THE FIRST ASSEMBLY No aid, tax, tallage, assessment, custom, loan, benevolence, or imposition whatsoever shall be laid, assessed, imposed, or levied on any of his Majesty's subjects within this province or their estates upon any manner of color or pretence but by the act and consent of the Governor, Council, and Representatives of the people in General As sembly met and assembled. — Charter of Liberties and Privileges. 1683.
Thanks to good judgment or good luck, the Duke of York sent his province a much better succession of governors than did any of the sovereigns who succeeded him as its proprietors. The fourth whom he chose, Colonel Thomas Dongan, was the first of the many Irishmen who have helped to administer public affairs on Manhattan. He was the younger son of Sir John Dongan, baronet, of Castletoun in the county of Kildare, and heir presumptive to his brother William who had been created Baron Dongan and Viscount Claine in the Irish peerage and in 1685 became the Earl of Limerick. He was born in 1634 and bred a Catholic and a soldier. For years he served in the armies of France, his name, which was pro nounced ' Dungan' and spelled in various ways including 'Dun can,' sometimes standing in the French records as ' D'Unguent.' Colonel of a regiment of Irishmen when all the Biitish troops were ordered home in 1678, he then refused the liberal offers with which the French king tempted him to remain in his service, and lost in consequence a great sum that Louis owed him for recruits and arrears of pay. The king of England, it is said, promised him as compensation an annual pension of £500, which it is evident he never got, and appointed him lieutenant-governor of Tangier where he served for two years. With some experience in the management of a dependency and some knowledge of the Dutch and French tongues, he had an acquaintance with French ways and ideas which, at a time when the Canadians needed careful watching, was no less desirable in a governor of New York than military train ing. Doubtless it had counted in his favor that he was a Catholic, and also that he was nephew on his mother's side to `lying Dick Talbot,' for many years the Duke of York's in timate friend and associate in the lowest phases of his private life and, after the duke became king, Earl of Tyrconnel and viceroy of Ireland.
This evil uncle, however, the nephew in no way resembled. Some fifty years later the distinguished New Yorker Cad wallader Colden wrote that Dongan was remembered as an `honest gentleman,' an `active and prudent governor' ; and William Smith recorded that he was 'a man of integrity, mod eration, and genteel manners,' who surpassed all his prede cessors 'in a due attention to our affairs with the Indians' and, although a 'professed Papist,' might be classed 'among the best of our governors.' More than this was true. Dongan was the ablest of all the colonial governors of New York, and more than any other he helpfully influenced its fortunes.
Embarking in the midsummer of 1683 Governor Dongan landed near Boston, continued his journey by way of Long Island, and reached New York on Saturday, August 25. On Monday he published his commission at the City Hall and announced that he was directed to 'give and confirm' to the city all its existing rights and privileges `and more if neces sary.' The magistrates, their records go on to say, escorted him back to the fort, and on Tuesday his Honor dined with them at the City Hall, meeting also 'several of the old magis trates and ancient inhabitants,' receiving 'large and plentiful entertainment,' and giving 'great satisfaction' by his com pany.
His commission, dated in September, 1682, described the province in the words of the duke's patent and then expressly excluded East and West Jersey but said nothing of the aliena tion of Pennsylvania and the Delaware country or of the claims of Connecticut. His instructions, more carefully drawn than Andros's and more fully directing him how to develop the resources of his province, established a type pretty closely adhered to in after years for the guidance of governors of royal provinces. For the first time they laid stress upon the choice of the councillors who, appointed by the duke or in his name, were technically his councillors, not the governor's. And in this connection New Yorkers were for the first time named for office in England. To form 'my council,' as the duke called it, Dongan was directed to appoint Frederick Philipse and Stephanus Van Cortlandt with other `eminent inhabitants' not exceeding ten in number. Named by the duke were also Anthony Brockholls who retained the office he had held under Andros, John Spragge who came to replace John West as secretary, and Lucas Santen who replaced Wil liam Dyre as collector and receiver-general. To these the governor added John Young and, a little later, Lewis Morris who was also a councillor in East Jersey.
Forty-nine years of age at this time, Governor Dongan had neither wife nor child to bring with him. Certain nephews of whom there is later mention probably did not come as soon as he did. As chaplain for the garrison there came the Rev erend John Gordon, most likely the same person as the John Gourdon who had been commissioned in 1674 to accompany Governor Andros. An English priest, Father Thomas Harvey, brought by Dongan as his private chaplain, was the first Catholic ecclesiastic who is known to have visited the city excepting the French missionaries who had tallied there briefly in the days of the Dutch.
Domine Selyns, who had left his congregations on Long Island and at the Bowery village to return to Holland in 1664, had often been urged to come back to New Netherland. When Domine Van Nieuwenhuysen died he consented to take charge of the church in the city. He had arrived in 1682. Now he wrote to the classis of Amsterdam that Domine Pierre Daille, formerly a professor at the Huguenot college of Saumur in France, had come out to serve the French congregation. Daille, it appears, had been in England and came to New York under the auspices of the bishop of London who was always regarded, vaguely at first, definitely in after years, as the di ocesan of the Anglican churches in the colonies. The first regular pastor of the French congregation, Daille assembled it in the Dutch church after Selyns's second service, the English chaplain officiating after his morning service — an amicable arrangement which must have interested a governor fresh from the seething sectarian animosities and fears of the Eng land of Charles II. At one point Dongan's written instruc tions were less explicit than his predecessor's : they said noth ing of freedom in religion or of religion at all. But Selyns re ported that his Excellency, who was very friendly and 'a person of knowledge, refinement, and modesty,' assured him that the duke's orders were to permit 'full liberty of conscience.' According to the duke's orders the members of the assem bly, not to exceed eighteen in number, were to be elected by the freeholders of all parts of the province and its depen dencies after thirty days' notice had everywhere been given. Freedom in debate was guaranteed to them. Their acts were to come before the governor for approval or veto. If ap proved they were to be 'good and binding' until passed upon by the duke. If disapproved by the duke they were then to `cease and be null and void.' In the royal province of Vir ginia the practice prevailed of sending the acts of the legisla ture to be passed upon in England, but no provision to this effect had been inserted in any of the early colonial charters. It had figured for the first time in William Penn's.
Except by due process of law as aforesaid no 'customs or imposts' were henceforward to be exacted in New York. On t›-ect. ordered Dongan to take 'effectual _sare'that there should be a 'constant establishment' for rais ingsuificiertjnoney to dischar e all arrears and te_stippolL the civil t e garrison. No money shoulj_be voted for publicjuses `express mention' it was granted to the dukeior thp_useoLhiazovernment or for some particu arm objectnamed in the act, and none atall_should be expended except upon the governor'sra t. All laws save those 'for a temporary purpose' were to be 'with out limitation of time.' Without his master's sanction the governor was to sign none that might lessen or impair the revenue. Upon the governor was bestowed that powerful weapon for coercive use which the sovereign held in England — the right to summon and to adjourn or dissolve the assembly as he might see fit. All intended to safeguard he interests of the ducal proprietor by limiting the power of_the—provincial—goizemmentfiTEliffering conditions that prevailed in the mother-country the provision that supplies granted by parliament were to be spent only for the purposes it might indicate — a provision which was established as a general principle in 1665 when the House of Commons voted Charles II his great subsidies for the war against Holland — had been devised for the protection of the nation, for the bridling of the crown.
In a brief letter addressed by the duke to the assembly to-be he empowered it to 'consult and propose all such matters as shall be for the public good.' Nevertheless upon the gov ernor he had bestowed all military power including the control of the provincial militia, and upon the governor in council the power to establish courts and to grant lands.
Just after Dongan's arrival one of the towns of eastern Long Island, Easthampton, drew up an address saying that it hoped he had been instructed to restore to the Long Islanders their `birthright privileges' ; if not, they would appeal directly to the king. Elsewhere no signs of distrust appeared. Nor, indeed, were they given time to develop, for, after a hasty visit to Albany, on September 13 the governor in council or dered the issue of writs instructing the sheriffs throughout the province and its dependencies in regard to the election of representatives to meet in assembly at New York on October 17. Although the duke had said that there should be eighteen he had left their apportionment to the governor and his coun cillors. Four, they decided, were to be returned by the city including New Harlem and 'the bowries or farms' elsewhere on Manhattan, two by each of the three ridings of Yorkshire, one by Staten Island which Andros had set off from the West Riding, two by the Esopus country, two by Albany and Rensselaerswyck in common, one by Schenectady and the neighboring settlements, one by Pemaquid, and one by Mar tha's Vineyard and Nantucket. In the more thickly settled parts of the province they were to be chosen by a direct vote of the freeholders, in the eastern islands, Yorkshire, and Eso pus by elected delegates, four from each town, who should meet at the 'sessions house' of each district.
Among freeholders were included, as in England, occupants of leasehold properties. In no colony did manhood suffrage then prevail. In Connecticut a property qualification of £30 was prescribed in 1659; in Virginia the franchise was limited in 1670 to freeholders, leaseholders, and tenants; in Penn sylvania the payment of taxes at least was required; and in Massachusetts, although the visit of the royal commissioners of 1664 had forced a technical change in its system of govern ment, no one could vote in a general election who had not cer tified sectarian as well as property qualifications. In New York a property qualification was not abolished until 1826 and even then was still required of colored voters.
In October the new governor presided in the court of assizes met for its regular annual session. After it adjourned the sheriffs who had attended it drew up an address to the duke thanking him for sending Governor Dongan and for granting an assembly. Dongan, wrote John West to William Penn on the 16th, was 'very civil and obliging to all,' and: In the assizes though he showed himself magis Mars quam Mercu rius yet his behavior was with discretion, patience, and moderation, showing in himself that principle of honor not wilfully to injure any, and had a regard to equity in all his judgments.
The assembly convened as ordered on October 17, a day to be remembered as the birthday of representative government in New York. It met in the fort where Kieft's Twelve Men had met forty-two years before, when representative govern ment drew its first faint breath of life in New Netherland. The journal of the assembly is lost, no list of its members survives, and there is nothing to show which one of the eigh teen was missing — for only seventeen assembled. But West wrote to Penn that `the greatest number' were 'of the Dutch nation' and, he believed, would 'fully answer expectation.' It is known that the most experienced official in the prov ince, Matthias Nicolls who had recently returned from Eng land, was chosen speaker ; and although he is described as `of the East Riding' where he had a large estate, he is said to have been and undoubtedly was one of the four representatives of the city. From local records it may be gathered that a Dutchman and an Englishman, Henry Beekman and William Ashford sat for Esopus, Giles Goddard for Pemaquid, and Samuel Mulford of Easthampton in one of the two seats al lotted to the East Riding of Yorkshire. As a few years later John Lawrence was granted a sum of money by the city 'for his services as an assemblyman' he was one of the city mem bers of this house or of its successor, elected in 1685, and probably of both. And as William Nicolls — a son of Mat thias, who had been educated as a lawyer in England — is said to have boasted in after years that he framed the prin cipal act passed by the first assembly, he also may plausibly be counted among its members. As its clerk there served so important a functionary as John Spragge — secretary of the province, member of the council, and clerk of the court of assizes.
The fact that this was the initial assembly in a proprietary province may well be forgotten in reading its record. Dur ing its first session, which lasted three weeks, it passed fifteen acts. The first calls itself, boldly assuming that the duke would ratify it, 'The Charter of Liberties and Privileges granted by his Royal Highness to the Inhabitants of New York and its Dependencies' ; and its leading paragraphs read : Be it enacted by the Governor, Council, and Representatives now in General Assembly met and assembled and by the authority of the same, That the supreme legislative authority under his Majesty and Royal Highness James Duke of York, Albany &c, Lord Proprietor of the said province, shall forever be and reside in a Governor, Council, and the people met in General Assembly.
At two points this form of words deserves notice. In the first place the assembly divided its legislative power with the executive, as a similar body would not do to-day. To-day its successor says : The People of New York represented in Senate and Assembly do enact as follows. . . .
Yet the phraseology was not like that employed in England where since the time of Henry VII the form has been virtually unchanged : Be it enacted by the King's Most Excellent Majesty and by and with the advice and consent of the Lords spiritual and temporal and Commons in this present Parliament assembled and by the authority of the same as follows. . . .
The second noteworthy point is the mention of 'the people.' `The people' had, indeed, occasionally been referred to as the source of political power. In 1649, for instance, shortly before the execution of Charles I, the Rump Parliament declared that `the people are under God the original of all just power ' ; and in Virginia during the time of the Commonwealth the bur gesses called themselves 'representatives of the people' and in Nathaniel Bacon's time his partisans put forth a declaration `in the name of the people.' But 'the people' had never been mentioned by the crown in a colonial charter, never by a colony in an address to the crown, and never in a legislative definition of powers in government. The Duke of York had said `a general assembly of all the freeholders' by their chosen representatives; and phrases like this, or with 'freemen' in the stead of 'freeholders,' were those to which Englishmen were accustomed on both sides of the sea. The New York assembly, however, used the unfamiliar locution more than once, affirming by statute both the general rights of 'the people' and, in the paragraph about taxation, the rights of `the representatives of the people.' The Charter guarantees the right to vote freely for members of assembly to `every freeholder' according to the interpreta tion of the term in England, where it meant in regard to the county franchise an income of forty shillings from freehold, and to every freeman in any corporation — that is, as things then stood, to every holder of burgher-right in the city of New York. It claims for members of assembly the personal privi leges enjoyed by members of parliament as well as the right to appoint their own times of meeting during their sessions and to adjourn their house as might seem convenient. It says that `a sessions of a General Assembly' must be held `once in three years at least' according to the practice of 'the realm of England.' It does not say from whom the governor must derive his powers but forbids him to take any action without the advice of a quorum of his council. It names twelve counties — a term never used before in New York as constituting the province and its dependencies, and specifies the number of their representatives in assembly. And then it becomes in its latter clauses a bill of rights framed to secure for the province in fullest measure all those safeguards for life, liberty, and property which Englishmen had been able to wrest from their sovereigns, and one important right religious liberty — which except in Cromwell's time Eng lishmen had never even thought of securing by legislation.
The four great abuses of power against which the Petition of Right, assented to by Charles I in 1628, had safeguarded his people were arbitrary taxation, arbitrary arrest, martial law, and the billeting of soldiers and mariners in times of peace. Upon these four points the Charter speaks as em phatically as the Petition, and it also assures to the people of the province such major rights, long enjoyed by Englishmen at home, as the right to trial by jury and to the services of a grand inquest' in capital and criminal cases. Every point is explained in detail, for the New Yorkers could not, like the Englishmen of the time of Charles I, make their meaning clear by referring to written guarantees given them at an earlier day. Yet their Charter plainly shows an acquaintance with the words as well as the principles of the Englishman's guar antees. The Petition of Right set the pattern for a number of clauses, and the famous 39th and 40th articles of Magna Carta were paraphrased in the words : No freeman shall be taken and imprisoned or be disseized of his freehold or liberty or free customs or be outlawed or exiled or any other ways destroyed nor shall be passed upon adjudged or condemned but by the lawful judgment of his peers and by the law of this prov ince. Justice nor right shall be neither sold denied or deferred to any man within this province.
On the other hand, it should be noted, the Charter framed in New York drew no inspiration from the famous Bill of Rights which set for all future time the liberties of Englishmen on a firm foundation after repeated infringements at the hands of Stuart kings. By six years it antedated this bill, framed when William and Mary were seated on the Stuarts' throne. It is also noteworthy that it does not imply, as do all English documents of the kind, a compact with the crown or its repre sentatives. Everywhere, if its title be excepted, it consistently preserves the form of a simple legislative enactment.
For one section of the Charter, the last, there were, as has been said, no precedents in English or English-colonial law or custom. It declares that all churches within the province were to be considered, as before, `privileged churches' independent in forms of worship and church government, provided that all thereafter introduced should have 'the same privileges,' and : That no person or persons which profess faith in God by Jesus Christ shall at any time be any ways molested, punished, disquieted, or called in question for any difference in opinion or matter of re ligious concernment who do not actually disturb the civil peace of the province. . . .
Thus the Charter did not discriminate even against Cath olics. But it perpetuated the curious connection which the Duke's Laws had effected, not between church and state in the Old World sense, but between churches and the state. Each town, it was now decreed by statute, might establish by a two-thirds vote whatever communion it pleased, but all inhabitants were then to contribute towards the support of this communion whether they should choose or should not choose to set up others in the town. Or, as a Dutch domino soon afterwards wrote, the regular pastor of a town was to be paid by obligatory contributions from 'John Everybody.' Two memoranda were appended to the original copy of the Charter of Liberties, preserved in the local archives : New-Yorke, Oct. 26, 1683.
The Representatives have assented to this bill, and order it to bee sent up to the Governo'r and Councell for their assent.
M. Nicolls, Speaker.
After three times reading, it is assented to by the Governour and Councell this thirtieth of October, 1683.
John Spragge, Clerk of the Assembly.
These memoranda are the only direct proof we have that the first legislature of New York sat as a bicameral body, as did the legislatures of New England and New Jersey, as did not the legislature of Virginia until near the end of the seventeenth century. The Charter of Liberties implied that such must be the practice in future, saying that all bills agreed upon by the representatives should be presented to the governor and council for their approbation and consent and then should `be esteemed the laws of the province.' This Charter of Liberties and Privileges is the bill which, it is believed, was drawn up by William Nicolls. He may well have boasted of the fact even in years when he had long been a leader in public affairs. In no other colony, says Dexter North, writing about the constitutional development of the province, had the doctrine of taxation only by consent, 'upon which alone the American Revolution can be justified,' been more explicitly put forth than in this New York bill of rights. The day when it was signed, says Charles Z. Lincoln in his history of the constitution of the State, should be remem bered as one of the 'golden days' in the life of New York, and the bill itself may properly be called the `original constitution' of New York, so many are those among its clauses which, in form or in substance, were reproduced in 1777 in the first State constitution and still stand in the one that is now in force.
While there was no mention in the er • roper of any obligation owed by the people to their ransatlantic rulers the asseinbly_kt once attaehet_it-a revenue act — a 'Con tinued Bill' granting to the duke and his heirs without limita tion of time the proceeds of ex liquors, wines, cider, and beer sold at retail and of taxes on furs and import taxes on all save certain indicated articles mostly the products of the neighboring colonies. The tariff.ra ucyy rescribed were chiefly_spe 'fie and w" eneral higher than t ose that ed. They did away with the distinc tion between commodities of English and of foreign origin but renewed the additional rates on those carried up Hudson's River. These grants slysthiebilLyyer_e_madetodefi2y the necessary chdies of the goyernment and 'in consideration' of confirming and ' Their 'rights andiber.iesLto"the-inhabitants-of--this-provhiCe=iincLtLidr poderity r On • t r 31, say the minutes of the common council, the Charter ran •d by his Royal Highness' and 'confirmed by act of assembly' and the revenue bill were solemnly pub lished at the City Hall in the presence of the governor, the council, the representatives, and the city magistrates, 'the inhabitants having notice by sound of trumpet to hear the same.' On November 1 the governor by proclamation put the revenue act in force; and now no man made trouble for the Duke of York's collector.
The next thing that the assembly did was to create by statute the twelve 'shires or counties' mentioned in the Charter of Liberties. The County of New York included the city (the island of Manhattan) and the East River Islands. Staten Island and a few little neighbors formed Richmond County, named for an illegitimate son of the duke, Nooten Island, now Governor's, being left outside county lines — perhaps by oversight, more probably because it was one of the tracts reserved for the use and benefit of the duke's representatives. Long Island was divided into three counties : King's which included, with Gravesend, the Five Dutch Towns of Stuyve sant's time; Queen's which embraced their English neighbors to beyond Oyster Bay; and Suffolk covering the rest of the island with those adjoining it at the east and Fisher's Island off the Connecticut shore. Thus Yorkshire was wiped out and so were two of its ridings; and, while the East Riding became Suffolk County, in King's and Queen's were revived the judi cial districts formed by Stuyvesant and Colve. On the main land east of the Hudson River lay Westchester County and, north of this, Dutchess County. West of the river lay Orange, which adjoined East Jersey and was named for the duke's son-in-law Prince William, and Ulster which embraced the Esopus country. Albany County lay at the north on both sides of the river. Duke's County included Martha's Vine yard and Nantucket, Cornwall County the Pemaquid depen dency in Maine.
Cornwall and Duke's were soon lost to New York but still bear their New York names. Otherwise the counties of 1683 remained unaltered, except for some changes in their boun dary lines, until 1766 when Albany was divided. In 1897 a portion of Westchester which had previously been annexed to New York, the whole of Richmond, the whole of King's, and a part of Queen's retaining the county organization, were brought within the limits of the greater city of New York, the remainder of Queen's being organized as a new county and called Nassau in memory of the name which after 1693 was the legal though never the customary appellation of Long Island. The four counties thus included within the limits of the city, giving it a total area of 325 square miles, are as coun ties independent of each other. As parts of the municipality they are administered as five boroughs : the Boroughs of Brooklyn, Queen's, and Richmond, coterminous with King's, Queen's, and Richmond Counties, and the Boroughs of Man hattan and the Bronx, both contained in New York County.
For each county, said the assembly in 1683, a sheriff was annually to be appointed. In his hands lay the conduct of elections. By the Charter of Liberties representatives were apportioned according to facts of territory and facts of popu lation. That is, none was apportioned to either Dutchess or Orange County as neither of these had as yet any appreciable number of inhabitants; four were apportioned to New York County, two to each of the other counties ; and an extra one was granted to Schenectady which lay at a distance from the other settlements in Albany County. Thus the Charter of Liberties provided for twenty-three representatives; and, it said, the duke might increase their number. He himself had said that there should not be more than eighteen. To the House of Commons the counties and, excepting London, the cities and boroughs entitled to representation sent each two members. London sent four; and this was undoubtedly the reason why in the duke's province four members were allotted to the county that was virtually coterminous with the capital city.
After repealing the existent laws relating to local taxation the assembly enacted that, for the defraying of local public charges and the maintenance of the poor, each 'city, town, and county' should annually elect assessors to determine the local rate and a treasurer to make disbursements under the or der of commissioners appointed 'for supervising' local pub lie affairs. Here and in the grant of an assemblyman to the town of Schenectady was foreshadowed that system of mixed township-county government which, as already told, developed in the province of New York and has spread from the State of New York widely into the Western States.
The assembly also passed another general revenue act, ap pointing for each county a board of commissioners to collect a tax, to be paid in 'money or other specie,' of one penny in the pound on all estates real and personal, 'by the word money . . . to be understood the produce of the country valued at the current price for money.' The proceeds of this direct property tax were not granted, as were the customs and excise dues, to the Duke of York but as a 'free and voluntary present' to the governor, and not in perpetuity but for one year only.
Thus the first assembly of New York set the whole system of taxation upon a statutory basis. And so it did with the judicial system. Its Act to Settle Courts of Justice established tribunals of four kinds: town or justices' courts for the trial of small causes and cases of debt or trespass not exceeding 40 shillings, without a jury unless demanded by plaintiff or defendant; county courts or courts of sessions with civil and criminal jurisdiction, to be held four times a year in New York, three times at Albany, and twice in the other counties by three or more justices of the peace specially commissioned; a court of oyer and terminer and general jail delivery with original and appellate jurisdiction, to be held twice annually in New York and once in each of the other counties, the judge to be assisted by four justices specially commissioned; and a court of chancery, the supreme court of the province, to consist of the governor and council with power in the governor to depute a chancellor to serve in his stead. An appeal to the crown might be taken in cases involving £100. The long-existent mayor's court of the city of New York was, of course, its town court while the mayor and a certain number of aldermen, duly commissioned, served as justices in the higher courts of New York County.
Another important measure was a general naturalization law providing that all free inhabitants, `of what foreign nation soever,' professing Christianity and taking the oath of alle giance should stand on the same footing in the province as the king's natural-born subjects, and that any who should there after come in and settle might be similarly naturalized by act of assembly. No general naturalization law had ever been passed in England. But as parliament provided no method for the naturalizing of aliens in the colonies until the year 1740, until then each colony did as it pleased. Pennsylvania, for instance, in 1683 gave all aliens full rights who would take the oath; South Carolina passed a general retroactive law in 1696, and New York a second one in 1715, a third in 1730; but colonial New England never framed a general naturaliza tion act of any kind. Theoretically, a naturalized colonial had not, under the Navigation Acts, the right to trade as an English subject; and sometimes the right was actually denied him although in general it was not, as the history of the many foreign-born merchants of New York makes plain. As, how ever, the laws of each colony were valid only within its own borders, a naturalized resident who moved elsewhere lost all his acquired rights.
Another enactment, distinctly non-English, decreed that all deeds, mortgages, and other land papers mentioning property worth £50 or more must be recorded in the office of the register of the county and in that of the secretary of the province. The other acts of this session were to regulate executions and returns of writs, to prevent wiful perjury,' to confirm `the fees usually taken by officers etc.,' to reward wolf-killers, `to prevent damages done by swine,' and to settle `the allow ance to representatives' — ten shillings a day for each day of service and for sixteen days of travel, to be paid by the respective counties. Only in much earlier years had mem bers of the House of Commons been paid, but under colo nial conditions the restriction of legislative service to men of means would not have been practicable even had it seemed desirable.
Such were the enactments of the first legislature of New York at its first session — the fifteen laws which formed the beginning of the statute law of the province and State. Cer tainly they justified the belief, once expressed by the Duke of York to Governor Andros, that assemblies were apt to assume more power than was granted them.
All the bills except the two which had been published on November 1 were published before the City Hall six days later. Early in December all fifteen were sent by a special messenger, Captain Mark Talbott, for the duke's consideration. Until the time when, perchance, the duke might disapprove one or more of them, all of them, the Charter of Liberties included, were 'good and binding.' As soon as the assembly adjourned, the city magistrates, William Beekman still acting as mayor, showed their eagerness to take advantage of the duke's order that Dongan should confirm the rights and privileges of the city and grant it `more if necessary.' They petitioned the governor to intercede with the duke for a municipal charter which should confirm all existing rights, including those conferred by the Bolting Acts, enlarge the powers of the magistrates, and set the municipality upon a more popular foundation. The city, said their chief requests, should be divided into six wards; in each ward the freemen should annually elect an alderman, a common councilman (or assistant alderman), a constable, assessors, overseers of the poor, and other minor but 'useful and necessary' officers; the corporation should appoint its own treasurer; the governor in council should appoint a re corder as well as mayor, sheriff, coroner, and town clerk, and should choose the mayor from among the elected aldermen. To most of these desires Dongan acceded until the duke, to whom he sent the petition, should make his pleasure known; but he did not promise to choose the mayor from among the aldermen, and he refused so to enlarge the powers of the magistrates that the town government of New Harlem would be blotted out.
Pending the time when the first city election would take place he appointed six aldermen, renewed the commission of John West as clerk of the city, and named as mayor Cornelis Steen wyck and as recorder James Graham, who had been one of the aldermen when Dyre was indicted and had been stabbed under the collar-bone by Captain Baxter. This first recorder of New York was a Scotchman who had been for some years in the province and owned property on Staten Island and in East Jersey. The oft-repeated story that he was a son or near relative of the Marquis of Montrose has no shred of foundation. Dongan wrote home that he was a person of `understanding in the law,' this being `his whole business.' A later governor, Lord Bellomont, declared that he had been bred to a trade — neither to learning nor the law; and Graham's career supports Bellomont's rather than Dongan's verdict upon his qualifications. In itself the fact that he was appointed to a judgeship tells nothing, for not until a much later period was legal training thought essential for an occu pant of the bench in any of the colonies. The recorder — in New York as in London where also he served during pleasure while the mayor served for a single year and was seldom con versant with the law — was the chief legal officer of the municipality. He sat on the bench of the mayor's court at the mayor's right hand and was responsible for the proper keeping of the court records.
At once the new magistrates asked for further privileges, 'A An begging that as the revenue of the city was `lost and destroyed' ,/%1 it/night be confirmed in the benefits of the dock, wharf, and 'awn tong-Istandierry and allsthers that might be in 'the benefit of granting licenses' to public houses, and in the possession of all the vacant lands on Manhattan to low-water mark. Don gan expressed his surprise that he should so `suddenly' re ceive a new set of demands. Most of them he granted but not the request for the vacant lands or for the power to grant licenses which, he said, belonged to the governor.
In December the magistrates divided the city into six wards : the South Ward and the Dock Ward covering the extremity of the island, the East and West Wards, the North Ward extending to beyond the Fresh Water or Kalck Hoek Pond, and the Out Ward embracing the rest of the island with the Bowery village and the town of New Harlem. To each ward was assigned one of the aldermen.
As Governor Dongan approved all the acts of the assembly, and as nothing remains to show that he then objected to any of them, it may be supposed that he regarded as permissive, not mandatory, the words in which the duke had conferred upon him and his councillors the power to erect courts. Yet it seems that he was not wholly pleased with the assembly's arrangements. As the time to open the new courts approached he doubted the power of the city magistrates to hold, as justices of the peace, the court of sessions of New York County. Finally he ordered them to do so until the duke should decide, but directed that members of his council might also sit as justices. A little later he said that if a councillor were present he should act as presiding judge and, still later, that members of the council should have the powers of justices of the peace in all the counties.
In February, 1684, the new supreme court, composed of the governor and council, convened for the first time, sitting of course in Fort James. In February also convened the new
court of sessions or, to give its full title, the Court of Quarter or General Sessions of the Peace of the City and County of New York. It sat in the City Hall. Its minutes, covering the period down to 1762 but showing a break at the time of the Leisler interregnum, are preserved in the office of the clerk of the county — three folio volumes beautifully written. At the first term of this court the grand jury, which was sworn in words almost identical with those in use to-day, preSented only one criminal, a burglar.
As judges of the court of oyer and terminer Dongan appointed two lawyers, Matthias Nicolls and John Palmer. Palmer, who was also high sheriff of Richmond County, had come from Barbadoes and had married a sister of Samuel Winder, and it May Dongan renewed the Bolting Acts by proclamation, Werden having again instructed him to care for the 'in terests and advantages' of the city as it was 'the staple of your trade and indeed the key to your country.' So said the city fathers also, explaining that the manufacture of flour and bread was 'the chief support of the trade and traffic to and from this city' and that the city was 'the main support of the province.' No part of the province would profit if trade in the chief articles of export were dispersed; the farmer would gain less than he now did from his corn, the price of which was kept up by the industry of the inhabitants of the city `who first made it a commodity abroad, gained it repute, and are only proper to continue both.' Maryland and Vir ginia, said the magistrates, had the same advantages in the fruits of the earth as New York, yet they could not get 'that was at this time that Winder became clerk of Richmond County. As attorney-general of the province Dongan ap pointed another lawyer, Thomas Rudyard, who had been governor of East Jersey and was Winder's father-in-law. He held the post only until 1685 when Dongan gave it to James Graham who nevertheless continued to serve as re corder of the city. The chief duty of the attorney-general was to protect the interests of the king and the duke. He was never assisted in New York, as he was in England, by a solicitor-general. Indeed, no distinction between lawyers of different kinds was recognized in the colonies.
benefit in trade and husbandry' which New York enjoyed ' by the means and industry of this city only.' While thus comprehensively settling upon lines new and old the internal affairs of his province, Governor Dongan did not forget that his instructions directed him to establish if possible the boundary between New York and Connecticut. Even before the assembly met he charged the Connecticut authorities with designs that ' abused ' the contract made with Nicolls. This charge they denied. But, Dongan explained, Nicolls and the other royal commissioners, being strangers and relying upon the envoys from Connecticut, had been assured that the indicated line would everywhere keep twenty miles away from Hudson's River, and now Connecticut was claiming to within sixteen or seventeen miles of Manhattan and, for all he knew, Esopus and Albany also. If it would not abide by the true line he would assert the rights of the Duke of York as far as his patent extended, which was `to the River Con necticut,' and the rulers of Connecticut would have no cause to feel injured should the charter of their colony thus be brought in question. Thereupon Governor Treat and three others were commissioned to settle the question at New York, with instructions to induce Dongan `to take up with as little as possible.' Aided by the testimony of John Lawrence, John Young, and others personally cognizant of the intentions of Governor Nicolls, Dongan made plain beyond dispute the rights of his province. But as to insist now upon a straight line twenty miles from the Hudson would have been to cut off from Connecticut several towns that it had planted on the shores of the Sound, New York agreed to surrender all these excepting Rye and to begin the line between Rye and Green wich, only about eight miles from the Hudson. As an equiva lent Connecticut surrendered a strip of its territories two miles in width and running northward from the aforesaid towns for more than fifty miles — a strip, afterwards called 'The Oblong,' which figured prominently in land speculations in the eighteenth century. The contract was signed in November, 1683, and the line, giving the southwestern corner of Connecti cut its singular zigzag shape, was surveyed a year later and ratified by both governors early in 1685. When it was con firmed in England in 1700, the basis of the present boundary between the two States was legally established although the line was somewhat altered by agreement in 1731 and was not settled in every detail until 1880.
To prevent the New York Indians from carrying their furs into East Jersey it was especially desirable that the boundary running westward from the Hudson should be settled ; but here nothing was accomplished until a later day; and almost a hundred years went by before either this line or the one between New York and Massachusetts was definitively drawn. Always the Jerseymen had coveted Staten Island and for several years they had claimed it, hoping thus to get undisputed control of the channels — the Kills as they were named by the Dutch men and still are called — which, running between the island and the Jersey shore, led up into Newark Bay and around the northern end of the island into the Bay of New York. The island had always belonged to New York, the government of New York contended; and in Dongan's time the claim of East Jersey was finally disposed of. The channels also New York claimed as being merely branches of the Hudson, the mouth of which was at Sandy Hook. This, in fact, had always been the assumption since early Dutch days. When Michiel Paauw registered his claim to the lands he called Pa vonia, including a stretch of the Jersey shore and Staten Island, they were described as lying ' on both sides of the North River' northward from Hamel's Hoofden (the Narrows). One of the documents relating to Cornelis Melyn's sale of the island to the West India Company describes it as ' in the mouth of the North River.' Governor Andros, ordering two buoys laid off Sandy Hook, said that they should be placed `to the coming into Hudson's River at Sandy Point.' Dongan also implied that his jurisdiction extended as far as this, once asking the duke's permission to build on Sandy Hook a small fort with twelve guns. And for a time the authorities in England indorsed the claim of New York to the Kills, directing Dongan to allow no vessels to come in by them without touch ing at Manhattan.
In March, 1684, the duke's advisers began to consider the acts transmitted by the New York assembly in the previous December. They wished, Werden wrote to Dongan, for some amendments in the revenue act, and they hoped that he would secure the repayment of 'public debts' owing to Sir Edmund Andros for `moneys lent to the inhabitants of New York and Long Island.' The last instalment of the debt owed Andros by the city, it may be noted, was not discharged until the year 1695.
If the Charter of Liberties should be amended, wrote the duke himself in August, the changes would be `equally or more advantageous' to his subjects while `better adjusted' to the laws of England. In the event the Charter was in no way altered; and a memorandum preserved in the Public Record Office says that on October 4, a year after the laws were enacted : His Royal Highness signed and sealed the Charter of Franchises and Privileges to New York in America; which was countersigned by Sir John Werden in the usual form and sent the same evening to the Auditor (Mr. Aldworth) to be registered by him and then to be deliv ered to Captain Talbott to carry to New York.
A similar paper, giving a list of the New York bills as delivered to be engrossed on November 7, shows that the duke had accepted them all. Nevertheless, even the Charter was not returned to New York, there to be promulgated and to be come the established law of the land. It was held back, ap parently, because the duke believed that Rhode Island and Connecticut would soon be deprived of their patents and hoped that they would be added to his province which then would need reorganization.
By this time the reaction in favor of the crown which had followed in England upon the frenzy excited by the supposed Popish Plot had been turned into a passion of loyalty by the discovery of the Rye House Plot, a Whig conspiracy to assas sinate both the king and the duke. King Charles — his popu larity regained, his love of absolutism encouraged, and his worst designs supported by a servile crew of legal functionaries headed by Jeffreys who had been the duke's solicitor-general and was now chief-justice of the realm — was destroying the liberties of Englishmen on both sides of the sea.
This was the most important colonial event of the period, more important than any that had happened since the Dutch province had been added to the king of England's domain. Slowly but surely it had come about. What the crown de manded Massachusetts could not yield without sacrificing the liberties to which it felt itself entitled by its charter. What it assumed and claimed the crown felt that it could not sanction without losing control of the colony and abandoning the effort to execute the laws that crown and parliament thought essential for the welfare of the realm. The most galling to the mother-country of the many offences charged against the Bay Colony, although not the most loudly complained about by the spokesmen of the crown, was insubordination in the paths of trade. Massachusetts uttered truth when it boasted that it had never put the mother-country to a penny's charge, and the merchants of England grossly exaggerated when they affirmed that year by year it defrauded the king's custom house of some £60,000. Nevertheless, it had not rightly acknowledged the validity of the Navigation Acts, nor had its people respected their provisions. The Acts were not en forced, Governor Leverett explained in 1675, because they were thought unconstitutional, parliament having no au thority over the colony ; and in a similar strain the general court wrote to its agents in England. Afterwards, driven to compromise, the general court explained that although the laws of England reached no farther than the confines of the kingdom there was a difference between such laws in general and some that were `proper to foreign plantations.' But the fact that, recognizing this difference, the general court directed all shipmasters to obey the Navigation Acts under the penal ties therein imposed, implied that no law of parliament need be obeyed in the plantations unless reiterated or indorsed by their own legislatures. James Otis remembered these early contentions when he made his famous speech about writs of assistance in 1761. Franklin seems to have forgotten them when he affirmed in 1766 that in America the authority of parliament `was never disputed in laying duties to regulate commerce.' All the colonies infringed the laws of trade, said Edward Randolph; all would yield to them if Massachusetts were subjected to them. Many times it was warned that its resist ance in this and in other directions would cost it its liberties. Several times steps were taken to overthrow these liberties. On one point and another Massachusetts gradually yielded, but by the time that it was alarmed enough to yield what would have sufficed in earlier years, the crown had grown so strong again that it would make no terms. In October, 1684, the charter of Massachusetts was cancelled by a decree of the court of chancery. Bermuda also lost its charter at this time, and Connecticut and Rhode Island were threatened with the same fate.
Thus the free Bay Colony became a royal possession with absolutely no secured rights, liberties, or privileges — a prov ince in worse estate than was New Netherland when, shielded by its Articles of Surrender, it fell under the power of the same king. Now no man within the borders of Massachusetts had even a legal title to his lands. Not even the name Massachu setts had a legal existence.
At the elbow of King Charles during these latter years had stood his brother James. Partly to reward the duke for consenting to the marriage of his second daughter, Anne, with a Protestant prince, George of Denmark, the kin h d violated in his favor_theprovisions of the Test Act, sea mg h• again on the privy council and iiRTially restoring him to the office of lord naval matters and condusting_t em with James's assistance. In fact, says their contemporary, BishopBurnet, by the year 16t34 James ..-has_got the whole management of affairs,' English...as...meg as Scotch, into Ins owiilmmts=TI:rrieason why he was admitted as formerly' to the council which is given by another contemporary, Narcissus Luttrell, applies with equal truth to most of the occurrences of this time of reaction — his Majesty thinking it fitting.' It is known that the duke urged the king toward tyranny at home, approved of coercion for Massachusetts, and worked to destroy the liberties of Connecticut and Rhode Island so that he might add these colonies to New York. Yet it was just at the time when the cities of England and the Bay Colony in America were shorn of their rights and privileges that the duke ratified the Charter of Liberties which his own province, through its first assembly, had conferred upon itself.
This fact, however, merely illustrates a contrast which ap pears when the general character and course of James Stuart as heir-presumptive to the throne of England and as proprietor of New York are compared. To make the contrast striking one need not believe all that was written of James by the Whigs of his own day with Burnet at their head or by the great Whig historian of a later day, Lord Macaulay. It suffices to take the obvious facts of his administration of Scotland, where he consistently fathered iniquitous laws, sanctioned nefarious judgments, and encouraged, for the benefit of a church not his own, the fiercest campaigns of religious perse cution in the history of Great Britain, and to set them beside the obvious facts of his treatment of New York, where he was known, indeed, as an sutocratic ruler but not as a tyrannical irascible, or greedy master, where he permitted religious liberty and pardoned without rancorn een the welcommers of the Dutch invaders of 1673. It suffices to compare his most trusted assocaites and agents in England, Judge Jeffreys and 'lying Dick Talbot' among them, with the decent gentlemen whom he sent out to govern New York - Nicolls and Lovelance, Andoros and Dongan. His government was hated in New York, as any arbitrary government would have been. But that he himself was not feared as immovably tyrannical or cruelly revengeful is shown by the mutineering boldness of his handful of subjects in 1681, by their boldness in legisla tion in 1683. When historians of America refer to the Duke of York as a harsh, rapacious, bigoted tyrant they echo judg ments framed from very different data by historians of Scot land and England. With the whole course of his life in mind it is impossible, of course, even to half-believe his admiring biographer Clarke when he writes of the mildness of James's nature, his unvarying tendency to overlook' the mistakes of his friends and even of his enemies, and his natural inclina tions ever bent to mercy.' But with nothing in mind except his conduct toward New York between the years 1664 and 1685 it is easier to believe Clarke than to believe Macaulay when he paints James Stuart as unvaryingly dull and narrow,' `obstinate, harsh, and unforgiving,' `obdurate' and 'revenge ful' — obstinate in all things and especially obstinate in revenge.' More impartial historians than these have found insoluble problems in his character and conduct while confin ing their study to the records of the two kingdoms. Had they given a side-glance at the records of New York they would have found the same problems still more complicated.
When the clukellst-acquirecHris-provinterit-may indee4 be said, he was neither the convinced Catholic nor the deter mined.absolittist_that lieafterwars for many years he was so unpopular in England, and his position as heir-pre sumptive was so precarious, that he may well have thought it wise to walk carefully even in the by-path of colonial administration; doubtless he gave up the Jerseys and the Delaware and Pennsylvania regions because he dared not make enemies of men as influential as Carteret and Penn; and it has been argued that, as he was biding his time to become more powerful in America, he felt that it was politic to deal mildly meanwhile with his subjects in New York. But such explanations would be more explanatory if another than James Stuart were in question; for no one was ever more impatient and impolitic than he in years when he was playing for much greater than colonial stakes — when he was wearing the crowns of Great Britain, losing them, and trying to regain them. In fact, it seems impossible really to understand how such an 'unintelligent absolutist,' as Lord Acton calls him, could deal with his province for so many years in many ways so intelligently, why so selfish, avaricious, and parsimonious a prince felt so genuine an interest in its current affairs long after he had lost hope of any immediate profit from it, or why the cruel administrator of Scotland, the revengeful king of England, turned so benignant a face to his subjects in America even when their smouldering discontent passed into open defiance. Many more passages than have here been cited from his letters and instructions and from those of his sec retary might be added to show that from the beginning to the end of his twenty-one years as the ducal proprietor of New York James constantly urged upon his deputies impartial justice, patience, clemency, and even a sympathetic blindness. From the same sources no words of an opposite tenor can be gathered.
It was in October, 1684, that the first election for aldermen, assistants, constables, and assessors took place in the capital of the duke's province. One of the aldermen chosen was Nicholas Stuyvesant, the second son of the old governor. As written by the English clerk his name appears as 'Steven son.' From among seven nominees presented by the magis trates Dongan selected as mayor the French merchant Gabriel Minvielle, who was a son-in-law of John Lawrence. A city ordinance of this time decreed that citizens refusing to accept municipal offices should pay specified fines, the heaviest being £20 for declining the mayoralty. It was also ordered in this year that, as many strangers who bore no part of the public charge drew benefit from their stay in New York, all such after a residence of one month should share with the citizens in the duties of `watch and ward' and pay the same taxes and assessments.
Writing in December Dongan told the duke of a report, started according to some by William Penn himself, that Penn was to purchase the province. 'For the extent of it,' the governor thought well to explain, it was `the most flourishing and most improvable' of any in that part of America, and its inhabitants were 'very industrious' and increasing much `in people and shipping.' A few months later he wrote that a promising scheme to form a stock company to manage the fishing and the Indian trade in and about the Pemaquid de pendency had been wrecked by reports from Boston and Pennsylvania saying again that New_York had been sold to Colonel Thompson.
Meanwhile in October of this same year 1684, just when the duke was giving his approval to the laws enacted by the as sembly of New York at its first session, it had convened for its second session. Matthias Nicolls continued to serve as its speaker; one Robert Hammond replaced John Spragge as its clerk. Thirty-one acts received the governor's signature. Some related to minor matters of law and court practice, but some altered the Duke's Laws at major points and in one of these the assembly again assumed a share in a power that had been granted to the executive. This was an Act for Settling the Militia which made the county instead of the town the unit of organization and prescribed that the governor must select all officers from among the freeholders of the places where they were to serve. Another act abolished the old supreme court, the court of assizes — useless now, for the legislature itself had absorbed such law-making functions as it possessed while the new courts took over its judicial functions. In the new as in the old supreme court the secretary of the province served as clerk. Until the Revolution the lesser office remained, as Governor Tryon said in a report rendered in 1773, an ' appendage ' of the greater office.
Several acts of this session throw light upon social conditions. One provided against the hasty private burial of 'servants and others' which had given rise to ' much scandal' and sometimes, `not undiscernedly,' to suspicions of murder. A similar law had been enacted in Virginia in 1662. Another prescribed that no surgeon, physician, or midwife should treat patients `contrary to the known approved rules of art in each mystery or occupation,' or exercise any 'force, violence, or cruelty' (meaning, use physical force or perform an operation) without the consent of `such as are skilful in the said arts' or 'at least of some of the wisest and gravest present' and of the patient himself if of sound mind. No persons, the assembly also thought it needful to enact, should brew beer for sale except those ' known to have sufficient skill or knowledge in the art or mystery of brewing.' A bill to regulate marriages reiterated the old ordinances requiring that a license be taken out or the banns be published three times. It also said that if a married person departed for foreign lands whence the voyage could be performed in one year or less and was not heard of for five years, the spouse might remarry; should the absent one return and prove that he or she had tried to open communication, a decree of the court of chancery might restore such person to his or her marital rights; but if neither party should ask for such a decree both might remain `free from their former obligations' by signing `a release to each other.' Quakers were permitted to use their own marriage ceremony. Still another act, the first legislative recognition of slavery in New York, strengthened the ordinance of the court of assizes, forbidding slaves and bond-servants to traffic in any fashion, laying penalties on persons who should trust them for drink or other commodities, and authorizing justices to make `diligent hue and cry' for any who might escape, impressing if needful 'men, horses, and boats.' Furthermore the assembly provided for an annual salary for the judges of the province, the respective counties to pay their quotas into the hands of the treasurer of the city of New York. It provided for the collection of arrears of the general property tax of the previous year but did not renew the tax. It passed a supplementary revenue act laying a duty of ten per cent on all foreign goods and on all brought from the English West Indies which were not of their own production, and directing all exporters of whale oil, whalebone, and wheat to give bonds that these wares, although not by the law of England `enumerated commodities,' should nevertheless be carried only to English or English West Indian ports.
Dongan wished to send these laws of 1684 to England by the hand of Secretary Spragge, but he wanted also to send the ac counts of the collector of customs, Lucas Santen, with whose conduct he was by no means satisfied, and these he could not get. Not until late in the year 1685 were the laws transmitted. They were never confirmed. Probably they were not even considered, for great changes had come about in the mother country.
At the opening of the yea 1685 Charles II was in a fair way to make himself as absolu for a time, Charles I had been. On February 6, after a brief illness, he died. With out opposition the Duke of York succeeded to the throne as James II. His delegated rights as proprietor of an American province then merged in the rights of the crown. New York became a royal pr.o;4ace as had doubtless been interilerWE51 it was given to the heir-presumptive. Thus it came for the first time under the direct supervision of the Committee for Trade and Plantations. The records relating to it were or dered sent to the Plantation Office, but many seem to have been retained by James with his private papers and were per haps among those that were sent to France when he lost his throne and were destroyed during the French Revolution.
On the very day of the king's death the Lords of Trade in session with the new king prepared letters and a proclama tion for the foreign plantations. On February 28 it was ordered that the Charter of Liberties of New York, now need ing confirmation by the proprietor of the province in his new estate, be compared with the commissions under which the governments of the other colonies had been settled.
In a series of Observations then drawn up the advisers of the king of England displayed a much more critical spirit than those of the Duke of York had shown. They found more or less fault with each and all of the clauses of the Charter of Liberties except the one that secured religious freedom. Sometimes quoting the document incorrectly but not mis interpreting its tenor they explained that the privilege of being governed 'according to the laws of England' was not granted to any of the colonies `where the Act of Habeas Corpus and all other such bills do not take place.' In other colonies, they said, sheriffs and other officers of justice were not given ' like power as in England,' frequent sessions of the assembly were not prescribed, nor was the governor restrained from acting without a quorum of the council. The provision that all bills must be presented to the governor and council for their assent seemed to take away from them the power to orig irate laws, which elsewhere they held. The securing of all legislative power to governor, council, and assembly seemed to `abridge' the power of parliament to legislate for the prov ince. And, The words The People met in a General Assembly are not used in any other Constitution in America; but only the words General Assembly.
In addition to these and other special faults in the Charter it had acquired a general technical defect : the proprietor whom it named was the Duke of York, the actual proprietor was now the king of England.
These Observations were dated March 3. On the same day the king, in session again with the Lords of Trade, pronounced that he did not 'think fit to confirm' the Charter but was pleased to direct that in due time the government of New York `be assimilated to the constitution that shall be agreed upon for New England.' This did not mean that the Charter was vetoed, simply that it was left unratified. It remained `good and binding' until further orders.
On March 5 the king in council wrote to Governor Dongan directing him to proclaim the accession, to make the people of New York certain gracious promises, which were very vaguely worded, and to correspond in future not with Sir John Werden but with the secretary to the Lords of Trade, the William Blathwayt who was also auditor-general for the foreign plantations of the crown. Like other governors of royal provinces Dongan also corresponded with the secretary of state for the southern department in which the colonies were included until, in 1768, a secretary for colonial affairs was appointed.
Whether by accident or by design James II was proclaimed in New York, the militia parading in honor of the event, on the day when he and his queen, Mary of Modena, were crowned at Westminster, April 23. On May 12 the governor in council drew up a loyal address to the king. With it Dongan sent a personal letter of congratulation in which he said that as his Majesty must have 'a whole crowd of importuners' he him self would ask for nothing. On behalf of the city its mayor, Gabriel Minvielle, was less modest. Writing to Werden he urged that, as the city had lost one-third of its trade by the alienation of the Jerseys and the Delaware dependency, James would now reunite these territories to New York, would also `enlarge' it to the eastward, and would grant the city such privileges as might 'make it flourish' as in earlier days. Very soon the people of New York were to learn how com plaints and prayers like these worked not for but against the aggrandizement of their province. Meanwhile a proclamation sent to all the colonies informed them of another limitation set to colonial trade : only members of the East India Company and of the Royal African Company were henceforward to trade in the regions reserved to these associations.
Rebellion in arms in Scotland and in England forced James II to think for a while of nothing but the defence of his throne. Before the end of July it was secure. The Earl of Argyle had died on the scaffold at Edinburgh, the Duke of Monmouth at London. `Kirke's lambs' had been quar tered on the people of the western counties. Judge Jeffreys at his 'Bloody Assizes' had swept hundreds of Monmouth's actual or supposed adherents into their graves, hundreds into slavery beyond the seas; and James in his gratitude made him lord chancellor and a peer of the realm. Yet as late as September, Dongan wrote home, it was reported at Boston that Monmouth had triumphed. A governor, he added, should at once be sent out for Massachusetts. Since the cancelling of its charter, eleven months before, the Bay Col ony had been theoretically in an inchoate condition. Actu ally its old government had gone on but showed, to quote Hutchinson's words, 'symptoms of an expiring constitution' : the legislature was indifferent, 'expecting every day to be superseded.' Naturally the people were restless and ex cited. New York, in Dongan's belief, was in no such dan gerous state. He once described his people as 'generally of a turbulent disposition,' but now he declared that his prov ince was . . . composed most of strangers, and there are few of ill principles. If any English be so they have the wit to conceal it.
It was soon after the accession of James II that the ques tion whether the Delaware counties had belonged first to the Dutch, then to the Duke of York as their heir through con quest, and by his cession to William Penn, or had always belonged to Maryland, was brought to an issue and Stuy vesant's arguments spoken in 1659 by his envoy Augustine Herrman played a chief part in determining the result. Taking testimony with regard to this question in New York, Governor Dongan secured from old Catalina Trico the affi davit regarding the arrival of the first settlers in New Nether land which has already been cited. The Lords of Trade de cided in Penn's favor, dividing by a north and south line the northern part of the peninsula and giving him the eastern half, Maryland the half that bordered on the Chesapeake. Only unpeopled lands, they said, had been granted to Balti more, and those in dispute were then already occupied and planted by Christians. Maryland afterwards reopened the controversy but the decision of 1685 stood firm.
For ten years at least Charles II and his advisers had had it in mind to bring the American plantations into closer con nection with the crown and, as a step in this direction, to consolidate all or some of the New England colonies under a single governor. They might not untruthfully have said that the New Englanders themselves, when they formed their confederacy in 1643, had indicated such a step as needful to ensure safety in case of war. And it was also looked upon in England as a necessary first step toward the establishment of a system of commercial administration which should en force respect for the Navigation Acts and put an end to the intercolonial disputes that, as Sir Edmund Andros had once pointed out, were chiefly trade disputes. This scheme for consolidation lay at the root of the long-considered plans for annulling not only the charter of Massachusetts but also those of Connecticut and Rhode Island, colonies which had given the crown much less cause of offence. James adopted it when he no longer had a personal reason for wishing to en large New York; as soon as his throne was safe he began to put it into execution; and, a much more industrious person than Charles when any business was in hand, he pushed it more energetically than, it may be believed, his brother would have done.
In the summer of 1685 writs of quo warranto were issued against Rhode Island and Connecticut, and also against the proprietors of the Jerseys and the Delaware counties for, said the Lords of Trade, it was to the 'great and growing preju dice' of the plantations at large that such governments should exist without a 'nearer dependence on the crown.' This, there is evidence to show, was a direct first fruit of the peti tion of the mayor of New York. No action immediately fol lowed, for the writs did not reach Boston until the time within which they could legally be executed had arrived. Nevertheless Edward Randolph, who had brought them over, assured the colonies that the king would certainly unite all New England under one government.
Toward this end the king made the first move in September, establishing a provisional government to embrace Massachu setts, New Hampshire, Maine, and the Narragansett country which in 1665 King Charles's commissioners had set apart from its covetous neighbors and called the King's Province. Full power, legislative and executive, over the domain thus consolidated was bestowed upon a president, a deputy-presi dent, and a council of sixteen members, all appointees of the crown. The attorney-general of the crown had declared that the colonies were entitled to a voice in the making of laws and the laying of taxes, and even Randolph, who was named sec retary of the new province, had pleaded for an assembly. But James had struck the words that provided for one out of the president's commission; and, another bitter blow for Massachusetts, this president was Joseph Dudley, a native of its own soil, a son of its old governor Thomas Dudley, a graduate of Harvard College, and one of the agents whom the colony had charged to fight for the life of its charter at West minster. Randolph once described him as 'a man of base, servile, antimonarchical principle' but at another time as one who `wind-miller-like' would turn 'to every gale ' ; and the gale now blew from the monarchical quarter. A traitor many people called him, a turncoat many more. He was not a traitor although he had gone over to the 'moderate party' which by the compulsion of events had grown strong in Massachusetts. He professed a great attachment to the interests of the colony, says Hutchinson, but the people `were not so charitable as to believe him sincere.' He was soon to figure in the history of New York.
In New York Dongan had thought best to dissolve the assembly because in England a parliament expired with the demise of the sovereign. But at once he issued writs of elec tion to the sheriffs of the counties in accordance with the act of assembly of 1683; and in October the second assembly met and chose as its speaker William Pinhorne, an English mer chant who had been in the province ten years or more. Again no list of members survives. The governor approved a few laws relating to the courts and prescribing penalties for Sab bath-breaking, drunkenness, and profanity. Three he ve toed, including one about the collection of quit-rents. One which was passed by the council the house rejected — a bill declaring that in cases affecting the king's revenue the testi mony of a single witness should suffice. Then the assembly adjourned. Its laws, like those passed during the second session of the first assembly, were never considered in Eng land. It held no other session and it had no immediate suc cessor, for very soon the new-born liberties of the province were altogether swept away.
In this month of October Nicholas Bayard took office as mayor of the city. December 30 the governor appointed as a day of thanksgiving for the triumphs of the king of Eng 11683-1685