John Jay Papers
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To John Jay from James Duane, 27 August 1784

From James Duane

[[New York] 27 Aug. 1784]

Dear Sir

I feel the disappointment in being deprived of the pleasure of your own and Mrs. Jays Company!

I now send my Judgemt1 in Mrs Rutgers’s Cause,2 & entreat you to peruse ^it^ and to give me your candid opinion whether the publication of it is likely to produce any politick advantage and whether my decisions will stand a Scrutiny— Yours most respectfully & Affectly

Jas. Duane

Honorable Mr Jay

ALS, NNC (EJ: 8612). James Duane, JJ’s friend and a fellow New York lawyer, had been appointed mayor of New York City on 4 Feb. 1784, serving until September 1789, and in that capacity presided over the Mayor’s Court of the City.

1This copy of Duane’s “judgment” of 27 Aug. 1784 is not located, but the original was subsequently printed in Arguments and Judgment of the Mayor’s Court of the City of New-York, in a Cause between Elizabeth Rutgers and Joshua Waddington, printed by Samuel Loudon (New York, 1784). It is also printed together with pertinent papers that survived the City Hall fire of 1 Sept. 1858, including pleadings and briefs by Alexander Hamilton, in Hamilton Law Practice description begins Julius Goebel Jr. and Joseph H. Smith, eds., The Law Practice of Alexander Hamilton (5 vols.; New York, 1964–81) description ends , 1: 317–419. The case is treated in Richard B. Morris, ed., Select Cases of the Mayor’s Court of New York City, 1674–1784 (Washington, D.C., 1935), 302–27.

2Rutgers v. Waddington was the leading case to test the validity of the Trespass Act passed by the New York state legislature on 17 March 1783 (Laws of New York, 6th Sess., 1783, p. 283; Early Am. Imprints description begins Early American Imprints, series 1: Evans, 1639–1800 [microform; digital collection], edited by American Antiquarian Society, published by Readex, a division of News-bank, Inc. Accessed: Columbia University, New York, N.Y., 2006–11, http://infoweb.newsbank.com/ description ends , no. 18060) and repassed over a veto by the Council of Revision. It enabled those who had fled from the enemy to sue for trespass to their real or personal property during their absence; deprived defendants of the right to plead in justification any military order or command of the enemy for the occupation or destruction of the property; and held that, if suit were brought in any inferior court, it was to be therein finally determined. The widowed Elizabeth Rutgers brought suit against Benjamin Waddington, a New York merchant, claiming rent for the entire period of the occupation of her abandoned brewery. In addition to Duane, JJ’s friends or relatives were closely involved in the case. Of counsel for Mrs. Rutgers were Robert Troup, JJ’s former law clerk, and JJ’s long-time friend and correspondent, the New York attorney general Egbert Benson. Of counsel in behalf of Waddington were Alexander Hamilton and JJ’s brother-in-law Henry Brockholst Livingston.

In its decision the court straddled the major question: Was an act of the legislature in derogation of the Treaty of Peace with Great Britain valid? As a concession to strong anti-Loyalist sentiment, the court allowed the plaintiff damages for the period, 1778–80, when the defendant had occupied the brewery under license from the British commissary-general, who had acted ultra vires. However, Duane denied damages for the period 1780–83, when the defendant had occupied the property under license from the British commander-in-chief Sir Guy Carleton, in effect annulling the Trespass Act and anticipating judicial review.

The decision evoked a storm of protest among anti-Loyalist groups, including a resolution of censure from the state legislature (New York [State] General Assembly Journal: Votes and Proceedings of the Assembly, &c. [8th Assembly, 1st meeting, 4 Oct.–29 Nov. 1784], New York, 1784, 33 [Early Am. Imprints description begins Early American Imprints, series 1: Evans, 1639–1800 [microform; digital collection], edited by American Antiquarian Society, published by Readex, a division of News-bank, Inc. Accessed: Columbia University, New York, N.Y., 2006–11, http://infoweb.newsbank.com/ description ends , no. 18649]), and a lively debate in the press (see, especially, New York Packet and the American Advertiser, 4 Nov. 1784). More moderate minds, including JJ, agreed with George Washington who wrote Duane that “reason seems very much in favor of the opinion of the Court, and my judgment yields a hearty assent to it.” While no response of JJ to Duane’s letter has been located, the mayor wrote Washington: “Mr. Jay, Mr. Dickenson, and other great men, from public Considerations, have honor’d us with the highest Approbation. Their comments are calculated for the publick Eye, and will appear when they can do the greatest good.” Duane to Washington, 16 Dec. 1784, ALS, DLC: Washington, ser. 4; and Washington to Duane, 10 Apr. 1785, ALS, NHi: George and Martha Washington Papers; PGW: Confederation Series, 2: 187–89, 485–88.

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