Late Colonial-Era New York City Lawyers and the Building of a Provincial Legal Community

By Sung Yup Kim 

Reflecting the two lawyers’ routine collaboration, a 1764 letter from Peter Silvester to John Tabor Kempe discusses several ongoing legal affairs. The New York Public Library Digital Collections.

From the early 1760s to the eve of the Revolution, Albany lawyer Peter Silvester and Attorney General John Tabor Kempe collaborated on at least a dozen cases in the colony of New York. On many occasions, Silvester acted as a de facto agent for the New York City-based Kempe, sometimes assisting the latter in his public duties as attorney general of the colony. When Kempe needed information about an Albany resident charged with assaulting a neighbor, for example, Silvester examined the local court minutes to check if the person had any criminal record, or if there were outstanding charges against him in any of the local courts. When Kempe wanted to ensure that the sheriff of Albany would serve a warrant upon a public offender known for evading justice, Silvester took it upon himself to personally “put [the writ] into the hands of the sheriff.”[1]

Silvester’s collaborations with Kempe went beyond providing essential information and services. When John Van Alen of Albany sought to sue the late sheriff Harmanus Schuyler for having unjustly arrested and detained him, he decided to retain both Silvester and Kempe as his attorneys. Van Alen especially wanted Kempe’s services, but was unwilling to bear the hefty cost of having him travel to Albany. The solution was to hire Silvester, who was already “concerned for” Van Alen, to work as Kempe’s proxy — he would represent Van Alen in the circuit court at Albany where the case would be tried, but closely in accordance with “directions” given by Kempe.[2] Handling that business called for experience and local knowledge, as evidenced in the way the dispute was resolved. After several meetings between the plaintiff and defendant arranged by Silvester, Van Alen agreed to discontinue the lawsuit if Schuyler would pay all the costs. Schuyler was agreeable to the proposition, but he first wanted an assessment of the costs, which Silvester provided — the total costs including court fees and attorneys’ fees would be somewhere between fifteen and twenty pounds, according to his “ruff calculation.” Schuyler found the sum payable, Van Alen withdrew his charge, and a costly trial was avoided.

Silvester’s role was essential in making the settlement possible. Not only was he well acquainted with both parties thanks to his years of practice in Albany, his experience in the local courts also enabled him to give a reasonable estimate of the court fees that would be assessed. Since Van Alen’s complaint had already been submitted to the clerk’s office, fees were charged even though a settlement had been reached before the court’s session.[3] Also important was the fact that Silvester was capable of securing Kempe’s considerable “council fee,” which the latter expected to receive even if the dispute did not proceed to a trial.[4] If no one had informed the parties of this, not to mention give an estimate of Kempe’s fees and ultimately collect the money on his behalf, the settlement could have easily gone astray.[5]

Among the handful of New York City lawyers who gained prominence throughout the province in the 18th century, Kempe was perhaps an especially frequent collaborator with local attorneys, but far from the only one. While official court records give the impression that litigants generally retained a single attorney, correspondence between lawyers reveal that behind the scenes, litigants with means often hired a pair of lawyers in informal but nonetheless routinized arrangements, in which one lawyer handled the trial while the other served either as counsellor, agent, or a mixture of the two roles. To those litigants who could afford it, pairing a local attorney with an elite lawyer based in New York City made great sense. By the mid-18th century, the latter had gained a solid reputation for superior legal expertise, but it was costly, if not practically impossible, to have a New York City lawyer travel all the way to a county court for a single case. Especially since many lawsuits dragged on for several sessions, litigants would have found the burden of funding and coordinating a New York City lawyer’s commute insurmountable.[6] Local attorneys did not pose this problem, but they might not instill as much confidence in their clients, especially if the case at hand involved high stakes.

Many local attorneys rooted their business in their neighborhoods simply because they were not allowed to practice outside of their respective counties. Some of them would go on to obtain license to practice throughout the province, an admission largely dependent on the elite lawyers’ and judges’ approval, but many more failed to do so. As in England during the same era, New York’s amateurish local attorneys, or “pettifoggers,” were frequently derided for their lack of proficiency.[7] Nonetheless, by the mid-18th century even local attorneys had generally received some amount of formal training. Peter Silvester, for instance, trained several apprentices who went on to practice in Albany or adjacent counties.[8] The commonplace book of Benjamin Hilton, a protégé of Silvester, contains more than six hundred dense pages evidencing his years of training, during which he closely studied common law doctrines, provincial statutes, and both English and provincial precedents, many of which were drawn from Silvester’s practice in Albany.[9]

By pairing a New York City-based and local lawyer, then, a client could benefit from both the former’s superior legal knowledge and the latter’s proximity to the client and local courts — that is, assuming that the lawsuit remained in the local court. The equation changed if the lawsuit moved to a court in New York City — for instance, from a county court of common pleas to the Chancery or Supreme Court of the province. Then it made more sense to have the New York City lawyer work as the main trial attorney. A local attorney could still be very useful in these situations, especially if he had already been representing the client in the local court. He could facilitate communication between the client and the New York City lawyer, and could also supply the latter with relevant documents and information culled from local sources. 

William Hogarth’s Hudibras and the Lawyer, portraying an early-18th-century English lawyer’s office. By the mid-18thcentury, New York City lawyers, accompanied by apprentices, typically conducted business in similar offices. Digital Collection, The Metropolitan Museum of Art

Taking place before the era of law firms and broadened availability of forum shopping, colonial-era lawyers’ exploratory collaborations reveal a hidden but important dimension of the American legal profession’s rapid growth during the second half of the 18th century.

Legal historians have noted both the “Anglicization” and “Americanization” of the British North American colonies’ legal culture during the 18th century. The emergence of “home-grown” lawyers was central to the seamless combination of the two processes, as these lawyers increasingly drew upon sophisticated knowledge of the common law to regularize legal practice throughout the colonies, while simultaneously stressing the need to adapt English law to provincial circumstances. In several colonies, provincial lawyers gained firm institutional control over the training and licensing of new practitioners, ultimately filling the judgeships and clerkships of provincial courts with men of their ilk. A leading example of this trend was New York’s NYC-centered legal community. According to the bar agreement the city’s leading lawyers pushed through in the mid-century, aspiring lawyers were required to clerk for a certain period in one of the New York City lawyers’ offices, and obtain their approval in order to practice in the province’s highest courts.[10]

In the early part of the 18th century, however, the elite lawyers’ influence barely extended beyond the central courts in each colony’s seat of government. New York was no exception. County courts and local magistrates’ courts were largely left to their own devices, sealed from the world of professionalized law. That situation began to change in the middle of the century, not because the leading lawyers enhanced their numbers or began to appear more frequently throughout the colony’s courts — indeed, the lawyers’ own restrictive bar agreement ensured that this would not be the case. Rather, New York City lawyers’ influence began to expand largely due to the emergence of a sizeable army of local attorneys practicing outside of the city.

As lawyers such as Silvester and Kempe together strove to help clients straddle jurisdictional boundaries, they discovered both greater reason and better means to network with each other. The growing frequency of such collaborations induced lawyers throughout the province to exchange a wide variety of legal records, notes, and opinions. The expanding body of provincial legal knowledge, in turn, bolstered the New York City lawyers’ role as the nerve center of a dense network of professional communication, education, and collaboration. The voluminous briefs, declarations, pleas, and other writs they prepared for provincial lawsuits were copied and shared among other lawyers, studied by their apprentices, and cited as authority in provincial courts. Standing atop a hierarchy of closely interconnected legal professionals, by the mid-18th century New York City lawyers could confidently claim authority as the province’s “gentlemen of the law.”

With their enhanced confidence, New York City’s leading lawyers went on to claim authority to reshape the colony’s courts. An especially problematic aspect of colonial New York’s judicial system, from their perspective, was its heavy reliance on lay magistrates with little or no formal training. The very reason New York’s legislature greatly enlarged the jurisdiction of individual justices of the peace, in fact, was to help litigants avoid costly lawsuits at county- and higher-level courts — courts in which, thanks to the growing influence of the legal profession, litigants could no longer expect a favorable decision without good, but expensive, legal representation.[11] For New York City’s lawyers, nonetheless, the statutory enlargement of the jurisdictions of justices of the peace was an unnecessary and dangerous “innovation” upon the English legal system. In a closely argued petition against the statute, submitted to the colonial legislature in 1757, the lawyers articulated their vision of a provincial legal system controlled by a well-ordered and self-regenerating community of professional lawyers.

The Law is a Science which by its particularity, is become so vastly extensive, that a long and various Train of Practice, is necessary to qualify a man to appear in it, with Honour to himself, or Safety to his Clyent. The County Courts have been the common School, in which young Gentlemen have made their first Essays, and prepared themselves for Business of greater Importance in the Superior Courts. If the Publick therefore is concerned in the Abilities of the Professors of the Law, and the County Courts tend to encourage the Young Practisers, and perfect them for Management of Causes of Moment in the Supream Court, we assure ourselves that this House, will not consent to a Bill, which by abridging the Business of the Common Pleas, opens a door for the Introduction of Ignorant Pretenders, into the most important and supreme Judicatories, to the Disgrace of the Profession and the publick Detriment.[12]

A leading voice among New York City’s lawyers in the mid-18th century, William Livingston actively promoted higher standards of legal education and practice throughout the colony. The New York Public Library Digital Collections.

As self-conscious leaders of the provincial legal community, the “professors of the law” held themselves responsible for preventing a “disgrace of the profession.” More was at stake than just reputation, however. By the mid-18th century, the legal elite had become well aware that young, aspiring local attorneys were an important pillar of the legal community — their activities helped extend the reach of professionalized law throughout the province, and thereby also contributed to the collective authority and influence of the legal profession. By reducing their business in the county courts, the statutory enlargement of the civil jurisdictions of justices of the peace (often called the “Five Pounds Act”) threatened to stymie the growth of local attorneys, and hence undermine both the overall strength of the legal community and the influence of New York City’s leading lawyers.

If the petition bears witness to the legal elite’s confident leadership, the circumstance that occasioned their collective action betrayed the fact that outside the legal community, their leadership was not always welcomed. The increased collaboration between local attorneys and New York City lawyers, a key pillar of the growing lawyerly network and influence, was itself part of the problem. Those collaborations were enabled by wealthy clients who could afford the costly and exclusive services of a team of lawyers. And from their perspective, the very point in expending such costs was to exploit their adversaries’ perceived lack of comparable resources. Unsurprisingly, some New Yorkers began to believe that the lawyers’ growing influence was inimical to an equitable system of justice, prompting at least one opportunistic political faction to curry popular favor by capitalizing on anti-lawyer sentiment.

In pre-revolutionary New York, that faction was the New York City-based DeLancey party. Upon winning a majority in the provincial legislature in 1768, following a vigorous anti-lawyer campaign characterized by their catchphrase “no lawyer in the assembly,” the DeLancey party awarded supporters with several acts intended to circumscribe the influence of lawyers. Although later repealed by the Crown, the legislature at one point increased the civil jurisdiction of individual magistrates to ten pounds (doubling the threshold of the controversial Five Pounds Act), barred lawyers outright from appearing in magistrates’ hearings, and imposed stringent conditions on appeals against magistrates’ decisions.[13] The legislature also more than doubled the lower threshold of lawsuits that could be brought to the colony’s Supreme Court, now requiring lawsuits to carry a minimum value of fifty rather than twenty pounds.[14] The act was clearly designed to limit the scope of lawyer-abetted forum shopping.  

Historian Daniel Hulsebosch argued that New York lawyers, by gradually transforming the British Empire’s jurisdictional regime into a nationwide jurisprudence of universal legal doctrines, helped interconnect far-flung corners of the early United States into an “empire of law.”[15] Without necessarily disagreeing with Hulsebosch, more recently Saul Cornell and Gerald Leonard stressed that as important as the thrust of lawyerly constitutionalism was, the popular backlash against it, from anti-federalism and Jeffersonianism to Jacksonian partisanship, was an equally powerful shaper of the early republic’s ever-contentious “constitutional politics.”[16] What we see in the pre-revolutionary New York City lawyers’ incipient network-building and its political ramifications, then, is one of the earliest instances of the dynamic of legal change and contestation that would characterize post-revolutionary American law and politics.

A historian of the British American colonies and the early United States, Sung Yup Kim investigates legal change and its social and political ramifications during the long eighteenth century. He teaches U.S. history, early modern legal history, and global histories of race and colonialism at Seoul National University.

[1] Peter Silvester to John Tabor Kempe, Feb. 25, 1763, Apr. 2, Oct. 11, 1764, John Tabor Kempe Papers, New-York Historical Society, New York, Box 14, Folder 5.

[2] John Van Alen to John Tabor Kempe, May 14, 1772, Ibid., Box 14, Folder 8; John Tabor Kempe to John Van Alen, May 8, 1772, Ibid., Box 15, Folder 6.

[3] Peter Silvester to John Tabor Kempe, Jul. 14, 1773, Ibid., Box 14, Folder 5.

[4] John Tabor Kempe to John Van Alen, May 8, 1752, Ibid., Box 15, Folder 6.

[5] John Tabor Kempe to Peter Silvester, Sept. 18, 1772, Ibid., Box 15, Folder 5.

[6] Sung Yup Kim, “‘The Surest Support of Their Enormous and Iniquitous Claims’: Legal Expertise and Land Acquisition in Late Colonial New York,” Pennsylvania History: A Journal of Mid-Atlantic Studies 85: 2 (2018), 208-211.

[7] William Livingston et al., The Independent Reflector, Or, Weekly Essays on Sundry Important Subjects, More Particularly Adapted to the Province of New-York (Cambridge, MA, 1963), ed. Milton M. Klein, 299-304.

[8] Herbert Alan Johnson, John Jay, Colonial Lawyer (New York, 1989), 91; Stefan Bielinski, Abraham Yates, Jr., and the New Political Order in Revolutionary New York (Albany, 1975); E. B. O’Callaghan, Calendar of New York Colonial Commissions, 1680-1770 (New York, 1929), 47, 50, 53.

[9] Benjamin Hilton, Jr., His Book of Entries both for the Student and Practicer of the Law, Ms. New York State Library, Albany, NY.

[10] John M. Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts” in Stanley N. Katz and John M. Murrin, ed., Colonial America: Essays in Politics and Social Development (New York, 1983), 540-571; William Edward Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 (Cambridge, Mass., 1975); Milton M. Klein, The American Whig: William Livingston of New York (New York, 1993); Eben Moglen, “Settling the Law: Legal Development in New York, 1664-1776” (Ph.D. Diss., Yale University, 1993), 29–31, 59-61

[11] Sung Yup Kim, “‘In a Summary Way, with Expedition and at a Small Expence’: Justices of the Peace and Small Debt Litigation in Late Colonial New York,” American Journal of Legal History 57: 1 (2017), 1-35.

[12] Journal of the Legislative Council of the Colony of New York, 1743-1775 (New York, 1861), II: 1325-1326.

[13] Ibid, II: 1698; Colonial Laws of New York, 5 vols. (Albany, 1894), IV: 1079.

[14] Ibid, IV: 1088-90.

[15] Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830 (Chapel Hill, N.C., 2005).

[16] Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge, UK, 2019).