After two years’ administration, Governor Hunter had to confess to the Lords of Trade that he could not expect any support of the government from the assembly, “unless her Majesty will be pleased to put it entirely into their own hands;” and in 1715 he appointed Lewis Morris, a wealthy man, as successor to the deceased Chief Justice Mompesson, “because he is able to live without salary, which they [the assembly] will most certainly never grant to any in that station.” He found that he could not carry on the government without yielding, and thereby acting contrary to his instructions, and during the summer of 1715 came to an understanding with the assembly. “I asked,” he says, in a letter to the Lords of Trade, “what they would do for the Government if I should pass it (the Naturalization Bill) in their way, since they did not like mine; I asked nothing for myself, tho’ they well knew that I had offers of several thousands of pounds for my assent; they at last agreed that they would settle a sufficient Revenue for the space of five years on that condition; many rubs I met with, but at last with difficulty carry’d through both parts of the Legislature and assented to both at the same time. If I have done amiss, I am sorry for’t, but what was there left for me to do? I have been struggling hard for bread itself for five years to no effect and for four of them unpitty’d, I hope I have now laid a foundation for a lasting settlement on this hitherto unsettled and ungovernable Province.”
In asserting their rights as representatives of the people and compelling the executive finally to acknowledge them, the assembly had followed the course which has been shown to be effective in the English Parliament since the days of William III. But the legislative supremacy over the executive established by this victory was greater than that obtained by Parliament. In New York the executive could only collect taxes when first authorized by the legislature, while the people, through their representatives, kept the control of the sums collected in their own hands by appointing the receiving and disbursing officers.
Hunter’s wise course in yielding on several points had a better effect on the province than at first he was willing to confess. Fletcher had found the people of New York “generally very poor and the government much in debt, occasioned by the mismanagement of those who have exercised the King’s power.” The revenues of the province were in such deplorable condition that several sums of money had to be borrowed on the personal credit of members of the council to pay the most pressing debts of government; the burden of war, unjustly placed on the shoulders of New York, had impoverished the inhabitants and almost destroyed their usefulness as taxpayers; while the neighboring colonies, either refusing to assist in the defence of the frontiers against the French or being dilatory in sending their quota of money and men, reaped the advantage of New York’s patriotism by receiving within their boundaries the bulk of the foreign trade, and by adding to their population the majority of emigrants. When Hunter left the province, after ten years’ service as its governor, he could congratulate the assembly on increased prosperity and on a better state of public affairs.
His successor was the comptroller of customs at London, William Burnet, the son of the celebrated bishop, who exchanged places with Hunter. Smith, the historian, describes him as “a man of sense and polite breeding, a well-read scholar, sprightly and of social disposition.... He used to say of himself, ‘I act first and think afterwards.’” The good reports which preceded Burnet made a favorable impression on the colonial assembly, and the whole period of his administration was undisturbed by constitutional disputes, even though people opposed to him tried to create trouble by asserting that the appointment of a new governor of the province required, like the accession of a new king, the election of a new assembly, and by representing the continuance of an assembly under two governors as unconstitutional.
Burnet’s distrust of the neighboring French caused some stir in mercantile circles. He had an act passed forbidding all trade in Indian goods with Canada,—an act which would have benefited the province in general by securing all the Indian trade, a large part of which now found its way to Canada; but the merchants of New York and Albany, who disposed of their surplus to Canada traders, would have made less profits. They consequently opposed Burnet’s plans until the end of his administration (1728).
During the three years of John Montgomerie’s rule, which was ended by his death, in 1731, New York enjoyed some rest, to be violently disturbed, however, by the claims of his successor. It had been usual in the royal instructions of the governor to fix the salary of the president of the council at half the amount allowed to the executive, and it was customary to provide that in the absence, resignation, or death of the governor or lieutenant-governor he should assume the reins of the government. Upon Montgomerie’s death, Rip van Dam, as eldest member of the council, became president, and then claimed the full salary of the governor, which the council, after five months’ deliberation, finally allowed. It was upon this decision that the famous Zenger libel suit of a few years later hinged. Soon after the arrival of the new governor, William Cosby, Rip van Dam was called upon (November, 1732) to restore to the treasury a moiety of the full salary, which, under the decision of the council, he had been receiving in contravention, as was claimed, of the royal instructions. On the refusal of the president to comply, the attorney-general of the province was directed to begin an action in the king’s name “to the enforcing a Due Complyance with the said Order [to refund] according to the true Intent thereof and of his Majestie’s Additional Instruction.”
At the trial, the chief justice, Lewis Morris, surprised the governor, the attorney-general, and the whole aristocratic party (Van Dam and his friends representing the popular party) by informing the king’s counsel, in the first place, that the question to be discussed was one of jurisdiction, involving the right of the court to decide cases of equity; and in the second place, that he denied such jurisdiction, and in general the right of the king to establish courts of equity.[473] Jealous to maintain the royal prerogatives, Cosby removed Morris from the chief-justiceship, and put De Lancey, the second justice, in his place. Finding his efforts to be reinstated without result, and having no other means to avenge himself, Morris had recourse to the press, and in Zenger’s New York Weekly Journal he attacked the governor with extreme rancor, and attempted to influence the general assembly, to which he had been elected, against the king’s authority to erect courts. Even Cosby’s death, in 1736, could not conciliate him. The attacks upon his administration continued, and Morris’s vindictiveness finally even disturbed the council and the assembly. President Clarke, who had temporarily succeeded Cosby, was deterred from arresting Van Dam, the younger Morris, Smith the historian, and Zenger the printer, to be sent to England to be tried for treason, only because the forty-fifth paragraph of the instructions required positive proof of the crime in such cases.
The trial of Zenger had, however, already shown that it was not safe to accuse a man of a crime when a jury had already acquitted him. The first number of the Weekly Journal appeared on the 5th of November, 1733; and its editor had from the beginning made war upon the administration with so much vigor that in January following the chief justice, De Lancey, “was pleased to animadvert upon the doctrine of libel in a long charge given in that term to the grand jury,”[474] hoping to obtain an indictment against Zenger. The jury did not share the opinions of the chief justice, and failed to indict Zenger. Nor was the general assembly willing to concur in a subsequent resolution of the council that certain numbers of the Journal should be publicly burnt by the hangman, “as containing in them many things derogatory of the dignity of his majesty’s government, reflecting upon the legislature and tending to raise seditions and tumults in the province,” and that the printer should be prosecuted. The burning of the papers (November 2, 1734), carried out by special order of the council alone, was in appearance far from the solemn judicial act which it was meant to be. The sheriff and the recorder of New York, with a few friends, stood around the pile, while the sheriff’s negro, not the official hangman, set fire to it. The municipal authorities, who usually have to attend such ceremonies ex officio, and were ordered to do so in this case, had refused to come, and would not even allow the order to be entered in the proper records, because they considered it to be neither a royal mandatory writ nor an order authorized by law. Zenger’s trial began on the 4th of August, and resulted in a verdict of “Not guilty.”
The publishing of the alleged libel had been admitted, but it was claimed to be neither false, nor scandalous, nor malicious. When the New York lawyers who had been engaged in the defence were disbarred, Andrew Hamilton, a prominent pleader from Philadelphia, took the case. He managed it so adroitly, met the browbeating of De Lancey so courageously, and pleaded the cause of his client so eloquently that he at once achieved a more conspicuous fame than belonged to any other practitioner at the bar of that day. The corporation of New York fell in with the popular applause in conferring upon him the freedom of their city, enclosing their seal in a box of gold, while they added the “assurances of the great esteem that the corporation had for his person and merits.”[475]