JAMES RENWICK, LL.D.

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CHAPTER VIII.

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Important Laws drawn by Clinton while Senator. – His Opinions as a Member of the Court of Errors. – He Receives a Challenge for words spoken in Debate. – His Manly and Dignified Conduct on that Occasion. – Attempt at Corruption in obtaining the Charter of a Bank.

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Clinton continued to be a Senator of the State until 1811, when he was elected lieutenant-governor, and thus called to preside over the deliberations of the body of which he had so long been a member. We have already seen that he was the mover, and influential in procuring the passage, of many important acts. Among others, which were also drawn by him, and which are of sufficient moment to be recorded, are:

An Act to provide for a State Arsenal.

An Act relative to the fortifications erecting by the state.

An Act for laying out Canal-street in the city of New-York.

An Act respecting a digest of the public laws of the state.

An Act to enlarge the powers of the Orphan Asylum Society.

An Act to amend the insolvent laws.

An Act to prevent the inhuman treatment of slaves.

An Act to prevent the farther introduction of slaves.

An Act for the support of the Quarantine establishment.

An Act to incorporate the New-York Missionary Society.

An Act to revise and amend the militia laws.

An Act to incorporate the society for the relief of poor widows with small children.

An Act for promoting medical science.

An Act respecting the Free-school Society.

An Act for the partition of Haerlem Commons.

An Act concerning the Onondago Salt-springs.

An Act for the farther encouragement of free-schools.

An Act for the better protection of sheep.

An Act securing to mechanics and others payment for their labour and materials in the city of New-York.

An Act to establish a register’s office in the city of New-York.

An Act to set apart certain apartments in the Capitol for public purposes.

An Act for the benefit of the Orphan Asylum (by which an annuity of $500 was granted out of the auction duties).

An Act to prevent abuses in actions de homine replegiando.

An Act for abolishing the Court of Exchequer.

An Act to prevent frauds at elections.

An Act to incorporate the Humane Society.

In introducing several of the bills which became the foregoing laws, Clinton presented able and luminous reports, or prefaced the propositions with powerful speeches. He also drew, on several occasions, the answer of the Senate to the speeches of the governor. In one of these, presented in 1810, is to be found one of the best arguments in favour of our republican institutions, with an eulogium on the excellence of that system of government "which recognises the people as the source, and their happiness as the object of all legitimate authority."

On the retirement of Jefferson from the office of president, an address was voted to him by the Legislature of New-York, which measure was proposed, and the address drawn by Clinton.

In addition to the acts which have been cited, he drew and procured the passage of others in encouragement of literary and scientific objects, as well as others in reference to internal improvements, on which subject he also wrote and presented reports. We have omitted these for the present, as we shall have occasion hereafter to examine his agency in the cause of science, and his services in promoting our system of internal improvement more at length.

The Senate, with the chancellor of the State and the judges of the Supreme Court, formed, and still form, a tribunal of ultimate resort, under the name of the Court of Errors. This tribunal is of great value among our institutions, as it not only furnishes the means of cool and deliberate adjudication in points of law, but, from its mixed character, affords a means of correcting so much of the common law as, by the progress of society, becomes unsuited to the existing state of things, and of substituting principles of broad and universal application for the mere technicalities of legal forms. In the deliberations of this tribunal Clinton bore an important share.

As early as 1802, when serving for his first term in the Senate of the state, he delivered an opinion on a most important question, and settled the law on that subject. The trade of the United States had become an object of pillage to both belligerants, and this pillage was legalized by the decisions of petty admiralty courts, which rarely failed to find pretences for condemnation. The merchants sought protection by insurances at exorbitant premiums, but were likely to derive no advantage from this precaution. The English judges had decided that the decrees of admiralty courts were not open to revision; and thus, when the assigned cause of condemnation was not among the risks expressed or implied in the policy, the sufferer would have had no redress had this principle been adopted as a part of the common law of the State of New-York. The inferior tribunals, governed by the English decisions, refused to inquire whether the assigned cause of condemnation were true or false; and, as such pretended cause was of course one which was inconsistent with an observance of neutrality, the policies could not have been recovered.

When these questions came before the Court of Errors, it decided that the decisions of courts of admiralty were, like those of other tribunals, open to examination. The very act of pillage and oppression, which had before been a bar to the recovery of the loss, was thus made a risk which could be covered by insurance. The proceedings in the American courts under this decision could be made the grounds of a claim for indemnity to the underwriters from the foreign government; and this opinion of Clinton’s has, after the lapse of upward of thirty years, been the direct cause of a claim being successfully urged against the French government for the spoliations committed by Napoleon. Had the American courts of law admitted, even by implication, the justice of the decrees of the admiralty tribunals, it must have been a bar to any redress, except in the small list of cases in which even the mockery of legal process had been dispensed with. In the negotiations which continued for so long before redress was obtained, the French diplomatists drew, on this very ground, a broad distinction between the two sets of cases; and, could they have supported their argument by the adjudication of American tribunals, it is not difficult to believe that all indemnity would have been refused. In this decision, therefore, Clinton not only conferred an immediate benefit on the mercantile community, but paved the way for the indemnification of the underwriters.

In 1807 another case of great importance to the merchant was decided in the Court of Errors. In this Clinton delivered the opinion concurred in by the majority of the court, in opposition to the view of the judges. At that time American citizens were permitted to own vessels, which, from being of foreign build, or having lost their national character by capture and condemnation, were not entitled to be registered. To secure such property from capture, the executive of the United States had directed the officers of the customs to furnish them with papers under the name of sea-letters. A law of Congress had subsequently enacted, that the evidence of ownership should be afforded by a paper called a passport. In the practice of the custom-house, the papers furnished first under the executive instructions, and subsequently under the laws, were made identical. Thus, while the mercantile community continued to call the document a sea-letter, the custom-house issued it under the law authorizing the granting of passports. In a case arising out of this confusion of terms, Clinton led the decision of the Court of Errors by an opinion in which the broad principles of justice triumphed over the narrow views of legal interpretation.

During the same session, a case arose involving the nicest technicalities of special pleading; and here Clinton exhibited as much knowledge of the logic of legal argument, as he had, in the former case, shown of the basis of natural right on which alone laws ought to be founded.

An estate of great value in the neighbourhood of New-York, left by Nicholas Cruger to his heirs, had unluckily become the subject of litigation. The widow had married again, and his children by a former marriage naturally felt indignant at seeing the property of their father likely to be thus diverted to strangers to his blood. The case was involved in great difficulty, in consequence of one of the largest pieces of real estate having been leased for the term of two joint lives and that of the surviver. It became necessary, therefore, in the valuation for a division, to introduce the estimate of the probabilities of life. Clinton discussed this complicated subject with his usual ability. It is unnecessary, however, for us to enter into the merits of this case, for means were found to continue the litigation; and the suit was not finally settled until the dropping of both the lives rendered all that had been done useless.

The law of libel in the United States has undergone great alterations, in order to conform it to the spirit of our institutions, from the strict rule which the British common law has sanctioned, that "the greater the truth the greater the libel." In that country, to publish even the truth in respect to parties of distinguished rank becomes a crime of no little magnitude; and even among equals the truth of the publication is no plea in mitigation of the punishment awarded to a libel as a crime, however strongly it may influence a jury in the estimate of damages in a civil action. A suit commenced against the notorious Cheetham was carried up to the Court of Errors in 1805, and afforded Clinton a farther opportunity of exhibiting his judicial acumen.

His last decision was in the case of John Van Ness Yates. This person had been committed by Chancellor Lansing for an alleged contempt of court, and had been released under a writ of habeas corpus by a process at common law. No sooner was he freed from imprisonment than he was forthwith recommitted by the chancellor. He, in consequence, brought an action against that high judicial officer for damages, and was defeated on a point of law in the Supreme Court. In attempting to remove the cause by a writ of error from the Court of Errors, he was met by an order of supersedeas from the chancellor, and his proceedings were stopped. The question was, however, brought in the form of a suit between Yates and the State before the Court of Errors, which decided, in conformity with an opinion delivered by Clinton, that the writ of error issued of right, and could neither be withheld at the pleasure of a judge, nor stopped by any process issuing from the Court of Chancery. The importance of this decision is manifest, and the opinion of Clinton is marked by a profound knowledge of the history of the common law, and an acute perception of the variations which the peculiar nature of republican institutions must necessarily introduce into it.

In the words of that distinguished jurist Chancellor Kent, "some of these opinions are models of judicial and parliamentary eloquence, and they all relate to important questions affecting constitutional rights and civil liberty."

While a member of the Senate, Clinton had an opportunity of vindicating the freedom of debate, and maintaining the immunity of members of a legislative body from personal responsibility for words spoken in its deliberative proceedings. On the discussion of a law for granting the right of holding real estate to certain aliens, Clinton felt it his duty to comment on the conduct of one of them to his tenants. It is to be remarked, that the grant of such privilege is contrary to the policy of most other countries, and that Great Britain in particular, to whose subjects such grants have most frequently been made by the State of New-York, has been the most illiberal in its escheats of the inheritances, which, in natural course, would have passed to foreigners. The person whose conduct was commented upon sought what is styled satisfaction for the attack by sending a challenge. Such is the code of modern honour, that he seems to have calculated almost with certainty that Clinton, who had not yet abjured its bloody rule, would not have hesitated to give him a meeting. It had indeed been the practice, in too many instances, to submit disputes to a decision by arms; and the immunity of legislators for words spoken in debate was not regarded in the courts of honour.

There are, no doubt, instances where attacks on character become cowardly when shielded by parliamentary privilege; but this was not one. The facts stated were no more than the simple truth, and the case called for their disclosure. Men of less moral courage than Clinton might, however, have hesitated, and feared a loss of reputation from refusing a challenge; and it has been often remarked, that a greater of degree of cowardice has been shown in the acceptance than would have been exhibited in declining to fight a duel. The fear of "the world’s dread laugh" is often greater than that of loss of life, and has in many instances prevailed over the obligations of morality and religion. It was, in fact, necessary that some person of standing and reputation, equal to Clinton, should interpose the authority of his example to correct the mistaken notions of honour which prevailed.

It was, fortunately, unnecessary for him to exhibit proofs of personal courage. He had, on another occasion, done all that the nicest casuist in points of honour could have demanded; and although his lending his countenance to the practice of duelling is, if capable of any excuse, not to be vindicated in the eye of religious feeling, he had established a character for undaunted bravery.

Clinton, on a full view of the subject, saw that he was precluded from giving his challenger a meeting by considerations other than those of bare privilege. He therefore laid the whole matter, without delay, before the Senate. The parties concerned in the challenge were forthwith committed to the custody of the officers of the house, whence they were not discharged until they had made an humble apology for the breach of privilege.

So high did parties run, and so completely did they blind one portion of the community to a true perception of the matter, that much blame was at the moment poured upon Clinton for a course, a deviation from which must have loaded him with severe censure, and left an indelible spot on his fame. The acceptance of the challenge would have placed his adversary on the vantage ground, and, whatever had been the result, Clinton would have fallen in the estimation of the thinking part of the community.

At the present day, no difference of opinion on this point exists. It is admitted on all hands, that Clinton on this occasion not only maintained with intelligent firmness the freedom of debate and the privileges of the deliberative body of which he was a member, but pursued the course most consistent with his own reputation and the dignity of his character.

On another occasion, he vindicated with signal determination the dignity of the body of which he was a member. The privilege of banking, under an act of incorporation, had hitherto been granted by the Legislature with great parsimony. In the city of New-York, no more than one bank had received the direct sanction of that body, and another had exercised the powers by a free construction of privileges granted avowedly for a very different purpose. It is foreign to our purpose to compare this rigid course with the open and liberal plan which has recently been introduced; it is sufficient to say that a charter was of great value on account of the difficulty of procuring it. In the attempt to obtain an act of incorporation for a new bank, money, promises, and other means of corruption were not spared. Among other agents, a member of the Senate itself was not free from suspicion of acting from corrupt motives, and was notoriously the channel by which others were tempted. As soon as Clinton became aware of the circumstances, he moved an inquiry into the conduct of his colleague, and, after some proceedings in prosecution of this inquiry, the senator found it expedient to resign his seat rather than incur the consequences of an examination.

Clinton thus boldly attempted to stem at its source that current of corruption which afterward degraded the state, and gave birth to that third estate, "the lobby," which, although unknown to the constitution and the laws, has at times controlled the actions of the constituted chambers.

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Transcribed from the original text and html prepared by Bill Carr, last updated 12/10/99.