A history of Long Island, from its earliest settlement to the present time, Part 113

Author: Ross, Peter. cn
Publication date: 1902
Publisher: New York ; Chicago : The Lewis Publishing Co.
Number of Pages: 1188

USA > New York > A history of Long Island, from its earliest settlement to the present time > Part 113

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NOTES AND ILLUSTRATIONS.

prosecute from time to time for above Three Years, I know not any Law the Action is grounded upon, but Consequence or Pretence ; for I have not done any thing in that Case, but what is according to the Laws and Customs of the Colony, it is a common Saying, where there is no Law there is no Transgression; and in this case I do not see how any can give Judg- ment against me, if he have Regard to the for- mer Governors Grant, the Law of this Colony, the Governours Instructions from the King, Reason and a publick Good of the Subjects, which is the End of all good Laws: I query, what Judgment and Penalty shall be put upon any of their Majesties Subjects, that have not done any thing contrary to Law and Custom, but consonant to both, and only made use of an Antient Custom and Usage confirmed by Patent, Law and their Majesties Instructions : I have not done any thing but used a particu- lar Custom, as I take it to be neither against the Law of God nor the Law of Reason, and to be good and necessary to the Common- wealth.

I understand, within the Realm of Eng- land, a General Custom is to be decided by the Justices, which I take to be the Twelve Judges : But if not, I suppose it must be more than One single Person : but in a particular Custom (as this is) the Student at Law saith, If it be not against the Law of God nor the Law of Reason, although they be against the said general Customs or Maxims of the Law ; yet nevertheless, they stand in Effect and be taken for Law: But if it rise in Question in the King's Courts, Whether there be any such particular Custom or not? It shall be tried by Twelve Men, and not by the Judges, except the same particular Custom be of record in the same Court; And if not to be tried by the Judges, to be sure not by one particular Judge. So I crave and Request of this Honoured Court, the Judgment of Twelve Men, my Peers of the same Vicknage, that may know some- thing of the Matter, that Justice and Right may be done in such Matter of great Conse- quence as this is.

And in fine, We have Water and Lakes, which is Sea, granted to us. In the 8th Chap- ter of St. Matthew, Verse 22. it is said, The Herd of Swine ran into the Sea; And St. Mark, Chap. 5. Ver. 13. saith, They ran into the Sea: St. Luke, Chap. 8. Ver. 33. saith, They ran into the Lake and were choaked. So that by the most Infallible Rule, the Lake is

Sea, and the Sea adjacent to the Land is Lake, which is granted to us, it being one of the Premisses of the Grant. And we have Fish- ing granted to us, which we hold of the Crown, and pay an Acknowledgment for the same. And I know not any Reason why we should not fish in the Waters and Lakes granted to us: There is not any Sort of Fishing prohib- ited, Silver and Gold Mines are excepted, and all other Franchises, Profits, Commodities and Hereditaments whatsoever, to the said Tracts and Necks of Land and Premisses belonging, or in any wise appertaining, or therewithal used, accepted, reputed, or taken to belong, or in any wise appertain, to all Intents, and Pur- poses, and Constructions whatsoever. The Whale-Fishing at the Time of our Grant, was used, accepted, reputed, and taken to belong to us, and hath been ever since till of late. And although there might have been more Words put into the Grant, to have made it more plain to be understood, yet the law doth it: For the Law in express Words confirms cur Patents and Grants, against the King, His Heirs and Successors for ever, notwithstand- ing the Want of Form in the Law, or Non- feizance of any Right, Priviledge, or Custom, which ought to have been done heretofore, by the Constitutions and Directions contained in the respective Charters, Patents and Grants aforesaid. And the Law proceeds farther, to say, what the Priviledges granted to the Sub- jects are, as at large may appear in the same. And if a Grant from the Crown, the Laws of this Colony, nor the Instructions from the King to the Governors for the Time being, will not secure the Priviledges of the Subjects, according to the Laws and Customs of this Colony, what shall a Man sav, but request and crave the Priviledges of an English Man, and not to be passed upon but by due Course of Law. .

My Council pleaded an Act of Parliament for the Subjects within this Kingdom to go a Whale Fishing to Greenland, Friezland and Places adjacent, and for the Oyl and Fins they so got should not pay any Duty. Also New- foundland and the Plantations in New-Eng- land, who should pay a Duty for that when brought into this Kingdom. He shewed the Act to the Court. Upon the Tryal I was de- nied to have a Jury. My Council had pleaded: a former Court, that we had Right by Pre- scription; upon which the Attorney-General. pleaded a Demur, and it was a matter of Law ;

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so I should not have a Jury: Although for- merly, in the Year 1694, Peter Choke seized- a Whale killed by Richard Smiths, Esq; Com- pany, he sued for the same in the Supream Court at New-York, and Judgment was given in Favour of the Subject. On Thursday the Chief Justice said he should defer Judgment- until Saturday. On Fryday he sent his Man to me with a Note, the Copy whereof is as followeth :

To Samuel Mulford, Esq; These.

Sir, I desire you will send me by the Bearer, the Paper you read in Court Yesterday; for I did not take any Notice on my Paper, and cannot remember so long a Discourse, so as to form any Judgment of what you offered in your own Defense, except I read it.

I am, Sir, Your Servant, LEWIS MORIS.

The Answer that I returned, was, Sir, You had it Yesterday in the Court.

On the Tryal there was only the Chief Jus- tice on the Bench. My Council pleaded, that Judgment ought to be according to Justice : The Judge said lie could give Judgment con- ditionally. The Clerk wrote something, but I did not hear the Judge give Judgment, nor hear him direct the Clerk what to write, neith- er did he read what he wrote in the Court. Then the Court adjourned until next Term. So I could not know whether there was a Judgment passed, nor what it was. The Re- port was, that there was a Judgment against me: I desired the Officer to give me a Copy of the Courts Proceeding about the Whale- Fishing The 3d time I spake to him he could not give me a Copy, because the Attorney- General had the Rolls. I went to the Attor- ney-General, desired him to let the Officer have the Rolls, that he might give me a Copy. I was with them for a Copy in May, June and Au- gust, and I could not have any Copy. The Officer said, he could not do it, because the Attorney-General did not let him have the same. I desired the Officer to give me under his Hand, the Reason why he did not give me a Copy, which he refused to do. I desired some to go with me, that they might be wit- nesses that I demanded a Copy ; but they would not, and said, if they should they should have Il1-will, and might have an Injury done them. And although I could not know in the Court what was done, I was informed the Judge did give Judgment against me, my two Sons and Col. Richard Floyd. So they made it all one Case upon Tryal, but every one particular in

the Court Charges ; but there ought to have been particular Pleadings, because the said Floyd's Case was thus: Capt. Theophilus Howl's Company in Bridghampton had a Li- cense from the Governor to go to kill Whales, obliging themselves to pay the 20th Part. This Company killed this Whale, and brought it on Shore. In the Night a strong Eastwardly Wind drove it along Shore about Forty Miles. The Owners of this Whale put it into the said Floyd's Hands, to cut it up and make it into Oyl for them. The said Floyd is prosecuted for this Whale, and the Capters having their Whale kept out of their Possession, by Reason of the Prosecution, next Season would not take a License : So that Nine Men were subpena'd to New-York the 24th of June, in the most busy Time in the Summer, one Hundred Miles, to pay the 20th Part of what they got the Win- ter before, besides Charges. So that if they will not take a License, they shall be molested, if they do, they may lose their Whale.

Some time after the Supream Court was over, there was a Jury of Enquiry impannelled, to enquire what Damage was done to the' Crown by our Killing Whales. The Jury was told, there was a Judgment against us, and their Business was only to say what a Whale was worth. So that they could not but say a Whale was worth Something. So Execution was issued out, and Distress made upon our Estates for using an Antient Custom ; because one Single Judge was of Opinion, That they had not right by Prescription, though they had by Law, but we know not what is Law. The Chief Justice makes an Argument, that we have nothing to do with Acts of Parlia- ment, we have no Law but what the Crown allows us. But we know by Experience, That all Penalties by Act of Parliament and Laws of the Colony shall be severely put in Execution ; when if by either of them the People might have a Benefit it shall do them little or no good. Our Attorney-General said in Court, when pleading about the Whale-Fishing, If there was an Act of Assembly to give the Lib- erty to go to Sea a Whale-Fishing, it signifies nothing. So what our Officers please is Law. I desire and hope, for a publick Good, that the Subjects in the Plantation of America, might have the Whale-Fishing so settled, that they may be encouraged to go on that Design, and be capacitated to have Commerce with this Kingdom, to purchase the Manufacture of the same. I know no Reason why the Subjects

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in New York and New Jersey Governments should not have the same Liberty to Fish for Whales as freely as other Subjects in their Neighboring Colonies in America have, or as the French King hath granted his Subjects to' do, and not be deprived of Right and Privi- leges granted to us, for which we pay an Ac- knowledgment to the Crown, for Quit-Rents for our Land five Shillings, and an Acknowl- edgement for Priviledges fourty Shillings per annum; of which the Whale-Fishing was most Material, and several Places in the Colony pay the same.

I have seen a Memorial, setting forth sev- eral Aggrievances and Oppressions in the Col- ony of New York; I know several things there- in mentioned to be too true to make a Jest of.

In the Year 1713, I with my Son Matthew Mulford was subpena'd to appear at the Court of Chancery at New-York on the 9th of April : My Son then had not one Foot of Land, nor ever was a Trustee; so was not prosecuted, but was forced to go 115 Miles to New York, and the same back, to be afflicted and put to Charge. And I that had not been in the Sta- tion of a Trustee for several Years before, could not pay the Debt of the Corporation, without Orders from the Trustees: But upon our being subpena'd to New York, the Trus- tees sent a Man to New York, to pay what the Corporation was in Arrears; but the Receiver- General would not receive it: So they ordered me to receive the Money and pay it. I ten- dered the Money to the Receiver, he would not receive it, and said he had put that Matter into the Attorney General's Hands, I must go to him. So I went and tendered him Sixteen Pounds, for him to take what was due; and also eight Pounds for him to take the Charge out of it: He said he could do nothing, and would not receive it. The next Week in the Court of Chancery, it was proved that I had made a Tender of the Money, as abovesaid. The Decree of Chancery was, That I should pay to the Register of the Court Fifteen Pounds and Fifteen Shillings, and the Charge as it should be taxed by one of the Masters of Chancery, and if the Receiver-General did not see Cause to accept thereof, but shall further prosecute : In such Case, if he did not make it appear there was more due, I should not pay any more Charge. I paid the 15l. 15s. to the Register of the Court, and 5/. and Iod. taxed for Costs to the Attorney-General, and took their Receipts for the same, and comply'd with

the Decree as far as I was capable, remain'd at New-York Fifty Days upon the General Assembly. Soon after I got home, a Man was sent down, being hired as it was said, for 5l. Ios. to bring a Writ to our Sheriff to arrest me. The Sheriff did arrest, and I gave Secur- ity for Appearance. I was charged with Con- tempt, but when I came to New York, being 115 Miles from my Abode, they could not make any thing out against me, only pretended that I was not discharged from that Court, neither could I get a Discharge until I had paid them Twenty Shillings. So in this Case I was prosecuted contrary to the Form of the Grant of the Quit-Rents, and the Custom of the Colony, if not a Breach of the Instructions from the Crown and the Decree of Chancery. So it was said, They were at 5/. Ios. Charge, to compel me to ride 130 Miles to pay them Twenty Shillings, I being near Seventy Years of Age. By the Grant, the Trustees are the only capable Persons to act and do all things in Reference to the Corporation, and every particular Freeholder, not being a Trustee, hath not any thing to do with the Money of the Corporation without their order.

It was the Peoples Pleasure to chuse me to be their Representative to sit in the General Assembly, to assist in having the Government carried on for their Majesties Benefit and Good of the Subjects. In the Year 1714, upon the 2d Day of April, I made a Speech in the House, putting them in Mind of some ill Measures that I was informed were taken, and to set things in their true Light, that Justice and Right might be done amongst us. There was a Discourse of having it Printed, but the Question was not put; however a Copy was desired and taken, which was printed. That Assembly being dissolved and another chose, who expel'd me out of the House upon the 2d Day of June, 1715, about that Speech. The next Week the Supream Court sate, and there was an Indictment drawn, charging me with an High Misdemeanor, acting contrary to my Duty of Allegiance, in manifest Contempt of his Majesty, and the Governour of these Prov- inces under His said Majesty, and against the Peace of Our said Lord the King, His Crown and Dignity, and against the Form of the Stat- utes made and provided : Whereupon the said David Jeneson, who &c. for our said Lord the King, prays the Advice of this Court in the Premisses, and that the said Samuel Mulford be attached by his Body whersoever, &c. To

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answer our said Lord the King in the Prem- isses. The Indictment was brought to the Grand Jury, who return'd it to the Court in- dorsed Ignoramus. The Attorney General makes Information and obtains a Capias to our Sheriff, to take me a Prisoner, to bring me to New-York before the Chief Justice upon the first Tuesday in September at the Supream Court, where Recognizance was required and given of 500l. Mr. Vandam and Mr. Delun- sey, my Securities that I should attend the Court, and not depart without Leave. The Plea we made was, That it was against the Priviledge of the House, to Appeach any Member of the same in any Court or Place but in the House: desiring the Court would take that for an answer. Which Plea the Chief Justice over-ruled, there not being any other upon the Bench to assist. And I have been at four Courts, and know not but that it must be from Court to Court so long as I live; which has been a great Hardship upon me already, which I set forth in a Memorial to the House in June the 21st 1716. They took the same into Consideration, and resolved to Address his Excellency on that account ; The Speaker with the whole House presented the Address, which is as followeth :

The humble Address of the General As- sembly of New-York May it please your Ex- cellency,

The Assembly being deeply sensible of the great Hurt, Damage and Inconveniency Mr. Samuel Mulford, a Member of this House, suffers and undergoes, by Occasion of a Prose- cution against him in the Supream Court for Printing and Publishing a Speech formerly made by him in Assembly, are humble Suters to your Excellency, To give Orders that Mr. Mulford, in regard of his great Age, Distance of Habitation from the City, and other Con- siderations, may be freed and discharged from the said Prosecution, in the Supream Court.

The other Considerations in the Address, may be because the Prosecution was against the Priviledges of the House appears by Act of Parliament, and contrary to a Law of the Colony, which saith, That in all Cases Capital and Criminal, there shall be a grand Inquest, who shall first present the Offence, and then Twelve good Men of the Neighbourhood, to try the Offendor, who after his Plea to the Indictment, shall be allowed his reasonable Challenges.

Of what Benefit or Good can it be to the Colony, to have such an Assembly to represent them, when the Members of the House shall not have Freedom of Speech, and let the Peo- ple they represent know what they are doing for them; but shall be prosecuted from Court to Court in the King's Name, and every Mem- ber of the House deterred to speak of any Ag- grievances of and Priviledges for the People ; but let things pass at Pleasure, lest they be molested as I am, and shall not have Relief,. when hy the best Authority of the Country his Excellency was addressed to free and dis- charge me, he refused to do it, except I would acknowledge, That I had set out a false Libel, and make him Satisfaction: Which I could never do, knowing that all which I set forth in that Speech was true ; and I can prove it to be true, except what I related by Information, and that I believe to be true. I desired of the House, when I made that Speech. To let me- know, whether they knew any thing in it that' was not true. There was not any thing ob- jected against it ; but it was said in the House, That the worst Part of it was, it was too true : Also, That it was too true to make a Jest of. And I know not any Wrong I have done the Governor. It may be remembered, That the Speech was made the 2d Day of April, 1714, which was in the late Administration ; there- fore could not be against his present Majesties Administration ; neither is it a Crime for any Member of the House in the same, to mention Matters of Fact, which are the Aggrievances. of the People they represent; but their Duty to endeavour to have them relieved. Although the Governor might be the Occasion of the Aggrievances, and if I have done the Governor any Wrong, he might have brought his Per- sonal Action against me, and not prosecute in the King's Name, except he is to be Infallible and do what he pleaseth, and nothing to be said by any, lest they in the King's Name be prosecuted from Court to Court. I always thought, That the Government ought to have- been carried on for their Majesties Benefit and good of the Subjects, according to the Consti- tution of English Government: But it is so now with us, that I desire to know, Whether- the Subjects in New-York Colony are to be governed by Prerogative and deprived of Property, or whether they are to be governed by the Constitution of English Government ? If the former, then there is not any need of a General Assembly, nor any Occasion for that

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Act of Parliament made in the Reign of King William III. For punishing Governors or Com- manders in Chief, for Crimes by them com- mitted in the Plantations: But let the Gov- ernors for the time being demand of the Peo- ple what they please, and the People take care to help them to it, lest they be subpena'd to the Court of Chancery at New-York, where the Governor is Judge whether he shall have his Demands, and pay Court Charges into the Bar- gain : But if according to the Constitution of English Government, then by the Common Law, what Estate every Subject possesseth, is deemed to be his Property, and is not to be taken from him by due Course of Law, which is by his own Consent, the Lawful Judgment of his Peers, or the Penalty for the Breach of some Law: And I know not any thing that I have done contrary to Law and Custom, en- deavouring to do my Duty to the King and Country, as far as I was capable, and to have Justice and Right done. And I know not any just Cause or good Reason, why I should be thus molested and destroyed. So I am forced to come to this Court of Great Britain, to seek Relief for my self and others who employed me, which I hope will be took into Considera- tion, that I may be discharged and freed from unjust Prosecution, and my Securities indem- nify'd, and a final Determination setled there- upon for a Publick Good.

Which is the Desire and Request of His Most Sacred Majesty King GEORGE's Most Humble, Loyall. Faithful and Obedient Sub- ject, SAMUEL MULFORD.

HOUSE OF ASSEMBLY Die Veneris, Sept. 13. 1717.

Col Rutsen reported from the committee ap- pointed to consider a Memorial entitled A Me- morial „of Several Aggrievances and Oppres- sions &c. That they are of Opinion, the same is most false, malicious & scandalous Paper, reflecting upon the Governor and Government and the whole Constitution of this Colony and of Pernicious Consequence, and humbly Con- . ceive, that the Thanks of this House, ought to be returned his Excellency for communicating the same, and that he be addressed to use his Interest at the Court of Great Britain, to find the Author in order to be brought to Justice, and in the Meantime his Excellency would please to acquaint the Indians of the five Na- tions, That we utterly abhor and detest that Suggestion in the Said paper or Libel, of re-

ducing the Indians by Force, and possessing their Lands, for the Steadiness of those In- dians to the Interest of Great Britain, all the last War with France, is that we owe in a great measure, our present Security: which was read & agreed to by the House.

LETTER FROM THE LORDS JUSTICES TO GOV. HUNTER.

Whitehall, ffeby 25th, 1717-18.

You intimate in Your letter to our Secry of 22d Nov. last that the Whale ffishery is re- served to the Crown by Your Patents. As we can find no such thing in Your Commission, We desire you will explain What you mean by it. In the meantime We have received an- other Petition from Mulford, praying Dispatch in our Report upon the Papers our Secretary sent you on the 19th of Septemb last: We must desire therefore from You a full Answer to those Papers; and particularly as to the Right of the Crown; and that you would in- form us what Quantitys of Whales are Caught in your Government Comunibus annis ; In what Condition that ffishery is, & has been for some years past, especially since your being in this Government, whether other persons have paid & continue to pay the Dues you demanded & which Mulford Complains of; What these Dues may amount to one Year with Another, & how the profit arising by them is Apply'd.

Upon this Occasion We must observe to you, that we hope you give all due Encour- agemt to that Trade.

Mr. Philips has laid before us the Address from the General Assembly of New York to You about Mulford & at the same time ac- quainted us that he had reason to believe your Answer to Mulfords Complaints was lost in the Ship Mercury.

THE REV. MR. HORTON'S LABORS AND DIARY.

The story of the efforts to advance the spiritual welfare of the Indians of Long Isl- and is one of intense interest, involving as it does the usual details of patient labor, of pri- vations endured, of triumph and of dejection ; triumph when the grand message seems to have been accepted and dejection over the ap- parent slowness of the work and the inability

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to reach and rescue the thousands who might be reached. On Long Island the missionary story, while relieved of the tortures and mis- eries which darken the story elsewhere, is still full of details which must ever form a graphic chapter in the story of Christian endeavor in North America. The Rev. Dr. Prime enlarges on the life and work of the Rev. Azariah Horton, and as that missionary was a native of Long Island, it may not be out of place here to present his record as given by Long Isl- and's ecclesiastical historian. The society re- ferred to is the London Society for the Propa- gation of the Gospel, often mentioned in this work :

After the settlement of East Hampton the Rev. Mr. James, the first minister of that town, moved with compassion for the ignorance and moral darkness of the Indians, commenced the study of their language, with the design of instructing them in the way of life and salvation. It appears that he was employed by the same society about the year 1660, but how long he continued in the work cannot be determined. His exertions were principally, if not exclusively, bestowed upon the Montauk tribe.

There were probably other individuals, in different parts of the island, who devoted more or less time to their religious instruction. But it is lamentable to record the fact that for about one hundred years these benevolent ex- ertions appear to have been made in vain. The Indians, almost with one consent, ad- hered to the religious opinions and the sense- less rites of their ancestors, and exhibited 110 inclination to receive the blessed gospel. It seems probable that after the experiment of a few years had been made the work was abandoned as altogether hopeless.

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A history of Long Island, from its earliest settlement to the present time, Part 113

Author: Ross, Peter. cn Publication date: 1902 Publisher: New York ; Chicago : The Lewis Publishing Co. Number of Pages: 1188

Author: Ross, Peter. cn
Publication date: 1902
Publisher: New York ; Chicago : The Lewis Publishing Co.
Number of Pages: 1188