Remaking Constitutional Tradition at the Margin of the Empire: The Creation of Legislative Adjudication in Colonial New York

Abstract

In 1750, Archibald Kennedy condemned New York's legislators for their radical constitutional innovation. “They take upon themselves to be the sole judges,” he stormed, and “‘insist… that no order for publick money shall issue, till their judgment has been obtained for it.’” Kennedy meant the charge literally. For almost half a century, New York legislators had preserved their power over the purse by determining claims made against the colony for money. In an arrangement sharply at odds with later legal doctrine on the separation of powers, the legislature—not the courts—had since 1706 settled contract claims for services and materials, demands for military pay and salaries, calls for compensation for the impressment of property, petitions for disability pensions, and a range of other claims.