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 3
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members unanimously asked his consent. They then resolved, that the court of chancery, under the exercise of a governor, without consent of the general assembly, is contrary to law, unwarrantable, and of dangerous consequence to the liberties and properties of the people.
. The opposition, now taking courage, informed the house, by a petition from Queens county, that the long continuance of the assembly occasioned a decay of trade and a depreciation of lands, which so highly incensed the majority as to occasion a vote, that the charge was an unjust and audacious misre- presentation. Zenger's counsel, about the same time, insinuated that the distant day, assigned for the answer of the judges with their complaints, was an illusion of that justice they had a right to expect. Disgusted by this freedom, the members resolved that it should not ever be read, and the very next day adjourned, with the governor's con- sent, to the latter end of March.
It was a parting forever, for Mr. Cosby died on the 10th of that month,* and, as the reader may suppose, almost universally detested ; for, besides the aforementioned instances of imprudence, into which he was willingly led by the men of his confidence, he increased the number of his enemies by destroying certain deeds to the city of Albany, and a project he had formed for a re-survey of the old patents on Long Island. The Mohawks saga- ciously dreading the rapid progress of population, had conveyed a very valuable part of their territory
10th March, 1736.
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to the corporation, to take effect upon the total dissolution of their tribe. It was produced to convince the governor of the injustice of granting it to private patentees ; but after the perusal of it, which he perfidiously requested for his satisfaction, he threw it into the fire, and it was instantly consumed.
His design against the people of Long Island originated from the same motive : he hoped to enrich himself by the acquisition of lands already improved, as well as by fees for the new grants.
It cannot be denied, that our old grants and pa- tents are very inaccurately penned, nor that, in some instances, the proprietors have taken advantages of the description of their limits by marked trees, Indian names of places, and other uncertain bound- aries, to extend their possessions too far ; and cer- tainly, if they were confined to the true object of their grants, they would have no just cause of com- plaint : but a re-survey for this purpose cannot be executed without difficulty and danger, nor attempted without spreading universal discontent. Though a second patent will not convey what was comprehended in the first grant, yet a wise and generous ruler will perceive that the small emolu- ment, which he may add to his quit-rents, is over- balanced by the innumerable mischiefs flowing from the increase of animosities and the multiplication of law-suits, and find himself (if his intentions are upright) not a little embarrassed in the construction of the ancient grants of the country, most of which are derived from the duke of York, when a subject. At that early day, the great object was to gain a
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dominion over these vast deserts, by joining occu- pancy to discovery, for the effectual exclusion of any other European power. To accomplish that end, grants were penned with all the negligence of liberality, and the giver being benefited more by his seeming bounty, than the adventurous grantee, who could not, even after acquiring his title from the duke and the crown, cultivate the soil in safety, without buying peace from the savages, and that as often as they were pleased to renew their claims. To this the modern interpreter of the old grants, if he will guard against error or injustice, must neces- sarily attend. But who could confide in a governor, stimulated to the measure, not so much by a regard to the interests of his master, as his own avarice. Long Island, at that time, comprehended a third part of the improved lands of the colony, and no man knowing whether his best improved possessions might not fall beyond the lines assigned for his tract, the inhabitants were almost universally alarm- ed, and were as suspicious of the governor and his re-survey, as the patricians of Rome were formerly of the Gracchi and their agrarian laws.
But no representation, repugnant to his avarice, had any influence upon Mr. Cosby The weakness of his understanding rendered him reprehensible even to fear. In answer to the great objection, that a certain doctrine was against law, he sillily replied, "How, gentlemen, do you think I mind that : alas ! I have a great interest in England." It is some extenuation of his faults, that he was the dupe of others; and an apology for Mr. Delancey, his chief minister, that he was then a young man, ill read in
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a profession, which he took up without aid, and, by his education abroad, was little acquainted with the affairs of the colony.
Mr. Cosby's remains were buried in the chapel within the walls of the fort, in which he died. His widow repaired to England after one of her daugh- ters, advantageously connected with lord Augustus Fitzroy, son to the duke of Grafton. The match was clandestinely brought about by the intrigues of Mrs. Cosby, lord Augustus being then on his travels through the provinces; and to blind his relations and secure the governor from the wrath of his father, then a favourite of king George the second, a mock prosecution was instituted against Campbell, the parson, who had scaled the fort walls and solemnized the nuptials, without a written license from the governor, or any publication of the banns, contrary to usage, though not against the law of the colony.
The exultation of the populace, occasioned by Mr. Cosby's death, and the expectation that Mr. Van Dam was again to take the helm, was excessive, for they had despaired of any success from Mr. Morris's complaints ; news arriving in February, that the lords of the committee, after hearing counsel against the governor, had, on the 7th of November before, reported, that the reasons for removing him were insufficient. The celebrated Mr. Murray, afterwards lord Mansfield, retained against him, exerted himself on this occasion, and introduced his accusation with the delicate observation, that if his majesty could delegate his virtues as easily as his authority, their lordships would not have been VOL. II .- 5
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called to the trouble of that hearing. But it was not many hours before the triumph of the patriots was checked by the report, that Van Dam had been privately suspended since the 24th of the preceding November.
The council, Messrs. Clarke, Alexander, Van Horne, Kennedy, Delancey, Courtlandt, Lane, and Horsmanden, met, and administered the oaths to Mr. Clarke as the president, who issued a proclama- tion, announcing the succession as by the unanimous opinion of the board. Mr. Alexander, who was struck at this meeting with the act of suspension, and had really given no opinion, was obliged, to save his popularity, to publish his non-concurrence, and impeach the truth of the proclamation.
Van Dam the next day asserting his title, called upon Mrs. Cosby for the great seal with the commis- sion and instructions, and when denied access, he demanded them in writing of Mr. Clarke, to whom they had been delivered. The possessor insisted upon the suspension, appealing to the king. The other addressed the people by a protest against Clarke's proceedings, and the council who qualified him, and all their aiders and abettors, declaring that Cosby was delirious and non compos at the moment of the suspension, and the act, therefore, invalid : that if he had been sane, his power was sufficient to exclude him from acting as a counsellor, but not to interrupt his succession to the command : that it lost its efficacy at the death of the governor, and that the council had no authority to qualify Mr. Clarke.
Clarke disregarding this claim of his antagonist, though supported by the popular voice, adjourned
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the assembly, and drove Van Dam to insist, as they did not meet according to the prior adjournment, that Clarke's act was invalid, himself guilty of a very high crime, and the house dissolved. The members, however, met on the day to which Mr. Clarke adjourned them, and being bewildered by their repugnant pretensions, and unwilling to enlist on the one side or the other, returned home and continued under repeated adjournments, till the crown interfered for a decision of the controversy.
This anarchy urged to no open violence till the 14th October, when by the charter of the capital, the officers of the year, who were to be nominated or elected onthe 29th September, were to take the ne- cessary oaths, and begin the discharge of their trusts.
Van Dam's party prevailed at the election for the aldermen and common council : the citizens choosing such as would act with a mayor, recorder, sheriff, and coroner, of his appointing, as president of the council ; and he accordingly named-Cornelius Van Horne, mayor ; Mr. Smith, recorder ; Mr. Ashfield, sheriff; and Mr. Nicholls, coroner. Mr. Clarke concurred in none of these but the last, and consti- tuted Mr. Richard to be mayor ; Mr. Horsmanden, recorder, and Mr. Cosby to be sheriff; and, by a proclamation of the 1st October, warned Van Dam's officers against the danger of assuming any authority under his appointments.
1239354
The opposition lost all temper at this juncture, and to animate their followers, boldly menaced Clarke, in print, with a prosecution. An extract from a paper of that day will show the excess to which the spirit of party was carried.
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1
" Whatever desire some of the subjects of the British dominions may have to be above the law and tread it under foot, yet the law ought to be and will, at the long run, get above them. It is too strong a body to contend with, and he who does it will hardly escape a fall. Of this the honourable Francis Harison, esq. counsellor, is a recent ex- ample .* All the power he had to support him could not prevent a fall. If Mr. Clarke be not entitled to the administration, I believe a grand jury of New- York will think him guilty of high treason for usurping, and indict him accordingly. I do not believe that they will think his superiority, or their subordination, will excuse them for not doing it. Their oath is to present all offenders. I hitherto have not heard of any exception in it, either of counsellors or commanders-in-chief. They are as subject to the law as the meanest man in New-York, let their desire be ever so strong to be above it; and if the grand jury indicts, I doubt not the court will issue the pro- cess thereof to apprehend him and try him by twelve lawful men of New-York, where the fact was committed. If he is taken, I doubt not but that he will have the liberty of pleading his superiority and the subordination of the court and jury against their jurisdiction. I doubt not but that the plea will be fully heard as it ought to be, and that his lawyers may speak freely in support of it, notwithstanding the late precedents of condemning unheard-upon
* He went off privately to England in 1735. It was imagined that Mr. Cosby sent him to watch and oppose the attempts of col. Morris, and that the governor's death plunged him into poverty and prevented his return. He rlid not long survive that event.
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pleas to jurisdiction, and of silencing lawyers for offering them, and notwithstanding all the part he had in making of such precedents; and if his lawyers can make it out, that he is above and out of the reach of the law, the court ought to allow the plea ; but if they can't, as I believe they cannot, he must there hold up his hand as well as the meanest and most arch pickpocket that ever was in New- York, and either confess and be hanged, or say not guilty and put himself for his trial on God and his country : and if such be his case, I hope justice he may depend upon. But what charity twelve good men of New-York, sworn to try him, will have for him, he, by running over his past services to the properties, liberties, and privileges of this country, may in some measure be able to judge. But, however, as a christian I shall be obliged, in that case, to join in the clerk's prayer, and say, God send you a good deliverance."
These hints were formidable, because the rage of the multitude was so exasperated, and their confidence in the demagogues so absolute, that the latter had only to advise Van Dam to appoint judges to accomplish the tragedy of cutting off the com- mander-in-chief, who actually called into the fort all the officers and soldiers of the independent companies, for his protection against the expected horrors of the approaching day for qualifying the magistrates of the metropolis. During these agita- tions Mr. Morris, whose arrival at Boston was not known here till the 18th September, was impatiently expected, and the rather because he had only given his adherents liberty to think favourably of his
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restoration. He did not reach Morrisania till the 7th October. He was met the day after by a vast concourse, and conducted with loud acclamations to a meeting of the chiefs of the party. Having learnt to what extremes the contests were ad- vanced, and being importuned for his advice, he replied with a grave tone, "If you don't hang them, they will hang you"-and the evening was spent, after dispersing money from the windows of the house to the rabble in the streets, with a tempestuous festivity and joy. He declared it as his own opinion, that Van Dam had a right to the administration ; that he was willing to execute the office of chief justice under him; that the assembly was dissolved, and that force ought to be opposed to force, if Clarke insisted upon his authority.
The assembly was convened on the 12th, and Mr. Morris, the next day, obtained their leave to visit New-Jersey, where he said the public service required his presence. Van Dam's magistrates had resolved to act the next day, and resolutions were taken to support them by violence; but fortunately for both parties, within twenty-four hours of the eruption of the meditated civil war, the brigantine Endeavour arrived from England, with despatches from the government to Mr. Clarke, as president and commander-in-chief of the province, enclosing an instruction altering the prayers for the royal family, 1 upon the marriage of the prince and princess of Wales.
From that moment his opposers became mute and abashed, and his officers were sworn in and obeyed. Mr. Morris was publicly charged with the knowledge
1
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of this act of government. It was asserted, that his son, Robert, who accompanied him, had revealed it at Boston, declaring that Mr. Clarke would receive the instruction by a vessel which had already arrived; and to confirm the accusation, it was observed, that it bore date the 1st July, several weeks before he embarked. But his friends treated it as a calumny, not only because so base a concealment was incon- sistent with his character and his own positive denial, but with the safety of his son Lewis, and Ashfield, his son-in-law, who had rendered themselves very obnoxious in supporting Mr. Van Dam.
Mr. Clarke delivered his first speech to the assem- bly in the calm of the so much dreaded 14th of Octo- ber. He challenged their promise to his predecessor for supplying the deficiency of the revenue, and repeated his instances for the encouragement of ship building, persuaded to the cultivation of hemp, finishing the fortifications, erecting a new fort at the head of the Mohawk river, and the settlements of Smiths in the Seneca country ; and to humor the clamors within doors, he consented to introduce the practice, which has ever since prevailed, of absenting himself from the council, when they sit as a branch of the legislature.
During the session, his hands were strengthened by his advancement to the rank of lieutenant-gover- nor. The commission was dated the 30th July, and published here on the 30th October ; but yet nothing of any considerable moment was transacted, and after an address, to congratulate the king on the marriage of the prince of Wales, and the passing of a few common bills, he put an end to a peaceful,
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inactive session, by a prorogation on the 7th of November.
He met them again in April, and earnestly urged the payment of the arrears due to the public credi- tors, occasioned by the defect of their funds, and a new act for supporting the government, the other being nearly expired. But little could be expected from an assembly fearful of their constituents, and consisting of a respectable minority intent upon a dissolution. Hence their consent to a motion of Mr. Morris, junior's, for leave to bring in a bill for triennial elections and the exclusion of crown officers. Mr. Clarke soon discovered that his assembly was grown dastardly, that the debts of the colony amount- ed to near nine thousand pounds, and that they meant to postpone the payment to prolong their own existence. He artfully made his court to the collective body, by a speech to the house in terms of real or affected disgust, charging them with a neglect of the interests both of the crown and colony, and then dissolved an assembly elected in 1728, of whom their constituents were tired, as he suggested in his speech.
The lieutenant-governor was an Englishman. His uncle, Mr. Blaithwait, procured the secretary's place for him, and sent him out with it early in the reign of queen Anne. He had genius, but no other than a common writing-school education ; nor did he add to his stock by reading, for he was more intent upon improving his fortune than his mind He was sensible, artful, active, cautious ; had a perfect command of his temper, and was in his address, specious and civil. Nor was any man better acquaint-
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ed with the colony and its affairs. As a crown officer he was careful not to lose the favour of any governor, and still more assiduous to please when he became the second at the council board. He shared a part of the odium which fell upon Mr. Cosby, but escaped much more of it by a closer attachment than before to his rural villa on the edge of Hempstead plains, and left it to Mr. Delancey to enjoy the praise or blame of being the Sejanus of that governor. The public confusions contributed to the gratifica- tion of his wishes. Dreading Van Dam's power, his fellow-counsellors easily concurred in persuading Cosby to suspend him, and the anarchy which instantly ensued upon that governor's decease, and his own representations, left the ministry no time to think of any other person for the place of lieutenant- governor. Nothing now alarmed him but the arrival of a governor-in-chief. Lord Delaware had early engaged the promise of the minister ; but a peer of the realm was only to be induced to accept so humiliating a station by the prospect of a speedy repair of his finances, and Mr. Clarke knew how to improve a disposition so favourable to his own ends. His lordship declared, that Mr. Clarke's letters concerning the colony were perplexed and discou- raging. Those who were acquainted with Mr. Clarke knew, that, if he wrote obscurely upon such a subject, it must have been with design.
The country party found no difficulty in securing a majority at the election. The citizens chose Mr. Alexander of the council for one of their representa- tives. The house met about midsummer 1737, and Mr. Morris, junior, was placed in the chair. VOL. IT :- 6
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Mr. Clarke had paved the way towards a reconci- liation by the dissolution, and, as he had shaken the attachment of his old friends, perceived a necessity for caution in the management of the heated patriots of the new house ; for, till they had time to offend, he could hope for nothing by another dissolution .- His speech, according to the exigency of the day, was a short one, and asked nothing.
He had dissolved the late house, as he suggested, in tenderness to the king's honor and the true interest of the colony, and was happy to find the people had answered his wishes in so proper a choice of new members. He intended to meet the chiefs of the confederate Indian cantons, to obstruct the sale to the French of a tract in the territory of the Seneca tribe, called Irondequot, on the south ยท side of lake Ontario, convenient for erecting a commercial magazine, that might be injurious to ours at Oswego ; and all he had to recommend, was their aid in perfecting the harmony already begun, in which he promised his assistance.
They thanked him for the dissolution, and applauded his sagacity ; wished him a good voyage to Albany, and hoped their next meeting would have consequences answerable to its end.
They sat only two days; but entered on their journals, as resolved, in future, to publish the names of the voters for and against any question : and gave leave to their speaker, which is singular, to bring in a variety of bills : one to regulate elections ; another for frequent elections ; and others for appointing an agent in Great Britain, independent of the governor ; for lowering the interest of money, and for regulating
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and establishing fees. Mr. Alexander, immediately after, was permitted to offer others, to encourage the importation of whites and servants ; the manufacture of iron and hemp; and the preventing of frauds in flour and other products intended for exportation. These acts had the designed effect upon the vulgar, and were applauded as indisputable testimonials of the patriotism of their leaders.
Mr. Clarke went to Albany, and had a conference with the Indians, but was not able to accomplish his designs. Irondequot is a vale of an excellent soil ; and he was desirous of purchasing it from the Indians, not only to defeat the intentions of the French, but to promote settlements there, for the easier subsistence of the garrison and traders at Oswego. But he established an interpreter, a gunsmith, and three others among the Senecas, to watch and circumvent the intrigues of the French, and prevailed upon the tribes to prohibit any buildings in their canton.
He was well apprised that the next meeting of the assembly would call for the utmost exertion of his abilities. Cosby's antagonists, to protect themselves, had taught lessons to the multitude, now to be carried into practice, if they would escape the contempt they had brought upon the members of the last house.
The council, on the other hand, headed the remains of the Cosbyan party, and were not a little disgusted at the late dissolution, which had comple- ted the triumph of their adversaries. Both parties were distrustful of the lieutenant-governor, and upon the watch to engage him in their interests.
He had to curb the intemperate zeal of the
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assembly, to quiet the council, and prevent the resentment of the crown. But there was danger in humouring the council; for an unmanageable assem- bly prompts to suspicions of incapacity, and would either be followed with a loss of his office, or the speedy arrival of a governor-in-chief: add to this, that new supplies were necessary for the discharge of public debts, and the support of the government in future ; and that the leaders of the two contending branches of the legislature were men animated by a spirit of revenge-Mr. Chief Justice Delancey swaying the councils of the upper house, while colonel Morris, his predecessor, his son Lewis, the speaker, and Mr. Alexander, undoubtedly had the confidence of the assembly.
The governor's interest induced him to take a middle path ; and by his art and prudence, a long, active session, from the 23d August to the 16th December, terminated in peace, which the turbu- lency of the late administration rendered doubly agreeable.
He opened the session with a conciliatory speech; applauded the proofs left upon their journals in April, of their attention to the state of the colony; tenderly reminded them, that the crown's right of disallowing the colony laws, rendered it useless to press him to ineffectual concurrences ; touched upon the deficiency of the funds; commended their loyalty, and asked for a revenue; intimated his anxiety for the support of Oswego, and the extent of the Indian commerce, which were great objects ; and promised his assent to all bills that would advance the welfare of the colony.
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The address unusually copious, bold, and coarse, seizes his compliments as promises, which they mean to put to the trial ; stigmatises the last assembly as betrayers of the rights of the people, by detestable submissions to prolong their political life : after which they argue with some earnestness upon the propriety of frequent and uninfluenced elections ; the utility of an agent in Great Britain dependent only upon the house; the propriety of establishing courts, and especially courts of equity, and the fees of officers by legislative acts, instead of ordinances. They proceeded then to obviate the ordinary objections drawn from the prerogative, and a due obedience to the royal instructions. They imputed the deficiency of the revenue to prodigality ; impeach their predecessors in granting permanent funds, and tax the receivers with ingratitude; roundly assure him that they mean to discontinue that practice ; "for," to use their words, " you are not to expect that we either will raise sums unfit to be raised, or put what we shall raise into the power of a governor to misapply, if we can prevent it; nor shall we make up any other deficiencies than what we conceive are fit and just to be paid, or continue what support or revenue we shall raise, for any longer time than one year ; nor do we think it convenient to do even that until such laws are passed as we conceive necessary for the safety of the inhabitants of this colony, who have reposed a trust in us, for that only purpose, and which we are sure you will think it reasonable we should act agreeably to : and by the grace of God, we will endeavour not to deceive them." In honor to themselves, they compliment him for his neglect-
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