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 24
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them less liable to be corrupted, but was an encou- ragement for the ablest men in that profession, which qualified them for such high trusts.
"The same circumstance does in no degree exist in the American colonies, where, as there is no cer- tain established allowance that may encourage men of learning and ability to undertake such offices, your majesty's governors are frequently obliged to ap- point such as offer among the inhabitants, however unqualified to sustain the character ; and though a more fit person should afterwards be found, yet if the commission was during good behaviour, such un- qualified person could not be displaced." They add, "We are sorry to say that late years have produced but too many examples of governors having been obliged, for want of such establishment as might induce able persons to offer their services, to confer the office on those who have accepted it merely with a view to make it subservient to their own private interests, and who, added to their ignorance of the law, have too frequently become the partisans of a factious assembly, upon whom they had been de- pendants for their support, and who have withheld or enlarged that support according as the conduct of the judges was more or less favourable to their in- terests. It is difficult to conceive a state of govern- ment more dangerous to the rights and liberties of the subject ; but aggravated as the evil would be by making the judges' commissions during good behaviour, without rendering them at the same time independent of the factious will and caprice of an assembly, we cannot but consider the proposition as subversive of all true policy, destructive to the
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interests of your majesty's subjects, and tending to lessen that just dependence which the colonies ought to have upon the mother country."
Their lordships take notice of a report of the attorney and solicitor general on a similar law in Jamaica, and of their own board on another passed in Pennsylvania, quote Mr. Colden's letter as con- sonant with their sentiments, declare if he has yield- ed his consent, he deserves the royal displeasure, and advise a general instruction prohibiting in all the royal provinces commissions during good be- haviour.
But the lieutenant-governor's letters were secrets when the assembly met him again on the 2d Septem- ber, and gratified his requisition for a continuance of pay with provisions to one hundred and seventy- three men for the defence of Orange and Ulster against the incursions of the savages, or he would have had more serious proofs of their disgust, already excited by the rejection of the late favourite bills, which were both immediately renewed, and in a few days after sent up to the council. He had ne- vertheless some intimations of their discontent by a bill on Mr. Cruger's motion to interdict stage play- ing, by a set of strolling comedians whom he had permitted to set up a theatre, and by his expression of confidence in the abilities and patriotism of ge- neral Monckton, who was then in hourly expectation of the arrival of his elevation to the chief command of the colony.
It has been already observed that Mr. Jones, though a judge of the supreme court, had appeared as a candidate with Mr. Cornel for a seat in the
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assembly. They both lost their aims. The sheriff's first return was set aside for irregularity, and at a new election the second was controverted on a scru- tiny which left a majority against Mr. Jones .* The elections of Mr. Holland for the county of Richmond, and Mr. Schermerhorn for the town of Schenectady, were also disputed before the house; and it may be of use to state some of the points resolved by the assembly in the exercise of their judicial authority, respecting the qualification of their own members.
1. That the names of voting electors not returned on the poll lists, shall be received and counted.
2. That the possession of the remainder, gained on the death of a tenant for life but twenty-two days before the test of the writ of summons, though the estate might have been devised thirty years before, gives a right to vote.
3. That the acquisition of a freehold within three months before the test, suffices, if it was not fraudu- lently obtained.
4. That an actual possession within three months is not necessary ; and,
5. That a man deaf and dumb from his nativity has no vote.
Shortly before the term of October, and when Mr. Pratt was not yet arrived, Mr. Colden, pushed by the dread of the discontinuance of all process, and the clamours it would naturally excite, resolved to bring the judges to the test, declaring in council, that unless they would take new commissions dur-
* But this decision was suspended till the close of the year, when Mr. Zebulon Seaman and Mr. Cornel took their seats as the members for Queen's county pursuant to the election in April preceding.
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ing pleasure, he would find others for their places. To the surprise of the board and of the whole colony, two of them consented, but only pro hac vice, to save the term in the absence of Mr. Pratt. But Mr. Jones, who resided in the country, learning by the way that this humility was imputed to mean- ness, turned back and absented himself the whole term, giving out that he would not accept a com- mission upon so base and precarious a tenure. No distress could exceed Mr. Chambers' the instant he discovered the public disapprobation of his conduct, and that his new commission was thought to leave him as much embarrassed as before ; Mr. Colden's authority to give the last under sir Charles Hardy's commission being considered as invalid from the end of six months after the king's death. Mr. Chief Justice Morris stated this exception to him in term time, and it filled him with such terror that he im- plored the attorney-general to bring no criminal cause before them, and to reject motions in form for that purpose. The term was no sooner ended, than Mr. Pratt arrived. Mr. Chambers then offered his first commission to Mr. Monckton, who at that time declined any agency in the civil department.
When Mr. Colden and his assembly parted on the 11th September, he had no influence upon either of the great parties into which the colony was divided. The eyes of all men were turned to general Monckton, for it was not certainly known that he was destined to the command of the troops which had been several months collected on Staten Island, on a secret expedition to the West Indies. He resided chiefly at the camp, where, agreeably
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to Mr. Secretary Pitt's letter, he performed the ceremonies for investing Mr. Amherst with the insignia of the Knight of the Bath, until the arrival of his commission in the Alcide ship of war, on the 19th of October.
Colden soon learnt what Mr. Monckton was at a loss to discover, that it was not accompanied as usual with a book of instructions, and it had been hinted by the lieutenant-governor to a third person, that he thought the want of it an objection to the gene- ral's entering upon the command. Of this, Mr. Monckton was not apprised till just before the day appointed for its publication, and after Mr. Colden's orders were out for arraying the militia, as usual on such occasions: it became him to examine into the weight of this exception so unseasonably started, and which he apprehended the lieutenant-governor would use every argument to induce the council to listen to and approve, when he offered himself for the oaths.
The author was consulted the preceding evening by Mr. Boone, (who had presided as governor in Jersey, a place which he now left to Josiah Hardy, esq., a brother to sir Charles, being himself pro- moted to south Carolina,) and delivered his opinion in writing, which was in substance, that the com- mission conveyed the authority, and the law gave the rule according to which it was to be exercised; that the council, having been appointed by the privy signet and sign manual of the late king, and continued in office by his present majesty's pro- clamation, wanted no new appointment to enable them to administer the oaths; and that therefore the
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government under general Monckton could be or- ganized without any book of instructions.
When Mr. Monckton had produced his commis- sion to the council on the 26th October, and it was read, the lieutenant-governor asked for the instruc- tions to enable the board to proceed. The other replied that he had none, and hoped never to have any, that he might be at liberty to copy after the example of his royal master. Not a member of the board stood by the lieutenant-governor, and the oaths being administered, there was a procession and a re-publication of it as usual at the town hall, the militia being drawn up, and an immense mul- titude expressing their joy in loud and repeated acclamations.
Mr. Colden's opinion, which soon took air, had no influence on the people. Addresses and congratula- tions were presented from all public bodies, without naming the lieutenant-governor. It being then full term, he had one from the judges and the bar, and another from the grand jury, which it seems gave no small offence to Mr. Colden, merely for hinting that the public security was enhanced by the high birth and opulence of the new governor.
It would be unfair not to add that the profession of the law gave this governor a public entertainment, in return for a very genteel one at his expense to all the gentlemen of the capital, and still more so to conceal some private anecdotes relative to Mr. Monckton's request for securing the moiety of the salary and perquisites of the government that might accrue on the expedition to Martinique, which he was appointed to command.
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It was governor Boone who in his name requested the author to frame some instrument for the purpose. He informed him that the general had resolved to give his own share to Mr. Colden, but altered his mind, after his project for exposing him to the scoff of the public, by excepting to the publication of his commission. That he had alrady written to him, asserting his claim to a moiety, adding, that he should not sail before it was secured ; that he had received no other than a general promise to comply with the king's instructions whenever they arrived. That Mr. Monckton was resolved to waste no time in a captious correspondence, and had now resolved to offer him a draft, and if he refused to execute it without reasons, to suspend him without ceremony.
The author devised a bond for the payment of a moiety of the salary, perquisites, and emoluments, and to account upon oath if required, and sent the instruments with blanks for the surety and penalty. Two days after (13th November) general Monckton desired to know why the oath was proposed ; to which it was answered, that himself taking the chan- cellor's chair on his return, he would lose the benefit of that court to compel a discovery, if that should be necessary, and that the bond to account upon oath was expedient to prevent his losing the equitable relief which every other subject enjoyed by the laws of this country.
The general showed the author an instrument in the hand writing of Mr. Banyer, the deputy secretary, which Mr. Colden had proposed for his security. It was an indenture consisting of covenants, reciting that, pursuant to the royal instructions to former
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governors, a moiety of salary, fees, and perquisites, were payable to the lieutenant-governor in the ab- sence of the governor-in-chief, and agreeing that such share should be paid to Mr. Colden and the other half be received by Mr. Banyer for the use of general Monckton, unless otherwise applied by his majesty's instructions, " hereafter to be received."
I then sent him a tripartite indenture between the two governors and the secretary. It recited that by former instructions the lieutenant-governor was to receive a moiety of the salary, perquisites, and emoluments, (these being the terms in the 99th article to sir Charles Hardy,) that Mr. Monckton was about to leave the province, that he had no instruction, but expected one of that import, and. that the government might fall on Mr. Colden. Then they were both made to covenant, that all profits should pass into Mr. Banyer's hands, to be equally divided if such instruction came, and if not, the whole to Mr. Monckton. Covenants fol- lowed for Mr. Banyer to receive and obtain all these profits, and to render accounts upon oath when required by either of the governors, and to pay them their respective shares. And with this inden- ture I proposed a bond from Mr. Banyer and his surety to Mr. Monckton, for the performance of the covenants.
Mr. Monckton embarked on the 15th of Novem- ber, but before he took leave expressed himself to this effect : "After much shuffling, the matter is settled. Colden objected to the covenants as putting him in the power of his servant, and exposing him to the world. I then sent him the bond, requiring
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his execution of it without any further trouble. Banyer came from him, with an objection to his being made liable during my commission and ab- sence. I was about to throw all the papers into the fire, but Watts, then with me, prevented me. I ordered Banyer to bring me an abstract of all the patents for lands and commissions for offices since the death of Delancey. He declared he had no doubt Mr. Colden would sign, if I would not per- mit any alteration. Colden's reason is, and so he told me, that he hoped to procure an instruction for the whole profits in my absence. Watts interposing, Banyer took back the bond, asking whether, if the lieutenant-governor executed it, he should bring the abstracts. I replied, you will obey your orders, and bring back the draft of the bond, that I may compare it with the copy that it may be executed."
On the 14th of November, the fleet, consisting of one hundred sail, left the Hook for Martinique, under convoy of the Alcide, of sixty-four guns, and the Devonshire, of seventy-four guns, two of fifty, and one of forty guns ; and thus the government devolved again on Mr. Colden, who five days after- wards opened a new session, with a passion, first raised by the two law bills above mentioned, and wound to an excess of indiscriminate rage at the whole profession, bench and bar.
The objects to which he pointed were three: the slow proceedings of the courts, tippling houses, and the annual support; but upon the first he dwelt most.
"Complaints (says he) of the dilatory proceedings of the courts of law, and of the heavy expense in
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obtaining justice, are so general and frequent that they well deserve your attention. Therefore I re- commend to you to inquire into the grounds of these complaints, and if found just, to apply a remedy adequate to so great an evil. Without doubt it is the duty and in the power of the legislature to give relief in every public grievance. The delay of jus- tice is a denial of it for a time, and is often, when attended with great expense, of more consequence to individuals than the obstinate refusal of it. The security of government and the well-being of society are founded on the equal distribution of justice, which cannot prevail in its proper extent, while the expense of obtaining it is insupportable to many."
The address demonstrated that the house was neither disposed to be very obsequious to his hu- mour, nor ignorant of the true motives of his speech.
They intended to have puzzled him by a call for the proofs ; but this he obviated in his answer to the address of the council, by quoting the 32d instruction to sir Charles Hardy, recommending speed in the administration of justice, which being as old as the revolution, and known to be common to all the provinces under the immediate govern- ment of the crown, gave rise to some ridicule. The assembly therefore resolved not to teaze him at the expense of their own dignity, and contented them- selves with observing that they would not permit the colony to suffer by Mr. Monckton's absence, but that its interests would be advanced by his concurrence in several bills preparing for the de- fence and security of the liberties and properties of the subject. They agree in the expediency of
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dispensing justice with despatch ; but that he might feel the sting of the common censure upon the high fees taken for patents, in which he was doubly interested as governor and joint surveyor-general with his son, they add :*
"As the complaints your honour mentions proba- bly arise from the want of a legalt establishment of fees, we cannot help thinking a general establish- ment of the fees of all the officers of the government will put a stop to these, as well as to several other complaints of the like nature." At the close, they promise " all attention to the internal welfare of the colony, with confidence that nothing tending to that end, can be thought by any who have the honour of serving his majesty, inconsistent with their duty."
The answer shows a spirit ready for battle, and was supposed to have been penned by Mr. Pratt :
" You may assure yourselves of my concurrence in every thing for the benefit of the country, of which each of the branches of the legislature have an equal right to judge. Methods may be proposed, however, for obtaining a real benefit, inconsistent with the English constitution ; or, under the pre- tence of a benefit, a small dependent state may attempt to set bounds to, and restrain the rights and prerogatives of the king of Great Britain. In these cases, though the benefit be real, the method pro- posed for procuring it may be inconsistent with the
* The governor took £12 10s. for every thousand acres, and the surveyor- general £5 more per thousand.
+ All fees had for a long time been regulated by ordinances of the governor and council, every one of which had expired. Many attempts had been made to establish fees by a law, but lost by the parsimony of the assembly. The act. in Mr. Van Dam's time, was repealed by the king.
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duty of every officer who has the honour to serve the crown, especially if the same benefit may be more effectually obtained by the methods to which no exceptions lie."
It was easy to discover that the lieutenant-gover- nor foresaw the renewal of the old bill for confirming the acts and judicial proceedings of the last fall, and that which was still more obnoxious to him respecting the tenure of the judges' commissions. While these were on the anvil, he sent a message, insisting on an allowance to Mr. Pratt, beyond what had been usual ever since the establishment of the salary of a chief-justice, in 1715. The assembly, nevertheless, resolved, " As the salaries usually allowed for the judges had been, and still appear to be sufficient to engage gentlemen of the first figure, both as to capacity and fortune in the colony, to accept of these offices, it would be highly impro- per to augment the salary of the chief-justice on this occasion."
While the bill respecting the tenure of these commissions lay with the council, the lower house withheld that for the support. Both branches had the same object in view; but the upper house were apprehensive that if they passed the former, Colden would make it a pretext for justifying his appoint- ment of Mr. Pratt upon the new tenure, and leave the other judges in their present condition. The next device therefore was to tack a condition to the salaries, as the support bill, rendering them payable only on their holding by the safe tenure above men- tioned. They proceeded upon a presumption that he would on that account reject the bill, though it
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gave £2,200 to himself; but were most egregiously mistaken ; for on waiting only for the receipt of a joint address to the king on his nuptials, he visited the council, and meanly implored their assent to that bill, and to screen them from blame, consented to an entry, that they concurred at his instance. The assembly now in their turn became humble supplicants to the council, that the other bill might not pass that house, lest the lieutenant-governor should gain a complete victory ; and from the com- mon antipathy to Mr. Pratt, they obtained this boon, and thus all parties were disgusted. The bill to settle scruples occasioned by the demise of the crown, sunk also, as connected with that respecting the commissions, and after this third defeat, they were heard of no more.
At the passing of the acts on the 31st December, the session would have ended, and the partition bill would have been lost, if it had not been suggested to the lieutenant-governor the propriety of some apology for not assenting to that necessary law. It
was a fortunate thought, for he hastily declared that if the house would adjourn for four days, and free that bill from some objections, it should have his consent. The author's father, who knew its impor- tance, procured a note of the articles excepted to, and endeavoured to obviate his objections by such alterations, though not injurious to the main scope of the bill. These were produced to the council at a meeting on the 3d January, the day before that to which the house was adjourned, and sent to the lieu- tenant-governor for his perusal,: to some he yielded, in others they made concessions to please him.
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Both houses came together when the altercations with the governor were carried on for four days, and with reluctance at last he consented to a new engrossment, and having passed the act, he pro- rogued the assembly.
The projector of that part of this law respecting the partition of lands, being called to watch the lieutenant-governor's various exceptions to it, was a witness to the singular irregularities above related, though no notice is taken of them in the journals of the house; for, according to their form, there should have been a prorogation, and a new bill with three readings in each house.
If the lieutenant-governor had been gratified, there would have been no balloting for the lots till all objections to the proceedings had been heard and determined by the supreme court, nor any out- lines run to ascertain the tract without the surveyor- general's approbation. The council and assembly would agree to neither of these alterations. The first exposed to tedious delay and enormous expense, and the last subjected the proprietors of undivided lands to the arbitrary caprice of an officer, and opened a door to corruption. The contrariety of sentiments upon this point gave rise to the double lines for the contents of the tract, and the distinction between the parts disputed and indisputed, more particularly mentioned in that useful act, which has greatly contributed to the cultivation and settlement of the colony, and enhances the estates of thousands who before estimated them as of little or no value.
It has been already observed, that the lieutenant- governor assented to it unwillingly. It is upon the
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information of a member who having, after much conversation on that subject with but little hope of success, dropped these words at parting : " And is there then nothing, sir, which you are willing to do for the country ?" Struck with this spirited reproof, he replied, "Well, copy your bill as it is altered, and I'll come up and pass it."*
The judges being all unprovided for, Mr. Pratt, whose narrow circumstances made immediate sup- plies necessary, despaired of all relief, unless his patron could procure it by dint of interest at home out of the quit-rent fund, and waited only the mend- ing of the roads to return to his native country. He suffered from Mr. Colden's patronage, and nothing so much contributed to the general odium against the chief-justice and his patron, as Mr. Hardy's adventurous generosity in Jersey, who by his renewing the judges' commissions during good behaviour, taught this colony to believe that it was choice and some sinister motive, and not a dread of administration, that prompted Mr. Colden to stickle for a dispensation of justice under the control of the crown.
It was therefore with a malignant pleasure that the public soon after the session discovered Mr. Colden's late promotion to the rank of lieutenant- governor was not the reward of merit, but the effort of low craft and condescension.
To gain an interest with Mr. John Pownal, a clerk to the board of trade, who had the ear of the
*Robert R. Livingston was the chief manager in the irregular messages relating to these amendments.
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earl of Halifax, and to raise the idea of his being able to influence the assembly, he offered him the agency of the colony-a bait to which the minister could not be indifferent.
Pownal's good sense and experience taught him to believe that a donation so imprudently liberal would soon be recalled, and sagaciously declining it, proposed that the representation of the assembly should rather be trusted to his friend Mr. Burke. - He requested this of Mr. Colden, who soon after received the reward of his art in the commission to be lieutenant-governor. It now required some ad- dress to conceal from Pownal that want of influence without which his friend could not succeed.
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