USA > New York > Civil List and Constitutional History of the Colony and State of New York > Part 6
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A Convention of two delegates from each town on Long island was held at Hempstead in February, 1665, for the purpose of receiving from the Governor the Code which he had prepared, and which was called " the Duke's Laws." The Code was chiefly com- piled from laws then in force in New England, "with abatement of the severity against such as differ in matters of conscience and relig- ion." The only popular feature of the Code was the one organizing Town Courts. It provided for the election, by a majority of the freeholders of each town, of eight overseers, to try minor causes and adopt local ordinances, subject to the approval of the Court of Assize. Four were to retire each year, and from them a constable was to be elected on the first or second of April, to act with the over- seers, his election being subject to confirmation by the Justice, in whose hands the local administration was really vested. Long island, Staten island and parts of Westchester were united in a Shrievalty,
1
46
ENGLISH PROPRIETARY GOVERNMENT.
called Yorkshire, and divided into three districts, called ridings. The English system of Sheriffs' Courts was introduced. The Governor and Council appointed each year a Sheriff for the whole of York- shire, and three Justices of the Peace for each riding, who were to continue in office during the Governor's pleasure, and were to hold a Court of Sessions in each riding three times a year, in which the Governor, or any of his Councillors, might preside. Besides their local duties, the High Sheriff and, Justices were to sit with the Gov- ernor and his Couneil in the Supreme Court of the Province, called the Court of Assize, which was to meet at New York once a year, on the last Thursday in September. This Court was also a legislative body, as it was invested with " the supreme power of making, alter- ing and abolishing any laws," except the customs laws, in which it could only recommend changes. Town officers were required to make assessments annually, and taxes were levied through the Courts of Sessions, which made requisitions upon the town anthorities. The delegates to the Convention asked for power to choose their local magistrates, which was denied, the Governor exhibiting his instructions from the Duke of York, " wherein the choice of all the officers of justice was solely to be made by the Governor." They desired, and they had the right to demand, the control of public expenditure and the institution of a General Assembly. King Charles (in 1663) had given Rhode Island a charter guaranteeing it self-government, and yet English as well as Dutch towns on Long island were denied the right of representation. The colonists were grievously disappointed, but they continued the struggle, resulting in consolidating them still more firmly in defense of equal rights and personal liberty.
A report on the state of the province, made in July, 1665, sets forth that liberty of conscience prevailed, that trial by juries existed, that there were no laws contrary to the laws of England and no courts- martial except for soldiers ; that there was no tax payable upon corn or cattle, and the country had little other product ; and that the rate for public charges had been agreed upon in General Assembly and was managed exclusively by the Governor, Council and Court of Assize.1
1 The instructions by Charles II to the Commissioners sent out to seltle The affairs of the provinces and hear cases of appeal, with the reports of the Commissioners, reveal very clearly hils purpose. The Comnls- sioners were Col. Richard Nicolls, Sir Robert Carr, George Cartwright and Samuel Maverick. These instruc- tions are dated April 23, 1664. The King desired that Governors should hold from three to five years, and that three persons should be nominated to him for the office, from which he would select one. With reference to religious worship, he desired to make no change, unless " they do in truth deny that liberty of con- science to each other which is equally provided for and granted to every one of them by their charter." In his instructions with regard to Massachusetts, the king said that " such who desired to use the Book of Conmion Prayer may be permitted so to do without Incurring any penalty, reproach or disadvantage in his Interest, it being very scandalous that any man should be debarred the exercise of his religion, according to
ยท 47
ARBITRARY TAXATION.
Colonel Nicolls was succeeded as Governor, in 1667, by Lord Love- lace. The new Governor, in 1669, directed the Courts of Sessions to provide the means necessary to repair the palisadoes at New York. The towns refused to pay the taxes levied, because they were denied the privileges conceded to New England, the liberties dne all Eng- lishmen, the right that, under the British Constitution, no taxes could be levied except by their own representatives. The Court, sitting at Gravesend, characterized the resolves of the several towns as " false, scandalous, illegal and seditious ; " the Governor and Con- cil expressed similar sentiments and ordered the papers to be burned and their principal promoter proseented. The Great Charter forced from King John by the barons had provided that, with the excep- tion of the enstomary feudal aids, " no seutage or aid shall be im- posed in our reahn save by the Common Council of the realm." Even these grants made in the Great Conneil were binding only on the barons and prelates who made them; and before the aid of the boroughs, the church or the shire could reach the royal treasury, a separate negotiation had to be conducted with the reeves of each town, the archdeacons of each diocese, and the sheriff and shire court of each county. Lovelace undertook to force the collection of taxes through this latter channel. It was with relnetance that the people of England abandoned the system under Edward, and accepted representation in Parliament instead. But Englishmen had grown wiser since, and no freeman would now relinquish the right. Hence the irrepressible conflict proceeded. The feeling in New
the laws and en-toms of England, by those who, by the indulgence granted, have liberty left to be of what profession in religion they please; tha wed, the persons of good and honest conversation who have lived long there may enjoy all the privileges, ecclesiastical and civil, which are due to them, and which are en- joyal by others, as to choose and be chosen mto [daces of government and the like ; and that differences of opinion do not lessen their charity to each other, since charity is a fundamental in all religion." In his in- siructions with regard to Comectient, alter referring to their supposed Presbyterian government, he said that " without in the least restraining them in the free exercise of their religion, but twisting with them as with the rest, that all the rest who dissent from them may have the like liberty without undergoing any deadvantage with reference to their civil Interest, but that they enjoy the same privilege with the rest." The Commissioners, in their report May 27, 1665, after giving an account of their visit to New Plymouth, Rhode Island and Connecticut, say that " In all these colonies they freely consented that all administration of justice shall be in the king's bame ; that all householders shall take the oath of allegiance; that church membership shall not be considered in making freemen : that all persons of rivil livesshall have liberty of coInscience, so that they deny not their shares of maintenance to the jobhe ministers fairly chosen by phi- reality of votes." Meselaretts was alone stubborn. It denied the jurisdiction of the Commissioners.fand entenled that Sapremo authority was in the General Court. In a communication to The toovernat and council (July 16), the commissioners say: " The duty which we owe to God, to the King and to all his sub- Jects constrains us to persuade yon not to suffer yourselves to le so much ilsled by the spirit of indepen I- ener. The King did not grant away hls sovereignty over you when he made you a corporation. When His majesty gave yon power to make wholesome laws and to administer justice by them, he parted not with his right of judging whether these laws were wholesome, or whether justice was administered according of no. When His majesty gave you authority over such of hissubjects as lived within the limits of your jurisdic- ttoh, he made them not vonr subjects for you their moreme authority, That prerogative certainly li- maj- esty reserved for himself. * * * The other colonies have set von so many good examples, even that of Rhode Island, one whom you have so long despised and discussned, and now lately derided for their sale- mission to His majesty." In their report to the King, alter referring to the difficulty encountered in the en leavor lo persnade Massprioritsto administer justice in the name of the Crown. the Commissioners Gay: " To elude His majesty's desire of their admitting men civil and of competent estates to be freemen. they have made an act whereby he that is twenty -four years old, a louisekeeper, and bring, one certificate of Ins civil life, another of his being orthodox in matters of faith, and a third of his paying ten shillings ( besides head money ) at a single rate, may then have liberty to make bis desites known to the court, and it shall be put to a vote." They then show how this is evaded, remarking that " he that is a church mem- ber. though he be a servant and pay only 27, may be a freeman." Acts of persecution are recounted. " Those whom they will not admit to the communion they compel to come to their sermans, by Forcing Irom them tive shillings for every neglect : get these men thought their own paying one shilling for not com- ing to prayers in England was an unspeakalde Braun. "
48
ROYAL AGGRESSIONS.
York was intensified by the granting of a General Assembly to New Jersey, with the right of freedom from taxation except by its con- sent. The first assembly met in 1668. The representatives were Puritans, and they adopted the laws of New England.
The contest over the right of no taxation without representation was not limited to New York, however. A revenue collector was sent over from England, with authority to collect the customs in Massachusetts. He accused the General Court of entire disregard of the Navigation Act. The charge was admitted and defended, on the ground that such laws were "an invasion of the rights, liberties and properties " of the colonies, "they not being represented in Parliament." This was in 1671. The same year, the colony of New Plymouth affirmed the rights of Englishmen, under the imposing title of "The General Fundamentals." The enumerated rights were eight in number. The first affirmed the invalidity of legisla- tion imposed without the consent of the body of freemen or their representatives ; the second, provided that a Governor and assistants be annually elected by the vote of the freemen. The third to the seventh, inclusive, related to rights of justice and of property. The ciglith was a lengthy re-affirmation of the ecclesiastical or church rights sought to be secured by the establishment of the colony. In Virginia, an aristocratic assembly had finally adjourned in 1660 after clothing the Governor with enormous powers, and these powers had now fallen into the hands of a Governor who hated education and despised toleration in religion. Thus Virginia and New England, and also Maryland, were in the hands of despotie parties. In New Netherland, however, the people never tyrannized over each other, and they claimed equal rights and personal liberty for all freemen as against any class and against royalty itself:
France and England declared war against the Netherlands March 17, 1672. The tide of battle went against the Dutch. The people demanded the removal of the disabilities of William III of Orange, then in his twenty-second year, and ambitious to lead the armies of the country. The demand was heeded, and he was made Stadtholder, In 1673, New Netherland was retaken, and the Dutch inhabitants were stirred by the same enthusiasm which had thrilled the hearts of the Dutch in the mother country. They received back the right to nominate their local magistrates amid great rejoicing; and their dis- may, therefore, was great when, in 1674, by the treaty of West- minster, they were compelled to surrender their Dutch liberties and return to the jurisdiction of an English despotism.
49
RESISTANCE BY THE PEOPLE.
The condnet of the new Governor, the tyrannical Andros, realized their worst fears. He revived the abuses of the Lovelace adminis- tration. Taxes were levied without authority of law, and the pro- tests of the people were treated with scorn. In response to the demand for a popular legislative assembly, the Duke of York wrote to Governor Andros that popular assemblies were dangerous to government, and that he did not see any use for them. He at- tempted to force upon the colonists a law, enacted on his own mere motion, establishing for three years the rate of customs. This in- flamed the colonists to the point of resistance. On the expiration of the law by its own terms in November, 1680, the merchants re- fused to pay any more duties. They sued the Collector of the Port for detaining goods, the duties on which had not been paid, and he was arrested, brought before the Court of Assize charged with high treason, and sent to England for trial. The Duke of York, fearful that the expenses of the colony would become a charge upon his own private purse as they had been on the treasury of the West India Company, thereupon sent out Colonel Dongan as Governor, with power to convene a General Assembly. This body met at Fort James, New York, October 17, 1683. Its records are lost, and the names of its members cannot be given ; but its works endure. The facts illustrate the uncertainty of human fame, and the imperishable character of human achievement.
The first act of this, the first General Assembly of the Colony of New York, was entitled, "Charter of Liberties and Privileges granted by His Royal Highness to the Inhabitants of New York and its dependencies." Its first sentence .contained the phrase : "People met in General Assembly," to which James objected, when he became king of England, on the ground that it is " not found in any other Constitution in America;" and this royal objection, with the character of this charter, places New York in advance of any other colony, and proves that it held the leadership in the struggle for equal rights and ancient liberties. The entire sentence read that " under His Majesty and Royal Highness, James Duke of York, Albany, etc.," "supreme legislative power shall forever be and reside in the Governor, Council and People met in General Assem- bly." The year of its adoption witnessed the establishment of a free and representative goverment in Pennsylvania, and the first session of its General Assembly.
James became King of England in February, 1685. At a meet- ing of the Committee of Trade and Plantations March 3, this
7
50
THE CHARTER OF LIBERTIES.
minute was ordered entered : "The Charter of Incorporation of the Province of New York being read, His Majesty doth not think it fit to confirm," and the government was ordered assimilated to that projected for New England. Observations upon the charter were entered, which show that the objections were political, and demonstrate that the colonists were in advance of the inhabitants of other colonies, in their demands upon the Crown as well as in their concessions of personal liberty.
The Charter opened grandly. It declared " that for the better establishing of the government of this, province of New York, and that Justice and Right may be equally done to all persons within the same, Be it enacted by the Governor, Council and Representa- tives now in General Assembly met and assembled, and by the au- thority of the same." And the charter, after providing for the elec- tion of a General Assembly, enacted that the Representatives of the Province, with the Governor and his Council, shall be the Supreme and only legislative power. To this the King quietly inquired : " whether this does not abridge the acts of Parliament that may be made concerning New York." His observation upon this provision seems to be somewhat in conflict with his remarks on the provision that the inhabitants be governed by and according to the laws of England. "This privilege," he said, " is not granted to any of His Majesty's Plantations." Of the provision that sheriffs and other officers of justice be appointed with like powers as in England, he said, " This is not so distinctly granted or practiced in any other plantation." The charter provided " that the exercise of the chief magistracy and administration of the government over the said province shall be in the said Governor, assisted by a Council with whose advice and consent, or with at least four of them, he is to rule and govern the same according to the laws thereof." To this the King objected that " no other Governor is restrained from doing any thing without the Comeil." The charter provided " that accord- ing to the usage, custom and practice of the Parliament of England, sessions of a General Assembly be held in this province once in three years at least," to which the King objected that triennial sessions are " an obligation upon the government greater than has been ever agreed to in any other plantation, and the grant of such a privilege has been rejected elsewhere, notwithstanding a revenge offered to induce it." The provision that acts be presented to the Governor and Comeil for approval, said the King, " seems to take away from the Governor and Council the power of framing laws as in other
51
THE SUPREME LEGISLATIVE POWER.
plantations." The provision limiting to two years the power of the Lord Proprietor to dissent to bills, said James, " does abridge the King's power and has been thought inconvenient in other plantations." The provision that the Assembly is to judge of the elections and qualifications of its members, "may be inconveni- ent," he said, " and is not practiced in some other plantations." Of the provision guaranteeing liberty of conscience, the King re- marked that it "is practiced in the proprietaries ; " and it was the only section which he seems to have affirmatively approved, although there were other important provisions which he did not explicitly disapprove.
The view of the legislative function contained in the New York Charter of Liberties is Roman, not Saxon. It recognizes the joint possession of this power by the Executive and his Councillors, and the People, corresponding to the old Roman Executive, Elders and Burgesses. The English people, on the other hand, claimed exclu- Five supremacy for Parliament and the Saxon idea had its logical development in the system of government by what is substantially an Executive Committee of Parliament ; for while the Ministers are commissioned by the Crown, their tenure depends upon the pleasure of Parliament. Some of the colonists of New York had experi- enced oppression at the hands of the people of New England. The evils of executive and of parliamentary supremacy had each been made mamfest, in turn, in England. Hence it was sought to guard against tyranny by majorities as well as by rulers, by providing checks against both. It was thought that ancient and vested rights would be best preserved by associating the Executive and his advisers with the representatives of the people, and giving to them jointly the supreme legislative power. This union of Roman paternalism and Anglo-Saxon popularism needed but the restoration of the old German right of choosing their leader, to make the system the per- feet synthesis of organic liberty.
The entire Charter we are considering is a clear and crisp declara- tion of the ancient liberties of all Aryan freemen. The remaining portion reads substantially as follows: " Every freeholder and freeman shall vote without restraint. No freeman shall suffer but by judgment of his peers, and all trials shall be by a jury of
1 The right of the Crown to the legislative prerogative was chimed by some Sovereigns, and was con- coded practically whenever the absolute veto was exercised. The veto was gradually abandoned, how- ever, and went into entire disuse about the time the Constitution of the Fuited States was adopte.l. since which the signature of the Sovereign has been regarded merely as an attestation. As the English have an hereditary executive, they were compelled to subordinate the Crown absolutely to Parliament. Here, however the Executive being elective, the powers of the two departments admit of more perfect s.hustinend, for the people can settle any differences which may exist at new elections.
52
THE SECURITIES OF LIBERTY.
twelve men. No tax, tillage, assessment, custom, loan, benevolence or imposition whatever shall be laid, assessed, imposed or levied. on any of his Majesty's subjects within this province or their estates, upon any manner of color or pretense, but by the act of the Gover- nor, Council and Representatives of the People in General As- sembly met and assembled. No seaman or soldier shall be quar- tered on the inhabitants against their will. No martial law shall exist. No person professing faith in God by Jesus Christ shall at any time be any ways disquieted or questioned for any difference of opinion." Appended to the charter was a continued bill of cus- toms Its approval by the Governor was the signal for great rejoicing.
Thus was set forth in admirable phrase the rights for which the Dutch and English colonists had unitedly contended for nearly half a century. It was the full fruitage of freedom, bursting the shell of feudalism, and clothing itself in more perfect organic form, evolved from ancient systems which had become incapable of pre- serving and protecting the liberties of the people. Alike in spirit and substance it presented in most perfect form that which was dearest to all-to the eighteen nationalities represented in the province under Stuyvesant-to English and Dutch, their common German ancestors and Keltie neighbors, so long crushed under Druidie dominion. While all these races were united in framing this "Charter of Liberties," still it is true that we owe our price- less inheritance primarily to that spirit of freedom and catholicity, instinctive in the Dutch and purified amid the conflicts of the Netherlands, and to that Dutch eclecticism, fostered by the ming- ling of races and religions, which enabled the statesmen of that day to devise for the protection of human freedom a liberal conservative government, which, when perfected, would permit change when the people will it, and prevent it when they do not.
The distinguishing feature of the colonial policy of James II was his attempt to consolidate all the colonies, from Maine to the Delaware river, as the Dominion of New England, under the govern- ment of Andros. In 1686, he abolished the General Assembly of New York, and authorized the Governor, with the assent of the Council, to enact such laws as he might deem best ; printing presses were forbidden and odious taxes were levied. The same year he took away the charters of Rhode Island and Massachusetts, and appointed Andros Governor of all the provinces of New England. Andros ruled with a strong hand in Massachusetts. He permitted
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THE ENGLISH REVOLUTION.
nothing to be printed without his sanction; he abolished popular representation ; prohibited voting by ballot ; forbade town meetings; allowed the public schools to go to ruin. He overthrew the civil rightsof New Hampshire, and sought (in 1657) to secure the charter of Connecticut, but the heart of the Charter Oak beat too truly against him. The same year, religious liberty was proclaimed in New England. In April, 1638, New York and New Jersey were included in the New Dominion.
William III married Mary, daughter of the Duke of York, in 1677, and followed it by aggressions upon the States General. His imperious will and good judgment fitted him for Liberator of Eng- land. He landed at Torbay, November 5, 1688. News of the accession of William and Mary reached Boston, April 4, 1689, and on the 18th the inhabitants rose in rebellion. Andros was im- prisoned, and before the 10th of May, all New England was ad- ministering government under the old charters. New York rose in revolt on the 31st of May, and Jacob Leister was subsequently appointed Lieutenant-Governor by a Committee of Safety. In all the land, there was only one place where there was sufficient cool judgment to await the will of the new authorities; and that was in Albany. The municipal authorities of this city proclaimed William and Mary, but refused to acknowledge Leisler until compelled to in the spring of 1690. In 1691, he was tried and executed for treason. The same year, Governor Sloughter arrived, with instructions to re- establish the Assembly ; and thus the sturdy Dutchmen received a large measure of their rights from the hands of a Dutch king. The old liberties were restricted, however. The Test Act was established. The new Governor was instructed " to permit liberty of conscience to all persons except Papists." This was a natural result of the conflicts iu England, but the proscription did not take root in New York. The General Assembly of 1691 passed the original Charter of Liberties, with some changes in reference to churches, but it was repealed by the King in 1697.
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