USA > New York > The history of the late province of New-York, from its discovery, to the appointment of Governor Colden, in 1762. Vol. II > Part 16
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. "Vide Mr. Charles' letters to Mr. Jones, of the 7th and 8th of March, 8th of April, and 27th of June, 1754.
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Nor was the prospect of internal harmony so encouraging to Mr. Delancey as at the commence- ment of his administration. Mr. Clinton had a few friends who favoured him, not so much for the sake of his cause, as from a jealousy that the popularity and ambition of his adversary endangered personal safety, or obliged to an humiliating insignificance and a base state of cringing submission. His ac- cession to the command induced to that partiality which was necessary to reward the services of his tools ; and the want of means to gratify the expec- tations of others, increased the number of the discontented. His incaution respecting the institu- tion of the college, enlisted many others on that side ; and the oil of religious zeal being poured upon the coals, kindled a flame, neglected at the beginning, but in its consequences destructive of his popularity, and unfriendly to his repose all the rest of his life.
When divers sums had been raised by public lotteries for founding a college, they were, by an act of the legislature, in November, 1751, delivered over to the custody of a set of trustees, consisting of the eldest councillors, the speaker, the judges of the supreme court, the mayor of the metropolis, the province treasurer, James Livingston, Benjamin Nicoll, and William Livingston, esquires, whose trust was to take care of the principal and interest, and all future additions, until disposed of by the legislature. They were afterwards empowered to draw five hundred pounds a year more, for seven years ensuing, out of the treasury, into which it had flowed as a duty of excise ; and then they were to
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begin a course of instruction, under masters of their electing for their new seminary.
Soon after the first of these acts, the wardens and vestry of Trinity church, by Mr. Barclay, their rector, offered a part of the estate of their opulent corporation in the suburbs of the capital, for the erection and convenience of the college : this was so early as the 8th of April, 1752; and in autumn, 1753, Dr. Johnson, the episcopal minister of Stratford, in Connecticut, was invited to take the president's chair, and Mr. Whittlesey, a presbyterian minister of New-Haven, to serve under him, as second master of the new institution.
The churches of other denominations soon took the alarm, suspecting that the episcopal persuasion intended to engross the government of the college ; and the press began daily to represent the impolicy and injustice of devoting funds raised by all sects for a common use, to the dominion of one.
They were no longer in doubt than till the spring of this year, when, on the 16th of May, Mr. William Livingston discovered that his fellow-trustees were bent upon applying to the lieutenant-governor for a charter under the great seal. The plan of its government being exhibited in a draft then laid before the board of trustees, that gentleman pro- tested against their proceeding without the authority of the whole legislature, to whom they were re- sponsible for their fidelity ; but the other trustees would not suffer the entry till four days afterwards, on their approving a petition which the lieutenant- governor had consented to receive ; the design being avowed, of excluding every man from the president's
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chair who was not in communion with the church of England, and introducing the common prayer-book for the religious exercises of the college.
The lieutenant-governor laid this request before the council for their advice, and the grant passed against the opinions of Mr. Alexander and Mr. Smith, who assigned their reasons in a protest on the council books. Mr. Delancey himself, who either conceived its foundation illiberal, or un- friendly to his popularity, after fruitless endeavours to dissuade the projectors from exacting the fulfil- ment of a promise they had extorted, ordered the seal to be put to the charter with some hesitation, and to the general dissatisfaction of every other religious persuasion in the colony, to whom, in point of numbers, the episcopalians did not constitute the proportion of one-tenth.
It therefore concerned the governor and his party, especially as the inquietude occasioned by the irrup- tion of the French and Indians upon Hosicke and Senkaick above Albany was general, to improve the ensuing session for securing the favour both of the crown and the people ; and the autumn session was therefore no sooner commenced, than two popular bills were introduced-one to restrain prosecutions by information, and another to enlarge the power of justices of the peace, by enabling them to decide in civil causes to the value of five pounds.
While the assembly were pondering how to fulfil their engagement before the late adjournment in August, Mr. Delancey urged them to several popular laws ; supplies for new works at Albany and the frontiers ; the discharge of the demands of public
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creditors, and particularly of that to colonel Johnson, with whom he was reconciled. A few days after- wards, he made further requisitions for purchasing a glebe, and erecting a church for the missionary to the Mohawks: and for the crown, proposed a law, with the specious title of rendering the reco- very of his majesty's quit-rents easier, and " to compel those (says he) who hold large tracts of uncultivated land, to a speedy settlement ;" and, last of all, added a request for bedding to the troops in garrison at Albany.
They proceeded to vote the arrears of salaries with the second sum of one hundred and fifty pounds for his extraordinary expenses at the late Indian treaties ; when he was obliged on the 21st of November, to communicate a disagreeable letter from the lords of trade, which totally disconcerted their design of passing a bill for these debts, and compelled Mr. Delancey to talk a language which, from the mouth of Dr. Colden, would doubtless have produced a vote that he was an enemy to the colony .*
Their lordships approved the council's negative to the late application bill, and observed that an annual revenue may be employed to the purposes of wresting from the crown the nomination of all officers whose salaries depend upon annual appoint- ment, and of disappointing all such services of
* The speaker's letters of the 14th November, and 17th December, show that there was a design of paying the debts and providing for the year, the instruc- tion notwithstanding. In the first, he excites his hopes of the discharge of his demands, and a future supply; and in the last, informs him that the bill for paying the public creditors, as well as that for the annual support, went up, but were stopped by the council, contrary to his expectations.
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government as may be necessary even to the very existence of the colony ; declared they were at a loss to conceive what other purposes this point, so strenuously insisted on, of granting the revenue only from year to year, can serve; for if it is imagined that the method of establishing a revenue by annual grants, is the only one by which the province can be secured against misapplications on the part of the governor, or other officers of the crown, it will be found to be a mistake; that it is strict appropriation which produces such security, and not the present mode of granting the revenue annually, which of itself is of no effect at all, and if directed to the above purposes, which the assembly themselves would not allow. They inform the governor, that they have no objections to checks and penalties for preventing and punishing misap- plications ; but add, that if the assembly persist, by the means of annual grants, either to attempt arresting from the crown the nomination of offi- cers, or any other executive part of government, on disappointing the most essential services of the province, unless such pretensions are complied with, though they may have succeeded in such attempts, either by the weakness and corruption of governors, or by taking advantage of the necessity of the times ; " yet these attempts are so unconstitutional, so inconsistent with the interests of the mother country, as well as of the crown, and so little tend- ing to the real benefit of the colony itself, that it will be found they flatter themselves in vain, if they imagine they can ever give them a stability and permanency. I hope, therefore, (continued Mr.
,
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Delancey,) you will take these weighty reasons into your most serious consideration, and provide a permanent revenue for the support of government, in such a manner as may put an end to any dispute on that head." But he had it also in charge to inform them, that he could no longer consent to any emissions of paper money as a legal tender, nor to any bill for this species of money, though no tender, without a suspending clause till the king's pleasure could be known ; and he desires the house to con- form to these directions.
If he knew, at that time, of the ill success of their address against Mr. Clinton, his reasons for concealing it are obvious .*
This produced an address, disclaiming all inten- tion to abridge the executive, though they would not recede from the new mode ; and a declaration, that they could not construct forts without a further emission of paper, nor would they consent to that, unless those bills were made a legal tender. They therefore request him to represent the case of the colony to the king; engage to provide for its de- fence, when he is unembarrassed by instructions ; and give him their promise to provide for erecting a fort to the northward of Albany.
The governor, in the reply, professes his satis- faction in their assurances that they mean no en- croachments on his majesty's authority, and gliding tenderly over their answer, only asks whether the annual support will not have the effect apprehended; joins in their testimony that there can be no forts
* See Note K.
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without issuing more bills; informs them of what they well knew, that the late act of parliament against the paper money in the eastern colonies, was made at the instance of the London merchants, injured by depreciations for want of funds to can- cel the emission; subjoins what the assembly should have witnessed, that the value of our bills, by our superior care, was not such as they had been elsewhere nine for one; and, upon the whole, proposed an emission of forty thousand pounds, for fortifications, to be sunk by a tax of five thousand pounds per annum, commencing in 1757, when the present taxes were to cease ; and to such a bill he will consent, if there is a clause inserted to make the paper no valid tender for a debt con- tracted in Great Britain.
It required some courage to venture this hint; for the merchants in the British trade were instantly alarmed with the prospect of ruin, through the scarcity of silver and gold to discharge their immense debts: but their clamors were suddenly appeased by a set of resolves-that laws with suspending clauses, might expose the colony to ruin before the king's pleasure could be known ; that bills not tenderable, would be useless ; and that to make them a tender to some and not to others, would create confusion, and be injurious to commerce.
Unable to pass any bills for raising money, they contented themselves with resolves, engaging for the salaries of the officers; and to put into Mr. Delancey's hands the old allowance of four hundred pounds, for fuel and candles for the independent
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companies, though two of them had been drawn away to Virginia, and the rest to Oswego ; for when captain King arrived in a few days after the session, to take the command of the governor's company, with Mr. Pitzar, the commissionary, they found only a sergeant and eleven privates at New-York, with but three good muskets, and not an ounce of powder in the magazine ; and the two sentinels at the lieu- tenant-governor's door, during the sitting of the congress at Albany, were relieved by others who came from the fort, without firelocks. But though there was now a saving of the chief justice's salary of three hundred pounds a year, and an augmenta- tion of fifty to Mr. Chambers on that account, yet nothing was added to their former vote of one hundred pounds to the third judge, who had deserted the party, and made his peace with Mr. Clinton, and been restored to his office, 28th of July, 1753, on the future tenure of good behaviour, and who was therefore out of the reach of their resentment in any other way than by diminishing his support .*
There was a necessity at this juncture, that the members of the assembly should be vigilant of their interests.
The conduct of the college trustees, and the scheme to give the episcopalians a pre-eminence in the government of the institution, had given umbrage to all the other sectaries, and compelled the house to attend to their clamours. To this end,
* The house had some time before voted Mr. Chambers two hundred pounds for the last year's salary; but after the message on the letter from the lords of trade, but one hundred and fifty pounds, with fifty pounds more on considera- tion of the present burden of the office, without expressing any vacancy in the chief seat of justice.
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soon after their meeting, they ordered the trustees to report their transactions under the act by which they had been appointed ; and the same day, the ministers, elders and deacons of the Low Dutch, an ancient, opulent, and enchartered church, pre- sented a petition, implying that the college ought to be incorporated by an act of the legislature, and insisted that provision might be made in it for a professor of their numerous denomination.
The trustees came up on the first of November, and the contrariety of sentiment amongst them appeared in two separate reports-Mr. William Livingston offering one, and Mr. James Livingston and Mr. Nicoll another. They were no sooner read, than the house became divided upon a motion to enter both of them at large on the journals of the house, which was carried by a considerable majority. The capital then in the hands of the trustees, exclu- sive of the annual revenue of five hundred pounds from the excise, was five thousand four hundred and ninety-seven pounds, fourteen shillings and six- pence. When the reports were considered, the assembly resolved, nem. con., " that they would not consent to any disposition of the moneys raised by way of lottery, for erecting and establishing a col- lege within this colony for the education of youth, or any part thereof, in any other manner whatsoever than by act or acts of the legislature of this colony, hereafter to be passed for that purpose." And Mr. Robert Livingston, who represented the manor of that name, immediately had leave to bring in a bill to establish and incorporate a college, which he introduced that very afternoon.
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The scheme opened by this bill puzzled every branch of the legislature. There was no hope of its passing either the council or the lieutenant- governor, not only from its repugnancy to their own religious attachments, as members of the episcopal church, but because it subverted the establishment they had given it by letters patent in the name of the crown : by the assembly it could not be rejected from their dread of the people, nor passed consist- ently with their party prejudices. In this dilemma, Mr. Walton found them a door of escape, by a motion that the committee to whom it was referred be discharged, the consideration of the bill post- poned to the next session, and in the interim printed for the opinion of their constituents. It was intro- duced with observing, " that the subject was of the utmost consequence to the people they had the honour to represent, with respect both to their civil and religious liberties :" and that the advanced season of the year did not give time to consider all the parts of the bill with that attention its vast importance required .*
This measure increased the jealousies abroad, especially when it was observed that the house afterwards set another lottery on foot ; negatived a motion of Mr. Livingston's, to postpone the second reading of the bill for it to the next meeting, and another for a deposit of the money, till applied by a future law; and carried a third for striking out
* It may be seen at large, with Mr. William Livingston's reasons, in the jour- nals of the assembly. The bill was drafted by Mr. Scott, for instituting a University upon liberal principles, on a provincial endowment, as free as possi- ble from all the contracted aims, prejudices, and partiality of sectarian zeal.
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a clause for enacting that any member, for moving to apply the sum to be raised by it for any other than the use of the college, should be expelled.
Though fully premonished by the agent, that the controversy with New-Jersey would not terminate, unless by the adjudication of a court of commis- sioners constituted by the crown, and urged by memorials and proofs of the distressed condition of the people on the borders; yet, from an obstinate attachment to the opinion that the stations from and to which the dividing line were to be run were clear, or to protract the controversy, an act was now passed to submit it to the king, and a vote entered as a security for a moiety of the expense .* "An act is passed," says the speaker in his letter of the 7th December, "submitting the dispute to his majesty solely, which we know will bring the matter to a speedy issue."
The act to regulate informations for offences prosecuted in England by the clerk of the crown office, was a very popular law, though it much offended the then attorney general,t who had ex- cited the disgust of some merchants of distinction, by lending too easy an ear to trifling complaints and informers of very slight characters.
The English statute of the 4th and 5th William and Mary, cap. xviii, made no invasion upon the rights of the king's attorney general, for it affected only the master of the crown office. But this act,
* His majesty repealed this act, and, by an instruction of the 12th of August, 1755, required a law to provide for the expense of executing a com- mission under the great seal of Great Britain.
t Mr. Kempe, who, with his family, arrived here 2d November, 1752.
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since we had no such officer, was meant to bind the attorney general, whenever he proceeded for such offences as the master might prosecute in England, and was therefore unskilfully drawn, unless it abridged the confidence reposed by law in the attorney general ; and if it did so, the crown was in some measure affected as well as its attorney, whose emoluments, by a law withdrawing confidence in his prudence and integrity, for slight and frivolous applications were greatly abridged ; for, according to the design of this act, no information for misde- meanors prosecutable by the master of the crown office, could be instituted, but at the risk of costs to the defendant unless it was filed by order of the governor and council, or the judges of the supreme court, or where the court shall certify that there was reasonable cause for the prosecution. The security required, is rarely adequate to the charge of the defence. But it is a much more material fault in legislation, to leave it doubtful when Mr. Attorney proceeds as such, or as master of the crown office. It was adjudged by Messrs. Delancey and Hors- manden, October term, 1756, in the case of Gomez and alii ads. Dom. Regis., that the informer, if bound for the costs, is no witness on the trial to prove the assault, &c. upon himself nor his wife. The counsel for the defendants cited Gil. Evidence, 121, 122., Trials per p. 126., 1 Sid. 337., Hard. 331.
Kempe, attorney-general. Interested witnesses are received where necessary. Per Curiam. . The objection is unanswerable. The prosecutor is. evidently interested, and the wife by necessary consequence. Since the statute of William and
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Mary, of which our act is nearly a copy, a nominal prosecutor is named in the information, to elude this very objection. The defendants were acquitted.
The king's bench will not give leave to file such informations on the application of the attorney as he may bring ex officio : those cases are not within the statute. 3 Bur. 1565. To give the intended efficacy to this act of assembly, the court should withhold the order in every instance where the prosecution in England belongs to the crown office.
The five pound act introduced and passed, was a favourite law of the lieutenant-governor's, for it augmented his influence in every part of the colony. The profits of the justices of peace, who were all of the governor's appointment, and generally nomi- nated by the members of the country, now rendered that employment more lucrative, and tied together the links of corruption between the election jobbers and the assemblymen, and between the latter and the governor, and formed a chain of dependence to which the ruling party did not object, especially as the act was only limited to four years, and might be afterwards dropped or renewed, according to the expediency of the hour. But experience has shown what was obvious enough in theory, that those mischievous consequences of these contemptible, summary, and disorderly jurisdictions, have greatly overbalanced the delay and expense assigned as the motives for this innovation, as will more par- ticularly be observed upon the opposition to the continuation of this dangerous policy in a subsequent administration.
Mr. Delancey hesitated several months before he
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consented to take the chancellor's oath ; and at the beginning of the next year, held a court of errors to the gratification of those who thenceforth were confirmed in the opinion, that by the incompatibility between his old and new employment, his office of chief justice was extinct. That ascendency there- fore, which he had acquired as an independent demagogue, now began to abate, and his conduct, like other governors, to be suspected, as meditating rather his own and the advancement of the interest of the crown, than the security of the rights of the people; and it was his misfortune, that the first adjudication in error riveted these unfavorable suspicions.
A bill of exceptions had been taken on a trial at bar to the opinion of the bench, and execution suspended by a writ of error, returnable before the lieutenant-governor and his council. The question above was, whether the writ ought not to be quashed, the king, by one of the instructions, having permitted appeals to them, where the quantum in litigation was upwards of three hundred pounds sterling. The verdict in the present case was for a less sum ; but the council of Bryant, the plaintiff in error, for the retention of his cause, insisted that the writ of error was a writ of right; that, according to the record, manifest error had intervened ; that the governor and council had been long in possession of the power to redress the errors of the supreme court; that this authority was part of the colony constitution; that though it originated by, yet it did not depend, any more than the supreme court, upon the royal instruc- tions ; that the existence of such a court of errors
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was essential to the due administration of justice in the colony ; that though the court of the governor and council would not prescribe for their right to take cognizance in error, as the house of lords did in England, it stood nevertheless upon the principles of necessity and utility, which had given birth to the prescriptive right of the peers, and that it was their duty to hold and as far as possible amplify, their jurisdiction : that the authority could not be legally abridged or altered at the pleasure of the crown : that had the instruction the efficacy of a law, yet speaking only of appeals, a term known in the civil law, it could not relate to relief in a course of error, according to the common law; that it had never been duly promulgated, and was therefore not bind- ing upon the subject ; that the writ of error was itself a commission under the great seal to the lieu- tenant-governor and the council, posterior to the instruction, and for that reason their authority was not affected by the latter : and, lastly, that unless the judgments of the supreme court were reversible in this way, they were so in no other, and the judges, consequently, had an uncontrollable, absolute, and formidable despotism over the property of the sub- ject, in all cases under three hundred pounds sterling -an authority dangerous to the colony and all suitors in it, not trusted by the constitution to any court in England.
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