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 4
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ing to influence the late elections, and take it as a pledge of his good conduct in future. Throughout the whole, they are cautious to promise him nothing but a vigilance for the public interest ; and when they thank him for his promises, they impute them to a consciousness that they are not favours, but duties ; and if he performs them, they will then consider him as fulfilling the commands and copying the example of the king, "who makes the good and happiness of his subjects his chiefest care and greatest glory."
Mr. Clarke, who knew that all this was concio ad populum, far from intimating the least displeasure at its asperity, prudently engaged his assent to the election bills, or any others consistent with his duty to the crown; and that in every condition of life, the province should have his best services.
The old party had made some efforts at the election, but with little success. Their most stre- nuous exertions were in the city, during the session, to introduce Adolph Philipse, the late speaker, in the place of Gerrit Van Horne, a deceased member, whose son offered himself in the place of his father.
Before Cosby the sheriff had made a return of Mr. Philipse, petitions were preferred by the other candidate and his electors, complaining of partiality; upon which the house ordered, that neither of them should sit, till the conduct of the sheriff had been examined and considered.
Mr. Smith appeared as counsel for Van Horne, and insisted that Philipse should distinguish which of the allegations of his client he denied or confessed, that time might be saved in the exhibition of the proofs. His antagonist, more consistent
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with the usage of parliament, moved and carried a majority for a scrutiny of the votes.
This success provoked an attack upon Mr. Alex- ander, who was of the minority on that question. It was insisted that, as a member of the council, he ought not be admitted to sit in the lower house. The result was, a promise on his part that, as he had not, since his election, so he would not act in council during the continuance of that assembly ; and a resolve, that while he kept it, he was duly qualified, but that on the breach of it, he should be expelled.
Van Horne and Philipse were directed to exchange lists of the exceptionable electors ; but the sheriff and Van Horne were first heard, and the former acquitted of the charge of misbehaviour. In the debates between the candidates, Mr. Smith made a question, whether the jews were qualified for electors, some of them having voted for Mr. Philipse. The cavil was taken up hastily in one day, and referred for argument on the next : and a resolve carried against the Hebrews by the mere dint of eloquence.
The auditors of this memorable debate of the 23d September, never mention it without the highest encomiums upon the art of the orator .*
Mr. Murray, as counsel for Mr. Philipse, drily urged the authority of the election law, giving a
* Mr. Smith was born 8th October, 1697, at Newport Pagnel, Buckingham- shire, England ; was then at the age of 40 : he had his first education from Mr. Stannard, the minister of Simpson in Bucks, and Mr. Woodward and Mr. Lettin, of Newport Pagnel in that county. He left London with his father's family, 24th May, 1715, and arrived at New-York 17th of August in the same year.
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vote to all freeholders of competent estates, without excepting the descendants of Abraham, according to the flesh ; and with astonishment heard a reply, which captivated the audience into an opinion, that the exception must be implied for the honor of christianity and the preservation of the constitution. The whole history of the conduct of England against the jews, was displayed on this occasion, and arguments thence artfully deduced against their claims to the civil rights of citizenship. After expressing the emotions of pity naturally arising upon a detail of their sufferings under the avaricious and barbarous policy of ancient times, he turned the attention of his hearers to that mystery of love and terror manifested in the sacrifice of Christ ; and so pathetically described the bloody tragedy at mount Calvary, that a member cried out with agony and in tears, beseeching him to desist, and declaring his conviction. Many others wept; and the unfor- tunate Israelites were content to lose their votes, could they escape with their lives ; for some auditors of weak nerves and strong zeal, were so inflamed by this oratory, that, but for the interposition of their demagogues, and the votes of the house in their favour, the whole tribe in this dispersion would have been massacred that veryday, for the sin of their ancestors in crucifying Jesus of Nazareth, and imprecating his innocent blood upon them- selve and their children.
It is at such moments that the arts of persuasion show their power, and few men were more eminently possessed of them than Van Horne's counsellor. He had the natural advantages of figure, voice,
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vivacity, memory, imagination, promptness, strong passions, volubility, invention, and a taste for ornament. These talents were improved by the assiduous industry of a robust constitution, with uninterrupted health and temperance, in the pursuit of various branches of science, and particularly in the law and theology. His progress in the latter was the more extensive, from an early turn to a life of piety and devotion. He studied the Scriptures in their originals, when young, and in advanced life they were so familiar to him, that he often read them to his family in English from the Hebrew or Greek, without the least hesitation. He was bred a dissenter in Buckinghamshire, and attached to the doctrines of Calvin ; a great part of his time was spent in the works, French, English, and Latin, of the most celebrated divines of that stamp. He was for some time in suspense about entering into the service of the church Dr. Colman of Boston, upon the perusal of a letter of his penning, in the name of the presbyterian church of New-York, requesting a minister to take the care of it, declared that no man could be more fit than he who had so well described the character of a proper subject for that vacancy. These things are mentioned, to account for that surprise of his auditors at that copia and oratory which Mr. Smith indulged. when he laid aside his law books and took up the bible in the debate I have mentioned. He imagined that the house would reject the votes of all the non-resident freeholders, and if the Jewish voices were struck out of the poll-lists, that his client would prevail. His religious and political creeds were both inflamed
VOL. II .- 7
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by the heat of the times. It was natural to a mind, trembling several years past for the liberties of the colony, and himself then under the rod of oppres- sion for asserting them, to take fire at the prospect of the most distant inlet of mischief. And perhaps he was not himself conscious at that time, of the length to which his transition, from the impolicy of a Jewish interposition in the legislation of a christian community, to the severity of exercising it, would carry him. That severity was then to be justified, and to this he reconciled his judges by an affecting representation of the agonies of the cross. He prepared no notes for this memorable speech : it was delivered within a few hours after the thought of an implicative exception in the election act was first conceived; and the astonishment of the audience rose the higher, by the rare instance of so much pulpit eloquence from a law character at the bar of the house.
But though the Israelites were rejected, the non-resident voices were accepted, and Mr. Philipse, with his nephew the second justice, admitted to a share in councils which they could neither sway nor control. And yet this act of justice to the old speaker gave great offence without doors; the majority adopting Mr. Alexander's erroneous opi- nion, contrary to legal exposition and parliamentary usage, that a personal residence was as requisite in the elector, as communion of interests by a compe- tent freehold.
The judges too, about this time, grew not only impatient under the reproaches incurred by the order for silencing Zenger's counsel, but fearful of its
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consequences. The populace wishing for an oppor- tunity, by action for damages, to repay them the losses they had sustained, their resentment rose the higher, as Mr. Smith, who had lately visited Virginia, was importuned to remove to that colony. To effect a reconciliation, the lieutenant-governor and Mr. Murray were employed to feel the pulses of the two popular lawyers, and testify the wishes of the judges that they would return to the bar. After some punctilios, honore servando, the judges agreed to cancel their injurious order, upon the promise of the latter to release all actions and damages, under the pretext of gratifying the timidity of their wives, who were said to be in constant anxiety from the apprehension of prosecutions and outrages. And in the October term this year, Mr. Alexander and Mr. Smith appeared again at the bar, without any further condescensions on either side.
The patriots obtained a variety of popular laws in the course of the session. The militia was modelled ; the practice of the law amended ; tri- ennial elections ordained ; the importation of base copper money restrained ; courts for the summary decision of petty suits established ; a mathematical and grammar school encouraged ; extravagant usury prohibited by the reduction of interest from eight to seven per cent .; pedlars regulated ; Oswego sup- ported, and the Indian commerce promoted ; paper money emitted, and a loan office erected ; provision made for preserving the metropolis from destruction by fires ; and the precedent set for compelling the officers of government to a reliance upon the annual provision of the assembly for their support.
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But these institutions were nevertheless inade- quate to the elevated expectations of the multitude, and short of the intentions of their leaders. Other bills were brought in, which did not at that time pass into laws. They meant to regulate elections, and totally to exclude the influence of the crown ; to appoint inspectors of exported flour ; to restrain the sale of strong liquors to apprentices and servants, and to others, upon credit ; to reduce the fees of officers ; to engross the appointment of an agent at the court of Great Britain; to promote ship- building ; and to give the quakers a further indul- gence, by exempting them from the trouble of producing the certificates of the quarterly meetings, required by the late act, of their having been mem- bers of that persuasion a year before the offer of themselves for an affirmation. Some of these bills failed by the opposition of the council, who, on the day of the final debates between Van Horne and Philipse, (12th October,) signified their concurrence to two bills in a way not usual, by their clerk. There had never been more than three instances of that kind, and those were messages to the late assembly, between whom and the council, there was a perfect concord upon party principles. The ancient usage of the council, was to send by one of their own mem- bers ; and the present assembly resented the inno- vation, and demanded satisfaction for the insult.
The clerk brought an answer to it a few days afterwards, and was immediately ordered back with a peremptory declaration, that the assembly would thenceforth receive no message from the council by that officer.
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They then began to cavil with the most favourite bills of the majority, and embarrass their progress by proposing amendments, and sent others to the lieutenant-governor with intimation to the house of their concurrence, and were also silent as to some which they either rejected or neglected to the close of the session, and which, for that reason, were never passed into laws They, however, abandoned the attempt for maintaining an intercourse by their clerk; a novelty weakly introduced, because in itself unjustifiable, which exposed them to the contempt of the people, and would doubtless (if by this folly a stagnation of the public business had ensued) have incurred, as every futile controversy of that house will with a popular assembly, the displeasure of the crown and a new set of counsellors.
To the triennial act, they proposed a variety of amendments ; some the assembly rejected; the council adhered to all of them The lower house demanded a conference. They consented, and appointed Messrs. Livingston, Delancey, and Hors- manden their managers. The assembly nominated theirs, but bound them by instructions. When the joint committees met, the managers for the council only delivered a paper with their reasons for their amendments. They were reported, and the house signified that they were not satisfactory, and repeated their demand of a free conference. This was assented to with notice of the time and place. New managers were nominated by the assembly, who reporting in favour of the amendments, they were accordingly adopted. Mr. Alexander was of this last committee. The bill, as it was first framed, had .
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absurdly, in derogation of the prerogative, made it necessary to hold an assembly in the capital and not elsewhere. But the loss of bills for regulating elections and adjusting the fees of officers, contri- buted greatly to the general dissatisfaction ; they were both carried up to the council, who were silent as to the former, till stimulated by a message con- cerning its progress, and then apologized for their non-concurrence, till they could be informed of all the services the officers were to perform, which were not then to be obtained in the multiplicity of busi- ness and at the close of the session. The act against corruption in elections, which also went up late, was retarded by the proposal of amendments ; upon the receipt of which, Mr. Alexander was desirous to appeal to the people, by printing both the bill and the alterations. He lost his motion by a single voice, and the bill was never returned.
Mr. Clarke put an end to the session three days afterwards, affecting the highest satisfaction with their conduct, and expressing his gratitude for their regard to his majesty's honor. He had procured the pay account of the deficiency of the revenue and the augmentation of his own salary to fifteen hundred and sixty pounds, and acquired the general esteem without risking the resentment of his master, for the triennial act was soon after repealed in England, and the lower branches of the legislature divided between them the odium of all the disappointments both of the crown and the subject.
The assembly, before they separated, entered a protest on their journals against the new practice of the council, in concealing their concurrence in seve-
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ral laws they passed by the lieutenant-governor, which had its effect, for it has not since been adhered to. This is a proof that Mr. Clarke was privy to the design, it being unusual to re-assemble after passing all the laws.
They sent the speaker to him with their thanks, and requested of his favourable representation to procure the royal approbation of the triennial act, and then adjourned themselves with his leave.
The Cosbyan party had, for some time, consider- ed the lieutenant-governor as a deserter. He knew this, and grew daily suspicious of their power to injure him by the agency of the council, whose consent was necessary, not only in the appointment of officers, but the grant of the waste lands of the crown, from which the governor, at that day, derived the greater part of his profits and emoluments ; but it was also essential to his interest to be upon good terms with the assembly, for upon them he depended for the continuation of his salary, and he flattered himself that he should still be able to re-establish the practice of a provision for years.
In this dilemma he determined to undermine the popular leaders. This he effected by encouraging them with hopes of preferment, judging that, if they took the bait, the people, whom they had brought to despise all senators in office, would hold them in contempt, and that then he could easily attain his own objects, by the dread of a dissolution ; such a turn would, at the same time, render the council obsequio usto his interest in the land-office, where he derived an income, not only as lieutenant- governor, but as the secretary and clerk.
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His stratagem succeeded to his wishes. Mr. Morris, the speaker, Simon Johnson, and others, listened to his offers of places under the government, and Mr. Clarke promised his influence upon the council in their favor, after it had been concerted that the board' should resolutely refuse their con- sent. The intrigues of the chief demagogues were not known abroad till they themselves discovered the snare, and they instantly fell from the heights of popularity into the most abject contempt. This was the condition of the popular party, not only mistrusted, but hated, when Mr. Clarke met them in the autumn of 1738.
Conscious of his superiority, he reminded them, after proposing an address of condolence on the death of queen Caroline, that the crown was without support by the late project, not warranted by usage nor consonant to gratitude, and insisted upon as large and long a revenue as formerly. He then asserted that they had seventeen thousand pounds of bills in circulation, without funds to sink them and preserve their credit-proposed the continua- tion of the excise for that purpose, but not unless they gave the king's government a permanent sup- port. He added the unwelcome information, that their tonnage duty act of 1734 was in danger of a disallowance on representation of the agents of other colonies-urged the appointing one for this province-insisted on finishing the fortifications, and recommended unanimity, as a duty to their king and country.
The elder Morris foresaw the storm, and having provided for himself when last in England, he an-
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nounced his appointment to the government of New-Jersey, and declining his services here, a writ was ordered to supply that vacancy.
No address being ordered, nor any steps taken, except for promoting popular bills, from the 5th to the 21st September, Mr. Clarke prorogued them to the 5th October, and again on the 11th October to the next day. On the 13th he called them before him, and insisted upon what he had already men- tioned-alarmed them with the intention of the French, to make settlements near the Wood Creek, not far above Albany-advised the erection of a fort there, and planting in that country the Scotch emi- grants just arrived, and for whose relief he asked their aid ; added, what he had before hinted in a letter to the speaker, that the Senecas were treating with Mr. Beauharnois,* then the governor of Canada, about the land of Irondequot, and recommended an immediate prior purchase.+
They soon after formed the design of tacking clauses for the continuation of their paper money to the yearly support bill. Mr. Clarke, through their speaker, intimated his objections to that proceed- ing ; on which they unanimously resolved not to pass the support bill without assurances that the paper money of 1714 and 1717, and the excise to cancel the bills, should be continued for some years. To this he replied, that he would not assent without a
* A man of sense and genteel manners, reputed to be a natural son of Louis XIV.
t The history of the disappointments of Captain Laughlin Campbell and his Scotch associates, was anticipated in the first volume, published in 1756, which gave offence to Mr. Colden, the surveyor-general, who was uneasy under the representation made in justice to those unfortunate adventurers.
VOL. II .- 8
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permanent revenue. They then resolved on tacking the clauses ; and the next day he dissolved them, after sharp reprehensions for their inattention to the objects he had recommended, and to facilitate the changes he had in view he suspended the new writ of summons to the 14th July, 1739.
The choice of Mr. Adolph Philipse for the chair in the next assembly, held in March, is a proof that the electors were unfavourable to the anti-Cosbyan chiefs ; some of the warm men of the last house were returned, and a dread of the multitude fell upon both parties The collective body, animated and enlightened during the late troubles by the patriotic publications which were universally read, became jealous of the common interests, suspicious of all officers, and, by reason of former apostacies, more particularly vigilant respecting the conduct of such as themselves had raised into power.
Mr. Clarke's speech, therefore, though importu- nate for the re-establishment of the old practices of supplies for a number of years, was cautious and soothing ; and, after urging the erection and repair of forts, the purchase of Irondequot. presents for the Indians, and aid to the Scotch emigrants from Isla, who had wintered here, he recommended a new law to regulate juries, instead of an old expired one passed in 1699.
The address gave him only general assurances of a mature consideration of these points ; lamented the loss of the triennial act, repealed by the king ; and hinted that they would offer him one for sep- tennial assemblies.
The small-pox raged at that time in the capital,
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and the country members, though the house sat at Greenwich, were very desirous of a recess. To procure this they consented to a provision for a few months, and bore the affront of messages from the council by their clerk ; but when they met again in August, they protested against the repetition of it, and from this period they have been invariably brought by one of the members of the council.
It was not till this late day that the house was furnished with a set of the statutes, and the votes of the commons of England, which, with the acts of the other colonies, had been ordered by the assem- bly, whose journals, though more regular than for- merly, still discover many proofs of their ignorance of the usages of parliament .*
Mr. Clarke renewed his former attempts at the next convention of the assembly, and to promote ship-building, (an art since carried to great perfec- tion,) advised the giving bounties with apprentices ; and at the same time gave them notice of governor Belcher's request, for the nominating commissioners to join with others, to be appointed by the assembly of Massachusetts Bay, in ascertaining the line of partition between the two provinces, which was repeated, during the session, by a letter from that governor of the 17th September, with a threat of carrying it out for themselves, if these instances were slighted ;- words which they fulfilled some years afterwards, to the great detriment of private property in this colony, and the waste of public money, and not without the effusion of blood.
See note A.
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The assembly's neglect to vote an address, their immediate attention to a militia bill, the call for accounts of expenditures and estimates of the new fortifications, were all unfavourable omens of the lieu- tenant-governor's disappointment. He discovered, also, by their votes, an extreme parsimony in the laws intended for the forts; that but only one hundred pounds was allowed for the Irondequot purchase ; that the project for settling the Highland- ers at Wood Creek was disrelished, though pressed upon them by a pathetic petition from these poor strangers, for they had but five voices against post- poning the consideration of their affecting circum- stances. He saw another, for reducing his own salary; and that attempts were made to lessen the petty allowances received by the judges ; and, at last, they concurred in a resolution to support the credit of the paper emissions of 1714 and 1717, if their bill for continuing them with the excise did not pass into a law ; upon which he prorogued them for six days, and sharply reprehended their inat- tention to the great object of his wishes. After proposing the example of the British commons for their imitation, he adds, "they have ever been jealous of the rights and liberties of the people, yet have always been zealous and forward to support the
government that protects them. They give a gross sum for the support of government. They don't touch upon the application or disposition of it, that being the legal and known prerogative of the crown ; and the deficiencies are made good in the like manner."
Having observed that he had passed the militia
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bill before he prorogued them, they no sooner made a house again, on the 9th November, than they pro- tested against the omission of the council, who had neglected to notify their concurrence in that act, as inconsistent with the ancient practice of the good correspondence of the legislature ; but thought fit to send up with their favourite bill to continue the paper money and the excise duty, another, for the erection and repair of the forts, and a third providing for a revenue. But this last was only for one year, and nothing was as yet done towards the application of the money to be raised by it. To win upon their generosity, the sagacious politician, as soon as the council had passed the two first bills, convened both houses, and gave them his assent, saying, when he signed them according to our un- parliamentary practice,* " I do this as the highest instance I can give of my care for the credit and welfare of the colony, and of the confidence I have in your honour," The council conspired with him, and immediately sent Mr. Horsmanden to acquaint them of their concurrence in the revenue bill ; and soon after the house voted a salary to the lieutenant- governor of thirteen hundred pounds ; and by the application bill, not only paid off the arrears, but secured the officers for the ensuing year. To Mr. Horsmanden, who had been constituted the third
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