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New York Assembly. Remarks on an Act for Settling Intestate Estates, Proving Wills, and Granting Administrations, [14 February 1787]

New York Assembly. Remarks on an
Act for Settling Intestate Estates,
Proving Wills, and Granting Administrations1

[New York, February 14, 1787]

Mr. Hamilton said that he did not rise to oppose the motion of the gentleman who last spoke.2 He should probably vote with him on the question; but he confessed he did not view it in quite so clear a light as that gentleman appeared to do. There appeared to him to be difficulties in the case, which he would candidly lay before the house to assist its judgment. The objection is that a new court is erected, or an old one invested with a new jurisdiction, in which it is not bound to proceed according to the course of the common law. The question is what is meant in the constitution, by this phrase “the common law”? These words have in a legal view two senses, one more extensive, the other more strict. In their most extensive sense, they comprehend the constitution, of all those courts which were established by immemorial custom, such as the court of chancery, the ecclesiastical court, &c. though these courts proceed according to a peculiar law. In their more strict sense, they are confined to the course of proceedings in the courts of Westminster in England, or in the supreme court in this state. If the words are understood in the first sense, the bill under consideration is not unconstitutional; if in the last, it is unconstitutional. For it gives to an old court a new jurisdiction, in which it is not to proceed according to the course of the common law in this last sense. And to give new jurisdictions to old courts, not according to the course of the common law, is in my opinion as much an infringement in substance of this part of the constitution, as to erect new courts with such jurisdictions. To say the reverse, would be to evade the constitution.

But though I view it as a delicate and difficult question; yet I am inclined to think that the more extensive sense may be fairly adopted; with this limitation, that such new jurisdictions must proceed according to the course of those courts, having by the common law cognizance of the subject matter. They ought however, never to be extended to objects, which at common law, belonged to the jurisdiction of the courts at Westminster, and which in this state are of the peculiar cognizance of the supreme court.

At common law, the ecclesiastical courts, not the courts of Westminster, had cognizance of intestacies and testamentary causes. The bill proposes that the court of Probates shall have cognizance of the same causes, and proceed in the same manner as the ecclesiastical courts, except as to inflicting ecclesiastical penalties.

This distinction I have taken, will I am inclined to think, bear us out in passing the bill under consideration.

But it is certainly a point not without considerable difficulty.3

The [New York] Daily Advertiser, February 16, 1787.

1“An act for settling Intestate Estates, proving Wills, and granting Administrations,” after amendment by the Senate, was passed by the Assembly on February 2. On February 14, the Assembly received the objections of the Council of Revision to the act. The council objected to the sections of the act which gave the judge of probates authority to hear and determine cases involving legacies or bequests. The council maintained that the Assembly was granting the Court of Probates new powers, a grant contrary to the state constitution. The council argued that facts in a litigation must be submitted to the determination of a jury. It concluded that granting the judge of probates the authority to determine cases without a trial by jury “is depriving the citizens of this State, of a right secured to them, and rendered inviolate by the Constitution, which declares the trial by jury as a firm and unalterable establishment, in all cases where it had been used while this State was a Colony; and is also an indirect infringment of that clause of the constitution, which prohibits the institution of any new courts, but such as shall proceed according to the course of the common law” (New York Assembly Journal description begins Journal of the Assembly of the State of New York (Publisher and place vary, 1782–1788). description ends , 1787, 49).

2Samuel Jones argued that the Assembly, despite the objections of the Council of Revision, should pass the law.

3The Assembly, by a vote of more than two-thirds, overrode the objections of the Council of Revision (New York Assembly Journal description begins Journal of the Assembly of the State of New York (Publisher and place vary, 1782–1788). description ends , 1787, 49).

The act was passed under the date of February 20. See Laws of the State of New York, I description begins Laws of the State of New York Passed at the Sessions of the Legislature Held in the Years 1777, 1778, 1779, 1780, 1781, 1782, 1783 and 1784 Inclusive, being the First Seven Sessions (Albany, 1886). description ends I, 419–24.

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