USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 6
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In the next interregnum between the death of Lord Love- lace and the coming of the next Governor, the reins of govern- ment were assumed by Lieutenant-Governor Ingoldsby. Little need be written of him. He was not long in office, was unpopular in New York and decidedly obnoxious to the people of the Jerseys, where he and other agents of Lord Cornbury had shamefully misused governmental authority. On April 10, 1710, he was removed, the governorship then temporarily resting upon Geraldus Beeckman. Three months later, in July, 1710, Governor Robert Hunter reached New York.
His administration extended over nine years, and was so
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much more successful than that of any of his immediate predecessors that "he has been ranked among the ablest of all the colonial Governors of New York, and, with perhaps the single exception of Governor Dongan, he accomplished more than any other who had direction of New York colonial affairs."
It may, however, be said that his success came chiefly from his ultimate recognition that the Assembly had a certain definite and independent place in the governmental structure -independent even of the Crown. But he did not reach this realization until after years of disputation with the represen- tatives of the people. As of yore, the seat of trouble was money. Free men claimed the right to the whole of their es- tates, subject only to such taxation as their own elected rep- resentatives might, in Assembly, authorize, to cover govern- mental and local expenses. The struggle may perhaps be given a starting date in October, 1706, when a colonial treas- urer was first appointed, and be given a terminating date in 1715, when Governor Hunter yielded to the Assembly the right to control money bills.8 Abraham de Peyster had, it
8. The question of the power of the People as represented in the As- sembly was immediately pressed to an issue. Hunter's commission not only empowered him to appoint Judges, Commissioners of Oyer and Terminer, Justices of the Peace, etc., but it gave him "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 appointed 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 As- sembly denied the right of Council to amend money bills.
The Queen's Council ( March 1, 1710). the Assembly persisting in its 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 im- posing a revenue act upon the colonies was pressed for two years without effect, notwithstanding that 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
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seems, been appointed treasurer on October 19, 1706, his duty being to disburse the taxes levied by the General Assembly. There was also a receiver-general, who was supposed to handle the same money, but accountable only to the Crown. Possibly, De Peyster's office was an empty one for some years, for in 1709, soon after the expiration of the Revenue Act, the Assembly passed a bill, authorizing the payment of all public moneys to a colonial treasurer appointed by the House. The Council altered the act, striking out the word Treasurer and inserting Receiver-General. Furthermore, that officer was to be appointed by the Crown, though he was to be responsible to the Governor, Council and Assembly. The last-named body, however, denied the right of Council to amend money bills ; and the Assembly could not be moved from its determ- ination not to pass a revenue act until this principle was rec- ognized. In 1711 Governor Hunter declared that "giving money for support of government and disposing of it at your pleasure is the same with giving none at all." The Lords of
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 elections by no other tenure but that of saving the public money or starving the government, 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 establishing an agency at the Court of Great Britain, and an act establishing 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 be but sufficiently informed of the undoubted right and constant resolves of this House not to admit of any amendment to be made by that Board to money bills. In response, on the 16th, Capt. Walter was in- structed 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."
The Assembly responded on the 17th, in a bold enunciation of the sov- ereign 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
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Trade, of course, sympathized with the Council, in 1712 writing to the Governor 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"; further that 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." But the General Assembly calmly asserted "that they do not sit as an Assembly and dispose of money by virtue of any com- mission, letters patents or other grant from the Crown, but from the free choice and election of the People."
The treasury was chronically empty during Governor Hun- ter's period, it seems. It was empty in 1709, when an emis- sion of paper money (bills of credit) was decided upon-the first paper money ever issued by New York, by the way. Another issuance was made-to the amount of £10,000-in 1710; but these emissions seem to have been special ones, for war purposes. For the ordinary needs of government there was little money available. In 1715, when Lewis Morris was chosen as Chief Justice, to succeed the deceased Mompesson, Governor Hunter wrote to the Lord of Trade explaining that
or rank of people in the Constitution, which they are not, being all Com- mons, but only from the mere pleasure of the Prince, signified in the com- mission. On the contrary, the inherent right the Assembly have to dis- pose 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 understands 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 legisla- tion which is given us by the Queen's Commission, that gives this prov- ince 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 property of the subject; also
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Morris was "able to live without a salary, which they will most certainly never grant to any in that station." Long be- fore 1715, when he surrendered, Governor Hunter seems to have been convinced that little support could be hoped for from the Assembly unless their claimed rights were conceded. He could do no more than suggest it to the Lords of Trade during Queen Anne's time, but after the accession of George I, in 1714, he seems to have realized that the changed condi- tions of English relationship of Crown to Parliament justified him in deciding, upon his own responsibility, to yield to the Assembly. Whereupon the Assembly voted revenue for five years, instead of one; and, whereas, there were no less than five elections between 1709 and 1715, the next General As- sembly-the Seventeenth-held fifteen sessions, not being dis- solved until 1726.
In the strife of the period 1709-15, the New York Assem- bly was, in fact, but merely echoing similar strife in the Eng- lish Parliament storms, which had been gathering force ever since Shaftsbury had began to arouse the dormant energy of the people in the matter of the Exclusion Bill and the Popish Plot, in the time of the Stuarts. The two great English parties, Whig and Tory, have been dated from the petitioners
"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 dis- tribution of justice"; and the power of regulating the fees was also in- sisted upon. Their "naming Treasurers to collect the public money when her Majesty had 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 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. Gov-
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and abhorrers of the Exclusion Act in that then "for the first time the masses of the people were stirred to a more pro- longed and organized action in cooperation with the smaller groups of professed politicians" than ever before. This led to the Revolution, to the expulsion of James, and the crowning of the Whig William. But England was, indeed, still largely Tory in sentiment. The responsible people liked the thought that in the Revolution they had vindicated English freedom and English Protestantism from the attacks of the Crown; yet they had not intended or wished to go so far. They had not wished to make the Crown quite helpless, nor to see the strong Church of England degenerate into a listless body of no political power. The country dreaded Catholicism, which James probably would have established, but nevertheless the people wanted a strong established Protestant church-at least the Tories did, and they constituted the larger part of the taxpayers and voters. That the nation remained Tory in sentiment after the Revolution cannot be doubted, for in every House of Commons elected after the Revolution until the last of Anne's reign, the majority was commonly Tory. But it mattered not whether Tory or Whig ministers were in office ;
ernor Hunter wrote to the Lords of Trade December 16, 1712, with ref- erence 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 support 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, because, 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 one in that station." With this realizing power of the im- portance of the act, Governor Hunter finally yielded, a new Assembly having been elected which still sustained the demands of the people; where- upon they voted the government a revenue for five years, and Governor Hunter explained 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 .- Werner, in "New York Civil List and Con- stitutional History of the Colony and State of New York" (1888), pp. 76-78.
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the policy was inexorably Whig. The Tories detested the Dissenters as much as they hated Whigs, and they had power to check both; yet they remained inert. They saw Non- conformists worshipping in their chapels and holding public office with perfect security, while every year made the Estab- lished Church more helpless. In a decade hardly a new church had been built; and the apathy that came over the clergy was such that they did nothing by moral suasion to combat the growing lawlessness which was not checked even by such ruthless laws as made it a capital crime to cut down a cherry tree, and were evidenced by the stringing up of "twenty young thieves of a morning in front of Newgate." The social degradation, due in part to the sloth of the clergy, was extreme in the cities, where, since the introduction of gin, a new impetus had been given to drunkenness. London gin shops openly invited passers-by "to get drunk for a penny, or dead drunk for twopence." Demoralization went its stupified course, with no warning word from the church. Bishop Bur- net declared that the English clergy of his day was the most lifeless in Europe. There was good reason ; at least the clergy thought so. The bishoprics were filled by Whig partisans, who were hated by the bulk of the clergy, and who thought of little but political promotion. "A Welsh bishop avowed that he had seen his diocese but once, and habitually resided at the lakes of Westmoreland," many weeks' journey away. In all branches of government there was despondency. Eng- land, under Marlborough, winning glorious victories on the continent; yet it meant standing armies, which the country hated, and increased taxation, which came chiefly out of the pockets of the Tories. It also involved England more and more in the quarrels of continental Europe, to which policy Tories were inherently opposed. Yet, despite the strength of the Tories, every Englishman knew "that from the moment of the Revolution the whole system of government had not been Tory but Whig." Even under the Tory Anne, the
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policy of England was as strongly Whig as under William. Nottingham and Harley did as little to restore the monarchy or the church as Somers or Godolphin. Much as they, and the average Englishman, hated to belittle the Crown and re- strict the monarchy, their way was ever Whigward. "So long as a Stuart Pretender existed, so long as he remained a tool in the hands of France, every monarch that the Revolu- tion placed on the English throne, and every servant of such a monarch, was forced to cling to the principles of the Revolu- tion." Tory and Whig went the Whig way. The other way was to the recall of the Stuarts-to seat Catholicism in Prot- estant England; and very few Englishmen cared to risk that. "Tory though the average Englishman was, he was in no humor to sacrifice English freedom and English religion to his Toryism." This was as evident in 1714, when Anne died, as it had been in 1701, when, after the death of her only living child, the Duke of Gloucester, a Tory Parliament had had to look ahead for her successor. When the Act of Succession had been laid before the Houses of Parliament, in 1701, not a voice had been raised for James or his son; and the house of Savoy, the next legitimate line, but forbiddingly Catholic, had been passed over in silence. For the same reason Tory and Whig alike instinctively had ignored the descendants of Charles I, and had gone back to other lines of James I-to Eliz- abeth, his daughter, who had marrired the Elector Palatine. Of the twelve children of Elizabeth, all had died childless, save one. She, Sophia, had married the late Elector of Hanover ; and to this undoubtedly Protestant line the English Tory Par- liament had to go, in their search for an heir to the English throne. Regretfully they agreed with the Whigs that Eliz- abeth's son, George, Elector of Hanover, should, at the death of Queen Anne, ascend the English throne. But the thought of a foreign ruler was obnoxious; and out of their insular pride and their jealousy of him, there came to the English min- isters and legislators a determination to restrict the royal
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prerogatives. So it happened that accompanying the Act of Settlement were some remarkable provisions: Every English sovereign must henceforth be in communion with the Church of England; all future kings must reside in England, and leave it only with the consent of Parliament; foreigners were excluded from public posts military or civil ; no judge should be removed from office save on an address from Parliament to the Crown ; the King must act only through his ministers, and the ministers must be directly responsible to Parliament. So was the royal prerogative reduced by Tory legislators, almost against their inherent wish. Anne, during her reign, struggled to regain some of the influence of the Crown; and, had not apoplexy unexpectedly put an end to all of her plans even the Act of Settlement might have been revoked. But with her death, the Whig policy seemed permanently ascendant. "The Tory party is gone," wrote Bolingbroke. And Tories had the mortification of seeing the new monarchy ushered in by the insignificant George, Elector of Hanover, whose temper was that of "a gentleman usher," states Green; which meant that thereafter the glamor of royalty would signify nothing- the power of the Crown was gone. The Georges were con- tent with the role of "Constitutional King"; to accept, in short, the complete subordination of the Crown to Parlia- ment. "No sovereign since Anne's death has appeared at a Cabinet Council or has ventured to refuse his assent to an Act of Parliament," states Green. And while the indirect influ- ence of the King has always remained strong and effective- since all dread that he might use that power in any struggle against the liberty of the people has been removed-the power of the Legislature has been supreme in Britain since the death of Anne. It was probably this great political change in the homeland with the accession of George I in 1714, that influ- enced Governor Hunter to bow to the will of the New York Assembly in 1715.
C.&L .- 34
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Werner, in his "Constitutional History of New York," draws other deductions from these English constitutional changes which wrought such important constitutional change in the New York system; his more detailed interpretations are given below.9
From 1715 to 1719, when his administration ended, Gov- ernor Hunter was on comparatively good terms with the New York Assembly, though not such as to justify his closing ad- dress to the Assembly. He congratulated the House on the "improved condition of the people." This had basis in fact, but when he expressed a hope that "as the very name of fac- tion or party seems to be forgotten, may it ever be in ob- livion." Governor Hunter seemed to forget at least one exist- ing institution which if it did not bring party friction was always a rankling sore, preventing amity and good will be-
9. The Governor of New York, throughout this contest, represented 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 the same title. But William was nevertheless disposed to fully assert the Royal prerogative, and Anne was by nature as despotic as her father (James II). They were compelled to recognize the power of Parliament, but they resented it, nevertheless; the representatives of the landowners, who were the voters, asserting their absolute control of taxation. The two preceding sovereigns had been voted a revenue for life, and Parliament now saw the error. The first act of the new Parliament of William and Mary was to restrict the revenue grant to four years. William resented this, whereupon Parliament voted only annual 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 censor- ship 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, William succeeded in his policy against France. The accession of the Tories to power gave William an opportunity to prove that a consummate 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.
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tween Crown and colony, if that were, indeed, ever possible. Acting on the advice of his Council, Governor Hunter had, in 1712, begun to exercise the office of chancellor, in a reorgan- ized Court of Chancery. He had appointed Rip van Dam and Adolph Phillipse as masters in chancery, and in a proclama- tion had announced that the court would sit weekly. The Assembly had strongly protested against this action, taken without their consent. And the dispute was still active in 1719, when the governorship passed from Hunter to Burnet. There were other causes for dissension inherited by Governor Burnet, but this troublesome matter of the courts was the worst.
William Burnet, son of Bishop Burnet, administered the colony with moderate success, aided perhaps by the constitu- tional change of 1715, which gave the Assembly more scope.
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 to save himself by urging the Queen to restore the Whigs to power. In 1710, however, the Tories returned to power and in 1712 the fall of Marl- borough was made complete, by the creation of twelve Tory peers. Thus, was finally consummated the great constitutional revolution by which Parlia- mentary sovereignty 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 exercised 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 Legislative supremacy. The strong hearts and stout arms of the colonists, however, alone brought deliverance. They re- ceived no support, either from Whig or Tory ministries. This, 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 administra- tions, both at home and in the province.
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