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 23
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The house wanted no incitements to continue their aid, and the same day voted the necessary pay and additional clothing suited to the season, and the day after (18th October) were adjourned to the 4th of December.
They met then to congratulate each other upon the victory at Minden, the defeat of the French fleet on the coast of Algarva, the conquest of Guada- loupe, the reduction of Quebec, and the other suc- cesses of that memorable year, and then proceeded to the ordinary supplies. Mr. Delancey did not omit a requisition for a salary to Mr. Justice Jones ;
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" an officer (says he) whom the course of justice obliged me to appoint ;" and for obviating objections, pointed to funds by an increase of the stamp duties and an augmentation of the excise upon strong liquors.
The session ended in twenty days without a single division on any question, though upwards of twenty acts were passed, and among them a five-pound act so much before contested ; but it was limited to four years.
To the governor they allowed a salary of £1800 with the £400 perquisite ; gave Mr. Chambers £200, without any reference to the chief seat as full or vacant. Deducted £50 from Mr. Horsmanden's late allowance, and gave Mr. Jones £100 a year from the date of his commission, the 6th of December, 1758. Of the five-pound act the committee wrote favoura- bly to the agent. The speaker of the present house lived remote from the capital, declined any part of the correspondence, and it was left to the members of the metropolis, who expressed themselves thus in their letter of the 26th April:
" In the last session an act was passed to empower mayors, recorders, &c. to try causes to the value of £5 and under, which has been strenuously opposed by the gentlemen of the law, both out of doors and in the council, but at last consented to for four years. As we are apprehensive that the same opposition will travel to the board of trade, we desire you will sup- port the act, as it has by experience been found very beneficial, and in a few instances only occasioned any discontent ; is greatly satisfactory to all ranks of people, except some of the law, and prevents num-
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berless suits and expenses, which in many instances amounts in the old practice to more than the sum sued for, and therefore this law is esteemed a very singular public benefit."
It was not to be doubted that if the war continued, new efforts would be directed for completing the reduction of all Canada. Mr. Secretary Pitt's letter for that purpose arriving in good season, the house was again convoked for our aid on the 11th March. The assembly voted the like contribution with that of the last year, and there was a new emission of sixty thousand pounds to defray it, and an eight years tax imposed for sinking the bills.
The governor had in his speech incorporated Mr. Pitt's letter, commanding him to use his utmost endeavours and influence towards raising the men necessary for the enterprise, which prompted to a motion of Mr. R. R. Livingston for an address inti- mating that a great part of the loan to general Amherst was still unpaid, and that their exertions were made, uninfluenced by any other motives than a sense of their duty to their king and country. But there was a majority for the negative, which is mentioned as a demonstration of his ascendency, even in the present assembly. They adjourned the 22d of that month.
Before they met again in May, he informed them that the whole loan was repaid, and at the request of governor Pownal, implored their charity to the people of Boston, who had suffered by a conflagra- tion which had consumed a great part of that town on the 20th March. Though the province was then indebted to a long list of creditors for services and
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losses in the war, and of many of these demands only able to advance but a moiety, still they gave out of their treasury £2500 to the poor of Boston.
Mr. Delancey passed ten bills on the 10th of June, and then adjourned them. The most remarkable of these, was one to regulate the practice of physic and surgery-professions taken up by every preten- der to the great injury of a credulous people. But the remedy was very inadequate to the evil, for the law which restrained all unlicensed practices under the penalty of five pounds for every offence, was limited to the capital, and gave the right of examin- ing the candidates to incompetent judges, a coun- sellor, a judge of the supreme court, the mayor and the attorney-general, assisted by such persons as they should think proper to call upon.
The lieutenant-governor survived this session only to the 30th July, and died very suddenly. He spent the day before on Staten Island, at an interview with Mr. Boone and Mr. Barnard; the latter leaving New-Jersey for the government of Boston, and the former taking his place and command of New-Jer- sey. General James Prevost, governor Morris, Mr. Walton and others, were of the party, and Mr. Delancey, as it was thought, suffered by the tart raillery of the company and a too free use of the cup; for his constitution, though not much shattered, began to give way to the liberties he had long in- dulged. Crossing the water for several miles in the evening air, he landed in low spirits, drank some wine and water at Mr. Watts's, and rode out to his house about a mile from town. He was found in the morning by one of his infant children gasping in
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his chair, and in the agonies of death ; and before a physician could be called to his assistance, the vital spirit was gone. The immediate cause was sup- posed to be a fit of the asthma, to which he had been many years so subject as to be unable to take his ordinary repose in bed.
The conversation of the day before certainly put the deceased to his utmost exertions ; for he was treated with the familiarity of an equal in the pre- sence of his inferiors, who had long worshipped him as a genius and character of the first magnitude. Mr. Boone, with Mr. Morris and brigadier Prevost, played off their wit in rallying some of his arts for gaining popularity ; and though not a word was ut- tered in a manner interdicted by good breeding, yet there was gall under the disguise of politeness and respect, which made his defence the more arduous, especially as there were three against one, with the smiles of the rest. His daily coffee-house haunts, his controversy with Clinton, his persuading sir Charles Hardy to resign on contract for half of the salary and emoluments, the subserviency of his tools, his double claim to be chancellor and chief justice, his exaction of the high fees for land grants taken by Clinton, and his receipt of £400 yearly for the garrison, after the independent companies were removed, and a tale respecting that money, all touch- ed with delicacy and justified with anxiety, without the appearance of contention, formed the topics of a conversation concluded with evening merriment on both sides ; but when they parted, Mr. Delancey instantly grew serious, and was vexed and silent on the whole passage over the bay.
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The tale alluded to was this : Prevost commanded one of the royal American battalions, which had wintered here before. The author remarked to him in the summer of 1758, when being hors de combat, he spent his time unemployed at a villa near the capital, that this annual gift was a party douceur. He instantly protested he would exact it for his corps, and the next day startled the lieutenant- governor by a demand, which the other endeavored to turn off with a jest. The general left him to con- sider of it, and receiving no satisfactory answer, notified him in form, that he should make it the subject of a letter to the secretary of war ; and at a public dinner told him that he would certainly make that application, because it was the part of a good officer to insist on the rights of his soldiers, and leave it to the governor to support his own honour in the denial if he could. Mr. Delancey was already intimidated, and a few days after, declaring his con- viction of the justice of the claim, paid down a moiety of the money, for which the general took the merit of signing a receipt in full, which the other acknow- leged to be a favourable and indulgent composition.
General Prevost was so much pleased with his success, that he could not conceal it; valuing his triumph over a demagogue who held thousands in awe, infinitely beyond the spoils he had acquired.
Mr. Delancey's genius exceeded his erudition. His knowledge of the law, history, and husbandry excepted, the rest of his learning consisted only of that small share of classical scholarship which he had acquired at Cambridge, and by a good memory retained. He was too indolent for profound re-
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searches in the law ; but what he had read he could produce in an instant, for with a tenacious memory he had an uncommon vivacity ; his first thought was always the best; he seemed to draw no advantages from meditation ; and it was to this promptness he owed his reputation. He delivered his sentiments with brevity, and yet with perspicuity. He rarely delivered his opinions in writing, because his com- positions did not merit even his own approbation. It was a labour to him to write, and he only supplied the matter of his speeches to the assembly, which others put into form.
The siege of Quebec by the Canadians, and the dread of its returning to its old masters, quickened our levies, and when collected, the news of their retiring from that city in May, stimulated them in their progress. General Amherst left Schenectady in June, to join an army of four thousand regular troops and about six thousand provincials, who were to make their descent into the heart of the French colony, down the stream of the St. Lawrence, while general Murray was to come against it with two thousand regulars from Quebec, and five thousand provincials were to penetrate under colonel Haviland through lake Champlain. Sir William Johnson gave assurances, at the same time, of the effectual aid of all the warriors of the Six Nations, of which, nevertheless, only six or seven hundred accompa- nied the western army from Oswego to La Galette or Oswegatchie, when all except a few individuals thought proper to return to their own castles.
The three divisions advancing and arriving nearly at the same time in the neighbourhood of Montreal, VOL. IT .- 44
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the whole force of Canada was driven into the island, and Mr. Vaudreuil, the French governor, being surrounded and unable to make any resistance, sur- rendered all Canada on the 8th of September, and general Amherst returned to New-York the latter end of September, and received the congratulations of a people exulting in the accomplishment which we were taught by our ancestors to pray for, as an event essential to the felicity and safety of all the British colonies in America.
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HISTORY OF NEW-YORK.
CHAPTER VII.
FROM LIEUTENANT GOVERNOR DELANCEY'S DEATH, TO THE APPOINTMENT OF LIEUTENANT GOVERNOR COLDEN, DURING THE ABSENCE OF SIR CHARLES HARDY.
ON Mr. Delancey's death, the government de- volved on doctor Colden, who immediately came out from his rural retreat in Ulster county, and at the age of seventy-three took up his residence at the province house in the fort, as president of the council. It was the general wish that he would instantly fill up the vacant seat of the chief justice, the ministry having not long before trusted the dispensation of justice in other colonies to persons of such character as filled the multitude with uneasy apprehensions. Jersey had been mortified by the arrival, first of one Ainsley, who was raised to be chief justice from the low station of treasurer to a turnpike in the north of England; and when he died, by a successor still more contemptible, of the name of Jones, a Newgate soli- citor, who left his wife, lady Oliphant, in the arms of
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an adulterer, by whose interest he was promoted and sent out of his way .*
Mr. Colden was sounded on the propriety of guarding against similar appointments, but delivered his answer in terms of ambiguity ; and while it was unknown that he meant to compliment the earl of Halifax, then first lord of trade, with the nomination, and take that opportunity of showing his own zeal for the interest of the minister, an attempt was made to engage Mr. Morris to change his place in New- Jersey for the same station in this colony.
It was apprehended that Mr. Colden, who had heretofore given so much offence, might, to gain popularity, be persuaded to join in the recommenda- tion ; but at the same time it was foreseen that neither Chambers nor Horsmanden would approve of any other person than themselves.
Mr. Watts suggested to governor Boone of New- Jersey, that his province was happy in Mr. Morris, and added a wish that he had the vacant seat in New- York. This was privately communicated to general Prevost, who consulted the author on the subject, who spoke to Mr. Morris, and he consenting to the trial of our interest, we all met (Mr. Morris and Mr. Walton, who was his friend) at general Prevost's in Flatbush. The author was to engage his father's approbation, and Mr. Walton, flattering himself that he could procure the junction of Mr. Watts and Oliver Delancey, he made the attempt, and pressed it with the utmost earnestness, but was unable to prevail with either. The only fruit of it was expos-
*Ainsley was said to be recommended to the earl of Halifax by lord Ravens- worth. and Jones by lord chief justice Welles of the common pleas.
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ing Watts to the resentment of Mr. Boone, by his denial of what the governor had alleged, and to the contempt of a few who were informed that he was brought to confess that he had forgotten what he said; and thus the president, unsolicited upon this delicate subject, prosecuted his own design of leaving the appointment to the plantation board.
On the 22d October he made his first speech to the assembly, and to win the Delanceys, who detest- ed him, he applauded the superior talents of his predecessor ; and to recommend himself to general Amherst, passed encomiums upon the conquest of Canada. He then demanded a support, and assured them of his concurrence in every measure conducive to the prosperity of the colony, without even taking the ordinary condition of its consistency with his duty to the crown.
Mr. William Livingston penned the address offer- ed in these triumphant moments of joy, and made the congratulatory echo louder than the first sound. Alluding to the reduction of Canada, the house, to pre-engage the retention of it at the peace, speaks of that event as replete with innumerable advantages to the nation in general, and exults in our deliverance " from the devastation of a cruel and barbarous enemy, rather bent on the destruction of mankind, than waging war either for their own defence, or even from motives of ambition or conquest." Again, " no consideration (say they) shall induce us to re- gret the blood and treasure expended in facilitating this inestimable acquisition, save only (to which we are confident the wisdom and honour of the nation will ever disdain to submit) the surrender of this
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most important conquest, which, in possession of the crown, must prove to Britain the source of im- mense riches; and if retained by so perfidious a people, would expose us to the keen revenge of a defeated enemy, who, unreclaimed by our example, and by our clemency unsoftened, would doubtless relapse into their native barbarity, and retaliate our lenity with more signal acts of inhumanity and bloodshed."
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The session was protracted with great concord to the 8th of November, when Mr. Colden assented to nineteen bills, without the least objection to that for an annual support, or the prolongation of the cur- rency paper bills; verifying an old remark, that the confidants of governors often advise measures which when themselves are responsible, they will not pursue.
By one of the acts he took a salary of £1800 a year, with the ancient douceur of £400 for a garri- son, consisting only of his own family.
There was nevertheless some inquietude without doors. The merchants were chagrined at the inter- diction of their commerce with the French and Spaniards of Monte Christi; when, by the superi- ority of the naval strength of the nation, and the success of our privateers, the enemy were no longer able to navigate the West India seas. We drove a very lucrative trade with Hispaniola, under letters of safe conduct, and afterwards without them at the post above mentioned. Nearly the whole produce of that valuable island came to the British colonies in exchange for provisions and the manufactures of the northern country, and passed to Europe in
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English bottoms. Both the British and American merchants had grown opulent by this commerce, in spite of all the calamities of the war, and the latter felt the check now given to their gains by orders issued at Mr. Secretary Pitt's instance, excited, as fame reported, by general Amherst, with the utmost impatience. Mr. Colden nevertheless enjoyed a perfect calm. The enemies he had formerly made were not recovered from the terror inspired by the death of the lieutenant-governor, and having with their popularity lost their power, they felt no incli- nation to renew their hostilities; nor were they yet without hopes from the timidity of his advanced age, and the address of Mr. Watts, that he would voluntarily consent to be led. In a word, the weak- ness of both parties left him undisturbed, while the number of the candidates for the vacant seat upon the bench, produced condescensions friendly to his ease, and flattering to his pride.
But this appearance of power having nothing to support it, lasted but a moment. Mr. Oliver Delan- cey having a seat in council, and the lieutenant- governor's son James aiming at a place in the as- sembly, and Mr. Jones, the former speaker, being restless for his old chair, Mr. Colden took fright on the news of the death of the king, and unwil- lingly listened to the doctrine that the demise had wrought a dissolution of the assembly. After some hesitation he issued the new writs, returnable on the 3d of March, 1761.
Though there was a change but of seven mem- bers, the return of Messrs. Jones and Cornel for Queen's county being set aside, yet from their for-
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tunes the Livingston party now added greatly to their strength.
The speech (on the 10th, to which they had been prorogued by an irregular proclamation) laments the death of the king, applauds the virtues of his successor, and leaves it to the house to think of domestic provisions, till the instructions then ex- pected enabled him to state the requisitions for the ensuing year.
The assembly gave assurances of aid when want- ed, concurred in a loyal address to the new king, and adjourned to the 24th of that month; when, having received Mr. Pitt's letter, the president demanded an aid of men equal to two-thirds of our levies on the last campaign. They voted seventeen hundred and eighty-seven men, and fifty-two thou- sand pounds to defray the expense of the pay and clothing, of which the whole, except the sum of seven thousand pounds, was money given out of the parliamentary reimbursements for former exertions. The act for this purpose was passed on the 4th of April, and the house were dismissed to the 4th of May. Then there was a short session for a fort- night, in which Mr. Colden put a negative upon two bills, to remove doubts arising respecting the trans- actions between the death of the late king and our notice of it here, and to compel to the appointment of the judges for the supreme court in future on the tenure of good behaviour. The first was framed on the supposition that the laws enacted in autumn, by one of which he had his support, and the pro- ceedings of the supreme court wanted confirmation, and the last was prompted by the general wish of
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the people, that the judges might be rendered inde- pendent of the crown, and the vacancy in the chief seat be no longer left open to the danger of a succession in favour of such mean ministerial hire- lings as had been sent to New-Jersey. Mr. Colden was inflexibly set against both. He had indeed offered the chief justice's place to the author's father, immediately upon the death of Mr. Delancey, upon the tenure of the king's will, informing him at the same time as a secret, that he should not make that proposal to either of the puisne judges ; but after Mr. Smith refused, he took up the resolution to leave it open to the minister of the day, and to hold all the rest of the judges on the renewal of their commissions in a dependence upon the crown. He could not have pursued a measure more universally disgustful, nor have given a better handle to the disappointed expectants of the vacancy, or the numerous friends of the present judges, who, with great reason, complained of his zeal to enforce an old instruction, which Mr. Clinton broke when he appointed Mr. Chambers to succeed Mr. Phillipse, and which Mr. Delancey had disregarded without censure, when he constituted Mr. Jones to be the fourth judge on the bench .*
While the bill relating to the judge's commission was depending, there was a meeting of both houses on intimation that he would give his assent, and to obviate if possible the objections he had urged in
* I have seen M. Clinton's apology to the duke of Newcastle, and the earl of Holderness's answer, declaring the king's approbation of the commission to Mr. Chambers on the same tenure with Mr. Delancey, and that to Mr. Phillipse, the predecessor of Mr. Chambers.
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justification of the conduct he meant to pursue. Some were in favour of increasing the allowance beyond the present mean stipends of £300 to the chief justice ; £200 to the second judge ; £150 to the third, and £100 to the fourth, and the constitut- ing a permanent fund for their annual discharge. But others, disinclined to the augmentations, pre- dicted that the vacancies would in future be filled up by mean and ministerial dependants, and the bill, by their division of sentiment, was sent up subject to the full force of Mr. Colden's exception. There were others who thought a fine opportunity was then lost for gaining an independent unbiassed bench, and these contradictions gave rise to mu- tual reproaches, with which Mr. Colden was not a little diverted ; and a confidant of his said, " nei- ther party had any thing to boast of, because he had predetermined to object to their augmentations as inadequate to the dignity of the officers, and thus elude their importunity, even if both houses had concurred in doubling the salaries."
The judges at first appeared to differ from the opinion of the bar as to the effect of the late demise of the crown upon their commissions; but their fears rising on the approach of the term, they applied in form for a renewal of them on the old tenure. Their request was instantly refused by Mr. Colden, who advised them to sit upon their old commissions and the royal proclamation dated at Saville House. Upon mentioning their doubts, whether that procla- mation was issued under the great seal, he let out his own secret : "Yours (says he) are as good as mine, and you'll stand on the same foundation."
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They replied very pertinently, " You may run risks and be justified by necessity; you can remove our doubts without incurring blame, and it will be ex- pected you do all the good in your power." The judges sat to prevent a discontinuance of process, and in hourly expectation of being relieved by the arrival of Mr. Pratt, a Boston lawyer, who had obtained a mandamus for the seat of chief justice by the interest of Mr. Pownal, to whom he had been useful when governor of the Massachusetts bay.
But if he lost favour on one side of the water, he increased it by stratagem on the other : the king promoted him to the rank of lieutenant-governor. Under a dread of the clamours of the multitude, he wrote to his superiors, declaring his apprehensions that he should be compelled to give way to the proposition, and thus lay the foundation for a posi- tive command against any future compliances. His letters became the subject of a report from the board of trade to the king on that question, in which their lordships observe :
"That the people of New-York could not plead the example of the mother country, because, say they, the change which the tenure of the judges' commissions underwent at the revolution in this kingdom, was founded upon the most conclusive and repeated proofs of arbitrary and illegal interpo- sition under the influence of the crown, upon points of the greatest importance to the constitution, and the liberty and rights of the subject. It was not however by the tenure of their commissions alone that they were rendered independent, but such salaries were settled on them as not only rendered
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