USA > New York > A short history of New York State > Part 5
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Chapter 4
The Rise of the Assembly, 1708-1763
The New York Assembly had seized from the governor the nomination of all officers of Government . . . and in short al- most every other executive part of Government, by which un- warrantable Encroachments and Invasions of your Majesty's just and undoubted authority, Order and good Government were subverted, Your Majesty's Service obstructed, and the Security of the Province endangered .- PRIVY COUNCIL, 1753
THE basic constitutional principles of provincial New York were ham- mered out in the period 1708-1739. Gradually, constitutional procedures developed that were similar to but not identical with those of Great Britain. An assumption common to both governments was that executive officials were responsible to the majority party of the lower house. The Assembly of New York, following the practice of the House of Commons, secured more control over the executive by providing for an accounting procedure and by controlling appointments either directly or indirectly. The leaders of the Assembly by 1739 were advancing the right to act as a court of appeals which might judge the misdemeanors of executive officers. Two parties emerged, each subscribing to a given theory of government, each advocating a reasoned economic program, each fol- lowing recognized leaders, and most important of all, each responsible to the public. Lieutenant Governor George Clarke in the 1740's worked with majorities held by two different parties. He was the first governor to accept his function as a constitutional executive rather than a partisan leader.
Lewis Morris, Sr., skillfully built up a party dominating the legislature much of the time between 1708 and 1739. Morris was a remarkable figure who maintained party leadership despite his brusque manners, incurable tardiness, and frequent drunkenness. Distributing patronage
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A SHORT HISTORY OF NEW YORK STATE
and contracts with great skill, he rallied to him able young men, notably Cadwallader Colden. The Morris party attracted support from the members of the middle class, such as the small traders of New York and Albany, the artisans of New York City, and the yeomen farmers of the Hudson Valley. Morris also managed to win over the bulk of the Dutch, the remnants of the Leislerians, and the Quakers in Westchester and Queens counties. He offered a complicated program to attract and to keep the support of these diverse elements. He gave the shopkeepers protection against the auctioneer and peddler, and he offered the artisans protection against imports and subsidies for native industries. He courted the farmers by better roads, cheaper money, and favorable land laws. The middle class were relieved of direct taxes when the main burden of taxation was shifted to the imposts paid by the large merchants. The Dutch were favored with patronage and indemnities for the losses incurred by the followers of Leisler.
Prior to 1728 the Morris party did not press constitutional issues largely because it normally enjoyed cordial relations with the governors. Thereafter, Morris swung more clearly to the side of constitutional reform and claimed that his party members were the servants of the people. For example, Lewis Morris, Jr., in 1733 told the citizens of Westchester that he would follow their instructions to the letter.
The wealthy merchants of New York City and Albany disliked the Morris program and rallied behind Adolphus Philipse, a merchant with much land in Westchester County. The large landholders-the De Lanceys, Beekmans, Van Cortlandts, and the like-generally supported the merchant princes. This was partly because of family alliances and partly because many of them had retained or acquired an interest in trade. This party of big businessmen wanted free trade, a stable cur- rency, economy in government, and the end of subsidies to artisans. Philipse claimed that protectionist measures diverted trade to Perth Amboy and to Connecticut ports. He and his followers favored direct taxes instead of high customs and excises. The Philipses tried to win the votes of poorer freemen by pledging the repeal of the imposts on rum, salt, and molasses.
The first strong bid by the Assembly for control of government finance and policy came in the years 1708-1710, when the executive branch was weakened by the death of Governor John Lovelace (1709) and was pre- occupied with preparations for an expedition against Canada (see Chap- ter 5). Appropriation bills placed the money in the hands of an elected treasurer accountable to the Assembly. The Assembly nominated the military officers, fixed the wages and number of men to be paid, and specified the purposes of each appropriation. The Assembly even dared to cut the regular civil list. Salaries for the customhouse officers, those
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of the admiralty court, and the attorney general were omitted because all these officials had been tarred with corruption under Cornbury and were entrusted with the enforcement of the unpopular Navigation Acts. The Assembly insisted that henceforth it would make money grants for only one year at a time. This amounted to holding a club over the head of recalcitrant governors.
Robert Hunter (1710-1720) was probably the ablest governor of colo- nial New York. Hardly had this former associate of the literary Whigs of London reached New York when he ran into the revenue problem. The Assembly hit the Scot in a sensitive spot by reducing his salary and by denying him the power to spend money without legislative check, so that Hunter was forced to turn to Lewis Morris for assistance. In 1714 a settlement of the important debt problem was reached. The proceeds of the excise for twenty years were to pay all claims owed by the govern- ment, but an equivalent amount of bills of credit was to be issued. This currency would satisfy the farmers, who feared that contraction would mean deflation. The bill also stated that the consent of the Assembly was needed before the money would be issued.
Hunter made a bargain in 1715 whereby he received a five-year sup- port bill, in exchange for which he signed a naturalization bill sought by the citizens of Dutch descent. Furthermore, he agreed informally to spend funds according to a schedule drawn up by the Assembly leaders. In short, Hunter realized the necessity of establishing responsible parlia- mentary government, and he was willing to use Morris as his prime min- ister.
Politicians of every stripe surrounded William Burnet (1720-1728) upon his arrival in New York. Burnet had consulted Hunter in England and decided to co-operate with the Morris faction. Morris received pa- tronage, land grants, and contracts for his henchmen. In return, Morris saw to it that Burnet received a five-year support bill. The outstanding achievement of Burnet's administration was his Indian policy. His aim was to attract the fur trade of the western Indians by erecting a post at Oswego and by prohibiting the trade in Indian goods between Albany and the French in Montreal. The latter action stirred up the Albany mer- chants, who enlisted the aid of James de Lancey and Manhattan im- porters, who in turn persuaded their London associates to attack Burnet's measures before the Board of Trade. His policy was a success measured in terms of peltry reaching Albany directly from the west. Nevertheless, the ban on trade with Montreal was difficult to enforce, and in 1726 Burnet secured an act charging duties on goods going to the north at twice the rates as on those passing to the Indians to the west.
Burnet's foes, led by Adolphus Philipse, won control of the Assembly by 1725. Burnet dissolved the body when Philipse offered a support bill
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for only two years. The result of the election was a strengthening of the Philipse faction in the next Assembly, which reduced customs and chal- lenged the governor's right to set up a court of chancery. Landholders were afraid that such a court would enforce the collection of quitrents and question land titles.
Burnet's successor, Colonel John Montgomerie (1728-1731), was a mild figure who tried with some success to avoid controversy. The Assembly granted him a revenue in support of the government for five years, and Montgomerie took care to issue his warrants in conformity with the schedule set down by the Assembly. He also was careful not to exercise his right to sit in chancery. Upon his death, Rip Van Dam, head of the Council, assumed the governor's duties and collected the governor's salary.
When Governor William Cosby arrived in 1732, he asked Rip Van Dam to refund half of his salary. The latter refused, whereupon Cosby looked about for some way of recovering the money. Fearing a rebuff from a jury, Cosby asserted his disputed prerogative of creating new courts of equity. He might have set up a chancery court with himself as presiding judge but he could hardly hand down a ruling in favor of himself. There- fore he chose to have the Supreme Court double as a court of exchequer. The British Crown was interested in enlarging the equity jurisdiction of the Supreme Court because it hoped to collect unpaid quitrents through its operation. Presumably Chief Justice Lewis Morris, who relied on the governor for his appointment and tenure, would hand down a favorable ruling. To Cosby's chagrin, Morris made a sweeping attack on the constitutionality of the new court. Critics of Morris pointed out that he feared a demand on his salary as acting governor of New Jersey be- fore the arrival of Cosby. The enraged governor fired Morris without ceremony, but the powerful political leader and his son won sweeping victories in the by-election of 1733.
Morris' followers gave much publicity to their program of political and economic reform through the New York Weekly Journal published by Peter Zenger. Articles, thinly disguised in the form of fables and foreign dispatches, attacked Cosby and his prerogative. The governor ordered the paper burned and Zenger arrested for libel. Cosby's new chief justice, James de Lancey, gave willing support to the governor. He disbarred practically all the lawyers who might have aided Zenger, but the power- ful faction of landowners behind Zenger imported Andrew Hamilton, the most distinguished barrister of Philadelphia. Hamilton insisted that the jury and not the chief justice should decide whether the statements in question were false and seditious. He convinced the jury that what Zenger had printed was true, hence he could not be found guilty. The jury
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THE RISE OF THE ASSEMBLY
agreed with Hamilton, and Zenger went free. Zenger's acquittal was a landmark in the fight for a free press in America.
Cosby on his death bed in 1736 suspended Van Dam from the Council so that his favorite, George Clarke, might inherit the governor's powers. Although Lieutenant Governor Clarke was an experienced official who tried to "render himself Agreeable to the People in General to bury all Resentment," the Assembly was suspicious of him. When the Morris faction won important electoral victories in 1736 and 1737, Clarke felt it necessary to compromise. He agreed to give the Assembly control of ap- propriations and expenditures. He also accepted a one-year support bill and a triennial act, the latter requiring that new elections be held every three years. Obviously the Assembly was seeking for itself most of the privileges exercised by the House of Commons in England.
In the period 1740-1760 significant developments took place in politi- cal, constitutional, and economic history of New York. The Assembly retained, in fact, enlarged, the powers which it had won over finances and administration despite sporadic efforts by the British government and its governors to reassert their full authority over New York. The need for more money to fight the two wars with France forced the governors to make concessions to the Assembly. Political parties and struggles also reflected the economic changes attending the general prosperity of the period. New York City grew rapidly as a trading center, and manufac- turing also showed a great increase. During the 1740's an alliance of land barons and merchant princes co-operated closely and outmaneuvered the disintegrating Morris faction. In the 1750's, however, the landlords and the merchants split into two camps and a new party alignment emerged.
The yeomen, shopkeepers, and artisans, the backbone of the Morris party, broke into small groups after 1740; some even accepted the leader- ship of the Philipses, who claimed that they were responsible for the prosperous times. The Philipses put through a program of free trade and economy and established harmonious relations with the governor. In 1745 James de Lancey, the chief justice, took over the leadership of the party. De Lancey modified the program by permitting the expansion of the currency and some regulation of the export trade.
Opposition to the Philipse-De Lancey faction soon developed from sev- eral quarters. David Jones of Queens led a small group of assemblymen from Long Island who opposed favors to the merchants of New York City, and he made further attacks on the governor's authority. The great- est threat to the Philipse-De Lancey regime came from Cadwallader Colden, a former Morris backer who was selected by Governor Clinton
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to combat the Assembly. Colden attracted a strange assortment of groups, who either opposed the Philipse program or who hoped to get patronage from Clinton and Colden.
George Clinton (1743-1753) had one of the longest and stormiest terms of any provincial governor. At the beginning, the money-mad gov- ernor sought the co-operation of James de Lancey. The judge, a fine speaker and excellent leader, received most of the patronage and secured for Clinton a one-year support bill specifically appropriating funds to certain officeholders. Clinton had plans for building forts along the northern frontier and nourished great ambitions for sending an expedition to Canada. De Lancey secured considerable funds for defense, but not enough to satisfy Clinton. The governor denounced the merchants of
Albany for their trade with the French, and the magistrates of Albany for their dilatory tactics in providing ample supplies for the troops. The magistrates or commissaries of Albany since the days of the Dutch regime had exercised a great deal of control over the details of the Indian admin- istration and trade. Clinton's attack on the Albany commissaries caused the De Lanceys to break with the governor.
From 1746 to 1750 the bitterest and most significant political battle in the history of colonial New York was fought. The important question was one of sovereignty. The De Lanceys stated that the Assembly possessed all powers of government, whereas Clinton and his main spokesman, Colden, insisted that the governor shared sovereignty with the legislature. The battle raged from year to year, each side circulating pamphlets. When the Assembly tried to supervise military policy, Clinton asserted:
I will not give my assent to any bill in which the issuing or disposition of the public money is directed otherwise than as his Majesty's commission or in- structions to me direct, or which shall lay any limitations or clogs on his Majesty's authority with respect to the disposition or command of the forces.
The battle between Clinton and the Assembly over the power of initia- tion, administration, and review ended in an uneasy compromise in 1750. The De Lanceys, fearful of disclosure of their extensive embezzlement of public funds, were in an accommodating mood. Clinton was also willing to make concessions. He accepted a one-year support bill which named the officers and fixed the salaries. Furthermore, he permitted the Albany commissaries to reassert their old authority over Indian affairs. Clinton insisted, however, that salaries of civil officers be paid on his warrant, that past salaries have prior claim on the funds, and that debts not paid in six months be carried at interest. The Assembly gave up its more ambi- tious claims, such as the right to exclusive control of finance. It admitted that the governor had the power of initiating money bills and the power to examine the authenticity of all claims passed by the Assembly. In brief,
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the Assembly receded from its extreme position of monopoly and sover- eignty. After 1750 no important changes in the structure of provincial government took place.
The Board of Trade in London watched with alarm the battle between Clinton and the Assembly and in 1753 severely scolded the Assembly. It instructed Sir Danvers Osborne, the new governor, to demand a perpetual support and revenue for the officers and regular services of the govern- ment. After two days of instruction in New York politics, Osborne hanged himself as a result of family troubles. Strangely enough James de Lancey, the foe of the prerogative, inherited the governor's powers, serving as lieutenant governor for the next two years. He proved quite adept in enlarging the governor's formal powers without cutting down the As- sembly's actual powers.
The rise of the Livingston party was the most important development in the political life of New York in the 1750's. The Livingston family had belonged to the Philipse-De Lancey party and one of its members usually had sat on the governor's Council. Angered by the De Lancey decision to raise war funds by a tax on land and disturbed by the rise of antirentism among their tenants, the great landlords of the upper Hudson Valley organized a party of their own. They accused James de Lancey of favoring the merchants and of corruption in office. They also charged the governor with seeking to fasten Anglican control over King's College. In 1755 James de Lancey quarreled with Governor Wil- liam Shirley of Massachusetts over the direction of the war. He found an ally in William Johnson, the famous Indian trader and agent, who was made commander of the New England and New York forces against Crown Point and later Niagara. Johnson wanted to enlist the active support of the Iroquois and to abolish Albany's trade with Montreal. To secure Johnson's support, De Lancey had to abandon his former friends among the Albany commissaries and merchants. In reprisal, the Dutch merchants swung over to the Livingston opposition.
The new governor, Sir Charles Hardy (1755-1757), gave his support to James de Lancey, since he needed Assembly support for a vigorous war program. The death of Hardy in 1757 gave De Lancey another chance to serve as lieutenant governor, a position he held until his death in 1760. He also continued to hold his office of chief justice.
The death of James de Lancey in 1760 raised the question of the tenure of judges. Cadwallader Colden, then president of the New York Council, assumed the duties of governor during the interim period before the ap- pointment of General Robert Monckton as governor in 1761. Colden as- serted that judges held office during the King's pleasure instead of during good behavior as claimed by the New York Assembly. The Livingston party, which was now in control of the Assembly, and the judges on the
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bench were incensed at this attempt to make justices more dependent upon the royal prerogative. Interestingly enough, the Assembly had not hesitated to exert control over the judges by making them dependent for their salaries on annual appropriations from the legislature. Colden stirred up a tempest but won the backing of the British authorities.
The charter granted by Governor Montgomerie to New York City in 1731 laid down the basic principles of municipal administration for over a century. The city fathers wanted concessions not authorized by the Dongan charter. They secured the extension of the city's borders to 400 feet beyond low-water mark on the Hudson and East Rivers and received the right to create another ward. They failed, however, to persuade the governor to give up his power to appoint the mayor, recorder, sheriff, coroner, and town clerk. Mayors were ordinarily men of wealth and standing drawn from the ranks of the aldermen. They did not receive an annual retainer until the 1760's, although for decades they had kept the revenues from liquor licenses despite the protests of the Common Council.
"Freeholders" and "freemen" could vote in the city and province. To qualify as a freeholder, a citizen had to possess estates in fee or for life of the value of forty pounds or more. Freemen were those who had bought the privilege of engaging in certain occupations-wholesalers, retailers, and independent handicraftsmen. The corporation of New York granted "freedoms" sparingly until mid-century, when it lowered the fees.
Although the aristocratic families among the landlords and merchants provided most of the political leaders of colonial New York, they had to pay considerable attention to the wishes of a large fraction of the people. How large was this fraction it is difficult to estimate with any precision. It is known that the percentage of voters among the white population rose from 7 per cent in 1731 to over 10 per cent by 1761. Of course, women did not vote. Furthermore, well over half of the male population was under twenty-one years of age. No doubt, many eligible voters then as now failed to exercise their right. Taking all these factors into con- sideration, we can safely generalize that at least one-half of the white male population over twenty-one was eligible to vote. A much smaller percentage of Englishmen voted in British elections in that period.
Municipal elections were spirited affairs although the merchant aris- tocracy generally had its way. On Michaelmas Day (September 29) the freemen and freeholders of each ward assembled and voted for their candidate. If a "show of hands" did not clearly indicate the result, each voter registered and declared for his choice. Elections in the wards were placed under the management of the aldermen and in the counties under the sheriffs. Complaints were frequent that aldermen and sheriffs manipu- lated the elections in order to help their friends. Candidates often sought
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votes by offering free drinks and bribes or by coercing their employees and tenants. In 1771 the Assembly took heed of the complaints and de- prived the aldermen of their right of election supervision. In their place, the Common Council was directed to appoint a freeman or freeholder of each ward as returning officer. Each voter was required to swear that he had not voted before in that election.
Merchant control was challenged after 1750 by the rising power of the lawyers. Cadwallader Colden was fearful of their dangerous power "greatly strengthened by inlarging the powers of the popular side of the government." Of course, most lawyers had close family and business con- nections with the merchants, but a few of the more liberal became spokesmen for the mechanics and clerks, who were demanding more control in the decade before the Revolution.
The Common Council faced many complicated problems. It spent most of its sessions enacting "police legislation," broadly defined. It laid down the rules of fire protection, regulated the behavior of slaves, and banned peddlers. The regulation of business functions such as markets, docks, and slaughterhouses was another important area of activity. The Council took a hand in administration by setting up committees to perform such functions as superintending public improvements and auditing the ac- counts of the treasurer.
It could not lay taxes on real or personal property, however, without the permission of the provincial legislature. Over their protests the citi- zens of New York City were forced to pay one-third of the provincial taxes although they never numbered one-fifth of the total population. The representatives of the rural counties, particularly those surrounding New York City, often proposed legislation hostile to the city's interests, but the governor's Council, including many merchants resident in Man- hattan, was able to check most of these proposals.
Care of paupers, the ill, and prisoners fell upon individuals and the city, since the province placed the responsibility for these unfortunates upon the localities. After 1697 New York City put the poor under the care of a board of vestrymen and wardens who were elected annually by the voters. The city's paupers were boarded at public expense in private families. Dependent children were usually bound out as apprentices or servants. In 1734 New York City erected a two-story brick structure which served as a house of correction for unruly servants, a workhouse for beggars, tramps, and loafers, and an almshouse for paupers. The greater share of charitable work, however, fell to private individuals and church societies.
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