Whether from a commercial or a military point of view, the Dutch and Quaker colonies occupied the most commanding position in North America. It is that part of the continent which sends streams flowing in divergent courses into the Gulf of St. Lawrence, the Atlantic Ocean, and the Gulf of Mexico. Through deep chasms in the Alleghanies, which run irregularly across it, those superb rivers, the Hudson, Delaware, and Susquehanna, flow into the Atlantic; while the Mohawk, coming from the west, serves to join the valley of the Hudson with the Great Lakes; and in like manner the lovely Juniata, rushing down to join the Susquehanna, has its headwaters not far from the spot where the currents of the Alleghany and Monongahela unite to form the Ohio. With such pathways in every direction, whether for peace or for war, the New Netherland (curious misnomer for a region so mountainous) commanded the continent; and could the Dutch settlement at Manhattan have been adequately supported, it might have threatened or prevented the ascendancy of England in the New World. It was partly owing to this advantage of position that the League of the Iroquois was enabled to domineer over the greater part of the country between the Atlantic and the Mississippi; and through the divergent river valleys and across the chain of mighty fresh-water seas those ferocious but long-headed barbarians in their bark canoes established those lines of trade which modern civilization, with its steamboat and railway, has simply adopted and improved. For a century after its conquest p195by the English, New York, with the western mountains of Pennsylvania, served as a military bulwark for New England and for the southern colonies. The hardest fighting done in the War of Independence was the struggle for the possession of this vantage-ground; and in the second war with England the brilliant victories of Perry and Macdonough maintained on Lakes Erie and Champlain the sanctity of the citadel of America.
It was not, however, until the great immigration of Presbyterians from Ireland and the crossing of Lake Erie by the French that the Pennsylvania frontier acquired its military significance. At the period with which we are dealing in the present volume, the vital point to be defended in the citadel was the stretch of lakes and woodlands between Albany and Montreal. The upper Connecticut valley and the Maine frontier also presented opportunities to a watchful enemy. The danger was sufficiently constant to be an important factor in the policy of all the northern colonies; in New York it was often the dominant factor. Of the twenty-five years which intervened between the accession of William and Mary and the death of Anne, nineteen were years of deadly warfare between French and English, in the New World as well as the Old. Then after a lull of thirty years, interrupted by few local outbreaks like that of Norridgewock in 1724, we come to the final contests in which out of twenty-one years sixteen are years of war. The burden, at first borne chiefly by New York and New England, comes at last to bear upon all the colonies; but first and last New York takes the brunt of it. The strife which had begun with the diplomacy of Andros and Dongan, and which had broken out in bloodshed in the time of Leisler, was thenceforth forever present to the minds of those who sat in council at Fort William or in the City Hall on the island of Manhattan. Until the final overthrow of New France, the development of New York was powerfully influenced by the circumstances which made it the citadel of America.
p196 The accession of William and Mary, which precipitated this warfare with the French, marked in other ways an era in New York as it did in other colonies, and notably in Maryland, Plymouth, and Massachusetts. It transformed Maryland into a royal province, and although the proprietary government was by and by to be restored, yet the days of the old semi-independent palatinate were gone never to return.1 It abolished the separate existence of Plymouth, and it changed the half-religious theocratic republic of Massachusetts into a royal province. New York also became a royal province after the fashion of Massachusetts, but the change was in the reverse direction. The days of the autocrats were over. Self-government gained much in New York, as it lost much in Massachusetts, from the accession of William and Mary. Hereafter New York was to be governed through a representative assembly.
The first thing which Colonel Sloughter did after the arrest of Leisler was to issue writs for the election of such an assembly; and the day on which it met in a tavern on Pearl Street, the 9th of April, 1691, marks the beginning of continuous constitutional government in New York. James Graham, of the famous Grahams of Montrose, was chosen speaker of the assembly, in which the party opposed to Leisler had an overwhelming majority. This assembly declared its enthusiastic loyalty to William and Mary, while it ascribed its own existence, not to royal generosity, but to the inherent right of freemen to be governed only through their own representatives. Resolutions were passed, condemning the acts of Leisler. A grant was made for public expenditures, but only for a period of two years. The wave of anti-Catholic feeling attendant upon the mighty war between William of Orange and Louis p198XIV was revealed in an act prohibiting "Romish forms of worship" in New York. At the same time the king was requested to annex Connecticut, the Jerseys, and Pennsylvania, with Delaware, to the province of New York, which would thus comprise the whole of the original New Netherland, and somewhat more.
In midsummer of that year the worthless Sloughter died so suddenly that suspicions of poison were aroused, but the particular suspicions were proved to be groundless, and a more probable explanation was to be found in delirium tremens. Major Ingoldsby then acted as governor until the arrival of Colonel Benjamin Fletcher in August, 1692. Fletcher was a man of large stature, fair, florid, and choleric, with plenty of energy and a pompous demeanour. One of the conspicuous sights of the little city was his handsome chariot, drawn by six gaily caparisoned steeds and carrying Mrs. Fletcher and her daughters decked in the latest and most gorgeous European finery. He was devoted to the Church of England and to missionary enterprise; as a soldier he was so prompt and vigorous that the Mohawks named him "Great Swift Arrow." Withal it was commonly whispered that he was a consummate adept in the art of feathering his own nest, making both religion and warfare redound to the increase of the credit side of his ledger.
One of Fletcher's first acts was to go to Albany and take counsel of prisoner Schuyler, its mayor. This gentleman, granduncle of Philip Schuyler, the eminent general of the War of Independence, was a person of extraordinary qualities. His skill in dealing with red men was equal to that of Frontenac, and the situation called for all such skill that could be had. The danger lay in the possibility that French diplomacy might succeed in detaching the Iroquois from their English alliance. Their loyalty to the alliance was of course based much more upon hatred of Onontio than upon love for Corlear, and could they be brought to fear the French as enemies more than they p199respected the English as protectors, that loyalty was liable to be weakened. The French realized more clearly than the English the importance of the struggle in which they were engaged, and in comparison with their tireless efforts such energy as the English put forth seemed mere listlessness. In the persuasive tongues of Jesuits reinforcing the mailed hand of Frontenac there was an element of real danger. To the board of Indian commissioners at Albany, and especially to the sagacious mayor, Peter Schuyler, eternal gratitude is due for the skill with which it was averted. The Mohawks entertained boundless respect for "Quidor"2 (as the name Peter became in their guttural speech), and his influence over them was greater than that of any other man of his time.
Fletcher reinforced Albany with troops under Ingoldsby and returned to Manhattan, but the news soon came that Frontenac, with a large force of French and Algonquins, was on the way from Canada to invade the Iroquois country. The active governor hurried up the river with further reinforcements, to find that in a battle near Schenectady Peter Schuyler had defeated Frontenac. The retreat of the French into Canada was accomplished at the expense of terrible hardships and a heavy loss of life. Such victories for the English were a great help in sustaining the Iroquois alliance. To the Mohawks it seemed p200as if the English were not so much in earnest as the French, and they told Fletcher that if Corlear and all his friends would only join forces they could easily beat the life out of Onontio.
But Fletcher was beginning to find that popular assemblies are crabbed and contentious bodies, and that it was hard enough to get his own people to behave rationally, let alone the difficulty of bringing the other colonies into line. The hatred between "Leislerians" and "Aristocrats" so far pervaded the community as to subordinate other interests. An attempt had been made to appease the friends of Leisler by appointing as mayor of the city Abraham de Peyster, who had been one of his more moderate adherents. The effect was good, but of course insufficient. In the legislature the two parties were far more anxious to trip each other up than to aid the common cause. Besides, many of Fletcher's demands were of very doubtful expediency, and the discussions upon these questions hindered prompt action upon matters of pressing moment. Fletcher was eager to have the Episcopal church established and supported out of the public revenues; and he furthermore wanted the grant of revenue to be made for the lifetime of the reigning king. But the assembly was too "big with the privileges of Englishmen and Magna Charta" to follow in the ways which the governor pointed out. Dudgeon grew high between the two branches of government. The assembly passed a bill to which Fletcher added an amendment. The assembly refused to adopt the amendment, and was forthwith prorogued by the governor with petulant words: "You have shown a great deal of stiffness. You take upon you airs as if you were dictators. I sent down to you an amendment of three or four words in that bill, which, though very immaterial,3 yet was positively denied. I must tell p202you that it seems very unmannerly. There never was an amendment yet decided by the council but what you rejected; it is a sign of stubborn ill-temper. . . . You ought to let the council do their part. They are in the nature of the House of Lords, or upper house. But you seem to take the whole power into your own hands and set up for everything. You have had a very long session to little purpose, and have been a great charge to the country. Ten shillings a day is a large allowance and you punctually exact it. You have been always forward enough to put down the fees of other ministers in the government; why did you not think it expedient to correct your own to a more moderate allowance?"4
Even when it came to voting supplies for the defence of the colony against actual invasion, Fletcher found his assembly very intractable. But when he tried to exact authority outside of the colony it was still worse. The difficulty of securing that concerted military action which the Mohawk chiefs recommended had led James II to try to unite the northern colonies under the single rule of Sir Edmund Andros, unhampered by any representative assemblies. To meet the same difficulty, William III authorized Fletcher to take control of the militia of Connecticut and the Jerseys. In 1693 the king revoked the proprietary grant of Pennsylvania and Delaware to William Penn,5 and handed over the administration of those two colonies to Fletcher as royal governor. Fletcher accordingly spent a few weeks in Philadelphia, where he found the good Quakers so mildly but inexorably intractable that he was fain to write to the king excusing himself from the charge of this additional burden. He left Pennsylvania p204as he found it, and the next year Penn prevailed upon the king to reinstate him in his proprietary rights.
In Connecticut Fletcher had no better success. He visited Hartford in October, 1693, while the assembly was in session, and demanded that the military forces of the colony should be placed at his disposal, at the same time promising to retain Governor Treat in the immediate command over them as his lieutenant. These proposals were flatly refused, and the angry Fletcher wrote to the secretary of state in London: "The laws of England have no force in this colony. . . . They set up for a free state." There is a tradition that one bright afternoon the train-bands of Hartford were drawn up before the place where the assembly was in session, and Fletcher ordered his secretary to read aloud his commission and instructions; whereupon the sturdy Captain Wadsworth, who had once hidden the charter of Connecticut in an oak-tree, ordered the drums to be beaten. A threatening gesture from Fletcher stopped the drummers, and the reading was begun again. Once more the drums resounded, and once more Fletcher silenced them. Then Wadsworth stepped up to the New York governor and declared that "he would make the sun shine through him" if he dared interfere again. And so the crestfallen Fletcher deemed it wise to retire from the scene.6 Such is the familiar tradition, but it rests on no good authority, and seems improbable. At all events p205Fletcher was baffled, and when the matter was referred to the privy council it was softened into an order that upon proper notice in war time Connecticut should furnish the governor of New York with 120 men.
No wonder that an officer in Fletcher's position, wielding the forces of a weak colony against a formidable enemy, should fret at being unable to get control of the resources of his stronger neighbour; for in wealth and population Connecticut was at least twice as powerful as New York. Fletcher next appealed to Massachusetts for aid, but without success, for the Quebec affair of 1690 had over-taxed the extensive resources of that colony, and she found it, moreover, necessary to guard her eastern frontier. But in the Jerseys Fletcher fared better, for their men and money were placed at his disposal.
In the double difficulty of obtaining adequate supplies from the legislature and securing concerted action among different colonies, we see the principal causes which led seventy years later to the Stamp Act. Because there was no continental power which could raise troops and levy taxes for continental purposes, the British Parliament, with an entirely friendly purpose, undertook to perform the functions of such a continental power. The experience of those seventy years proved that a single head for the English colonies was an absolute necessity. Either Parliament must be that head, or the colonies must enter into a Federal Union; no third course was practicable. It was the conflict with France that taught this lesson, and therefore the calling of a Continental Congress at New York in 1690 by Jacob Leisler was an event of great interest and significance. Of the same order of importance was the Plan of Union presented by William Penn to the Lords of Trade in 1697. In order to accomplish by rational and constitutional means the ends which William III was seeking when by a mere order in council he invested the governor of New York with arbitrary control over neighbouring colonies, Penn recommended a Federal p206Union. As the earliest suggestion of so great a step in constructive statesmanship, his plan must always be interesting. It provided for a Congress of two deputies from each colony to meet once a year, and to have for chairman or president a king's commissioner especially appointed for the purpose. The place of meeting might be New York, as conveniently central, and also because the province was a military frontier and under a royal governor. For further convenience this governor might be the king's commissioner, "after the manner of Scotland," and also commander-in‑chief of the forces. The business of the Congress should be "to hear and adjust all matters of complaint or difference between province and province. As, 1. where persons quit their own province and go to another, that they may avoid their just debts though they be able to pay them; 2. where offenders fly justice . . . ; 3. to prevent or cure injuries in point of commerce; 4. to consider of ways and means to support the union and safety of these provinces against the public enemies. In which Congress the quotas of men and charges will be much easier and more equally set than it is possible for any establishment made here [i.e. in England] to do; for the provinces, knowing their own condition and one another's, can debate that matter with more freedom and satisfaction and better adjust and balance their affairs in all respects for their common safety."7
Such was the first simple outline of the scheme which was further developed in Franklin's Plan, in 1754, and again in the Articles of Confederation, until maturity was reached in our present Federal Constitution. When we fully understand that it was the failure to adopt such wise schemes as those of Penn and Franklin that ultimately led to the Stamp Act,8 we shall be the better prepared to comprehend the p207American Revolution and to deal with it in a fair and impartial spirit.
The difficulties of Governor Fletcher were increased by the prevalence of piracy on the high seas. I have elsewhere shown how the seventeenth century came to be the golden age of piracy.9 As a sequel to the long maritime wars in which the Dutch and English put an end to the supremacy of Spain, came the age of buccaneers, when freebooters of all nations joined hands in plundering the Spanish coasts of America. Spaniards had come to be regarded by many people as the enemies of the human race, insomuch that it was hardly deemed criminal to rob and slay them, and thus buccaneering retained a slight flavour of respectability. The buccaneer, however, was not apt to be a person of tender conscience, and frequently developed into the full-fledged pirate, whose hand was against everybody without distinction of race, politics, or creed. Piracy throve greatly in the seventeenth century because maritime commerce expanded far more rapidly than the naval facilities for protecting it. Never before had so many ships been afloat and traversing long distances, loaded with cargoes of such immense value. Moreover the practice of privateering, whereby civilized nations sought to supply the deficiencies in their naval force, was extremely liable to degenerate into piracy. The abominable tariff and navigation acts also, by which commence was stupidly hampered, aroused in mercantile communities a spirit of lawlessness which tolerated the vile pirate, very much as it aided and abetted the noble army of smugglers. If the pirate could afford to undersell the honest skipper, his customers could easily refrain from asking awkward questions.
The war which brought firebrand and tomahawk upon Schenectady brought many a pirate craft into New York harbour. The principal cruising ground of these rascals was the Indian Ocean, where the richly laden ships of the English and Dutch East India companies were continually p208passing between the coasts of Hindustan or the Spice Islands to the Red Sea or the Cape of Good Hope. After a pirate had captured one or more of these vessels and taken on board all the treasure he could carry, he would make for New York, where he would pull out of his pocket some dog's-eared letter-of‑marque and swear that he had taken all this Oriental stuff from Frenchmen as a lawful privateer. It was usually difficult to convict him of falsehood. A still more common practice was to sail for Madagascar with the plunder.10 The luxurious tropical forests of that large island furnished an almost inaccessible lair for the pirates, and thither they repaired from all quarters. In the intervals between cruises many of them dwelt in palisadoed castles with moats and drawbridge, approachable only through labyrinthine paths which for further defence were studded with sharp thorns to lacerate the ill-shod feet of the natives. There they guzzled stolen wines of finest vintage, quarrelled and murdered one another, and indulged in nameless orgies, until they wearied of such pastime and sallied forth again to the business of ocean robbery. On the coast of Madagascar was a strongly defended mart or emporium where our pirates would meet some merchant vessel from New York, and exchange their gold pieces and gems and Eastern shawls for rum or firearms or whatever else they needed. Then while the pirate was engaged in fresh robberies the merchant returned to New York, where those who bought her merchandise were not bound to know from whom she got it. The risks of such a voyage were considerable, for the merchant ship might itself fall a prey to some pirate, or it might be captured as a receiver of stolen goods by some East India Company's frigate on patrol. But while the risks were not small, the profits were prodigious. For example, the ship Nassau, which sailed from New York in 1698, "was laden p209with Jamaica rum, Madeira wine, and gunpowder. The rum cost in New York 2s. per gallon, and was sold in Madagascar for £3 per gallon. The wine cost £9 per pipe, and was sold for £300; and the gunpowder we may suppose at a similar advance. In return the Nassau purchased East India goods and slaves of the pirates, and, taking 29 of the latter as passengers, sailed for home. The pirates paid £4000 for their passage, and the voyage is said to have netted the owners £30,000."11
A trade abounding in such profitable ventures was not easy to suppress. The pirates had convenient lurking-places in the West Indies and the Bahamas, and in the crooked sounds and deep inlets of the Carolina coast. Everywhere they had extensive dealings, underselling the regular merchants and defeating their navigation laws. The citizens of Charleston and of New York, who coveted their wares, knew also that their ships were apt to be formidable, and so treated them with politeness. Sometimes the pirate captain was a man of polished address and entertaining speech, who could make himself acceptable at dinner tables and in good society. One of them, we are told, before venturing ashore, was careful to send some silks and cashmeres with a trifle or so in the shape of costly gems, to Mrs. Fletcher and her stylish daughters. For a dozen years or more the streets of New York might have reminded one of Teheran or Bassora, with their shops displaying rugs of Anatolia or Daghestan, tables of carved teakwood, vases of hammered brass and silver, Bagdad portières, fans of ivory or sandalwood, soft shawls of myriad gorgeous hues and white crape daintily embroidered, along with exquisite ornaments of ruby, pearl, and emerald. In the little town which had been wont to eke out its slender currency with wampum, strange pieces of gold and silver now passed freely from hand to hand: Greek byzants, Arabian dinars, and mohurs from Hindustan, along with Spanish doubloons and the louis d'or of France. A familiar sight in p210taverns was the swaggering blade attired in blue coat trimmed with gold lace and pearl buttons, white knee-breeches and embroidered hose, with jewelled dagger in his belt,12 paying scot for all who would listen to his outlandish yarns, and tipping everybody, from the pot-boy up (as it was whispered) even to the worshipful governor.
The East India companies, English and Dutch, complained of this state of things, and all merchants who felt interested in the navigation laws added their complaints. But the warships of William of Orange were so fully occupied in the waters about France13 that the Indian Ocean was inadequately guarded. Under these circumstances a scheme was formed which was highly characteristic of the age, and which introduces us to the most famous name, perhaps, in all the annals of piracy.
Whether Captain William Kidd ever really deserved such a grewsome renown is, however, more or less questionable. He was certainly no ruffian, but an educated mariner who for the greater part of his life was esteemed a model of integrity. He was probably the son of a Presbyterian minister at Greenock, in Scotland. In his marriage certificate, in 1691, he is styled "gentleman." At that time he had considerable wealth and lived in a pleasant home on Liberty Street. In earlier days he seems to have been a navigator in various parts of the world. In 1695 King William was discussing with Richard Coote, Earl of Bellomont, and other members of his council, the most feasible means of suppressing piracy, and it was decided to make it a private undertaking. A swift frigate should be sent to the East Indies, under a captain of tried courage and probity, the sea robbers should be vanquished and brought to justice, and their spoil should defray expenses and leave a handsome profit. Robert Livingston and William Kidd happened to be in London, and Livingston recommended p213Kidd to Lord Bellomont as the very man for the enterprise. These three, with several members of the council, entered into partnership, and subscribed £6000. Kidd received letters-of‑marque authorizing him to capture French vessels, and a special commission instructing him to arrest all pirates wheresoever found, and bring them to trial. After reserving a royalty of 10 per cent for the king, the proceeds of the cruise were to be divided among the partners. Kidd was to render a strict account of all prizes to Lord Bellomont, and Livingston became his surety.14 A 36‑gun frigate, the Adventure, was duly equipped, and in May, 1696, Kidd sailed from Plymouth, with a crew of 80 men. In New York he picked up about 90 more, and in February, 1697, set sail for Madagascar. The civilized world saw nothing more of him for more than two years.
In the mean time the Leislerites brought about the recall of Governor Fletcher. Two of them — Leisler's son Jacob, and Abraham Gouverneur, who was presently to marry the widowed Mary Milborne — were very busy in London. They secured the restoration of Leisler's estates and the rehabilitation of his memory so far as that could be done by an act of Parliament. Lord Bellomont, who was one of the king's most trusted advisers, declared that the execution of Leisler and Milborne was a judicial murder. He was a nobleman of generous and lofty character and entertained sundry democratic notions, so that he soon became a favourite with the Leislerians. They accused Fletcher of complicity with the pirates, or, at the very least, of accepting from them bribes or hush-money. It is difficult to tell how far these charges were founded on fact. Fletcher always resented them, and they were not irrefragably proved; but such charges are apt to be hard to prove, even when true. At all p214events, they led to the recall of Fletcher and the appointment of Bellomont to be governor of New York, with explicit instructions to move heaven and earth for the suppression of piracy. This appointment was made before Kidd sailed, but various causes delayed Bellomont so that he did not arrive in New York until April, 1698.
In order to effect as much concentration as possible without creating disturbance, Bellomont was appointed royal governor of Massachusetts and New Hampshire, as well as New York. His graceful and courteous manners made him generally popular, but his administration was not a tranquil one. As Fletcher quarrelled with the Leislerians, Bellomont kept himself in hot water with the aristocrats. He began by issuing a writ of restitution to put the families of Leisler and Milborne in possession of their estates, and turmoil at once ensued, for many pieces of this property had passed into the hands of innocent purchasers who were now despoiled. He tried to enforce the navigation laws and to confiscate ships and cargoes for non-payment of custom-house dues. This brought on a quarrel with the merchants and with the collector of the port, whom he cashiered for remissness in enforcing the laws. As the Leislerites had accused Governor Fletcher of receiving stolen goods from the pirates, so Bellomont in turn charged some of the members of his aristocratic council with similar practices. Mrs. Bayard one evening wore an extraordinary diamond, which rumour said had been given to her husband as hush-money by some scoundrel who had robbed and murdered an eastern princess. It was also reported that Gabriel Minvielle had under his bed a big chest full of gold dinars, which, could they have spoken, would have told just as foul a tale. And as for Philipse, why did his son go down to the Narrows in a pinnace, to meet some merchantmen just come from Madagascar?
Bellomont was the more inclined to believe such rumours because of his engrained prejudices against rich men. He was inclined to regard great wealth as incompatible with p215perfect honesty. The immense landed estates of the patroons and their feudal privileges disgusted him. He lost no opportunity of attacking land grants in which any flaw could be suspected, and have even proposed a bill which should make it illegal for any person in the province to hold more than one thousand acres.
With these levelling tendencies, which accorded well with his Leislerian sympathies, Bellomont was only too ready to believe ill of Bayard and his friends. He accused them of complicity with pirates and removed Bayard, with four other gentlemen, from his council. In their place he appointed able and well-known Leislerians. Much commotion was thus excited throughout the province, and the next election of representatives was fiercely contested. Never before in America had an election day consumed so much grog or broken so many pates. The aristocracy suffered a crushing defeat at the polls, and the government thus became Leislerian in all its branches.
This result created something like a panic among the merchants and great landowners, and a report was circulated that the Leislerians were intending to obtain compensation for all the damages which they had suffered since the beginning of the troubles. The king felt it necessary to warn Bellomont against such a policy, which would tend to drive some of the best citizens away from New York. Bellomont replied that he was not so foolish as to countenance such measures. But the complaints against him multiplied, and were presently complicated by a quarrel with the dominies. In the midst of these dissensions came the rumour that William Kidd, the pirate-catcher, from whom nothing had been heard for two years, had himself turned pirate! This was a dire mortification for the governor. The friends of the displaced councilmen could now wag their heads and cry, "Aha! just see what sort of agents and tools this Earl of Bellomont, so prudish in all such matters, employs!" We can fancy that the need for attending to the affairs of Massachusetts and New p216Hampshire afforded the governor some relief from this stifling atmosphere of contention and distrust. We can also see that it will be likely to go hard with Captain Kidd if ever he falls into the hands of honest Richard of Bellomont.
Nevertheless it happened, curiously enough, that scarcely had the governor been a month in Boston when a message addressed to him by that mariner disclosed his presence in Narragansett Bay. The message informed Bellomont that he was in a sloop with £10,000 worth of goods on board, and was entirely innocent of the acts of piracy which lying rumour had laid to his charge. Let us briefly note some of the events in this career of innocence.
After a tedious voyage of nine months from New York, during which the stores were nearly exhausted and the crew threatened with famine, Kidd arrived off Madagascar in the autumn of 1697. He had encountered neither pirates nor French vessels on the way, and now at the island he found no prey; all the pirates were off on business. So Kidd filled his water-casks, bought food, and sailed over that Malabar coast without meeting a ship of any sort. Provisions and money were nearly all gone, and the crew insisted upon attacking the first ship they should meet, whether lawful prey or not, in order to get the means of sustenance. Kidd afterward stoutly maintained that he did not follow this advice until he was compelled by his starving and mutinous crew. However that may have been, he did follow it, and began by capturing a few ships of the Great Mogul. Probably his noble patroons in England, on payment of a goodly dividend, would not inquire too closely into damage inflicted upon mere heathen. It seems probable that Kidd did not at first take willingly to this course. He had some disputes with his crew, in one of which he seized a bucket and struck a gunner, William Moore, over the head, inflicting fatal injuries. The work of piracy went on, and presently it was not only heathen but Christian ships that suffered. So things went until December, 1698, when Kidd p217captured a large East Indiaman, named the Quedah Merchant, owned by Armenian traders and commanded by an English skipper. His own ship, the Adventure, was badly out of repair; so he set ashore the crew of the Quedah Merchant, transferred to her his own armament and crew, burned the Adventure, and made for the pirate mart at Madagascar, where his cargo fetched £64,000, equivalent to more than a million dollars of the present day. Of this sum his own portion amounted to $320,000. After losing two thirds of his men by desertion, and enlisting a new crew, our amateur pirate sailed for the West Indies. There he was met by appalling news. Not only had his acts of piracy been reported in England, but a parliamentary committee had been appointed to inquire into the nature of his commission and the character of the partnership from which he had received it. A royal proclamation had been issued, moreover, offering free pardon to all pirates who would surrender themselves for acts committed before May-day of 1699. Only two pirates were excepted by name; one was a fellow named Avery, one of the worst scoundrels of his time; the other was William Kidd.
The reason for this was that Kidd's conduct reflected upon the whole group of powerful noblemen who had sent him to the East Indies. He was the agent not only of Bellomont, but of the Lord Chancellor Somers, of Orford the First Lord of the Admiralty, of the Earl of Shrewsbury, even in a sense of King William. The Tories exultingly threw his misdeeds in the face of these Whig statesmen; it was their purpose to impeach the Lord Chancellor, and it pleased them to be able to say that he had a pirate in his employ. Under these circumstances the Tories magnified the rumours of Kidd's villainies, while the Whigs could not incur the responsibility of contradicting them; they must wash their hands of him as quickly as possible. Hence he was excepted from the offer of pardon.
Had Kidd fully grasped the hopelessness of the situation, or had he been an unmitigated ruffian, like Blackbeard or p218Olonnois, he would most likely have accepted an outlaw's career. With his powerful ship and vast treasure he might roam the seas and play the corsair, or seek refuge in some inaccessible spot. But one may fancy that a castle in Madagascar was not the sort of home that he wanted. The pleasant fireside in Liberty Street, where wife and children awaited him, may well have been in his thoughts; and if he could make Lord Bellomont believe his story, there might be a good chance for him. So he bought at the island of Curaçoa a small sloop, in which he put his gold coins, gold-dust, and jewels, and with a crew of forty men started for New York. At San Domingo he stopped and left the Quedah Merchant, with her armament of 50 guns and cargo of immense value. What became of her is not known. As Kidd stealthily approached New York he learned that the governor had gone to Boston. He contrived to get a letter ashore to his wife and children, who joined him at Block Island. Arriving in Narragansett Bay, he sent to Boston the message already mentioned. Bellomont replied that if Kidd could satisfy him of his innocence he might count upon his protection. Accordingly on the first day of July Kidd landed in Boston, and paid his respects to the governor, handing him a present of rare jewels for Lady Bellomont. With the approval of the council Bellomont accepted the present, lest a refusal should put Kidd too keenly on his guard. As his story did not satisfy the governor, he was arrested on July 6, and the jewels were handed to a trustee as part of the documents in the case. After a while Kidd was sent to London and kept in prison more than a year while evidence was sought in the East Indies. In the spring of 1701 he was brought to trial sundry acts of piracy and for the murder of William Moore. Kidd's defence as to the first charge was that he had only captured vessels sailing under French colours, except in one or two cases when his crew overpowered him and took the command out of his hands. As to the second charge, he averred that Moore was engaged in p220mutiny and rightfully slain; nevertheless the homicide was unintentional; he had not used pistol nor dagger, but only struck the offender with a bucket, and on the worst construction was guilty only of manslaughter. The prosecution did not break down this defence, and one cannot read the report of the trial without feeling that the verdict of guilty was predetermined. Kidd was hanged in May, 1701. In spite of the unfairness of the trial, he had probably done enough to deserve his sentence; but his preëminent notoriety is clearly due to other causes than preëminence in crime.
Lord Bellomont's stay in Boston was little more than a year, and his acquaintance with New Hampshire was limited to a fortnight. He was much liked in Boston for his personal qualities and his opposition to the Toryism represented by the friends of Joseph Dudley. For his own part he liked the people of Boston, but as a liberal-minded Episcopalian he confessed he could not see how so much learning could coexist with so much fanaticism as in some of the Puritan clergymen and professors. In the summer of 1700 he returned to New York. He had long been troubled with gout, and in the following winter died very suddenly.15
His death was the signal for an explosion which had long been preparing. It soon appeared that some of the reports which had been circulated as to the designs of the Leislerians were well founded. That party had a majority both in the assembly and in the council, now that Bellomont's restraining hand was removed, they brought in a bill to enable the Leisler family to institute lawsuits for damages which they alleged they had sustained at the hands of the aristocracy during the change from the House of Stuart to the House of Orange. They also brought outrageous charges against prominent members of the aristocratic party. They accused Robert Livingston p222of defalcation in his accounts, and petitioned the king to remove him from his office of secretary of Indian affairs; they made a similar charge against the late Stephanus van Cortlandt, and brought suits against his widow. In view of the anticipated passage of their Leisler Act for damages, they invited all the injured persons to bring in an inventory of their losses, and some astounding estimates followed, as when a rusty sword and dilapidated gun, which Governor Sloughter had seized, were valued at £40 (say, nearly $800).
This last step was unwise, for it seemed to herald a carnival of spoliation and created intense alarm. There was a rumour that Viscount Cornbury had been appointed governor, to succeed the Earl of Bellomont. A petition to the crown was prepared, urging that he might be sent with all possible haste. It had more than 600 signatures, including most of the aristocratic leaders. The chief justice and solicitor-general, who were fierce Leislerians, saw fit to call this paper "seditious," and indictments for high treason were brought against Nicholas Bayard and an alderman named Hutchings, at whose house the petition had been signed.
What followed would have been a ludicrous farce had it not been so execrably wicked. The intention was to avenge the death of Leisler upon the person of his old enemy, Bayard; and in the proceedings all law and decency were trampled under foot. In a scurrilous speech the solicitor-general accused Bayard of complicity with the pirates and of plotting to introduce Popery into New York. Such invective did duty for evidence, a jury, half packed and half browbeaten, quickly found a verdict of "guilty," and the chief justice forthwith sentenced Bayard and Hutchings to be disembowelled and quartered. The poor alderman, it may be supposed, was to atone for Milborne. At about the same time the Leisler Act was passed by the assembly, and Livingston was turned out of his offices, while all his property was confiscated.
A new governor, however, was even then on his way from p224England. On March 7, 1702, the king breathed his last, and Anne ascended the throne. Edward Hyde, Viscount Cornbury, was grandson of the great Earl of Clarendon, the statesman and historian, and own cousin to Queen Anne. The late king had appointed him governor, and Anne at once confirmed the appointment. Cornbury was a trained soldier, and not wholly wanting in ability, but his character was far from estimable. He had gross vices, and some contemptible follies. His strong likeness to his cousin Anne attracted much notice and led him often to make a guy of himself by dressing in elaborate and sumptuous female attire, like a lady of the court. His name is now chiefly remembered for this tomfoolery.a Yet much good was effected by his coming to New York. One of his first acts was to dissolve the assembly. The recent scandalous trials were investigated, and those legal luminaries, the solicitor-general and the chief justice, absconded and hid themselves in Virginia under assumed names. Bayard and Hutchings were set free and reinstated in their property; Livingston was replaced in his offices and estates; the Leisler act was quashed by the Lords of Trade; and the public alarm was allayed.
Having performed this much needed service, Cornbury went on unwittingly to perform another and soften the animosities between the Leislerites and the aristocracy by uniting them to some extent in opposition to himself. He thus introduced fresh grievances, but some of these were of a kind conducive to growth in constitutional liberty. He obtained from the assembly a grant of £1500 for fortifying the Narrows against French fleets, and was very wroth at the suggestion that the assembly should appoint a treasurer to handle the money. What! Did they distrust his integrity? So the business was left to p225his integrity and three years slipped by, until one fine afternoon a French warship sailed in through the Narrows, and great was the commotion. The batteries had not been built; what had been done with the £1500? Cornbury protested that he had never seen the money, but the assembly knew better. There was a sound, wholesome discussion, in the course of which the doctrine was plainly stated that the rights of a colonial assembly were precisely the same as those of the House of Commons. The matter was referred to the queen in council, and it is an interesting fact that the assembly was sustained against the governor. Henceforth it appointed a treasurer and saw that his accounts were properly audited.
It was not only with the New York assembly that Cornbury had contentions, for he was also governor of New Jersey. Since the overthrow of Andros, the history of the two provinces of East and West Jersey had been a plexus of difficulties which need not here concern us, until in 1702 all the proprietors agreed in surrendering their proprietary rights of sovereignty to Queen Anne. Their ownership of their landed estates was not disturbed by this surrender. The two provinces were united into one, and thenceforward until 1738 New Jersey was an appendage to New York, in much the same way that Delaware was an appendage to Pennsylvania. There was the same governor, but the assemblies were distinct and independent. This preserved the local life, and prevented New Jersey from being merged in New York, and Delaware from being merged in Pennsylvania. Any such absorption would have been a calamity, for what the civilized world needs most is variety and individual colour in social development, and the more that local independencies can be preserved, in so far as such preservation is compatible with general tranquillity, the better.
Governor Cornbury's first demand upon the New Jersey assembly was for a yearly salary of £2000, to be granted for twenty years. When we bear in mind that this sum represented p226nearly $40,000 in our present currency, we shall appreciate the comment of the Quaker magistrate who turned upon Cornbury with the remark, "Thee must be very needy!" The assembly voted only £1300 for three years, and thus began its bickerings with the spendthrift governor. Such contentions over salaries were flagrant during the eighteenth century, and must be taken into account if we would understand how the Townshend Act of 1767 led directly to the War of Independence.
It was Cornbury's fate to antagonize not only the legislatures but the dominies. There were but few Episcopalians in New York, though the civil government was always trying to help that church, and people already noticed that it flourished better in Pennsylvania, under Penn's grand policy of a fair field for all, and no favour. But Cornbury tried to help Episcopacy in his feeble way, by making warfare upon other sects, which in New York were in the majority. In such ways, but perhaps still more through his private affairs, he came to grief. He was steeped in debauchery and never paid his debts; and when, in 1708, Queen Anne yielded to the general clamour and sent out Lord Lovelace to supersede him, no sooner had he ceased to be governor than his creditors sprang upon him. Besieged with bills innumerable from butcher and baker and candlestick-maker, the unhappy Cornbury was thrown into jail and stayed there till next year, when the death of his father made him Earl of Clarendon. Then he paid up his debts and went home, leaving unsavoury memories behind him.
Lord Lovelace, nephew of the governor who succeeded Nicolls, lived but a few months after his already. His place was taken by our old acquaintance, Ingoldsby, once more lieutenant-governor. Danger was again threatening from Canada. The strife of Leislerian and anti-Leislerian had absorbed the attention of the province, weakened its resources, and loosened its grasp upon the Long House, p228insomuch that Onontio had actually achieved a treaty which secured its mutuality. Peter Schuyler now persuaded those barbarians to put on their war paint, and took command of them in person. A force of 1500 men from New York, New Jersey, and Connecticut, commanded by another of our old acquaintances, Francis Nicholson, marched to Lake Champlain, while 1200 men raised by Massachusetts awaited the arrival of a promised British fleet which was to take them up the St. Lawrence. This force was to attack Quebec while Nicholson advanced upon Montreal. But the loss of the battle of Almanza made it necessary for England to send to Portugal the force designed for America; and so the expedition against Canada came to nothing.
As a partial compensation for this disappointment, Nicholson, in the course of the next year, conquered Nova Scotia. Schuyler was more than ever impressed with the necessity of driving the French from the valley of the St. Lawrence, and in order to urge the matter upon Queen Anne's ministry he went over to England in 1710, taking with him four Iroquois chiefs.16 These barbarians made as great a sensation in London as Pocahontas had done in the days of Queen Anne's great grandfather. They were received with much ceremony by the queen, on which occasion they made a solemn speech on the necessity for conquering Onontio, and presented her with a belt of wampum. It was agreed that Canada should once more be invaded, and Colonel Robert Hunter was sent out to be governor of New York. This Scottish gentleman was the ablest and best of the English governors since Richard Nicolls; broad-minded and sagacious, cultivated and refined, upright and genial, a thoroughly admirable man. He was an intimate friend of Addison and Swift, and could himself write witty poems and essays. He had served with credit in King p229William's army, and now came to oppose the French arms in the New World. His arrival on such an errand was enthusiastically welcomed. The assembly was less niggardly than usual, partly, perhaps, because it was voting away not real money but promissory notes. It issued £10,000 of this pernicious currency, hoping to redeem it within five years. There was a conference of governors at New London, and a plan was made essentially similar to the former one. Nicholson, with the troops from Connecticut, New York, and New Jersey, and Schuyler's Indians, was to advance upon Montreal by way of Lake Champlain; while the Massachusetts, New Hampshire, and Rhode Island troops, aided by a powerful English fleet, should ascend the St. Lawrence and take Quebec. But the enterprise failed ignominiously. On the last day of July, 1711, the fleet, commanded by Sir Hovenden Walker, sailed from Boston Harbour, carrying about 2000 provincial troops, with 5000 regulars under General Hill, commonly known about London as "Jack Hill," brother of the queen's favourite lady, Mrs. Masham. The admiral, who had too much of the proud spirit that goeth before a fall, would not take the advice of his Yankee pilots; wherefore during their second day upon the St. Lawrence several ships were wrecked upon ledges of rock, with the loss of more than 1000 lives. Then with preposterous logic a council of war decided that the mighty river was impracticable for such vessels as theirs, and so the fleet returned to England. The disaster was reported to Nicholson in time p230to prevent his imperilling his army. The affair ended in recriminations and presently the treaty of Utrecht allowed New France another half century of life.
Amid these incidents of war the business of legislation was encumbered with the usual difficulties. The council, though by no means a tool in the governor's hands, was very apt to agree with his views of constitutional questions. The assembly, on the other hand, was almost certain to differ from the governor on questions relating to revenue, if on no others. In most of the colonies military exigencies made a greater demand upon the exchequer than people could comfortably meet. Hence the governor's requests did not usually meet with prompt or adequate response, and operations were apt to languish. There is no doubt that despotic Onontio could mobilize his forces much more speedily than constitution-hemmed Corlear. It was half a century of this sort of experience that led to the Stamp Act.
Under these circumstances the constitutional position and functions of the council gave rise to important discussions. The council maintained that it was properly an upper house, like the House of Lords, and this was generally the governor's opinion; but the assembly insisted that the council was merely an advisory board. Especially jealous was the assembly of any pretension on the part of the council to initiate or amend money bills. Then there was the burning question of the governor's salary, which the assembly usually insisted upon granting only for a year at a time, in order to keep a check-rein upon the governor. Sometimes an earnest patriot, like Hunter, bent upon getting things done, would furnish the money from his own pocket. From some of Hunter's letters to Dean Swift we catch glimpses of his feeling about the people's representatives: "This is the finest airº to live upon in the universe; and if our trees and birds could speak, and our assemblymen be silent, the finest conversation also. The soil bears all things, but not for me. According to the custom of the p231country, the sachems are the poorest of the people. . . . I thought in coming to this government I should have hot meals and cool drinks, and recreate my body in Holland sheets upon beds of down; whereas I am doing penance as if I were a hermit. . . . I am used like a dog, after having done all that is in the power of man to deserve better treatment."
Notwithstanding such expressions of feeling, and in spite of many altercations with the assembly, Governor Hunter was greatly liked and admired, and there was much sorrow when private business called him back to England in 1719. His friend and successor, William Burnet, who came next year, was another upright and able governor. He was a son of Gilbert Burnet, Bishop of Salisbury, the famous historian, and was himself a man of learning and accomplishments, with much practical sagacity and rare personal charm. One of his first measures, however, was for a time extremely unpopular. There was far too much intercourse between the French and the warriors of the Long House. It was an excellent instance of the shrewdness with which Onontio made trade and religion support each other. Jesuit priests had made converts to Christianity even among their arch-enemies, the Mohawks, and with these converts they formed a colony at Caughnawaga, a place on the right bank of the St. Lawrence, a short distance above military. These Caughnawaga Indians soon became a source of danger to New York. The most prolific source of the furs which made so large a part of the wealth of the province was the country about the Great Lakes, inhabited by Ottawas, Sacs and Foxes, Pottawatomies and other Algonquin tribes, besides Dakotahs. These were commonly called the "Far Indians." Now since the English commercial policy, however narrow, was far more liberal than that of Louis XV, the best supply of goods for the Indians was in New York and Albany, not in Montreal. Knives and guns, powder and blankets, were apt to be plenty and cheap among the p232English, while scarce and dear among the French. Accordingly the Caughnawagas soon became the middlemen in a brisk and lucrative trade. By way of the St. Lawrence and Lake Champlain they brought furs from the Great Lakes to Albany and exchanged them there for tools and weapons, blankets and beads, which they forthwith carried to Montreal and sold to the French traders. It was often in this way only that the Frenchmen obtained the wares which they needed for getting furs from the "Far Indians."17
Now this trade through the Caughnawagas was profitable to merchants in New York and Albany, as well as in Montreal. But every Caughnawaga was a Jesuit spy whose presence upon English soil was a possible source of danger. Moreover, the use of the St. Lawrence route played into the hands of the enemy by diverting trade from the safer avenue of the Mohawk valley. With a statesman's glance Governor Burnet comprehended the situation, and his action was prompt and decisive. He procured an act of the assembly prohibiting trade with Montreal under the penalty of £100 fine with forfeiture of goods; while at the same time he bought the land at Oswego from the Six Nations18 and built a small fort there, and as the assembly was slow in providing the money, he paid the expenses out of his own pocket. Much to the delight of the Long House, some forty young men, headed by Quidor's son, Philip Schuyler, came among them to carry on trade. It was decidedly for the interest of the Six Nations to become the middlemen in a flourishing trade between the "Far Indians" and Albany. Accordingly the measures of Governor Burnet had lasting p233results, although his prohibitory act was after a few years quashed by the Lords of Trade. The main course of the fur trade was in great measure diverted from Fort Frontenac and Lake Champlain to Oswego and the Mohawk valley. Intercourse between the English and the Six Nations thus grew closer and the danger from Canada was lessened. Probably the action of Burnet was the most important event in the history of the Anglo-Iroquois alliance between the death of Frontenac in 1698 and the arrival of William Johnson in 1738.
Upon the accession of George II, Burnet was transferred from the governorship of New York to that of Massachusetts and New Hampshire. His successor, John Montgomery, died in 1731, and the next year came Colonel William Cosby, who had been governor of Minorca and acquired there a reputation for gross avarice. The principal event of his administration in New York was a money dispute with Rip van Dam, who as president of the council had conducted affairs during the interregnum after Montgomery's death. Out of this dispute grew a trial which excited intense interest throughout the English colonies, and deserves mention in every account of the development of political liberty.
Since 1725 New York had had a newspaper,19 edited by p234William Bradford, a gentleman who had come from Pennsylvania in 1693 and brought with him the art of printing. He was printer for the government, and his paper, the "New York Gazette," of which the first number appeared November 1, 1725, was to some extent a government organ. One of Bradford's apprentices was John Peter Zenger, a German who had come over from the Palatinate in 1710, being then a lad of thirteen. In 1733 Zenger started an opposition paper, called the "Weekly Journal." He had no money, but received help p237and encouragement from some of the ablest and best men of the province, including Lewis Morris, Rip van Dam, James Alexander,20 and others. In point of telling argument and bold sarcasm Bradford was no match for Zenger, and when sundry deeds of Cosby were held up to scorn the governor writhed under the infliction. At last, in November, 1734, the council could endure it no longer. They pronounced four numbers of the "Weekly Journal" "seditious" and ordered the common hangman to make a public bonfire of them in front of the pillory. The mayor and aldermen, however, pronounced this order of the council illegal, and would not allow the hangman to obey it. The papers were accordingly burned by one of the sheriff's negro slaves. Then Zenger was imprisoned on a warrant from the governor and council, who requested the assembly to concur with them in prosecuting him; but the assembly simply laid the request upon the table. He was brought before Chief Justice De Lancey, and his counsel, James Alexander and William Smith, two of the foremost lawyers in the province, wished to have him admitted to bail, but as he was unable to find the excessive p238sum of £800 which was required, he was remanded to jail, where he continued to edit his paper by dictating to his clerks through a chink in the door. A grand jury was impanelled, but refused to indict him. Therefore the attorney-general filed an "information"21 against him for "false, scandalous, malicious, and seditious libels." Six months elapsed before the trial came on, and meanwhile the plain speaking Zenger was kept in durance. His counsel, Smith and Alexander, attacked the commissions of the chief justice and another judge as unconstitutional, because it had appointed them "during pleasure" instead of "during good behaviour." This was for many years a very sore point with the people, and the move of Smith and Alexander was hailed with applause. De Lancey had but one way of meeting it. He said, "You have brought it to that point, gentlemen, that either we must go from the bench, or you from the bar;" and he summarily disbarred the two eminent lawyers for contempt of court.
Zenger was thus left without counsel, but the popular sympathy for him was increased, and his friends succeeded in engaging the services of Andrew Hamilton, of Philadelphia, the greatest lawyer in the English colonies, the first, indeed, who attained a truly continental reputation. The thoughts of all English America were then turned upon the poor German printer in a New York jail, and Hamilton undertook the case without fee or reward. If a government could use the law of libel to suppress freedom p241of speech and of the press, it would be the end of liberty in these colonies. All that Zenger had said, in the paragraph chiefly relied on by the prosecution, was the plain truth. He said that judges were arbitrarily displaced and new courts erected without consent of the legislature, by which means jury trial was taken away whenever a governor felt so disposed; and furthermore he declared that the tendency of p242such tyrannical acts was to drive residents of New York away to other colonies. But let us see his very words:—
"One of our neighbours of New Jersey being in company, observing [certain persons] of New York full of complaints, endeavoured to persuade them to remove into Jersey; to which it was replied, that would be leaping out of the frying-pan into the fire; for, says he, we both are under the same governor, and your assembly have shown with a witness what is to be expected from them. One that was then moving from New York to Pennsylvania (to which place it is reported several considerable men are removing) expressed much concern for the circumstances of New York, and seemed to think them very much owing to the influence that some men had in the administration; said he was now going from them, and was not to be hurt by any measures they should take, but could not help having some concern for the welfare of his countrymen, and should be glad to hear that the assembly would exert themselves as became them; by showing that they have the interest of the country more at heart than the gratification of any private view of any of their members, or being at all affected by the smiles or frowns of a governor; both which ought equally to be despised when the interest of their country is at stake. 'You,' says he, 'complain of the lawyers, but I think the law itself is at an end.' We see men's deeds destroyed, judges arbitrarily displaced, new courts erected without consent of the legislature, by which it seems to me trials by juries are taken away when a governor pleases; men of known estates denied their votes, contrary to the received practice of the best expositor of any law. Who is there in that province that can call anything his own, or enjoy any liberty longer than those in the administration will condescend to let them, for which reason I left it, as I believe more will."22
If such plain speaking were to be in our days condemned as libellous, which of our newspapers could survive for four-p243and‑twenty hours? Hamilton admitted that this paragraph had been printed, whereupon the attorney-general at once claimed a verdict for the crown. But the "information" had described the paragraph as "false, scandalous, malicious, and seditious," and Hamilton fastened upon the allegation of falsehood. He declared that the paragraph simply stated plain and well-known facts. The chief justice and the attorney-general reminded him that the truth of a libel could not be admitted in evidence. This was the English law at that time, and a few years later Lord Mansfield, in commenting upon it, declared that "the greater truth, the greater libel." It was p244then held that the only question for the jury was the fact of publication. But the contrary view was pressing for recognition, and in the famous cases of Woodfall and Miller, in 1770, before the same eminent judge, the jury fairly took the matter into their own hands, deciding among themselves that certain expressions were not libellous, and returning a peremptory verdict of not guilty.23 The question was put to rest in 1792 by Fox's Libel Act, which declared it to be the law of England that the truth of a so‑called libel is admissible in evidence, and that the jury have a right to examine into the innocence or criminality of the writing and to give their verdict peremptorily without stating their reasons.
We can thus see the vast importance of the step taken by the Philadelphia lawyer, Hamilton, in 1735, when he insisted not only that the jury should listen to proof of the truthfulness of Zenger's paragraph, but should also decide whether it could properly be condemned as libellous, or not. Hamilton may be said to have conducted the case according to the law of the future, and thus to have helped to make that law. In the history of the freedom of the press his place is beside the great names of Erskine and Fox. A few extracts from his speech must be quoted:—
"Years ago it was a crime to speak the truth, and in that terrible court of Star Chamber many brave men suffered for so doing; and yet, even in that court 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 an arrant 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 any other manner.' . . . Our Constitution gives us an opportunity to prevent wrong by appealing to the people. . . . But of what use is this mighty privilege p247if every man that suffers must be silent; and if a man must be taken up as a libeller for telling his sufferings to his neighbour? . . . Prosecutions for libels since the time of the Star Chamber have generally been set on foot at the instance of the crown or his ministers, and countenanced by judges who hold their places at pleasure. . . . If a libel is understood in the large and unlimited sense urged by Mr. Attorney, there is scarce a writing I know that may not be called a libel, or scarcely any person safe from being called to account as a libeller. Moses, meek as he was, libelled Cain; and who has not libelled the Devil? for, according to Mr. Attorney, it is no justification to say that one has a bad name. . . . How must a man speak or write, or what must he hear, read, or sing, or when must he laugh, so as to be secure from being taken up as a libeller? I sincerely believe that if some persons were to go through the streets of New York nowadays, and read a part of the bible, if it were not known to be such, Mr. Attorney, with the help of his innuendoes, would easily turn it to be a libel; as for instance, the sixteenth verse of the ninth chapter of Isaiah: 'The leaders of the people (innuendo, the governor and council of New York) cause them (innuendo, the people of this province) to err, and they (meaning the people of this province) are destroyed (innuendo, are deceived into the loss of their liberty, which is the worst kind of destruction).' "
After concluding his argument, the learned counsel, pale and haggard from an illness, turned to the jury with the following imprecative peroration:—
"You see I labour under the weight of years, and am borne 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 could be of 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 of the arbitrary attempts of men in power. Men who injure and oppress the people under their administration p248provoke them to cry out and complain, and then make that very complaint the foundation for new operations. . . . I wish I could say there were no instances of this kind. But to conclude: the question before the court, and you, gentlemen of the jury, is not of small or 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 consequences affect every freeman that lives under a British government on the main of America! 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 . . . by speaking and writing truth!"
After this eloquent appeal De Lancey's charge to the jury fell upon deaf ears. They had scarcely left the court-room when they returned with the verdict, "Not guilty." The scene of the trial was the new City Hall on Wall Street, which had been built in Bellomont's time; and never perhaps, not even on the day that witnessed the inauguration of George Washington as president of the United States, did it hear such a shout as that which greeted the acquittal of John Peter Zenger. The judges tried by threats to quell the tumult; they might as well have tried to stop the flow of the North River. An English naval officer, Captain Norris, of the frigate Tartar, called out that hurrahs were as lawful there as in Westminster Hall, where they were somewhat loud when the seven bishops were acquitted. At this popular allusion, renewed cheers upon cheers made the welkin ring. A public dinner was given to the venerable Hamilton by the mayor and aldermen, and when it was time for him to start for Philadelphia he was p249escorted to his sloop with drums and trumpets, like a conquering hero.
Here we may leave, for the present, the story of the political vicissitudes of the Citadel of America. We may hope to resume the narrative in a later volume, in its connection with the mighty drama of the rise and fall of New France. At present some features of social life among the Knickerbockers demand our attention.
1 See Old Virginia and Her Neighbours, Illustrated Edition, II.154.
2 "Quidor" had a happy knack of adapting himself to the customs and habits of his tawny friends, but once in while it cost him a few qualms; to judge from an anecdote told me in 1881 by one of the family, the late George Washington Schuyler, of Ithaca, N. Y. After a severe tramp in the wilderness, half starved with hunger and cold, Quidor came one evening upon an encampment of Mohawks, where he was cordially welcomed. In a few moments he was seated before a bright blaze, with a calabash of hot soup, the most delicious he had ever tasted. Presently, when he dipped his rude ladle once more into the kettle and brought up a couple of parboiled human fingers, it gave him a queer turn, but he repressed all show of feeling and quietly asked a feathered chieftain, "What is this soup made of?" The Indian as calmly replied, "Of a Frenchman we killed this morning; is n't it good?"
3 O no, good irate governor! very far from immaterial. If it were really of no importance, why this ruffled temper? why so much asperity and gall? The bill provided for the election of rectors by the church wardens and vestrymen, the amendment providing that they must be collated by the governor! No one but Mr. Totts could say "It's of no consequence, thank you."
4 Journal of the Legislative Council, I.47, 48. Compare Governor Spotswood's remarks in dissolving his assembly, in Old Virginia and Her Neighbours, Illustrated Edition, II.353.
6 Trumbull's History of Connecticut, I.393. I think it not unlikely that this story affords an illustration of one of the normal ways in which legends grow. When Andros came to Saybrook in 1675 and tried to read the duke's patent to Captain Bull and his officers, they foiled him by walking away, but the Hartford magistrates are said afterward to have told them it would have been still better if they had drowned the reading with the noise of drums. (See above, p47.) Now for popular tradition to change Andros into Fletcher (one New York governor for another), and the hypothetical drumbeat into an actual drumbeat, would be the most natural thing in the world, exactly the sort of thing that popular tradition is always doing.
7 Preston, Documents Illustrative of American History, p147.
8 This is too large a subject to receive full treatment in the present volume. My next work in the present series will be devoted to the development of the English colonies from 1689 to 1765, under the pressure of the struggle with New France, and it will thus lead naturally to my volumes on the American Revolution.
9 Old Virginia and Her Neighbours, Illustrated Edition, II chap. XVI.
10 There were several haunts of pirates on the African coast, but Madagascar was the most notorious and important.
11 Todd, The Story of New York, p171.
12 See the description of Thomas Tew, in Todd, op. cit. p175.
13 Captain Mahan has treated this war in a masterly manner, in his Influence of Sea Power upon History, chap. IV.
14 Kidd's name often appears in tradition as Robert Kidd, and is sometimes so given in books that should know better. I have sometimes wondered if this might have been a confusion arising from some vague memory of his connection with Robert Livingston.
15 His mortal remains now rest in St. Paul's churchyard. See Mrs. Lamb's History of the City of New York, II.446.
Thayer's Note: Fiske is almost certainly mistaken. The grave of Lord Bellomont, if it is in St. Paul's churchyard, cannot be pointed to, and it may not be there at all. William Dunlap, in his multi-volume History of New York (1839), said to be a very meticulous work — I haven't read it — arrived at no firm conclusion; that Fiske should not temper his statement or mention Dunlap at this point is odd, since he refers to him once elsewhere (Chapter 15, note 20). At any rate, here is a letter to the editor of The New York Times, printed June 9, 1903; the testy tone suggests that august newspaper, as not infrequently, made several goofs in a single article, which the letter corrects:
To the Editor of The New York Times:
We must assume that every intelligent man who signs his name knows how to spell it. Lord Bellomont was an intelligent man, and he signed "Bellomont," as abundant evidence can be found among the official records in the State Library. The State of New York has stamped its official approval upon this interpretation in its Legislative Manual, which is printed annually.
Bellomont's resting place to‑day is a matter of speculation. It is buried under dusty traditions. No evidence is attainable to establish the exact spot. It is extremely doubtful whether the point will ever be satisfactorily determined. William Dunlap, in the preparation of his history nearly seventy years ago seems to have investigated the subject as thoroughly as the data then at hand permitted, and by questioning the oldest living historical authorities, but he left it unsettled. Many of these historical uncertainties and later-day disputes over the final resting places of distinguished men can be traced to the transfer of the remains from one ancient burial place to another. This work apparently was intrusted to heedless, careless, ignorant, or irresponsible persons.
Within three years the writer had occasion to take up this subject of Lord Bellomont's final interment, and concluded that, after the razing of the old fort at the Battery, under ordinary action the remains of an English Governor naturally would have been consigned to the custody of English, not Dutch, church authorities, and therefore would have been buried in either Trinity or St. Paul's Churchyard. But no direct evidence could be found to substantiate such a decision.
The resting place of Lord Stirling offers a field for similar discussion. He died in Albany January, 1783, and was buried in the old Dutch church at the present State Street and Broadway. Like that of Bellomont, his coffin was made of lead and decorated with a silver engraved plate. The mystery begins from the date of transfer of the remains. How far the heavy and valuable receptacle and the valuable inscription may have contributed to the mystery can only be a matter for conjecture. At all events, what was originally ordered as a protection and a preservative for future identification seems to have been converted into an engine for obliteration. Lord Stirling's final resting place, like Lord Bellomont's, is to‑day a historical mystery.
New York, June 7, 1903.
16 One of them was a Mohawk of the Wolf clan, grandfather of the great Thayendanegea, better known as Joseph Brant.
17 See Parkman, A Half-Century of Conflict, I.15.
18 After the crushing defeats of the Tuscarora tribe of Iroquois in North Carolina, by Barnwell in 1712 and by Moore in 1713, the remnant of the tribe migrated into New York and were admitted into the confederacy of the Long House, as a sixth nation. The territory there assigned to the Tuscaroras lay south of the Oneidas and southeast of the Onondagas. For their career in North Carolina, see Old Virginia and Her Neighbours, Illustrated Edition, II.277‑286.
19 The first newspaper printed in English America was "Public Occurrences, both Foreign and Domestic," Boston, September 25, 1690. Only this first number was printed. The first permanent newspapers were as follows:—
The Boston News-Letter, Boston, April 17, 1704.
The Boston Gazette, Boston, December 21, 1719.
The American, Philadelphia, December 22, 1719.
The New York Gazette, New York, November 1, 1725.
The Maryland Gazette, Annapolis, June, 1728.
The South Carolina Gazette, Charleston, January 8, 1732.
The Rhode Island Gazette, Newport, September 27, 1732.
The Weekly Journal, New York, November 15, 1733.
The Virginia Gazette, Williamsburg, 1736.
The Connecticut Gazette, New Haven, January 1, 1755.
The North Carolina Gazette, New Berne, December, 1755.
The New Hampshire Gazette, Portsmouth, August, 1756.
See Isaiah Thomas's History of Printing, Worcester, 1810, 2 vols.; Frothingham's Rise of the Republic, p129.
20 This eminent lawyer was a Scotch Jacobite who had found the old country too hot for him after the rebellion of 1715. His son, William Alexander, was the Revolutionary general commonly known as "Lord Stirling."
21 An information "differs in no respect from an indictment in its form and substance, except that it is filed at the mere discretion of the proper law officer of the government ex officio, without the intervention of a grand jury." Bouvier, Law Dictionary, s.v.; Blackstone's Commentaries, IV.308.
22 Report of Zenger Trial, Boston, 1738.
23 Sir Erskine May, Constitutional History of England, II.115.
a It's far from certain that Governor Hyde was a transvestite. Prof. Patricia Bonomi reëxamined the question in The Lord Cornbury Scandal: The Politics of Reputation in British America (1998), and concluded he was not. For a rather detailed summary of the arguments, see Did New York once have a transvestite governor? at The Straight Dope website; and for a close look at Hyde's administration of New Jersey, Arthur D. Pierce in Proceedings of the New Jersey Historical Society (1965) illustrated with a photograph of the famous portrait said to be of the governor in drag.
Despite the uncertainty, in 1987 the governor's name was adopted by a transvestite organization, The Cornbury Society.
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