Civil List and Constitutional History of the Colony and State of New York, Part 11

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

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Toward the close of the year (November 19, 1751), in a report on Indian affairs, it is said that the " Assembly would not grant Indian appropriations unless the Governor assented to their nominating the commissioners, which he would not do." On the 4th of October, 1752, Governor Clinton reports his complaints of the Assembly, in a letter to the Lords of Trade, and says that " by every act granting money to the King for several years past, the great part of the money is issued without Governor's warrant and sometimes by war- rant of the Speaker only. Tho' the Assembly dare not deny the King's authority over the militia, yet an opinion is inculcated among the people that the powers of the militia can only be put in execution by the authority of the Assembly, so far that no penalty can be incurred by disobedience without an act of Assembly for that purpose. Acts in former times were annually passed to lay penal- ties in certain cases, till within this four years, since which time no militia bill has been brought in. Your Lordships will consider how far it is proper to suffer the King's power over the militia to depend on the pleasure of the Assembly. I am persuaded it is not in the power of the Governor, as things now stand, to put a stop to these perpetual graspings in Assemblies after more power; the remedy must come from a more powerful authority than any in America."

On the 5th of July, 1753, the Lords of Trade informed the King that Governors had been instructed to use their best endeavors to secure a permanent and fixed revenue. Clinton had asked to be relieved, but the Lords of Trade had declined to comply. He had lived a secluded life, and had become so weary of the struggle that he resigned in the fall. Sir Danvers Osborne, brother-in-law of the Earl of Halifax, took the oaths of office on the 10th of October. He had lately lost a beloved wife, and crossed the Atlantic with a heavy heart. The city council, in an address, said, "we are suffi- ciently assured that your Excellency will be as averse from counte- nancing as we from provoking any infringements of our inestimable liberties, civil and religious." The next day, he told his Council

CONFLICTING SOVEREIGNTIES.

that his instructions from the King were, to inform the Assembly, that they were required " to recede from all encroachments upon the prerogative," and must afford permanent and indefinite support to the government ; while all public money was to be applied by the Governor's warrant with the consent of the Council, and the Assembly was never to be allowed to examine the accounts. Ile was informed that the Assembly would never comply, when he plaintively inquired, "Then what have I come here for?" and toward morning hung himself on the garden fence. That day, (October 12), the Executive duties devolved upon the leader of the People. Lieutenant-Governor De Lancey : and the popular party came into full possession of all the powers of government.

Lieutenant-Governor De Lancey was now placed in a somewhat em- barrassing but very important position. As the temporary custodian of the executive power, he was bound to represent the King ; as the leader of the People, he was bound not to forfeit their confidence. If he could seenre the proper dignity aud independence of the Executive, with the proper control and real sovereignty of the Peo- ple, the problem which was presented in the province would be solved. When he assumed office, two powers claimed sovereignty, the Crown and the Assembly ; but the real authority was back of both, and that authority demanded recognition. There was never any misunderstanding as to the nature of the conflict between these two sovereignties, either in the Board of Trade in England or in this province. De Lancey endeavored to render loyal service to both. One of the complaints made against him by Clinton was, that he talked one way to him and another to the Assembly. But Clinton failed to see, that which the Chief Justice evidently apprehended, that obedience to law and to the people must be reconciled. Soon after De Lancey became Lieutenant-Governor, the Assembly passed the usnal bill for paying the salaries of the officers of government, in which they gave him the same salary as had been allowed to Governor Clinton. De Lancey, however, informed the members of the Council that he could not sign the bill; as it was inconsistent with the Royal instructions, and they rejected it. In the in- structions to Governor Osborne, the King expressed his disapproba- tion of the extraordinary conduct and proceedings of the Council and Assembly during Clinton's administration, of their unjustifiable encroachments upon the Royal rights and prerogative, and their illegal attempts to wrest the powers of government out of the hands of the Governor ; signifying at the same time his pleasure that the

RESTORING THE ANCIENT CONSTITUTION.

Governor should recommend to them to prepare a proper law, for establishing a lasting and permanent revenne for the support of goverment, as the only effectual method of restoring peace and tranquillity to the province, and preventing the like disorder and irregularities for the future; and also directed the Governor to re- move any member of the Council or other officer appointed by his Majesty who should conenr or join in such unwarrantable measures for the future. These instructions were laid before the Council and Assembly by De Lancey, and they doubtless had the effect of making the former body subservient to the Crown instead of obedient to the People. Thus a dual sovereignty divided the Legislature.

The Lieutenant-Governor now addressed himself to the work of reconciling the prerogative with the sovereignty of the People. This could easily be done, if the Governor respected the wishes of the People in the discharge of executive duties, and the just claims of the Assembly were conceded. In a communication to the Lords of Trade January 3, 1754, De Lancey asked instructions with regard to his power to approve a separate bill providing money for Indian presents, which he thought he might do. He said that with respect to the annual appropriations for salaries: " I shall not, on any con- sideration of advantage to myself, fall in with them in it, without express permission.". A bill had been passed granting his Majesty the impost duties, but without appointing any officers, the money being paid into the treasury subject to future acts of appropriation. He had seenred the passage of an act to regulate the militia, " though the House was generally averse to it, for the same reasons they would not pass the bill in the latter part of Mr. Clinton's administration, which was that he had made colonels, and other officers in the mili- tia. in most counties, that were generally distasteful to the Assem- blymen and to a great majority of the freeholders." The Lientenant- Governor then proceeded to say, " that Mr. Clinton had dissolved the Assembly several times in order to bring them into the ancient method of supporting the government, * but could not obtain it by the rougher method of dissolution. I have tried the softest methods I could, but to as little purpose. The principal members frankly told me, I might dissolve them as often as I pleased, as long as they were chosen (which I hear most of them would be again if dissolved on that point) they would never give it up. What they would come into was, first not to meddle with the executive part of the government, which I had convinced them was an en- croachment on his Majesty's prerogative, the executive power being

OBSTINACY OF THE ASSEMBLY.

solely in the Crown ; and, secondly, that all moneys should be drawn out of the treasury by warrants signed by the Governor or Commander- in-Chief, with the advice of the Council, excepting only the Agent's salary and their Clerk's and Doorkeeper's allowance. If it should be his Majesty's pleasure that I may pass the act for the payment of the salaries and services of the government in the same form as has been done by Mr. Clarke, Lientenant-Governor, and since by Mr. Clinton, Governor, I think there will be an end of contention in this province." As this was an advice to the Lords of Trade to. surrender, the conchision was undoubtedly soundly drawn. In the event of such surrender, the Lieutenant-Governor said the Assembly would doubtless provide the necessary fortifications, and " the point of support for an indefinite time may be left open."

The Lieutenant-Governor having transmitted an address of the Assembly to the King, in which they claim to have been falsely and maliciously represented, the Lords of Trade responded that " the Assembly have taken to themselves not only the management and disposal of publie money, but have also wrested from your Majesty's Governor the nomination of all officers of government, the custody and direction of all publie military stores, the mustering and direction of troops raised for your Majesty's service, and in short almost every other executive part of goverment, by which unwar- rantable encroachments and invasion of your Majesty's just and undoubted authority, order and goverment was subverted and your Majesty's service obstructed, and the security of the service endan- gered." Dated Whitehall, April 4, 1754, and signed Dunk Halifax, J. Granville, James Oswald, Andrew Stone. The address of the Assembly, upon the reading of this report thereon, was rejected by the King by order in Council, Angust 6, 1754. In April, 1754, the Assembly voted $1,000 for subsisting two companies which had been ordered to Virginia, for service in the expedition against the French. The money's appropriated were made payable on receipts, instead of on the warrant of the Governor. The Commeil rejected the bill, and the Lieutenant-Governor prorogued the House until the next day, and recommended the providing for services in an unobjectionable manner. " After all my endeavors," he writes, " I could not prevail on them to give a farthing for this service, or to enable me to raise men for the assistance of Virginia. The extreme obstinacy of the Assembly in this instance will point out to your lordships the danger there is of the disappointment of any service, however urgent it may be, as the Assembly on the one hand will not recede, and the

REMONSTRANCE OF THE LORDS OF TRADE.

Council on the other think themselves not at liberty to give in to the Assembly's method, unless they depart from the Royal instruc- tions. For my own part, as I look upon this service to be distinct from the annual and constant charges of government, I should have made no difficulty in passing the bill rather than to suffer a ser- vice of the nature to drop, relying on this that the necessity I was thus laid under would appear to your lordships a sufficient excuse; and I beg your lordships' sentiments for my guide upon such occa- sions." Secretary Thomas Robinson wrote to De Lancey on the. 5th of July expressing " great concern " at the " unwillingness " of the Assembly " to exert themselves in what is now become so es- sentially the common cause of all the colonies ; ""the Lords of Trade the same day expressed surprise at their " condnet in so perilous a situation," and of course sustained the Council. It was for no lack of patriotism, however, that the Assembly still insisted upon the con- trol of extraordinary disbursements. They were liable at any moment to have a dissolute and profligate Governor sent out to them, and they were not disposed to relinquish their right to control the ex- penditure of money by him.

The Lords of Trade clearly saw the issue, and the consequences it involved. They wrote to De Lancey: " We are glad that you have satisfied the principal members of the Assembly, of the un- reasonableness of meddling for the future in the executive part of goverment, " but as it is still a point insisted on that the revenue, even for the services of a permanent nature, should not- withstanding be granted only from year to year, we are afraid that either these pretensions, which are so explicitly disavowed in words, are meant to be retained in effect, or that at least the reason of granting the revenue only annually may from time to time revive these very pretensions ; " and said that "if they persist by the means of annual grant either to attempt wresting from the Crown the nomination of officers, or any other executive grants of govern- ment, " though they may succeed at times, " yet those attempts are so unconstitutional, so inconsistent with the interest of the mother country as well as of the Crown, and so little tending to the real benefit of the colony itself, that it will be found they flatter them- selves in vain if they can ever give them a stability and perma- neney."

Meantime, the People of the Province proceeded in patriotic spirit to prepare for war while persisting in the maintenance of their rights. The Assembly, which had adjourned to the 2d Tuesday of

REVOLUTIONARY CONDUCT OF THE ASSEMBLY.

March, 1755, was called together on the 4th of February, passed a militia act and an act appropriating £45,000 to war purposes. The moneys appropriated were " to be issued by order of the Commander- in-Chief with the advice of the Council." writes De Lancey, " so that the Assembly have receded from one of their ill-grounded practices ; " but the managers (selected by De Lancey) were named in the bill, the Assembly even refusing to insert the words, " whom his Honor has thought proper to appoint."

The war situation had now become so grave that the Lords of Trade deemed it expedient to abandon the struggle. They complimented the Council, expressed the hope that the Assembly would "depart from all mwarrantable and illegal eneroachments upon his Majesty's rights and prerogatives," and permitted the Governor to assent to annual appropriation bills. Governor Hardy announced his arrival in the province on the 6th of September, and on the 7th of Novem- ber the Lords of Trade acknowledged "the zeal and resolution which the Province of New York has shown, in the vigorous measures they have taken for the defense of his Majesty's rights and possessions."

The contest between the People and the Crown, as conducted by the representatives of each, was not so much over the question of annual or permanent appropriations, as of control over the Exeentive department. The Assembly which met December 2, 1755, in their address to the Governor, expressed concern that they should be re- quired to abandon the system of annual appropriations, while other colonies were left to practice the means denied them. The Lords of Trade, in an address to the King (February 4, 1756), answered this very conclusively. " The late condnet of the Assembly of New York, in making use of this indulgence as an instrument to wrest out of the hands of your Majesty's goverment almost all the exe- cutive parts of government, by an ammal nomination of officers, and by their own authority dispensing of the public money granted to your Majesty without a warrant from the Governor and Council, made it necessary that your Majesty should take this proper method of checking sneh unwarrantable proceedings and restoring the Constitution to its true principles. We are sorry to find that this construction has not had all the good effects which might have been hoped for from it ; it is, however, a great satisfaction to us to observe that the present Assembly does not appear to be desirous of reviving the unwarrantable and illegal claims and pretensions of former Assemblies, and have declared that they do not mean to take

RIGHTS OF THE PEOPLE MAINTAINED.

upon themselves the executive part of government." On the 4th of March, 1756, the Governor was directed not to press the estab- lishment of a permanent revenue for the present, but to consent to temporary bills, " provided they be in all other respects conformable to instructions with regard to the granting and disposing of public money."

The Assembly was again prorogued December 1, 1756. In the appropriation bills, officers appointed by his Majesty or by the Gov- ernor were payable by warrant, and officers appointed by the Assem- bly were paid by order of the House, signed by the Speaker. A stamp act was passed, and an act imposing an excise duty of six pence per pound on tea. Commissioners were named in the bill, as being those " whom his Excellency, the Governor, has been pleased to appoint," by which " the Assembly acknowledge the right of appointment, but appear to have reserved to themselves the power of putting a negative on the Governor's appointment." Here, again, the principle of the sovereignty of the People is insisted upon, and it is still preserved in the practice of requiring confirmation by a legislative body, in the appointment of officers. On the 10th of March, 1757, the Lords of Trade surrendered on this point, also, saying that "although we cannot help expressing our great concern that in the manner of framing the laws for those and other purposes, the Assembly should have again reverted to the claims and preten- sions which we had hopes, from former declarations made by them, they were willing to have receded from," yet in the present exigency they would not advise their repeal.

The Assembly continued steadily aggressive. On the 19th of December, 1758, De Lancey was censured for having approved an act relating to his Majesty's Quit Rents, which " so materially relates to and may so affect his Majesty's rights and revenues." The As- sembly, the following year, passed an aet increasing the powers of Justices' Courts, which was criticised by the Lords of Trade. In response thereto (February 16, 1760) De Lancey made this weighty justification for having given the bill his approval : "Justices are appointed by the Governor with the advice of the Council, there. fore the greater their powers are, if they be not oppressive to the people, the greater weight and influence will the Governor have, and be better able to carry on his Majesty's service." On the other hand, there was no danger from erroneous decisions, for there existed the power of removal by certiorari to the Supreme Court.

De Lancey died September 30, 1760, after having directed the

CONTROL OF THE JUDICIARY.

development of the' civil polity of the province to the end of mak- ing it an efficient mechanism for executing the will of the People, without impairing the efficiency of the Executive. Encroachments upon the latter were made for the purpose of publie protection, and not in order to bring it in abject subservieney to the Assembly. Hle was a lawyer of marked ability, had grown up with the province, and was a skillful organizer. He did not manufacture a system ; but it grew under his hands. The same year that he died, George III ascended the throne of Great Britain.

Immediately a new conflict was commenced in the province. All commissions terminated on the death of a sovereign. The differ- ences which had always existed with regard to the judicial power now became the prominent issue. The Assembly proposed to pass an act to establish Courts of Judicature by law instead of by preroga- tive. Judges were to be removed by the Governor on au address from the Assembly, or by the advice of at least seven members of the Council. The Lieutenant-Governor, the obsequious Cadwallader Colden, suggested that the King also be empowered to remove, thus preserving the prerogative of the Crown ; and the lawyers of the province engaged in discussions of the distinction between commis- sions issued by act of Parliament, and those on appointment by the King. An act was passed that judges should hold office during good behavior instead of during the pleasure of the Governor. The Lords of Trade, 21st November, 1761, held that this was "subver- sive of that policy by which those colonies can be kept in a just dependence upon the government of the mother country." They said that " the change which the tenure of office underwent at the Revolution was in consequence of arbitrary and illegal interposition under the influence of the Crown, upon points of the greatest im- portance to the Constitution and the liberty and rights of the sub- ject," but salaries were at the same time settled upon them. The same circumstances, it was claimed, did not exist in the American colonies. "It is difficult to conceive a state of government more dangerous to the rights and liberties of the subject, aggravated as the evil would be by making the judges' commissions during good behavior, without rendering them at the same time independent of the factious will and caprice of an Assembly," by providing per- manently for their support. In accordance with these views, instruc- tions were issued to Governors on the 2d of December, "that you do not, upon any pretense whatever, upon pain of being removed

100

TENURE OF THE JUDICIAL OFFICE.

from your government, give your assent to any act by which the tenure of the commissions to be granted to the chief judge or other justices of the several courts of judicature shall be regulated or ascertained in any manner whatever, and you are to take particular care in all commissions to be by you granted that they be during pleasure only, agreeable to ancient practice and usage."

The records of the General Assembly, on nearly every page, express the regard of the colonists for Law, as well as their devo- tion to the rights of the People. The lawyers of the province were a unit in their construction of Law. In English political nomen- elature, they were all Whigs together. Bench and Bar stood as one in defense of the liberties of the people. So tenacious were they, that Colden, in a letter to the Lords of Trade (January 11, 1762), referring to De Lancey, said that they had not long since " a glar- ing instance " of the political power of a Chief Justice appointed for life. It was this power which it was determined to secure on the side of Royalty. To do it, it was necessary to import a lawyer. Benjamin Pratt arrived from Boston in October, 1761, and in November he was commissioned Chief Justice "during his Majesty's pleasure." This excited great indignation. The Assem- bly absolutely refused to grant any salary to the Chief Judge or to any of the Justices unless their commissions were issued during good behavior, and then they would grant the appropriation for one year only. The Council tried to persuade the Assembly to make salaries of Judges continuous with their commissions, but without effect. The Judges presented a memorial to the Lieuten- ant-Governor reciting that the commissions formerly granted to them by the late Governor were during good behavior, and declined act- ing unless the new commissions read in the same way. Pratt alone served, and he was compelled to do it at the expense of his private fortune. The Lieutenant-Governor recommended that he be paid out of the quit rents, and Pratt (May 24, 1762) made the same request, stating that his salary had been denied him by three suc- cessive sessions of the Assembly, and that he had nothing to hope for from that or any future Assembly. The quit rents, therefore, were set apart, as a fund from which to pay his salary. The Assem- bly made an appropriation of salaries, on condition that the com- missions issue for good behavior ; and the Lords of Trade (June 11) censured the Lieutenant-Governor for approving the act, saying that no personal considerations " ought to have induced you to acquiesce in such an unprecedented and unjust attack upon the authority of

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PLATE E

VINCIES NOSTRANOVI EBORA TONIAONA NOTTIOIS EBORACI IN AMERICA

101

EXECUTIVE USURPATION RESISTED.

the Crown." The death of Pratt terminated the controversy, and in March, 1763, Governor Monckton issued new commissions for all the judges.

The Supreme Court, as thus constituted, soon became an invinci- ble bulwark against a monstrous usurpation. In 1764, Thomas Forfay obtained judgment in a case of assault and battery against Waddel Cunningham, and motion for a new trial was denied. Robert Ross Wadel, agent for defendant, then prayed for an appeal for verdict and judgment to Lieutenant-Governor and Comeil, which was denied on the ground that no such appeal could be had. Colden thereupon directed the Supreme Court to forbear proceeding until the canse and merits were heard by Lieutenant-Governor and Council. On the 14th of November, 1764, Chief Justice Hors- manden stated to the Lieutenant-Governor and Council the reasons why the Supreme Court made no return as commanded, and on the 19th presented the opinion of the Court in writing. The Attorney- General decided that the Council could only correct errors. Other justices read their reasons subsequently. The Council unanimously rendered an opinion, January 11, 1765, that no other than an appeal in error could lay to them. Notwithstanding this, the King issued an order in Privy Council July 26th, allowing appeals to Governor and Couneil from the verdicts of juries on questions of fact. This order was laid before the Council October 9, by Colden, and on the 15th a writ was issued to the Supreme Court. On the 12th of November the Chief Justice made a return that the Justices of the Supreme Court found it impossible (as the Law knew of no appeal from a verdict) to' comply with the command. On the 15th of December, the General Assembly adopted resolutions thanking the Supreme Court and, the Council, sustaining their action, condemning the illegal proceedings, affirming the right of trial by jury, and affirming " that an appeal from the verdict of a jury is subversive of that right, and that the Crown cannot legally constitute a Court to take cognizance of any such appeal."

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Civil List and Constitutional History of the Colony and State of New York, Part 11

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

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