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 25
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Having attained his own end, he intimated that there would be difficulties to bring in a person so little known to the prejudice of Mr. Charles, on whose account some were moved with compassion.
Pownal saw himself entrapped, and that he had not only missed his aim, but was exposed to the resentment of the old agent.
With professions that he meant not to interfere to his prejudice, he revealed to Mr. Charles all that had passed, and gave him copies of the letters which were now transmitted to the committee of assembly, who had for some time managed the cor- respondence with the agent on so serious a subject. The reader ought to see the proofs, which I insert with the answer from the committee .*
The royal requisitions for the operations in the West Indies, brought Mr. Colden and his assembly together again in March.
* See Note L ..
372
HISTORY OF NEW-YORK.
Though the aid demanded was nearly equal to their contributions before the conquest of Canada, their contempt of the lieutenant-governor extreme, and though the public debt exceeded £300,000, and we were annually assessed a £40,000 tax to dis- charge it, yet the assembly did not hesitate in promising to go beyond what might justly be ex- pected, rather than suffer the least shadow of an imputation to be laid on their zeal for the king's service.
It was, however, a question of great moment whether they ought to set the precedent of levying four hundred and seventy-nine men as required, to complete the king's regular regiments ; and to pre- vent it, they gave their aid in the form of a loan, "to be repaid when his majesty in parliament shall think proper." After a few days, the aid for this purpose, and another to levy, pay, and clothe seven- teen hundred and eighty-seven men on the conti- nent, with a few others of smaller moment, were passed, and the house was adjourned to the 13th of April.
But for Mr. Robert R. Livingston, who devised this expedient of a loan, the credit of that contribution would have been lost, for the house were extremely jealous of raising money to recruit soldiers for the standing army of the nation, especially as forts requiring large garrisons were constructing in the interior country, and apprehended to be now unne- cessary, unless the minister's design was to curb the colonies, and artfully to bring us to bear a part of the expense. They yielded with reluctance out of regard to the exigency of the day, the mother
-
373
HISTORY OF NEW-YORK.
country being drained for the German supplies, and because they were not only desirous to give success to a conquest of Louisiana and the Mississippi settlements, but to prevent suspicions inauspicious to their wish that Canada at the end of the war might be retained by Great Britain. These consi- derations led them to an entry of their vote as unanimously carried, though many were at heart opposed to it. Mr. Livingston observed to them, that if the money was unpaid, no more could be asked, and if returned, it would be confessed to be a loan ; and in aid of his design, it was suggested at a meeting of the speaker and several other members, that it would be proper to recite in the preamble of the bill, their views of the necessity of this unusual contribution for our own immediate safety.
The administration of public justice now called loudly for more than ordinary attention: Mr. Cham- bers had made a solemn resignation of his place in November, and just before January term, Mr. Hors- manden had sent his commission enclosed in a letter, which (as Mr. Colden was in distress by the last illness of his lady) he authorized Mr. Banyer to deliver when most consistent with decorum. Mr. Jones had never yet taken up the commission issued pro hac vice, and left for him on the court table. Mr. Pratt was therefore alone in January term, and receiving nothing, declared his intention to leave the province for Boston.
With an apprehension of a total discontinuance of all process in the term of April, Colden, on the 24th of March, demanded a categorical answer from
374
HISTORY OF NEW-YORK.
Horsmanden in full council, to the question, whether he would serve or not. He replied, his commission was already resigned, and that he would never sit under it .* The governor asked, whether he would accept a new one during pleasure ; adding, that if he refused, the public distress should be represented to the king's ministers. 'The other desired time to consider, and two hours after consented to take the place of second justice, with a declaration that no services were to be expected from him on the annual river circuit. A letter was the same day sent to Jones for his final resolution, and he too submitted to resign the credit he had acquired by the contempt he had put upon the pro hac vice commission, as before related, and again when being impatient of a total degradation on the decision of the assemblyt giving the seat he expected to Mr. Seamen, he had resolved to have gone to the bench under his first commission from the late king and the Saville House proclamation, till he was told after coming to town, that the last commission had revoked the first, and that he must act under that or not at all. Mr. Jones's answer was required, but he withheld it till two days after Mr. Horsmanden had bound himself to serve.
The war against Spain was proclaimed here on the 3d of April. The council met at the fort, and the militia were arrayed. The proclamation was
* Mr. Banyer offered the letter enclosing it, but the lieutenant-governor, with- out breaking the seals, ordered it to be returned. He boasted of it as an act of generosity, considering the provocations Mr. Horsmanden had given him during the party feuds in Mr. Clinton's administration.
+ December 9th. 1761.
375
HISTORY OF NEW-YORK.
read by Mr. Banyer at the door, and followed by three cheers. The grenadiers, led by lord Sterling, then advanced to the town-hall. The constables followed after them; the under sheriffs, high sheriff, and town clerk, the common council, aldermen, recorder and mayor, then the council, the lieu- tenant-governor, and last of all the gentlemen of the town. When the proclamation had been again read at the hall, they returned to the fort, and after some time the company retired.
It should not be omitted that a short convention of the assembly took place in May, and that they passed a bill which originated in the lower house, and sent it up to the council on the 5th-was passed by the governor the next day : and that another bill, which the council received on the 20th, had the governor's assent on the 22d; the former being an act for raising money by a lottery, to build a new jail in the metropolis, and the other to punish tres- passes injurious to the light-house of Sandy Hook, which, to the shame of the colony, was now first erected.
Mr. Colden's second administration was then drawing to a close; for general Monckton having succeeded in the conquest of Martinique, returned to his government on the 12th day of June, and began with a splendour and magnificence equal to his birth, and expected from that liberality and generosity for which he has ever been so highly distinguished.
NOTES.
VOL. II .- 48
NOTES.
NOTE A .- Page 59.
WHAT a contrast in every thing respecting the cultivation of science between this and the colonies first settled by the English. Near one hundred and thirty years had now elapsed since the discovery of New-York, and seventy-three from its subjection to the crown of England. When the legislature borrowed acts of parliament from private libraries, they were seldom inspected, nor per- haps much admired. South Carolina had attempted, by an act of assembly of the last century, to extend a variety of the old statutes, and renewed it again in 1712. It is entitled, "An act to put in force in this province the several sta- tutes of the kingdom of England, or South Britain, therein particularly men- tioned." The preamble is in these words ;- " Whereas many of the statute laws of the kingdom of England, or South Britain, by reason of the different way of agriculture, and the different productions of the earth of this province from that of England, are altogether, and many others, which otherwise are very apt and good, either by reason of their limitation to particular places, or because in themselves they are only executive by such nominal officers as are not in nor suitable to the constitution of this government, are hereby become impracticable here." The Ist section enumerates and extends the general and principal acts of the statute book to the 4th and 5th of queen Anne. The 2d extends such as they refer to. The 3d, all such as relate to the allegiance, and the rights and liberties of the subject. The 4th, that the authority they give to parliament shall, in Carolina, be construed to be in the assembly ; that to the lord chancel- lor to the governor and council ; that their chief justice shall exercise the pow- ers of the judges of the Common Pleas, King's Bench, Exchequer, Justices of the Sessions, Commissioners of Oyer and Terminer ; and other officers, those of similar officers in England . The 5th, that so much of the common law as is not altered by the sta tutes, so enumerated by the act taking wards and liveries, the old tenures in capite and knights' service, purveyance, or that part of the common law relating to matters ecclesiastical, not repugnant to the settlement of the church of England in Carolina, be declared "to be in as full force as in England. The 6th subjects their officers to the like penalties. The 7th respects their fees. The 8th, courts and prisons. The 9th confirms the mode of conveyancing, by lease and release, prior to the extending of the statute of uses. The 10th extends all the English statutes concerning customs, trade, and navigation. The 11th declares all other statutes, not transmitted since 8th of Anne, to be unaffected by this act. The 12th, that this act shall not affect the statute of 13th of Charles II. cap. 6, declaring the sole right of the militia to be in the king. The 13th, nothing in any of the above statutes, abridging the
380
NOTES.
liberty of conscience or any ecclesiastical liberty, were considered as extended by that act, nor to alter their course of proceeding and balloting jurors under a for- mer act of assembly of 7th January, 1694-5, or any other act of the province. It is not improbable that the British legislature (3d George II.) took the hint of bal- loting jurors from that Carolina act, as they had for pleading a discount from one enacted here several years before the statute of 2d George II. cap. 22.
NOTE B .- Page 63.
Mr. Colden, to vindicate Mr. Clarke and to exculpate himself, though not named in the former representation of Campbell's disappointment, gave himself the trouble of two letters to the author, of the 15th January and 17th February, 1759. He alleges, that the project failed through the poverty and discord of the Scotch emigrants; that Campbell's followers refused to settle under him ; that himself alone was unable to improve the quantity lie asked for; and that the assembly even disinclined to contribute to their relief; and that, from the inca- pacity of the company to comply with the conditions of the king's instructions, he thinks the executive without blame. The author's object being general, he declined entering into any partial controversy respecting the criminalty of individuals. Let it suffice, that the account given was consistent with informa- tion procured from Mr. Alexander, whose intimacy with Mr. Colden gives it force ; and that colonel Livingston, whose compassion excited him to make the motion, told the author, on the 16th December, 1777, that it was with design to raise the patent fees, the want of which obstructed the grant, and that he omit- ted to express it in his motion, as the disinclination of the house to gratify their avarice would have most certainly defeated his design, and that he lost it by a suspicion that the contribution was to be so applied, though asked as under the cover of enabling them to settle the lands at Wood Creek. The lieutenant- governor's speech had confirmed their jealousy ; there was this clause in it :- " The peopling of that part of the country to the northward of Saratoga will be of great advantage to the province, as well in strengthening the frontier as enlarging your trade. Several families arrived here last fall from North Britain, who are willing to settle there, and more expected from thence this year ; but as they are poor, they will want some help to enable them to subsist their families until, by their labour, they can raise provisions to subsist themselves, and I am persuaded that you will give them some needful subsistence." Captain Campbell himself also presented a petition to excite the charity of the assembly. Do these proofs accord with Mr. Colden's suggestion, that Campbell and his colonists were so far at variance as to refuse to settle under him.
NOTE C .- Paze 68.
There is a clause in the correspondence with the agent, which may give some information to the reader. The letter from the speaker, of the 11th November, 1751, was in these words: "I have examined into the affair of our treasurer's appointment, and find it to be thus :- In the infancy of this colony, all public moneys were made payable to his majesty's receiver-general, but were so greatly mismanaged and misapplied in the years 1702 and 1705, during the government of lord Cornbury, afterwards earl of Clarendon, that the assembly attempted to put the money raised by them, into the hands of a person named by them in the
381
NOTES.
act by which the money was raised. The then governor would not assent to that bill, until he had acquainted her majesty, the late queen Anne, with the matter. Her majesty was thereupon graciously pleased to direct the said go- vernor (as he himself acquainted the assembly, in his speech of the 27th Sep- tember, 1706,) to permit the general assembly to appoint their own treasurer, for extraordinary uses, and which were no part of her majesty's standing revenue. And by her majesty's standing revenue, it seems was then understood the quit- rents reserved on lands granted by the crown, forfeitures, seizures, &c., which were then all applied towards supporting the government in this colony; for ever since that time, all moneys raised by the assembly have been put into the hands of their own treasurer, and the quit-rents, &c. been paid to his majesty's receiver-general, and have since been taken from their former application, and appropriated by the crown to other uses. The first treasurer I find was appoint- ed by act in the year 1706 : the second, who is now treasurer, was appointed only by, a vote of the house, and approved of by Mr. Burnet, then governor of this colony ; and I do not find that the assembly's right to appoint such an offi- cer, has been disputed by any governor of this colony, since the first allowance thereof by the late queen Anne."
NOTE D .- Page 78.
The honour of penning this useful law, which in the main is a compound of two modern statutes, was claimed both by Mr. Delancey and Mr. Horsmanden ; and as the text, by an incautious composition, gave ground for the innovation of balloting jurors in criminal causes not capital, I have insisted upon that con- struction, and discovered all that anxiety in the former for resisting and refuting a doctrine not so favorable as the old law to the prerogative, as in my opinion would add credit to his pretensions. But Mr. Horsmanden's claims never ex- tended higher than to a copartnership in the work. This note would be of no consequence, if trivial actions were not sometimes as characteristic as the greatest exploits. Subjoined is the report of the case. October term, 1756. Samuel Stilwell ads. Dom. On information upon an act of assembly to pro- hibit the exportation of provisions to the French. A common venire had issued, and a pannel with forty-eight names was returned. Insisted by Nicol and Smith for the defendants, that the jury ought to be balloted by the act of assembly, the first clause by implication binding the crown, and the 8th having an imme- diate reference to the first. Kempe, attorney general, contra, that the practice has been otherwise. Curia. The statute 4 and 5 William and Mary, of which the first section of our jury act is a copy, binds the king ; (Hale's H. P. C. 2d vol. 273, note ;) but the 8th section from George II, relates to suits between par- ties in civil causes. Defendants' council then object, that the pannel ought then to contain but twenty-four names. Curia. It is bad; but one juror being sworn, the objection is too late. The cause was tried, and the verdict pro rege.
NOTE E .- Page 88.
The instructions referred to, show the early attention of the crown to this great object. The following are copied from the book given to Mr. Mont- gomery :-
" 83. Whereas it has been thought requisite that the general security of our plantations upon the continent of America be provided for, by a contribution in
382
NOTES.
proportion to the respective abilities of cach plantation; and whereas the nor- thern frontiers of the province of New-York, being most exposed to an enemy, do require an extraordinary charge, for the crecting and maintaining of forts necessary for the defence thereof; and whereas orders were given by king Wil- liam the third, for the advancing of five hundred pounds sterling towards a fort in the Onondago country, and of two thousand pounds sterling towards the re- building of the forts at Albany and Schenectady ; and likewise by letters, under his royal sign manual, directed to the governors of divers of the plantations, to recommend to the councils and general assemblies of the said plantations, that they respectively furnish a proportionable sum towards the fortifications on the northern frontiers of our said province of New-York, viz .:
Rhode-Island and Providence Plantation, £150
Connecticut, ...
450
Pennsylvania,
350
Maryland,. 650
Virginia,.
900
Making together, .. £2,500
And whereas we have thought fit to direct, that you also signify to our province of Nova Caesarea, or New-Jersey, that the sums which we have at present thought fit to be contributed by them, if not already done, in proportion to what has been directed to be supplied by our other plantations as aforesaid, are two hundred and fifty pounds sterling for the division of East New-Jersey, and two hundred and fifty pounds sterling for the division of West New-Jersey; you are therefore to inform yourself what has been done therein, and what remains further to be done, and to send an account thereof to us, and to our commis- sioners for trade and plantations, as aforesaid.
"84. And you are also, in our name, instantly to recommend to our council and the general assembly of our said province of New-York, that they exert the utmost of their power in providing, without delay, what further shall be requisite for repairing, erecting, and maintaining of such forts in all parts of the province, as you and they shall agree upon.
"85. And you are likewise to signify to our said council and the said general assembly, for their further encouragement, that besides the contributions to be made towards the raising and maintaining of forts and fortifications on that frontier, as above mentioned, it is our will and pleasure, that in case the said frontier be at any time invaded by an enemy, the neighbouring colonies and plantations upon that continent shall make good in men, or money in lieu thereof, their quota of assistance, according to the following repartitions, viz :
1
.
Massachusetts bay,.
350 men.
New-Hampshire,.
40
Rhode-Island, 48
Connecticut, 120
New-York 200
East New-Jersey,. .60
West New-Jersey, 60
.80
Maryland,. 160
240
Pennsylvania,.
Virginia,.
Making together. 1.358
$83
NOTES.
Pursuant whereto, you are, as occasion requires, to call for the same; and in case of any invasion upon the neighbouring plantations, you are, upon applica- tion of the respective governors thereof, to be aiding and assisting to them in the best manner you can, and as the condition and safety of your government will permit."
NOTE F .- Page 112.
A note ought not to be suppressed respecting these records, to correct a voice of misplaced ridicule. Few there are who speak of the blue-laws (a title of the origin of which the author was ignorant) who do not imagine they form a code of rules for future conduct, drawn up by an enthusiastic, precise set of religion- ists; and if the inventions of wits, humorists, and buffoons were to be credited, they must consist of many large volumes. The author had the curiosity to resort to them, when the commissaries met at New-Haven for adjusting a par- tition line between New-York and Massachusetts, in 1767, and a parchment- covered book of demy royal paper was handed him for the laws asked for, as the only volume in the office passing under this odd title. It contains the memo- rials of the first establishment of the colony, which consisted of persons who had wandered beyond the limits of the old charter of the Massachusetts bay, and who, as yet unauthorized by the crown to set up any civil government in due form of law, resolved to conduct themselves by the bible. As a necessary con- sequence, the judges they chose took up an authority similar to that which every religious man exercises over his own children and domestics. Hence their atten- tion to the morals of the people, in instances with which the civil magistrate can never intermeddle, under a regular well-policied constitution-because, to preserve liberty, they are cognizable only by parental authority. The select man, under the blue-laws, found it his duty to punish every contravention to the decorum enjoined by the broad commandments of heaven. The good men and good wives of the new society were admonished and fined for liberties daily corrected but never made criminal by the laws of large and well-poised commu- nities ; and so far is the common idea of the blue-laws being a collection of rules from being true, that they are only records of convictions, consonant, in the judgment of the magistrates, to the word of God and dictates of reason. The prophet, priest, and king of this infant colony, was that Davenport who was in such consideration as to be sent for to the assembly of divines at Westminster, in settling the religion of the English and Scotch nations. These remarks were, by the author, communicated to Mr. Hutchinson of Boston, then one of the commissaries, and to other gentlemen of eminence in the colony and of the very town of New-Haven, who heard them as novelties, nor would the former adopt them till he had recourse, the next day, to the records themselves. The author speaks only of those at New-Haven.
NOTE G .- Page 113.
The persons alluded to, were :
Messrs. Peter Van Brugh Livingston, John Livingston, Philip Livingston, William Livingston, William Nicoll, Benjamin Nicoll, Hendrick Hansen, Wil- liam Peartree Smith, Caleb Smith, Benjamin Woolsey, William Smith, jun. John Mc.Evers, John Van Horne.
384
NOTES.
Thesc being then in the morning of life, there was no academic but Mr. De- lanccy on the bench, or in either of the thrce branches of the legislature; and Mr. Smith was the only one at the bar. Commerce engrossed the attention of the principal familics, and their sons were usually sent from the writing school to the counting-house, and thencc to the West India islands-a practice intro- duced by the persccutcd refugees from France, who brought moncy, arts, and manners, and figured as the chief men in it-almost the only merchants in it from the commencement of this century, until the distinction between them and others was lost by death and the inter-communion of their posterity, by mar- riagc, with the children of the first Dutch stock and the new emigrants from Great Britain and Ireland. The French church of New-York contained, before their divisions in 1724, nearly all the French merchants of the capital.
NOTE H .- Page 143.
The vote was this :-
9th April, 1748.
" ORDERED,-That the speaker of this house for the time being, do hold and correspond with Robert Charles, esquire, agent for this colony in Great Britain, and that he do from time to time sign and transmit to the said agent, such instructions, directions, and representations, as shall be judged proper to be sent to him for his conduct."
Mr. Jones's letter is in these words :---
New-York, 9th April, 1748.
" SIR,-In consequence of a recommendation of sir Peter Warren, you are appointed agent for this colony, with a salary of two hundred pounds per annum, New-York currency, for transacting the public affairs thereof in Great Britain. You are to pursue all such instructions as shall from time to time be sent you, signed by me as speaker of the general assembly ; in the execution of which instructions, you are always to take the advice of sir Peter Warren, if in England. You are to take all opportunities of advising me, or the speaker or the general assembly of this colony for the time being, of all your proceedings on the several matters as shall from time to time be given you in charge, and of all other matters which may occasionally happen, whereby this colony may be any ways affected. You are not only to take such opportunities as offer directly for New-York; but to transmit accounts both by way of Boston and Philadel- phia, as occasion may require. You are to keep an account of the expense you may be necessarily put to, in your applications for the service of this colony, and transmit them to me, or the speaker of the general assembly for the time being, in order for payment. I send you the act wherein you are appointed for this colony, passed but this day, so that I cannot yet write to you so fully as I expect shortly to do. In the mean time, you are to observe the preceding directions, and those that follow, to wit: You are to endeavour to obtain the royal assent to the three following acts, to wit : "An act for limiting the continuance of ge- neral assemblies, passed in the seventeenth year of his majesty's reign," not yet approved of by his majesty ; "An act for appointing commissioners to take, examine, and state the public accounts of the colony of New-York, from the year 1713; and "An act for the more effectual cancelling the bills of credit of this colony," the last two passed this day. If the reasons on which the said acts were severally founded, contained in their respective preambles, are not
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