eds., Perspectives on Early American History: Essays in Honor of Richard B. Morris (New York, 1973) 63–92Google Scholar.

6. 1 The Colonial Laws of New York from the Year 1664 to the Revolution [hereinafter cited as Col. Laws NY] (Albany, 1894) 226Google Scholar (1691).

7. Jurisdiction is the authority by which courts take cognizance of and decide cases. Original jurisdiction is authority to take cognizance of a case at its inception and to pass judgment in the first instance on the law and the facts of the case. In contrast, appellate jurisdiction is authority to take cognizance of an action only after it has been decided by an inferior court; it is jurisdiction to revise or correct the judgment of the inferior court.

8. 1 Col. Laws NY, supra note 6 at 303 (1692).

9. Ordinance of Governor Cornbury, April 3, 1704, 2 Laws of the State of New-York (Albany, 1813)Google Scholar Appendix, xii.

10. Ordinance of Governor Clinton, August 6, 1750, cited by Fowler, Robert Ludlow in ‘Organization of the Supreme Court of Judicature of the Province of New York’, 19 Albany Law Journal 349–52 (1879) 350Google Scholar.

11. The minute books were kept chronologically rather than by cases. Therefore, all stages of any one case cannot be known simply by looking at a single sheet of paper; rather, the record of each case must be gathered together by the researcher from a number of volumes of minute books, scanning each page for a reference to the case in question. For this article I have focused on the decades of the 1690s and the 1750s. The 1690s were chosen because that was the first decade of the court's existence; the 1750s because that was the last decade before the pre-revolutionary turmoil. For each of those periods I created from the minute books a record of every case which appeared in court during the middle three years of the decade, that is, 1694 to 1696 and 1754 to 1756. I traced the beginnings of each case and the subsequent progress of each case by examining the minutes for the two years immediately preceding and the two years immediately following each of those three-year periods, thereby studying seven years in each decade.

12. The key statute was an act passed February 1, 1799, Laws of the State of New York (Albany, 1799)Google Scholar, chapter 5. Additional records were destroyed pursuant to court orders in 1807, 1825, and 1839.

13. A writ is a writing in the form of a letter which was issued by a court and addressed to a sheriff, another officer, or an individual party, requiring the performance of a specified act.

14. It appears that for cases other than ejectment and qui tam actions, both discussed below, the capias procedure was the only way to start the legal process. Neither a summons nor an attachment procedure was used, even for wealthier defendants.

15. A nonsuit terminated a lawsuit without adjudicating the issues on the merits. Judgment of nonsuit could be voluntary—where the plaintiff abandoned his case and consented to have judgment entered against him—or involuntary—where the plaintiff failed to appear in court when called or failed to establish enough of a case to be sent to the jury. A closely related term used in the colonial period was non pros., which was short for non prosequitur (‘he does not follow up’, or ‘he does not pursue’). Judgment of non pros, would be entered at the instance of the defendant when the plaintiff failed to prosecute any stage of his action in due time.

16. A defendant was said to have ‘made default’ if he failed to plead within the time allowed him for that purpose or if he failed to appear in court when required. The consequence of such failures was the entry of default judgment against the defendant.

17. An en bane meeting of the court was a meeting of all the Supreme Court justices, or at least of a quorum thereof, in the main courthouse in Manhattan. The en banc meeting is distinguishable from meetings on circuit, where only one Supreme Court justice joined with several local justices of the peace to hold court in one of the outer counties of the colony. When a trial was held on circuit, the result was reported back to the fully-constituted Supreme Court in Manhattan in a document called a postea.

18. Although the colonial jury sometimes made findings of law as well as fact, ordinarily it was the jury's job to determine the facts of a case; determination of legal principles was the job of the judges. After the jury reported its finding of facts to the judges, there was room for reversal or revision of the verdict based upon principles of law. If there were no legitimate legal objections raised by any of the parties, the judges confirmed, or ratified, the judgment.

19. On procedure in colonial New York, see also Note, ‘Law in Colonial New York: The Legal System of 1691’, 80 Harvard Law Review 1757–72 (1967)Google Scholar; and Johnson, Herbert A., ‘Civil Procedure in John Jay's New York’, in Essays on New York Colonial Legal History (Westport, 1981) 159–70Google Scholar.

20. In England this complicated method of establishing title and possession of property developed as a result of the rigidity of the common law writ system, which allowed in court only actions which fit into one of a few set patterns. Thus an action to establish title to land had to be brought as an action to remove from the property a person whose possession was interfering with the rights of a lessee of the land. The basis of the ejectment action was a fictitious lease. The action was brought in the name of a fictitious plaintiff, the supposed lessor, on behalf of the real party in interest, the supposed lessee. The action was brought against a fictitious defendant, known as the ‘casual ejector’. The real defendant was required to plead himself into the proceedings (confessing ‘lease, entry, and ouster’) in order to defend his title. Thus the full name of a case might be James Jackson [fictitious plaintiff] ex dem [from ex demissione, ‘upon the demise’] John Winthrop [real plaintiff, the alleged owner of the property] v. John Turnout [fictitious defendant, or casual ejector] and Isaac Stilwell [real defendant, the person occupying the property]; i.e., James Jackson ex dem John Winthrop v. John Turnout and Isaac Stilwell. Establishing the validity of the real plaintiff's or the real defendant's title, though apparently a peripheral issue, was in reality the primary object of the lawsuit, and this form of action came to be used regularly to try title to land.

21. On the improved training and increased sophistication of New York attorneys during the eighteenth century, see Klein, Milton M., ‘From Community to Status: The Development of the Legal Profession in Colonial New York’, New York History lx (1979) 133–56Google Scholar.

22. The voir dire examination is a preliminary examination on the issue of conflict of interest or competency to testify before the witness is allowed to present evidence on the merits of the case.

23. A special jury was a jury ordered by the court, on the motion of either party, to try a case which was considered to be particularly important or complicated. In mid-eighteenth century New York, special juries were used in most ejectment actions. A special jury was selected through a ‘striking’ procedure. The appropriate sheriff prepared a list of forty-eight freeholders from the county; the parties struck off eighteen names each, leaving a panel of twelve to try the case. In contrast, when a special jury was not required, ‘an indifferent person’ selected the panel of twelve at random, by pulling names out of a box containing the names of forty-eight to seventy-two freeholders. 3 Col. Laws NY, supra note 6 at 185 (1741).

24. In the 1750s, an average of seven people testified at each trial, as compared with a 1690s average of three.

25. In comparison with the documentary evidence of the 1690s, the smaller percentage of conveyance instruments (deeds, mortgages, and the like) and larger percentage of public documents (judicial, legislative, or administrative records) in the 1750s is particularly notable.

26. On the procedural sophistication of criminal procedure in New York during the colonial period, see Goebel, Julius Jr., and Naughton, T. Raymond, Law Enforcement in Colonial New York: A Study in Criminal Procedure (1664–1776) (New York, 1944; rept. 1970)Google Scholar.

27. Clopper v. Jermin, Minutes of the Supreme Court of Judicature of the Province of New York, Hall of Records, New York, New York [hereinafter cited as Mins SCJ], 1754–1756 92; Parchment Rolls, Hall of Records, New York, New York [hereinafter cited as H.R. Parch.] 101-H-8.

28. Sylvester ex dem Van Veghten and Hallenbeck v. Brando, Mins SCJ, supra note 27, 1752–1754 at 123, 1754–1756 at 89, 268; H.R. Parch., supra note 27, 237-C-2.

29. Greene, Evarts B. and Harrington, Virginia D., American Population Before the Federal Census of 1790 (New York, 1932) 89–91Google Scholar; Lincoln, Charles Z., The Constitutional History of New York, 3 vols. (Rochester, 1906) i: 465–67Google Scholar.

30. On this general subject see Nelson, William E., Dispute and Conflict Resolution in Plymouth County, Massachusetts, 1725–1825 (Chapel Hill, 1981)Google Scholar; and Konig, David Thomas, Law and Society in Puritan Massachusetts: Essex County, 1629–1692 (Chapel Hill, 1979)Google Scholar.

31. 1 Col. Laws NY, supra note 6 at 841 (1714). The act provided that the plaintiff's declaration had to be filed, with a copy to the defendant or his attorney, during the same term in which the capias was returnable or the plaintiff would be nonsuited; the defendant's plea had to be filed with the Clerk of the Supreme Court and a copy to the plaintiff or the plaintiff's attorney within ten days after the declaration was filed or judgment by default would be entered against the defendant; any reply or replication required of the plaintiff had to be filed and served by the plaintiff within twenty days after the date that the defendant's plea had to be filed; and the defendant's rejoinder, if any, had to be filed within twenty days after the date the plaintiff's replication had to be filed. Where further pleadings were not necessary, the case was to be tried in the term following that in which the capias was returned, and if additional pleadings were necessary then the case was to be tried in the next term following.

32. ‘Rules for the Court of Oyer and Terminer [sic for Supreme Court of Judicature]’, Redmond-Livingston Manuscripts, Franklin D. Roosevelt Library, Hyde Park, New York, quoted in Hamlin, Paul M. and Baker, Charles E., Supreme Court of Judicature of the Province of New York 1691–1704: Introduction (New York, 1952) 372–78Google Scholar. Those rules provided that the plaintiff was to declare within eight days after the sheriff's return or be nonprossed and be liable for the defendant's reasonable costs, that the defendant was to deliver his plea to the plaintiff or his attorney within eight days after the plaintiff declared or suffer default, and that if the plaintiff did not bring on the trial the ‘next and Immediate Terme after ye Processe begunn’ then the defendant could bring the cause to trial by proviso in the next ensuing term.

33. ‘Of Abuses in the Practice of Law’, Number 35 in Klein, Milton M., ed., The Independent Reflector or Weekly Essays on Sundry Important Subjects More particularly adapted to the Province of New York, (Cambridge, Mass., 1963) 299–305Google Scholar. In an article on William Livingston, Klein suggested that Livingston himself wrote the letter to his own periodical The Independent Reflector to express his frustration at his stalled legal career. See Klein, Milton M., ‘The Rise of the New York Bar: The Legal Career of William Livingston’, William and Mary Quarterly, 3rd ser., xv (1958) 334–58CrossRefGoogle Scholar. See also Independent Reflector Number 28, ‘On the Delays in Chancery’, 250–56.

34. On the growing antagonism toward lawyers during the first half of the eighteenth century, see Milton M. Klein, ‘From Community to Status’, supra note 21.

35. Greenberg, Douglas, ‘The Effectiveness of Law Enforcement in Eighteenth-Century New York’, American Journal of Legal History 19 (1975) 173–207CrossRefGoogle Scholar. Greenberg found that during the eighteenth century the average duration of criminal cases in all courts before they were either resolved or dropped was lowest in Suffolk County (2.3 months) and New York City (2.8 months), average in Albany County (3.7 months), and much higher in the borough counties adjacent to New York City (5.4 months) and in the counties of the Hudson River Valley (5.8 months). Furthermore, the percentage of cases left unresolved was lowest in Suffolk County (18.7 percent), in the range of average in the borough counties (29.0 percent), in the river counties (32.6 percent), and in New York city (37.1 percent), and quite high in Albany County (58.8 percent).

36. There was, however, a relationship between geographic distance from New York City and rate of default, see discussion at 192–93 infra.

37. Only the rough minutes of the 1724 to 1726 period are available. The location of the engrossed minutes, which may be more complete, is unknown.

38. See Church, Thomas Jr. et al. , Justice Delayed: The Place of Litigation in Urban Trial Courts (Williamsburg, 1978)Google Scholar. The authors of that study wrote:

It is our conclusion that the speed of disposition of civil and criminal litigation in a court cannot be ascribed in any simple sense to the length of its backlog, any more than it can be explained by court size, caseload, or trial rate. Rather, both quantitative and qualitative data generated in this research strongly suggest that both speed and backlog are determined in large part by established expectations, practices, and informal rules of behavior of judges and attorneys. For want of a better term, we have called this cluster of related factors the local legal culture.… [M]ost structural and caseload variables fail to explain interjurisdictional differences in the pace of litigation.

Ibid, at 54.

39. William Smith, Jr., ‘A Supream Court Register’, Manuscript Division, New York Public Library, New York, New York.

40. Harrington, Virginia D., The New York Merchant on the Eve of the Revolution (New York, 1935) 94–95Google Scholar; Aiken, John R., ‘New Netherlands Arbitration in the 17th Century’, 29 Arbitration Journal 145–60 (1974)Google Scholar; Note, ‘Commercial Arbitration in the Eighteenth Century: Searching for the Transformation of American Law’, 93 Yale Law Journal 135–52 (1983)Google Scholar.

41. All three statements are included in Morison, Samuel Eliot, ed., Sources and Documents Illustrating the American Revolution 1764–1788 and the Formation of the Federal Constitution (New York, 1923; rept. 1979) 33Google Scholar, 121, and 159. See also Ubbelohde, Carl, The Vice-Admiralty Courts and the American Revolution (Chapel Hill, 1960)Google Scholar.

42. See Elliot, Jonathan, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia, in 1787 (Philadelphia, 1861)Google Scholar pass. The concern about jury trial in civil cases led to the enactment of the seventh amendment to the United States Constitution.

43. In the Common Pleas Court of Plymouth, Massachusetts, the percentage of cases resolved by default of the defendant in the 1750s was even higher. For example, of the cases included for 1754 in Konig, David, ed., The Plymouth Court Records, 1686–1859 (Wilmington, 1978)Google Scholar, the defendant defaulted in 76 percent (127 out of 167 cases) and only 13 percent (21 out of 167) were resolved by jury trial. Konig's collection includes and describes only six civil cases for the Plymouth County Court for the year 1692. Of those, four were resolved by jury trial, one ended with the nonsuit of plaintiff, and one was resolved by the court.

44. The county of each case was determined by the reference to the sheriff in the minutes of the court. Such a reference appears in 80 percent of the cases. There appears to be no significant difference between the kinds of cases in which the sheriff is mentioned and those in which he is not, so these numbers should provide a fair representation of the county identification of those appearing in the court. The sheriff mentioned was always the sheriff of the county of the defendant's residence. An analysis of the wills of a sampling of litigants shows, however, that plaintiff's county of residence was with only rare exceptions the same as defendant's county of residence. Therefore, it is reasonable to assign both plaintiff and defendant in each case to the county of the sheriff mentioned.

Parenthetically, that civil lawsuits in New York continued to be brought against people from the same county is somewhat surprising in light of William E. Nelson's findings for colonial Massachusetts, described in his book Dispute and Conflict Resolution, supra note 30. Nelson found that as that colony became more commercialized, litigation became less localized. However, his study focused on the town level rather than the county level. As New York became more commercialized, litigants may similarly have been from different towns more often.

45. Eight percent is probably an underestimate of the total percentage of bail bond suits in the 1750s, since the minutes may not always have noted than an individual was bringing a suit as an assignee of a sheriff, the only indication of a bail bond suit in the minute books.

46. James Sackett, assignee of Clear Everit, High Sheriff of Dutchess Co. v. John Wood and John Sackett, H.R. Parch., supra note 27 at 125-H-9 (as to John Sackett) and 14-D-5 (as to John Wood).

47. Approximately 65 percent of the bail bond cases ended in judgment for want of a plea on the record; 3 percent were resolved by confession of judgment; and the resolution of 32 percent is not apparent from the record.

48. New York was not the only colony in which there was an increase in debt cases during the eighteenth century. Bruce H. Mann has reported an increase in debt cases in the colony of Connecticut during that period. As in New York, a large percentage of the debt cases was resolved by default rather than by jury trial. Mann, Bruce H., ‘Rationality, Legal Change, and Community in Connecticut, 1690–1760’, 14 Law and Society Review 187–221 (1980)Google Scholar. The effect of an increase in debt cases on patterns of litigation was not, however, the same in every colony. For example, New York's experience—an increase in debt cases accompanied by a decrease in jury trials—should be contrasted with the situation in Virginia, where an increase in debt cases was accompanied by an increase in jury trials after 1750, as described by Roeber, A.G., Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680–1810 (Chapel Hill, 1981) 128Google Scholar. The difference may reflect the relative strength of the debtor class in Virginia society, as compared with New York. Roeber added, though, that in Virginia, too, debt cases were contested only rarely.

49. For an overview of economic developments, see McKee, Samuel Jr., ‘The Economic Pattern of Colonial New York’, in Flick, Alexander, ed., History of the State of New York, 10 vols. (New York, 1933) ii: 247–82Google Scholar.

50. Virginia D. Harrington, New York Merchant, supra note 40 at 290. On commercial practice, see generally Harrington and also Baxter, W.T., The House of Hancock: Business in Boston, 1724–1775 (Cambridge, Mass., 1945)CrossRefGoogle Scholar. One way the colonists made up for the lack of precious metal, money, and banks was to establish home-made means of exchange. Most major merchants served banking-type functions, lending money and transferring credit between their customers. Baxter at 29—34, 204; Harrington at 114–15.

51. On the difficulty of collecting debts during this period, see Virginia D. Harrington, New York Merchant, supra note 40 at 116–17. Scarcity of specie caused by acts of Parliament, for example, did not constitute a legal basis for extension of a debt.

52. 1 Col. Laws NY, supra note 6 at 154 (1684).

53. Mortgage bonds were not common in colonial New York. See Gwyn, Julian, ‘Private Credit in Colonial New York: The Warren Portfolio, 1731–1795’, New York History liv (1973) 268–93Google Scholar.

54. 2 Col. Laws NY, supra note 6 at 669 (1730). See generally Coleman, Peter J., Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607–1900 (Madison, 1974)Google Scholar.

55. 3 Col. Laws NY, supra note 6 at 1099 (1755). For an example of use of the statute in the Supreme Court, see the 1755 petition of Richard Burg, James Stewart, Cornelius Brower, and Abraham Mills, Mins SCJ, supra note 27, 1754–1756 at 110, 143.

56. Conditional penal bonds were used not only to ensure payment of debts owed but also to ensure the performance of other acts by the promisor.

57. In his study of Connecticut law, Bruce Mann similarly attributed the increase in the proportion of cases resolved by default in that colony to the increased use of these legal instruments, which, he noted, increased certainty and predictability. Mann viewed the shift as a natural result of an increased rationalization of commercial and legal processes. Bruce H. Mann, ‘Rationality, Legal Change, and Community’, supra note 48.

58. On the social and religious makeup of the colony of New York, see Augustus H. Shearer, ‘The Church, the School, and the Press’, in Alexander Flick, ed., History of the State of New York, supra note 49 at iii: 45–90; Michael Kraus, ‘Social Classes and Customs’, in ibid, at ii: 375–412; McKee, Samuel Jr., Labor in Colonial New York, 1664–1776 (New York, 1935)Google Scholar; Bridenbaugh, Carl, Cities in Revolt: Urban Life in America, 1743–1776 (New York, 1955)Google Scholar; Hofstadter, Richard, America at 1750: A Social Portrait (New York, 1971)Google Scholar; and Gaustad, Edwin S., Historical Atlas of Religion in America (New York, 1962)Google Scholar. On the upper class make-up of the Anglican Church, the predominance of men from upper economic strata on the New York City Common Council, and the dominance of Dutch Reformed and Anglicans on the New York City Common Council, see Wilkenfeld, Bruce M., ‘The New York City Common Council, 1689–1800’, New York History lii (1971) 249–73Google Scholar. See also Peterson, Arthur Everett and Edwards, George William, New York as an Eighteenth Century Municipality (New York, 1917) pt. 2Google Scholar, 54–60. On the economic conflicts in colonial New York and their relationship to politics, see Spencer, Charles Worthen, ‘Sectional Aspects of New York Provincial Polities’, Political Science Quarterly xxx (1915) 397–424CrossRefGoogle Scholar; Zemsky, Robert, Merchants, Farmers, and River Gods: An Essay on Eighteenth-Century American Politics (Boston, 1971)Google Scholar; Arthur Everett Peterson and George William Edwards, New York as an Eighteenth Century Municipality, supra, pt. 2, at 93–94; Kenney, Alice P., The Gansevoorts of Albany: Dutch Patricians in the Upper Hudson Valley (Syracuse, 1969)Google Scholar; Gerlach, Don R., Philip Schuyler and the American Revolution in New York, 1733–1777 (Lincoln, 1964)Google Scholar; and Klein, Milton M., ‘Democracy and Politics in Colonial New York’, New York History xl (1959) 221–46Google Scholar.

59. On the political career of Lewis Morris, see Sheridan, Eugene R.Lewis Morris, 1671–1746: A Study in Early American Politics (Syracuse, 1981)Google Scholar.

60. Bonomi, Patricia U., A Factious People: Politics and Society in Colonial New York (New York, 1971) 144–45Google Scholar, 159, 165. See also Katz, Stanley Nider, ‘Between Scylla and Charybdis: James DeLancey and Anglo-American Politics in Early EighteenthCentury New York’, in Olson, Alison Gilbert and Brown, Richard Maxwell, eds., Anglo-American Political Relations, 1675–1775 (New Brunswick, 1970) 92–108Google Scholar; Katz, Stanley Nider, Newcastle's New York: Anglo-American Politics, 1732–1753 (Cambridge, Mass., 1968)CrossRefGoogle Scholar.

61. Among DeLancey's particularly important commercial ties to England was his role as New York agent for his English brother-in-law, Vice Admiral Sir Peter Warren, the largest source of credit independent of trade in the colony during the middle of the eighteenth century. See Julian Gwyn, ‘Private Credit in Colonial New York’, supra note 53. After DeLancey's political career began taking up all his time, he relinquished the role to his brother Oliver DeLancey, his partner John Watts, and his political ally Richard Nicholls. DeLancey became even more powerful in New York politics than Morris had been. He is regarded as the most influential man of his time in New York, wielding power—through the legislative, judicial, and executive branches alike—at least equal to that of any Crown-appointed governor of the province.

62. With few exceptions, the families who had been DeLancey's major supporters in the 1730s sided with the Crown in the 1760s and 1770s, while the Morris-Livingston people of the 1730s later sided with the patriots. The DeLancey people, whose ties to England were not only commercial but also social, politcal, and religious (most of them were Anglicans), were largely from the New York City area, where the colonists generally took a Loyalist position during the revolutionary war. In contrast, the Morris-Livingston people (whose religious affiliation was heavily Presbyterian) came from the outlying counties (including Suffolk) which generally took a pro-Revolution stance in the 1760s and 1770s. See Patricia V. Bonomi, Factious People, supra note 60. See also Launitz-Schürer, Leopold S. Jr., Loyal Whigs and Revolutionaries: The Making of the Revolution in New York: 1765–1776 (New York, 1980)Google Scholar; Dan R. Gerlach, Philip Schuyler, supra note 58; and Flick, Alexander C., Loyalism in New York During the American Revolution (New York, 1901)Google Scholar. Flick suggested that the increasingly strong relevance of religion helps explain some shifts in alliance between the 1680s and the 1740s, such as the Livingston and Schuyler families, who had taken the ‘aristocratic’ side against Jacob Leisler in 1689 but sided against the Crown in the eighteenth century. On the close tie between colonial merchants and England, see Schlesinger, Arthur M., The Colonial Merchants and the American Revolution, 1763–1776 (New York, 1918)Google Scholar.

63. Eugene R. Sheridan, Lewis Morris, supra note 59 at 125–26.

64. Patricia V. Bonomi, Factious People, supra note 60 at 144–45. Political use of a county legal system has been described by David Armour:

During its long history the Dutch of Albany had become a close knit group and knew how to handle troublesome outsiders. They had two mechanisms for making their antagonism felt—control of the courts and control of taxes. The partiality of the Albany courts was notorious. Juries' decisions tend to correspond to the popular opinion of the locality and even as the juries in the colonial coastal cities seldom brought in convictions for the King in customs cases, so the juries in Albany county seldom favored an Englishmen over a Dutchmen. Control of the courts gave the Albany magistrates a tremendous power of harassment. By invoking little known laws, they entrapped the unsuspecting English merchants. If by chance a few Dutchmen were enmeshed in the process, the juries could be counted upon to free them. In 1756 the magistrates began enforcing an act prohibiting selling rum to the Indians. William Corry, one of the recent English arrivals, complained to William Johnson that ‘they picked out all the Strangers from one end of Albany to the other with much discretion and Judgt. but the persons that might be really suspected of the right breed they passed over.’ Two English merchants, Alexander McCoy and William Taylor, were convicted and fined fifty pounds plus costs while a Dutchman named Cooper, though admitting that he had violated the act, was freed as had been two Dutch women a year earlier.

Armour, David Arthur, ‘The Merchants of Albany, New York: 1686–1760’ (Unpublished dissertation, Northwestern University, 1965) 261–62Google Scholar.

65. On the existence of class consciousness and class conflict in colonial America see Young, Alfred F., ed., The American Revolution: Explorations in the History of American Radicalism (DeKalb, Illinois, 1976)Google Scholar. See in particular the following three essays: Gary B. Nash, ‘Social Change and the Growth of Prerevolutionary Urban Radicalism’, at 3–36; Edward Countryman, ‘“Out of the Bounds of the Law”: Northern Land Rioters in the Eighteenth Century’, at 37–69; and Marvin L. Michael Kay, ‘The North Carolina Regulation, 1766–1776: A Class Conflict’, at 71–123. See also Whittenburg, James P., ‘Planters, Merchants, and Lawyers: Social Change and the Origins of the North Carolina Regulation’, William and Mary Quarterly, 3rd ser., xxxiv (1977) 215–38CrossRefGoogle Scholar. On the increased polarization of American society in the decades preceding the Revolution, see Lockridge, Kenneth A., ‘Social Change and the Meaning of the American Revolution’, Journal of Social History 4: vi (1973) 403–39CrossRefGoogle Scholar; and Main, Jackson Turner, The Social Structure of Revolutionary America (Princeton, 1965)CrossRefGoogle Scholar.

66. See Hay, Douglas, ‘Property, Authority and the Criminal Law’, in Hay, Douglas et al. , Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (New York, 1975) 17–63Google Scholar.

67. Although approximately half of all cases were between people of the same occupational group (mostly merchant against merchant) and thus involved no class-based political bias, a preliminary analysis of a random sampling of litigants to determine how their experience in court varied according to occupation reveals that merchants and large landowners (‘gentlemen’), in contrast to other occupational groups, were more likely to be plaintiffs than defendants, were more likely than not to have their cases resolved, and were more likely to win in court than to lose. These results are as yet incomplete and are therefore tentative. Occupations of litigants were determined by examining wills and lists of the freemen. The foregoing have been printed in the New-York Historical Society's Collections. Volumes issued in 1885 and 1886 listed ‘The Burghers of New Amsterdam and the Freemen of New York 1675–1866’ and volumes issued from 1892 to 1908 included ‘Abstracts of Wills on File in the Surrogate's Office, City of New York, with Letters of Administration Granted’.

68. Haskell, Thomas L., ‘Litigation and Social Status in Seventeenth-Century New Haven’, 7 Journal of Legal Studies, 219–41 (1978) 238–39Google Scholar.

69. See the similar conclusions of Lawrence M. Friedman and Robert V. Percival in their article ‘A Tale of Two Courts: Litigation in Alameda and San Benito Counties’, 10 Law and Society Review 267–301 (1975)Google Scholar. Friedman and Percival studied two California trial courts for the period from 1890 to 1970. They found that during that period trial courts came to devote significantly less of their time and energy to the resolution of genuine disputes between parties and came to devote more of their time and energy to routine, administrative work, that is, to the processing or approving of undisputed matters. Their evidence of this shift focused on trends similar to those described in this article. Specifically, they pointed to a rise in uncontested judgments (mostly judgments by default), a rise in the proportion of plaintiff victories, a decline in the percentage of cases brought to trial, a decline in the percentage of trials with formal opinions, and an increase in delays and costs of litigation. They concluded that the dispute resolution function of courts was not kept alive and efficient largely because ‘[i]t is not healthy … for the economy, unless parties stay out of court except as a last resort’. Ibid, at 299. Developments which Friedman and Percival located in the twentieth century for their two California cities this study locates in the eighteenth century for the colony of New York.

70. Since juries embody the more popular element in adjudication procedures, such efforts must redound to the benefit of the upper classes at the expense of the lower. It should be noted, however, that jurors tended to be drawn from the ‘middling’ classes, not the lower classes. The juror qualification statute of 1741, for example, required all jurors to own a freehold, or in New York City or Albany a personal estate, of the value of sixty pounds. 3 Col. Laws NY, supra note 6 at 185 (1741). Thus, although jurors did represent the more popular element in adjudication procedures, they did not truly represent the unpropertied inhabitants of the colony.

71. The extensive use of jury control devices in colonial New York in both the 1690s and the 1750s contrasts with the absence of the use of such devices in colonial Massachusetts, as described by Nelson, William E. in ‘The Eighteenth-Century Background of John Marshall's Constitutional Jurisprudence’, 76 Michigan Law Review 893–960 (1978)Google Scholar.

72. A demurrer is the way of challenging the legal sufficiency of the facts pleaded by the other side. It is ordinarily raised after the conclusion of the adversary's evidence, that is, before jury verdict or judgment. A special verdict is a finding of specific facts by the jury, leaving the legal conclusions to the court. It occasionally is rendered instead of an ordinary ‘general verdict’, which is a verdict in which the jury finds for the plaintiff or for the defendant in general terms. The effect of both the demurrer and the special verdict is to make the judgment depend upon a decision of law by the judges rather than a decision of facts by the jurors. A motion in arrest of judgment and a motion to quash judgment are ways of challenging the validity of a judgment. Of these four forms of jury control devices, the demurrer was the most important. The significance of the special verdict as a jury control device in colonial New York was lessened by the fact that, unlike English courts, the New York court obtained the consent of both parties before ordering the jury to return a special verdict. A motion in arrest of judgment or a motion to quash judgment had less significance than a demurrer because they both attacked procedural irregularities (e.g., the bribing of a juror) rather than the legality of the jury's decision.

73. Of the three special verdicts, two were cases in which a party had demurred to evidence. Of the four motions in arrest of judgment or to quash judgment, one, in which the jury's verdict was upheld, was a case in which a party had demurred. In one other the jury's verdict was upheld, in one the jury's verdict was quashed for insufficiency, and one was not resolved on the record. The outcome of the case appealed to the governor and council is not shown in the minutes.

74. Wells, Jackson v., Hamlin, Paul M. and Baker, Charles E., Supreme Court of Judicature of the Province of New York 1691–1704: The Minutes Annotated (New York, 1959) 11, 19Google Scholar, 44; [hereinafter cited as H&B Mins]; Rogers v. Simmons and Brazier, ibid, at 71; Skelton v. Blagg, ibid, at 92; Hart and Bayard v. Clock, ibid, at 86; Brown and Bayard v. Clock, ibid, at 69, 70; Gysbertsen v. Miseroll, ibid, at 69, 70; Burger v. Teller and Lockerman, ibid, at 72, 94; Cook and Alsop v. Wandell, ibid, at 58; Brooke qui tam v. Barquenteen Orange, ibid, at 63, 73; and Geddis v. Russell, ibid, at 106.

75. The nature of the civil action known as the qui tam action lay somewhere between a criminal charge and a civil law suit. qui tam was a shortened form of qui et tam pro domine Rege quam pro ipso in hac pane sequitur, or ‘who sues as well for the King as for himself in this matter’. Such actions were commenced by private individuals (usually Crown agents) who collected part of the penalty paid by a defendant found guilty. Ordinarily, these actions were brought against personal property (in rem) rather than against a named person (in personam). In a typical case a ship would be seized on the grounds that it carried goods in violation of the Trade and Navigation Acts. Despite the criminal aspects of the qui tam action, it was not necessary first to obtain an indictment from a colonial grand jury before bringing the action in court. If the owner did not appear in court to defend himself, the ship and all its cargo would be forfeited. If the owner appeared in court then he would be entitled to trial by a petit jury. Thus the qui tam action avoided the grand jury but, unless the defendant failed to appear, did not avoid the petit jury, and it was therefore only a limited jury control device.

76. Brooke qui tam v. Iron Barrs, H&B Mins., supra note 74 at 59, 63; Brooke qui tam v. Barquenteen Roberts, ibid, at 55; and Brooke qui tam v. Barquenteen Orange, ibid, at 59, 61, 62, 63, 68, 73, respectively. See also discussion of the background of the last case in Paul M. Hamlin and Charles E. Baker, Supreme Court of Judicature: Introduction, supra note 32 at 163–64.

77. A bill of exception is a formal statement in writing of the objections taken by a party to the rulings or instructions of a judge during trial. If the jury's verdict turns out to be against the party who filed the bill of exception then the bill may later be the basis of a writ of error. A writ of error takes the case to a higher tribunal for reversal or affirmation after analysis of a supposed error in the law.

78. Of the two special verdicts, one involved a demurrer to evidence. In two of the three motions in arrest of judgment, the court upheld the jury's verdict, and in one the court set aside the jury's verdict for the defendant and entered judgment for the plaintiff. The court overruled the one motion for a new trial and gave judgment in accordance with the jury's verdict. One of the two bills of exception was not pursued because the jury's verdict favored the party who had filed the bill. The other was followed up by a writ of error; the outcome is not revealed in the minutes.

79. Bayard v. Williams, Mins SCJ, supra note 27, 1754–1757 at 46–47, 135, 168, 187, 272, 287, 321 and 1757–1760 at 140; Van Sinderen v. Vanderveer, ibid. 1750–1754 at 310 and 1754–1757 at 158, 273, 288; Jackson ex dem Ferdon v. Stiles and Holst, ibid. 1754–1757 at 248, 319, 322, 361 and 1757–1760 at 24, 48, 77, 138, 159, 166; Wraxall v. Gansevoort, ibid. 1754–1757 at 298 and 1757–1760 at 22; Hamlin v. Walton, ibid. 1754–1757 at 310; Delyrusche v. Murray, ibid. 1754–1757 at 152; Cuyler v. Hart and Hart, ibid. 1754–1757 at 75, 155; Blain v. White, ibid. 1754–1757 at 336 and 1757–1760 at 62; Provoost v. Gifford, ibid. 1754–1757 at 259, 283; Robey v. Dodsworth, ibid. 1757–1760 at 17; Vanderheyden v. Cruger and Cruger, ibid. 1750–1754 at 244, 314, 1754–1757 at 24, 44, 46, 76, and 1757–1760 at 62; Vanderheyden v. Cuyler, ibid. 1754–1757 at 259, 283; Maerschalk v. Ferdon, ibid. 1754–1757 at 205, 254.

80. Kennedy qui tam etc. v. 32 Whole Barrels, 162 Half Barrels and 23 Quarter Barrels of Gunpowder by Him Seized, Mins SCJ, supra note 27, 1754–1757 at 247, 251, 254, 260; Kennedy qui tam etc. v. 77 Cases of Bottles, 1 Cask of Brandy, 1 Cask of Snuff, 56 Quarter Barrels and 33 Half Barrels of Gunpowder, 23 Pieces of Duck, 6 Casks of Iron Shot, 1 Cask of Arrack, and 4 Chests of Tea, and the Sloop in Which Said Goods were Seized, ibid. 1754–1757 at 75, 77, 87, 262.

81. Morton J. Horwitz, The Transformation of American Law, supra note 4 at 141–43. Horwitz noted that ‘[t]he subjugation of juries was necessary not only to control particular verdicts but also to develop a uniform and predictable body of judge-made commercial rules’. Ibid, at 143.

82. A decline in full litigation in the courts does not even necessarily mean that the courts have lost all their influence, only that their role in dispute resolution may be more indirect. Marc Galanter, in his study of courts of the 1980s, pointed out that ‘[c]ourts contribute to the settlement of disputes less by imposing authoritative resolutions and more by pattern setting, by distribution of bargaining counters, and by mediation’. Marc Galanter, ‘Reading the Landscape of Disputes: What We Know and Don't Know (And Think We Know) About Our Allegedly Contentious and Litigious Society’, 31 University of California at Los Angeles Law Review 4–71 (1983)Google Scholar.

83. For example, Clinton Francis has described a similar trend in England beginning in the seventeenth century. See Francis, Clinton W., ‘The Structure of Judicial Administration and the Development of Contract Law in Seventeenth-Century England’, 83 Columbia Law Review 36–137 (1983) 91–94Google Scholar.

84. See Mann, Bruce H., ‘The Formalization of Informal Law: Arbitration before the American Revolution’, 59 New York University Law Review 443–81 (1984)Google Scholar; and Jones, William C., ‘An Inquiry into the History of the Adjudication of Mercantile Disputes in Great Britain and the United States’, 25 University of Chicago Law Review 445–64 (1958)Google Scholar.

85. Horwitz acknowledged the use of penal bonds even in the eighteenth century as a device to further the interests of merchants. However, he presented the device as evidence that in the eighteenth century contract law was antagonistic to the interests of commercial classes. If the legal system had truly been pro-commercial, Horwitz seems to have been saying, then merchants would have trusted the system to deal with the details of commercial disputes. Instead, merchants chose to keep the details from the court, bringing into the courtroom only agreements which left juries and judges no room for investigation and interpretation and no room for discretion in enforcement. At a time when contracts were deemed to be justified and enforceable only to the extent that the exchange was inherently just and fair—contrasting with the nineteenth century view that a contract was enforceable if it represented the converging wills of the contracting parties, whether or not the agreement was objectively fair and just—bonds were a particularly important device used by merchants to prevent juries from examining too closely the fairness of the exchange. Horwitz also maintained that the bond system really was not ideal for merchants because it had the effect of retarding the development of a law of executory contracts (that is, contracts depending on mutual promises), a necessary component of a strongly pro-commercial substantive law of contracts. Morton J. Horwitz, The Transformation of American Law, supra note 4 at 167–70.

William Nelson also concluded that colonial law did not really favor commercial interests, despite the extensive remedies given to creditors in Massachusetts. Generous treatment of creditors, he wrote, was attributable not to pro-commercial bias but to shared moral and religious beliefs that it was wrong to excuse the repayment of money owed. Furthermore, since tough creditor-debtor laws made it harder to build up the capital needed to engage in speculation, harsh treatment of debtors served to discourage risk-bearing entrepreneurs, who were regarded as a threat to the stability and unity of Massachusetts communal society. Nelson, William E., Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, Mass., 1975) 41–45Google Scholar. Eighteenth century New York did not fit this pattern of a unified, homogenous, Puritan colony.