USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 37
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16. The conduct of the new Governor, the tyrannical Andros, realized their (the Dutch of New York) worst fears. He revived the abuses of the Lovelace administration. Taxes were levied without authority of law, and the protests of the people were treated with scorn. In response to the demand for a popular legislative assembly, the Duke of York wrote to Gov. Andros that popular assemblies were dangerous to government, and that he did not see any use of them. He attempted to force upon the colonists a law, enacted on his own mere motion, establishing for three years the rate of customs. This inflamed the colonists to the point of resistance .- Wer- ner's "Civil List of New York," 1888 ed., p. 49.
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Assemblyes in those countreyes," and reiterating his belief that "such Assemblyes ... would be of dangerous conse- quence."17
However, at this time the agitation for representative gov- ernment was mild by comparison with what developed during the next few years; and the Andros administration was so pleasing to His Royal Highness and the King that, when the governor was on a visit to England in 1677, he was knighted. As Sir Edmund Andros he comes more unfavorably into American history.
Trouble had been brewing for Andros for several years ; ever since he had been governor, indeed, and had claimed governorship over not only New York, but over New Jersey as well. The seizure of New York by the Dutch and the sub- sequent cession of it to the English Crown by the Treaty of Westminster had extinguished the Duke's title. He did not resist the issuance of a new patent by the King to himself, for he saw that if his own title under the first patent had been extinguished by the events recited, all grants made by him- self to others-for instance to Carteret and Berkeley-were also nullified. He made haste to benefit by this by extending the authority of Andros over the province of New Ceasarea or New Jersey. Other events which he could not control, how-
17. "I have formerly writt to you touching Assemblyes in those coun- treys and have since observed what severall of your lattest letters hint about that matter. But unless you had offered what qualificasons are usuall and proper to such Assemblyes, I cannot but suspect they would be of danger- ous consequence, nothing being more Knowne then the aptness of such bodyes to assume to themselves many priviledges which prove destructive to, or very oft disturbe, the peace of ye government wherein they are allowed. Neither doe I see any use of them wch is not as well provided for, whilest you and your Counsell governe according to ye laws established (thereby preserving every man's property inviolate) and whilest all things that need redresse may be sure of finding it, either at ye Quarter Sessions or by other legall and ordinary ways or lastly by appeale to myselfe. But howsoever, if you continue of ye same opinion, I shall be ready to consider of any proposalls you shall send to yt purpose."-Chester's "Legal and Judicial History of New York," I, 201, quoting O'Callaghan's "Colonial Documents."
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ever, influenced the Duke to grant the territory anew to Car- teret, a few months after the issuance of the commission to Andros ; but by this reconveyance, on August 8, 1674, to Car- teret, the Duke reserved certain governing authority. Hence it came about that Andros was vested with the power of over-governorship in the territory governed by the Carterets. Andros, of course, asserted like authority in the other part of New Jersey granted to Berkeley and his successors. And the difficulty he encountered was alike in each part. The col- onists throughout New Jersey had become used to the system of a General Assembly, to which they were able to send their own delegates, without whose approval no taxation could be imposed. When the Quintripartite Agreement of 1676 formed the provinces of East Jersey and West Jersey of the former New Ceasarea, or New Jersey, the authority of the people in West Jersey became even clearer, for in the new province voting by delegates at the annual assembly was to be by secret ballot, instead of by the former "common and confused way of cries and voices." Trial by jury was secured to every settler ; and all the rights of the English common law were promised. This in some instances clashed with the Duke's Laws, so it evidently was not the intention of the pro- prietors to make the Duke's code the law of the province. Indeed, in both East and West Jersey, it seems the authority of the Duke of York and of his governor, Andros, was posi- tively challenged.
Attracted by the governmental code of West Jersey, a party of two hundred and thirty Quakers, with a managing board of commissioners, embarked on the good ship "Kent" in March, 1677. While the ship still lay in the river Thames, King Charles, attracted by her crowded decks, came alongside and inquired whither she was bound. When told, he "wished them a good voyage and gave them his blessing." But their reception in New York, by Governor Andros, was not nearly so pleasant. They found that Fenwicke, to whose Salem col- ony they were bound, had been thrown into prison in Fort
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James early in that year, because he had challenged the Duke's right to levy taxes in his province. And he was still in prison, the commissioners found. They had been further shocked when, upon reporting the arrival of the "Kent," and their pur- pose, to Andros, the latter had asked what evidence they had of title from his royal master, the Duke of York. They could produce none. The successive grants from the Duke to Berkeley, and from Berkeley to others, gave, they asserted, right of government as well as title to the soil. Andros was of a different opinion however. He averred that it was "as much as his head was worth" to grant them authority to set up in- dependent government without orders from his master. If they had had "but a line or two from the Duke, he would be as ready to surrender it to them as they would be to ask it." Without it, he had but one course open; he must hold his government over the whole of the Duke's territory, by his sword if needs be. Still, pending word from his royal master, Andros was not unwilling that the Quakers should proceed to their destination, with the commissioners in authority, as magistrates of the Duke and under the Duke's government. Fenwicke was permitted at the same time to go upon his own recognizance, and directed to report in the following August at New York, for final decision on his case.
Governor Andros soon afterwards sailed for England, per- haps to discuss the problems of government in the Jersey provinces, and other perplexities of the New York govern- ment. Possibly affairs of state had little to do with his return to England; but when he returned to New York he certainly came with added prestige and possibly increased arrogance, being now of knightly rank.
Very soon after his return to New York he found that the situation in East Jersey called for his personal and resolute action. He had endeavored to enforce taxation in both New York and New Jersey, and had ordered that all imports must pass through the New York Customs House. In answer, Governor Philip Carteret had proclaimed, with the hearty sup-
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port of the Assembly, that all vessels coming directly to the province should be free from duties. Andros had intercepted a ketch bound for Eliabethport with a cargo of rum, and com- pelled her captain to pay duties at the New York custom house. Andros was determined that the will of the Duke should prevail; therefore unless Carteret would bow to the will of Andros, no good could have resulted had Carteret ac- cepted the invitation of Andros to meet on Staten Island to discuss the matter. He did not go. One governor was as determined as the other. Andros announced that he would erect a fort "at Sandy Point," to enforce the law. Carteret declared that this should be resisted; and when Andros went into New Jersey a month later, to seek a peaceful conference, Carteret met him with a military force, to oppose his landing. With commendable gentlemanliness, Carteret permitted Andros to land, seeing that he came without troops; the con- ference, however, came to naught. But a few weeks later Andros resorted to different tactics. A troop of New York soldiers made a night attack on Elizabethtown. Carteret was arrested and taken to New York, where he was put into prison and treated as a common criminal. In May, 1678, Governor Andros himself presided over the special session of the Court of Assizes which had been commissioned to try the New Jersey governor. That in itself was an unfair advantage. Still, the outcome of this trial must have convinced Governor Andros that the case of the Duke was very weak, or that he himself was decidedly unpopular with the people of New York, for, although he sent the jurors out three times, Carteret was acquitted. The latter was, however, compelled to give se- curity that he would not again assume any authority in New Jersey. He kept his word, and transferred the case to Eng- land, where the dispute was presented for the decision of the Duke himself. Andros, however, found that the absence of Carteret did not make the position of the Duke in New Jersey much stronger, for although the Assembly accepted the gov-
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ernment of Andros, they declined to recognize the Duke's Laws.
West Jersey also had referred its case to England, the Eng- lish commissioners reviewing it in September, 1679. Penn and his associates secured their ends by "a masterly argu- ment." "It was a bold and striking plea in favor of popular liberty ; and the commissioners, advised by Sir William Jones, decided that James' grant had reserved no jurisdiction, and that none could rightly be claimed."
The Duke accepted the decision, relinquishing right to both East and West Jersey, reluctantly, no doubt. This re- acted against Andros, whose treatment of Carteret did not en- hance his reputation with the King's ministers, whatever may have been the Duke of York's private opinion. Complaint also came from the New York province as to the arbitrary actions and intolerant bearing of Governor Andros. These grievances could not be ignored by the Duke; and finally Andros was recalled. He left New York on January 6, 1681, perhaps realizing that by his actions-which were all for the Duke and the Crown-he had not fallen so seriously into royal disfavor as his recall would infer. As a matter of fact, his account of his stewardship was so completely satisfactory to his royal master that Andros "was complimented upon the success of his administration," and received tangible evidence that these words were sincerely meant. He became a gentle- man of the King's Privy Chamber, and in later years was destined to be entrusted with far greater authority than that which he had just relinquished in New York. Perhaps the Duke of York would have liked to have sent him back at once, as Governor, but possibly his commissioners advised him that reinstatement would be imprudent. Whatever the cause, An- dros, for a little while, had to pass his time in the royal pres- ence, while another royal favorite administered the Duke's province. Lieutenant-Governor Brockholst held rank as com- mander-in-chief in New York until the arrival of the next governor, Colonel Thomas Dongan, in 1683.
CHAPTER XXII. THE DONGAN RÉGIME .*
A month or so before the departure of Andros from New York, but some months after he had been relieved of the gov- ernorship, the merchants of New York City, and the taxpayers in general, assumed a dogged attitude of resistance of gov- ernmental measure enacted without their consent. The ob- noxious import duty, which had been in force for three years, expired by its own terms in November, 1680; and the mer- chants positively refused to recognize a renewal of the meas- ure. In fact, they sued the Collector of the Port of New York for detaining illegally goods upon which tax had not been paid. "He was arrested, was brought before the Court of Assize and charged with high treason, and sent to England for trial."1 This somewhat unusual charge, against a govern- mental functionary who was but enforcing the will of the royal proprietor, must have conveyed to the Duke of York
*AUTHORITIES-Bryant's "History of the United States"; Chester's "Legal and Judicial History of New York"; O'Callaghan's "Documents Relative to the Colonial History of New York"; Werner's "Civil List of New York," 1888; Lincoln's "Constitutional History of New York"; "Col- onial Laws of New York"; Hoffman, "Treatise Upon the Court of Chan- cery"; Redfield's "English Colonial Polity and Judicial Administration"; "History of the Bench and Bar of New York," 1897; "National Cyclo- pedia of American Biography"; Scott's "Courts of the State of New York"; Brook's "History of the Court of Common Pleas of City and County of New York."
I. On leaving the colony Andros had appointed Anthony Brockholls-or Brockholst-as Commander-in-Chief of the Militia and as Lieutenant- Governor. But he neglected to renew the order for collecting the customs duties, which had expired by limitation, and Brockholst was at once in- volved in a controversy with the merchants. They refused to pay these duties, and William Dyre, formerly of Rhode Island, who was the collector of the port as well as mayor of the city, seized a cargo of goods. The merchants brought a suit against the collector; his act was pronounced illegal, and an indictment found against him for usurping power over the people. Brockholst and his council sustained the decision of the court, and the city seal and his commission were demanded of Dyre. He refused to surrender them, disputed the authority of the court summoned specially for
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some idea of the growing discontent of the provincials. And if the malcontent were not sufficiently evidenced by the find- ing in this case, the Duke was destined soon to be made di- rectly aware of it, for out of an opinion expressed by the jury that tried the collector grew a petition addressed to the Duke and signed by all classes in the province, praying for the early establishment of a General Assembly in New York like those of the Jersey provinces, and in conformity with the constitu- tional rights of Englishmen.2
The disruption of financial measures, and the depletion of the provincial treasury, by this opposition of the people was a matter of grave concern to the Duke of York, who dreaded that the maintenance of the public offices of the province might fall upon his private purse which, if one might draw conclusions from the chronically impecunious state of his brother, King Charles, was not always full. Moreover, the Duke was probably not unmindful of the experience of the Dutch West India Company, which reached a hopeless state of bankruptcy through, among other causes, repressive meas- ures that alienated the sympathies of the people. Without their cooperation the province could not prosper. This must have been obvious to the Duke's advisers, if not so clear to the Duke, who was mentally dull ; and there were other imperative
his trial, on the ground that their power and his emanated from the same authority-the Duke of York-and one could not be responsible to the other where there was a common master. He was thereupon arrested and sent to England for trial, where, in due time, it was decided that he was guiltless of any offence .- Bryant's "History of United States," Vol. III, 6. 2. In this emergency the court appointed John Young, the High Sheriff of Long Island, to draw up a petition to the Duke of York, asking for the establishment of a general assembly for the province-Chester's "Legal and Judicial History of N. Y.," Vol. I, 205.
The petition represented to the Duke that arbitrary taxation, without regard to the wishes of the people, was a grievance that could not be borne, and that a remedy for this and other evils could only be found in the right of self-government through a General Assembly chosen by popular vote. "The people," wrote Brockholst, "generally cry out for an Assembly." "Authority and Magistracy," he said, "is grown so low that it can scare maintain the public peace and quiet of the government."
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reasons why the royal proprietor could not serve his own pur- poses well by further delaying the establishment of a General Assembly. Therefore, one of the important missions en- trusted to the new governor, Thomas Dongan, was that of bringing such a popular body into existence, an Assembly that would be representative of all the freeholders of the province.3
In its general terms, Governor Dongan's commission was very like that given to his predecessor, Andros. It was dated September 30, 1682, but Dongan did not reach New York City until August 25, 1683. On the Monday following his arrival, "he appeared at the city hall and made public his commission, announcing at the same time that he was directed to confirm to the city all its existing rights and privileges and even more, as might be found necessary in the future." He made early appointments to his Council, John Spragg becoming provincial secretary and also clerk of the Court of Assizes, and Anthony Brockholst being retained as lieutenant-governor. In the place of William Dyre, Brockholst had acted as collector, or receiver-general, of the Port of New York from May 2, 1681, to February 17, 1683, when he handed those responsibilities to Lucas Santen, who was confirmed in the office by Gov-
3. "You are also wth advice of my Councill with all convenient speed after yor arrivall there, in my name to issue out Writts or warrts of Sumons to ye sevrall Sheriffes or other proper Officrs in every part of yor said governmt wherein you shall expresse that I have thought fitt that there shall be a Genll Assembly of all the Freeholders, by the prsons who they shall choose to repsent ym in ordr to consulting wth yorselfe and the said Councill what laws are fitt and necessary to be made and established for the good weale and governmt of the said Colony and its Dependencyes and of all the inhabitants thereof, & you shall issue out the said Writt or Sumons at least thirty dayes before the time appointed for ye meeting of the said Assembly, wch time and also the place of their meeting (wch I intend shal be in New Yorke) shall also be menconed & expressed in the said Writt or Sumons, and you wth advice of my said Councill are to take care to issue out soe many Writts or sumons and to such officers, in every part, not exceeding eighteene, soe yt the planters and Inhabitants of every part of ye sd governmt may have convenient notice thereof and attend at such ellection, if they shall thinke fitt. And wn the said Assembly soe elected shalbe mett at ye time and place directed, you shall lett ym know
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ernor Dongan in August of that year, and continued as re- ceiver-general until 1687. Cornelis Steenwyck was named as mayor of New York by Dongan. The governor also per- mitted a Court of Sessions to function in the city, with the mayor and aldermen as magistrates, although, of course, he knew that soon the judicial code might be altered by the Gen- eral Assembly he was authorized to establish.
Still, for the time being the Duke of York's Laws were in force and until new courts had been created, the courts of the existing code were the only ones that could be operated.4
The Court of Assizes was still the highest court of the province. And as the time of its regular annual session came on October 3, 1683, before an Assembly could be convened, the governor took his seat as presiding judge. It was its last session, and possibly its most important business had to do with matters of political and judicial reorganization. The session was hardly over before Governor Dongan issued notices, convening a General Assembly on October 17. As a matter of fact, he had not needed authority from the Court of Assizes, for he had authority in his own commission. Upon his own initiative, therefore, he had, on September 13, ordered the election of a General Assembly, consisting of fourteen rep- resentatives, apportioned as follows: Long Island, one; Staten Island, one; Esopus, two; Albany and Rensselaer's col- ony, two; Schenectady, one; Pemaquid and dependencies, one; Martha's Vineyard, Nantucket, Elizabeth and other ad-
that for the future it is my resolucon that ye said Genll Assembly shall have free liberty to consult and debate among themselves all matters as shall be apprehended proper to be established for laws for the good governmt of the said colony of New Yorke and its Dependencyes, and yt if such laws shalbe propounded as shall appeare to mee to be for the manifest good of the Country in generall and not prejudiciall to me I will assent unto and confirme ym. In the passing and enacting of all such laws as shalbe agreed unto by the said Assembly, wch I will have called by the name of the General Assembly of my Colony of New Yorke and its Dependencyes wherein the same shalbe (as I doe hereby ordaine they shalbe) prsented to you for yor assent thereunto." -- O'Callaghan "Docu- ments Relative to the Colonial History of the State of New York," III, 331.
THOMAS DONGAN
GOVERNOR ANDROS
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THE DONGAN REGIME
jacent islands, one; Westchester, four; and New York four representatives.5 The Assembly, by another account,6 con- sisted of eighteen representatives, the majority of whom were chosen by the Governor and Council, but six by a "direct vote of the freeholders."
Unfortunately, the records of this, the first, legislative body organized by some degree of popular vote in the province of New York have not been preserved; but certain indirect records make it possible to name at least some of the members of the Dongan Assembly. In Chester's "Legal and Judicial History of New York" Henry Beeckman, William Ashton, Giles Goddard, Samuel Mulford, John Lawrence, Matthias Nicolls and William Nicolls are named; and in Werner's "Civil List of New York," for 1888, seven other names are given.7
The General Assembly passed fifteen acts during its first
4. "I doe also hereby authorize you wth advice of my sd councill to elect and settle such and soe many courts of Justice & in such places as you shall wth advice of my said Councill judge to be necessary for the good governmt of the said place & for adjudgeing and determineing all mattrs Civil and Criminall wherein you are to take care that ye same be as nere answerable to ye laws and Courts of Justice in England as may be, and to give me an account of such courts as you shall thinke fitt soe to erect, to ye end I might confirme or reject the same as I shall see cause, but the said courts may proceed and hold Recognizance of such matters as you and yor Councill shall appoint until my pleasure be signified to ye contrary."-Ibid, III, 333.
5. Werner, in "New York Civil List," 1888 edition, p. 67.
6. According to the instructions of the Duke, the membership of the assembly was to be eighteen representative citizens selected by the Governor and his Council, four from the city of New York, two from each of the three ridings of Yorkshire, one from Staten Island, two from the towns of Esopus, two from Albany and Rensselaerswyck, one from Schenectady, one from Pemaquid, and one from Martha's Vineyard and Nantucket. Six delegates were chosen by a direct vote of the freeholders or by a delegate convention .- Chester's "Legal and Judicial History of New York," Vol. I, 206.
7. FIRST ASSEMBLY-First Session ---
Cornwall: Gyles Goddard. Westchester: Thomas Hunt, Sen. John Palmer, Richard' Ponton, William Richardson. Speaker : Matthias Nicolls. Clerk : John Spragg.
C.&L .- 26
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session, which lasted for three weeks, from October 17, 1683. The most conspicuous of these acts was the measure known as "The Charter of Libertyes and Priviledges granted by his Royall Highnesse to the Inhabitants of New Yorks and its Dependencyes." This was enacted on October 30, and seemed to have the approval of the Duke. It did not bring from hin a formal expression of approval, neither did he ex- ercise his prerogative by vetoing the measure while he was Duke of York; therefore, it seems likely that he would have given it a reluctant approval had not his status materially changed in 1685, when, by the death of King Charles, he as- cended the throne of England. He was no longer a pro- prietor by virtue of a royal grant, but ruler by birthright over all the dominions of England. The charter, which contained principles drawn, states Lincoln in his "Constitutional His- tory of New York" "from the immortal Magna Charta,"8 may have suited the Duke of York, but was somewhat offensive to King James II, for it declared that the supreme legislative authority "under his Majesty and Royall Highness should for- ever be and reside in a governor, counsell and the people meet
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