USA > New York > The history of the late province of New-York, from its discovery, to the appointment of Governor Colden, in 1762. Vol. I > Part 13
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Besides the acts above mentioned, the house brought up a militia bill, continued the revenue to the 1st of May, 1709, and passed a law to establish a grammar school according to his lordship's recom- mendation. Besides the great harmony that sub- sisted between the governor and his assembly, there was nothing remarkable except two resolves against the court of chancery erected by Mr. Nanfan, occa- sioned by a petition of several disappointed suitors who were displeased with a decree. The resolu- tions were in these words : "That the setting up a
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court of equity in this colony, without consent of the general assembly, is an innovation without any former precedent, inconvenient and contrary to the English law." And again: "That the court of chancery, as lately erected and managed here, was and is unwarrantable, a great oppression to the sub- ject, of pernicious example and consequence ; that all proceedings, orders, and decrees in the same are, and of right ought to be, declared null and void ; and that a bill be brought in according to these two resolutions," which was done; but though his lordship was by no means disinclined to fix contempt on Nanfan's administration, yet as this bill would dimi- nish his own power, himself being the chancellor, the matter was never moved farther than to the order for the engrossment of the bill upon a second reading.
Though a war was proclaimed by England on the 4th of May, 1702, against France and Spain, yet as the Five Nations had entered into a treaty of neu- trality with the French in Canada, this province, instead of being harassed on its borders by the enemy, carried on a trade very advantageous to all those who were concerned in it. The governor, how- ever, continued his solicitations for money with unre- mitted importunity, and by alarming the assembly, which met in April, 1703, with his expectation of an attack by sea, fifteen hundred pounds were raised, under pretence of erecting two batteries at the Nar- rows; which, instead of being employed for that use, his lordship, notwithstanding the province had ex- pended twenty-two thousand pounds during the late
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peace, was pleased to appropriate to his private advantage .* But let us do him the justice to con- fess, that while he was robbing the public he at the same time consented to several other laws for the emolument of the clergy.
Whether it was owing to the extraordinary sa- gacity of the house, or their presumption that his lordship was as little to be trusted as any of his predecessors, after voting the above sum for the batteries, they added, that it should be " for no other use whatsoever," I leave the reader to determine. It is certain they now began to see the danger of throwing the public money into the hands of a re- ceiver-general appointed by the crown, from whence the governor by his warrants might draw it at his pleasure. To this cause we must assign it, that in an address to his lordship, on the 19th of June, 1703, they " desire and insist that some proper and sufficient person might be commissioned treasurer, for the receiving and paying such moneys now intended to be raised for the public use, as a means to obstruct misapplications for the future." Another address was sent home to the queen, complaining of the ill state of the revenue through the frauds which had formerly been committed, the better to facilitate the important design of having a treasurer dependent on the assembly. The success of these measures will appear in the sequel.
* The vote on the ways and means to raise this sum is singular : Every member of the council to pay a poll tax of forty shillings; an assembly man, twenty shillings ; a lawyer in practice, twenty shillings; every man wearing a periwig, five shillings and six pence; a bachelor of twenty-five years and upwards, two shillings and three pence; every freeman between sixteen and sixty, nine pence; the owners of slaves, for each, one shilling.
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Though our frontiers enjoyed the profoundest tranquillity all the next winter, and we had expended thirteen hundred pounds in supporting one hundred fusiliers about Albany, besides the four independent companies in the pay of the crown, yet his excel- lency demanded provisions for one hundred and fifty men at the next meeting of the assembly, in April, 1704. The house having reason to suspect that the several sums of eighteen and thirteen hun- dred pounds lately raised for the public service, had been prodigally expended or embezzled, prudently declined any farther aids till they were satisfied that no misapplication had been made ; for this purpose they appointed a committee, who reported that there was a balance of near a thousand pounds due to the colony. His lordship, who had hitherto been treated with great complaisance, took offence at this par- simonious scrutiny, and ordered the assembly to attend him; when, after the example of Fletcher, whom, abating that man's superior activity, his lordship most resembled, he made an angry speech, in which he charges them with innovations never attempted by their predecessors, and hopes they may not force him to exert " certain powers" vested in him by the queen. But what he more particularly took notice of was their insisting in several late bills upon the title of " General Assembly," and a saving of the " Rights of the House," in a resolve agreeing to an amendment for preventing delay, with respect to which his lordship has these words : "I know of no right that you have as an assembly, but such as the queen is pleased to allow you." As to the vote by which they found a balance due to the colony of
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nine hundred and thirteen pounds, fifteen shillings, " it is true (says his lordship) the queen is pleased to command me, in her instructions, to permit the assembly from time to time, to view and examine the accounts of money, or value of money, disposed by virtue of the laws made by them, but you can in nowise meddle with that money; but if you find any misapplication of any of that money, you ought to acquaint me with it, that I may take care to see those mistakes rectified which I shall certainly do."
The house bore these rebukes with the utmost passiveness, contenting themselves with little else than a general complaint of the deficiency of the revenue, which became the subject of their particu- lar consideration in the fall; but though they avowed it to be their endeavour to conform to the letter and intent of the governor's commission, and denied the charge of a design to assume any of the powers of government, their address contained a clause which discovered a high and firm spirit :
" My lord, this assembly being intrusted by the people of this plantation with the care of their liber- ties and properties, and sensible of their own weak- ness, lest through ignorance or inadvertency, they should consent to any thing hurtful to themselves or their posterity, in all things admitting of doubts . are willing to save their rights: and those rights they mean to be that natural and civil liberty so often claimed, declared, and confirmed by the English laws, and which they conceive every free Englishman is entitled to. Whatsoever else may admit of controversy, the people of this colony think they have an undoubted, true, and entire property in
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their goods and estates, of which they ought not to be divested but by their free consent. in such man- ner, to such ends and purposes, as they shall think fit, and not otherwise. If the contrary should be admitted, all notion of property would cease ; every man is the most proper judge of his own capacity in giving, and the present extreme poverty of this coun- try is both visible and too apparent."
The following was an answer from his lordship:
" I think it my duty to require you (which I now do) to lay before me, as soon as may be, what those rights are, which you pretend to save in that vote." His lordship could expect only a general answer, nor from the moderate principles of the people of that day, did he dread intimations inconsistent with their loyalty to the queen, or their disaffection to the parent kingdom. The colony politicians of early days contented themselves with general declarations owning a subordination, and yet claiming English privileges ; leaving it to their posterity to ascertain the boundary between the supremacy of England and the submission of her colonies. Happy if both coun- tries had adopted the poet's rule,
" Sunt certi denique fines
Quos ultra citra que nequit consistere rectum."
The council and assembly spoke the general sense of the colony in the following passage of their joint representation in favor of the port of Oswego :
" October 29th, 1730. We are truly sensible of, and as truly grateful for, the many principal favours by which his majesty and his royal predecessors have distinguished this colony. Our loyalty and fidelity to his illustrious house, our unfeigned love
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and affection for our mother country, and the happy dependance which we have upon the crown and kingdom of Great Britain, lay us under all natural and civil obligations so to act in humble station, as may render us useful and serviceable."
Our ancestors claimed every social benefit not injurious to the mother country, nor inconsistent with their loyalty to the crown or their dependance upon Great Britain.
The governor on the one hand, then proposed an additional duty of ten per cent. on certain goods not immediately imported from Europe, to which the assembly on the other were utterly averse, and as soon as they resolved against it, the very printer, clerk, and door-keeper, were denied the payment of their salaries. Several other demands being made for the public debts, the house resolved to address his lordship for an exact account of the revenue, which, together with their refusal to admit the coun- cil's amendment to a money bill, gave him such high provocation, that he was induced to dissolve an as- sembly, whose prodigal liberality had justly exposed them to the resentment of the people.
The lords of trade approved of the dissolution, and added : "we conceive no reason why the coun- cil should not have a right to amend all bills sent up by the assembly, even those relating to money." It continued nevertheless to be the unparliamentary practice of that day (1704) not only to send reasons in writing for and against amendments proposed to bills, but for the speaker to go up with the whole house to a dialogue with the council, where the
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governor taking the chair, he became a party in all disputes between the council and assembly.
The new assembly which met on the 14th of June, 1705, neglected the affair of the revenue and the additional duty, though his lordship strongly recom- mended them both. Among the principal acts passed at this meeting is that for the benefit of the clergy, who were entitled to the salaries formerly established by colonel Fletcher, which, though less than his lordship recommended, was doubtless a grateful offering to his unceasing zeal for the church, mani- fested in a part of his speech at the opening of the session in these words : " The difficulties which some very worthy ministers of the church of England have met with, in getting the maintainance settled upon them by an act of the general assembly of this province, passed in the year 1693, moves me to propose to you the passing an act explanatory of the before-mentioned act, that those worthy men who have ventured to come so far for the service of God in his church, and the good and edification of the people, to the salvation of their souls, may not for the future be vexed, as some of them have been ; but may enjoy in quiet that maintainance which was by a law provided for them .* I farther recommend to you, the passing an act to provide for the main- tainance of some ministers in some of the towns at the east end of Long-Island, where I do not find any provision has been yet made for propagating religion."
* The majority of our people are of a contrary opinion, if my lord thought the establishment was designed only for the episcopal clergy.
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Our harbour being wholly unfortified, a French privateer actually entered it in 1705, and put the inhabitants into great consternation. The assem- bly, at their session in June, the next year, were not disinclined, through the importunity of the people, to put the city in a better posture of defence for the future ; but being fully convinced, by his lordship's embezzlement of £1500 formerly raised for two batteries at the Narrows, and near £1000 levied for the protection of the frontiers, that he was no more to be trusted with public moneys, offered a bill for raising £3000 for fortifications, appoint- ing that sum to be deposited in the hands of a private person of their own nomination ; but his excellency did not pass it till their next meeting in the fall, when he informed them that he had received the queen's commands, "to permit the general assem- bly to name their own treasurer when they raised extraordinary supplies for particular uses, and which are no part of the standing and constant revenue ; the treasurer being accountable to the three branches of the legislature, and the governor always acquaint- ed with the occasion of issuing such warrants ; and all persons concerned in the issuing and disposing of such moneys must be made accountable to the governor, council, and assembly."
The vote to appoint a treasurer for the public money they raised, passed on the 20th of June, 1705. The assembly soon after took occasion, in framing a bill to defray the charges of fusiliers, spies, and outscouts, for the defence of the frontiers, to render the sums due payable by their treasurer. The council called them to a conference upon it the
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4th of October. The assembly desired their ob-
jections in writing These were,
1. That it gave a sum to her majesty and not to her heirs and successors.
2. That the treasurer is compelled to give security to account to the general assembly, instead of the crown, the high treasurer, or commissioners of the treasury.
3. That the moneys are made issuable upon pri- vate certificates of service. And the council say they proceed upon the royal instructions, which they recite.
The assembly answer to the first, that it is plain from the bill that the money to be raised is for the use of the crown, and the bill in this respect similar to others passed by this governor and approved at home.
To the second, that though he is made account- able to the general assembly, there is nothing in the bill to prevent his accounting also to the queen and the treasury.
Relative to the third, they observe that the in- struction had been generally taken as a restriction on the governors, against the disposition of public money without the approbation of the council, and they insist upon the clauses,
1. Because governors and receivers-general have always quarrelled, and the latter been suspended, and all accounting thereby eluded.
2. Because receivers, on the loss of their offices, have generally left the province.
3. Because money raised for the defence of Al- bany had never been applied to that use.
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The conferences closed by the revival of the objection to the council's interfering in the amend- ments of money bills; and a sudden prorogation followed, to such a distant day, as his lordship was afterwards compelled to retract for an earlier meet- ing, not without exciting doubts concerning the legality of their next convention, some months before the day to which they had been in a passion prorogued.
Though there was then reason to apprehend an attack from the French, and several bills were passed to raise money for the defence of the colony, his lordship could not prevail upon the assembly to waive their objections, so that the services remained unprovided for until the assembly carried their point of having a treasurer of their own, with the queen's consent, as above expressed in his lordship's speech of 27th September, 1706 By a clause in an act for raising a fund for the defence of the frontiers passed 5th Anne, the treasurer was to give such security as William Nicoll, the then speaker, should approve, but no recognizance or bond could ever be found.
His lordship's renewing the proposal of raising fortifications at the Narrows, which he had himself hitherto scandalously prevented, is a proof of his excessive effrontery and contempt of the people ; and the neglect of the house to take the least notice either of that matter or the revenue, occasioned another dissolution
Before I proceed to the transactions of the new assembly, which did not meet till the year 1708, it will not be improper to lay before the reader the account of a memorable proof of that persecuting VOL. I .- 24
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spirit which influenced lord Cornbury's whole administration.
The inhabitants of the city of New-York con- sisted at this time of Dutch Calvinists, upon the plan of the church of Holland; French refugees, on the Geneva model; a few English episcopalians; and a still smaller number of English and Irish presbyterians, who having neither a minister nor a church, used to assemble themselves every Sunday at a private house, for the worship of God. Such were their circumstances when Francis M'Kemie and John Hampton, two presbyterian ministers, arrived here in January, 1707. As soon as lord Cornbury, who hated the whole persuasion, heard that the Dutch had consented to M.Kemie's preach- ing in their church, he arbitrarily forbid it; so that the public worship, on the next sabbath was per- formed with open doors at a private house. Mr. Hampton preached the same day at the presbyterian church in New-Town, distant a few miles from the city. At that village both these ministers were two or three days after apprehended by Cardwel, the sheriff, pursuant to his lordship's warrant, for preach- ing without his license. From thence they were led in triumph a circuit of several miles through Jamaica to New-York. They appeared before his lordship with an undaunted courage, and had a conference with him, in which it is difficult to determine whether my lord excelled in the character of a savage bigot or an unmannerly tyrant. The ministers were no lawyers, or they would not have founded their justification on the supposed extent of the English act of toleration. They knew not that the
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ecclesiastical statutes had no relation to this colony ; and that its religious state consisted in a perfect parity between protestants of all denominations. They erroneously supposed that all the penal laws extended to this province, and relied for their de- fence on the toleration act, offering testimonials of their having complied with that act in Virginia and Maryland, and promised to certify the house in which M'Kemie had preached to the next sessions. His lordship's discourse with them was the more ridiculous, because he had Bickley, the attorney- general, to assist him. Against the extension of the statute, they insisted that the penal laws were limited to England, and so also the toleration act, because the sole intent of it was to take away the penalties formerly established. But grant the position, and the consequence they drew from it argues that my lord and Mr. Attorney were either very weak, or influenced by evil designs. If the penal laws did not extend to the plantations, then the prisoners were innocent, for where there is no law there can be no transgression ; but according to these incom- parable sages, if the penal laws and the toleration act were restricted to the realm of England, as they contended, then the poor clergymen, for preaching without his license, were guilty of a heinous crime against his private, unpublished instructions ; and for this cause he issued an informal precept to the sheriff of New-York, for their commitment to jail till further orders. They continued in confinement,
through the absence of Mompesson, the chief jus- tice, who was in New-Jersey, six weeks and four days, but were then brought before him by writ of
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habeas corpus. Mompesson being a man of learning in his profession, and his lordship now apprised of the illegality of his first warrant, issued another on the very day of the test of the writ, in which he vir- tually contradicts what he had before insisted on at his conference with the prisoners. For according to this, they were imprisoned for preaching without being qualified as the toleration act required, though they had offered themselves to the sessions during their imprisonment. They were then bailed to the next supreme court, which began a few days after. Great pains were taken to secure a grand jury for the purpose, and among those who found the indict- ment, to their shame be it remembered, were several Dutch and French protestants.
Mr. M'Kemie returned to New-York, from Vir- ginia, in June, and was now come to his trial on the indictment found at the last court. As to Mr. Hamp- ton, he was' discharged, no evidence being offered to the grand jury against him.
Bickley, the attorney general, managed the prose- cution in the name of the queen ; Reignere, Nicoll, and Jamison appeared for the defendant. The trial was held on the 6th of June, and being a cause of great expectation, a numerous audience attended. Roger Mompesson sat on the bench as chief justice, with Robert Milward and Thomas Wenham for his assistants. The indictment was in substance, that Francis M'Kemie, pretending himself to be a pro- testant dissenting minister, contemning and endea- vouring to subvert the queen's ecclesiastical supre- macy, unlawfully preached without the governor's · license first obtained, in derogation of the royal
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authority and prerogative : that he used other rites and ceremonies than those contained in the com- mon-prayer book. And lastly, that being unqualified by law to preach, he nevertheless did preach at an illegal conventicle: and both these last charges were laid to be contrary to the form of the English sta- tutes. For it seems that Mr. Attorney was now of opinion, that the penal laws did extend to the Ame- rican plantations, though his sentiments were the very reverse at the first debate before his excellency : but Bickley was rather remarkable for a voluble tongue, than a penetrating head or much learning. To support this prosecution he endeavoured to prove the queen's ecclesiastical supremacy in the colonies, and that it was delegated to her noble cousin the governor; and hence he was of opinion that his lord- ship's instructions relating to church matters had the force of a law. He in the next place contended for the extension of the statutes of uniformity, and upon the whole, was pleased to say that he did not doubt the jury would find a verdict for the queen. Reig- nere, for the defendant, insisted that preaching was no crime by the common law, that the statutes of uniformity and the act of toleration did not extend here, and that the governor's instructions were not laws. Nicoll spoke to the same purpose, and so did David Jamison; but M'Kemie concluded the whole defence in a speech, which sets his capacity in a very advantageous light. The reader may see it in the narrative of this trial, which was first pub- lished at the time, and since reprinted at New-York in the year 1755. The chief justice, in his charge, advised a special verdict, but the jury found no dif-
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ficulty to acquit the defendant, who through the shameful partiality of the court, was not discharged from his recognizance, till they had illegally extort- ed all the fees of his prosecution, which, together with his expenses, amounted to eighty-three pounds seven shillings and six pence.
Lord Cornbury was now daily losing the favour of the people. The friends of Leisler had him in the utmost abhorrence from the beginning, and being all spies upon his conduct, it was impossible for his lordship to commit the smallest crime unnoticed. His persecution of the presbyterians very early in- creased the number of his enemies; the Dutch too were fearful of his religious rage against them, as he disputed their right to call and settle ministers, or even schoolmasters without his special license. His excessive avarice, his embezzlement of the public money, and his sordid refusal to pay his private debts, bore so heavily upon his reputation, that it was impossible for his adherents either to support him or themselves against the general opposition. Such being the temper of the people, his lordship did not succeed according to his wishes in the new assembly, which met on the 19th of August, 1708. The members were all against him, and William Nicoll was again chosen speaker.
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