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Proceedings of the New York State Historical Association : ... annual meeting with constitution and by-laws and list of members (Volume 16) online

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Peter Wraxall, one of Johnson's most devoted henchmen,
says : " General Lyman and all the officers behaved with dis-
tinguished conduct and courage." Penna. Gazette, September
18, 1755. The express, sent from Albany to New York and
received the Sunday following the battle, said: "The brave
General Lyman (who has added honour to the Province, in


whose service he is), is well." The conviction of the men who
won the battle was that Lyman was the real hero of the day.
" General Lyman," says President Dwight, " to whom the na-
tion was indebted for the whole of the advantages (of the vic-
tory) was forgotten on the eastern side of the Atlantic ; or more
probably was unknown as an agent in the acquisition of this
victory. His only retribution was that the government and peo-
ple whom he immediately served, disregarding the base attacks
on his character, did justice to his merits by public as well as
private testimonies of their esteem, particularly by continuing
him in the honorable stations which he had before filled."

Johnson himself frankly acknowledged, two days after the
fight, while conversing with a gentleman in his tent, " that to
Lyman was chiefly to be ascribed the honour of the victory."
Moreover, it was doubtless due to the general recognition of
Lyman's merit, as well as to the apparent neglect he had suf-
fered from Johnson, that he was appointed Commander-in-Chief
of the American forces to make the expedition against Havana
in 1762, when the city was besieged and captured, August thir-
teenth, by Admiral Pococke and the Duke of Albemarle.

There appears to be little doubt that Lyman was a brave
man, possessed of traits of character that won for him the es-
teem and confidence of his fellow-citizens; that he was also a
man of such integrity that he would not demean himself by play-
ing the part of political sycophant in order to advance personal
aims, nor would he sulk in his tent when his services were
passed over without a word; that his chief weakness may have
been the very natural despondency which so often attacks good
men when they see right and justice persistently crowded to
the wall. It was a case of " What is the use ? " when wrong
steadily turns deaf ear to acknowledge right. " Few persons
begin life," says President Dwight, " with a fairer promise of
prosperity than General Lyman. Few are born and educated to
brighter hopes than those cherished by his children. None,
within the limits of my information, have seen those hopes, pre-
maturely declining, set in deeper darkness. For a considerable
time no American possessed a higher or more extensive repu-
tation ; no American, who reads this detail, will regard him with



Professor John Bach McMaster, Litt. D.

WHEN our forefathers, one hundred and more years ago,
renounced allegiance to the British crown and founded
in this country a republic of their own, they gave their
reasons to the world at large. "A decent respect for the opinion
of mankind," as they expressed it, required that the course of
separation should be fully stated. But they went further than
a mere statement of specific acts of misgovernment by king and
Parliament, and in their Declaration of Independence announced
certain fundamental principles of government which they called
self-evident truths. They declared that all men are created equal,
and have been endowed by their Maker with certain inalienable
rights ; that among these rights are life, liberty and the pursuit
of happiness; that government is instituted among men for the
sole purpose of protecting these rights ; that it derived its just
powers from the consent of the governed, and that when it
fails to secure the ends for which it is created, it is the right of
the people to alter or abolish it.

Having announced these rights of man as guiding principles
to be observed in the formation of all just governments, our
forefathers proceeded at once to turn the Colonies into States to
replace the royal and proprietary governments they had over-
thrown, with State Constitutions of their own make, and to unite
all into a common Union by an instrument which they called
the Articles of Confederation. At first thought it would seem
no more than reasonable to expect that, if these men were really
sincere in the bold assertion they had made, their new Constitu-
tions would be the complete embodiment of the great principles
for the acquisition of which they had pledged their lives, their
fortunes and their sacred honor. But an examination of these
/^ 5 6s


documents reveals the fact that in their formation very little
regard was paid to the self-evident truths, and that the very men
whose lips were constantly heard demanding the rights, the in-
alienable rights of man, went on and set up governments under
which the rights of man had very scanty recognition.

They had declared that all governments derive their just pow-
ers from the consent of the governed, and that such consent
can only be given when the governed participate in the election
of the delegates who are to exercise the powers of government.
They had declared that taxation without such representation
is tyranny. Yet the only State where the mere payment of a tax
carried with it the right to vote was the State of Pennsylvania.
Elsewhere the franchise was confined to men of substance, or to
persons at least well to do.

In Massachusetts the voter must have a freehold estate yield-
ing three povmds a year, or a personal estate worth sixty pounds.
In Connecticut the requirement was an annual income of seven
dollars from a freehold or real estate rated on the tax list at $134.
In New Jersey he must own fifty pounds' worth of real estate,
free and clear. In New York he must be seized of a freehold
estate worth thirty pounds, or pay a house rent of forty shillings
a year, have his name on the list of taxpayers, and, on election
day, have in his pocket a receipt for the taxes for the previous
year. In Virginia the franchise was limited to such as owned
twenty-five acres of land, properly planted, and a house whose
foundation was at least twelve feet square, or a freehold of fifty
acres of wild land, or was possessed of a freehold or estate in-
terest in a lot in some city or town established by law. To be
enfranchised in South Carolina, the free white man must believe
in the existence of a God, in a future state of reward and punish-
ment, and have a freehold of fifty acres.

But the right to vote when once acquired did not carry with
it the right to hold office. Thousands of men who, on election
day, went to the polls, were hopelessly debarred from ever, in the
whole course of their lives, sitting in the Legislature or reach-
ing the high place of Governor of a State. In Maryland no
Jew, no infidel, no man who could not publicly declare that he
believed in the Divine Paternity of Jesus Christ could hold any
public office, or sit as a juror, be an officer in militia, or even


practice law in the courts of the State. No atheist, no Jew, no
Roman CathoHc, no man who did not believe in some form of
the Protestant religion, could be a Governor of New Hampshire,
or New Jersey, Connecticut or Vermont. Here he must be a
Trinitarian and a believer in the inspiration of the Scriptures ;
there a Protestant and accept the Divine authority of the Bible ;
elsewhere he must acknowledge one God, believe in Heaven and
Hell, or be ready to declare, under oath, that, in his opinion,
every word of the Testaments, both Old and New, was direct
from God. Nor were religious restrictions deemed enough.
Heavy property qualifications were added ; for the Governor
must not only be pious, but rich. In one State he must own
real property to the value of loo pounds ; in another of 500 ; in
another of 5,000, and in yet another of 10,000 pounds. To be eli-
gible to be a State Senator the voter must own a freehold worth,
in some instances, 100 pounds; in some 300; in one 1,000; in
others great tracts of land of from 200 to 500 acres. It was, in-
deed, true that all governments derive their just powers from
the consent of the governed. Yet, under these early constitu-
tions, none but tax-paying, property-owning men could give that
consent from which government derives its just powers. True
it was that everywhere the utmost liberty of conscience was en-
joyed, but the man who did not so exercise that liberty of con-
science as to become a Protestant or a Catholic must give up
all hope of political preferment.

Yet, in spite of all this, it would be the height of injustice to
accuse our early constitution-makers of inconsistency. To have
suddenly produced such a social condition as they had in mind, to
have recklessly removed from the statute book every law, to
have ruthlessly broken down every custom or usage at variance
with the new principles, would have been acts of disorganization
of the worst kind. But these men were in no sense disorgan-
izers, anarchists. With a steadfast reliance on the truth of their
principles, they waited but for a chance to apply them decently
and in order, and when the chance came they were applied, and
the rights of man steadily extended. While the war for inde-
pendence was still raging. New York abolished entailment of
estates, and Virginia granted absolute religious toleration to all
men. To prate to-day of the inalienable right of man to liberty,


and then buy and sell slaves to-morrow, was glaringly incon-
sistent, and, within a decade after the surrender at Yorktown, five
States abolished slavery, and turned the negro from a chattel to
a man ; and the Continental Congress passed the ordinance of
1787. Under it slavery was shut out of the Northwest Territory ;
religious liberty was guaranteed to every inhabitant thereof, and
the estates of persons dying intestate, it was ordained, should be
divided equally among the heirs.

This was a great stride forward; but greater were to follow.
Reform was the order of the day, and in the general revision of
the old State Constitutions and in the formation of new, the
rights of man were yet further extended.

New Hampshire cast away the religious test once exacted of
her Governor and legislators ; took off all poll taxes and put the
ballot in the hands of every male of full age. Delaware enfran-
chised every free male twenty-one years old who had resided
two years on her soil, and ceased to ask if he believed in the
Trinity and the Divine inspiration of the Scriptures. South
Carolina no longer required her voters to be good Protestants,
and opened the polls to Catholics. Georgia removed her re-
ligious test for civil offices and the property qualification once
required of all voters.

Between the day when Washington was inaugurated at New
York and the day when, mourned by the whole people, he was
carried to his grave, many of the old limitations on the inalien-
able rights of man were thus removed forever. In general, it
may be said that Church and State were separated; that re-
ligious belief ceased to be a qualification for office ; that property
qualifications were beginning to be reduced, and that the
new democratic doctrine of universal suffrage was gaining
ground. East of the Alleghanies long-established precedents,
time-honored usages, the presence of a ruling class, did much
to retard the progress of reform, and attempts to amend the
constitutions of Connecticut, Pennsylvania and Virginia failed
miserably. Yet some advance was made, and, before the second
war with Great Britain opened, New Jersey adopted manhood
suffrage, and Maryland took from her Legislature the power of
ever again imposing a tax for the support of any form of


The second decade of the present century was pre-eminently
a period of constitution-making. In the course of it six new
States joined the Union, and again the rights of man were ex-
tended. Some forbade imprisonment for debt after the debtor
had surrendered all his estate. Some provided that the estates
of suicides should be divided among the heirs just as in cases
of natural death. Others made truth a good defense in libel
suits. Four gave the ballot to free white males. Even the old
idea that taxation and representation should go together was
undergoing change, and in two of the new States representa-
tion in the lower branch of the Legislature was according to
population. That all men should vote; that the people should
be represented, and not mere political areas, as counties and
towns; that there should be no life tenures of office, and fewer
appointive and more elective officers, were now self-evident
truths. They were to be applied, not justified, and in the third
decade serious efforts were made to apply them in the four old
States of New York, Massachusetts, Maryland and Virginia.

Here, in New York, the struggle was between the rights of
property and the rights of man. As the Constitution then stood,
the males were arranged in three great classes ; those who could
not cast a vote for any State officer ; the twenty-pound freehold-
ers and forty-shilling renters who could vote for members of
Assembly, and the one-hundred-pound freeholders who were
electors of Assemblymen, Senators and Lieutenant-Governor
and Governor. But the narrow interpretation which the law
placed on the word " freeholder " deprived of a vote many a man
who, from the language of the Constitution, would seem to be
entitled to it. In the eye of the law, a man who possessed a
piece of real estate worth 20 or 100 pounds, that is, $50 or $250,
was entitled to the franchise. But a man who held an estate in
a farm or city lot for 999 years was a leaseholder, and could not
vote though the land was worth thousands of dollars. In this
class were thousands of farmers who, as lessees of the great
Dutch manors, held their land for 999 years. A second class of
disfranchised landholders were the men who had purchased their
farms on the installment plan from the Holland Land Company,
or the Pultney and Hornby estates. In place of selling in fee
simple and taking back a mortgage, these great land-owners


would sell on long credit with payments at certain intervals and
execute a contract to convey by deed when the last installment
had been paid. Were or were not these " equitable freehold-
ers," as they were called true freeholders, within the mean-
ing of the law, and entitled to vote? The common be-
lief was that they were not, and they cast no votes. Never-
theless, a statute had been enacted which permitted them
to act as jurors. But a juror must be a freeholder, and the ques-
tion of the status of the equitable freeholder became more com-
plicated than ever. In other parts of the State it was a common
custom to give a deed and take back a mortgage as security for
payment. Who owned such a piece of land ; the mortgagor or
the mortgagee? With which did the freehold rest? The law
said with both, and gave a vote to the man who happened to be
in actual possession.

The doubt cast on the meaning of freeholder by these stat-
utes, the disfranchisement of 50,000 tax-paying farmers, and the
steadily growing belief that manhood suffrage was the true
principle of democratic government, made this state of afifairs
unendurable, and in 1821 a convention to amend the Constitu-
tion gathered at Albany. That the old property qualification
for electors of Governor and Assembly should be abolished was
generally conceded. But a strong minority insisted that in the
Senate property should be represented, and that no man should
vote for a Senator who did not have in his own, or his wife's
right, an interest, in law or in equity, in lands or tenements in
the State to the value of $250. Without such a restriction the
agricultural interests would be committed to the wind. " Univer-
sal suffrage," said Chancellor Kent, " jeopardizes property, and
puts it in the power of the poor and the profligate to control the
afifluent. This democratic principle cannot be contemplated
without terror." Most happily the dismal forebodings of the
Chancellor did not prevail, and the ballot was given to every
white man who paid a tax, served in the militia or labored on
the highways, and to every free negro seized of a freehold
worth $250.

In Massachusetts a like contest took place. The question the
reformers had to answer was, will the rights of property be re-
spected in a State where every man may cast a vote? Is it not


a fundamental principle of our system of government, it was said,
that if representation in one branch of the Legislature is ac-
cording to population, representation in the other should be ac-
cording to property? How else can you maintain that system
of checks and balances which is the safeguard, the mainstay,
the sheet anchor of a democracy? "If," said Webster, "the
members of both Houses are to be chosen at the same time, by
the same electors, in the same districts, and for the same term
of office, they will be actuated by the same feelings and the same
interests. There is so little utility in this mode that if nothing
else be done, it would be more expedient to choose all the mem-
bers of the Legislature without distinction, simply as members
of the Legislature, and make the division into two Houses, either
by lot or otherwise, after these members thus chosen shall come
up to the Capitol. A dififerent sort of qualification in the elect-
ors ought to be required for the two Houses ; while men with
little property or none might safely be intrusted with the elec-
tion of members of the House of Representatives, none but men
of substance should have a vote in the choice of Senators, or be
eligible to a seat in that body." This view prevailed, and though
every man who was of full age, had resided one year in the
State, and had paid a tax within two years was given the ballot,
the old restrictions on ofifice-holding remained.

Maryland, after a struggle of more than a decade, now struck
from her Constitution the requirement that before entering on
the duties of his post every office-holder must svibscribe a decla-
ration of belief in the Christian religion, and thus made Jews
eligible to office.

But the extension of the rights of man was not limited to the
abolition of slavery north of the Mason and Dixon line, and the
Ohio river; to the abolition of religious qualifications for the of-
fice-holder, and property qualifications for the voter ; to the adop-
tion of manhood suffrage ; to representation based on popula-
tion, and not merely on the number of taxpayers or the number
of voters. A spirit of humanitarianism, narrow indeed as we
look back on it, but broad when judged by the standards of the
age, was abroad in the land. The pauper and the criminal, the
debtor and the unfortunate, now began to find favor in the sight
of their fellows, and imprisonment for debt began to be abol-


ished, and the inalienable right of man to liberty was given yet
further recognition. No records of the past furnish more hor-
rible reading than those in which are told the horrors of the
debtor's prison. For the smallest debt possible to contract,
though it was but a cent, the body of the debtor, whether man
or woman, might be seized by the creditor and cast into jail,
there to remain till the sum was paid. By an old law which went
back to the days when Pennsylvania was a Colony, magistrates
were allowed cognizance, without appeal, of debts under forty
shillings, or five dollars and thirty-three cents. When the debt
exceeded that sum the debtor was entitled by law to a stay of
execution. But no such privilege was accorded the wretch who
owed a sixpence or a shilling, and who might, if his creditor
chose, be dragged to jail on what were truly called " spite ac-
tions." Once behind the bars his lot was harder than that of
the lowest criminal. Thieves and murderers, forgers and coun-
terfeiters were fed, clothed and cared for at the expense of the
State, but for the luckless debtor, no such provision was made.
The food he ate, the rags that covered him, were provided, if
provided at all, by his friends, by the public, by some Humane
Society, or Society for Alleviating the Miseries of Public Pris-
ons. The room in which he was confined with scores of hard-
ened offenders was utterly without furniture of any sort. In it
were neither beds nor cots, tables nor chairs, nor so much as a
bench or stool. He sat on the floor, ate off the floor, and at
night lay down to sleep on the floor like a dog, without so much
as a blanket to cover him.

Against this violation of man's inalienable right to liberty and
the pursuit of happiness humanity at last revolted, and in 1794
a change for the better was ordered. " Whereas," says the law
then enacted, " many persons confined for debt in the prisons
called the debtor's apartment in the city of Philadelphia are so
poor as to be unable to procure food for their sustenance, or
fuel, or covering in the winter season, and it is inconsistent with
humanity to sufifer them to want the common necessaries of
life," the State must (not abolish imprisonment for debt), but
come to their relief. It was, therefore, ordered that the inspector
should provide fuel and blankets for such debtors as by reason
of their dire poverty could not get them, and should allow each


seven cents a day for food. For twenty-two years the commu-
nity seems to have thought this was all humanity required, and
no change was made till 1814. Then was passed the Bread Act,
under which a prisoner whose debts did not exceed $15 was en-
titled to his discharge after thirty days.

From documents presented to the Senate of New York in
1817, it appears that 1,984 debtors were confined in the jail at
New York city during 1816, and that at least 600 were always
in the prison or on its limits. The sheriflf certified that 1,129
were confined for debts of less than $50 ; that of these 729 owed
sums under $25 each ; and that every one of them would have
starved to death but for the kindness of the Humane Society.
One man who had languished in the jail during three years for
a debt of $50 had been fed by the Society during the entire time.
Another had been imprisoned six years and supported by

In the face of such horrible testimony as this the Legislature
relented, and in 1817 abolished imprisonment for debt under
$25, and State after State followed the example. New Hamp-
shire fixed her limit at $13.33; Vermont at $15; Pennsylvania
and Kentucky went further yet and utterly forbade the impris-
onment of women for debt. When the States of Indiana, Illi-
nois, Mississippi and Alabama entered the Union, between 1816
and 1820, the Constitution of each prohibited imprisonment for
debt unless the debtor refused to give up his estate ; but the
middle of the century was almost reached before all the old
States on the seaboard were willing to go to this extreme.

What was done for the debtor was done in some manner for
offenders of every sort. They ceased to be a proscribed, marked
and branded class, and many a cruel, barbarous and ignominious
punishment was abandoned. As we read over the criminal
code of our fathers, it seems almost impossible that the mass of
humanity should have escaped death or disfigurement. In
Massachusetts, in the days before the War for Independence,
twelve crimes were punishable with death ; in New York eleven ;
in Pennsylvania twelve. The thief or the robber was branded on
the hand with the letter B, if his crime was committed on a
week day, and on the forehead if done on a Sunday. The mur-
derer who escaped the gallows for any reason must have an M


burned into the flesh of his left thumb, and for any other felony
a T in the same place. Counterfeiters must, in the words of the
law, " be set upon the pillory, in some open public place, there
have both his or her ears cut off, and be publicly whipped, with
thirty-nine lashes well laid on," and if he could not pay his fine
and damages he must be sold for a term not longer than seven
years. The housebreaker who forced his way into a public
building must, in his turn, stand in the pillory one hour, have

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Online LibraryNew York State Historical Association. MeetingProceedings of the New York State Historical Association : ... annual meeting with constitution and by-laws and list of members (Volume 16) → online text (page 6 of 7)