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 25
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blishment to the plantations; and if the society had not been of the same opinion, they would hardly have printed and dispersed his sermon. Neither did the civil rulers of the nation, who may justly be supposed acquainted with its laws, think the act of union, or any other law, established the church of England in America. This is plain from the letter of the lords justices to governor Dummer, in the year 1725, almost twenty years after the union, wherein they say, there is no regular establishment of any national or provincial church in these plantations.
" If it be urged, that the king's commission to the late bishop of London, proves an ecclesiastical establishment here, it is sufficient to answer, that his lordship was remark- able for skill in the laws, so far as they relate to ecclesiastical affairs, as appears from his Codex ; and he was of the con- trary opinion, for in his letter to Dr. Colman, of May 24, 1735, he writes thus : "My opinion has always been, that the religious state of New England is founded in an equal liberty to all protestants-none of which can claim the name of a national establishment, or any kind of superiority over the rest." This opinion the bishop gave not only since the act of union, but even seven years after he had received his commission, and surely it must be admitted, that as he had time enough to consider it, so he, of all others, best un- derstood it." Thus far Mr. Hobart. With respect to the act of union, I beg leave only to subjoin, that it is highly probable the Scotch parliament believed the English intended to establish their church only in England. For in the close of the act, by which they had established the presbyterian church in Scotland, it is declared in these express words, that the parliament of England may provide for the security of the church of England, as they think expedient, to take place within the bounds of the said kingdom of England. And whatever latitude the word kingdom has in common speech, it, in a legal sense, is limited to England, properly so called, and excludes the plantations.
Nor can we suppose, that the church of England is
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established in these colonies, by any acts prior to the act of union above considered. For besides the several opinions against such supposition already adduced, it is unreasonable to imagine, that if there was any such establishment, king Charles II. in direct repugnancy thereto, should have made the grant of Pennsylvania, and given equal privileges to all religions in that province, without even excepting the Roman catholics; and that the colonies of Rhode-Island, Connecticut, and the Massachusett's Bay, should be permit- ted to make their provincial establishments, in opposition to an antecedent establishment of the church of England, espe- cially, as the laws of the Massachusett's Bay province are constantly sent home, and the king has the absolute power of repealing every act he should think improper to be continued as a law. Whoever, therefore, considers this, and that the king is sworn to preserve the church of England establishment, must necessarily conclude, that whatever sentiments may obtain among the episcopalians in America, our kings and their councils have always conceived that such establishment could by no means be extended to us. As to Connecticut, all the episcopalians of that colony, and even their ministers, were legally compellable to contribute to an annual tax for the support of the congregational clergy, till of late they were favoured with a law which grants them a privilege of exemption from that iniquitous and unreason- able burden. But whether they are subject to the like unchristian imposition in the other colonies above mentioned, I am not sufficiently acquainted with their laws to deter- mine .*
The 13th number of the Watch Tower published at New- York, in 1755, espouses the same side with the author of the Reflector, adds several new arguments and the opinions of eminent counsel at law, and considers the force of what is
* I believe there is no just cause for the complaints transmitted by the mis- sionaries. Dr. Douglass assigns several instances of gross misrepresentations and falsehoods .- Vid. his Summary, 2d vol. p. 139. Boston edit. 1753, and the Watch Tower, No. XLI. published at New-York, in 1755.
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advanced by the late Dr. Douglass in favour of his position, that the religious state of the American plantations is an universal toleration of protestants of every denomination.
The clergy of this province are, in general, but indiffer- ently supported : it is true they live easily, but few of them leave any thing to their children. The episcopal missiona- ries, for enlarging the sphere of their secular business, not many years ago attempted, by a petition to the late governor Clinton, to engross the privilege of solemnizing all marriages. A. great clamour ensued, and the attempt was abortive. Before that time the ceremony was even performed by justices of the peace, and the judges at law have determined such marriages to be legal. The governor's licenses now run to " All protestant ministers of the gospel." Whether the justices act still, when the banns are published in our churches, which is customary only with the poor, I have not been informed. Marriage in a new country ought to have the highest encouragements, and it is on this account, perhaps, that we have no provincial law against such as are clandestine, though they often happen, and, in some cases, are attended with consequences equally melancholy and mischievous.
As to the number of our clergymen, it is large enough at present, there being but few settlements unsupplied with a ministry, and some superabound. In matters of religion we are not so intelligent, in general, as the inhabitants of the New-England colonies ; but both in this respect and good morals, we certainly have the advantage of the southern pro- vinces. One of the king's instructions to our governors, recommends the investigation of means for the conversion of negroes and Indians. An attention to both, especially the latter, has been too little regarded. If the missionaries of the English Society for propagating the gospel, instead of being seated in opulent christianized towns, had been sent out to preach among the savages, unspeakable political advantages would have flowed from such a salutary mea- sure. Dr. Douglass, a sensible, immethodical writer, often
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incorrect, expects too much :* besides, he treats the missiona- ries with rudeness and contempt, and lashes their indolence with unmerciful acrimony.
CHAPTER V.
THE POLITICAL STATE.
THIS colony, as a part of the king's dominions, is subject to the control of the British parliament, but its more imme- diate government is vested in a governor, council, and general assembly.
The governors in chief, who are always appointed by the king's commission under the great seal of Great Britain, enjoy a vast plenitude of power, as may be seen in their pa- tents, which are nearly the same. The following is a copy of that to the late sir Danvers Osborn.
GEORGE II. by the grace of God, of Great Britain, France and Ireland, king, defender of the faith, and so forth. To our trusty and well beloved sir Danvers Osborn baronet, greet- ing, whereas we did by our letters patent under our great seal of Great-Britain, bearing date at Westminster, the third day of July, in the fifteenth year of our reign, constitute and appoint the honourable George Clinton esq. captain general and governor in chief in and over our province of New-York, and the territories depending thereon in America, for and during our will and pleasure, as by the said recited letters patent, (relation being thereunto had) may more fully and at large appear. Now know you that we have revoked and
* " Our young missionaries may procure a perpetual alliance, and commercial advantages with the Indians, which the Roman catholic clergy cannot do, because they are forbid to marry. I mean our missionaries may intermarry with the daughters of the Sachems,'and other considerable Indians, and their progeny will forever be a certain cement between us and the Indians." Dougl. Sum. &c. Vol. II. p. 138. Boston Edit. 1753.
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determined, and by these presents do revoke and determine, the said recited letters patent, and every clause, article, and thing therein contained. And further know you, that we reposing especial trust and confidence in the prudence, courage, and loyalty, of you, the said sir Danvers Osborn, of our especial grace, certain knowledge, and mere motion, have thought fit to constitute, and appoint you, the said sir Danvers Osborn, to be our captain general, and governor in chief in and over our province of New-York, and the territo- ries depending thereon in America, and we do hereby require, and command you to do and execute all things in due man- ner, that shall belong unto your said command and the trust we have reposed in you, according to the several powers and directions granted or appointed you by this present com- mission, and the instructions herewith given you, or by such further powers, instructions and authorities, as shall at any time hereafter be granted or appointed you, under our signet and sign manual, or by our order in our privy council, and according to such reasonable laws and statutes as now are in force, or hereafter shall be made and agreed upon by you, with the advice and consent of our council, and the assembly of our said province under your government, in such manner and form as is hereafter expressed, and our will and pleasure is that you, the said sir Danvers Osborn, after the publica- tion of these our letters patent, do in the first place, take the oaths appointed to be taken by an act passed in the first - year of our late royal father's reign, entitled an act for the further security of his majesty's person and government, and the succession of the crown in the heirs of the late princess Sophia, being protestants, and for extinguishing the hopes of the pretended prince of Wales, and his open and secret abettors, as also that you make and subscribe the declaration mentioned in an act of parliament, made in the twenty-fifth year of the reign of king Charles II. intituled. an act for preventing dangers which may happen from popish recusants, and likewise that you take the usual oath for the due execution of the office and trust of our captain
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general, and governor in chief in and over our said province of New-York, and the territories depending thereon, for the due and impartial administration of justice, and further that you take the oath required to be taken by governors of plantations, to do their utmost that the several laws relating · to trade and the plantations be observed, which said oaths and declaration our council in our said province, or any three of the members thereof, have hereby full power and authority and are required to tender and administer unto you and in your absence to our lieutenant-governor if there be any upon the place, all which being duly performed you shall administer unto each of the members of our said council as also to our lieutenant-governor if there be any upon the place the oaths mentioned in the said act entituled an act for the further security of his majesty's person and government, and the succession of the crown in the heirs of the late princess Sophia, being protestants, and for extin- guishing the hopes of the pretended prince of Wales and his open and secret abettors, as also to cause them to make and subscribe the aforementioned declaration and to administer to them the oath for the due execution of their places and trusts. And we do hereby give and grant unto you full power and authority to suspend any of the members of our said council from sitting voting and assisting therein, if you shall find just cause for so doing, and if there shall be any lieutenant-governor him likewise to suspend from the execu- tion of his command, and to appoint another in his stead until our pleasure be known, and if it shall at any time happen that by the death departure out of our said province or suspension of any of our said councillors or otherwise there shall be a vacancy in our said council (any three whereof we do hereby appoint to be a quorum) our will and pleasure is that you signify the same unto us by the first opportunity, that we may under our signet and sign manual constitute and appoint others in their stead. But that our affairs may not suffer at that distance for want of a due number of council- lors if ever it should happen that there be less than seven
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of them residing in our said province we do hereby give and grant unto you the said sir Danvers Osborn full power and authority to choose as many persons out of the principal freeholders inhabitants thereof as will make up the full number of our said council to be seven and no more, which persons so chosen and appointed by you shall be to all intents and purposes councillors in our said province until either they shall be confirmed by us or that by the nomina- tion of others by us under our sign manual and signet our said council shall have seven or more persons in it. And we do hereby give and grant unto you full power and authority with the advice and consent of our said council from time to time as need shall require to summon and call general assemblies of the said freeholders and planters within your government according to the usage of our province of New-York. And our will and pleasure is that the persons thereupon duly elected by the major part of the freeholders of the respective counties and places and so returned shall before their sitting take the oaths mentioned in the said act intitled an act for the further security of his majesty's person and government and the succession of the crown in the heirs of the late princess Sophia being protes- tants and for extinguishing the hopes of the pretended prince of Wales and his open and secret abettors as also make and subscribe the aforementioned declaration (which oaths and declarations you shall commissionate fit persons under our seal of New-York to tender and administer unto them) and until the same shall be so taken and subscribed no person shall be capable of sitting though elected. And we do hereby declare that the persons so elected and qualified shall be called and deemed the general assembly of that our province and the territories depending thereon. And, you the said sir Danvers Osborn by and with the consent of our said council and assembly or the major part of them respectively shall have full power and authority to make constitute and ordain laws statutes and ordinances for the public peace welfare and good government of our VOL. I .- 45
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said province and of the people and inhabitants thereof and such others as shall resort thereto and for the benefit of us our heirs and successors, which said laws statutes and ordinances are not to be repugnant but as near as may be agreeable to the laws and statutes of this our kingdom of Great Britain, provided that all such laws statutes and ordinances of what nature or duration soever, be within three months or sooner after the making thereof transmitted unto us under our seal of New-York for our approbation or disallowance of the same as also duplicates thereof by the next conveyance and in case any or all of the said laws statutes and ordinances being not before confirmed by us shall at any time be disallowed and not approved and so signified by us our heirs or successors under our or their sign manual and signet or by order of our or their privy council unto you the said sir Danvers Osborn or to the commander-in-chief of our said province for the time being then such and so many of the said laws statutes and ordi- nances as shall be so disallowed and not approved shall from thenceforth cease determine and become utterly void and of none effect any thing to the contrary thereof notwithstanding. And to the end that nothing may be passed or done by our said council or assembly to the prejudice of us our heirs or successors we will and ordain that you the said sir Danvers Osborn shall have and enjoy a negative voice in the making and passing of all laws statutes and ordinances as aforesaid, and you shall and may likewise from time to time as you shall judge it necessary adjourn prorogue and dissolve all general assemblies as aforesaid. And our further will and pleasure is that you shall and may use and keep the public seal of our said province of New-York for sealing all things whatsoever that pass the great seal of our said province under your government. And we do further give and grant unto you the said sir Danvers Osborn full power and authority from time to time and at any time hereafter by yourself or by any other to be authorized by you in that behalf to administer and give the aforementioned oaths to
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all and every such person and persons as you shall think fit who shall at any time or times pass into our said province or shall be resident or abiding there. And we do further by these presents give and grant unto you the said sir Danvers Osborn full power and authority with the advice and con- sent of our said council to erect constitute and establish such and so many courts of judicature and public justice within our said province under your government as you and they shall think fit and necessary for the hearing and determining of all causes as well criminal as civil according to law and equity, and for awarding execution thereupon with all reasonable and necessary powers authorities fees and privileges belonging thereunto as also to appoint and commis- sionate fit persons in the several parts of your government to administer the oaths mentioned in the aforesaid act intitled an act for the further security of his majesty's person and government and the succession of the crown in the heirs of the late princess Sophia being protestants and for extinguish- ing the hopes of the pretended prince of Wales and his open and secret abettors as also to tender and administer the aforesaid declaration unto such persons belonging to the said courts as shall be obliged to take the same. And we do hereby authorize and impower you to constitute and appoint judges and in cases requisite commissioners of oyer and terminer justices of the peace and other necessary officers and ministers in our said province for the better adminis- tration of justice and putting the laws in execution, and to administer or cause to be administered unto them such oath or oaths as are usually given for the due execution and performance of offices and places and for the clearing of truth in judicial causes. And we do hereby give and grant unto you full power and authority where you shall see cause or shall judge any offender or offenders in criminal matters or for any fines or forfeitures due unto us, fit objects of our mercy, to pardon all such offenders and to remit all such offences fines and forfeitures (treason and wilful murder only excepted) in which cases you shall likewise
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have power upon extraordinary occasions to grant reprieves to the offenders until and to the intent our royal pleasure may be known therein.
And we do by these presents authorize and impower you to collate any person or persons, to any churches, chapels, or other ecclesiastical benefices, within our said province and territories aforesaid as often as any of them shall happen to ' be void. And we do hereby give and grant unto you, the said sir Danvers Osborn, by yourself, or by your captains and commanders, by you to be authorized, full power and authority to levy, arm, muster, command, and employ, all persons whatsoever residing within our said province of New-York, and other the territories under your government, and, as occasion shall serve, to march from one place to another, or to embark them for the resisting and withstand- ing of all enemies, pirates and rebels, both at sea and land, and to transport such forces as any of our plantations in America, if necessity shall require, for the defence of the same against the invasions or attempts of any of our enemies, and such enemies, pirates and rebels, if there shall be occa- sion to pursue and prosecute, in or out of the limits of our said province and plantations, or any of them, and if it shall so please God, them to vanquish, apprehend and take, and being taken, either according to law to put to death, or keep and preserve alive at your discretion, and to execute martial law in time of invasion, or other times when by law it may be executed, and to do and execute, all, and every other thing and things, which to our captain-general, and go- vernor-in-chief, doth, or ought of right to belong. And we do hereby give, and grant unto you, full power and authority, by and with the advice and consent of our said council, to erect, raise, and build, in our said province of New-York, and the territories depending thereon, such, and so many forts and platforms, castles, cities, boroughs, towns and forti- fications, as you by the advice aforesaid shall judge necessary, and the same, or any of them, to fortify and furnish with ordnance, ammunition, and all sorts of arms,
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fit and necessary for the security and defence of our said province, and by the advice aforesaid, the same again, or any of them to demolish or dismantle as may be most con- venient. And forasmuch as divers mutinies and disorders may happen by persons shipped and employed at sea during the time of war, and to the end that such as shall be shipped and employed at sea during the time of war may be better governed and ordered, we do hereby give, and grant unto you, the said sir Danvers Osborn, full power and authority to constitute and appoint captains, lieutenants, masters of ships, and other commanders and officers and to grant to such captains, lieutenants, masters of ships and other commanders and officers commissions to execute the law martial during the time of war, according to the direc- tions of two acts, the one passed in the thirteenth year of the reign of king Charles the second, entituled an act for the establishing articles and orders for the regulating and better government of his majesty's navies ships of war and forces by sea, and the other passed in the eighteenth year of our reign, entituled an act for the further regulating and better government of his majesty's navies ships of war and forces by sea, and for regulating proceedings upon courts martial in the sea service, and to use such proceed- ings, authorities, punishments, corrections, and executions,' upon any offender, or offenders, who shall be mutinous, sedi- tious, disorderly, or any way unruly, either at sea, or during the time of their abode or residence in any of the ports, harbours, or bays of our said province and territories, as the case shall be found to require according to the martial law, and the said direction during the time of war as aforesaid, provided that nothing herein contained shall be construed to the enabling you or any by your authority to hold plea or have any jurisdiction of any offences, cause, matter, or thing, committed or done upon the high sea, or within any of the havens, rivers, or creeks, of our said province and territories under your government, by any captain, com- mander, lieutenant, master, officer, seaman, soldier, or other
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person whatsoever, who shall be in our actual service and pay in or on board any of our ships of war or other vessels acting by immediate commission or warrant from our com- missioners for executing the office of our high admiral, or from our high admiral of Great Britain, for the time being under the seal of our admiralty, but that such captain, com- mander, lieutenant, master, officer, seaman, soldier, or other person so offending, shall be left to be proceeded against and tried as their offences shall require, either by commission under our great seal of Great Britain as the statute of the twenty-eighth of Henry the eighth directs, or by commission from our said commissioners for executing the office of our high admiral, or from our high admiral of Great Britain for the time being according to the aforementioned acts. Pro- vided nevertheless, that all disorders and misdemeanors committed on shore by any captain, commander, lieutenant, master, officer, seaman, soldier, or other person whatsoever belonging to any of our ships of war, or other vessels acting by immediate commission or warrant from our said commis- sioners for executing the office of our high admiral, or from our high admiral of Great Britain for the time being under the seal of our admiralty, may be tried and punished accord- ing to the laws of the place where any such disorders, offences, and misdemeanors shall be committed on shore, notwithstanding such offenders be in our actual service, and born in our pay, on board any such our ships of war, or other vessels acting by immediate commission or warrant from our said commissioners for executing the office of our high admiral, or from our high admiral of Great Britain, for the time being as aforesaid so as he shall not receive any pro- tection for the avoiding of justice for such offences committed 1 on shore from any pretence of his being employed in our · service at sea.
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