USA > New York > New York City > History of the city of New York in the seventeenth century Vol. II > Part 24
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was at this time that Winder became clerk of Richmond County. As attorney-general of the province Dongan ap- pointed another lawyer, Thomas Rudyard, who had been governor of East Jersey and was Winder's father-in-law. He held the post only until 1685 when Dongan gave it to James Graham who nevertheless continued to serve as re- corder of the city. The chief duty of the attorney-general was to protect the interests of the king and the duke. He was never assisted in New York, as he was in England, by a solicitor-general. Indeed, no distinction between lawyers of different kinds was recognized in the colonies.
Not everywhere had the grant of an assembly pacified the people, and not only among the English of eastern Long Island did discontent express itself. Early in 1684 sixty-four residents of Esopus, with a single exception bearing Dutch or French names, were indicted as rioters by order of the governor and fined because they had petitioned that 'by charter to this county' they might be permitted to elect their own magis- trates and to export all their own products, including the flour which the Bolting Acts forbade them even to manufacture. Some months later they were pardoned upon confessing that their action had been ill-advised.
In May Dongan renewed the Bolting Acts by proclamation, Werden having again instructed him to care for the 'in- terests and advantages' of the city as it was 'the staple of your trade and indeed the key to your country.' So said the city fathers also, explaining that the manufacture of flour and bread was 'the chief support of the trade and traffic to and from this city' and that the city was 'the main support of the province.' No part of the province would profit if trade in the chief articles of export were dispersed; the farmer would gain less than he now did from his corn, the price of which was kept up by the industry of the inhabitants of the city 'who first made it a commodity abroad, gained it repute, and are only proper to continue both.' Maryland and Vir- ginia, said the magistrates, had the same advantages in the fruits of the earth as New York, yet they could not get 'that
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benefit in trade and husbandry' which New York enjoyed 'by the means and industry of this city only.'
While thus comprehensively settling upon lines new and old the internal affairs of his province, Governor Dongan did not forget that his instructions directed him to establish if possible the boundary between New York and Connecticut. Even before the assembly met he charged the Connecticut authorities with designs that 'abused' the contract made with Nicolls. This charge they denied. But, Dongan explained, Nicolls and the other royal commissioners, being strangers and relying upon the envoys from Connecticut, had been assured that the indicated line would everywhere keep twenty miles away from Hudson's River, and now Connecticut was claiming to within sixteen or seventeen miles of Manhattan and, for all he knew, Esopus and Albany also. If it would not abide by the true line he would assert the rights of the Duke of York as far as his patent extended, which was 'to the River Con- necticut,' and the rulers of Connecticut would have no cause to feel injured should the charter of their colony thus be brought in question. Thereupon Governor Treat and three others were commissioned to settle the question at New York, with instructions to induce Dongan 'to take up with as little as possible.' Aided by the testimony of John Lawrence, John Young, and others personally cognizant of the intentions of Governor Nicolls, Dongan made plain beyond dispute the rights of his province. But as to insist now upon a straight line twenty miles from the Hudson would have been to cut off from Connecticut several towns that it had planted on the shores of the Sound, New York agreed to surrender all these excepting Rye and to begin the line between Rye and Green- wich, only about eight miles from the Hudson. As an equiva- lent Connecticut surrendered a strip of its territories two miles in width and running northward from the aforesaid towns for more than fifty miles - a strip, afterwards called 'The Oblong,' which figured prominently in land speculations in the eighteenth century. The contract was signed in November,
VOL. II. - T
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1683, and the line, giving the southwestern corner of Connecti- cut its singular zigzag shape, was surveyed a year later and ratified by both governors early in 1685. When it was con- firmed in England in 1700, the basis of the present boundary between the two States was legally established although the line was somewhat altered by agreement in 1731 and was not settled in every detail until 1880.
To prevent the New York Indians from carrying their furs into East Jersey it was especially desirable that the boundary running westward from the Hudson should be settled; but here nothing was accomplished until a later day; and almost a hundred years went by before either this line or the one between New York and Massachusetts was definitively drawn.
East Jersey, said the city magistrates petitioning the duke through the governor in March, 1684, should be reunited to New York as the 'unhappy separation' had drawn away both foreign commerce and the Indian trade; and Dongan sup- ported the prayer, pointing out the 'great inconveniencies' of having two governments 'upon one river.' Always the Jerseymen had coveted Staten Island and for several years they had claimed it, hoping thus to get undisputed control of the channels - the Kills as they were named by the Dutch- men and still are called - which, running between the island and the Jersey shore, led up into Newark Bay and around the northern end of the island into the Bay of New York. The island had always belonged to New York, the government of New York contended; and in Dongan's time the claim of East Jersey was finally disposed of. The channels also New York claimed as being merely branches of the Hudson, the mouth of which was at Sandy Hook. This, in fact, had always been the assumption since early Dutch days. When Michiel Paauw registered his claim to the lands he called Pa- vonia, including a stretch of the Jersey shore and Staten Island, they were described as lying 'on both sides of the North River' northward from Hamel's Hoofden (the Narrows). One of the documents relating to Cornelis Melyn's sale of the island to the West India Company describes it as 'in the
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mouth of the North River.' Governor Andros, ordering two buoys laid off Sandy Hook, said that they should be placed 'to the coming into Hudson's River at Sandy Point.' Dongan also implied that his jurisdiction extended as far as this, once asking the duke's permission to build on Sandy Hook a small fort with twelve guns. And for a time the authorities in England indorsed the claim of New York to the Kills, directing Dongan to allow no vessels to come in by them without touch- ing at Manhattan.
In March, 1684, the duke's advisers began to consider the acts transmitted by the New York assembly in the previous December. They wished, Werden wrote to Dongan, for some amendments in the revenue act, and they hoped that he would secure the repayment of 'public debts' owing to Sir Edmund Andros for 'moneys lent to the inhabitants of New York and Long Island.' The last instalment of the debt owed Andros by the city, it may be noted, was not discharged until the year 1695.
If the Charter of Liberties should be amended, wrote the duke himself in August, the changes would be 'equally or more advantageous' to his subjects while 'better adjusted ' to the laws of England. In the event the Charter was in no way altered; and a memorandum preserved in the Public Record Office says that on October 4, a year after the laws were enacted :
His Royal Highness signed and sealed the Charter of Franchises and Privileges to New York in America; which was countersigned by Sir John Werden in the usual form and sent the same evening to the Auditor (Mr. Aldworth) to be registered by him and then to be deliv- ered to Captain Talbott to carry to New York.
A similar paper, giving a list of the New York bills as delivered to be engrossed on November 7, shows that the duke had accepted them all. Nevertheless, even the Charter was not returned to New York, there to be promulgated and to be- come the established law of the land. It was held back, ap-
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parently, because the duke believed that Rhode Island and Connecticut would soon be deprived of their patents and hoped that they would be added to his province which then would need reorganization.
By this time the reaction in favor of the crown which had followed in England upon the frenzy excited by the supposed Popish Plot had been turned into a passion of loyalty by the discovery of the Rye House Plot, a Whig conspiracy to assas- sinate both the king and the duke. King Charles - his popu- larity regained, his love of absolutism encouraged, and his worst designs supported by a servile crew of legal functionaries headed by Jeffreys who had been the duke's solicitor-general and was now chief-justice of the realm - was destroying the liberties of Englishmen on both sides of the sea. In 1683 the city of London was deprived of its charter, and scores of other cities and towns in the kingdom were forced or persuaded to surrender theirs or to accept such a remodelling of their con- stitutions as gave control to the Tory faction, changes which meant that the crown could reconstruct the House of Com- mons to please itself. And in 1684 the Company of Massa- chusetts Bay lost the charter that Charles I had bestowed upon it in 1629.
This was the most important colonial event of the period, more important than any that had happened since the Dutch province had been added to the king of England's domain. Slowly but surely it had come about. What the crown de- manded Massachusetts could not yield without sacrificing the liberties to which it felt itself entitled by its charter. What it assumed and claimed the crown felt that it could not sanction without losing control of the colony and abandoning the effort to execute the laws that crown and parliament thought essential for the welfare of the realm. The most galling to the mother-country of the many offences charged against the Bay Colony, although not the most loudly complained about by the spokesmen of the crown, was insubordination in the paths of trade. Massachusetts uttered truth when it boasted that it had never put the mother-country to a penny's charge,
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and the merchants of England grossly exaggerated when they affirmed that year by year it defrauded the king's custom- house of some £60,000. Nevertheless, it had not rightly acknowledged the validity of the Navigation Acts, nor had its people respected their provisions. The Acts were not en- forced, Governor Leverett explained in 1675, because they were thought unconstitutional, parliament having no au- thority over the colony; and in a similar strain the general court wrote to its agents in England. Afterwards, driven to compromise, the general court explained that although the laws of England reached no farther than the confines of the kingdom there was a difference between such laws in general and some that were 'proper to foreign plantations.' But the fact that, recognizing this difference, the general court directed all shipmasters to obey the Navigation Acts under the penal- ties therein imposed, implied that no law of parliament need be obeyed in the plantations unless reiterated or indorsed by their own legislatures. James Otis remembered these early contentions when he made his famous speech about writs of assistance in 1761. Franklin seems to have forgotten them when he affirmed in 1766 that in America the authority of parliament 'was never disputed in laying duties to regulate commerce.'
All the colonies infringed the laws of trade, said Edward Randolph; all would yield to them if Massachusetts were subjected to them. Many times it was warned that its resist- ance in this and in other directions would cost it its liberties. Several times steps were taken to overthrow these liberties. On one point and another Massachusetts gradually yielded, but by the time that it was alarmed enough to yield what would have sufficed in earlier years, the crown had grown so strong again that it would make no terms. In October, 1684, the charter of Massachusetts was cancelled by a decree of the court of chancery. Bermuda also lost its charter at this time, and Connecticut and Rhode Island were threatened with the same fate.
Thus the free Bay Colony became a royal possession with
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absolutely no secured rights, liberties, or privileges - a prov- ince in worse estate than was New Netherland when, shielded by its Articles of Surrender, it fell under the power of the same king. Now no man within the borders of Massachusetts had even a legal title to his lands. Not even the name Massachu- setts had a legal existence.
At the elbow of King Charles during these latter years had stood his brother James. Partly to reward the duke for consenting to the marriage of his second daughter, Anne, with a Protestant prince, George of Denmark, the king had violated in his favor the provisions of the Test Act, seating him again on the privy council and virtually restoring him to the office of lord high admiral by himself assuming full power in naval matters and conducting them with James's assistance. In fact, says their contemporary, Bishop Burnet, by the year 1684 James had got 'the whole management of affairs,' English as well as Scotch, into his own hands. The reason why he was 'admitted as formerly' to the council which is given by another contemporary, Narcissus Luttrell, applies with equal truth to most of the occurrences of this time of reaction - 'his Majesty thinking it fitting.'
It is known that the duke urged the king toward tyranny at home, approved of coercion for Massachusetts, and worked to destroy the liberties of Connecticut and Rhode Island so that he might add these colonies to New York. Yet it was just at the time when the cities of England and the Bay Colony in America were shorn of their rights and privileges that the duke ratified the Charter of Liberties which his own province, through its first assembly, had conferred upon itself.
This fact, however, merely illustrates a contrast which ap- pears when the general character and course of James Stuart as heir-presumptive to the throne of England and as proprietor of New York are compared. To make the contrast striking one need not believe all that was written of James by the Whigs of his own day with Burnet at their head or by the great Whig historian of a later day, Lord Macaulay. It suffices
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to take the obvious facts of his administration of Scotland, where he consistently fathered iniquitous laws, sanctioned nefarious judgments, and encouraged, for the benefit of a church not his own, the fiercest campaigns of religious perse- cution in the history of Great Britain, and to set them beside the obvious facts of his treatment of New York, where he was known, indeed, as an autocratic ruler but not as a tyrannical, irascible, or greedy master, where he permitted religious liberty and pardoned without rancor even the welcomers of the Dutch invaders of 1673. It suffices to compare his most trusted associates and agents in England, Judge Jeffreys and 'lying Dick Talbot' among them, with the decent gentlemen whom he sent out to govern New York - Nicolls and Lovelace, Andros and Dongan. His government was hated in New York, as any arbitrary government would have been. But that he himself was not feared as immovably tyrannical or cruelly revengeful is shown by the mutineering boldness of his handful of subjects in 1681, by their boldness in legisla- tion in 1683. When historians of America refer to the Duke of York as a harsh, rapacious, bigoted tyrant they echo judg- ments framed from very different data by historians of Scot- land and England. With the whole course of his life in mind it is impossible, of course, even to half-believe his admiring biographer Clarke when he writes of the mildness of James's nature, his unvarying tendency to 'overlook' the mistakes of his friends and even of his enemies, and his natural inclina- tions 'ever bent to mercy.' But with nothing in mind except his conduct toward New York between the years 1664 and 1685 it is easier to believe Clarke than to believe Macaulay when he paints James Stuart as unvaryingly 'dull and narrow,' ' obstinate, harsh, and unforgiving,' 'obdurate' and 'revenge- ful' - obstinate in all things and 'especially obstinate in revenge.' More impartial historians than these have found insoluble problems in his character and conduct while confin- ing their study to the records of the two kingdoms. Had they given a side-glance at the records of New York they would have found the same problems still more complicated.
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When the duke first acquired his province, it may indeed be said, he was neither the convinced Catholic nor the deter- mined absolutist that he afterwards became; for many years he was so unpopular in England, and his position as heir-pre- sumptive was so precarious, that he may well have thought it wise to walk carefully even in the by-path of colonial administration; doubtless he gave up the Jerseys and the Delaware and Pennsylvania regions because he dared not make enemies of men as influential as Carteret and Penn; and it has been argued that, as he was biding his time to become more powerful in America, he felt that it was politic to deal mildly meanwhile with his subjects in New York. But such explanations would be more explanatory if another than James Stuart were in question; for no one was ever more impatient and impolitic than he in years when he was playing for much greater than colonial stakes - when he was wearing the crowns of Great Britain, losing them, and trying to regain them. In fact, it seems impossible really to understand how such an 'unintelligent absolutist,' as Lord Acton calls him, could deal with his province for so many years in many ways so intelligently, why so selfish, avaricious, and parsimonious a prince felt so genuine an interest in its current affairs long after he had lost hope of any immediate profit from it, or why the cruel administrator of Scotland, the revengeful king of England, turned so benignant a face to his subjects in America even when their smouldering discontent passed into open defiance. Many more passages than have here been cited from his letters and instructions and from those of his sec- retary might be added to show that from the beginning to the end of his twenty-one years as the ducal proprietor of New York James constantly urged upon his deputies impartial justice, patience, clemency, and even a sympathetic blindness. From the same sources no words of an opposite tenor can be gathered.
It was in October, 1684, that the first election for aldermen, assistants, constables, and assessors took place in the capital
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of the duke's province. One of the aldermen chosen was Nicholas Stuyvesant, the second son of the old governor. As written by the English clerk his name appears as 'Steven- son.' From among seven nominees presented by the magis- trates Dongan selected as mayor the French merchant Gabriel Minvielle, who was a son-in-law of John Lawrence. A city ordinance of this time decreed that citizens refusing to accept municipal offices should pay specified fines, the heaviest being £20 for declining the mayoralty. It was also ordered in this year that, as many strangers who bore no part of the public charge drew benefit from their stay in New York, all such after a residence of one month should share with the citizens in the duties of 'watch and ward' and pay the same taxes and assessments.
Writing in December Dongan told the duke of a report, started according to some by William Penn himself, that Penn was to purchase the province. 'For the extent of it,' the governor thought well to explain, it was 'the most flourishing and most improvable' of any in that part of America, and its inhabitants were 'very industrious' and increasing much 'in people and shipping.' A few months later he wrote that a promising scheme to form a stock company to manage the fishing and the Indian trade in and about the Pemaquid de- pendency had been wrecked by reports from Boston and Pennsylvania saying again that New York had been sold to Colonel Thompson.
Meanwhile in October of this same year 1684, just when the duke was giving his approval to the laws enacted by the as- sembly of New York at its first session, it had convened for its second session. Matthias Nicolls continued to serve as its speaker; one Robert Hammond replaced John Spragge as its clerk. Thirty-one acts received the governor's signature. Some related to minor matters of law and court practice, but some altered the Duke's Laws at major points and in one of these the assembly again assumed a share in a power that had been granted to the executive. This was an Act for Settling
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the Militia which made the county instead of the town the unit of organization and prescribed that the governor must select all officers from among the freeholders of the places where they were to serve. Another act abolished the old supreme court, the court of assizes - useless now, for the legislature itself had absorbed such law-making functions as it possessed while the new courts took over its judicial functions. In the new as in the old supreme court the secretary of the province served as clerk. Until the Revolution the lesser office remained, as Governor Tryon said in a report rendered in 1773, an 'appendage' of the greater office.
Several acts of this session throw light upon social conditions. One provided against the hasty private burial of 'servants and others' which had given rise to 'much scandal' and sometimes, 'not undiscernedly,' to suspicions of murder. A similar law had been enacted in Virginia in 1662. Another prescribed that no surgeon, physician, or midwife should treat patients 'contrary to the known approved rules of art in each mystery or occupation,' or exercise any 'force, violence, or cruelty' (meaning, use physical force or perform an operation) without the consent of 'such as are skilful in the said arts' or 'at least of some of the wisest and gravest present' and of the patient himself if of sound mind. No persons, the assembly also thought it needful to enact, should brew beer for sale except those 'known to have sufficient skill or knowledge in the art or mystery of brewing.'
A bill to regulate marriages reiterated the old ordinances requiring that a license be taken out or the banns be published three times. It also said that if a married person departed for foreign lands whence the voyage could be performed in one year or less and was not heard of for five years, the spouse might remarry ; should the absent one return and prove that he or she had tried to open communication, a decree of the court of chancery might restore such person to his or her marital rights; but if neither party should ask for such a decree both might remain 'free from their former obligations' by signing 'a release to each other.' Quakers were permitted to
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use their own marriage ceremony. Still another act, the first legislative recognition of slavery in New York, strengthened the ordinance of the court of assizes, forbidding slaves and bond-servants to traffic in any fashion, laying penalties on persons who should trust them for drink or other commodities, and authorizing justices to make 'diligent hue and cry' for any who might escape, impressing if needful 'men, horses, and boats.'
Furthermore the assembly provided for an annual salary for the judges of the province, the respective counties to pay their quotas into the hands of the treasurer of the city of New York. It provided for the collection of arrears of the general property tax of the previous year but did not renew the tax. It passed a supplementary revenue act laying a duty of ten per cent on all foreign goods and on all brought from the English West Indies which were not of their own production, and directing all exporters of whale oil, whalebone, and wheat to give bonds that these wares, although not by the law of England 'enumerated commodities,' should nevertheless be carried only to English or English West Indian ports. This last enactment was intended to prevent the people of eastern Long Island from sending their products to Boston and bring- ing back European goods without passing through the cus- tom-house at New York. It proved notoriously ineffectual. The people of the eastern part of the island, Dongan once reported, were 'refractory' like the New Englanders and were 'very loath' to have any commerce with Manhattan, which was greatly to the detriment of the king's revenue and the 'ruin of our merchants.'
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