USA > New York > New York City > Old New York : a journal relating to the history and antiquities of New York City, Vol. II > Part 25
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At the close of his term he retired to private life willingly, but his numerous political friends were by no means disposed to sur- render their claims upon him, and in 1845 he was again nominated for the Assembly, but was defeated. In 1846, against his remon- strance, he was nominated as the Whig candidate for Lieutenant Governor on the same ticket with John Young and was defeated. by the candidate of the Democrats combined with the Anti- Renters by upwards of thirteen thousand majority. In 1847 he was a candidate for the same office to fill the vacancy occasioned by the resignation of Mr. Addison Gardiner, who had been elected by the combined Anti-Rent and Democratic parties, and was chosen on this occasion by a very large majority, averaging about thirty thousand, in consequence of the divisions between the Anti-Renters and the Democratic party.
In 1848 the Whigs were divided into two factions. The Radical Whigs claimed to be the friends of Mr. Seward. The sympathies of Mr. Fish were known to be with the Conservatives, afterwards entitled the National party. But however decided in his convictions, he was moderate in the expression of his opin- ions and by his conciliatory tone secured the good wishes of both factions, and a nomination for Governor, warmly urged by his friends of New York, was conceded to him without serious opposition. The friends of Gov. Seward supported his nomina- tion. On the first ballot he received seventy-six votes ; twenty- eight votes were given for Joshua A. Spencer, and twenty for Governor Young. The Convention was held on the 14th of
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September. The Democrats had now divided into two parties, and the vote given to Mr. Fish was slightly less than that given for both the Democratic candidates, John A. Dix and Reuben H. Walworth, but he was elected Governor by a plurality of about 96,000 votes over the highest of the opposing candidates.
He took the oath of office on the 1st day of January, 1849. The administration of Governor Fish was quiet and harmonious. The success of his administration was owing to that moderate course which he firmly and steadily pursued through all those contests and divisions, the occurrence of which he so much regretted, and which were so embarrassing at that particular time, owing to the bitter factions in the organization.
During his administration the slavery question was agitated in Congress and throughout the Union. As the leader of his party he was early committed in favor of the principle of the Wilmot proviso, and in both of his messages he expressed his decided opposition to the extension of slave territory. While his remarks were conservative in their tone, so characteristic of the man, yet they indicated the firmness of his convictions, and the determin- ation with which they would be maintained. Indeed all his official acts have been distinguished by moderation, by a fixed determination to extend equal benefits to all and achieve if possible the greatest good of the greatest number.
Among the recommendations of Governor Fish which deserve notice was the endowment of a State Agricultural School, and a school for instruction in the mechanic arts; the restoration of the office of county superintendent of common schools; the revision and alteration of the laws authorizing taxes and assessments for local improvements; the more general and equal taxation of personal property ; the establishment of tribunals of conciliation in accordance with the provisions of the Constitution of 1846; and the modification of the criminal code. After his retirement from the executive chair he was elected by the Whigs in the Legislature to the office of Senator in Congress, to succeed Daniel S. Dickin- son. He was regularly nominated in the Whig caucus by a large majority, but one of the national Whigs in the State Senate, where there was 17 Whigs and 15 Democrats, refused to vote for him unless resolutions were first adopted approving and indorsing
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the approval by Mr. Fillmore of the Fugitive Slave Act, and this delayed but did not prevent his election by an overwhelming vote in the Legislature.
When his senatorial term expired Mr. Fish went to Europe with his family and remained till shortly before the beginning of the Civil war. He had been prominent in the formation of the Republican party, and upon his return from Europe took an active part in the election of Abraham Lincoln. "In January, 1862, he was appointed, in conjunction with Bishop Ames, by Secretary Stanton, as a commissioner to visit the United States soldiers imprisoned at Richmond and elsewhere, to relieve their necessities and provide for their comfort. The Confederate Gov- ernment declined to admit the commissioners within their lines but intimated a readiness to negotiate for a general exchange of prisoners. The result was an agreement for an equal exchange, which was carried out substantially to the end of the war."
He aided in the election of President Grant in 1868, and in 1869, in March of that year, was appointed Secretary of State by him, to succeed Washburne, who was appointed Minister to France. In March, 1873, he was reappointed by Grant, and served in all from March 11th, 1869, to March 12th, 1877. Of this appointment by General Grant even the Democratic papers favorably commented upon. The World said : "In one of the new selections the reconstructed Cabinet is a great and manifest improvement. Hamilton Fish, the Secretary of State, may not be a very great or a very brilliant statesman, but he is, beyond all controversy, one of the most estimable, most judicious, most upright and most respected citizens of this State or of this country. A gentleman who has enjoyed the advantages of hered- itary wealth, of superior culture, in the full vigor of ripe faculties, of varied official experience, great social consideration, an example of all private virtues, he has long possessed what is better than the fame of a great statesman, in a life so unblemished, a deportment so quiet and unostentatious, a weight and credit in the management of educational, religious and charitable insti- tutions which so commend him to general esteem as to place him, by universal consent, in the very first rank of good citizens, Christian gentlemen and exemplars of the kindly domestic virtues.
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There will be no overreaching diplomacy or crooked politics in Mr. Fish's management of our foreign affairs, and the spirit of candor and justice which he will bring into all his duties will probably save him from embarrassing entanglements requiring any cunning and dexterity to untie. He has never displayed any surprising fetches of ingenuity, because a man of his character never has any occasion for them, nor will the nation have any occasion for them, if he is permitted to have his own way in the management of our foreign intercourse. Next in the list of Mr. Fish's qualifications we should place a singular soundness and rectitude of judgment and long established habits of caution and circumspection. Probably there could be no safer adviser. Mr. Fish is perfectly familiar with the contemporary history and the merits pro and con of the chief public questions both of our own and of the chief foreign countries; and among the minor but necessary qualifications for his new office he has a fluent command of French and one or two other continental tongues. For the social duties of a position in which social influence counts for so much, no man is better qualified than Mr. Fish.".
As Secretary of State, Mr. Fish introduced a system of exam- inations of applicants for consulates to test their knowledge of subjects connected with their duties. On the part of the United States he was appointed by the President on the 9th of February, 1871, as one of the Commissioners to negotiate the Treaty of Wash- ington, which was signed by him on the Sth of May of that year.
In effecting a settlement of the long standing northwestern boundary dispute, he secured the island of San Juan to the United States and successfully resisted an effort by Great Britain to change the terms of the Extradition Treaty by municipal legis- lation. In the settlement of the Alabama question he procured the acceptance of a doctrine by the Geneva Tribunal securing the United States against claims for indirect damages arising out of Fenian raids or Cuban filibustering expeditions. He negotiated with Admiral Polo, the Spanish Minister at Washington, No- vember, 1873, the settlement of the Virginius question.
Mr. Fish was for some years President of the New York Historical Society, and is now President-General of the New York Society of the Cincinnati.
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NOTES ON THE HISTORY OF PRINTING IN NEW YORK.
X.
The argument of Mr. Hamilton still proceeded. He said :
So the King's dispensing power, being by the judges set up above the act of Parliament, this law, which the people looked upon as their chief security against popery and arbitrary power, was by this judgment rendered altogether ineffectual. But this judgment is sufficiently exposed by Sir Edward Atkins,* late one of the judges of the Court of Common Pleas in his Enquiry into the King's power of dispensing with penal statutes; where it is shown, who it was that first invented dispensations ; how they came into England ; what ill use has been made of them there ; and all this principally owing to the countenance given them by the judges. He sayst of the dispensing power: The Pope was the inventor of it ; our Kings have borrowed it from them; and the judges have from time to time nursed and dressed it up, and given it counte- nance; and it is still upon the growth, and encroaching till it has almost subverted all law, and made the regal power absolute if not dissolute. This seems not only to show how far judges have been influenced by power, and how little cases of this sort, where the prerogative has been in question in former reigns, are to be relied upon for law ; but I think it plainly shows too, that a man may use a greater freedom with the power of his sovereign and the judges in Great Britain than it seems he may with the power of a Gover- nor in the plantations, who is but a fellow subject. Are these words with which we are charged like these ? Do Mr. Zenger's papers contain any such freedoms with his Governor or his Council as Sir Edward Atkins has taken with the regal power and the judges in England ? And yet I never heard of any information brought against him for these freedoms.
If then upon the whole there is so great an uncertainty among
* Sir Edward Atkins' Enquiry into the power of dispensing with penal statutes.
+ Postscript to the Enquiry, page 51.
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judges (learned and great men) in matters of this kind ; if power has had so great an influence on judges, how cautious ought we to be in determining by their judgments, especially in the plantations, and in the case of libels! There is heresy in law, as well as in re- ligion, and both have changed very much ; and we well know that : it is not two centuries ago that a man would have been burned as an heretic for owning such opinions in matters of religion as are publicly wrote and printed at this day. They were fallible men, it seems, and we take the liberty not only to differ from them in re- ligious opinions, but to condemn them and their opinions too ; and I must presume, that in taking these freedoms in thinking and speaking about matters of faith or religion, we are in the right ; for, though it is said there are very great liberties of this kind taken in New York, yet I have heard of no information preferred by Mr. Attorney for any offences of this sort. From which I think it is pretty clear that in New York a man may make very free with his God, but he must take special care what he says of his Governor. It is agreed upon by all men that this is a reign of liberty, and while men keep within the bounds of truth I hope they may with safety both speak and write their sentiments of the conduct of men in power, I mean of that part of their conduct only which affects the liberty or property of the people under their administration. Were this to be denied, then the next step may make them slaves; for what notions can be entertained of slavery, beyond that of suffering the greatest injuries and oppressions, with- out the liberty of complaining ; or if they do, to be destroyed for body and estate for so doing ?
It is said and insisted on by Mr. Attorney, " That government is a sacred thing ; that it is to be supported and reverenced ; it is government that protects our persons and estates; that prevents treasons, murders, robberies, riots and all the train of evils that overturns kingdoms and states, and ruins particular persons ; and if those in the administration, especially the supreme magistrate, must have all their conduct censured by private men, government cannot subsist." This is called a licentiousness not to be tolerated. It is said " that it brings the rulers of the people into contempt, and their authority not to be regarded, and so in the end the laws cannot be put in execution." These, I say, and such as these are
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the general topics insisted upon by men in power and their advo- cates. But I wish it might be considered at the same time how often it has happened that the abuse of power has been the primary cause of these evils, and that it was the injustice and oppression of these great m'en, which has commonly brought them into contempt with the people. The craft and art of such men is great, and who, that is the least acquainted with history or law, can be ignorant of the specious pretences which have often been made use of by men in power, to introduce arbitrary rule, and destroy the liberties of a free people ? I will give two instances ; and as they are authori- ties not to be denied, nor can be misunderstood, I presume they will be sufficient.
The first is the Statute of 3d of Hen. 7, Cap. 1. The preamble of the statute will prove all, and more than I have alleged. It be- gins : "The King, our sovereign lord, remembereth how by unlaw- ful maintenances, giving of liveries, signs and tokens, etc., untrue demeanings of sheriff's in making of panels, and other untrue re- turns, by taking of money, by injuries, by great riots and unlawful assemblies ; the policy and good rule of this realm is almost sub- dued, and for the not punishing these inconveniences, and by occa- sion of the premises, little or nothing may be found by inquiry, etc., to the increase of murders, etc., and unsureties of all men living, and losses of their lands and goods." Here is a fine and specious pretence for introducing the remedy, as it is called, which is pro- vided by this act, that is, instead of being lawfully accused by twenty-four good and lawful men of the neighborhood, and after- wards tried by twelve like lawful men, here is a power given to the Lord Chancellor, Lord Treasurer, the Keeper of the King's Privy Seal, or two of them, calling to them a bishop, a temporal lord, and other great men mentioned in the act (who, it is to be ob- served, were all to be dependents on the Court), to receive informa- tion against any person, for any of the misbehaviors recited in that act, and their discretion to examine and to punish them according to their demerit.
The second statute I proposed to mention is the 11th of the same King, Cap. 3, the preamble of which act has the like fair pretences as the former ; " for the King calling to his remembrance the good laws made against the receiving of liveries, etc., unlawful extor-
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tions, maintenances, embracery, etc., unlawful games, etc., and many other great enormities and offences committed against many good statutes, to the displeasure of Almighty God," which, the act says, " could not, nor yet can, be conveniently punished by the due order of the law, except it were first found by twelve men, etc., which, for the causes aforesaid, will not find nor yet present the truth." And, therefore, the same statute directs " that the justices of assize, and the justices of the peace, shall upon information for the King, before them made, have full power, by their discretion, to hear and determine all such offences." Here are two statutes that are allowed to have given the deepest wound to the liberties of the people of England of any that I remember to have been made, unless it may be said that the statute made in the time of Henry VIII., by which his proclamations were to have the effect of laws, might in its consequence be worse. And yet we see the plausible pretences found out by the great men to procure these acts. And it may justly be said that by those pretences the people of England were cheated or awed into the delivering up their ancient and sa- cred right of trials by grand and petit juries. I hope to be excused for this expression, seeing my Lord Coke (in his Fourth Institute) calls it " an unjust and strange act, that tended in its execution to the great displeasure of Almighty God and the utter subversion of the common law."
- These, I think, make out what I alleged, and are flagrant instances of the influence of men in power, even upon the representatives of a whole kingdom. From all which I hope it will be agreed that it is a duty which all good men owe to their country, to guard against the unhappy influence of ill men when entrusted with power, and especially against their creatures and dependents, who, as they are generally more necessitous, are surely more covetous and cruel. But it is worthy of observation that, though the spirit of liberty was borne down and oppressed in England at that time, yet it was not lost, for the Parliament laid hold of the first opportunity to free the subject from the many insufferable oppressions and outrages committed upon their persons and estates by color of these acts, the last of which being deemed the most grievous was repealed in the first year of Henry the Eighth. Though it is to be observed- that Henry the Seventh and his creatures reaped such great advan-
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tages by the grievous oppressions and exactions, grinding the faces of the poor subjects, as my Lord Coke says, by color of this stat- ute by information only, that a repeal of this act could never be obtained during the life of that prince. The other statute, being the favorite law for supporting arbitrary power, was continued much longer. The execution of it was by the great men of the realm, and how they executed it the sense of the kingdom, ex- pressed in the 17th of Charles I. (by which the Court of Star Chamber, the soil where informations grew rankest), will best de- clare. In that statute Magna Charta, and the other statutes made in the time of Edward Third, which I think are no less than five, are particularly enumerated as acts by which the liberties and privi- S leges of the people of England were secured to them, against such oppressive courts as the Star Chamber and others of the like juris- diction. And the reason for their pulling down the Star Chamber is "that the proceedings, censures and decrees of the Court of Star Chamber, even though the great men of the realm, nay, and a bishop, too (holy man), were judges, had by experience been found to be an intolerable burthen to the subject and the means to introduce an arbitrary power and government," and, therefore, that Court was taken away, with all the other courts in that statute mentioned having like jurisdiction.
I do not mention this statute, as if by the taking away the Court of Star Chamber the remedy for many of the abuses or offences cen- sured there was likewise taken away; no, I only intend by it to show that the people of England saw clearly the danger of their trusting their liberties and properties to be tried, even by the greatest men in the kingdom, without a judgment of a jury of their equals. They had felt the terrible effects of leaving it to the judgment of these great men what was scandalous and seditious, false or ironical. And if the Parliament of England thought this power of judgment was too great to be trusted with men of the first rank in the kingdom, without the aid of a jury, how sacred soever their characters might be, and therefore restored to the people their original right of trial by juries, I hope to be excused for insisting that by the judgment of a Parliament, from whence no appeal lies, the jury are the proper judges of what is false at least, if not of what is scandalous and seditious. This is an authority not
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to be denied ; it is as plain as it is great ; and to say, that this act indeed did restore to the people trials by juries, which was not the practice of Star Chamber, but that did not give the jurors any new authority, or any right to try matters of law, I say this objection will not avail; for I must insist that where matter of law is com- plicated with matter of fact the jury have a right to determine both. As for instance, upon indictment for murder, the jury may, and almost constantly do, take upon them to judge whether the evidence will amount to murder or manslaughter, and find accord- ingly ; and I must say I cannot see why in our case the jury have not as good a right to say whether our newspapers are a libel or no libel as another jury has to say whether killing of a man is murder or manslaughter. The right of the jury to find such a verdict as they in their conscience do think is agreeable to their evidence is supported by the authority of Bushel's case, Vaughan's Reports, p. 135, beyond any doubt. For, in the argument of that case, the Chief Justice, who delivered the opinion of the Court, lays it down for law (Vaughan's Reports, p. 150), " that in all general issues ; as upon non cul. in tresspass, non tort nul disseizin in assize, etc., though it is matter of law, whether the defendant is a tres- passer, a disseizer, etc., in the cases in issue, yet the jury find not (as in a special verdict) the fact of every case, leaving the law to the Court ; but find for the plaintiff or defendant upon the issue to be. tried, wherein they resolve both law and fact complicately." It appears by the same case that though the discreet and lawful assistance of the judge, by way of advice to the jury, may be useful ; yet that advice or direction ought always to be upon sup- position, and not positive and upon coercion (p. 144). The reason given in the same book (p. 147) is " because the judge (as judge) cannot know what the evidence is which the jury have, it may be of their own knowledge, as they are returned of the neighborhood. They may also know from their own knowledge that what is sworn in Court is not true ; and they may know the witnesses to be stig- matized, to which the Court may be strangers." But what speaks most to my purpose is that, suppose the Court did really know all the evidence the jury know, yet in that case it is agreed "that the judge and jury may differ in the result of their evidence as well as two judges may," which often happens. And (p. 14S) the judge
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subjoins the reason, why it is no crime for a jury to differ in opinion from the Court, where he says, " that a man cannot see with another's eye, nor hear by another's ear ; no more can a man conclude or infer the thing by another's understanding or reasoning." From all which (I insist) it is very plain, that the jury are by law at liberty (without any affront to the judgment of the Court) to find both the law and the fact, in our case, as they did in the case I am speaking to, which I will beg leave just to mention, and it was this. Mr. Penn and Mead being Quakers, and having met in a peaceable manner, after being shut out of their meeting-house, preached in Grace Church street in London to the people of their own persuasion, and for this they were indicted ; and it was said " that they with other persons, to the number of three hundred, unlawfully and tumultuously assembled, to the disturbance of the peace," etc. To which they pleaded "not guilty." And the petit jury being sworn to try the issue between the King and the prisoners, that is, whether they were guilty, according to the form of the indictment; here there was no dispute but they were assembled together, to the number mentioned in the indictment ; but " whether that meeting together was riotously, tumultuously, and to the disturbance of the peace, was the question." And the Court told the jury it was, and ordered the jury to find it so. For, said the Court, " the meeting was the matter of fact, and that is confessed, and we tell you it is unlawful, for it is against the statute ; and the meeting being unlawful, it follows of course that it was tumultuous, and to the disturbance of the peace." But the jury did not think fit to take the Court's word for it; for they could neither find riot, tumult, or anything tending to the breach of the peace, committed at that meeting; and they acquitted Mr. Penn and Mead. In doing of which they took upon them to judge both the law and the fact, at which the Court (being themselves true courtiers) were so much offended that they fined the jury forty marks apiece and committed them till paid. But Mr. Bushel, who valued the right of a juryman and the liberty of his country more than his own, refused to pay the fine ; and was resolved (though at a great expense and trouble too) to bring, and did bring, his habeas corpus, to be relieved from his fine and imprisonment, and he was released accordingly; and this being
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