C. COLONIAL AMERICA, 1660-1760 (continued 2)
Reading edition
North Carolina Colonial Records, I, 535.
To the King's most Excellent Majestie.
May it please, etc.
Having formerly on severall occasions humbly represented to your Majesty the state of the Government under Proprietors and Charters in America; and perceiving the irregularities of these Governments dayly to increase, to the prejudice of Trade and of your Majesties other Plantations in America, as well as of your Majesties revenue arising from the Customes here, we find ourselves obliged at present humbly to represent to your Majesty;
That those Colonies in general have no ways answered the chief design for which such large Tracts of Land and such Priviledges and Immunities were granted by the Crown.
That they have not conformed themselves to the severall acts of Parliament for regulating Trade and Navigation, to which they ought to pay the same obedience, and submit to the same Restrictions as the other Plantations, which are subject to your Majesties immediate Government; on the contrary in most of these Proprieties and Charter Governments, the Governours have not applyed themselves to your Majesty for your approbation, nor have taken the Oaths required by the acts of Trade, both which Qualifications are made necessary by the late Act for preventing frauds and regulating abuses in the Plantation Trade.
That they have assumed to themselves a power to make Laws contrary and repugnant to the Laws of England, and directly prejudicial to Trade, some of them having refused to send hither such Laws as they had enacted, and others having sent them but very imperfectly.
That diverse of them have denyed appeals to your Majesty in Councill, by which not only the Inhabitants of those Colonies but others your Majesties subjects are deprived of that benefit, enjoyed in the Plantations, under your Majesties immediate Government, and the parties agrieved are left without remedy from the arbitrary and Illegal proceedings of their Courts.
That these Colonies continue to be the refuge and retreat of Pirates and Illegal Traders, and the receptacle of Goods imported thither from foreign parts contrary to Law: In return of which Commodities those of the growth of these Colonies are likewise contrary to Law exported to Foreign parts; All which is likewise much incouraged by their not admitting appeals as aforesaide.
That by raising and lowering their coin from time to time, to their particular advantage, and to the prejudice of other Colonies, By exempting their Inhabitants from Duties and Customes to which the other Colonies are subject, and by Harbouring of Servants and fugitives, these Governments tend greatly to the undermining the Trade and Welfare of the other Plantations, and seduce and draw away the People thereof; By which Diminution of Hands the rest of the Colonies more beneficial to England do very much suffer.
That these Independent Colonies do turn the Course of Trade to the Promoting and proprogating woolen and other Manufactures proper to England, instead of applying their thoughts and Endeavours to the production of such commodities as are fit to be encouraged in these parts according to the true design and intention of such settlements.
That they do not in general take any due care for their own defence and security against an Enemy, either in Building Forts or providing their Inhabitants with sufficient Armes and Amunition, in case they should be attacked, which is every day more and more to be apprehended, considering how the French power encreases in those parts.
That this cheifly arises from the ill use they make of the powers entrusted to them by their Charters, and the Independency which they pretend to, and that each Government is obliged only to defend its self without any consideration had of their Neighbours, or of the general preservation of the whole.
That many of them have not a regular militia and some (particularly the Colonies of East and West New Jersey) are no otherwise at present than in a state of Anarchy and confusion.
And because the care of these and other great mischiefs in your Majesties Plantations and Colonies aforesaid, and the introducing such an administration of Government and fit regulation of Trade as may put them into a better State of Security and make them duly subservient and usefull to England, does every day become more and more necessary, and that your Majesties frequent Commands to them have not met with due complyance: We humbly conceive it may be expedient that the Charters of the severall Proprietors and others intitling them to absolute Government be reassumed to the Crown and these Colonies put into the same State and dependency as those of your Majesties other Plantations, without prejudice to any man's particular property and freehold. Which being no otherwise so well to be effected as by the Legislative power of this Kingdome.
Wee humbly submit the same to your Majesties Royal consideration.
b. John Wise upon Englishmen and Tyranny
This extract comes from a pamphlet by John Wise, minister at Ipswich, and a leader (and sufferer) against arbitrary taxation by Andros twenty years earlier, and is in the nature of a warning that the American English will not submit to political aggression.
Englishmen hate an arbitrary power (politically considered) as they hate the devil. ... And though many of their incautelous princes have endeavored to null all their charter rights and immunities, and agrandize themselves in the servile state of the subjects, by setting up their own seperate will, for the great standard of government over the nation, yet they have all along paid dear for their attempts, both in the ruin of the nation, and in interrupting the increase of their own grandeur, and their foreign settlements and conquests.
Had the late reigns, before the accession of the great William and Mary, to the throne of England, but taken the measures of them, and [of] her present majesty,[109] in depressing vice, and advancing the union and wealth, and encouraging the prowice and bravery of the nation, they might by this time have been capable to have given laws to any monarch on earth; but spending their time in the pursuit of an absolute monarchy (contrary to the temper of the nation, and the ancient constitution of the government) through all the meanders of state craft: It has apparently kept back the glory, and dampt all the most noble affairs of the nation. And when under the midwifry of Machiavilan art, and cunning of a daring prince, this Monster, tyranny, and arbitrary government, was at last just born, upon the holding up of a finger! or upon the least signal given, ON the whole nation goes upon this HYDRA.[110]
The very name of an arbitrary government is ready to put an Englishman's blood into a fermentation; but when it really comes, and shakes its whip over their ears, and tells them it is their master, it makes them stark mad.
c. Boston's Action Relative to the Proposed Permanent Salary for the Governor in 1729
Boston Town Records (for dates given).
The full records of the meeting are given, that the student may see how great matters of state were mingled with trivial and local business. The attempt of England to secure a fixed salary for the Governor of Massachusetts would, if successful, have made that officer wholly independent of popular control. Cf. American History and Government, § 118, for the whole story.
At a Meeting of the Freeholders and Other Inhabitants of the Town of Boston Duly Qualified being Regulerly Assembled in a Publick Town meeting at the Town House Tuesday May the 6th 1729—
After Prayer by the Revd mr Thomas Prince [and after] Elisha Cooke Esqr Chose[n] Moderator for this Meeting.
Sundry Petitions Read Vizt
About a place for the Grainery
About m. [Mr.] Peleg Wiswalls Sallary
About m. Edward Mills Sallary
m. Samuel Oakes Petition
m. Jerā [Jeremiah] Condys Petition
The Selectmens Report of Sundry things left to them
Voted to Chuse 4 Representatives
The Number of Voters Were 192
votes.
Elisha Cooke Esqr 188 Chose[n] Representatives
m. Thomas Cushing 190
m. Ezekll Lewis 190
m. Samll Welles 184
Voted To Chuse a Cōmittee to Prepare Instructions for the Representatives for their Acting at the General Court at their Approching Session, And to Lay them befor the Meeting in the Afternoon—
Voted: That John Alford Esqr mesrs Henry Dering and Nathll Cunningham be the Said Committee—
On the Petition of Sundry Inhabitants about the Situatian of the Grainery
Voted That mr Moderator and the Selectmen be Joyned with the Cōmittee appointed for Building the Grainery, Be desired to View the Place, And make Return of their Opinion thereof to the Meeting after Dinner this Day—
mr John Jeffers Excus'd Chosen Assessors.
mr Thomas Moffat Excus'd
Edward Maycomb Sworn Clerks of the Market.
John Spooner Sworn
Nathanll Cobbit Sworn
Post Meridiem.
Voted That the Grainery be Erected and Set up Rainging with the Line of the Burying place on the Cōmon fronting Eastward, The Said Building to be not Less then [than] forty feet distant from the [South] Corner of the Brick wall of the Burying place—
mr James Pemberton Pay[111] Assessors.
mr James Watson Sworn
In as much as the Gramer School at the North End of the Town of which mr Peleg Wiswall is the Master is much Increaced in the Number of the Schollers, and that no Usher is alowed to assist him in his School:
Voted That there be an Additian of Forty Pounds to the Said mr Wiswalls Salary—
Samll Oakes Petition Read and Dismist—
In Answer to Mr. Edward Mills His Petitian. Voted That there be an Addition of Twenty Pounds to the Said Mr. Edward Mills Sallary—
Upon A Motion made by Elisha Cook Esquire That the Dividing Line between the Towns Land in the Occupation of Mr. Nathaniel Williams and His Land on the East Side in School Street is for want of due Care become Crucked, intrenching both upon the One and the Others Land, That therefore they would Direct and Imp[o]wer the Selectmen to Rectifie that line as to them Seems Just and Equitable—And Further That they would be pleased to Accomodate him with about two feet of the Front of his Land next Mr. Williams on Such Terms as the Selectmen Shall Agree for with the Said Mr. Cooke—
Read and Voted That it be left with the Selectmen to Act therein as they Judge Meet—
On the Petition of Mr. Jeramiah Condy for Addition to his Salary.
Voted that the Consideration of Said Petition be Referred for further Consideration to the Next Town Meeting, and That in the mean time Nathaniel Green John Alford Esquires and Mr. Thomas Cushing Junior are desired to Inspect the Several Wrighting Schools within this Town at Such Time as they Shall think Avisable for the year Currant, And that they do in an Espesial Manner Vizit Mr. Condys School and Report to the Town at their Meeting the Ability and Industry of the Said Mr. Condy and the Proficiency of the Schollers under His Tuition—
The Comittee this day chosen and Appointed to Prepare Instructions for the Representatives, for their Acting at the General Court at their Approching Session And to Lay [them] before the Meeting in the afternoon—Return as Follows: Viz.
To Elisha Cooke Esquire, Messrs. Thomas Cushing, Ezekiel Lewis and Samuel Welles:—
Gentlemen—
Your known Loyalty to His Present Majesty King George, and Sincear Atachment to the Succession in the Illustrious House of Hannover, Your Hearty Love to this Your native Country, Your Singuler Value for the Liberty and Propperty of this People, your Cheerfull and Una[ni]mous Concurrance to promote our Best Intrist, And your Approved Integrity in those Publick Stations wherein you have bin Employed, Have fixed the Eyes of this Town on and Determined their Choice of you as Propper Persons to Represent them in the Next General Assembly Wherin they Expect That you behave your Selves with your Wonted Zeal and Courage in Prossecuting those good Designes which may tend to the Peace and wellfair of these His Majestys Good Subjects, and Secure those Rights and Priviledges which by the Royal Charter we have a Just claim to, and as Englishmen do of Right appertain to us, And agreable there unto we Recomend unto you in an Especial Manner—
That you Endeavor to Maintain all our Civil Rights and Propertys against any Incrochments upon them.
That you Continue to Pay a due Regard to His Excellency Our Governor, and that you Endeavor that He may have an Honourable Support, But we desire at the Same time That you use your utmost Endeavor That the Honourable House of Representatives may not be by any means Prevailed upon or brought into the Fixing a Certain Sallary for any Certain time, But that they may Improve their usual freedom in granting their Money from time to time, as they Shall Judg the Province to be able, and in Such a manner as they Shall think most for the Benefit and advantage thereof, And if your Pay Should be diverted you may Depend on all the Justice Imaginable from this Town whom you Represent:—
John Alford Henry Dering Nathll Cuningham Comittee
The Foregoing Return of the Committee was Presended[ted] Read Sundry times and Voted Approved.
The Report of the Selectmen upon Several Votes of the Town at their Meeting the 10th of March, 1728: were Read and Considered Viz.,
The Selectmen have Viewed the Marsh at the Bottom of the Common, and not finding any Material use that can be made of it at the present, and Considering the Present Circumstances of the Town Are of Opinion it is best to ly in the Condition it now is.
Read and the Report Accepted—....
As to the Proposals About Bennet Street—It is thought Convenient to be Paved if the Town thinke it Convenient to Raise Money for the Doing it at this Meeting.
Read and Refer'd for further consideration to the Next March Meeting....
d. Connecticut refuses to obey a Royal Officer appointed to command her Militia against French and Indians in 1693
New York Colonial Documents, IV, 71.
King William III appointed Fletcher governor of the royal province of New York, and commissioned him to command the militia also of Connecticut, the neighboring charter colony, in the war usually known as King William's War. The device was eminently wise, as a military measure; but it was stubbornly resisted by Connecticut. The historians of that colony delight to tell a legend that when the governor arrived and tried to have his commission read by his secretary to the militia (drawn up in arms to repel rather than to receive him), Captain Wadsworth drowned the reading by commanding drums to beat; three times this was repeated; and the last time Wadsworth added, "If you try again, I'll make daylight shine through you." The following document gives what is probably a more accurate statement,—but one which shows equally well that Connecticut had her way. For the general conflict of which this was one incident between crown and colonies, cf. American History and Government, §§ 117, 118.
Governor Fletcher of New York, to Mr. Southwell
Connecticute in New England
Octoer 30th '93.
Sir:
I have been in this Collony 20 dayes laboreing to perswade a stubborne people to theire dewty. I Publis'd their Majesties [William and Mary] Commission in theire General Court att Hartford. Assured them I had noe pretentions to their civell adminestration. But the mallitia being lodged in the Crowne ... I came with commission under the greate seale to take that ... charge. They refused all obedienc. Have sepperated not only from the Church, But Crowne of England; and allowe of noe appeale from theire Courts, nor the Lawes of England to have any force amongst them. Some of the wiseest have saide "Wee are not permitted to vote for any members of Parliamt, and therefore [are] not lyable to theire lawes." [Expresses military dangers due to refusal.]
I never sawe the like people. ... I could not force obedience haveing noe Company but a few servants and two friends; nor did I think it the King's service to carry on the contest to Bloude, tho they threaten to draw mine for urging my Masters right ... I have just now a letter from a sure freinde acquainting mee the mobb have a designe upon my life. I must not goe out of the way, tho' very thinly attended....
[The following November 10, Fletcher wrote from New York to the Committee on the Colonies urging that the Connecticut Charter be proceeded against under a writ of quo warranto, with a view of uniting that colony with New York. The same letter describes in detail the serious perils from French and Indians. One paragraph should be quoted: "Our hardships grow upon us. Canada ... hath received seven hundred men and stores of Warr from France this last Summer. Our Indians falter ... These small Colonies ... are [as] much divided in theire interest and affection as Christian and Turk. ..."]
112. Commission of a Royal Governor
New Hampshire Provincial Papers, VI, 908 (edited by N. Benton).
This commission, in compact form, describes the government of a royal colony just before the Revolution. The omissions (indicated by ...) are mainly tautological phrases.
George the Third, by the grace of God of Great Britain, France, and Ireland, King....
To our Trusty and well beloved Benning Wentworth Esquire, Greeting: Know you, that Wee, reposing especial Trust and Confidence in the Prudence, Courage, and Loyalty of you Benning Wentworth, of our Especial grace, certain Knowledge, and meer motion, Have thought fit to constitute and appoint you ... to be our Governour and Commander-in-Chief of our Province of New Hampshire ... with all ... the authoritys hereby granted you ... during our will and Pleasure:
And We do hereby require ... you to ... execute all things ... that shall belong unto your said Command ... according to the several Powers ... granted ... you by this Present Commission ... or by such further powers, Instructions, and Authorities as shall at any time be granted or appointed you under our ... sign manual ... and according to such reasonable Laws and Statutes as now are in force or hereafter shall be made and agreed upon by you with the advice and consent of our Council and the Assembly of our said Province....
And wee do hereby give ... you full Power ... to suspend any of the members of our said Council from sitting, Voting, and assisting therein, if you shall find just cause for so doing: and if it shall at any time happen that by the Death or Departure out of our said Province, suspension of any of our said Councillors, or otherwise, there shall be a Vacancy in our said Council (any three whereof we do hereby appoint to be a Quorum), our Will and Pleasure is that you signify the same to us by the first opportunity, that we may ... appoint others in their stead; but that our affairs at that Distance may not suffer for want of a due number of Councillors, if ever it shall happen that there shall be less than seven of them residing in our said Province, Wee do hereby give ... unto you ... full Power ... to choose as many Persons out of the Principal Freeholders, Inhabitants thereof, as will make up the full Number of our said Council to be seven, and no more....
And wee do hereby give ... you full Power ... with the advice and consent of our said Council from time to time, as need shall require, to summon and call General Assemblys of the said Freeholders and Planters within your Government, in manner and form according to the usage of our Province of New Hampshire:
Wee do hereby Declare that the Persons so elected and qualified shall be called and Deemed the General Assembly of our said Province ... and that you ... with the consent of our said Council and Assembly, or the major part of them respectively, shall have full Power ... to make, Constitute, and ordain Laws, Statutes, and Ordinances, for the Publick Peace, Welfare, and good Government of our said Province ... and for the Benefit of us our Heirs and Successors,—which said Laws ... are not to be repugnant, but, as near as may be, agreeable to the laws ... of this our Kingdom of Great Britain.
Provided that all such Statutes and Ordinances, of whatever nature and Duration soever, be, within three months ... after the making thereof, transmitted unto us ... for our approbation or Disallowance [as also Duplicates of the same by the next conveyance]; and in case any or all of the said Laws ..., not before confirmed by us, shall at any time be disallowed ... and so signified by us our Heirs or Successors ... unto you ... or to the Commander-in-Chief of our said Province for the time being, then such and so many of the said Laws ... shall from thence cease, Determine, and become utterly void....
And to the end that nothing may be passed or done by our said Council or Assembly to the Prejudice of us, our Heirs and Successors, We will and ordain that you ... shall have ... a negative Voice in the making and Passing of all Laws and Statutes and ordinances ... and you shall and may ... from time to time, as you shall judge it necessary, adjourn, Prorogue, and Dissolve all General Assemblies as aforesaid....
And We do hereby authorize ... you to constitute ... Judges, and, in cases requisite, Commissioners of Oyer and Terminer, Justices of the Peace, and other necessary officers ... in our said Province for the better administration of Justice and putting the Laws in execution....
And we do hereby give ... you full Power ... where you shall see cause, or shall Judge any offenders ... fit objects for our mercy, to Pardon all such ... offenders, and to remit all ... fines and forfeitures, Treason and Willfull murder only excepted ... in which cases you shall likewise have Power, upon extraordinary occasions, to grant reprieves ... until ... our royal Pleasure may be known....
And We do hereby give ... unto you ..., by yourself or by your Captains ... by you to be authorized, full Power ... to Levy, arm, muster, command, and Employ all persons whatsoever residing within our said Province ... for the resisting and withstanding of all enemies, Pyrates, and rebels ... and to transport such forces to any of our Plantations in America, if necessity shall require, for the Defence of the same ... and to Execute martial Law in time of Invasion, or other times when by Law it may be executed, and to do and execute every other thing ... which to our Commander-in-Chief doth or ought of right to belong....
And We do hereby command all officers ... civil and military, and all other Inhabitants ... to be obedient aiding and assisting unto you, the said Benning Wentworth, in the Execution of this our Commission ... and in case of your Death, or absence out of our Province, unto such person as shall be appointed by us to be our Lieutenant Governor ... to whom we do therefore by these Presents give and grant all and singular the Powers and authorities aforesaid [and, if no Lieutenant Governor has been named, then] the Eldest Councillor, whose Name is first placed in our Instructions to you ... shall take upon him the administration of the government and Execute our said Commission ... and the several Powers therein contained.
113. Free Speech Vindicated
(Trial of John Peter Zenger, 1735.)
Zenger, in 1738, published a "Brief Narrative of the Case and Tryall," somewhat in the form of a modern "Report," though he speaks in the first person. In 1735 the governor of New York removed the chief justice of the colony for personal reasons. Zenger, in his Weekly Journal, vigorously criticized this and other despotic actions of the governor. He was prosecuted for criminal libel; and the new chief justice showed a determination to secure a conviction, trying to limit the jury to deciding only whether Zenger was responsible for the publication, and reserving to himself the decision whether the words were punishable. This was the custom in English courts of the day in government prosecutions.
Italics and black-faced type are as in the original.
[The Attorney General's complaint, as Zenger reports, characterized him as "a seditious person and a frequent Printer and Publisher of false news and seditious Libels, and charged specifically that he] "did falsely, seditiously, and scandalously print and publish ... a certain false, malicious, seditious, scandalous Libel ... concerning His Excellency the Governour ... [in which publication he represented a former inhabitant explaining that he had left the colony, as he doubts not others will, because, among other reasons] They ... think ... that their LIBERTIES and PROPERTIES are precarious, and that SLAVERY is likely to be intailed on them and their Posterity if some past Things be not amended ... (meaning, the past Proceedings of his Excellency the Governor ...) ... [and] WE ... SEE MENS DEEDS DESTROYED, JUDGES ARBITRARILY DISPLACED, NEW COURTS ERECTED WITHOUT CONSENT OF THE LEGISLATURE....
"Who then [can] call any Thing his own, or enjoy any Liberty ... longer than those in the Administration ... will condescend to let them?"
[This publication, the Attorney General charges, was] to the great disturbance of the Peace of the ... Province ... to the Great Scandal of Our said Lord the King, of His Excellency the Governor [etc]; whereupon the said Attorney General of Our said Lord the King, for Our said Lord the King, prays ... the due Process of the Law against him the said John Peter Zenger ... in the Premises.
[The Report continues:]
To this Information the Defendant has pleaded Not Guilty, and we are ready to prove it....
Then Mr. Hamilton,[112] who at the Request of some of my Friends, was so kind as to come from Philadelphia to assist me on the Tryal, spoke.
Mr. Hamilton, "May it please your Honour; I am concerned in this Cause on the Part of Mr. Zenger the Defendant. The Information against my Client was sent me, a few days before I left Home, with some Instructions to let me know how far I might rely upon the Truth of those Parts of the Papers set forth in the Information, and which are said to be libellous ... I cannot think it proper for me (without doing Violence to my own Principles) to deny the Publication of a Complaint, which I think is the Right of every free-born Subject to make, when the Matters so published can be supported with Truth; and therefore I'll save Mr. Attorney the Trouble of Examining his Witnesses to that Point; and I do (for my Client) confess, that he both printed and published the two News Papers set forth in the Information, and I hope in so doing he has committed no Crime. ..."
Mr. Attorney, ... "The Case before the Court is, whether Mr. Zenger is guilty of Libelling his Excellency the Governor of New-York, and indeed the whole administration of the Government? Mr. Hamilton has confessed the Printing and Publishing, and I think nothing is plainer, than that the Words in the Information are scandalous, and tend to Sedition, and to disquiet the Minds of the People of this Province. And if such Papers are not Libels, I think it may be said, there can be no such Thing as a Libel."
Mr. Hamilton, "May it please your Honour; I cannot agree with Mr. Attorney: For tho' I freely acknowledge, that there are such Things as Libels, yet I must insist at the same Time, that what my Client is charged with, is not a Libel; and I observed just now, that Mr. Attorney in defining a Libel, made use of the Words scandalous, seditious, and tend to disquiet the People; but (whether with Design or not I will not say) he omitted the Word false."
Mr. Attorney, I think I did not omit the Word false: But it has been said already, that it may be a Libel, notwithstanding it may be true.
Mr. Hamilton, In this I must still differ with Mr. Attorney; for I depend upon it, we are to be tried upon this Information now before the Court and Jury, and to which we have pleaded Not Guilty, and by it we are charged with printing and publishing, a certain false, malicious, seditious and scandalous Libel. This Word false must have some Meaning, or else how came it there?...
Mr. Ch. Justice, You cannot be admitted, Mr. Hamilton, to give the Truth of a Libel in Evidence. A Libel is not to be justified; for it is nevertheless a Libel that [i.e. tho'] it is true.
Mr. Hamilton, I am sorry the court has so soon resolved upon that Piece of Law; I expected first to have been heard to that Point. I have not in all my Reading met with an Authority that says, we cannot be admitted to give the Truth in Evidence, upon an Information for a Libel.
Mr. Ch. Justice, The Law is clear, That you cannot justify a Libel....
Mr. Hamilton, I thank your Honour. Then, Gentlemen of the Jury, it is to you we must now appeal, for Witnesses, to the Truth of the Facts we have offered, and are denied the Liberty to prove; and let it not seem strange, that I apply my self to you in this Manner, I am warranted so to do both by Law and Reason. The Last supposes you to be summones, out of the Neighbourhood where the Fact is alledged to be committed; and the Reason of your being taken out of the Neighbourhood is, because you are supposed to have the best Knowledge of the Fact that is to be tried. And were you to find a Verdict against my Client, you must take upon you to say, the Papers referred to in the Information, and which we acknowledge we printed and published, are, false, scandalous and seditious; but of this I can have no Apprehension. You are Citizens of New-York; you are really what the Law supposes you to be, honest and lawful Men; and, according to my Brief, the Facts which we offer to prove were not committed in a Corner; they are notoriously known to be true; and therefore in your Justice lies our Safety. And as we are denied the Liberty of giving Evidence, to prove the Truth of what we have published, I will beg Leave to lay it down as a Standing Rule in such Cases, That the suppressing of Evidence ought always to be taken for the strongest Evidence; and I hope it will have that Weight with you....
... It is true in Times past it was a Crime to speak Truth, and in that terrible Court of Star-Chamber, many worthy and brave Men suffred for so doing; and yet even in that Court, and in those bad Times, a great and good Man durst say, what I hope will not be taken amiss of me to say in this Place, to wit, the Practice of Informations for Libels is a Sword in the Hands of a wicked king and [of] an arrand Coward to cut down and destroy the innocent; the one cannot, because of his high station, and the other dares not, because of his Want of Courage, revenge himself in another Manner.
Mr. Attorney, Pray Mr. Hamilton, have a Care what you say, don't go too far neither, I don't like those Liberties.
Mr. Hamilton, Sure, Mr. Attorney, you won't make any Applications; all Men agree that we are governed by the best of Kings, and I cannot see the Meaning of Mr. Attorney's Caution. ... May it please Your Honour, I was saying, That notwithstanding all the Duty and Reverence claimed by Mr. Attorney to Men in Authority, they are not exempt from observing the Rules of common Justice, either in their private or publick Capacities; the Laws of our Mother Country know no Exception....
I hope to be pardon'd, Sir, for my Zeal upon this Occasion: It is an old and wise Caution, That when our Neighbour's House is on Fire, We ought to take Care of our own. For tho', blessed be God, I live in a Government where Liberty is well understood, and freely enjoy'd; yet Experience has shewn us all (I'm sure it has to me) that a bad Precedent in one Government, is soon set up for an Authority in another; and therefore I cannot but think it mine, and every Honest Man's Duty, that (while we pay all due Obedience to Men in Authority) we ought at the same Time to be upon our Guard against Power [i.e., arbitrary power], wherever we apprehend that it may effect Ourselves or our Fellow-Subjects.
I am truly very unequal to such an Undertaking on many Accounts. And you see I labour under the Weight of many Years, and am born down with great Infirmities of Body; yet Old and Weak as I am, I should think it my Duty, if required, to go to the utmost Part of the land, where my Service cou'd be of any Use in assisting to quench the flame of Prosecutions upon Informations, set on Foot by the Government, to deprive a People of the Right of Remonstrating (and complaining too) of the arbitrary Attempts of Men in Power. Men who injure and oppress the People under their Administration provoke them to cry out and complain; and then make that very Complaint the foundation for new Oppressions and Prosecutions. ... But to conclude; the Question before the Court and you, Gentlemen of the Jury, is not of small nor private Concern, it is not the Cause of a poor Printer, nor of New-York alone, which you are now trying; No! It may in its Consequence, affect every Freeman that lives under a British Government on the Main of America. It is the best Cause. It is the Cause of Liberty; and I make no Doubt but your upright Conduct, this Day, will not only entitle you to the Love and Esteem of your Fellow-Citizens; but every Man, who prefers Freedom to a Life of Slavery, will bless and honour You, as Men who have baffled the Attempt of Tyranny; and by an impartial and uncorrupt Verdict, have laid a noble Foundation for Securing to ourselves, our Posterity, and our Neighbours, That to which Nature and the Laws of our Country have given us a Right,—the Liberty—both of exposing and opposing arbitrary Power (in these Parts of the World, at least) by speaking and writing Truth....
Mr. Ch. Just. Gentlemen of the Jury. The great pains Mr. Hamilton has taken, to shew how little Regard Juries are to Pay to the Opinion of the Judges; and his insisting so much upon the Conduct of some Judges in Tryals of this kind; is done, no doubt, with a Design that you should take but very little Notice of what I may say upon this Occasion. I shall therefore only observe to you that, as the Facts or Words in the Information are confessed: The only Thing that can come in Question before you is, Whether the Words, as set forth in the Information, make a Libel. And that is a Matter of Law, no doubt, and which you may leave to the Court. But I shall trouble you no further with any Thing more of my own, but read to you the Words of a learned and upright Judge in a Case of the like Nature.
To say that corrupt Officers are appointed to administer Affairs, is certainly a Reflection on the Government. If People should not be called to account for possessing the People with an ill Opinion of the Government, no Government can subsist. For it is necessary for all Governments that the People should have a good Opinion of it. ...
[Zenger adds]
The Jury withdrew, and in a small Time returned, and being asked by the Clerk, Whether they were agreed of their Verdict, and whether John Peter Zenger was guilty of Printing and Publishing the Libels in the Information mentioned? They answered by Thomas Hunt, their Foreman, Not Guilty. Upon which there were three Huzzas in the Hall which was crowded with People, and the next Day I was discharged from my Imprisonment.
114. Franklin's "Albany Plan," July 10, 1754[113]
On the eve of the French and Indian War, in June 19, 1754, there met at Albany, on the call of the Lords of Trade, a colonial congress to agree upon measures of defense. Seven colonies were represented,—New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, and Maryland,—none south of the Potomac. Massachusetts had authorized her commissioners to "enter into articles of union and confederation" with the other colonies "as well in time of peace as of war." On the sixth day of the session, the Congress voted unanimously that a union of all the colonies was "absolutely necessary for their security." A committee, representing each of the colonies present, was created to consider various plans, and, after almost daily discussions, a general plan was accepted on July 9. Franklin was appointed to draft the detailed plan,—and, the next day, a form submitted by him was adopted. Franklin afterward said of the result: "the Fate of this Plan was singular ... The Crown disapproved it, as having too much Weight in the Democratic Part of the Constitution; and every Assembly, as having allowed too much to Prerogative. So it was totally rejected."
The text of a number of other plans for colonial federation, between 1696 and 1754, are collected in No. 14 of the American History Leaflets.
a. Motives
The following extract is part of the "introduction" to the Plan afterward drawn up by Franklin and printed in his Works (Smyth edition, III, 203-204).
The commissioners from a number of the northern colonies, being met at Albany, and considering the difficulties that have always attended the most necessary general measures for the common defence, or for the annoyance of the enemy, when they were to be carried through the several particular Assemblies of all the colonies; some Assemblies being before at variance with their governors or councils, and the several branches of the government not on terms of doing business with each other: others taking the opportunity, when their concurrence is wanted, to push for favorite laws, powers, or points, that they think could not at other times be obtained, and so creating disputes and quarrels; one Assembly waiting to see what another will do, being afraid of doing more than its share, or desirous of doing less, or refusing to do anything because its country is not at present so much exposed as others, or because another will reap more immediate advantage; from one or other of which causes, the Assemblies of six out of seven colonies applied to, had granted no assistance to Virginia when lately invaded by the French, though purposely convened, and the importance of the occasion earnestly urged upon them;—considering moreover, that one principal encouragement to the French, in invading and insulting the British American dominions, was their knowledge of our disunited state, and of our weakness arising from such want of union; and that from hence different colonies were, at different times, extremely harassed, and put to great expense both of blood and treasure, who would have remained in peace, if the enemy had had cause to fear the drawing on themselves the resentment and power of the whole;—the said commissioners, considering also the present encroachments of the French, and the mischievous consequences that may be expected from them, if not opposed with our [united] force, came to an unanimous resolution; That a union of the colonies is absolutely necessary for their preservation.
b. The Plan
Broadhead's Documents relative to the Colonial History of New York, VI, 589-591.
Plan of a proposed Union of the several Colonies of Massachusetts Bay, New Hampshire, Connecticut, Rhode Island, New York, New Jerseys, Pennsylvania, Maryland, Virginia, North Carolina, and South Carolina,[114] for their mutual defence and security, and for extending the British Settlements in North America.
That humble application be made for an Act of the Parliament of Great Brittain, by virtue of which, one General Government may be formed in America, including all the said Colonies, within and under which Government each Colony may retain its present Constitution, except in the particulars wherein a [change] may be directed by the said Act, as hereafter follows.
That the said General Government be administered by a president General, to be appointed and supported by the Crown, and a grand Council to be chosen by the representatives of the people of the severall Colonies, [met] in their respective Assemblies.[115]
[Provision for election of first grand council, of forty-eight members,—Massachusetts and Virginia to have seven each, Pennsylvania six, Connecticut five, New York, Maryland, North Carolina, and South Carolina each four, New Jersey three, New Hampshire and Rhode Island each two.]
Who shall meet for the present time at the City of Philadelphia in Pennsylvania, being called by the President General as soon as conveniently may be after his appointment.
That there shall be a New Election of the Members of the Grand Council every three years, and on the death or resignation of any Member, his place should be supplyed by a new choice at the next sitting of the Assembly of the Colony he represented.
That after the first three years, when the proportion of money arising out of each Colony to the General Treasury can be known, the number of Members to be chosen, for each Colony shall from time to time in all ensuing Elections be regulated by that proportion (yet so as that the Number to be chosen by any one province be not more than seven nor less than two).
That the Grand Council shall meet once in every year, and oftener if occasion require, at such time and place as they shall adjourn to at the last preceding meeting, or as they shall be called to meet at by the President General, on any emergency, he having first obtained in writing the consent of seven of the Members to such call, and sent due and timely notice to the whole.
That the Grand Council have power to chuse their speaker, and shall neither be dissolved prorogued, nor continue sitting longer than six weeks at one time without their own consent,[116] or the special command of the Crown.
That the Members of the Grand Council shal be allowed for their service ten shillings sterling per diem, during their Sessions or [and] Journey to and from the place of Meeting; twenty miles to be reckoned a days Journey.
That the Assent of the President General be requisite to all Acts of the Grand Council, and that it be his Office and duty to cause them to be carried into execution.
That the President General with the advice of the Grand Council, hold or direct all Indian Treaties in which the general interest of the Colonys may be concerned; and make peace or declare War with Indian Nations. That they make such Laws as they judge necessary for the regulating all Indian Trade. That they make all purchases from Indians for the Crown, of lands not [now] within the bounds of particular Colonies, or that shall not be within their bounds when some of them are reduced to more convenient dimensions. That they make new settlements on such purchases by granting Lands, [in the King's name] reserving a Quit rent to the Crown, for the use of the General Treasury.
That they make Laws for regulating and governing such new settlements, till the Crown shall think fit to form them into particular Governments.
That they raise and pay Soldiers, and build Forts for the defence of any of the Colonies, and equip vessels of Force to guard the Coasts and protect the Trade on the Ocean, Lakes, or great Rivers; but they shall not impress men in any Colonies without the consent of its Legislature. That for these purposes they have power to make Laws and lay and Levy such general duties, imposts or taxes, as to them shall appear most equal and just, considering the ability and other circumstances of the Inhabitants in the several Colonies, and such as may be collected with the least inconvenience to the people, rather discouraging luxury, than loading Industry with unnecessary burthens.—That they might appoint a General Treasurer and a particular Treasurer in each Government when necessary, and from time to time may order the sums in the Treasuries of each Government, into the General Treasury, or draw on them for special payments as they find most convenient; yet no money to issue but by joint orders of the President General and Grand Council, except where sums have been appropriated to particular purposes, and the President General is previously impowered by an Act to draw for such sums.
That the General accounts shall be yearly settled and reported to the several Assemblies.
That a Quorum of the Grand Council impowered to act with the President General, do consist of twenty five Members, among whom there shall be one or more from a majority of the Colonies. That the laws made by them for the purposes aforesaid, shall not be repugnant, but as near as may be agreeable to the Laws of England, and shall be transmitted to the King in Council for approbation, as soon as may be after their passing, and if not disapproved within three years after presentation to remain in Force.
That in case of the death of the President General, the Speaker of the Grand Council for the time being shall succeed, and be vested with the same powers and authority, to continue until the King's pleasure be known.
[Commissions, military and civil, for officers acting under this constitution, to be issued jointly by President-General and Grand Council.]—That the particular, Military as well as Civil establishments in each Colony remain in their present State this General constitution notwithstanding. And that on sudden emergencies any Colony may defend itself, and lay the accounts of expence, thence arisen, before the President General and Grand Council, who may allow and order payment of the same if judged reasonable.
[In 1789 Franklin wrote, with good reason, that the adoption of the Albany Plan would have probably delayed the separation of the colonies from England, "perhaps during another century." There would have been a central legislature to vote supplies and prepare defense against Indians and French, and the British reasons for the Stamp Act would not have existed.]
FOOTNOTES:
XX. HARSH PHASES OF COLONIAL SOCIETY[117]
115. Legal Punishment in Virginia, 1662-1748
Hening's Statutes, II, 75. The following statute was enacted in March, 1662. It was reënacted, in similar words, in 1705 and in 1748 (ib. 367-368 and 507-508), and was in force at the opening of the Revolution.
Whereas many offences are punishable by the laws of England and of this country with corporall punishments, for executeing whereof noe such provision hath been made as the said laws doe require; Be it therefore enacted, that, in every county, the court cause to be sett up a pillory, a pair of stocks, and a whipping post, neere the courthouse, and a ducking-stoole in such a place as they shall think convenient ... And the courts not causeing the said pillory and whipping post, stocks and ducking stoole to be erected within six months, after the date of this act shall be fined five thousand pounds of tobacco to the use of the publique.
116. White Servants in 1774
William Eddes, Letters from America.
These Letters, written in 1774, were printed in London in 1792. Eddes was a customs official at Annapolis.
Persons in a state of servitude are under four distinct denominations: negroes, who are the entire property of their respective owners: convicts, who are transported from the mother country for a limited term: indented servants, who are engaged for five years previous to their leaving England; and free-willers, who are supposed, from their situation, to possess superior advantages....
Persons convicted of felony, and in consequence transported to this continent, if they are able to pay the expense of passage, are free to pursue their fortune agreeably to their inclinations or abilities. Few, however, have means to avail themselves of this advantage. These unhappy beings are, generally, consigned to an agent, who classes them suitably to their real or supposed qualifications; advertises them for sale, and disposes of them, for seven years, to planters, to mechanics, and to such as choose to retain them for domestic service.
The generality of the inhabitants in this province are very little acquainted with those fallacious pretences, by which numbers are continually induced to embark for this continent. On the contrary, they too generally conceive an opinion that the difference is merely nominal between the indented servant and the convicted felon: nor will they readily believe that people, who had the least experience in life, and whose characters were unexceptionable, would abandon their friends and families, and their ancient connexions, for a servile situation, in a remote appendage to the British Empire. From this persuasion they rather consider the convict as the more profitable servant, his term being for seven, the latter only for five years; and, I am sorry to observe, that there are but few instances wherein they experience different treatment. Negroes being a property for life, the death of slaves, in the prime of youth or strength, is a material loss to the proprietor; they are, therefore, almost in every instance, under more comfortable circumstances than the miserable European, over whom the rigid planter exercises an inflexible severity. They [white servants] are strained to the utmost to perform their allotted labour....
The situation of the free-willer is, in almost every instance more to be lamented than either that of the convict or the indented servant; the deception which is practised on those of this description being attended with circumstances of greater duplicity and cruelty. ... They are told, that their services will be eagerly solicited, in proportion to their abilities; that their reward will be adequate to the hazard they encounter by courting fortune in a distant region; and that the parties with whom they engage will readily advance the sum agreed on for their passage; which, being averaged at about nine pounds sterling, they will speedily be enabled to repay, and to enjoy, in a state of liberty, a comparative situation of ease and affluence. ... It is, therefore, an article of agreement with these deluded victims, that if they are not successful in obtaining situations, on their own terms, within a certain number of days after their arrival in the country, they are then to be sold, in order to defray the charges of passage....
117. Runaway Servants and Apprentices
From "Newspaper Extracts," 1770-1771, in New Jersey Archives, First Series, XXVII. The editor of this volume is responsible for the italics.
Trenton Goal, December 28, 1769.
This is to give notice, there was committed to my custody, by William Clayton, Esq., as a runaway apprentice on the 24th day of October last, Thomas Sandaman. This is to inform his master or sheriff that he run away from, that they come and pay charges and take him away, or he will be sold to pay cost and charges, on Saturday the 20th day of January, 1770, by me
Peter Hankinson, Goaler.
—The Pennsylvania Journal, No. 1413, January 4, 1770.
Three Pounds Reward
Run-away on Friday the 12th Inst. from the Subscriber at Hunterdon County, in New-Jersey, an Apprentice, named David Cox, about Twenty Years of Age, a Carpenter and Joiner by Trade, but its likely he may pass for a Mill-Wright, as he has two Brothers of that Trade, that works near Albany. He is about 5 Feet 10 Inches high, large boned, knock kneed, of a dark Complexion, down Look, black Eyes, black Hair, and wears it tied. Had on when he went away, a grey coloured Coat and Jacket, pretty much worn, with Horn Buttons on them, new Leather Breeches, with black Horn Buttons, Russia Shirt, black Yarn Stockings, new Shoes, also a rusty Castor Hat, wears it cocked: It is also suspected he has stole his Indentures, and will very likely show them for a Pass, as he is near of Age. Whoever apprehends said Apprentice, and secures him in any Goal, so that his Master may have Notice thereof, shall have the above Reward, paid by me.
James Taylor.
N. B. Perhaps he may change his Cloaths, that he may not be discovered.
—The N. Y. Gazette, or Weekly Post Boy, No. 1412, January 22, 1770.
New Jersey, November 24, 1769.
Run-away the 22d September, from the Subscriber, living in Monmouth County, in the Township of Shrewsbury, in the Province of East New-Jersey; an indented Servant Man, named Walter Clark, born in the Jerseys, about Twenty-four Years of Age, a Black-Smith by trade, and understands farming Business; he is about six Feet high, has black curled Hair, and keeps his Mouth much open: He took several Suits of Apparel with him, all of a brownish Colour, some Broad Cloth, and some thin Stuff; also one striped double-breasted Jacket. Whoever takes up the above said Servant and delivers him to me the Subscriber, shall have Three Pounds Reward, and reasonable Charges paid, by me.
Benjamin Jackson.
—The N. Y. Journal or General Advertiser, No. 1412, January 25, 1770.
Run away from the subscriber, living near Morris-Town, in New-Jersey, on Christmas-day last, a servant man, named Thomas Clay, a Cooper by trade, near 50 years of age, about 5 feet 10 inches high, brown curled hair, will drink to excess, and then is noisy, likes to sing songs; had on, when he went away, a blue great coat, and jacket of the same, leather breeches, and felt hat. Whoever takes up and secures said servant, so that his master may have him again, shall have Three Pounds Reward, and reasonable charges, paid by
Daniel Gerard, junior.
—Pennsylvania Gazette, No. 2146, February 8, 1770.
Burlington, December 3, 1770.
This Day was committed to the Goal of this City, a certain Thomas Gearn, upon suspicion of being a runaway Servant; he says that he belongs to William Withers, living in Cecil County, Maryland, and that he left his said Master about 14 or 15 Weeks ago. Said Servant is about 20 Years of Age, and says when he left his Master he had an Iron Collar on his Neck, but soon got it off. Whoever owns the said Thomas Gearn, is desired to come or send; pay Charges immediately, and take him away.
—Ephraim Phillips, Goaler.
Gloucester County Goal, September 12, 1771.
Taken up on suspicion, as a runaway servant and now confined here, a young man about 5 feet 6 inches high, marked with the small-pox, has on a blue coat, homespun shirt, and check trousers, says his name is Hugh M'Cage, and that he belongs to one William or John Miller, living near Lancaster. His master, if any he has, is desired to fetch him away, and pay charges; otherwise he will be sold out in 3 weeks from the date hereof.
Richard Johnson, Goaler.
—Pennsylvania Gazette, Sept. 12, 1771.
[These advertisements all relate to White men. Like entries continue through the early Revolutionary days, often in the same column with flaming expressions of the spirit of political liberty, in a manner somewhat amazing to a modern reader. This one volume of newspaper extracts for the years 1770-1771, has seventy-seven such advertisements of run-away White servants for New Jersey alone,—many times as many as there were for runaway Negroes.]