Civil List and Constitutional History of the Colony and State of New York, Part 9

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

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The profligacy of previous administrations caused the House to adopt an address to the Governor, June 16, 1703, relative to exorbi- tant fees and exactions, and requesting the appointment of a Treas- urer who shall be "a freeholder and inhabitant here." The in- security of moneys in the hands of Receivers-General, who were non-residents and irresponsible, with the inability to obtain proper accounting, led to this expedient, which was to be productive of important consequences.

At the opening of the fourth session of this Assembly (April 13, 1704), the Governor called attention to " the wicked construction put by the then Chief Justice " on the act relative to disorders, passed in 1691, and requested its amendment. This led to the most energetic assertion of their claims on the part of the varions departments of goverment. The Council (May 9) insisted that the General Assembly consisted of the Governor, Council and House of Repre- sentatives; inserted the word "advice" in the enacting clause, and referred to the Colony as a " province," to all of which the Assem- bly objected ; but on the 26th, the Honse yielded except with regard to the word advice, "always saving their rights, this com- plianee notwithstanding." The Governor thereupon (June 1) summoned them before him, and required them to state what those rights are, saying that he knew of none which they possessed as an Assembly, " but such as the Queen is pleased to allow."

The Assembly promptly responded. In an address to the Queen, adopted October 24, 1702, referring to the representations that many in the Province were " disaffected to the government and laws of England," they had affirmed their " readiness to support the govern- ment of England, as by law established." The colony had been seriously troubled since the inauguration of the Leisler goverment. Leisler and Milbourn had been exeented, and now Col. Nicholas Bayard and Ald. John Hutchins, of the city of New York, had been convicted of high treason. The colonists were determined to secure a reversal of these convictions, and the Legislature passed an act for that purpose, which subsequently received the approval of the Queen, the sentences were annulled, and the attainder removed. Now, when required to state their rights, they not only did so, but they defined and limited the powers of the Governor. They stated in their address (June 9), that they were endeavoring to conform

NATURAL AND CIVIL LIBERTY.

themselves to the true intent of the commissions issued by the Crown. In these commissions, the " deputies of the People" were referred to as the General Assembly. They had yielded on this point, however, but were " dissatisfied with the word advice." The limitation they placed on the legislative power of the Governor must have sounded strangely in those days. "Your Excellency is not directed," they boldly said, " in the making of laws, to take the Advice of Council or Assembly, or both, but manifestly the con- trary. Your Lordship's own prudence being wholly and solely in- trusted to prevent that whatsoever might be agreed on by the Council and Assembly (in his judgment) to the prejudice of the Crown should not receive the sanction of law." When the Governor had exercised his discretion with regard to the rights of the Crown, he had exhausted the powers of the commission. While he possessed an absolute veto, it was solely for that purpose, and not for the purpose of thwarting the will of the People; and as they claimed " English histories and laws " were " the birthright of English- men," they insisted that the words "common consent in Parliament" settled the question of right. The General Assembly proceeded : " This Assembly being intrusted by the People of this plantation with that care of their liberties and properties, and sensible of their own weakness, lest through ignorance or inadvertency they should consent to any thing hurtful to themselves or their posterity (in all things admitting of doubts) are willing to save their rights, and those rights they mean to be that natural and civil liberty, so often claimed, declared and confirmed by the English laws, and which they con- ceive every free Englishman is entitled to. Whatsoever else may adınit of controversy, the People of this colony think they have an undoubted, true and entire property in their goods and estates, of which they ought not to be divested but by their free consents, in such manner and to such ends and purposes as they shall think fit and not otherwise ; if the contrary should be admitted, all notion of property would cease." These principles being obnoxious to the Governor, the General Assembly was dissolved toward the close of the year, and a new election ordered.

The tenth General Assembly was as stubborn in its resistance of the claims of the Crown as the ninth had been. In October, 1705, Governor Cornbury received instructions "not to permit any clause whatsoever to be inserted in any law for levying money or the value of money, whereby the same shall not be made liable to be accounted for to us here in England," and not " to suffer any public money

COUNCIL CANNOT ALTER MONEY BILLS.

whatsoever to be issued or disposed of otherwise than by warrant under your hand, by and with the advice and consent of our said Council." The Assembly having asked for the appointment of a Treasurer, on the ground of gross financial mismanagement by the agents of the Crown, they responded to the Governor on the 10th, that the fact that the Treasurer would be "accountable to the General Assembly " would not prevent his accounting also to the Crown, and on the 12th they denied the right of Council to amend money bills. The Governor declined to approve several bills because contrary to his instructions. On the 27th of September, 1706, the Governor stated to the General Assembly, in his speech, that he was commanded by the Lords of Trade to say that the Council "have undoubtedly as much to do in passing of bills for the granting and raising of money as the Assembly, and consequently have a right to alter or amend any such money bills as well as the Assembly ;" and, with reference to another act, he said that they regarded it as " highly presumptuous in the Assembly to pretend to propose or pass any clause whereby her Majesty is restrained in her Royal preroga- tive of pardoning or reprieving her subjects whenever she sees it reasonable and convenient." The Assembly continuing obstinate, it was dissolved.

The eleventh Assembly was equally tenacious of the rights of the People. It passed, unanimously, in 1708, a series of resolutions claiming the appointment of coroners without their being chosen by the people as a grievance and contrary to law; declaring that it is and always has been the unquestionable right of every freeman in this colony, that he had a perfect and entire property in his goods and estate; that the imposing and levying of any moneys upon her Majesty's subjects of this colony, under any preteuse or color what- soever, without consent in General Assembly, is a grievance and a violation of the People's property; that extravagant and unlimited fees have been exacted, which are unreasonable and unlawful; that the erecting a Court of Equity without consent in General Assembly is contrary to law, without precedent and of dangerons consequence to the liberty and properties of the subjects, and denouncing the tariff act. It was accordingly dissolved.

The question of the power of the People as represented in the Assembly was immediately pressed to an issue. Hunter's com- mission not only empowered him to appoint Judges, Commissioners of Oyer and Terminer, Justices of the Peace, etc., but it gave him

CONTROL OF THE TREASURY.

"full power and authority, with the advice and consent of the Council, to erect, constitute and establish Courts of Judicature."

The revenue law expired May 18, 1709, whereupon the Assembly passed an act making moneys payable to a Colonial Treasurer ap- pointed by that body, and collected by an officer of the Assembly's appointing. The act was amended by the Council, striking out Treasurer and inserting Receiver-General, an officer appointed by the Crown, and making him responsible to the Governor, Council and Assembly ; whereupon the Assembly denied the right of Council to amend money bills.

The Queen's Council (March 1, 1710), the Assembly persisting in the refusal to pass a revenue act, adopted an order to lay the matter before Parliament, which, after several delays, was done in 1711. The bill imposing a revenue act upon the colonies was pressed for two years without effect, notwithstanding it was a Tory Parliament.

The next conflict occurred in 1711. In a very impertinent speech, on the 12th of April, Governor Hunter demanded of the General Assembly whether they intended to support the Government or not, at the same time explaining that " giving money for support of government and disposing of it at your pleasure, is the same with giving none at all." The Assembly was soon after dissolved.

Governor Hunter wrote to the Lords of Trade (September 12, 1711), that " so long as the members of Assembly held their elec- tions by no other tenure but that of saving the public money or starving the goverment, there is nothing to be depended upon them." Meantime, the Governor vetoed an act relating to Sheriffs because it circumscribed the powers of the Governor, an act estab- lishing an Agency at the Court of Great Britain, and an act estab- lishing fees

The issue between the Council and the Assembly was sharply defined in November, 1711. On the 14th, Mr. Johannis Cuyler, of Albany, was directed to acquaint the Council "that this House is well assured they cannot but be sufficiently informed of the un- doubted right and constant resolves of this House not to admit of any amendment to be made by that Board to money bills." In re- sponse, on the 16th, Capt. Walter was instructed to acquaint the Assembly that the Council have the right to alter or amend money bills, " being a part of the Legislature constituted as they conceive by the same power as the Assembly are, which is by the mere grace of the Crown, signified in the Governor's Commission."

SOVEREIGN RIGHTS OF THE PEOPLE.

The Assembly responded on the 17th, in a bold enunciation of the sovereign rights of the People: " The share the Council have (if any) in the legislation does not flow from any title they have from the nature of that Board, which is only to advise, or from their being another distinct state or rank of people in the Constitu- tion, which they are not, being all Commons, but only from the mere pleasure of the Prince, signified in the commission. On the contrary, the inherent right the Assembly have to dispose of the moneys of the freemen of this colony does not proceed from any commission, letters patents or other grant from the Crown, but from the choice and election of the People, who ought not to be divested of their property (nor justly can) without their consent." And they remarked that if the Lords of Trade "did conceive no reason why the Council should not have the right to amend money bills, is far from concluding there is none ; the Assembly under- stand them very well, and are sufficiently convinced of the necessity they are in not to admit of any encroachment so much to their prejudice."

This, said the Council, in a communication to the Lords of Trade (December 13, 1711), " calls in question any share we have in the legislation which is given us by the Queen's Commission, that gives this province the indulgence of an Assembly."

The Governor opened the Court of Chancery himself, whereupon the Assembly (November 24, 1711) resolved that "the erecting a Court of Equity without their consent is contrary to law, without precedent and of dangerous consequences to the liberty and prop- erty of the subject ; " also, " that the establishing fees without the consent of the General Assembly is contrary to law."

The Lords of Trade wrote to Governor Hunter (June 12, 1712), that " the Assembly sit only by virtue of a power in Her Majesty's commission to you, without which they could not be elected to serve in Assembly." The resolution of the Assembly regarding the Courts, they said, "is very presumptuous and a diminution of her Majesty's royal prerogative, for that her Majesty has an undoubted right of appointing such and so many Courts of Judicature in the plantations as she shall think necessary for the distribution of jus- tice; " and the power of regulating the fees was also insisted upon. Their " naming Treasurers to collect the public money when her Majesty has appointed an officer for that purpose, are other instances of their disrespect and undutifulness." The Lords of Trade also wrote to Secretary St. John (April 23, 1712), "They pretended

TRIUMPH OF THE ASSEMBLY.

that they do not sit as an Assembly and dispose of money by virtue of any commission, letters patents or other grant from the Crown, but from the free choice and election of the People."

The General Assembly persisted in the assertion of their rights. Governor Hunter wrote to the Lords of Trade December 16, 1712, with reference to the proceedings of the Assembly in adjourning from time to time and in asking for a recess during the winter season, that they render it clear " that there is no hope of any sup- port of government from them, unless her Majesty will be pleased to put it entirely into their own hands," and he dwelt upon the importance of the matter as an example to other colonies. The contest continued with no evidence of yielding on the part of the Assembly. In 1715, Chief Justice Mompesson died, whereupon Lewis Morris was appointed, becanse, wrote the Governor to the Lords of Trade, he is "able to live without a salary, which they will most certainly never grant to any in that station." With this realizing sense of the importance of the act, Governor Hunter finally yielded, a new Assembly having been elected which still sustained the demands of the people ; whereupon they voted the government a revenue for five years, and Governor Hunter ex- plained the necessities of his surrender in a letter to the Lords of Trade dated July 25, 1715. The Assembly voted the revenue for five years, instead of one, in return for a general naturalization act, to which the government had been opposed.

The Governors of New York, throughout this contest, represen- ted the real spirit of the English monarchies. The election of William and Mary established the right of Parliament to control the Crown. Mary died three years before the veto of the Charter of Liberties, and William came to his death five years thereafter ; Anne succeeding by virtue of the Bill of Rights. George I became sovereign one year before Governor Hunter's surrender, by virtue of the Act of Settlement, and his successors hold by the same title. But William was nevertheless disposed to fully assert the Royal pre- rogative, and Anne was by nature as despotie as her father (James II). They were compelled to recognize the power of Parliament, but they resented it, nevertheless; the representatives of the land- owners, who were the voters, asserting their absolute control of taxa- tion. The two preceding sovereigns had been voted a revenue for life, and Parliament now saw the error. The first act of the first Par- liament of William and Mary was to restrict the revenue grant to four

CONSTITUTIONAL REVOLUTIONS.

years. William resented this, whereupon Parliament voted only an- nual supplies, and the policy has been since maintained, as affording the only effective way of controlling the Executive. Parliament also took the control of the army, but it left the control of trade to the Crown, and no one proposed to remove the censorship of the press. Religious toleration was secured, and the practice of choosing a homogeneous Ministry from the majority in Commons was introduced. But it was under the Whig Junto that the Charter of Liberties was repealed. The same year (1697), by the peace of Ryswick, Wil- liam succeeded in his policy against France. The accession of the Tories to power, gave William the opportunity to prove that a consumate statesman may bend adverse elements to his will. The Grand Alliance and the Whig war received the reluctant approval of Tories, when the Tory Marlborough was given command ; who pushed the King's policy to a successful issue. After William's death, Anne was compelled to declare from the throne her purpose to continue his policy. She did it, and in 1707 became the first Sovereign of the United Kingdom of Great Britain. The Tories grew more bitter against the war, and in 1708 Marlborough was compelled to try and save himself by urging the Queen to restore the Whigs to power. In 1:10, however, the Tories returned to power, and in 1712, the fall of Marlborough was made complete, by the creation of twelve Tory peers. Thus, was finally consummated, the great constitutional revolution, by which Parliamentary sover- eignty became the organic law of Great Britain. The treaty of Utrecht was signed in 1713, and George I acceded to the throne in 1714. Under him and his successor the Crown exerted no power. In character insignificant, with no personal attachments, Parliament had no difficulty in riveting its control of government. A Whig administration came into power with George I; and under this administration New York finally succeeded in establishing Legisla- tive supremacy. The strong hearts and stout arms of the colonists, however, alone brought deliverance. They received no support, either from Whig or Tory ministries. Thus, the great contest for civil liberty proceeded in this colony side by side with the great revolution in Great Britain, and triumphed with it, and over all ad- ministrations both at home and in the province.

The victory of the People went beyond the Parliamentary suc- cesses in Great Britain. It not only established the great doctrine that the Executive shall collect no taxes not first granted by the Legisla- tive power ; but it established the important principle that the taxes

SUPREMACY OF THE ASSEMBLY.

shall be collected and paid over to the Executive by the servants of the Assembly, in such manner as that Assembly may direct. The People, through their representatives, took absolute control of the revenue ; no longer as a grant to Royalty, but as the Sovereign, rais- ing the money needed to pay its own expenses and the salaries of its agents and subordinates.

The Assembly at first only insisted that the Treasurer should have the management of moneys raised for extraordinary purposes. In 1729, however, the Assembly, with the approval of Governor Mont- gomerie, ascertained the salaries of all the officers of the government, and increased or diminished the same at their pleasure. Lewis Morris, a member of the Council, protested against these pro- ceedings, whereupon the Governor removed him, and appointed in his place " Philip Van Courtland, Esq., a man more inclinable to give up the rights of the Crown," wrote Morris to the Lords of Trade in 1732, in asking to be restored to the Council. This marks a distinct stage in the growth of the American system, of great significance. It was the assumption of Legislative control of Executive power, rendered necessary by the profligacy of the strangers sent over here to govern the country. It was the assertion of an ancient right, choosing new instrumentalities in order to render it effective.

The progress made in this direction, and the significance of it, is clearly stated in a letter by Attorney-General Bradley to the Lords of Trade, dated November 22, 1729. " Most of the previous and open steps," said he, " which a dependent province can take to render themselves independent at their pleasure, are taken by the Assembly of New York." Among these steps he instances first, that "they have long struggled for and at last gained their point, viz., that the salaries of all officers of the Crown should be such as they are pleased to vote them." Again, he says, " the Assembly of late will never pass any money bill unless some injurious bill to Her Majesty's prerogative and interest be passed at the same time, which (as things are at present circumstanced) must be complied with or no money can be had for the necessary support of government. The Assem- bly likewise appoint a Treasurer of their own, though. Her Majesty has a Receiver-General here."

The Attorney-General complained that they had threatened with expulsion those who have disclosed their secrets, and preferred other accusations. In their votes of the 30th July, 1728, they have re- solved "that for any act, matter or thing done in General Assembly,

LIBERTY OF THE PRESS.

the members thereof are accountable and answerable to the House only, and to no other persons whatsoever," said he, " by which resolve the Assembly seem in express words to claim an independency, for none but a supreme power can be exempted from rendering an account of their actions." This supremacy of the People was quite displeasing to the law officer of the province. " Persons in power dare not yet venture to displease these people so far as to show much countenance to officers of the Crown. Assemblies seem already to be got beyond all manner of check of restraint whatsoever, and this at a time, too, when other neighboring provinces seem to show the same kind of spirit, and a strong intention to take the earliest oppor- tunity of setting up for themselves. While Assemblies dare act thus, and seem to have it in their power to obtain what laws they please, how can Her Majesty's interests be secure in so remote a country ? Would it not be advisable that a commissioner of the Crown sit with the Assembly as in Scotland, and that the officers of the Crown be rendered independent ?"

This progress was made during the long and uneventful Ministry of Walpole ; who, whatever criticisms may be passed upon him, exhibited enlightened statesmanship, and preferred the prosperity which comes from the liberal encouragement of the vocations of peace and the yielding to the people of their rights. He was a great financier, and devised an excise bill which would have been highly beneficent ; but it was so unpopular that he was forced to withdraw it. He set aside the plan for an American excise, with the remark : " I have Old England set against me by this measure, and do you think I will have New England too ?" This was in 1733, and the same year Parliament passed an act imposing exorbitant duties on sugar, molasses and rum, which was among the producing causes of the discontent which finally culminated in the Revolution.

English journalism grew into importance under the Commonwealth, but it was fettered by a censorship which was not removed until after the Revolution. This censorship was established in New York, however, by the instructions to which we have referred. In 1733, the New York Weekly Journal was established by Zenger; and in 1735 occurred his famous trial for criticising the Governor, which resulted in his acquittal twelve years before the Franklins had been perseented and prosecuted in Boston for libels upon its hierarchy ; and now for the first time the colonial press was free. Twenty-nine years thereafter, Wilkes was sent to prison for attacking a minister

ENCROACHMENTS UPON THE EXECUTIVE.

by name in the North Briton, and criticising the government; but it was still six years later when the failure of the prosecution against "Junius " established in England the right of the press to criticise members, parliaments and sovereigns.

By all the acts passed for the support of the government to the year 1737, the disposal of the public money was left in the hands of the Governor and Council, conformable to the direction of His Majesty's commissions and instructions. During the administrations of Governors Hunter, Burnet, Montgomerie and Cosby, continuing abont twenty-eight years, general provision was made for the support of government, for the term of five years, at the entrance of every Governor upon his administration, with one general appropriation of the money to the public service, the Treasurer and Members of As- sembly only excepted ; all public money being directed to be drawn ont of the Treasury by warrants from the Governor with the advice and consent of his Majesty's Commeil. But in 1737, the Assembly limited the support of the government to one year, and by directing in the aets what sums for particular services and what salaries for particular officers by name, should have, they took upon themselves the disposal of the money and the nomination of the officers.1

In 1738 the rate of interest was reduced by the Assembly from eight per cent to six per cent, but the act was amended by the Commeil so as to fix the rate at seven per cent. The same year the King repealed the act limiting the continnance of one Assembly to three years, as William had vetoed a similar aet passed by Parliament during his reign.

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Civil List and Constitutional History of the Colony and State of New York, Part 9

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

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