USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 11
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page of New York history, for all this havoc was caused by the unreliable testimony of disreputable whites or panic- stricken blacks, whose evidence, as the public excitement waned, was seen to be woefully weak. Too late, alas. The lives had been demanded and taken, and one of the darkest pages of New York City history had been written. That such leading minds as those of the men who constituted the Grand Jury and the jury which convicted John Ury should have been unable to see how absurd were the charges indicates how gen- eral and intense must have been the panic that seized the white people of New York. On the Grand Jury were such men as James Livingston, Herman Rutgers, Peter Rutgers, Jacobus Roosevelt, Stephen van Cortlandt, John Prevoost, Abraham de Peyster, Peter Schuyler, Peter Jay, and other leaders. The jury which tried John Ury consisted of Geraldus Beeckman, Sidney Breese, Peter Furman, Thomas Willett, Brandt Schuyler and others of prominence in the city. Daniel Horsmanden, who was then Recorder of the City of New York but eventually became Chief Justice of the Province, was one of the judges ; and he was so convinced of the existence of the plot that later he wrote an account of the case, defending his action and that of his associates on the bench. His "Journal of the Proceedings in the Detection of the Conspiracy" is how- ever the best evidence that the panic extended even to the judges before whom the unfortunate alleged culprits were arraigned. "For its disregard of all rules of legal evidence, for its prosti- tutions of the forms of law, for the perpetration of cruelty, for popular credulity and cowardice, for the abnegation of all sense of mercy, for the oppression of the weakest and most defenceless, the whole transaction was without precedent, and has no parallel in any civilized community," wrote Mr. Gay, in "Bryant and Gay's History of the United States." A some- what similar period of panic seized the English in 1679, the judicial murders of the supposed "Popish Plot" trials of that time marring the English record as sadly as does the "Negro
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Plot" trials that of New York. The "Popish Plot" trials were, according to Lord Campbell, "more disgraceful to England than the massacre of St. Bartholomews to France."
Lieutenant-Governor Clarke had other troubles in 1740 and 1741. The Assembly even threatened to reduce his sal- ary, and emphatically refused to bear any part of England's war expenditure. While the Governor appointed a "day of thanksgiving" for "the wonderful deliverance" from the negro danger, it seems that he was really more apprehensive of a white insurrection. In April, 1741, he addressed the House, pointing out that the fear that the provincials were anxious to throw off their allegiance to the Crown had long prevailed in England; and he somewhat tactlessly demanded "a liberal support" of his recommendations and "a dutiful obedience to the wishes of the English court." Which request only stif- fened the spirit of independence that ran through the House.
Clarke became more and more unpopular, being forsaken even by James de Lancey, who had been the strength of the court party during Cosby's administration. And Lewis Mor- ris, who was now Governor of New Jersey, still maintained a keen interest in the affairs of New York.
The Clarke administration reached its end with the arrival of George Clinton from England, on September 22, 1743. For the next ten years New York was governed by this man of illustrious past. His escutcheon was not so bright at the end of his decade as Governor, however, Admiral George Clinton, the second son of the Earl of Lincoln, had received full com- mission, and took his place as Captain-General and Governor- in-Chief of the Province of New York. (New Jersey, of course, was no longer within the jurisdiction of the New York Governor). He dissolved the old Assembly on Sep- tember 27, 1743, and the new Legislature, the Twenty-third, began its first session on November 8, 1743, under the same officers and with little change in membership. It was destined to have four sessions, and to be dissolved on May 14, 1743. The
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Twenty-fourth Assembly began on June 25, 1745, and was dis- solved on November 25, 1747.
The course of legislative affairs was somewhat stormy. Clinton was a sailor of blunt character. He was of good re- pute in naval activities but not very efficient as a Governor. And as he had so long been accustomed to have his commands obeyed without delay and without question, he could not happily fall into the temporizing tactics that were necessary to handle successfully such a sensitive independent political unit as the New York Assembly. He was shrewd enough to rest considerably upon James de Lancey and his associates, but not discerning enough to see that the relinquishment of power would inevitably react upon himself. He resented the penurious methods of the Assembly, in doling out appropri- ations from the treasury. Particularly, he chafed at the curb the House exercised over his officials. By annexing salaries to the person by name, the Assembly virtually controlled ap- pointments, for, as Governor Clinton pointed out to the Lords of Trade in 1746, officials who were not persona grata with the holders of the public purse "must starve, to use the words that have frequently been made use of on such like occasion." Thus, continued the Governor, the "ruling faction has ob- tained in effect the nomination of all officers, and they have become even so insolent that they have, in the bill for the payment of the salaries, removed one officer's name and put in another without consulting me." This insolence had been carried to the fullest degree when the Speaker ordered the secretary to make out a commission to this official.45
45. "By these means all the officers of the government are becoming dependent on the Assembly, and the King's prerogative of judging of the merits of his servants and of appointing such persons as he may think most proper is wrested out of the hands of his Governor, and the King himself, as far as in their power, deprived of it. The Assembly carries matters in their case to such a length that they call those bills for the payment of sal- aries and other contingencies money bills, to which they will not allow the Council to make any amendments, and a Governor must either take it as it comes from them, or he and all the officers of the Government must remain without support."-Clinton, to the Lords of Trade, Dec. 12, 1746.
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In his dilemma, Governor Clinton could no longer count upon the support of the followers of James de Lancey, for that exalted jurist had severed connection with him six months earlier, and had done so with impunity, for while still in the good graces of the Governor De Lancey had contrived to have his commission as Chief Justice changed in status from one revocable at will to one irrevocable during good behaviour.46 By this act the Governor had shown the frank trustfulness of the average man of action. He was ignorant of the tortuous undercurrents that control the actions of men who are am- bitious to rise in the world of politics. De Lancey, it is said,
46. "I must inform your Lordships that the chief strength this faction has gained proceeded from, I must confess, an imprudent act of my own in giving Mr. DeLancey commission to be Chief Justice of this Province during his good behaviour; this has given him the greatest influence, as no man can think himself safe from his power, when the ambition, the violence, the obstinacy of his temper is well known. A governour they expect can remain with them but a few years, but the power of this man, they think, is entailed upon them; whatever reason there may be for making the Judges' Commissions in England, in this manner, the same reason may not extend to the plantations, tho' I was made to believe that they did; but the in- conveniences which may arise from it may be incomparably great, as it is possible that a Chief Justice in England cannot obtain such influence over the Nation as a Chief Justice may over this Province, where the number of Men of Knowledge is very inconsiderable, and by uniting with the men of politics, power and wealth make it impossible to find anyone to accuse, try or convict him. . . . The Chief Justice soon convinced me of my error, for before that commission was granted, he on all occasions showed himself ready to assist me with his advice and with what influence he had, in order to make my administration easy to me, and which I have now reasons to believe he only did thereby to induce me to grant this commission, by which he expects to secure to himself that Power which from his nat- ural ambition he has always aimed at, for as soon as he had obtained it, he put himself at the head of the Faction whose views were to distress me in the administration, and thereby compel me in effect to put it into their hands, and on this occasion I must remark . . . that the uneasiness and distraction in government affairs in Mr. Cosby's administration arose from Mr. DeLancey's ambition to be Chief Justice, and that ever since he has been in power continual schemes have been formed to weaken the authority and power of every governor in the administration and to alter the Consti- tution of his Government, as will appear from an attentive consideration of the acts of the General Assembly in Mr. Clark's administration and since my arrival."-Clinton to the Lords of Trade: quoted in "Documents Rel- ative to the Colonial History of the State of New York," by O'Callaghan, VI, 356.
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quarrelled with Admiral Clinton on June 6, 1746, "over a bottle of wine," and that the Chief Justice "swore vengeance"; but apparently the cleavage had occurred soon after De Lancey had been recommissioned in 1744.
Governor Clinton had had stormy exchange of notes with the Assembly in 1745, over the Saratoga relief. The Assem- bly had urged him to make necessary provisions to see that troops were not withdrawn a second time; and in the same address had pointed out that the province had already pro- vided £70,000 since the beginning of the French war, "which is a burden we fear our constituents will be too apt to think too heavy for them to bear," but that in future they "would not be too profuse and lavish," neither would they be "too sparing." Governor Clinton had retorted sharply, and in such way as to emphasize the fact that they met only "by authority of the King's commission and instructions" to himself, and that such instructions were "alterable at his Majesty's pleasure."47 He forbade the printing of the Assembly Re-
47. "You have not," Governor Clinton said, "by the Constitution of the government, any share in the execution of military orders. Consider, gentlemen, by what authority you sit and act as the General Assembly of this province! I know of none, but by the authority of the King's com- mission and instructions to me, which are alterable at His Majesty's pleasure. You seem to place it upon the same foundation with the House of Commons of Great Britain; and if I mistake not, you, by the resolves of the 9th of this month, assume all the privileges and rights of the House of Commons of Great Britain. If so, you assume a right to be a branch of the Legislature of the Kingdom and deny your dependence and subjection on the Crown and Parliament. If you have not the right of the House of Commons of Great Britain, then the giver of the authority by which you act has or can put bounds and limitations upon your rights and privileges and alter them at pleasure; and has power to restrain you when you en- deavor to transgress. And I now tell you that I have his Majesty's ex- press commands not to suffer you to bring some matters into your House, or to debate upon them. In short, gentlemen, I must likewise tell you, that every branch of the Legislature of this province, and all of them together, may be criminal in the eye of the law, if you provoke that power to do it by your misbehaviour ; otherwise you must think yourselves independent of the Crown of Great Britain."
The Governor not only saw that this was a political conflict for prac- tical independency, but he charged the Assembly with assuming greater C.&L .- 37
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monstrance by the public printer. Whereupon, the House resolved "that it was the right of the People to know the pro- ceedings of their representatives, and that any attempt to pre- vent those proceedings being printed is a violation of that right." The House declared the Governor's order forbidding the printing was "arbitrary and illegal"; and they sustained the Speaker in ordering it to be printed.
In the end, the Governor submitted to the "encroach- ments" of the Assembly "on the ground that it was a time of war." He observed, however, that "upon the approach of peace, that the time was then coming in which he should be able to recover the executive power of the government, and put a stop to the usurpations of the Assembly." He kept his word, for after the signing of the Treaty of Aix la Chapelle in 1748, he refused assent to the revenue bill passed Novem- ber II, 1748, "since which time," as he wrote the Lords of Trade, "every executive part of the government has stood still." This followed a refusal of a demand by the Governor
powers than those possessed by the House of Commons. After recapitu- lating their proceedings, he continued: "Is this following precedents of the Parliament of Great Britain, which you pretend so much to imitate? No, I'll defy any man to give any precedent of this nature, unless it was in that House of Commons that had resolved to take away the King's life and to overthrow the established government. Nay, I'll defy any man to show that the Council or General Assembly of any nation ever acted in this manner, but where a faction had resolved to usurp the whole authority and power over that nation."
According to the Governor, more than £60,000 of the money granted by the Assembly had been put into the hands of the commissioners named by them; but there was apparently a limit to the subservience they might expect of their governors. Clinton concluded : "I now tell you that I will not give my assent to any bill in which the issuing or disposition of the public money is directed otherwise than as his Majesty's commissions and instructions to me direct, or which shall lay any limitations or clogs on his Majesty's authority with respect to the disposition or command of the forces, or which in any sense may lessen his Majesty's authority in my hands with respect to military affairs. If you make any thing contrary to his Majesty's commission or instructions a condition of your granting the necessary supplies for the safety of the people of this province, I now tell you that it will be trifling with the lives and estates of your constituents, by exposing them in this time of danger without relief."-See "New York Civil List" (1888), pp. 86-87.
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that he be given a five years' grant of the revenue, a request which brought him the customary grant for one year only.
In February, 1749, Clinton wrote to the Lords of Trade complaining of the "violent faction" which "have a bold de- sign of wresting the administration out of the hands of his Majesty's Governor, and to place it in the hands of them- selves in such manner as to have the power perpetually to secure the administration in some prevailing faction, during the administration of all future Governors." He maintained his stand, and, as the summer advanced, the Assembly took into their hands, as he pointed out, "by the nomination of all offices." The Assembly contended that his instructions con- tained no royal injunction requiring a grant of supplies for five years; and they reiterated "that the faithful representatives of the people would never recede from the method of an an- nual appropriation." Governor Clinton, in reply considered the provision by the Assembly for services which he had never recommended to them, "not even been acquainted with, was a dangerous invasion of the King's prerogative."
The Assembly, while admitting a departure from the ancient constitution, deemed that they were justified in making that temporary departure, and were careful to point out that their action was not "with deliberate intent to intro- duce permanently a new system of government."48
The English ministers at last came to believe that the best way out of the deadlock would be to appoint a new governor. They argued that it would hard for the same Governor to re-
48. Their safeguards, though perhaps unconstitutional, were designed to check misapplication of funds by governors. "They knew it was the custom of Parliament to leave to his Majesty the disposition of money raised for the public service; but that there was great difference between the con- dition of such subjects and those whose unhappy lot is to be under the com- mand of the Governors of Provinces. In cases of misapplication the sub- ordinate officers could be punished by Parliament, but that in the colonies the Governors, who are strangers to the people and employ all means to raise estates to themselves, could not be called to account."-"Civil List" (1888), p. 89.
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establish the King's prerogatives so violently attacked; that Governors come and go but that the sovereignty of the people could not be taker. away save by conquest; that while a Gov- ernor could not effectually govern except by the maintenance of harmonious relations with the legislative houses, yet a new Governor might draw many more concessions from the As- sembly than could be gained by strongly supporting the en- deavors of the existing unpopular Governor.
Clinton had, indeed manifested a vindictiveness almost as bitter as that of James de Lancey. He tried to discredit the latter by drawing public notice to the violent character of Oliver de Lancey a brother of the Chief Justice. Clinton charged Oliver with an attack upon Dr. Alexander Calhoun, the latter having been stabbed in a tavern brawl in June, 1749. And the Governor made much of the fact that he could find no lawyer of ability courageous enough to maintain the King's authority in De Lancey's court. There was one capable lawyer who was not afraid of De Lancey, the disbarred William Smith, who with James Alexander had been read- mitted to practice, against the wish of De Lancey, it seems. Clinton wished to have Attorney-General Bradley removed, for he had become incompetent through age, and he had recommended William Smith for appointment. He had also wished to import judges "because the New York judges were interested in all quarrels of account before them, and by their connections with the politics and the politicians rendered the administration of justice impossible." He could not, however, get the home ministers to act favorably on his recommen- dations.
His next tussle with De Lancey in the courts occurred in 1750, and was distinctly to his disadvantage. One June eve- ning, a Colonel Ricketts and a family party were sailing down the bay on their way to Elizabethtown. As they passed the man-of-war "Greyhound," commanded by Robert Roddam, a son-in-law of Governor Clinton, the boat failed to dip its flag,
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as was the Admiralty rule. An officious lieutenant ordered a shot to be fired across the bow of the boat to stop it. A second shot struck a woman in the boat. She expired soon after being taken to New York. The incident caused great commotion in New York. Captain Roddam when he returned to the "Greyhound" instantly arrested the lieutenant. And just as promptly Chief Justice De Lancey ordered the arrest of the gunner's mate for murder.
De Lancey by his action in this incident appears in a much more favorable light than Clinton. The Chief Justice, accord- ing to the reports the Governor had been sending to England of late years, had been but waiting a favorable opportunity to seize the government, and establish a republic. He never had a better opportunity than came by this incident, which sent the resentment of New Yorkers against Crown officers to fever heat. The leaders of the Popular Party, according to Clinton, were nightly plotting to head a rebellion. "A number of them met at a tavern where the heads of the Fac- tion have usually made their rendezvous, and Mr. Chief Jus- tice De Lancey among them, where they staid the whole night, as I am informed, and I believe truly, to consult how to make the best use of this incident for increasing and confirming their popularity." Clinton was informed "that Mr. Oliver de Lancey, Chief Justice de Lancey's brother, openly, and in all companies, and among the lower rank of people, dis- tinguished himself in inciting the people against the Gov- ernor." Clinton, however, was determined to protect the royal sailors from exposure "to people artfully excited to tumultuousness or violent proceedings by a party or Faction."
The Chief Justice, as a matter of fact, had treated the case with calm judicial dignity, and as one which rightly came within his jurisdiction, happening as it had within the city limits. But the Governor was Captain-General, admiral of the fleet, supreme commander of the province, and the Chief Justice held no powers but those given in his commission,
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which strictly exempted naval offenses on shipboard from the jurisdiction of provincial courts. Commissioners of Ad- miralty alone had jurisdiction in such offenses. In this con- dition, Clinton saw an opportunity of removing De Lancey, whom he would charge with misdemeanor, in that De Lancey had wilfully disregarded the royal commands, by trying to borrow the Crown's jurisdiction in admiralty cases. Clinton addressed letters to the Crown lawyers, Ryder and Murray, asking whether he had not better let De Lancey proceed, and then suspend him, for the good of the King's rule, and whether this would not open the way for the appointment of Cadwallader Colden as Lieutenant-Governor, in place of De Lancey.
Clinton hoped against hope that the home ministers would support him in his fight against the Assembly, and by their resolute support cause the Assembly to recede from their de- termination to commit themselves no further than one year ahead in money matters. With a five years' revenue bill Clinton believed his other difficulties would automatically disappear. Alas! He did not get the support, or the free rein in disbursement of public moneys. He maintained his defiant attitude until September, 1750, but then, being at the end of his financial resources, he summoned the Assembly, and bowed to it. He had hoped that the Twenty-sixth As- sembly, which convened for its first session on September 4, 1750, would be so changed in constitution that his course would be easier. But the election returns showed him how futile had been his hope. Chief Justice de Lancey had done such active and open electioneering that the Faction, as Clin- ton termed the Popular Party, was returned with increasing strength. However, faced by realities and by the urgent need of funds. Clinton had to become reconciled to the inevitable. As he wrote to the Duke of Bedford: "There are no instances, I believe, where men who have (by any means) gained power, that they willingly give it up, and much more unwillingly
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when they find the means at the same time to fill their own or friends' pockets thereby : My duty therefore obliges me to tell Your Grace my humble opinion, that the King must enforce the authority of his own Commission or else resolve to give up the government of this province into the hands of the Assembly."
Clinton had had to do it. No other course lay open than to submit to the Assembly. As Clinton stated in his address to the Assembly and Council on September 4, 1750, "The Gov- ernment of this Province has been now two Years without any Support," other than by advances made to it by private parties, notably Colonel William Johnson.49 Still, he reiter- ated his determination to hold strictly by his royal commis- sion and instructions. The latter, for instance, forbade "Matters of a different Nature to be included in the same Bill," which was a tactic to which the Assembly had at times resorted. Clinton's stated intention was "to preferve the King's Right, in confirming or repealing the Laws paffed in this province, and which muft feem to be defignedly invaded when Matters neceffary for his Service are tacked to others which he may think prejudicial."
49. "Gentlemen of the Council and General Affembly :
"One great inducement for my calling you together at this Time is, to give you an Opportunity of making a proper and feafonable provifion for that important Garrifon at Ofwego, which been fupported by Advance on Publick Credit : But as none are willing longer to advance on that Credit, it becomes neceffary that this Expence be immediately provided for ;
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