It is easy to conceive, that contentions must naturally attend such a contradiction of sentiments. Most of our disputes however relate to the support of government. Before lord Cornbury's embezzlements, the revenue was established for a long period, but afterwards reduced to a few years. The violent measures, in Mr. Cosby's time, led the assembly to the scheme of an annual provision. These are the words of that much famed address of the house, to lieutenant-governor Clarke, on the 8th of September, 1737, previous to the change.

"The true causes of the deficiency of the revenue, we believe, are too well known to your honour, to make it necessary for us to say much on that head. Had the conspicuous loyalty of the inhabitants of this province met with a suitable treatment in return: it is not unlikely, but we should now be weak enough to act like others before us, in being lavish beyond our abilities, and raising sums unnecessary to be given; and continued the donation, like them, for a longer time than what was convenient for the safety of the inhabitants: but experience has shown the imprudence of such a conduct, and the miserable condition to which the province is reduced, renders the raising of large sums very difficult if not impracticable. We therefore beg leave to be plain with your honour, and hope you will not take it amiss, when we tell you, that you are not to expect, that we either will raise sums unfit to be raised; or put what we shall raise into the power of a governor to misapply, if we can prevent it ; nor shall we make up any other deficiencies, than what we conceive are fit and just to be paid; or continue what support or revenue we shall raise, for any longer time than one year. Nor do we think it convenient to do even that, until such laws are passed, as we conceive necessary for the safety of the inhabitants of this colony, who have reposed a trust in us for that only purpose; and which we are sure you will think it reasonable we should act agreeable to, and by the grace of God we will endeavour not to deceive them."

The sentiments of this address still prevail among the people, and therefore the success of the present solicitations, for a permanent, indefinite, support, will probably be in vain.

The matter has been often litigated with great fervency on both sides, and the example of the British parliament urged as a precedent for our imitation. To this it is answered that the particular state of this province differs so widely

ral to James II. was of a very different opinion. For he told the king, "that he could no more grant a commission to levy money on his subjects in the plantations, without their consent by an assembly, than they could discharge themselves from their allegiance." Life of sir William Phips, p. 23.

from that of their mother country, that we ought not in this respect to follow the custom of the commons. Our constitution, as some observe, is so imperfect in numberless instances, that the rights of the people lie, even now, at the mere mercy of their governors; and granting a perpetual support, it is thought, would be in reality little less than the loss of every thing dear to them.

It must be confessed that many plausible arguments may be assigned, in support of the jealousy of the house. A governor has numberless opportunities, not proper to be mentioned, for invading the rights of the people, and insuperable difficulties would necessarily attend all the means of redress.

By gradual advances, at seasonable junctures, we might have introduced such amendments, as would at this day have established a sound and well fortified political frame; but through our utter neglect of education, the ancient assemblies consisted of plain, illiterate, husbandmen, whose views seldom extended farther than to the regulation of highways, the destruction of wolves, wild cats, and foxes, and the advancement of the other little interests of the particular counties, which they were chosen to represent.

CHAPTER VI.

OF OUR LAWS AND COURTS.

The State of our laws opens a door to much controversy. The uncertainty with respect to them renders property precarious, and greatly exposes us to the arbitrary decisions of bad judges. The common law of England is generally received, together with such statutes, as were enacted before we had a legislature of our own. But our courts exercise a sovereign authority, in determining what parts of the common and statute law ought to be extended; for it must be admitted, that the difference of circumstances necessarily requires us, in some cases, to reject the determinations of both. In many instances they have also extended, as I have elsewhere observed, even acts of parliament, passed since we have had a distinct legislation, which is adding greatly to our confusion. The practice of our courts is not less uncertain than the law. Some of the English rules are adopted and others rejected. Two things therefore seem to be absolutely necessary for the public security.

First, The passing an act for settling the extent of the English laws; and,

Secondly, That the courts ordain a general set of rules for the regulation of the practice.

To give a particular account of our laws civil and criminal, cannot be expected in this work. All lands are held of the crown by socage tenure, as those of East-Greenwich, at home, in the county of Kent; and the manner of obtaining a title to such as are vacant, or in the posession of the Indians, is this:

Formerly the custom was to apply to the governor in council, for a license to purchase lands of the Natives in his Majesty's name. A deed was then privately obtained from the Indian proprietors to the king, and annexed to a second petition to the governor, for a warrant to the surveyor-general, to make a survey of the quantity purchased. Another warrant, upon the return of the survey, was then issued to the attorney-general, to prepare a draught of the patent; which being transmitted to the secretary's office, was then engrossed upon parchment, and the great seal affixed to it by the governor.

In these surveys and deeds more lands were often included than the Indians intended to sell; and these frauds being frequently complained of, an order was made by the governor and council, in 1736, that thenceforth no Indian deed should be taken, until the land proposed to be granted, was actually surveyed by the surveyor-general, or one of his deputies, in the presence of the Indian proprietors: that the bounds of the tract should be then entered in the deed, and a certificate endorsed, that they are agreeable to the survey, and that he saw the consideration money or goods, bona fide delivered to the venders. The patenting of lands, has long been, and still coutinues to be, very expensive.

Our law judicatories are numerous; I begin with the lowest.

OF THE JUSTICES' COURT.

Justices of the peace are appointed by commission from the governors, who, to serve their purposes in elections, sometimes grant, as it is called, the administration to particular favorites in each county, which is the nomination of officers civil and military; and by these means, the justices have been astonishingly multiplied. There are instances of some who can neither write nor read.* These Genii, besides their ordinary powers, are by acts of assembly enabled to hold courts, for the determination of small causes of five pounds and under; but the parties are privileged, if they

* Lord Bacon's observation, that there are many who count it a credit to be burdened with the office of a justice of the peace, is very applicable to us. Bacon's Works, fol. vol. II. p. 151.--The statute of 38 Hen. VIII. limited the number of justices to eight in a county.

choose it, with a jury of men. The proceedings are in a summary way, and the conduct of the justices has given just cause to innumerable complaints. The justices have also a jurisdiction, with respect to crimes under the degree of grand larceny. For any three of them (one being of the quorum) may try the criminal, without a jury, and inflict punishments not extending to life or limb.

THE SESSIONS AND COURT OF COMMON PLEAS.

The court of Common Pleas takes cognizance of all causes where the matter in demand is in value above five pounds. It is established by an ordinance of the governor in council. The judges are ordinarily three, and hold their offices during pleasure. Through the infancy of the contry, few, if any of them, are acquainted with the law. The practice of these courts is similar to that of the common-bench at Westminster. They have each a clerk, commissioned by the governor, who issues their writs, enters their minutes, and keeps the records of the county. They are held twice every year. These judges, together with some of the justices, hold, at the same time, a court of general sessions of the peace.

THE SUPREME COURT.

The jurisdiction of this court extends through the whole province, and its powers are very great. For it takes cognizance of all causes civil and criminal, as fully as the King's Bench and Common-Pleas at Westminster. In civil controversies, the value of the sum demanded must exceed twenty pounds. This court has four terms in a year, and always sits at New-York. * The judges, for many years past, have been but three. The chief justice has ten shillings as a perquisite, upon the first motion in every cause, together with an annual allowance of £300. The second and third justices have also yearly appointments, too inconsiderable to be worth mentioning. They hold their offices by separate commissions under the great seal of the province, which were formerly during pleasure, but of late quam diu se bene gesserint.†

The Supreme Court was, at first, established by several laws of the province; but the terms were, afterwards, directed by an ordinance of the governor and council, which is alterable at pleasure.

*The terms commence on the third Tuesdays in January, April, and October, and on the last in July. The first and the last continue five days, and the two other terms ten.

+ Prosecutions, by information, are often commenced in the supreme court by order of the governor and council, and criminals sometimes committed by their warrants; for which reason some are of opinion, that the judges ought not to be members of that board, which is frequently the case.

Whether this court has a right to determine causes in a course of equity, was a question much litigated, during the troubles in the several administrations of Mr. Cosby and Mr. Clarke. Colonel Morris, afterwards governor of New-Jersey, sat then as chief justice upon the bench, and delivered a long, argumentative, opinion in the negative.* The people were, in general, on that side, and the exchequer court bell scarce ever rung, but the city was all in confusion. Petitions against the court, from several parts of the province, came up to the assembly, who desired to hear council; and accordingly Mr. Smith and Mr. Murray, delivered their opinions at their request, both which were afterwards printed by their order. The former, who spoke first, urged numerous authorities, to prove that no court of equity could be legally established except by prescription or an act of the legislature, and concluded with these words-" "Tis with the greatest submission that I tender my opinion upon these points.-I have said nothing with a design to offend any man, nor have I omitted saying any thing, that I thought might tend to the public good. Liveravi animam meam. I have endeavoured to discharge the trust, and support the character, with which this house has honoured me. You have my sincere and real sentiments. If I have erred in any thing, it has been unwillingly. I am heartily a friend to this colony, and earnestly wish its prosperity. I have no interest in the points in question, but what are common to all the freemen of this province. I profess the greatest veneration for the laws of my country, and am glad of every opportunity to do them public honour. They place our liberties upon the firmest basis, and put our properties under the surest protection. I rejoice in the security that we have of a long enjoyment of them, by the settlement of the succession in the house of Hanover.-'Tis the excellency of our constitution, and the glory of our princes, that they are sovereign over freemen, and not slaves. 'Tis the misery of an arbitrary government, that a man can enjoy nothing under it that he can call his own. Life, liberty, and property, are not his, but all at the will and disposal of his tyrannical owner. I don't wonder that our ancestors have been always so jealous of their liberties: how oft have they bravely fought, and nobly died, in the defence of them? We have received our liberties and our laws, as an inheritance transmitted to us in the

See the printed opinion, and the arguments of Messrs. Alexander and Smith for the defendant Van Dam adsectum the attorney-general; in support, of a plea to the jurisdiction of the supreme court, on a bill filed there for governor Cosby in a course of equity. New-York, printed by John B. Zenger, 1733.