Continuation of the history of New-York

Front matter

COLLECTIONS

NEAV-YORK HISTORICAL SOCIETY,

FOR THE YEAR 1826.

Chapter I

From Colonel Cosby's appointment to his death ; and to the appointment of Mr. Clarke as President of the Province, in 1736, - - 1 to 68

CHAPTER H.

From Governor Clarke's return to England, to the appointment of Governor Clinton, 68 to 151

Chapter I

From Colonel Coshy^s appointment to his death; and to the appointment of Mt'. Clarke as President of the Province, in 1736.

Upon the death of Mr. Montgomorie, the province was committed to the care of Colonel William Cosby : he had formerly governed Minorca, and exposed himself to reproaches in that island, which followed him across the Atlantic. It was by his order that the effects of one Coppodoville, a Catalan merchant, then residing at Lisbon, were seized at Port Mahon, in 1718, several months before the war of that year was declared against Spain; and he was charged with scandalous practices to secure the booty, by denying the right of appeal, and secreting the papers tending to detect the iniquity of the sentence, and enabling the proprietor to procure its reversal. He arrived here the 1st of August, 1732, and on the 1 0th spoke to the Assembly, who had met several days before, agreeably to an adjournment. After informing the House, that the delay of his voyage was owing to his desire of assisting the agents for defeating a bill brought into Parliament, partial to the sugar islands, he declared his confidence in their willingness to provide for the support of government, by settling a revenue as ample and permanent as in any former instance; urged their attention to the Indian commerce, and promised his power and interest to render them a happy and flourishing people.

Tlie Assembly were more liberal in the address with their lluiuks lliaii their promises ; for they merely en^.iiied in general to contribute to the ease of his administration, and therefore he repeats his request when they come before him to present it.

From their dread of the success of the sugar act, they did not hesitate about a revenue to support the governmeat for six years ; nor to secure out of it, the payment of a salary of fifteen hundred and sixty pounds to tlie Governor, with the emoluments of four hundred pounds per annum in fuel and candles for the fort, and one hundred and fif\y pounds for his voyage to Albany, besides a sum for presents to the Indians. But it was late in the session before they voted any compensation for his assistance to the agents, and not till after the support bill had been passed. They then agreed only to present him with the sum of seven hundred and fifty pounds. The Governor, who had intelligence of it, intimated his disgust, but in terms which, though it procured him an augmentation of two hundred and fifty pounds more, lost him their esteem. He accosted Mr. Morris, one of the members, on this occasion, in terms expressing a contempt of the vote. "■ Damn them," said he, *■' why did they not add, shillings and pence ? Do they think I came from England for money ? Til make them know better."

This year m as the iirst of our public attention to the education of youth : provision was then made for the first time to support a Free Sc1k)o1, for teaching the Latin and Greek tongues, and the practical branches of the mathematics, under the care of Mr. Alexander Malcolm of Aberdeen, the author of a Treatise upon Book-keeping. The measure was patronised by the Morris family, Mr. Alexander, and Mr. Smith, who presented a petition to the Assembly for that objet^t . such was the negligence of tlie day, that an instructor could not find bread, from the voluntary contributions of the inhabitants, though our eastern neighbours had set us an example of erecting and eiidowinff colleijes earlv in the last cenfurv.

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The bill for this school, drafted by IMr. Philipse the speaker, and brought in by Mr. Dclancey, administered to some merriment. It had this singular preamble : " Whereas the youth of this colony are found, by manifold experience, to be not inferior in their natural geniuses to the youth of any other country in the world, therefore, be it enacted," kc.

The opposition to the sugar act, which now engrossed so much the public attention, was unsuccessful. Mr. President Van Dam, the Council, and the Assembly, had all concurred in a petition against it to the King, while Mr. Cosby was in England. They represented the islands as aiming at a monopoly injurious both to the colony and the mother country : asserted that this colony took off more British woollens than all the islands together, except what was imported by Jamaica for the Spaniards; that the act would reduce them to raise their own clothing; that the provisions, horses, and lumber exported from this, and the colonies of Nevv -Jersey and Pennsylvania, brought returns from the foreign as well as British islands, in money, rum, sugar, molasses, cocoa, indigo, cotton, all which, except the rum and molasses, were either consumed here, or furnished remittances to Great Britain for her balance agiinst us; and the specie sent from this colony alone, they conceived to be more than from all the British islands together, Jamaica only excepted : they denied that the British sugar islands could take off half the provisions raised by the three northern colonies aforementioned, or supply us with rum without lessening the exports of sugar. Nothing could be more importunate than their supplications tor the King's protection against the West India project : and now the Assembly devoted one hundred and fifty pounds per annum, with fifty pounds more for disbursements, to any person whom certain merchants of London should nominate as their agent, to assist this colony in what they conceived to be threatening them with ruin ; for they apprehended that all purchasers from the foreign islands for our products, were to be totally prohibited — a design, however, not countenanced by the act.

While Mr. Van Dam was in the chair, it became a question in Council, on drawing the warrants for the Governor's salary, whether the whole or only the moiety should be received by the President. The Assembly were consulted upon it. but declined an opinion. The Council then advised warrants to Mr. Van Dam for the whole salary, and he received the money. Mr. Cosby came out with the King's order of the 31st of May, 1732, for the equal partition between himself and the President, of the salary and all perquisites and emoluments of government during his own absence. Van Dam was contented, if the Governor would also divide with him the sums which came to his hands in England, for he confessed his own receipts to amount to no more than one thousand nine hundred and seventy-five pounds, seven shillings and ten-pence, and insisted that the Governor's were six thousand four hundred and seven pounds, eighteen shillings and ten-pence. Colonel Cosby would not consent to this demand, and the President, who thought him his debtor, refused to tender him a farthing, and demanded a balance. The Governor, to compel the payment and prevent any discount, was advised to proceed against Van Dam in the Exchequer, for in a suit at common law he dreaded a setoflT and the verdict of a jury, the President being a popular and reputable merchant. In Chancery no measures could be taken, for there the Governor presided, and could not be an unexceptionable judge in his own cause.

The Supreme Court exercised the ample authorities both of the King's Bench and Common Pleas, and its sittings, or terms, had been fixed by ordinances of the Governor with the advice of the Council. In certain instances, the Judges had proceeded according to course of the Exchequer, their commissions directing them '• to make such rules and orders as may be found convenient and useful, as near as inay be agreeable to the rules and orders of our

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Courts of King's Bench, Common Pleas, and Exchequer."

Hence the hint for proceeding in Equity before the Judges of the Supreme Court, as Barons of the Exchequer, the majority o^whom, Messrs. Delancey and Phihpse, were the Governor's intimate friends. In Mr. Morris, the Chief Justice, he had not equal confidence.

As soon as Bradley, the Attorney General, brought a bill in this Court against Mr. Van Dam, the latter resolved to file a declaration .at common law against Mr. Cosby, before the same Judges, for his moiety as money received by the Governor to his use, and required his Excellency, by a letter of the 27th August, 1733, to give orders for entering his appearance at liis suit. The Governor slighted his request, and Van Dam, by his counsel, moved the Judges in the subsequent term of October, for their letter to his Excellency, similar to the practice of the Chancery w here a peer of the realm is defendant. The Judges permitted him to file his declaration, but refused the letter, as unprecedented at law, and left him to choose the ordinary process. A summons was then offered to the Clerk of the Court for the seal, but he would not affix it to the writ. The Attorney General had in the mean time proceeded before the same Judges in Equity, to a commission of rebellion, and Van Dam found himself compelled to a defence.

It is natural to imagine that Van Dam's hard and singular situation would excite pity, and that the populace might be induced to redeem him from oppression. He had early engaged Messrs. Alexander and Smith, two lawyers in high reputation, for his counsel. They took exception to the jurisdiction of the Court, and boldly engaged in support of the plea. But when judgment was given by the puisne Judges for overruling it, the Chief Justice opposed his brethren, in a very long argument in writing, in support of his opinion ; at which the Governor was much offended, demanded a copy, and then the Judge, to prevent misrepresentation, committed it to the press.

The exceptions were three : — That the Supreme Court, which claimed this jurisdiction in Equity, was estabhshed by an ordinance of the late King George the First, and expired :it his demise, and had not been re-established in the present reign: — That his present Majesty, by his commission to Governor Montgomorie, under the Great Seal of Great Britain, having commanded him to execute all things in due manner, according to the powers granted by that commission, and the instructions therewith given by the 39th article, of which he was required to grant commissions, with the advice of the Council, to persons fit to be Judgos, and that he had commissioned Mr. Delancey and Mr. Philipse without such advice : — That they had no jurisdiction or authority to compel the defendant to appear upon oath, concerniiig the matters in the bill ; and there is no prescription, act of Parliament, nor act of Assembly, to establish any Supreme Court, nor to empower any Court or persons to hold cognizance of pleas in a Court of Equity, in or for this province.

Mr. Cosby went to his government in Jersey very .soon after the order for overruiifig the plea, which was the 9th April, 1733, in the presence of a crowded and exasperated audience; and upon his return in August, presented Mr. Delancey, at the Council Board, with a commission to be Chief Justice, and had issued another advancing Mr. Philipse to the second seat. The members present, besides Delancey, were Clark, Harison, Cold en' and Kennedy, so that he could not form a Board for this step, there wanting the necessary quorum of five competent members. He did not ask their opinion or advice on this unguarded measure, which added fresh oil to the flame, already spread through the colony, and excited the tears of the multitude.

The Assembly meeting soon after in autumn, Mr. Morris was chosen to represent the county of Westchester, in the place of a deceased member; but he did not present the indenture of his return till the

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last day of a short session, in which nothing of much moment was transacted.

The Court (for all the province was already divided into two parties) made an ineflfectual opposition to Mr. Morris's introducing his son Lewis into the Assembly, as the Burgess of -the town of Westchester. One Forster, a schoolmaster, and appointed Clerk of the Court by Mr. Cosby, was set up agamst Mr. Morris, and supported by Mr. Delancey and Mr. Philipse, who canvassed against the old Judge, who offered himself to the county. The Quakers were all set aside by the Sheriff* Cowper, who insisted upon an oath instead of the affirmation, to prove their freeholds ; a violence, however, which laid the foundation for a law in their favour, while it added, for the present, to the general discontent, already risen so high in the capitol, that their joy on Mr. Morris's next arrival there, was announced by the explosion of the cannon of the merchants' ships in the harbour, and by the citizens meeting and conducting him, with loud acclamations, to a public and splendid entertainment.

The arts, common in such ferments, were played off*by the leaders of the opposition. Zenger's Weekly Journal was engaged in their service, and a great part filled with extracts from the spirited papers of Trenchard, Gordon, and other writers on the popular side; while Bradford's Gazette was employed to defend the Governor and his party.

In the course of the winter of 1734, two vessels arrived for provisions from Louisburgh, where such strong fortifications were erecting as excited the jealousy of all the northern colonies ; and the circumstance of their sounding the passage up from the Hook being discovered, an advantage was taken of it, and an affidavit taken to prove it, published in the papers. The odium fell on the Governor, as countenancing the design of exposing the port and colony to the French ; and Mr. Van Dam made this one of the articles of the charge of '^'^^ -administration.

which he transmitted against him, though there did not appear the least ground for the imputation.

At the parting of some company from Mr. Alexander's, late in the evening of the 1st February, an incendiary letter was picked up in the hall. It had been shoved under the outer door, and was instantly pronounced by Mr. Alexander to be the handwriting of Mr. Harison, then a member of the Council. It was in these words : —

'• To Mr. Alexander :

" I am one who formerly was accounted a gentleman, but am now reduced to poverty, and have no victuals to eat ; and knowing you to be of a generous temper, desire you would comply with my request, which is, to let me have ten pistoles, to supply my necessaries and carry me to my native country. This is a bold request, but I desire you would comply with it, or you and your family shall feel the effects of my displeasure. Unless you let me have them, Til destroy you and your family by a stratagem which I have contrived. If that don't take the desired effect, I swear by God to poison all your tribe so surely, that you shan't know the perpetrator of the tragedy. I beg, for God's sake, that you would let me have the money, and hinder me from committing such a black deed. I know you can spare it, so desire you would let me have it. Saturday night, about 7 o'clock, leave it by the cellar door, Avrapped up in a rag, and about an hour after, I will come and take it : put it on the ground just where I put the stick. If you don't leave it, I advise you not to drink your beer nor eat your bread, if you value your life and healths, for by my soul, I will do what I've mentioned. If I find any w^atch to gunrd me in taking of it, I'll desist and not take it, but follow my intended scheme, and hinder you from acting any more on the stage of life. If you comply, I'll never molest you more ; but if not, I'll hazard my life iii destroying yours, and continue what I am."

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From the neglect to disguise the hand, which Mr. Smith, Mr. Hamilton, Mr. Lurting the Mayor, all pronounced to be Mr. Harison's, it was conjectured that his design was to provoke a criminal prosecution, establish the precedent of convicting on the proof of a similitude of hands, and then, by counterfeiting the writing of one of the demagogues of the day, to bring him to the gallows, while the Governor's friends were to escape by pardon.

It was therefore with great earnestness that Mr. Alexander, under the influence of that suspicion, when called before the Grand Jury, contended against their finding an indictment only upon such evidence, and with caution and reserve that he mentioned Mr. Harison's name, as the Grand Jurors themselves afterwards certified. They contented themselves with an address to the Governor, acquainting him that they could not discover the author, being able to have the evidence no higher than a resemblance between the letter and his writing : that least a presentment or indictment by them upon such evidence, should prove a trap to ensnare some innocent person upon the oath they had taken, they durst not accuse any individual. They besought him, nevertheless, to issue a proclamation, with a promise of reward, for detecting the author of the villany.

This matter was laid before the Council, and referred to Messrs. Harison, Van Horn, Kennedy, Delancey, Courtlandt, Lane, and Horsmanden, who, as a committee, proceeded to make the necessary enquiries preparatory to a report. As Mr. Alexander and Mr. Smith, who were summoned to attend there, refused to appear, while Harison, the suspected author, Avas of the committee, and Mr. Alexander, a member of the Board, left out, they proceeded only upon the testimony of Mr. Hamilton and Mr. Lurting; and though they advised a proclamation, offering fifty pounds for a discovery, yet they reported it as their t)pinion, that Mr. Harison was entirely innocent of the infamous piece of villany laid to his charge ; that he was incapable of being guilty of so foul a deed ; and that the letter was a most wicked, scandalous, and infamous counloifeit and forsjcry, calculated, by some artlbl, malicious, and ctil-mindcd persons, to traduce and vilify the character of an honourable member of his Majesty's Council of this province, and thereby render liim odious and infamous to mankind.

VV hether the Governor was let into the design of the author of the letter, was never discovered; though some stress was laid upon words dropped by a man intimate in the family, who, coming home in his cups late in the evening shortly before the letter was found, said a scheme was executed to hang Alexander and Smith ; and Mrs. Cosby frequently, and without reserve, had declared that " it was her highest wish to see them on a gallows at the fort gate."

Harison was generally suspected, in spite of the testimonial of the Council, of which he made all the use in his power in an exculpatory address to the City Corporation, whose Recorder he then was, suggesting that Mr. Alexander and Mr. Smith had forged the letter to ruin him. They published a refutation of the scandal, which, by assigning proofs of his enmity, strengthened the general suspicions then prevalent against him.

Harison had been concerned with them and others in the design of procuring a patent for part of the great Oblong, surrendered to this colony on the settlement w ith Connecticut.

The petitioners were in this way to be recompensed lor two thousand pounds expended in effecting the establishment of the eastern line of the colony. While the business of the surrender was negotiating, Harison had perfidiously revealed the design to Sir Joseph Eyles, the Duke of Chandois, and others, and prompted them to sue out a patent in England. It issued there on the 1 5th May, 1731, upon erroneous suggestions, and with a description, which did not include the lands meant to be taken up, and which were fortunately granted by Mr. Montgomorie before the E iglish pate.u ir rived, or Mr. Harison had time to correct the information, by which they had been

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deceived, and on which account he had justly exposed himself to censure on both sides of tlie water.

Add to this, that at the very time of tiiiding the incendiary letter, Mr. Harison was under a prosecution tending to overwhelm him with disgrace : he had promoted an action for two hundred pounds in the name of Wheldon, against one Trusdel, who had been his servant. The defendant was reduced to great straits by the action, and complained to his creditor, who knowing nothing of the prosecution, took Trusdel to be insane. When it was discovered that Mr. Harison had ordered the writ in October 1732, to gratify a pique of his own, and without any authority from Wheldon, he retained Mr. Alexander and Mr. Smith, to avenge the poor man he had injured. The Grand Jury presented Harison, and Trusdel in a civil process was cast in the trial. It was afterwards published, and exhibited such proofs of the ingratitude, cruelty, dissimulation, and injustice of Mr. Harison, that he soon after fled to England.

The Attorney General, in tenderness to a man who, besides his place in Council, was Judge of the Vice Admiralty, Examiner in Chancery, and Searcher of the Customs, neglected to put the presentment in form. Several subsequent Grand Juries complained of this delinquency unnoticed, and the criminal kept his ground till 1735, when the fourth Grand Jury resolved he should be screened no longer, and presented an indictment in form.

The political writers, by their industry and address, captivated the minds of the populace, who now ascribed every thing they felt or feared, to the maladministration of their rulers. To undeceive and assuage them, Mr. Cosby convened the Assembly in April, 1734. His salary being secured for several years to come, he had no formidable apprehensions from Mr. Morris's intrigues in the House; and by his friends, Mr. Delancey the new Chief Justice's father, Mr. Philipse the speaker, and his nephew, the second Judge, and their influence upon others, he hoped to bear down the opposition. His speech was a confession of the reality what the public invectives had asserted. He admitted the decay of trade, which his adversaries had imputed to his misrule and the flight of the inhabitants, though he ascribed it to their neglect of ship-building, and the employment of Bermudians as their carriers, and the want of inspectors to support the credit of flour, the main staple of the colony. He urged them to fortify the two cities of New-York and Albany, according to plans he had proposed. He recommended a duty of tonnage on foreign vessels, and a stamp duty upon law proceedings and conveyances; and computed that the uncertain produce of the latter should remain in their own Treasury, for future application. He exclaimed against the importation of negroes* and convicts; urged a provision for maintaining smiths and artificers among the Indians, to counteract the artifices of the French ; and promised his concurrence in any law for the defence of the province, the encouragement of commerce, agriculture, and manufactures, the arts and the sciences.

The Assembly expressed their gratitude in very aflbctionate terms, and promised their attention to these objects. The Council, in concert with the Governor's conciliatory schemes, sent down to the Lower House, a bill in favour of the Quakers, within two days after a petition had been presented to the Assembly in their behalf. The plans and estimates for a horse-shoe battery in New-York, a fort at Albany, and another at Schenectady, at the expense of near eighteen thousand pounds, were communicated, and an act passed to raise money, and promote our own navigation by a duty of tonnage. Popular motions were also made by the court party: a bill was brought in to introduce the balloting of jurors. Judge Philipse complained of the exorbitancy of the fees of

* A poll-tax upon negroes, and a stamp duty, beinj frequently urged upon the Assembly by Mr. Delancey, when he came to the chair, renders it probable that this speech of Mr. Cosby's was of his prompting : he was a I wavs fond of those funds.

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officers and lawyers, and a bill was ordered for regulating them : Mr. Delancey moved another, for limiting the continuance of Assemblies, to which the House would consent, if the elections were triennial.

The multitude, however, put no confidence in their appearances, and petitions were circulated to stimulate their representatives to real services : two were preferred on the 28th May, one from the citizens of New-York, and another from the inhabitants in Westchester. A third soon after came up from Queens county; all urging a law to settle fees and courts, for preserving the liberties and properties of the people from arbitrary encroachments.

The aim of the opposition was to overturn the Court of Exchequer ; and on the 3 1 st May, they carried a resolve for hearing Messrs. Murray and Smith, two principal lawyers of different parties, upon that part of the petitions respecting Courts of Justice, for all were agreed upon the fee bill, already before the House.

The 7th of June was appointed for this unparliamentary condescension of the Assembly. The lawyers appeared there, not as counsel for the petitioners, but assistants of the Legislature. The doors were thrown open to satisfy the general curiosity, and the orators admonished that the House expected their opinions candidly, sincerely, and upon honour.

Mr. Murray, the senior counsel at the bar, being not prepared, Mr. Smith began, and spent three hours in that memorable speech which I have already taken notice of Mr. Murray was heard five days afterwards, and then both were dismissed, with the thanks of the House. The doctrine of the former was, that no Court of Equity could be erected in the colony by any act of the crown. The latter argued, that the four great Courts of Chancery, King's Bench, Common Pleas, and Exchequer, were of original jurisdiction, and founded on immemorial usage, but conceiving the colony entitled to like courts, as essential branches of English liberty : he expressed his fears that the establishment of them by a new law, would raise doubts of our title to the rights and privileges of Enghshmen ; and therefore he thought it expedient to go further than merely to regulate them, as had been done in Kiiglaiul, by a law to establish the tenure of the Judges' commission during their good behaviour.

The Senators were confounded by the long arguguments tht^y had heard, and requested copies for the press, postponing any further measures until they had taken the sentiments of their constituents.

The advocates for Mr. Smith's opinion had no prospect of establishing the courts by a law of the colony, but only of drawing the House into the quarrel between the Governor and Mr. Van Dam ; for they foresaw that he would put a negative upon any bill sent up for that purpose. It did not follow from his authorities, as some imagine, that no court could be opened and organised in the colony without the aid of the Legislature ; nor would the passing of an act for that purpose, in the least degree shake our titles, as Mr. Murray asserted, to any other rights and privileges to which we are entitled by the common laws of England.

Neither of these gentlemen, had the question been proposed by the House, would have denied that the colony was entitled, for instance, to a Court of King's Bench, nor that the law constituting the Judges of it, sufficient for their exercise of all the powers of the Court of King's Bench at Westminster, and so respecting either of the other courts.

Mr. Smith's law authority did not militate against such a court, because it would not be creating a new court; and if the crown had exceeded its authority in modelling it, by an ordinance or commission, though that act might be void, (he right to such court would still exist, because it is not in the power of the crown to repeal an old law, and extinguish the rights and privileges of the subjects. Had the Governor appointed other Barons, all clamor against the legality of the Court of Exchequer must have ceased, and Mr. Van Dam's only advantage a change of his

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Judges, unless Mr. Delancey and Mr. Philipse preferred seats in the Exchequer Bench to the Bench of the Supreme Court.

But nothing was less the intention of the contending parties than a just and friendly pacification ; for, if the Governor wished the decision of the controversy upon fair terms, what was more natural than to have proposed at his first coming, either an amiable suit at law. or the submission of it to independent and unbiassed referees, either here or in England. And the injurious project of seeking a mean advantage against his antagonist, can only be atoned for by the virtuous jealousy it excited, in a Colony which derived many benefits from the troubles of the day.

As Mr. Smith's speech added many new proselytes to the opposition, the Governor grew alarmed, and, to counteract it, changed his distance and reproof into mean condescension to the people, the better to effect the new project of revenging himself upon the chief leaders by prosecutions at law. Persons of inferior stations were invited to the Fort and dined at his table, some of whom signed an address applauding the mildness of his administration.