Civil List and Constitutional History of the Colony and State of New York, Part 3

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

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FRIESLAND AND THE NETHERLANDS.

ism, and they had an organization designed solely to protect their little commonwealths against it. A congress of the whole con- federaey wa- held annually. the delegates to which were chosen by popular suffrage. Each of its seven little states was subdivided into districts, and each district was governed by a Griet Mam (great man, select many and Assistants. Above all these districts was a Podesta, identical in name and functions with the chief officer of the municipal republic of Italy. The chief duty of this magis- . trate was to protect the citizens against lawless barons, by executing sminary justice upon them. The Podesta was chosen by the people. generally for a limited period, but sometimes for life ; and was as- sisted by a board of eighteen or twenty councillors. Sometimes one Podesta was elected for the entire province, and Friesland lost its independence by elesting the Duke of Saxony snch Podesta. who sold the sovereignty this acquired to the House of Austria, and Charles V compelled submission.

In 1826-9. the towns of the various provinces of the Netherlands appeared in the Assembly of the Provincial Estates along with the noblemen. At this time, the Imperial power had been destroyed by the encroachments of the principalities into which the Empire had been disintegrated. In the course of the following century the six chief cities of Holland acquired the right of sending deputies regn- larly to the Estates. These deputies, with the nobles as the sole representatives of the rural districts, constituted the parliamentary power of the provinces. The yeomanry were unrepresented. When the House of Burgundy obtained the sovereignty of the Nether- land-, there arose wars between the princes of the House and the cities. At the death of Charles the Bold, the provinces and towns assembled in convention, in 1477, and extorted from the yong Duches- Mary a charter or constitution, called the Great Privilege. by which the ancient rights were confirmed .? Thereafter the Pro- vincial Estates sent delegates, or rather envoys with limited powers and precise instructions, to a general assembly or States General. representing all the provinces. The same year Mary married Maxi- milian, son of Frederick III, and thus the House of Austria obtained the vast heritage of Charles the Bold. Charles V vainly songht to compromise the religions differences of his time, and finally entered into an alliance with the Pope against the nobles. He was defeated in the struggle. By the religions peace of Augsburg, signed Sep-

1 The cities Were to appoint their own magistrates. hold their own courts, and were not to colitribit . 10 taxes they had not voted. The sovereign agreed to meet the E-tates In person, and ask for the necessary supplies ; and taxes were not to be imposed, nor was declared, nor money coined without their content.

GOVERNMENT OF THE NETHERLANDS.

tember 25, 1555, religions freedom was assured the prices and barons, but denicd the people; the only concession granted subjects who would not submit to the religion of their lords being permission to emigrate. And this was all they secured, in direct terms, when at the close of the Thirty Years War, by the treaty of Westphalia, signed October 24, 1645, the dismemberment of the German empire was effected, and the independence of the Netherlands and of Switzerland recognized. Surely, something broader than this is needed to enlist our sympathies. The barons and princes fought against the exercise of spiritual and civil authority over them, but asserted their right to tyrannize over others. They did not deny arbitrary power; they simply claimed to be the rightful despots, and resisted the claims of Emperor and Pope.1

Charles V abdicated the throne one year after the religious peace of Augsburg, and was succeeded in Spain, Italy and the Netherlands by his son Philip II. The government of the United Provinces which carried on the great struggle with this despot was not a gov- erment by the people, for the municipal magistrates had become self-elected close corporations. Each province contained a large number of cities, which were governed by a board of magistrates, varying in number from twenty to forty. This college was called the Vredschap (Assembly of Sages or Wise Men). The members were appointed for life. Sometimes the Sages filled vacancies directly, and sometimes they nominated a double or triple number to the Stadtholder, who selected one therefrom. The Sages chose the Schepens, a judicial body, and the Burgomasters. The union of the Netherlands was a compact between sovereign states ; and there naturally sprang up within it a National and a Provincial party. The Nationalists were led by the Stadtholder, Prince Maurice, of Nassau ; the Provincials by John of Barneveld, Advocate of Hol- land. Maurice, in 1618, forcibly overthrew the governments of dis- senting provinces, and in 1619 caused the judicial murder of Barne- veld. Manrice died at the Hague, April 23, 1625, leaving the States General supreme. The same year witnessed the accession of Charles I and the beginning of the second great epoch of the Thirty Years' War.

Motley says of the polity of the Netherlands that, " Judged by the principles of reason and justice, it was in the main a whole-

1 The Protestant Princes of Germany truck Philip II to say that " the passed Is never to differ from the opinion of his master." and he simply struggled for the conceded right of a Sovereign when he declared : "Five others who live in error, hold that vassals are to conform to the religion of their master, it is insufferable that it should be proposed to me (hat my vassals should have a different religion."

PATERNAL GOVERNMENTS.

some constitution, securing the independence and welfare of the State, and the liberty and prosperity of the individual, as well, cor- tainly, as did any polity then existing in the world." On the other hand, it must be borne in mind, that while it had no King, it recog- mized no People, which was a fatal defect ; for when the pressure from without was removed, the ruling classes separated themselves into a plutocracy, abandoning business and living on hereditary for- tunes, thus bringing about the downfall of the Commonwealth. Here, I however, civil and religious liberty held despotism at bay, while it made for itself a home beyond the seas.

The English contemporary of Philip II was Queen Elizabeth. During the earlier portion of her reign the last traces of bondage disappeared; but toward its close she asserted claims to arbitrary power which justly impairs her standing as a liberal monarch. Par- liament asserted its constitutional rights with greater vigor ; and the people gave evidences of the fact that any aggressions on the part of the Crown would not be submitted to.

The Charter of the West India Company was issued in 1621. The Thirty Years' War had commenced. It was the year in which the English Commons resolved, " That the liberties, franchises, privileges and jurisdiction of Parliament are the ancient and un- doubted birthright and inheritance of the subjects of England :" and when James tore their protestation in pieces with the remark : "I will govern according to the common weal, but not according to the common will." Barneveld was dead ; Grotius was hiding away from the despotism of Maurice. There was not a country in which popular rights were respected, and popular power could be expressed and enforced in orderly methods. Just then the western gate was opened.

Imperialism, clericalism and provincialism had now become merely different forms of paternalism ; sometimes aeting the part of a wise and indulgent parent, at other times crushing the people under the iron heel with all the cruelty of a depraved tyrant. The instincts of freedom, however, were strong within the people, for ancient Aryan hberties, sustained by equally ancient orderly obedience to Law, had been enjoyed during millenniums of agricultural labor. The hereditary instincts had been enltivated by centi- ries of true fatherly care on the part of the Church. There were no newspapers, then, to educate the people. The Church did it, and to the Church must we give credit. Nothing so promotes a sense

PROBLEMS OF THE SEVENTEENTH CENTURY.

of human equality and the worth of humanity, as the inculcation of the belief that man is the subject of Divine solicitude, and that the God who is Father of all requires each to love Him supremely and his neighbor as himself. This religion, leading to works in behalf of all mankind, made democrats and republicans of all. To the eu- vating and elevating influence of the Church, therefore, we must give credit for the fact that the people were prepared to assert their ancient rights, even as against the authority of the parent under whose guidance they had attained so robust a majority.

Much is to be allowed to the Church of those days. Questioned by some it had trained to think, regarded no longer with reverence by those it had lifted to a level with itself, repudiated by others in their search fer knowledge, disintegrated by the political powers it had strengthened and the intellectual and spiritual forces it had quickened, dishonored by some of its own representatives, derided by the sinner, disclaimed by many saints and despoiled by the rob- ber, it had fallen upon a time when earnest men clutched for suprem- acy either in unholy list or sincere conviction that only thus could the present prosperity and future happiness of themselves and those under their charge be secured. In speaking of the Church, we speak of it in its broadest sense; for when it fell to pieces its fragments warred with factions fury, clutching after the prerogatives they denied to the historical organization. This was a natural and unavoidable stage in progress toward a higher develop- ment. It was an age of civil and religious anarchy, in which cach songht its own preservation by all the means in its power. To try any by our own standards would be unjust judgment. We condemn only those who sinned against the common standard of civilization of the age in which they lived.

The problem awaiting solution was to be solved by the rough friction and sharp collision of these forces, aroused when men awakened to the consciousness of their ancient rights, their native lib- erties, their inherent strength. That problem was, how to co-ordinate the various forms of force into one self-acting agency for the govern- ment of society. Popularism is merely the unfolding of the indi- vidnal life; crush that, and the race dies under the heel of the despot. Provincialisnt widens individual development, by fostering local pride and stimulating local growth ; crush that, and yon cru -hi the vital forces of society. National feeling, national sympathy, national mity, bind humanity together, broaden the sweep of their activities, enlarge the scope of their powers, extend the effect of

EUROPEAN SYSTEMS OF GOVERNMENT.

their energies, inspire and vitalize them in their most compre- hensive form, and give to them a strength and glory of achievement possible in no other way. Ecclesiasticism holds within it the eternal agencies of an eternal God. An imperial combination of these would be the union of the wisdom of the fathers, and its practical application in behalf of the children. How to do all this was first shown in New Netherland. There was no exemplification of it anywhere else on the globe, when the foundations were laid in that imperial province.

The English submitted the gravest questions of right and prerog- ative to precedent ; and as authorities were conflicting, force was the only arbiter. The historians and jurists were partisans, intent either upon strengthening the Crown or Parliament. The judges of the common law, holding their situations during the pleasure of the king, were subservient to him ; and other and more despotie tri- bunals were established. The head of the State was also head of the Church, and hence England was convulsed by ecclesiastical struggles for control. The legislative power and the taxing power, however, were denied to the Crown, although frequently usurped by it. On the other hand, the Dutch conceded neither the judicial, nor the ecclesiastical, nor the legislative, nor the fiscal power to a Chief Executive. In France, the tendency of the feudal system to absolu- tism found no adequate restraint, but the Dutch were more success- ful. In Spain, where parliamentary and municipal rights once existed in most liberal form, the aggressions of royalty had resulted in their overthrow. The Dutch, while not giving to the people the exclusive choice of their rulers, kept the feudal system within its legitimate sphere, and limited it to its ideal. The feudal ideal, politically, was the Law of service, written in Roman jurisprudence and realized in the Christian life. Its fatal weakness was, that it was powerless to protect the people against despotie kings, princes and judges ; and its great strength was, that it inculcated the sense of personal and provincial rights, while it taught respect for civil and ecclesiastical rulers.

The first governments established in this country by authority were paternal or arbitrary in form. This was unavoidable. Before you have a settled government by or over the people, you must have a permanent settlement of the people. Hence the English and Dutch governments vested large powers in the original authorities, but they were nevertheless strictly required to administer the laws of

AMERICAN PROPRIETARY GOVERNMENTS.

the mother country. The Charter of the Dutch West India Company was issned after the judicial murder of Barneveld. By its terms, the will of the company was supreme, and all power was vested in the Director-General and Council, who were to be governed by the Dutch Roman law, the imperial statutes of Charles V, and the ediets, resolutions and enstoms of the United Netherlands, in all cases not otherwise provided for. This shows the genesis of Dutch government. The basis of it all was the enstoms of the fathers. The superstructure was a mion of the Roman, German and Dutch municipal systems. The Dutch were governed by a league of com. mercial guilds, represented in the States-General in order that they might protect the organized interests of each class of people ; not that they might invade the rightsof others. This principle of conserving the ancient and vested rights of all the people as against any portion thereof, even a majority, and as against government itself, was the foundation principle of the province as of the mother country, and distinguished it in the beginning from either of the English colonics. The goverment was a development of the ancient Aryan guild custom, moulded by contact with the Roman municipality, evolved under powerful trade influences, and modified in time of war to secure stability, without thought that in the end the change would strangle freedom in its very cradle. The purely rural element had no representation in the external government, as the system was entirely fendal ; but the rural populations seem to have administered justice among themselves as fully as a system not framed upon a principle developed out of their necessities could secure.

The English organized the government of Virginia on their opposite ancient model, which was that of an agricultural people ; cities having no sovereign rights except those acquired as a constitu- ent element, by means of an increase of population at natural centers. A legislative assembly met at Jamestown, July 30, 1619; but it possessed little power. In July, 1621, the London Company gave the colony a written code of laws based on the English Constitution, appointed the Governor and Councillors, and continued the House of Burgesses as a representative body. In 1624 the representatives of the people enacted : " The Governor shall not lay any taxes or impositions upon the colony, their lands or commodities, other only than by authority of the General Assembly, to be levyed and ymployed as this said Assembly shall appoynt." The same year the king abolished the London Company, and gave Virginia a royal government. In the last analysis, the English system gave the goverment absolute power over all subjects. Whoever con-

2.4

ENGLISH AND DUTCH SYSTEMS.

trolled the government worked their sovereign pleasure with all people, whether such control was held by Crown of Parliament. This system gave inrestrained power to the tyrannical majority of a real minority, as surely as the opposing principle of Royal au- thority in a single executive gave despotie power to the Crown. The Dutch system, while holding the elements of fendal liability to tyranny, held them in strict subservience to Law, and guarded against abuses by conferring no power without accompanying it with an adequate safeguard against its arbitrary exercise. In England it was either the Crown or Parliament making laws at their own pleasure; in the Netherlands, government was a commercial agent, while the laws and customs of the fathers were administered and justice seenred by magistrates nominated by the people. While the Dutch form was fendal, its spirit was municipal ; and the mmi- cipality ou the continent had been the fortress of liberty. It was how to be brought in contact with rural love of freedom, trans- planted from England. The Dutch gave to New Netherland, in feudal shell, a paternal guardianship of liberty regulated by Law; the English gave to Virginia a popular love of liberty with popular methods for its preservation, provided the Sovereign gave consent, and the people did not become despots. It was in the blending of these that the true spirit of feudalism was to find its fruition, and the real genins of popularism its final and perfect consummation.

In 1620 (November 9), on board the Mayflower, by solemn com- paet, the foundations of a third system were laid; that of an eccle- siastical commonwealth, the members of which were to govern them- selves in accordance with English law, and in loyalty to the English government. The English system was primarily a goverment of rural boroughs and shires, and had its root in German soil ; but in New England this system was associated with ecclesiasticism. The primitive Aryan system of co-operative enltivation was first adopted by these church colonies ;1 but was associated with the old German and Roman idea that the head of the family is the chief priest of the household, independent of the State, only in Rhode Island. The English Puritan mind accepted the Aramean principle that allegiance is due to authoritative interpreters of religions teach- ing: but. in harmony with the German view, held that believers

! " l'o tho e who know," says Maine, " how strong a presmption already existed, that individual prop- erts cune imorsi dence alter a slow process of change, by which it disengaged itself from collective hold. ings la families of langer assemblages, the evidence of a primitive village system in the Tentonic and Sont- dinasian countries has very great interest : this intere I largely increased when England was shown to oy- hibit almost as many traces of joint owner hip and common cultivation as the countries of the north of the continent . but our interest culminates. I think, when we find that these primitive European tendres and this primitive European tillage constituted the actual working system of the Indian village communities.' The Plymouth colony was organized mider m arrangement by which all lands were to be worked in common for seven years, and then the property was to beequally divided. In 1623, the plant of working land in confi- mon was abandoned, art that of working allotments, for one year, was adopted ; and the right of trial by jury was established. In 1627, lands were equally divided, in accordance with The original stipulation.

SUPERIORITY OF THE DUTCH IDEAL.

voluntarily associated are the interpreters, and that they constitute the State, to which civil and religious obedience are alike dne. Church membership was essential to civic existence; and member- ship in the churches was largely under the control of the ministers. The system was, therefore, one of priestly primacy in matters of State, but not one of priestly dominion. It was a Church State. In Maryland, the attempt was made to establish a State which would recognize the indefeasible right of man to submit implicitly to the religious teaching of any Church, without forfeiting his civic rights, with the principle of non-interference by the State with any Church, or by one Church with the members of another-this system being associated with English civic polity.

The English parliamentary system vested supreme power in the legislative majority. The Virginia system placed the Legislature under the control of a Royal master. The New England system rendered the Church supreme. Maryland and Rhode Island placed supreme power in the hands of the people or their representa- tives, at the same time giving a pledge to respect the rights of all. The Dutch made the Judiciary supreme, and denied all arbitrary power, either in people or parliaments, in civil rulers or religious teachers, and sought to fortify the people against its exercise. Thus the fendal shell of Dutch government inclosed the seed of liberty, ready in fullness of time to germinate in most perfect form.

It was not until 1624, one year before the death of Prince Mau- rice, the accession of Charles I and the beginning of the second great period of the Thirty Years War, that government was actually es- tablished in New Netherland. In 1629, the manorial system was introduced. Patroons were invested with the power of feudal barons; but no political or judicial changes could be introduced with- out consent of the home government. In Massachusetts, the Puritans were then just beginning to organize a government' having for its

1 The colony of Massachusetts was the governing and parent colony of New England. It was organ- ized under a roval charter issued in 1629. land patents having been previously granted by the Plymonth Company. John Endicott, who in 1625 had been chosen Governor of a colony at Salem, was catfirmed In the Director- then in London, and in his that letter of instructions was informed that " the propagating of the Gospel is the thing we do protess above all to be our aim In settling this plantation," and they promised him that he should be aided by "a plentiful provision of godly ministers." He began his ad- ministration by sending back to England Jolm and Samuel Browne, a lawver and a merchant, because they held separate religions meetings, and worshiped God according to the ritual of the Church of England, instead of with the " Reformed Congregation." In September, for the purpose of facilitating the end of establishing a commonwealth which should be absolutely under the control of those who were fleeing from persecution in England, government was transferred to the resident members of the Council, by whom John Winthrop was elected Governor. The Connell exercised control over the Church, and administered attars rigorously as a theocratic State. The first General Court passed an act providing for elections In the spring of to31, which restricted mirage to church members. In the beginning the treemen of a neighbor- hood met for consultation as to the making of roads or the division of lands, and gradually administration cume to be left in the hands of a few leading or select men, the treemen being at liberty to participate In the deliberations. This town governments soon sprang up. The next step was to send representatives to the General Court, to consult with the assistants and to regulate taxation, and then to enact laws and take part in the general administration of the colony. In 16st. a representative form of government was estab- listred. In 1635, Roger Williams was driven Into exile. Thus this commonwealth was constructed. The colony of New Plymouth did not have a royal charter. In 1636, the General Court adopted a preamble claiming all the rightsof freeborn subjects of England, and the colonists proceeded to systematize govern- ment.

NEW ENGLAND GOVERNMENTS.

main object " the propagation of the gospel." The same year Lord Baltimore was turned away from Virginia by the tender of an oath of allegiance which no true Catholic could take.'

The English colonists on the Connectient river were first gov- erned by commissioners appointed by the General Court of Massa- chusetts. In 1637 new delegates from the three towns of Hartford, Windsor and Wethersfield were associated with them. In 1639 a written Constitution was adopted, under which all the freemen of the three towns were equal before the law. "Well knowing," its preamble recited, " where a people are gathered together the word of God requires that to mayutayne the peace and union of such a peo- ple, there should be an orderly and decent government established according to God, to order and dispose of the affayres of the people at all seasons as occation shall require; doe therefore assotiate and conioyne our selves to be as one publike State or commonwealth." They thus entered " into combination and confederation together to mayntayne & preserve the liberty & purity of the gospell of our Lord Jesus which we now professe, as also the disciplyne of the churches, which, according to the truth of the said gospell is now practised among us; as also in our Civell Affaires, to be guided & governed according to such lawes, rules, orders & decrees as shall he made, ordered & decreed."

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Civil List and Constitutional History of the Colony and State of New York, Part 3

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

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