USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 12
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46
"The Government of this Province has been now two Years without any Support : This not only requires your Care, in Regard to what is due to the Officers of Government, for their paft Services, and the contingent Charges which have already occurred, but likewife for the future Support of Government. .
"I muft demand of you the neceffary Supplies for the Services. . . . . You have now a fair opportunity of demonftrating your Loyalty to your King and your Attachment to the Interest and Welfare of your Country."
"G. CLINTON."
-See "Journal of Votes and Proceedings of the General Assembly of the Colony of New York," Vol. II (1743-1765 A. D.) pp. 276-77.
584
COURTS AND LAWYERS
The Assembly did not hesitate to meet the governmental incurrments for the past two years, and agreed with the Gov- ernor that "no better rule could be followed than that given by the King's commission and instructions, and that all devi- ation from these rules (presumably by the governors) had been attended with bad consequences."
James Alexander, who could hardly be expected to think kindly of De Lancey, was added to the Council in 1751. This action, indicating that Clinton's animosity to De Lancey, the Chief Justice, was as bitter as ever, convinced the home min- isters that Britain's interests might be better served by send- ing another Governor to New York.
However, fortune seemed to favor Clinton. He could not remove De Lancey as Chief Justice, but death removed Puisne Justice Phillipse in August, 1751, also Attorney-General Brad- ley. Clinton wanted William Smith in Bradley's place, and John Chambers, whom he had appointed to the Council a year earlier, was named to succeed Second Justice Phillipse. The Governor was not even disturbed in his mind when Chambers declined the commission unless his term be like that of De- Lancey-during good behavior.50 Clinton evidently expected that Chambers, independently placed on the Bench, would prove as much a curb upon De Lancey as the latter had proved upon the Government since he had, so unwisely, granted him the independent commission. So Chambers received his "good behaviour" commission, and William Smith became attorney-general pro tem. Clinton also expressed a wish to have Cadwallader Colden, who was Speaker of his Council, formally commissioned as Lieutenant-Governor, so as to pre-
50. Chambers had preferred the Council-Board to a seat in the As- sembly, even from New York, where he was said to be very popular, and now, when he was to have a place on the bench "he declined it unless it were granted during good behaviour with such strong reasons as convinced me of the necessity and fitness of granting of the office to him in that manner, and I have not the least reason to believe that either I or any of my suc- cessors, or the people in General, will have any cause to wish he had a less tenure in the office."-"Memorial History of New York," Vol. II, p. 280.
585
CORNBURY TO TRYON-1702-1775
vent the governorship devolving upon De Lancey, in the event of his own departure.
But his plans went awry. The ministers were shrewd enough to see that even though Clinton were removed, the friction would not end if they permitted Colden, who had been Clinton's instrument and had incurred the enmity of the Pop- ular Party, to succeed him. Rather, they thought to improve the political state by giving the heads of the opposing faction the responsibility for the safeguarding of Crown rights as well as those of the people. They preferred to have De Lancey as lieutenant-general. They also sent William Kempe over, in November, 1752, as attorney-general, in place of William Smith, the ad interim holder of the office. Furthermore, on November 29, 1752, the Lords of Trade reprimanded Clinton for the tone of his letters. He had asked to be permitted to resign, but they told him that not only must he stay, and not look upon New York as a "place of punishment," but that he must give up all idea of preferring Colden over De Lancey.
Either the English ministers had lost faith in Clinton, or they had affairs of greater moment to the nation on their minds during those years. Those were, of course, anxious years for the British ministers, the thwarting of the Bourbon Family Compact being almost a matter of life or death to Eng- land. But whatever the cause, it is quite clear that Clinton's administrative efforts received little support from England. The Privy Council was not alarmed by his letter of October 4, 1752, stating that the remedy (of the perpetual graspings for more power by the Assembly) "must come from a more pow- erful authority than any in America."51 They allowed Clinton
51. On Oct. 4, 1752, Governor Clinton wrote to the Lords of Trade, stating that "by every act granting money to the King for several years past, the great part of the money is issued without Governor's warrant and sometimes by warrant of the Speaker only. Tho' the Assembly dare not deny the King's authority over the militia, yet an opinion is inculcated among the people that the powers of the militia can only be put in execu- tion by the authority of the Assembly. . . . I am persuaded it is not in the
586
COURTS AND LAWYERS
to further improve the concord with the Indian allies during 1753, but what time they themselves gave to New York gov- ernmental affairs was spent in choosing a successor to Clinton. In July, 1753, the ministry decided upon Sir Danvers Osborne, brother-in-law of the Earl of Halifax; and he was commis- sioned as Governor. Orders in council were issued in July to that effect. At about the same time, the Crown lawyers, Ryder and Murray gave their opinion in the De Lancey im- peachmen possibility. They were of opinion that the grant- ing of the commission to De Lancey without a warrant there- for from the King was "contrary to the usage," yet the grant had been made, and it was good in law and could not be re- voked without misbehaviour."
Clinton had by this time practically given up the fight, and when the new Governor arrived in October, 1753, Clinton gave De Lancey his commission as Lieutenant-Governor, and re- tired to his country seat at Flushing, on Long Island, pre- paratory to leaving the country. He sailed for England in the following month, and died in 1761.
Two days after the new Governor, Sir Danvers Osborn, took the oath, De Lancey was in supreme control. Governor Osborn arrived on October 6. On the 9th Governor Clinton made formal call on him; and on the same day the new Gov- ernor was presented with the freedom of the city. His in- auguration, as Governor, occurred on the 10th, and his recep- tion would have been pleasing if he had not also noticed how vituperative and derisive was the attitude of the populace toward the outgoing Governor. The manifestations of joy at Osborn's coming did not impress him so much as the evi- dence he had of what odium could be meted out to an unsuc- cessful Governor. Words of the New York City address wel- coming him stood out ominously before him : The City Fathers
power of the Governor, as things now stand, to put a stop to these perpetual graspings in Assemblies after more power; the remedy must come from a more powerful authority than any in America."-"Civil List" (1888), p. 92.
587
CORNBURY TO TRYON-1702-1775
expressed their assurance that His Excellency would be as "averse from countenancing as we from brooking any infringe- ments of our inestimable liberties, civil and religious." Os- born was a young man, only thirty-eight years old, and had his career still before him; Governor Clinton has been a famous man, a great admiral, a man who had climbed to the pinnacle of his profession before coming to New York. Yet he was now departing in disgrace; discredited even by the ministers of England-merely because he had attempted to safeguard Crown rights in America. Governor Osborn re- called his own instructions from the King. He was expected to recover all the ground lost by Clinton; he was to inform the Assembly that they were required "to recede from all encroachments upon the prerogative" of the King, and must afford permanent and unlimited support to the Government. All public money was to be applied by the Governor's war- rant, with the consent of the Council, and with the Assembly to all intents powerless, for they were not to be allowed to even examine the accounts. His task was hopeless, he was informed by his host, Mr. Joseph Murray, a great lawyer, who made it clear to him that in matters of finance the Assembly- men would not yield a fraction of the powers they had wrested. "Then what have I come here for?" inquired the perplexed Governor.
He retired from the inaugural banquet early, pleading in- disposition. Next day he brooded, and on the following morning, October 12, his dead body was found hanging from the fence in Mr. Murray's garden. It is said that he grieved for his deceased wife; but she had died ten years earlier. It, therefore, seems more probable that Clinton's sad experience, the insistence of the Crown ministers in matters of royal pre- rogatives, and the resolute stubbornness of the provincial legislators, and the general hopelessness of the governmental situation were the main factors that overwhelmed Sir Dan- vers Osborn.
588
COURTS AND LAWYERS
With his demise, Lieutenant-Governor De Lancey became Acting Governor. He does not seem to have wished for such responsibility. Indeed, the Chief Justiceship was more to his liking; so much so, indeed, that he refused to relinquish it, even though, while he was Acting Governor, he could not sit on the bench and had to leave judicial matters to his as- sociate justices. De Lancey even assumed further judicial dignity, for as Acting Governor he became chancellor of the Court of Errors. Thus, at one and the same time De Lancey was Acting Governor, Chief Justice, chancellor, and the ac- knowledged leader of the people. He hesitated some months before taking the oath as chancellor, but, having taken it, he resisted all efforts to remove him before his rightful succes- sor, the next Governor, arrived. In 1754 he held a term of the Court of Errors, and then William Smith, his inveterate opponent, challenged his right to sit also as Chief Justice, arguing that on account of the incompatability between his old position as Chief Justice and his new judicial dignity, his right to the former naturally became extinct. De Lancey, however, was of different mind, and after the coming of Gov- ernor Hardy resumed his work as Chief Justice, continuing also as Lieutenant-Governor. The Lords of Trade upheld him; so did Governor Hardy, who, indeed, admitted that he was dependent upon De Lancey in all judicial processes.
De Lancey, in his acts as Governor, showed that all Gov- ernors were much alike, and that much of the odium that at- tached to former Governors should in reality be debited to the government, not the Governor. Though the provincial leaders professed their loyalty to the Crown, it was just the attempts of the representatives of the King to assert what they have been advised were the royal prerogatives that brought upon these Crown agents the condemnation of provincials. De Lancey, with the passing of Governor Osborn, found that his road was a rocky one, and especially embarrassing. As the temporary custodian of the executive power, he was bound to
589
CORNBURY TO TRYON-1702-1775
represent the King; as the leader of the people, he must do nothing that would forfeit their confidence. He planned to solve the difficulties of the province by preserving with proper dignity the independence of the Executive, without disturb- ing the proper control and just sovereignty of the people. His task was difficult. Two sovereign powers, the Crown and the people, seemed non-weldable. Finally, he had to admit that much. But the real authority, the law, was at the back of both, and that authority demanded recognition. There was never any misunderstanding, either in the Board of Trade in England or in New York. De Lancey endeavored to be loyal to both. Clinton had accused him of duplicity ; but Clinton had failed to see that which the Chief Justice evi- dently apprehended, that obedience to the law and to the people must be reconciled. Soon after De Lancey became Lieutenant-Governor, the Assembly passed the usual bill for paying the salaries of the officers of the government, in which they gave him the same salary as had been allowed to Clinton. De Lancey, however, saw that the bill encroached upon the royal prerogative, and was inconsistent with royal instruc- tions. So he recommended the Council to reject it, for he could not conscientiously sign the bill. In Osborn's instruc- tions the King had expressed is disapprobation of the extraordinary conduct and proceedings of the Council and Assembly during Clinton's administration in their lapses from the law, in their unjustifiable encroachments upon the royal rights and prerogative, and their illegal attempts to wrest the powers of government from the hands of the Governor ; but he had no wish to be arbitrary in the matter. He wished the government to be proper and legal, and signified his pleasure that the Governor should recommend to the Assembly a proper law for establishing a lasting and permanent revenue for the support of the government. In this way only, he thought, could an effectual method of restoring peace and tranquility to the province be established, and prevent dis-
590
COURTS AND LAWYERS
order and irregularities in the future. The Governor, further, was directed to remove any member of the Council or other officer appointed by his Majesty who should concur in irreg- ular measures in the future. De Lancey frankly laid these in- structions before both Houses, and it had the effect of bring- ing the Council at least onto the side of the Crown, or shall we say, of the law. The Assembly, however, remained truc- ulent, claiming that as representatives of the people they must act as they had acted during recent years, and hold full con- trol of the public purse, and pledge the public credit no farther than they could see.
The Lieutenant-Governor now considered how he could reconcile the royal prerogative with the sovereignty of the people. With this in view, he asked the Lords of Trade for instructions with regard to his power to approve a separate bill providing money for Indian presents. As to the annual appropriations for salaries he wrote (on January 3, 1754) : "I shall not, on any consideration of advantage to myself, fall in with them in it, without expres permission." A bill had been passed granting His Majesty the impost duties, but without appointing any officers, the money being paid into the treasury, subject to future acts of appropriation. He had also succeeded in getting through the House a bill regulating the militia, notwithstanding that the Assembly looked upon the measure as generally distasteful. His tactics had been some- what more effective than Clinton's. He had adopted softer methods than dissolution, for, as one of the members of the Assembly had pointed out to him: "I might dissolve them as often as I pleased, as long as they were chosen (which I hear most of them would be again if dissolved on that point) they would never give up." Still, he had had to advise the Lords of Trade not to insist upon long-term warrants or indefinite grants of public moneys, for he felt that the Assembly would not grant him any longer term or greater latitude than they
591
CORNBURY TO TRYON-1702-1775
had granted to Governors Clarke and Clinton.52 In other words, he had had to confess that he could do no better than his predecessors in dealing with the Assembly, which re- mained supreme-over even the Crown, a law to themselves.
The Assembly, in an address to the King, claimed that they had been "falsely and maliciously represented." The Lords of Trade, however, were of the opinion that by their actions in finance bills, the Assembly had made "unwarrant- able encroachments and invasion of your Majesty's just and undoubted authority."53 Upon the reading of this report, the address of the Assembly was rejected by the King, by order in Council, August 6, 1754. This had followed upon rejection by the Council of an irregular method taken by the Assembly to deal with finance needs of New York companies enrolled for
52. The Lieutenant-Governor wrote that "Mr. Clinton had dissolved the Assembly several times in order to bring them into the ancient method of supporting the government . . . but could not obtain it by the rougher method of dissolution. I have tried the softest methods I could, but to as little purpose. The principal members frankly told me, I might dissolve them as often as I pleased, as long as they were chosen (which I hear most of them would be again if dissolved on that point) they would never give up. What they would come into was, first not to meddle with the executive part of the government, which I had convinced them was an en- croachment on his Majesty's prerogative, the executive power being solely in the Crown; and, secondly, that all moneys should be drawn out of the treasury by warrants signed by the Governor, or Commander-in-Chief, with the advice of the Council, excepting only the Agent's salary and their Clerk's and Doorkeepers' allowance. If it should be his Majesty's pleas- ure that I may pass the act for the payment of the salaries and services of the government in the same form as has been done by Mr. Clarke, Lieutenant-Governor, and since by Mr. Clinton, Governor, I think there will be an end of contention in this province." As this was an advice to the Lords of Trade to surrender, the conclusion was undoubtedly soundly drawn. In the event of such surrender, the Lieutenant-Governor said the Assembly would doubtless provide the necessary fortifications, and "the point of support, for an indefinite time may be left open."-"Civil List," 1888, p. 95.
53. "The Assembly have taken to themselves not only the management and disposal of public money, but have also wrested from your Majesty's Governor the nomination of all officers of government, by which unwarrant- able encroachments and invasion of your Majesty's just and undoubted authority, order, and government was subverted and your Majesty's service obstructed, and the security of the service endangered."-Lords of Trade to His Majesty, April 4, 1754.
592
COURTS AND LAWYERS
service in Virginia. De Lancey admitted that he "could not prevail on them to give a farthing for this service."54 The Lords of Trade expressed astonishment at such "conduct in so perilous a situation"; and expatiated at length to De Lancey upon the suicidal consequences possible to the prov- ince by lack of cooperation at such a grave time.55 The New York leaders were not unaware of the gravity of the situa- tion, and in February, 1755, in special session, passed a militia act, and another act appropriating £45,000 for war purposes. But they took particular care that managers were named in the bill for the disbursement of the funds. They were not
54. "After all my endeavors, I could not prevail on them to give a farthing for this service, or to enable me to raise men for the assistance of Virginia. The extreme obstinacy of the Assembly in this instance will point out to your lordships the danger there is of the disappointment of any service, however urgent it may be, as the Assembly on the one hand will not recede, and the Council on the other think themselves not at liberty to give in to the Assembly's method, unless they depart from the Royal in- structions. For my own part, as I look upon the service to be distinct from the annual and constant charges of government, I should have made no difficulty in passing the bill rather than to suffer a service of the nature to drop, relying on this that the necessity I was thus laid under would appear to your lordships a sufficient excuse; and I beg your lordships' sentiments for my guide upon such occasions."-De Lancey to the Lords of Trade.
55. The Lords of Trade to De Lancey :
"We are glad that you have satisfied the principal members of the Assembly of the unreasonableness of meddling for the future in the exec- utive part of government . . . but as it is still a point insisted on that the revenue, even for the services of a permanent nature should notwithstanding be granted only from year to year, we are afraid that either these pretensions which are so explicitly disavowed in words, are meant to be retained in effect, or that at least the reason of granting the revenue only annually may from time to time revive these pretensions." "if they persist by the means of annual grant either to attempt wresting from the Crown the nomination of officers, or any other executive grants of government," even though they at times succeed, "yet those attempts are so unconstitutional, so inconsistent with the interest of the mother country as well of the Crown, and so little tending to the real benefit of the colony itself, that it will be found they flatter themselves in vain if they can ever give them a stability and permanency."
55a. He was present at Louisbourg, as Rear-Admiral. Later he became Vice-Admiral, and after retiring from the Royal Navy, was appointed Gov- ernor of Greenwich Hospital, in England. He died in 1780, aged seventy- five years.
593
CORNBURY TO TRYON-1702-1775
unpatriotic, but cautious; and while they had faith in De Lancey, another would soon come, a stranger, to take over the governorship. Sir Charles Hardy had in fact been ap- pointed Governor on January 29, 1755, though he had not yet reached New York.
The Lords of Trade meanwhile had taken so serious a view of the war possibilities as to deem it wise to temporize with the New York Assembly. While they complimented the Council, and expressed a hope that the Assembly would "de- part from all unwarrantable and illegal encroachments upon his Majesty's rights and prerogatives," they instructed De Lancey to assent to annual appropriation bills.
Sir Charles Hardy arrived in New York on September 2, 1755. It was not his first experience in executive office in an American colony, for he had been Governor of Newfound- land in 1744; but he was a typical sailor, and had no liking for political intrigue, and was not happy in most of the functions demanded of a Governor. He knew even less of law; yet he was chancellor. Historian Smith describes the perplexed state in which Hardy found himself immediately after his ar- rival, when four eminent counsel-Murray, Nicolls and the two William Smiths-appeared before the Governor to argue. a demurrer to a bill in equity. Hardy had asked the Chief Justice to be at hand, but De Lancey had failed to appear. So his excellency had to act alone. He called the counsel of both sides into a private room and asked : "Does this mat- ter turn upon a point of law?" When assured that it did, he frankly confessed : "I have been justice of the peace in Eng- land, but know nothing of the law. My knowledge, gentlemen, relates to the sea; that is my sphere. If you want to know when the wind and tide will suit for going down to Sandy Hook, I can tell you that ; but what can a captain of a ship know about demurrers in law? If you dispute about a fact, I can look into the depositions and perhaps tell who has the
C.&L .- 38
594
COURTS AND LAWYERS
better of it; but I know nothing of your points of law." For- tunately Chief Justice De Lancey came to his aid at that mo- ment. Smith writes: "The cause was afterward debated and a decree pronounced by De Lancey, who dictated the entry to the register. The Governor, who awkwardly sat by, inter- fered only to pronounce an amen."
Hardy was perfectly honest and frank. He did not want to sit in chancery ; and while he did later make one attempt to hear a case of fact only, he failed so palpably that in the next case he called three justices to his assistance; and there- after they undertook all the judicial functions that devolved upon him, as Governor. In view of this close relationship between De Lancey and Hardy, the latter could hardly be expected to look with favor upon the movement that was initiated soon after his arrival to prevent De Lancey from re- turning to active duty as Chief Justice. De Lancey held to both offices, Lieutenant-Governor and Chief Justice, and though his opponents carried their protest to England, and the Lords of Trade put the question to the attorney-general for an opinion, De Lancey was upheld; and had been upheld by the Governor all the while. When, in 1757, the course of the war with France called Hardy to more useful service in a sea command, De Lancey again became Acting Governor. But even then, he would not relinquish the Chief Justiceship, but left the duties of the court to the Associate Justices Cham- bers and Horsmanden. This was not always satisfactory, and in one case in particular, that in 1758, respecting lands claimed by Trinity Church, of which the two puisne judges were trustees or vestrymen, it was found necessary to appoint an additional justice, David Jones receiving the appointment. The court thereafter, during colonial years, consisted of a Chief Justice and three puisne justices.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.