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 26
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And our further will and pleasure is that all public monies raised, or which shall be raised by any act, to be hereafter - made within our said province, and other the territories depending thereon, be issued out by warrant from you, by
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and with the advice and consent of our council, and disposed of by you, for the support of the government, and not other- wise. And we do hereby likewise give and grant unto you full power and authority, by and with the advice and con- sent of our said council, to settle and agree with the inha- bitants of our province and territories aforesaid, for such lands, tenements and hereditaments, as now are, or hereafter shall be in our power to dispose of, and them to grant to any person or persons upon such terms, and under such moderate quit-rents, services and acknowledgments to be thereupon reserved unto us as you, by and with the advice aforesaid, shall think fit, which said grants are to pass and be sealed by our seal of New-York, and being entered upon record by such officer or officers as are, or shall be appointed thereunto, shall be good and effectual in the law against us, our heirs and successors. And we do hereby give you the said Sir Danvers Osborn full power to order and appoint fairs, marts and markets, as also such and so many ports, harbours, bays, havens and other places for the convenience and security of shipping, and for the better loading and unloading of goods and merchandises as by you, with the advice and consent of our said council, shall be thought fit and necessary. And we do hereby require and command all officers and ministers, civil and military, and all other inhabitants of our said pro- vince, and territories depending thereon, to be obedient, aiding and assisting unto you, the said sir Danvers Osborn, in the execution of this our commission, and the powers and authorities herein contained, and in case of your death or absence out of our said province, and territories depending thereon, to be obedient aiding and assisting unto such person as shall be appointed by us to be our lieutenant-governor, or commander-in-chief of our said province, to whom we do, therefore, by these presents give and grant all and singular the powers and authorities herein granted, to be by him executed and enjoyed during our pleasure or until your . arrival within our said province and territories, and if upon your death or absence out of our said province and territories
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depending thereon, there be no person upon the place com- missionated or appointed by us to be our lieutenant-governor or commander-in-chief of our said province, our will and pleasure is, that the eldest counsellor, whose name is first placed in our said instructions to you, and who shall at the time of your death or absence be residing within our said province of New-York, shall take upon him the administra- tion of the government and execute our said commission and instructions, and the several powers and authorities therein contained, in the same manner and to all intents and pur- poses, as other our governor and commander-in-chief of our said province, should or ought to do in case of your absence, until your return, or in all cases until our further pleasure be known therein, and we do hereby declare, ordain and appoint, that you, the said sir Danvers Osborn, shall and may hold, execute and enjoy the office and place of our captain general and governor-in-chief, in and over our province of New- York, and the territories depending thereon, together with all and singular the powers and authorities hereby granted unto you for and during our will and pleasure. And whereas there are divers colonies adjoining to our province of New- York for the defence and security whereof it is requisite that due care be taken in time of war we have therefore thought it necessary for our service and for the better protection and security of our subjects inhabiting those parts to constitute and appoint and we do by these presents constitute and appoint you the said sir Danvers Osborn to be our captain general and commander-in-chief of the militia and of all the forces by sea and land within our colony of Connecticut and of all our forts and places of strength within the same and for the better ordering governing and ruling our said militia and all our forces forts and places of strength within our said colony of Connecticut we do hereby give and grant unto you the said sir Danvers Osborn and in your absence to our commander-in-chief of our province of New-York all and every the like powers as in these presents are before granted and recited for the ruling governing and ordering
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our militia and all our forces forts and places of strength. within our province of New-York to be exercised by you the said Sir Danvers Osborn and in your absence from our terri- tories and dominion of New-York by our commander-in-chief of our province of New-York within our said colony of Con- necticut for and during our pleasure. In witness whereof we have caused these our letters to be made patent witness ourself at Westminster the first day of August in the twenty- seventh year of our reign.
By writ of privy seal, YORKE AND YORKE.
The instructions, received with the commission, are ex- planatory of the patent, and regulate the governor's conduct on almost every common contingency .*
The salary generally granted to the governor by the instructions is £1200 sterling out of the revenue here ; but that being an insufficient fund, the assembly in lieu of it, give him annually £1560 currency. The perquisites perhaps amount to as much more.
This office was formerly very lucrative, but becomes daily less considerable, because almost all the valuable tracts of land are already taken up.
The council, when full, consists of twelve members ap- pointed by the King's mandamus and sign manual. All their privileges and powers are contained in the instructions. They are a privy council to the governor, in acts of civil government ; and take the same oath administered to the King's council in England. The tenure of their places is extremely precarious, and yet their influence upon the pub- lic measures very considerable. In the grant of all patents the governor is bound to consult them, and regularly they cannot pass the seal without their advice.
* The instructions are in number above a hundred, and never recorded. They are changeable at the King's pleasure, but rarely undergo any very con- siderable alteration.
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They enjoy a legislative power, as the lords do in parlia- ment ; and exercise also judicial authority upon writs of error and appeals. They are conveyed by the governor, and he is always present when they sit as a court or privy council, which is ordinarily at the fort. In their legislative capacity they meet without the governor, and always at the city-hall. They sit according to their seniority, and the eldest member present is speaker of their house. In a committee the chairman has no voice. They cannot vote by proxy, but have the privilege of entering their dissent, and the reasons at large, on their minutes. Their proceedings are very formal, and in many respects they imitate the example of the lords. Their messages to the assembly are carried by one of their own members, and the house always rises at his entrance and receives them standing.
The council never publish their legislative minutes, but the assembly always print their own votes, nor do either of these houses permit strangers to be present at their conventions.
A counsellor's title is the honourable. They serve his majesty without salaries. The business of the privy council board is of late very much increased, and never had so great weight in the colony as at present, which is much owing to the king's calling lawyers of reputation to the assistance of his governors. The present members are the honourable
CADWALLADER COLDEN, ARCHIBALD KENNEDY, JAMES DE LANCEY,* lieutenant-governor, DANIEL HORSMANDEN, GEORGE CLARKE, jun. JOSEPH MURRAY, JOHN RUTHERFORD, EDWARD HOLLAND, sir WILLIAM JOHNSON, bart., JOHN CHAMBERS, WILLIAM SMITH.
The business in council daily encreases, and is now become very burdensome, being entirely transacted by a few members. Mr. Colden resides in the country ; Mr. Clarke in England; Mr. Rutherford, being an officer, moves
· * The office of lieutenant-governor requires no service, except on the death or in the absence of a governor-in-chief. It gives no rank in council, nor is there any salary annexed to it.
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with the army, and sir William Johnson has his residence. in the western part of the county of Albany.
The general assembly consists of twenty-seven represen- tatives chosen by the people, in pursuance of a writ. of summons issued by the governor.
At the day appointed for their appearance, such as are elected convene themselves at the assembly-chamber, in the city of New-York; and, by the clerk of the house, inform the governor of their meeting. If they are above thirteen in number, some persons (generally the judges of the supreme court) are sent to the assembly chamber empowered by a commission to take their oaths and subscriptions. They are then called before his excellency, who recommends their choice of a speaker. For that purpose they again retire, and conduct the person they elect into the chair, which is seated at the upper end of a long table. After that he is presented to his excellency, in the council chamber ; and upon his approbation of their choice, which is of course, the speaker addresses himself to the governor, and in behalf of the house prays, " that their words and actions may have a favourable construction, that the members may have free access to him, and they and their servants be privileged with a freedom from arrests." The governor, after promising these things on his part, reads his speech to both houses ; and, at the request of the speaker, delivers a copy for the use of the assembly.
I need not enlarge upon the customs of the general assembly, for they take the practice of the British House of Commons for their model, and vary from them in but very few instances. Money bills are not returned to them by the council board, as the lords do to the commons; and yet the reasons for this practice are much stronger here than at home. . When the governor passes the bill sent up to him, both houses are present in the council chamber. It is then customary for him to ask the advice of his council with respect to every bill, and he signs them at the foot after these words, " I assent to this bill, enacting the same, and
-
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order it to be enrolled." After that the acts are published in the open street, near the City-Hall ; his excellency and the two houses being present.
The daily wages of the representatives, as regulated by sundry acts of assembly, are annexed to the following list of the present members of the house.
For the city and county of New-York-Paul Richard, Henry Cruger, William Walton, John Watts, esqrs .; each 6s. per diem.
City and county of Albany-Peter Winne, Peter Douw, esqrs. ; 10s. per diem.
West-chester county-John Thomas, Frederick Philipse, esqrs. ; 6s. per diem.
Suffolk county-Eleazer Miller, William Nicoll, esqrs. ; 9s. per diem.
Queen's county-David Jones, Thomas Cornel, esqrs. ; 6s. per diem.
King's county-Johannes Lott, Dominicus Vanderveer, esqrs. ; 6s. per diem.
Ulster county-Johannes Jansen, Moses De Pew, jun. esqrs. ; 6s. per diem.
Richmond county-William Walton, Benjamin Seamen, esqrs .; 6s. per diem.
Dutchess county-Henry Beekman, Henry Filkin, esqrs. ; 6s. per diem.
Orange county-Theodorus Snediker, Samuel Gale, esqrs. ; 6s. per diem.
Borough of West-chester-Peter De Lancey, esq .; 10s. per diem.
Township of Schenectady .- Jacobus Mynderse, esq. ; 10s. per diem.
Manor of Renslaerwyck-John B. V. Renslaer, esq. ; 10s. per diem.
Manor of Livingston-Robert Livingston, Jun. esq. ; 10s. per diem.
Manor of Courtlandt-Philip Ver Planck, esq. ; 6s. per diem.
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The continuance of our assemblies was unlimited, till the political struggles, which took rise in Mr. Cosby's administra- tion, forced Mr. Clarke, who succeeded him, to pass the act restricting them to three years : but this was repealed by the king, and a septennial law enacted soon after the arrival of governor Clinton, which is still in full force.
No colony upon the continent has formerly suffered more than ours, in the opinion of the king's ministers. This has been owing to the ill impressions made by our governors, who are scarce ever disengaged from disputes with the lower house. Our representatives, agreeably to the general sense of their constituents, are tenacious in their opinion, that the inhabitants of this colony are entitled to all the pri- vileges of Englishmen ; that they have a right to participate in the legislative power, and that the session of assemblies here, is wisely substituted instead of a representation in par- liament, which, all things considered, would, at this remote distance, be extremely inconvenient and dangerous. The governors, on the other hand, in general, entertain political sentiments of a quite different nature. All the immunities we enjoy, according to them, not only flow from, but abso- lutely depend upon, the mere grace and will of the crown .* It is easy to conceive, that contentions must naturally attend such a contradiction of sentiments. Most of our disputes, however, relate to the support of government. Before lord Cornbury's embezzlements, the revenue was established for
*" We are no more than a little corporation .- I would advise these gentlemen (assemblies) for the future, to drop those parliamentary airs and style about liberty and property, and keep within their sphere, and make the best use they can of his Majesty's instructions and commission ; because it would be high trea- son to sit and act without it .- This is our charter. If we abuse or make a wicked use of his majesty's favours, we are, of them, but tenants at will : we only hold them during pleasure and good behaviour." -- These are the accurate and bright thoughts of the gentleman who published a pamphlet, entitled, "An essay on the government of the colonies," in 1752. Sir William Jones, attorney-gene- ral to James II. was of a very different opinion. For he told the king, " that he could no more grant a commission to levy money on his subjects in the planta- tions, without their consent by an assembly, than they could discharge them- selves from their allegiance." Life of sir William Phips, p. 23.
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a long period, but afterwards reduced to a few years. The violent measures in Mr. Cosby's time, led the assembly to the scheme of an annual provision. These are the words of that much famed address of the house, to lieutenant-gover- nor Clarke, on the 8th of September, 1737, previous to the change.
" The true causes of the deficiency of the revenue, we believe, are too well known to your honour, to make it neces- sary for us to say much on that head. Had the conspicuous loyalty of the inhabitants of this province met with a suita- ble treatment in return : it is not unlikely, but we should now be weak enough to act like others before us, in being lavish beyond our abilities, and raising sums unnecessary to be given ; and continued the donation, like them, for a longer time than what was convenient for the safety of the inhabi- tants : but experience has shown the imprudence of such a conduct; and the miserable condition to which the province is reduced, renders the raising of large sums very difficult if not impracticable. We therefore beg leave to be plain with your honour, and hope you will not take it amiss, when we tell you, that you are not to expect, that we either will raise sums unfit to be raised, or put what we shall raise into the power of a governor to misapply, if we can prevent it ; nor shall we make up any other deficiencies, than what we con- ceive are fit and just to be paid ; or continue what support or revenue we shall raise, for any longer time than one year. Nor do we think it convenient to do even that, until such laws are passed as we conceive necessary for the safety of the inhabitants of this colony, who have reposed a trust in us for that only purpose ; and which we are sure you will think it reasonable we should act agreeable to, and by the grace of God we will endeavour not to deceive them."
The sentiments of this address still prevail among the peo- ple, and therefore the success of the present solicitations, for a permanent, indefinite support, will probably be in vain.
The matter has been often litigated with great fervency on both sides, and the example of the British parliament
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urged as a precedent for our imitation. To this it is answered that the particular state of this province differs so widely from that of their mother country, that we ought not in this respect to follow the custom of the commons. Our constitu- tion, as some observe, is so imperfect in numberless instan- ces, that the rights of the people lie, even now, at the mere mercy of their governors ; and granting a perpetual support, it is thought, would be in reality little less than the loss of every thing dear to them.
It must be confessed that many plausible arguments may be assigned, in support of the jealousy of the house. A go- vernor has numberless opportunities, not proper to be men- tioned, for invading the rights of the people, and insuperable difficulties would necessarily attend all the means of redress.
By gradual advances, at seasonable junctures, we might have introduced such amendments as would at this day have established a sound and well fortified political frame ; but through our utter neglect of education, the ancient as- semblies consisted of plain, illiterate, husbandmen, whose views seldom extended farther than to the regulation of high- ways, the destruction of wolves, wild cats, and foxes, and the advancement of the other little interests of the particu- lar counties which they were chosen to represent.
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CHAPTER VI.
OF OUR LAWS AND COURTS.
The State of our laws opens a door to much controversy. The uncertainty with respect to them renders property pre- carious, and greatly exposes us to the arbitrary decisions of bad judges. The common law of England is generally received, together with such statutes as were enacted before we had a legislature of our own; but our courts exercise a sovereign authority, in determining what parts of the com- mon and statute law ought to be extended ; for it must be
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admitted, that the difference of circumstances necessarily requires us, in some cases, to reject the determinations of both. In many instances they have also extended, as I have else- where observed, even acts of parliament, passed since we have had a distinct legislation, which is adding greatly to our confusion. The practice of our courts is not less uncer- tain than the law. Some of the English rules are adopted and others rejected. Two things therefore seem to be abso- lutely necessary for the public security.
First, The passing an act for settling the extent of the English laws ; and,
Secondly, That the courts ordain a general set of rules for the regulation of the practice.
To give a particular account of our laws civil and criminal, cannot be expected in this work. All lands are held of the crown by socage tenure, as those of East-Greenwich, at home, in the county of Kent ; and the manner of obtaining a. title to such as are vacant, or in the posession of the Indians, is this :
Formerly the custom was to apply to the governor in coun- cil, for a license to purchase lands of the Natives in his Ma- jesty's name. A deed was then privately obtained from the Indian proprietors to the king, and annexed to a second peti- tion to the governor, for a warrant to the surveyor-general, to make a survey of the quantity purchased. Another war- rant, upon the return of the survey, was then issued to the attorney-general, to prepare a draught of the patent ; which being transmitted to the secretary's office, was then engrossed upon parchment, and the great seal affixed to it by the governor.
In these surveys and deeds more lands were often included than the Indians intended to sell ; and these frauds being frequently complained of, an order was made by the gover- nor and council, in 1736, that thenceforth no Indian deed should be taken, until the land proposed to be granted was actually surveyed by the surveyor-general, or one of his deputies, in the presence of the Indian proprietors : that the
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bounds of the tract should be then entered in the deed, and a certificate endorsed, that they are agreeable to the survey, and that he saw the consideration money or goods, bona fide delivered to the venders. The patenting of lands has long been, and still continues to be, very expensive.
Our law judicatories are numerous ; I begin with the lowest.
OF THE JUSTICES' COURT.
Justices of the peace are appointed by commission front the governors, who, to serve their purposes in elections, some- times grant, as it is called, the administration to particular favorites in each county, which is the nomination of officers civil and military ; and by these means, the justices have been astonishingly multiplied. There are instances of some who can neither write nor read .* These Genii, besides their ordinary powers, are by acts of assembly enabled to hold courts for the determination of 'small causes of five pounds and under; but the parties are privileged, if they choose it, with a jury. The proceedings are in a summary way, and the conduct of the justices has given just cause to innumerable complaints. The justices have also a juris- diction with respect to crimes under the degree of grand larceny; for any three of them (one being of the quorum) may try the criminal, without a jury, and inflict punishments not extending to life or limb.
THE SESSIONS AND COURT OF COMMON PLEAS.
The court of Common Pleas takes cognizance of all causes where the matter in demand is in value above five pounds. It is established by an ordinance of the governor in council. The judges are ordinarily three, and hold their offices during pleasure. Through the infancy of the country, few, if any of
* Lord Bacon's observation, that there are many who count it a credit to be burdened with the office of a justice of the peace, is very applicable to us. Bacon's Works, fol. vol. II. p. 151 .-- The statute of 38 Hen. VIII, limited the number of justices to eight in a county.
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them, are acquainted with the law. The practice of these courts is similar to that of the common-bench at Westmin- ster. They have each a clerk, commissioned by the governor, who issues their writs, enters their minutes, and keeps the records of the county. They are held twice every year. These judges, together with some of the justices, hold, at the same time, a court of general sessions of the peace.
THE SUPREME COURT.
The jurisdiction of this court extends through the whole province, and its powers are very great. For it takes cog- nizance of all causes civil and criminal, as fully as the King's Bench and Common-Pleas at Westminster. In civil contro- versies, the value of the sum demanded must exceed twenty pounds. This court has four terms in a year, and always sits at New-York .* The judges, for many years past, have been but three. The chief justice has ten shillings as a per- quisite, upon the first motion in every cause, together with an annual allowance of £300. The second and third jus- tices have also yearly appointments, too inconsiderable to be worth mentioning. They hold their offices by separate commissions under the great seal of the province, which were formerly during pleasure, but of late quam diu se bene gesserint. +
The Supreme Court was at first established by several laws of the province ; but the terms were, afterwards, directed by an ordinance of the governor and council, which is alterable at pleasure.
Whether this court has a right to determine causes in a course of equity, was a question much litigated during the
* The terms commence on the third Tuesdays in January, April, and October, and on the last in July. The first and the last continue five days, and the two other terms ten.
+ Prosecutions by information are often commenced in the supreme court by order of the governor and council, and criminals sometimes committed by their warrants ; for which reason some are of opinion, that the judges ought not to be members of that board, which is frequently the case.
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troubles in the several administrations of Mr. Cosby and Mr. Clarke. Colonel Morris, afterwards governor of New-Jersey, sat then as chief justice upon the bench, and delivered a long, argumentative, opinion in the negative .* The people were, in general, on that side, and the exchequer court bell scarce ever rung, but the city was all in confusion. Petitions against the court, from several parts of the province, came up to the assembly, who desired to hear council ; and accord- ingly Mr. Smith and Mr. Murray, delivered their opinions at their request, both which were afterwards printed by their order. The former, who spoke first, urged numerous au- thorities, to prove that no court of equity could be legally established except by prescription or an act of the legislature, and concluded with these words :- ",'Tis with the greatest submission that I tender my opinion upon these points .- I have said nothing with a design to offend any man, nor have I omitted saying any thing, that I thought might tend to the public good. Liberavi animam meam. I have endea- voured to discharge the trust, and support the character, with which this house has honoured me. You have my sincere and real sentiments. If I have erred in any thing, it has been unwillingly. I am heartily a friend to this colony, and earnestly wish its prosperity. I have no interest in the points in question, but what are common to all the freemen of this province. I profess the greatest veneration for the laws of my country, and am glad of every opportunity to do them public honour. They place our liberties upon the firmest basis, and put our properties under the surest protec- tion. I rejoice in the security that we have of a long enjoy- ment of them, by the settlement of the succession in the house of Hanover .- ' Tis the excellency of our constitution, and the glory of our princes, that they are sovereign over
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