Thomas Hadden, accused of knowingly passing counterfeit money, had been subjected to a long confinement in the Ulster county jail. On October 1, 1777, he sought a writ of habeas corpus from Chief Justice John Jay and Associate Justices Robert Yates and John Sloss Hobart. The petition was denied by the Judges on the ground that although the justices had been appointed to office by the Constitutional Convention, the law required that their appointments be approved by the Council of Appointment at its first session. The first session of that Council had been held but had neither approved nor disapproved the judicial appointments. As a result, the justices had no power to act.
The following day, Hadden submitted a petition to the New York State Assembly setting forth these facts, and showing that, prior to the adoption of the new constitution, he had made frequent applications to both the Convention and Council of Safety for his release. Because neither the Convention nor the Council of Safety had acted on his petition due to "their constant attention to objects of greater and more general importance" and because the judges newly appointed by the Convention were unable to act:
Your Petitioner [Hadden] therefore applies to you as the grand Inquest of this State for a Redress of Grievances, and deeply Interested In the free Constitution of his Country, he begs Leave to observe to your Honorable House, that the Channels of Justice are Stopped up In this Land, and the Subject deprived of those Benefits which flow from a due Execution of the Laws. Wherefore he calls upon you the Guardians of the people of the State of New York to assert & vindicate their rights & privileges.
The New York State Assembly immediately ordered its clerk to serve a copy of the petition on the judges, and direct that they attend the house that day at 4 o'clock in the afternoon. In reply to a question by the Speaker, the Judges agreed that the facts stated by Hadden were true and submitted a written statement of their unanimous opinion that they had no authority to issue the writ until their appointments were confirmed by the Council of Appointment. The Assembly then adopted a resolution offered by Gouverneur Morris declaring that the reasons given by the Judges for their inaction were "satisfactory" and requesting the Council of Appointment "to approve of the several officers appointed by an ordinance of the late Convention for organizing and establishing the government, agreed to by the said Convention, or to appoint others in their stead, to the end that the Governor may be enabled to issue commissions to such officers as they may so approve, or appoint."
On the 17th of October the council appointed Robert R. Livingston as Chancellor, John Jay as Chief Justice of the Supreme Court of Judicature, and Robert Yates and John Sloss Hobart associate justices of that Court.
Charles Zebina Lincoln. The Constitutional History of New York, Volume 1, p 577 (1906)
Public Papers of George Clinton, First Governor of New York, 1777-1795, p 355
The Historical Society of the New York Courts 140 Grand Street, Suite 701 White Plains, NY 10601 914.824.5863