USA > New York > New York City > History of the city of New York in the seventeenth century Vol. II > Part 23
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That the supreme legislative authority under his Majesty and Royal Highness James Duke of York, Albany &c, Lord Proprietor of the said province, shall forever be and reside in a Governor, Council, and the people met in General Assembly.
At two points this form of words deserves notice. In the first place the assembly divided its legislative power with the executive, as a similar body would not do to-day. To-day its successor says :
The People of New York represented in Senate and Assembly do enact as follows.
Yet the phraseology was not like that employed in England where since the time of Henry VII the form has been virtually unchanged :
Be it enacted by the King's Most Excellent Majesty and by and with the advice and consent of the Lords spiritual and temporal and Commons in this present Parliament assembled and by the authority of the same as follows. .
The second noteworthy point is the mention of 'the people.' 'The people' had, indeed, occasionally been referred to as the source of political power. In 1649, for instance, shortly before the execution of Charles I, the Rump Parliament declared that 'the people are under God the original of all just power'; and in Virginia during the time of the Commonwealth the bur- gesses called themselves 'representatives of the people' and in Nathaniel Bacon's time his partisans put forth a declaration 'in the name of the people.' But 'the people' had never been mentioned by the crown in a colonial charter, never by a colony in an address to the crown, and never in a legislative definition of powers in government. The Duke of York had
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said 'a general assembly of all the freeholders' by their chosen representatives; and phrases like this, or with 'freemen' in the stead of 'freeholders,' were those to which Englishmen were accustomed on both sides of the sea. The New York assembly, however, used the unfamiliar locution more than once, affirming by statute both the general rights of 'the people' and, in the paragraph about taxation, the rights of 'the representatives of the people.'
The Charter guarantees the right to vote freely for members of assembly to 'every freeholder' according to the interpreta- tion of the term in England, where it meant in regard to the county franchise an income of forty shillings from freehold, and to every freeman in any corporation - that is, as things then stood, to every holder of burgher-right in the city of New York. It claims for members of assembly the personal privi- leges enjoyed by members of parliament as well as the right to appoint their own times of meeting during their sessions and to adjourn their house as might seem convenient. It says that 'a sessions of a General Assembly' must be held 'once in three years at least' according to the practice of 'the realm of England.' It does not say from whom the governor must derive his powers but forbids him to take any action without the advice of a quorum of his council. It names twelve counties - a term never used before in New York - as constituting the province and its dependencies, and specifies the number of their representatives in assembly. And then it becomes in its latter clauses a bill of rights framed to secure for the province in fullest measure all those safeguards for life, liberty, and property which Englishmen had been able to wrest from their sovereigns, and one important right - religious liberty - which except in Cromwell's time Eng- lishmen had never even thought of securing by legislation.
The four great abuses of power against which the Petition of Right, assented to by Charles I in 1628, had safeguarded his people were arbitrary taxation, arbitrary arrest, martial law, and the billeting of soldiers and mariners in times of peace. Upon these four points the Charter speaks as em-
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phatically as the Petition, and it also assures to the people of the province such major rights, long enjoyed by Englishmen at home, as the right to trial by jury and to the services of a 'grand inquest' in capital and criminal cases. Every point is explained in detail, for the New Yorkers could not, like the Englishmen of the time of Charles I, make their meaning clear by referring to written guarantees given them at an earlier day. Yet their Charter plainly shows an acquaintance with the words as well as the principles of the Englishman's guar- antees. The Petition of Right set the pattern for a number of clauses, and the famous 39th and 40th articles of Magna Carta were paraphrased in the words :
No freeman shall be taken and imprisoned or be disseized of his freehold or liberty or free customs or be outlawed or exiled or any other ways destroyed nor shall be passed upon adjudged or condemned but by the lawful judgment of his peers and by the law of this prov- ince. Justice nor right shall be neither sold denied or deferred to any man within this province.
On the other hand, it should be noted, the Charter framed in New York drew no inspiration from the famous Bill of Rights which set for all future time the liberties of Englishmen on a firm foundation after repeated infringements at the hands of Stuart kings. By six years it antedated this bill, framed when William and Mary were seated on the Stuarts' throne. It is also noteworthy that it does not imply, as do all English documents of the kind, a compact with the crown or its repre- sentatives. Everywhere, if its title be excepted, it consistently preserves the form of a simple legislative enactment.
For one section of the Charter, the last, there were, as has been said, no precedents in English or English-colonial law or custom. It declares that all churches within the province were to be considered, as before, 'privileged churches' independent in forms of worship and church government, provided that all thereafter introduced should have 'the same privileges,' and :
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That no person or persons which profess faith in God by Jesus Christ shall at any time be any ways molested, punished, disquieted, or called in question for any difference in opinion or matter of re- ligious concernment who do not actually disturb the civil peace of the province. . . .
Thus the Charter did not discriminate even against Cath- olics. But it perpetuated the curious connection which the Duke's Laws had effected, not between church and state in the Old World sense, but between churches and the state. Each town, it was now decreed by statute, might establish by a two-thirds vote whatever communion it pleased, but all inhabitants were then to contribute towards the support of this communion whether they should choose or should not choose to set up others in the town. Or, as a Dutch domine soon afterwards wrote, the regular pastor of a town was to be paid by obligatory contributions from 'John Everybody.'
Two memoranda were appended to the original copy of the Charter of Liberties, preserved in the local archives :
New-Yorke, Oct. 26, 1683.
The Representatives have assented to this bill, and order it to bee sent up to the Governo'r and Councell for their assent.
M. Nicolls, Speaker.
After three times reading, it is assented to by the Governour and Councell this thirtieth of October, 1683. Tho. Dongan.
John Spragge, Clerk of the Assembly.
These memoranda are the only direct proof we have that the first legislature of New York sat as a bicameral body, as did the legislatures of New England and New Jersey, as did not the legislature of Virginia until near the end of the seventeenth century. The Charter of Liberties implied that such must be the practice in future, saying that all bills agreed upon by the representatives should be presented to the governor and council for their approbation and consent and then should 'be esteemed the laws of the province.'
This Charter of Liberties and Privileges is the bill which,
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it is believed, was drawn up by William Nicolls. He may well have boasted of the fact even in years when he had long been a leader in public affairs. In no other colony, says Dexter North, writing about the constitutional development of the province, had the doctrine of taxation only by consent, 'upon which alone the American Revolution can be justified,' been more explicitly put forth than in this New York bill of rights. The day when it was signed, says Charles Z. Lincoln in his history of the constitution of the State, should be remem- bered as one of the 'golden days' in the life of New York, and the bill itself may properly be called the 'original constitution' of New York, so many are those among its clauses which, in form or in substance, were reproduced in 1777 in the first State constitution and still stand in the one that is now in force.
While there was no mention in the Charter proper of any obligation owed by the people to their transatlantic rulers the assembly at once attached to it a revenue act - a 'Con- tinued Bill' granting to the duke and his heirs without limita- tion of time the proceeds of excises on liquors, wines, cider, and beer sold at retail, and of export taxes on furs and import taxes on all save certain indicated articles mostly the products of the neighboring colonies. The tariff rates thus prescribed were chiefly specific and were in general higher than those that the duke had imposed. They did away with the distinc- tion between commodities of English and of foreign origin but renewed the additional rates on those carried up Hudson's River. These grants, says the bill, were made to defray the necessary charges of the government and 'in consideration' of the duke's 'bountiful confirming and restoring ' their 'rights and liberties' to 'the inhabitants of this province' and their posterity.
On October 31, say the minutes of the common council, the Charter 'granted by his Royal Highness' and 'confirmed by act of assembly' and the revenue bill were solemnly pub- lished at the City Hall in the presence of the governor, the
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council, the representatives, and the city magistrates, 'the inhabitants having notice by sound of trumpet to hear the same.' On November 1 the governor by proclamation put the revenue act in force; and now no man made trouble for the Duke of York's collector.
The next thing that the assembly did was to create by statute the twelve 'shires or counties' mentioned in the Charter of Liberties. The County of New York included the city (the island of Manhattan) and the East River Islands. Staten Island and a few little neighbors formed Richmond County, named for an illegitimate son of the duke, Nooten Island, now Governor's, being left outside county lines - perhaps by oversight, more probably because it was one of the tracts reserved for the use and benefit of the duke's representatives. Long Island was divided into three counties: King's which included, with Gravesend, the Five Dutch Towns of Stuyve- sant's time; Queen's which embraced their English neighbors to beyond Oyster Bay; and Suffolk covering the rest of the island with those adjoining it at the east and Fisher's Island off the Connecticut shore. Thus Yorkshire was wiped out and so were two of its ridings; and, while the East Riding became Suffolk County, in King's and Queen's were revived the judi- cial districts formed by Stuyvesant and Colve. On the main- land east of the Hudson River lay Westchester County and, north of this, Dutchess County. West of the river lay Orange, which adjoined East Jersey and was named for the duke's son-in-law Prince William, and Ulster which embraced the Esopus country. Albany County lay at the north on both sides of the river. Duke's County included Martha's Vine- yard and Nantucket, Cornwall County the Pemaquid depen- dency in Maine.
Cornwall and Duke's were soon lost to New York but still bear their New York names. Otherwise the counties of 1683 remained unaltered, except for some changes in their boun- dary lines, until 1766 when Albany was divided. In 1897 a portion of Westchester which had previously been annexed to New York, the whole of Richmond, the whole of King's,
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and a part of Queen's retaining the county organization, were brought within the limits of the greater city of New York, the remainder of Queen's being organized as a new county and called Nassau in memory of the name which after 1693 was the legal though never the customary appellation of Long Island. The four counties thus included within the limits of the city, giving it a total area of 325 square miles, are as coun- ties independent of each other. As parts of the municipality they are administered as five boroughs: the Boroughs of Brooklyn, Queen's, and Richmond, coterminous with King's, Queen's, and Richmond Counties, and the Boroughs of Man- hattan and the Bronx, both contained in New York County.
For each county, said the assembly in 1683, a sheriff was annually to be appointed. In his hands lay the conduct of elections. By the Charter of Liberties representatives were apportioned according to facts of territory and facts of popu- lation. That is, none was apportioned to either Dutchess or Orange County as neither of these had as yet any appreciable number of inhabitants; four were apportioned to New York County, two to each of the other counties; and an extra one was granted to Schenectady which lay at a distance from the other settlements in Albany County. Thus the Charter of Liberties provided for twenty-three representatives; and, it said, the duke might increase their number. He himself had said that there should not be more than eighteen. To the House of Commons the counties and, excepting London, the cities and boroughs entitled to representation sent each two members. London sent four; and this was undoubtedly the reason why in the duke's province four members were allotted to the county that was virtually coterminous with the capital city.
After repealing the existent laws relating to local taxation the assembly enacted that, for the defraying of local public charges and the maintenance of the poor, each 'city, town, and county' should annually elect assessors to determine the local rate and a treasurer to make disbursements under the or- der of commissioners appointed 'for supervising' local pub-
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lic affairs. Here and in the grant of an assemblyman to the town of Schenectady was foreshadowed that system of mixed township-county government which, as already told, developed in the province of New York and has spread from the State of New York widely into the Western States.
The assembly also passed another general revenue act, ap- pointing for each county a board of commissioners to collect a tax, to be paid in 'money or other specie,' of one penny in the pound on all estates real and personal, 'by the word money . .. to be understood the produce of the country valued at the current price for money.' The proceeds of this direct property tax were not granted, as were the customs and excise dues, to the Duke of York but as a 'free and voluntary present' to the governor, and not in perpetuity but for one year only.
Thus the first assembly of New York set the whole system of taxation upon a statutory basis. And so it did with the judicial system. Its Act to Settle Courts of Justice established tribunals of four kinds : town or justices' courts for the trial of small causes and cases of debt or trespass not exceeding 40 shillings, without a jury unless demanded by plaintiff or defendant; county courts or courts of sessions with civil and criminal jurisdiction, to be held four times a year in New York, three times at Albany, and twice in the other counties by three or more justices of the peace specially commissioned; a court of oyer and terminer and general jail delivery with original and appellate jurisdiction, to be held twice annually in New York and once in each of the other counties, the judge to be assisted by four justices specially commissioned; and a court of chancery, the supreme court of the province, to consist of the governor and council with power in the governor to depute a chancellor to serve in his stead. An appeal to the crown might be taken in cases involving £100. The long-existent mayor's court of the city of New York was, of course, its town court while the mayor and a certain number of aldermen, duly commissioned, served as justices in the higher courts of New York County.
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Another important measure was a general naturalization law providing that all free inhabitants, 'of what foreign nation soever,' professing Christianity and taking the oath of alle- giance should stand on the same footing in the province as the king's natural-born subjects, and that any who should there- after come in and settle might be similarly naturalized by act of assembly. No general naturalization law had ever been passed in England. But as parliament provided no method for the naturalizing of aliens in the colonies until the year 1740, until then each colony did as it pleased. Pennsylvania, for instance, in 1683 gave all aliens full rights who would take the oath; South Carolina passed a general retroactive law in 1696, and New York a second one in 1715, a third in 1730; but colonial New England never framed a general naturaliza- tion act of any kind. Theoretically, a naturalized colonial had not, under the Navigation Acts, the right to trade as an English subject ; and sometimes the right was actually denied him although in general it was not, as the history of the many foreign-born merchants of New York makes plain. As, how- ever, the laws of each colony were valid only within its own borders, a naturalized resident who moved elsewhere lost all his acquired rights.
Another enactment, distinctly non-English, decreed that all deeds, mortgages, and other land papers mentioning property worth £50 or more must be recorded in the office of the register of the county and in that of the secretary of the province. The other acts of this session were to regulate executions and returns of writs, to prevent 'wiful perjury,' to confirm 'the fees usually taken by officers etc.,' to reward wolf-killers, ' to prevent damages done by swine,' and to settle 'the allow- ance to representatives' - ten shillings a day for each day of service and for sixteen days of travel, to be paid by the respective counties. Only in much earlier years had mem- bers of the House of Commons been paid, but under colo- nial conditions the restriction of legislative service to men of means would not have been practicable even had it seemed desirable.
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Such were the enactments of the first legislature of New York at its first session - the fifteen laws which formed the beginning of the statute law of the province and State. Cer- tainly they justified the belief, once expressed by the Duke of York to Governor Andros, that assemblies were apt to assume more power than was granted them.
All the bills except the two which had been published on November 1 were published before the City Hall six days later. Early in December all fifteen were sent by a special messenger, Captain Mark Talbott, for the duke's consideration. Until the time when, perchance, the duke might disapprove one or more of them, all of them, the Charter of Liberties included, were 'good and binding.'
As soon as the assembly adjourned, the city magistrates, William Beekman still acting as mayor, showed their eagerness to take advantage of the duke's order that Dongan should confirm the rights and privileges of the city and grant it 'more if necessary.' They petitioned the governor to intercede with the duke for a municipal charter which should confirm all existing rights, including those conferred by the Bolting Acts, enlarge the powers of the magistrates, and set the municipality upon a more popular foundation. The city, said their chief requests, should be divided into six wards; in each ward the freemen should annually elect an alderman, a common councilman (or assistant alderman), a constable, assessors, overseers of the poor, and other minor but 'useful and necessary' officers; the corporation should appoint its own treasurer; the governor in council should appoint a re- corder as well as mayor, sheriff, coroner, and town clerk, and should choose the mayor from among the elected aldermen. To most of these desires Dongan acceded until the duke, to whom he sent the petition, should make his pleasure known; but he did not promise to choose the mayor from among the aldermen, and he refused so to enlarge the powers of the magistrates that the town government of New Harlem would be blotted out.
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Pending the time when the first city election would take place he appointed six aldermen, renewed the commission of John West as clerk of the city, and named as mayor Cornelis Steen- wyck and as recorder James Graham, who had been one of the aldermen when Dyre was indicted and had been stabbed under the collar-bone by Captain Baxter. This first recorder of New York was a Scotchman who had been for some years in the province and owned property on Staten Island and in East Jersey. The oft-repeated story that he was a son or near relative of the Marquis of Montrose has no shred of foundation. Dongan wrote home that he was a person of 'understanding in the law,' this being 'his whole business.' A later governor, Lord Bellomont, declared that he had been bred to a trade - neither to learning nor the law; and Graham's career supports Bellomont's rather than Dongan's verdict upon his qualifications. In itself the fact that he was appointed to a judgeship tells nothing, for not until a much later period was legal training thought essential for an occu- pant of the bench in any of the colonies. The recorder - in New York as in London where also he served during pleasure while the mayor served for a single year and was seldom con- versant with the law - was the chief legal officer of the municipality. He sat on the bench of the mayor's court at the mayor's right hand and was responsible for the proper keeping of the court records.
At once the new magistrates asked for further privileges, begging that as the revenue of the city was 'lost and destroyed' it might be confirmed in 'the benefits of the dock, wharf, and bridge-market and bridge-house' and of the Long Island ferry and all others that might be established, as also in 'the benefit of granting licenses' to public houses, and in the possession of all the vacant lands on Manhattan to low-water mark. Don- gan expressed his surprise that he should so 'suddenly' re- ceive a new set of demands. Most of them he granted but not the request for the vacant lands or for the power to grant licenses which, he said, belonged to the governor.
'In December the magistrates divided the city into six
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wards: the South Ward and the Dock Ward covering the extremity of the island, the East and West Wards, the North Ward extending to beyond the Fresh Water or Kalck Hoek Pond, and the Out Ward embracing the rest of the island with the Bowery village and the town of New Harlem. To each ward was assigned one of the aldermen.
As Governor Dongan approved all the acts of the assembly, and as nothing remains to show that he then objected to any of them, it may be supposed that he regarded as permissive, not mandatory, the words in which the duke had conferred upon him and his councillors the power to erect courts. Yet it seems that he was not wholly pleased with the assembly's arrangements. As the time to open the new courts approached he doubted the power of the city magistrates to hold, as justices of the peace, the court of sessions of New York County. Finally he ordered them to do so until the duke should decide, but directed that members of his council might also sit as justices. A little later he said that if a councillor were present he should act as presiding judge and, still later, that members of the council should have the powers of justices of the peace in all the counties.
In February, 1684, the new supreme court, composed of the governor and council, convened for the first time, sitting of course in Fort James. In February also convened the new court of sessions or, to give its full title, the Court of Quarter or General Sessions of the Peace of the City and County of New York. It sat in the City Hall. Its minutes, covering the period down to 1762 but showing a break at the time of the Leisler interregnum, are preserved in the office of the clerk of the county - three folio volumes beautifully written. At the first term of this court the grand jury, which was sworn in words almost identical with those in use to-day, presented only one criminal, a burglar.
As judges of the court of oyer and terminer Dongan appointed two lawyers, Matthias Nicolls and John Palmer. Palmer, who was also high sheriff of Richmond County, had come from Barbadoes and had married a sister of Samuel Winder, and it
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