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 2
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The attorney-general, in tenderness to a man who, besides his place in council, was judge of the vice- admiralty, examiner in chancery, and searcher of the customs, neglected to put the presentment in form. Several subsequent grand juries complained of this delinquency unnoticed, and the criminal kept his ground till 1735, when the fourth grand jury resolved he should be screened no longer, and presented an indictment in form.
The political writers, by their industry and ad- dress, captivated the minds of the populace, who now ascribed every thing they felt or feared to the mal-administration of their rulers. To undeceive and assuage them, Mr. Cosby convened the assembly in April, 1734 His salary being secured for several years to come, he had no formidable apprehensions from Mr. Morris's intrigues in the house ; and by his friends, Mr. Delancey, the new chief justice's father, Mr. Philipse, the speaker, and his nephew, the second judge, and their influence upon others, he hoped to bear down the opposition. His speech
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was a confession of the reality of what the public invectives had asserted. He admitted the decay of trade, which his adversaries had imputed to his misrule and the flight of the inhabitants, though he ascribed it to their neglect of ship building, and the employment of Bermudians as their carriers, and the want of inspectors to support the credit of flour, the main staple of the colony. He urged them to fortify the two cities of New-York and Albany, according to plans he had proposed. He recom- mended a duty of tonnage on foreign vessels, and a stamp duty upon law proceedings and conveyances ; and computed, that the uncertain produce of the latter should remain in their own treasury for future application. He exclaimed against the importation of negroes* and convicts ; urged a provision for maintaining smiths and artificers among the Indians, to counteract the artifices of the French ; and pro- mised his concurrence in any law for the defence of the province, the encouragement of commerce, agriculture, and manufactures, the arts and the sciences.
The assembly expressed their gratitude in very affectionate terms, and promised their attention to these objects. The council, in concert with the governor's conciliatory schemes, sent down to the lower house a bill in favour of the quakers, within two days after a petition had been presented to the assembly in their behalf. The plans and estimates
* A poll-tax upon negroes, and a stamp duty, being frequently urged upon the assembly by Mr. Delancey, when he came to the chair, renders it probable that this speech of Mr. Cosby's was of his prompting : he was always fond of those funds.
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for a horse-shoe battery in New-York, a fort at Albany, and another at Schenectady, at the expense of near eighteen thousand pounds, were communi- cated, and an act passed to raise money, and promote our own navigation by a duty of tonnage. Popular motions were also made by the court party : a bill was brought in to introduce the balloting of jurors. Judge Philipse complained of the exorbitancy of the fees of officers and lawyers, and a bill was ordered for regulating them : Mr Delancey moved another, for limiting the continuance of assemblies, to which the house would consent, if the elections were triennial.
The multitude, however, put no confidence in their appearances, and petitions were circulated to stimulate their representatives to real services : two were preferred on the 28th May, one from the citizens of New-York, and another from the inha- bitants in Westchester. A third soon after came up from Queens county ; all urging a law to settle fees and courts, for preserving the liberties and proper- ties of the people from arbitrary encroachments.
The aim of the opposition was to overturn the court of exchequer ; and on the 31st May, they carried a resolve for hearing Messrs. Murray and Smith, two principal lawyers of different parties, upon that part of the petitions respecting courts of justice, for all were agreed upon the fee bill, already before the house.
The 7th of June was appointed for this unpar- liamentary condescension of the assembly. The lawyers appeared there, not as counsel for the petitioners, but assistants of the legislature. The
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doors were thrown open to satisfy the general curiosity, and the orators admonished that the house expected their opinions candidly, sincerely, and upon honour.
Mr. Murray, the senior counsel at the bar, being not prepared, Mr. Smith began and spent three hours in that memorable speech which I have already taken notice of. Mr. Murray was heard five days afterwards, and then both were dismissed, with the thanks of the house. The doctrine of the former was, that no court of equity could be erected in the colony by any act of the crown. The latter argued that the four great courts of chancery, king's bench, common pleas, and exchequer, were of original jurisdiction, and founded on immemorial usage, but conceiving the colony entitled to like courts, as essential branches of English liberty : he expressed his fears that the establishment of them by a new law would raise doubts of our title to the rights and privileges of Englishmen ; and therefore he thought it expedient to go further than merely to regulate them, as had been done in England, by a law to establish the tenure of the judges' commission, during their good behaviour.
The senators were confounded by the long argu- ments they had heard, and requested copies for the press, postponing any further measures until they had taken the sentiments of their constituents.
The advocates for Mr. Smith's opinion had no prospect of establishing the courts by a law of the colony, but only of drawing the house into the quarrel between the governor and Mr. Van Dam ; for they foresaw that he would put a negative upon VOL. II. - 3
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any bill sent up for that purpose. It did not follow from his authorities, as some imagine, that no court could be opened and organised in the colony without the aid of the legislature ; nor would the passing of an act for that purpose, in the least degree shake our titles, as Mr. Murray asserted, to any other rights and privileges to which we are entitled by the common laws of England.
Neither of these gentlemen, had the question been proposed by the house, would have denied that the colony was entitled, for instance, to a court of king's bench, nor that the law constituting the judges of it, sufficient for their exercise of all the powers of the court of king's bench at Westminster, and so respecting either of the other courts.
Mr. Smith's law authority did not militate against such a court, because it would not be creating a new court; and if the crown had exceeded its authority in modelling it, by an ordinance or com- mission, though that act might be void, the right to such court would still exist, because it is not in the power of the crown to repeal an old law, and extin- guish the rights and privileges of the subjects. Had the governor appointed other barons, all clamour against the legality of the court of exchequer must have ceased, and Mr. Van Dam's only advantage a change of his judges, unless Mr. Delancey and Mr. Philipse preferred seats in the exchequer bench to the bench of the supreme court.
But nothing was less the intention of the contend- ing parties than a just and friendly pacification ; for, if the governor wished the decision of the controversy upon fair terms, what was more natural than to have
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proposed at his first coming, either an amicable suit at law or the submission of it to independent and unbiassed referees, either here or in England. And the injurious project of seeking a mean advantage against his antagonist, can only be atoned for by the virtuous jealousy it excited, in a colony which derived many benefits from the troubles of the day:
As Mr. Smith's speech added many new prose- lytes to the opposition, the governor grew alarmed, and to counteract it, changed his distance and reproof into mean condescension to the people, the better to effect the new project of revenging himself upon the chief leaders by prosecutions at law. Per- sons of inferior stations were invited to the fort and dined at his table, some of whom signed an address applauding the mildness of his administration.
The new chief justice, who had before laboured to indict Zenger, whose paper was the vehicle of invective and satire against the governor and his adherents, renewed his efforts in the term of October, calling their attention to certain low ballads, which he charged to be libels : "sometimes (says the judge) heavy, half-witted men get a knack of rhym- ing, but it is time to break them of it when they grow abusive, insolent, and mischievous with it." The ballads being presented, were ordered to be burnt by the common whipper ; and the inquest, on their addressing the governor for a proclamation, offering a reward for a discovery of the author, received a gracious answer.
The council, about the same time, urged the assembly to a conference for detecting the writer of certain other libels in Zenger's Journal. Several
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met accordingly with the council committee, who were, Messrs. Clark, Harison, Colden, Livingston, Kennedy, chief justice Delancey, Courtlandt, Lane, and Horsmanden. The latter desired the concur- rence of the house in an address to the governor, for the prosecution of the printer, the detection of the author, and a proclamation stimulating the magistrates to greater exertions for the preserva- tion of peace The assembly met, and ordered the papers, to be kept by their clerk, postponing the consideration of the matter to a further day ; and when that arrived, ordered the libels and proposal of the council to lie on the table.
Despairing of any aid from the assembly, they re- demanded their papers ; and, converting themselves instantly into a privy council, made an order for burning the libels, and then directed the following entry in their minutes :-
" At a council held at fort George, in New-York, the 2d of November, 1734 :
PRESENT,
His excellency William Cosby, esq. captain-general and governor in chief, &c.
Mr. Clarke, Mr. Livingston, Mr. Courtlandt,
Mr. Harison, Mr. Kennedy, Mr. Lane,
Dr. Colden, Mr. Chief Justice, Mr. Horsmanden.
" Whereas, by an order of this board of this day, some of John Peter Zenger's journals, entitled ' The New-York Weekly Journal, containing the freshest advices, foreign and domestic,' Nos. 7, 47, 48, 49, were ordered to be burnt by the hands of the common hangman or whipper, near the pillory in this city, on Wednesday the 6th instant, between
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the hours of eleven and twelve in the forenoon, as containing in them many things tending to sedition and faction, to bring his majesty's government into contempt, and to disturb the peace thereof ; and con- taining in them, likewise, not only reflections upon his excellency the governor in particular, and the legislature in general, but also upon the most con- siderable persons in the most distinguished stations in this province. It is therefore ordered, that the mayor and magistrates of this city do attend at the burning of the several papers or journals aforesaid, numbered as above mentioned."
When the sheriff moved for the compliance of the magistrates at the quarter sessions, the court would not suffer the order to be entered, and the aldermen offered a protest against it, as an arbitrary and illegal injunction. Harison, the recorder, was present, and put to a defiance for its justification. He mentioned the example of the lords in Sache- veral's case, and their proceedings against bishop Burnet's pastoral letter, and withdrew. They forbid even their whipper to obey it, and his place was supplied by a negro slave of the sheriff's; the recorder, and a few dependants upon the governor, honoring the solemnity of executing this edict with their presence. Not many days after, Zenger, in pursuance of a proclamation, was seized, thrown into jail, and denied pen, ink, and paper. His friends procured a habeas corpus for his enlargement. The exceptions to his return were argued by his counsel, Messrs. Alexander and Smith.
The prisoner swore, that, except the tools of his trade, he was not worth forty pounds in the world,
.
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and yet bail was exacted in the penalty of eight hundred pounds ; upon this he was enlarged, and being well supported, prosecuted his paper.
Of the several bills before the house, which con- tinued sitting to the 28th November, the governor was most solicitous for that regulating the militia, and another to emit bills of credit to the value of twelve thousand pounds. Both were carried, to the great joy of the court party. By the offices and distinctions, which the former enabled the governor to confer, and the influence to be gained by the latter, he was enabled to employ the lower classes in constructing the intended fortifications, and, of course, had a prospect of dividing and weakening the torrent of opposition.
Against the bill for emitting money, there was an instruction, requiring a clause to suspend its opera- tion till the royal pleasure could be known. It was expedient to the governor's aims, that the king's command should, nevertheless, be disobeyed, it being very naturally conjectured, that, in a time of profound peace a probationary law could not be very speedily confirmed. To exculpate the governor, Mr. Chief Justice Delancey, after the bill was gone up to his excellency, brought a copy of the royal pro- hibition to the assembly, and requested a committee of their house to meet certain members of the council, to form a joint address of both houses importuning him to pass it.
Mr. Delancey the elder, Mr. Justice Philipse, and several others, met to execute the scheme that very evening, and the next day the address was reported, approved, and presented, but not without some
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opposition ; for the country party carried, at the same time, a motion requesting the governor to dissolve that assembly, to which his friends the more readily yielded, as his excellency agreed to take the odium to himself of refusing their request, in return for their intercession to save him from the indignation of the crown .*
Exasperated at the menaces of the governor, and their despair of prevailing upon the assembly to check his designs, the demagogues formed the pro- ject of presenting an accusation against him to the king. The complaint was to be trusted to the superceded chief justice, but it was thought neces- sary that the design should be a secret till he was actually embarked ; for, without leave of absence, he would endanger his seat in the house.
Mr. Morris had a farm on the sea-coast of New- Jersey, for which province he was of the council, and where he sometimes resided, as well for the dis- charge of his office, as the care of a very opulent fortune in that colony. Before the ship was ready for the voyage, he asked leave to go home, and it was granted without further explanation. He repaired to Shrewsbury house, and made his dispo- sitions without observation. From thence he took ship, nor, till his actual departure, was there any inquiry, concerning the double construction of the permission he had obtained, to authorise his absence from the house.
The grand jury of the term to which Zenger was
* The reader will find further instances of such artifices, naturally to be expected when the colony legislatures are in league to promote the interest of each other.
·
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bound over, refusing to indict him, Mr. Bradley the attorney-general, proceeded against him by infor- mation, and his patrons, to puzzle the prosecutor, ventured to impeach the authority of his judges.
His counsel, in April term, 1735, took oyer of their commissions, and signed and filed exceptions to them : Ist, To the tenure, which was will and pleasure, as contrary to the statute of William the third. 2dly, To the investiture of the same persons with the authority of the common pleas. 3dly, To the form, as not warranted by the common, or statute law, or any act of the colony. 4thly, 'To the want of evidence that the council concurred in the appointments.
The judges lost all temper at the tender of the exceptions, and desired the defendant's counsel to consider the consequences of their offer. They replied boldly, that they had : Mr. Smith added, that he was so well satisfied of the rights of the subject to except to the commission of his judges, if he thought it illegal, that he would stake his life upon the question, and desired to be heard upon that point, as well as in support of the exceptions themselves.
The matter was adjourned, and, upon Mr. Smith's renewing the motion, the next day (16th April), the chief justice, in great heat, said, " He would neither allow nor hear the exceptions. You thought to have gained a great deal of popularity and applause by opposing this court as you did the court of the exchequer, but you have brought it to that point, that, either we must go from the bench, or you from the bar"-handing, at the same time, the minute to
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the clerk to be entered :- " James Alexander, esq. and William Smith, attorneys of this court, having presumed (notwithstanding they were forewarned by the court of their displeasure, if they should do it,) to sign, and having actually signed, and put into court, exceptions in the name of John Peter Zen- ger ; thereby denying the legality of the judges, their commissions, though in the usual form, and the being of this supreme court :
" It is therefore ordered, that, for the said con- tempt, the said James Alexander and William Smith be excluded from further practice in this court, and that their names be struck out of the roll of the attorneys of this court."
. Mr. Alexander observed, that the exceptions went to the commissions and not to the being of the court. " I think (replied the chief justice) that they are against the being of the court." The counsel both denied it, insisting that the court could exist, though all the commissions were void. The judge then perceived his error, and confessed the distinction well taken. They urged, but in vain, that the entry might be altered. Mr. Alex- ander desired to be informed, whether they rejected or overruled the exceptions. Mr. Delancey owned that he knew not the difference. If you reject them, said the counsel, the defendant will make them a part of the proceedings by bill of exception ; but if you overrule them, they will be so without a bill. Diffident, and not discerning their aim, the judges, for a present escape, said, they would hear them the next day ; but, to avoid that, insisted, that in conformity to the rule of the preceding day, their VOL. II .- 4
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client should speak by other counsel. It was then remarked, that the order only inhibited their prac- tising as attorneys, and no other answer was given, than that they meant to exclude them from acting in both capacities.
The defendant's case now wore a very gloomy complexion, for there were, at that day, but two other gentlemen of any reputation at the bar ; Mr. Murray, as already has been shown, was a partisan of the governor's; and Mr. Chambers, the other, more distinguished for a knack at haranguing a jury, than his erudition in the law. Him the court assigned as counsel to Zenger, though he had no inclination to serve him. He, therefore, abandoned the mode of defence chalked out by his first advo- cates, and taking ground safer to himself, pleaded the general issue for his client, and obtained a rule for a struck jury.
The trial was brought on at the court in July, and nothing omitted by the silenced lawyers to give it a favourable issue. The press had groaned all the preceding vacation, with every species of composi- tion, tending to animate, alarm, inform, or captivate the minds of the multitude ; and the stratagem to deprive the defendant of help, disserved the end for which it was intended. Aware of the inadmissi- bility of all proof to justify the libels, they had the art to exhibit them to the public by the press, and at clubs, and other meetings for private conversa- tion ; and, considering the inflamed state of a small county, consisting at that time of less than a thousand freeholders qualified for jurors, it was easy to let every man perfectly into the full merits
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of the defence. Besides, he drew some advantages from a struck jury, since he could nearly conjecture, out of a pannel of twenty-four men, which of the twelve would be charged with his cause.
These preparations being made, Mr. Hamilton, who had been secretly engaged, presented himself on the day of trial as the champion of liberty. He was of one of the inns of court, an opulent citizen of Philadelphia, in high reputation at the bar. He had art, eloquence, vivacity, and humour, was am- bitious of fame, negligent of nothing to ensure success, and possessed a confidence which no terrors could awe. He set out by asserting, with a firmness unabashed, and which often goes far to persuade, that the matters charged as scandal were true, and therefore no libels ; and indulged such a vein of ridicule against the law advanced by the judges, that a libel was the more dangerous for its truth, that the ignorant audience, judging from the superiority of the bar to the bench, in talents and assurance, held the court in contempt, and thought the refusal of the judges to permit evidence of the truth of the publications, added to the tyranny and oppression of the times.
His debates with the court were protracted, till he could turn with the greater address to the jury in the tone of complaint, and artfully convert the guilty nakedness of the cause of his client into a defence. Having captivated their minds into a belief that, if the scandals were true, Zenger was not criminal, he recapitulated the passages in the journals supposed to have given umbrage to the ,government, and for ridiculing the uncertainty of
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Mr. Attorney's inuendoes. He made others with artful allusions to past events, which the auditors had read or heard and believed to be true ; and when he left his client in those hands, such was the fraudful dexterity of the orator, and the severity of his invectives upon the governor and his adherents, that the jury missing the true issue before them, they, as if triers of their rulers rather than Zenger, pronounced the criminal innocent because they believed them to be guilty.
The instant the verdict was known, the impetuous acclamation shouted by the audience shook the hall, and a mixture of amazement, terror, and wrath, appeared in the bench. One of the judges threa- tened an imprisonment of the leader in this tumult, if he could be discovered. A threat unseasonably uttered, unless they had courage and ability to put it in execution ; for it provoked a justification from captain Norris, a son of the knighted admiral of that name, and connected with chief justice Morris by the marriage of his daughter, who pertly declared, that huzzas were common in Westminster hall, and were very loud in the acquittal of the seven bishops. The judges had no time for a reply, for the shouts were instantly repeated, and Mr. Hamilton was conducted from the hall, by the crowd, to a splendid entertainment. The whole city renewed the com- pliment at his departure the next day ; he entered the barge under a salute of cannon, and the corpora- tion presented him with the freedom of the city in a gold box, on which its arms were engraved, encircled with the words, " Demersæ leges-time facta liber- tas-hæc tandem emergunt;" in a flying garter
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within, " Non nummis, virtute paratur," and on the other front, " Ita cuique eveniat ut de respublica meruit."
As it happens on such occasions as these, the scribblers of the day grew more wanton than ever, and a low printer, dandled upon the knee of popular applause, gave into prodigalities, which contributed to his indolence, and ended, as the ferment subsided, in the ruin of his family.
The contending parties now left no stone unturn- ed to gratify their revenge. The English patentees of the "Oblong," by Mr. Dunbar, their agent, who connected himself with Mr. Cosby, and was stimu- lated by Harison, urged measures in the court of chancery against the New-York patentees. Alex- ander and Smith were interested under the last grant, and excepted to Cosby's exercise of the chancellor's authority, which the governor overruled. I have elsewhere observed, that the assemblies were jealous of this court in the hands of a governor. The colony grantees, therefore, hoped to excite the present members to renew the attack, and, with that view, remonstrated against the proceedings as soon as the house met in autumn ; nor did Zenger's counsel omit to lay before them a complaint against the judges for depriving them of their practice. They were heard by the committee of grievances on the 23d October, a copy of the complaint ordered to be served on the judges, and an answer required in forty days. The citizens, also, by a petition, suggesting that the long session of the assembly was a grievance, urged a new attempt for a dissolu- tion, which the governor again refused, though the
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