Civil List and Constitutional History of the Colony and State of New York, Part 10

Author:
Publication date: 1886
Publisher: Albany
Number of Pages: 1380

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In 1739 (February 6), the Lords of Trade advised Lientenant-Gov. ernor Clarke, who was acting Governor, that the power to appropri- ate money belonged to the Assembly, while its issuing and the ap- pointing of officers belonged to the Governor ; and they instructed him that in getting needed revenue, he must take " particular care to get it done in such a manner as not to admit of any the least encroach- ment upon the prerogative of the Crown." Nothing was accom- plished in that direction, however.

Admiral George Clinton, Governor, son of the Earl of Lincoln, arrived in New York in September, 1743. He was a good natured gentleman, whose fortune had been impaired by extravagance, and he was disposed to mend it. Chief Justice De Lancey, a wealthy and able lawyer and politician, was the unquestioned leader of the

1 Report of the Privy Council April 2, 1751.

CONFLICTS WITH THE CROWN.

people; and he was strongly supported by Horsmanden, Bayard, Murray, Livingston and others. Clinton was controlled by De Lancey until they quarreled during a convivial gathering, and while their friendship lasted the Governor made no effort to protect the prerogative.

Governor Clinton's first Assembly met on the 8th of November, 1743, and passed an act for the support of government limited to one year, and for the payment of salaries, " which," said the Privy Commeil in the report from which we have quoted, "ought to be settled on the offices, but are granted to the officers by name, by which the disposal of public money and the appointment of officers are usurped by the Assembly, and a power of making their salaries at any time as inconsiderable or large as they please."

Walpole had turned the government over to his faithful friend Henry Pelham, when, on the 13th of March, 1744, the Speaker of the New York Assembly acquainted the House with the fact that a bill had been preferred to the House of Commons in Great Britain, to prevent the issuing of paper money in America; and he observed to them that this bill, if passed into a law, would greatly affeet that colony in particular. He also called attention to the last clauses, which were foreign to the title and scope of the bill, contrary to the Constitution of Great Britain, and would in effect subject all the British colonies in America to the absolute will of the Crown and of those acting under its authority. The bill was referred to a com- mittee, whose report was adopted on the 15th, to the effect that it would establish such absolute power of the Crown in the plantations as would be inconsistent with the liberties and privileges inherent in an Englishman, while he is in a British dominion.

The Assembly adjourned and met again on the 17th of April, 1744, when it passed an act for repairing fortifications, by which commissioners were appointed to perform the services required, to whom the moneys granted for such service were directed to be paid without warrant from the Governor and Council. The same As- sembly passed the usual revenue measures, and, said the Privy Council, "the money directed to be paid without warrant from the Governor; and, as often as a necessity has since occurred for mak- ing provision for the public service, and acts of supply have been passed for that purpose, this same method of appointing commis- sioners and disposing of public money by their own authority has been kept up by the Assembly, and such encroachments generally made by that means upon the legal prerogative of the Crown, that

PEOPLE CONTROL GOVERNMENT.

many of the most essential powers in the Governor have been trans- ferred to the Assembly, who, by degrees, have vested themselves with the disposal of public money, by nominating officers and fixing their salaries, by superseding the Governor's warrant in the issuing of publie money, with the custody of the naval stores of the colony, the direction of the fortifications and the power of regulating the militia. They likewise assumed to themselves, independent of the goverment, the passing of the muster rolls of all the troops, except the four independent companies raised for the service of the prov- ince, appointed paymasters, and have also empowered the Commis- sioners for Indian Affairs to revive and employ outscouts as they shall see a necessity." The government was then practically in the hands of the People, and had indeed been so most of the time since 1691.

A struggle as important as that which closed in 1715 was now to begin. " On the memorable day, the 6th of June, 1746," said the Assembly in a remonstrance to the Governor in 1747, " every party concerned in the administration were of the same mind, and disposed to act as one person." A personal quarrel over their cups between Clinton and De Lancey was to plunge the province into a fierce feud, which was to have its ending in American Independence. New York was then in the enjoyment of larger liberties than Great Britain. In the effort to enforce prerogative, all power was to be lost.

Governor Clinton wrote to the Lords of Trade December 12, 1746, that by the method of annexing salaries to the person by name, the Assembly had acquired control. Persons disagreeable to the ruling faction "must starve, to use the words that have frequently been made use of on such like occasion." Thus " the ruling fac- tion has obtained in effect the nomination of all officers, and they have become even so insolent that they have, in the bill for the pay- ment of the salaries, removed one officer's name and put in another without consulting me," and the Speaker had ordered the Secretary to make out a commission accordingly. "By these means all the officers of the government are become dependent on the Assembly, and the King's prerogative of judging of the merits of his servants and of appointing such persons as he may think most proper is wrested out of the hands of his Governor, and the King himself (as far as in their power) deprived of it. The Assembly carries matters in their case to such a length that they call those bills for the pay- ment of salaries and other contingencies money bills, to which they will not allow the Council to make any amendments, and a Governor

CONFLICT WITH GOVERNOR CLINTON.

must either take it as it comes from them, or he and all the officers of the Goverment must remain without support."

Governor Clinton now separated himself ahnost entirely from the publie men of the province, whose long residence and intimate ac- quaintance gave them the requisite experience for successful admin- istration. Among the old residents whose assistance was invaluable was Philip Schuyler, son of the first Mayor of Albany, and a man of great influence with the Indians. He remained identified with the popular party, and sustained De Lancey, whereupon Clinton took the Indian affairs out of the hands of the commissioners, and placed them in the hands of William Johnson, as Sole Commissary of Indian Affairs. The Indians had desired to maintain strict neu- trality in the war with the French, and the Assembly thought it best that they should do so; but they were induced into a declara- tion of war, made in Albany, on condition that their old men, women and children should be protected. The Assembly, it seems, did not make the provision the Governor desired ; perhaps because they thought it better that the Indians should guard their own fee- ble ones, rather than that white men should be taken from the pub- lic defense for such a purpose. In his messages of the 25th of August and the 10th of September, 1747, the Governor asked sup- plies for several purposes which the Assembly did not think it reasonable to provide, whereupon he became very indignant and would not carry out the plans upon which there had been an agree- ment.

The importance of the position at the junction of Fish creek and Hudson river had been appreciated from the earliest times. At this junction was the settlement of Saratoga, many of the families being tenants of Philip Schuyler. In 1745, the fort on the east side was in a dilapidated condition, and the settlement was defenseless, when the French and Indians stealthily crept upon it, on the night of the 28th of November, murdered Mr. Schuyler and a few others, and carried most of the rest away captive. The fort was rebuilt in the spring of 1746, strongly pallisaded and named Fort Clinton. In September, 1747, Colonel Peter Schuyler was in command. On the 9th, the Assembly resolved " that as it appears to the House by several informations that Colonel Peter Schuyler, commander of the New Jersey forces posted at Saraghtoga, will soon be redneed to a necessity of deserting that fort for want of provisions," therefore " Ilis Excellency be humbly addressed, that he will be pleased immediately to give directions for the relief of that garrison ;" to

AUTHORITY OF THE ASSEMBLY.

which the Governor made no reply. The Assembly accordingly adopted another resolution on the 11th, " that the fort might be pre- served in all events, least your Excellency should withdraw that garrison a second time ; " and in their address on the 9th of October they said that the troops at Saraghtoga were first withdrawn in 1745, leaving the settlement unprotected, which " hazarded the shedding of that innocent blood and the carrying the poor people there into captivity."

In the same address the Assembly allude to the capricious acts of the Governor in proroguing the Legislature, to his arbitrary refusals of audience to the House, and to their acts of loyalty in support of the war. The colony had been put to an expense of £70,000 since the commencement of the French war, " which is a burden we fear our constituents will be too apt to think too heavy for them to bear," and that while they "would not be too profuse and lavish," neither would they be " too sparing."

Governor Clinton responded on the 13th of October, stating his willingness to relieve Saratoga, but pronouncing it "impractica- ble" to do so; expressing the opinion that the frontiers could not be seenred from that point,' and blaming the Assembly for not taking other measures. His complaints were particularly ungenerous. The Assembly, the preceding year, had voted him every thing he asked. Money for block-houses and bounties, for provision and ammunition ; invited the Six Nations to meet the Governor and Council; impressed artificers in the public service, and co-operated vigorously with the Governor. To these energetic proceedings, doubtless, is due the fact that no hostilities of importance occurred within the province or on its frontiers, subsequently, during this war.

Governor Clinton took the occasion of this reply to lecture the Assembly. " Yon have not," he said, " by the Constitution of the goverment, any share in the execution of military orders. Con- sider, gentlemen, by what authority you sit and act as the General Assembly of this province! I know of none, but by the authority of the King's commission and instructions to me, which are alterable at Ilis Majesty's pleasure. Yon seem to place it upon the same foun- dation with the House of Commons of Great Britain ; and if I mistake not, you, by the resolves of the 9th of this month, assmne all the priv- ileges and rights of the House of Commons of Great Britain. If so, you assume a right to be a branch of the Legislature of the Kingdom, and deny your dependence and subjection on the Crown and Parlia-

1 Fort Clinton was abandoned and burned about the Ist of December, 1744.

ASSEMBLY ACCUSED OF USURPATION.

ment. If you have not the right of the House of Commons of Great Britain, then the giver of the authority by which you act has or can put bounds and limitations upon your rights and privileges and alter them at pleasure ; and has power to restrain you when you endeavor to transgress. And I must now tell you that I have his Majesty's express commands, not to suffer you to bring some matters into your Honse, or to debate upon them. In short, gentlemen, I must likewise tell you, that every branch of the Legislature of this province, and all of them together, may be criminal in the eye of the law ; and there is a power able to punish yon, and that will punish you, if you provoke that power to do it by your misbehavior ; other- wise you must think yourselves independent of the Crown of Great Britain."

The Governor not only saw clearly that this was a political con- fliet for practical independeney, but he charged the Assembly with assuming greater powers than those possessed by the House of Com- mons. After recapitulating their proceedings, he continued : "Is this following precedents of the Parliament of Great Britain, which you pretend so much to imitate ? No, I'll defy any man to give any precedent of this nature, unless it was in that House of Commons that had resolved to take away the King's life and to overthrow the established government. Nay, I'll defy any man to show that the Council or General Assembly of any nation ever acted in this man- ner, but where a faction had resolved to usurp the whole authority and power over that nation."

After stating that since he had the administration of the govern- ment, above $60,000 had been put into the hands of commissioners named by them, he concluded : " I now tell you that I will not give my assent to any bill in which the issuing or disposition of the publie money is directed otherwise than as his Majesty's commis- sions and instructions to me direct, or which shall lay any limitation or clogs on his Majesty's authority with respect to the disposition or command of the forees, or which in any sense may lessen his Maj- esty's authority in my hands with respect to military affairs. If you make any thing contrary to his Majesty's commission or instructions a condition of your granting the necessary supplies for the safety of the people of this province, I now tell you it will be trifling with the lives and estates of your constituents, by exposing them in this time of danger withont relief."

On the 26th of October, the Speaker informed the House that the Governor had forbidden Parker, the Printer, to publish their remon.

ACTS OF USURPATION.

strance, which he (the Governor) had refused to receive. The House thereupon resolved " that it was the right of the People to know the proceedings of their representatives, and that any attempt to prevent those proceedings being printed is a violation of that right." Also, " that the Governor's order to forbid the printing it was arbitrary and illegal, in open violation of the privileges of the House and of the liberty of the press," and they sustained the Speaker in ordering it to be printed.

Governor Clinton, in his communication to the Lords of Trade, exeused his submission to the encroachments of the Assembly, on the ground that it was time of war, but observed, " upon the approach of peace, that the time was then coming, in which he should be able to recover the executive power of the government and put a stop to. the usurpations of the Assembly, which he did by refusing assent to the revenue bill passed 11th November, 1748, since which time every exeentive part of the government has stood still." 1

The treaty, or rather truce, of Aix-la-chapelle was concluded in 1748 ; and in October of that year the Governor made a demand for a five years' grant of the revenne. This was refused, and the usual anual appropriation bill was passed November 11, which he refused to approve. In prorogning the Assembly the following day, he told them, and told them truly, that they " assumed privileges greater than the House of Commons."

Governor Clinton wrote to the Lords of Trade February 24, 1749, that " a violent faction have a bold design of wresting the administra- tion out of the hands of his Majesty's Governor, and to place it in the hands of themselves in such manner as to have the power perpet- ually to seenre the administration in some prevailing faction, during the administrations of all future Governors. This is done by the As- sembly's assmning (in effect) all the public moneys into their own hands, and assuming it without warrant from the Governor. Then tak- ing all the warlike stores ont of the hands of the Governor, and plac- ing them with persons of their own appointment. Then assuming to themselves the nomination of all officers by their granting the salaries (annually) not to the officer but to the person, by name, in the office." For these reasons, Governor Clinton insisted on appropriations as formerly, which the Assembly absolutely refused, so that the gov- ernment remained without support. On the 23d of May the Gov- ernor said that the Assembly have made such encroachments on his Majesty's prerogative, by their having the power of the Ilonse,

1 Report of the Privy Council, 1751.

THE ASSEMBLY JUSTIFIED.

that they in effect assume the whole executive power into their own hands," including, he said on the 7th of August, "the nomination to all offices."

In their address to the Governor July 5, 1749, the Assembly say that there appears no royal injunction in his instructions requiring a grant of supplies for five years; and " that the faithful representa- tives of the People would never recede from the method of an annual appropriation." The Governer replied on the 12th, that it is " essential to the British Constitution, as well as the best means to prevent misapplication, that the powers of granting and issuing money should be in different branches of the Legislature; that con- trary to the practice in Parliament, they had provided for services which he had never recommended to them, nor even been acquainted with, which was a dangerous invasion of the King's prerogative."

The response of the Assembly, made on the 14th, shows that in departing from the ancient constitution they were doing it for a temporary purpose, and not with deliberate intent to introduce per- manently a new system of government. This, however, was its effect, as we shall see. After remarking " that the whole of his speech seemed to mean an indefinite support, if not one for five years, and therefore it was he that endeavored to mislead the People," they said " that they knew it was the custom of Parliament to leave to his Majesty the disposition of money raised for the public service; but that there was great difference between the condition of such subjects and those whose unhappy lot it is to be under the command of the Governors of Provinces. In cases of misapplication the sub- ordinate officers could be punished by Parliament, but that in the colonies the Governors, who are strangers to the people and employ all means to raise estates to themselves, could not be called to account."

The Assembly was dissolved in 1750, and elections were ordered, the new Assembly to meet September 4. This Assembly, in their address, say that " no better rule could be followed, than that given by the King's commission and instructions, and that all deviation from these rules had been attended with bad consequences." The Assembly was prorogued on the 24th of November, after enacting the usnal appropriation bills, which " are all passed in the same irregular manner as former acts of the like nature, and are consequently liable to the same objections, the Assembly having thereby assumed to themselves almost the whole of the executive part of government." These bills were approved by the Governor, and on the 2d of De

Tms REVOLUTION SUCCESSFUL.

cember he apologized to the Lords of Trade, and stated that "the King must enforce his authority or give it up to the Assembly."

When this record came to be received in Privy Council, the political life of Great Britain was in a torpid condition. Both par- ties to the war had surrendered their conquests in the treaty of Aix. la-Chapelle, and the Pelham Ministry was languidly drawing to a close. The report, signed by Dunk Halifax, Granville, Dupplin, Fran : Fane, and Charles Townshend, is remarkable for its impotent assertion of the prerogative, its important concession that its rights cannot be recovered without the consent of the General Assembly, and its impudent proposition that efforts be made to secure the voting of a perpetual revenue. The only valuable thing in it is its sur- render; its admission of the sovereignty of the People, which was the only real subject-matter of contention. The incidents which grew ont of the maladministration of the Governor would pass away with Clinton ; but the sovereignty of the People could only be taken away by conquest. This report is dated .. Whitehall, April 2, 1751." We make some extracts : " There is nothing so essentially necessary to the preservation of his Majesty's government in the American provinces, as the careful and strict maintenance of the just preroga- tive, which is the only means by which those colonies can be kept dependent on the mother country, or the Governors themselves, representing the Crown, maintain any powers over their Assemblies or any agreement with them. No Governor ever departed from the prerogative in one instance, but he raised in the Assembly a conti- dence to attack it in another, which as constantly brings on contests, which again create animosities, which in the end obstruct all parts of government." They thought a new Governor necessary to the re- covery of the prerogative, who might be " able to re-unite the Assem. bly and prevail upon all men to assist in re-establishing the proper and ancient constitution of goverment. As this is a work which cannot be performed but by the united consent of the whole Legislature, it probably never can be obtained while the several parts of the Legis- lature continue at the greatest enmity." It is submitted " whether in the first instance, the executive part of the government, or the common harmony of it, can ever be retrieved, but by re-instating in the Governor his original and necessary powers ; whether, in the second place, the Assembly of this province will ever be induced thus to give up all the results of so long contest, and their acquisi- tions by it, but in a time of general satisfaction * * * * because it cannot be done but by the approbation of the Legislature, which

DANGEROUS DEFECTS OF THE SYSTEM.

must be greatly reconciled to the government there, before they will concur in such a method of giving it permanent strength and support."

The Council thought it would be an admirable idea to induce the Assembly to pass " a general perpetual revenue act, upon the plan of that which has been passed in Jamaica," when "the salaries of officers, the fund for the payment of them, the maintenance of the fortifications, the trusts and powers reposed in particular officers, the charge of presents to the Indians, the salary of the Governor, in one word every necessary measure of Government would be last- ingly provided for, the several points of domestic government now so often disputed would be finally decided by the Legislature, and the several powers legally belonging to the Governor, and requisite for his supporting his character would be, by a law of the province, put out of dispute, and all the claims of present factions against the pre- rogative of the Crown would be by a perpetual act of the Legisla- ture itself ascertained."

This conclusion of the Privy Council was in effect a recognition of the rights of the People of the province, not only to all the exist- ing privileges of the British Constitution, but to all the power the Assembly could grasp. On the other hand, the rights and liberties of the People were liable to be broken down at any moment, if a subservient Assembly could be seenred. The experience of Great Britain at this time gave good reason to believe this could be done. The power of the Crown had been broken, but the power of the People over Parliament had not been established. This freedom from responsibility had bred corruption. Danby, Walpole, Pelham - these names are odorons with the stench of political debauchery, when place and pensions and money were the accepted means of securing votes and influence. It was no unnatural thing, therefore, to suppose that by bribery and blandishment a shrewd Governor could wheedle or buy a perpetual revenue from some pliant Assembly. Against this peril, the People had only to interpose their own virtues and fearlessness.

Here, then, were the defects of organic discord and the dangers of debauchery, with no effective mechanical power in the system of administration to prevent their success. The judicial function was then but an adjunct of the Executive, and not as now an independ- ent department of government. The Executive had but to buy arbitrary power from the Assembly, to place him in absolute control of the rights of liberty and property of the people. There were but

THE PROBLEM OF GOVERNMENT.

two departments of government really, the Executive and the Legis- lative, and of the latter the Executive possessed two of the three branches. How were the People to get these under their control, and to separate the Judicial from the Executive branch of the goverment ? Or were they, rather, to lose the control, as England was about to do, of their own representatives ? Upon the answer to these questions turned the entire solution of the problem of popular government.

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Civil List and Constitutional History of the Colony and State of New York, Part 10

Author: Publication date: 1886 Publisher: Albany Number of Pages: 1380

Author:
Publication date: 1886
Publisher: Albany
Number of Pages: 1380