nv

]

T r

1"

It,* • jf
r

IVI

A.

1, '^- '

)

I ^

1]

>!
V^
f
1 », If
''mi !
§k^ M
't\<'^,
1 1 IV" -^ '^lyi
1^ r>' - V
I r Iw t ' i
J t
t}
1 1 ,1 i r> w « r# , .1"' f '-\
i H
-r^^
tve ttftft BooAi
for tAe fai^uSn^ if a. Cptiege in- this Colotiy'^

Bought with the income
of the
Addin Lewis Fund
/9c^f 

I Uj c^uCa^;) ~Co

'fU'/llClll/ic,

/ 1, yt

li /i'i\j

1

1.(1 /J/h-

i (fiL /liiil ci. /^S'l

'/

MEMOIE

OF THE

HOI. JAMES DUANE,

JUDGE OF THE DISTRICT COURT OF THE U. STATES

NEW YORK,

BY
HON. SAMUEL W. JONES.

KEYSEB, PRINTER.
1852.

Entered according to act of Congress, in the year 1852,
BY SAMUEL W. JOIfES,
In the Clerk's Office of the District Court of the United States, for the
Northern District of New York.

NOTE.
This Sketch was drawn up at the suggestion of Dr. O'Callaghan, who has
done so much already to rescue the Ancient History of New York from obliv
ion, for publication in the 4th volume of the Collection of N. Y. Documents,
and with a view to gratify biographical curiosity as to an individual whose
name for more than thirty years is conslanlly occurring in the records of our
most important transactions. As no connected account of Judge Duane's life
had before been published, or even compiled, it was thought necessary, for the
sake of illustrating it at this late day, to mention many matters in which he was
engaged during a long and active business career, which might have been omit
ted had his histoiy been more familiar to the public. This circumstance and
the few pages to which I was contined, cause the sketch to assume much of a
chronological form, and deprives it of interest which might have been excited
by elaborating and extending accounts of the many important portions of his
life. Considering it principally as an outline to be filled up at a future period,
a few copies are republished, with corrections of typographical errors, and the
insertion of a few sentences from my manuscript, omitted in the original pub
lication, to elicit additional information through the medium of friends, to
whom they are to be presented. S. W. J.
Schenectady, 12th July, 1852.

SKETCH OF THE LIFE OF THE
HON. JAMES DFANE.

The subject of this sketch — a prominent and patriotic son of New
York — ^was held in high estimation in his day, and was for near forty
years actively engaged in the most important affairs of his country.
He obtained the confidence of men of business in very early life, and
of the people of New York as soon as they required able and fearless
agents to carry on the controversy with the mother country, and re
tained it not only in the outbreak and vicissitudes of the Revolution,
but in the period of discontent and uneasiness which followed the
acknowledgment of om- independence by Great Britain, and until his
voluntary retu-ement from public life, several years after the adoption
of the present Constitution of the United States. His history teaches
that it was not by shrinking from responsibility that he retained his
high standing, for he is always found a prominent actor whenever en
gaged in business with- others, and in every body or party of which
he was a member.
James Duanb was born in the city of New York on 6th February,
1 '732-3. He was the third son of Anthony Duane, a gentleman
from Cong, in the county of Galway, Ireland, who having when very
young been a purser in the British Navy on the New York station,
resigned his situation and returned to the city of New York, where he
spent the rest of his life as a merchant, and where he died on the
14th August, 1'74'7. The mother of James Duane was Altea Kettle-
tas, his father's second vdfe, and daughter of Abraham Kettletas, one
of the most considerable merchants, and long an Alderman, of the
city of New York. She died when he was only three years old, and
in May, 1741, his father married a third wife, the widow of Thomas
Lynch, whose maiden name was Riker, of Flushing, L. I. This lady
survived her husband until 1*775, and seems to have so treated his

6
children that they felt for her all the affection of a real mother. —
Anthony Duane held no ofl&ee in this country, but must have had
considerable influence as he procured appointments in the British
Navy for two of his sons, one of whom ( Richard ) died at Kingston,
Jamaica, in 1740, a midshipman, and another, named Abraham, died
at sea in 1767, a post captain.
AVhere James Duane received his education, does not appear. He
had a knowledge of Latin, which he might have received from the
Rev. Mr. Chadton, one of the Executors to his father's will, who in
structed some pupils in the classics. The profession of the law being
•selected as his future occupation, he entered the oflBce of James Alex
ander, one of the most eminent counsel of our colonial bar and the
father of the American General, Lord Stirhng. He was admitted an
attorney of the Supreme Court 8d August, 1754, and, as his law
register and papers show, was soon entrusted with a large professional
business. He retained his clients so long as he continued a practising
lawyer. William Kemp, the then Attorney General, gave him in
about two years after his admission as an attorney, a warrant to act
for him in crovra causes, and he officiated under it in several counties.
This warrant he returned 28th April,* 1757, wh^n he declined to act
any longer under it, on account of "the hard terms pf exacting half the
low fees" for the services rendered. This circumstance shows the con-
iidence of the young lawyer to get along without official patronage.
On the 21st October, 1769, Mr. Duane manied Mary, the eldest
daughter of Col. Robert Livingston, then proprietor of Livingston's
Manor. This marriage tended to give a direction to his studies and
practice, and caused him to become actively engaged in all the law
suits and discussions relative to the boundaries of our then colony.
As early as 1753, the Massachusetts people had intruded on and
laid claim to the eastern part of both Livingston's and Rensselaer's
Manors, and notwithstanding the efforts of our Governors of Legisla
tive commissioners, and even of the Home Government, no satisfacto
ry settlement of these intrusions had been made in 1759. The inroad
of the New Hampshire men, upon the New York territory, now Ver
mont, stimulated by the avarice of Gov. Wentworth for patent fees
had commenced at a still earUer period, and had already dotted it
with what were called New Hampshire grants. Before his marriage,

Mr. Duane had been to some extent employed in examining the rights
of New York in reference to her eastern boundaiy line, and from that
time to the final compromise with Massachusetts in 1786, he became
the most active advocate and diligent and able expositor of her terri
torial rights and jurisdiction. In the private suits depending on these
questions between owners of lands along the lines of Connecticut,
Massachusetts and New Jersey ; in the discussions between these
colonies and New York ; in the controversies between New York and
the claimants of lands along Lake Champlain under the French grants,
and in the final settlement of these mattere he was always employed
as attorney, counsel, or commisssioner, and always on behalf of the
'rights of his native State. In the disputes relative to the New Hamp
shire gi'anfs, he was considered the hfe and soul of the New York
claim and claimants, and at him was aimed most of the coarse wit and
abuse which the Vermonters showered so bountifully upon all then-
opponents. He conducted much of the coi-respondence with the
agents of our colony in England, while the above disputes were pend
ing before the King in council, or the Board of Trade, drew several of
the reports made to the General Assembly by its committees, and the
elaborate "State of the Rights of New York," published by its order,
and a most comprehensive but concise summary of the questions then
agitated and about to be transferred to England for decision between
New York and all her neighbors, in a letter to the celebrated Edmund
Burke, who was then her agent. During the Revolution, when the
dispute relative to "the gi-ants" was agitated before Congress, as it
was for several years, he was the main rehance of New York, and,
although at times a most difficult task, he succeeded in preventing
that body from yielding to the powerful influence of the Eastern States,
all of whom took part with "the Green Mountain boys ;" and New
York from vindicating her rights by force when irritated by some
supposed concession made to "the revolters," or at some delayed de
cision which her authorities insisted ought to have been made at once
in her favor.
The standing Mr. Duane had acquh-ed in his profession before the
Revolution, caused him to be retained in most of the suits which, on
account of the principle involved in them, interested large masses of
the people both in New-York and New Jei-sey. Among these may

8
be mentioned in the latter colony, that against the proprietors of East
.Tersey, and that between the partnei-s in the Copper, mine Company ;
in our own colony, Trinity Church ( New Rochell ) against Plandreau
and others ; Sir James Jay against King's College ; Schei-merhorn
against the Trustees of Schenectady Patent; the King, on the informa
tion of the Attorney General, against Lt. Governor Colden. In this
last suit he was employed for the defendant, and the Lt. Governor
expressed much obligation to him for undertaking his cause after other
counsel had declined, through fear of Governor Monckton's displeasure,
for the latter was in reality the plaintiff as well as the Judge, the suit
being for fees and before the Governor as Chancellor. He was also
the attorney and counsel of Tiinity Church, New York, in the suits
against the intruders on that part of their property called the King's
Farm, so noted in the revived claims of the numerous descendants of
Aneke Janse. His briefe and written arguments in such cases show a
depth of legal learning that would not disparage him in comparison
with the most distinguished members of the modem bar. In the case
of Foi-sey vs. Cunningham, he was consulted and gave his opinion
against Lt. Governor Colden's construction of his commission and in
structions. Colden was then administering the Government, and Mr.
Duane was no more biassed by that circumstance than he was in Col
den's own case, when Monckton was Governor. In both cases we see
that fearlessness of governmental authority, which, a few years later,
led him to risk his life and estate in the war for our Independence.
In the various contests for seats in the Colonial Assembly which
took place after each general election, Mr. Duane was very frequently
employed by olie party or the other. In the noted case between John
Morin Scott and James Jauncey, in 1768, Mr. Duane was employed
by Jauncey, and successfully defended him.
The election on this occasion had not been entirely contested on
political grounds; it was to some extent a church controversy, and Mr.
Duane sided with Jauncey, the church candidate, although his wife's
family and many of his best friends were against him. The part he
took against Mr. Scott on this occasion rendered them cool towards
each other until some time after commencement of the revolution, in
which they both engaged, and during which they appear by their
correspondence to have become good friends.

9
Besides a high professional reputation, the estimate of his private
character and standing before the Revolution is evidenced by his being-
one of the Vestrymen of Trinity Church, and one of the Governors of
the' College. The only public office Mr. Duane held, prior to the
revolution, was that of clerk in chancery, given to him by Lt. Governor
Colden, April 20th, 1762. He officiated, however, for John Tabor
Kempe, the Attorney-General, in 1767, when the latter went to Eng
land, but appears to have done it more from friendship to the incum
bent than emolument. His father had left to him and his three
brothei-s, among other property, about six thousand acres of wild land
in the present town of Duanesburgh. By the death of two of his
brothers, and by purchase from the third and by other purchases, he
subsequently became owner of nearly the whole of that township then
also wild. In 1765, before his purchases were all made, after some
previous feeble efforts, he commenced active measures for its settle
ment. Finding the New Yorkers prejudiced against the country by the
representations of Sir Wilham Johnson's agents, and perhaps by him
self, who was settling land also, Mr. Duane entered in March, 1765,
into contract with a company of twenty Germans from Pennsylvania,
of whom about sixteen came on the tract, and they made the first per
manent settlement in that now flourishing town.
On the 13th of March of the same year, he had procured the erec
tion of these lands into a township, called Duanesburgh, with the
usual privileges to the inhabitants of choosing town officers and mak
ing town laws.
The King in council having decided in 1704, that the territory,
now called Vermont, was pai-t of the colony of New York, Mr. Duane
in August, 1765, made his fii-st purchase in that district, and in about
two years had extended these purchases to about sixty-four thousand
acres, which cost him upwards of eight thousand dollars, and subse
quently large additional sufns for surveyore' fees and other expenses,
of which neither he nor his heirs obtained anything but the small
dividend of the $30,000, which Vermont agreed to pay when New
York signed ofPthe rights of her citizens. The bargain was made by
our politicians to obtain a new state to overbalance southern influence,
and in this paramount object with them, compensation to the com-

10
paratively few landholdere among her citizens was almost entirely
overlooked. The professional business of Mr. Duane, the boundaiy commissions
with the neighboring colonies in which he was employed, the settle
ment of Duanesburgh, and the Vei-mont controversy, devolved upon
him an amount of business which naught but an iron constitution
could stand, and would seem to preclude him from engaging in the
ecclesiastical and political disputes that agitated the colonists of New
York. We find him, however, taking an active part on the side of
the church in the effort to obtain bishops to be sent to America, and
on the part of the colony in the disputes about taxation by authority of
parliament alone, when such authority was first exercised. He was a
decided churchman, but, like his friends Jay and Chancellor Livings
ton, he was a strenuous advocate both for civil and reUgious liberty.
He was one of the founders and active members of a society formed
during the disputes above alluded to, for the promotion of agricul
ture and encouragement of manufactures in the colony, which continued
some yeai-s, and greatly advanced the objects it had in view. The
celebrated Sii* William Johnson, notwithstanding his great local interest
here, and his high influence, would not join it for fear of offending the
then jealous and monopolizing home government.
When faithful and skilful agents were sought for in 1774, to devise
means to regain those rights which England had grossly infringed, and
to secure them from future violation, Mr. Duane was natm-ally one of
the earliest selected. He was a member of most of the committees in
the city of New York, raised to devise plans of opposing the British
encroachments, and when the general Congi-essof 1774, was determin
ed upon, and the Colonial Assembly had refused to appoint any (dele
gates to act, Mr. D. was elected by the people not only of that city,
but of several counties. The Congress was to meet in Philadelphia on
the 5th of September ; the election in New York had taken place some
time before, and the members elected were inquired after by others,
who had embarked in the American caiee, with at least the samie
curiosity and interest as is felt by the politicians of the present day, in
regard to the members of a presidential convention.
The Massachusetts members of Congress started early from their
homes and arrived at New- York before Mr. Duane and his colleagues-

¦ 11
had set out. We have, therefore, some notices of the subject of this
sketch in the journal of John Adams, recently published, from which
it is apparent that Mr. Duane was the most prominent man in the New
York delegation ; that Mr. Adams' attention was especially directed to
him and that he was viewed with some distrust. To those who
know his previous histoiy, his constant employment in the suits and
controversies against our eastern neighbors, and that the Massachusetts
delegates fell at once into the hands of Mr. Scott, cooled towards Mr.
Duane by the election contest above noted, the early observations
made by Mr. Adams are no matter of wonder. It is pleasing, however,
to find that the mutual services of these patriots in the cause of their
country, wore off the prejudices of Mr, Adams from whatever source
derived. Mr. Duane set out for the Congress of 1774 on the 31st of August,
accompanied from his house to the foot of Broad street, (whence he
took the fen-y boat) by a great procession, with music playing and
colors flying. On arriving at the Exchange, then in that street, the
procession halted and he addressed- the citizens. He- was present on
the 5th September, the very day appointed for the meeting of the
Congress. The members assembled at Smith's Tavern, and as the
Speaker of the Pennsylvania Assembly had offered the use of the
State House, and the Carpenters their Hall, it was agreed to view
both. The Cai-penters' Hall was the first visited, and Mr. Lynch
moved that it should be fixed on as their place of meeting without
further inquiry. Mr. Duane objected to adopting this resolution until
they had at least viewed the State House ; as it had been offered by
the Speaker, it was but respectful to him to inquire whether it was not
equally convenient as the Hall, and if it were, it ought to be preferred
as it was a Provincial, instead of a private, house. The resolution,
however, was carried to hold their meetings in Carpenters' Hall. This
little incident displays the superiority, both in sagacity and habitual
perception of the New York gentleman of that day over the impulsive
southerner, and even over a well bred Bostonian ; for although Mr.
Adams notices the debate, he seems insensible to the influence which
dictated opposition to the resolution of Mr. Lynch.
The members organized at once, voted that their body should be
styled "the Congress;" their presiding officer "the President;" and

12
their clerk "the Secretary of the Congress ;" and after some debate as
to rules, adjourned to the next day. On, the 6th September arose the
debate as to the manner of voting and what weight each Colony
should have in the determination. Patrick Henry of Virginia, argued
that by the oppression of Parliament all government was dissolved
and that we were reduced to a state of nature — that there was no
longer any such distinction as colonies — that he conceived himself not
a Virginian but an American — that one of the greatest mischiefe to
society was an unequal representation — that there might be, and
probably would be further occasions for a Congress, and that it was
time to form such a system as would give each colony a just weight
in its dehberations, in proportion to its opulence and uumbei-s of in
habitants, its exports and imports. He was answered by Mr. (Ward)
of Rhode Island, — who insisted that each colony should have an equal
vote — that we came if necessary to make a sacrifice of our all, and
that the weakest colony by such a sacrifice would suffer as much as
the greatest. Col. Harrison, from Virginia, insisted strongly on the
injustice that Viginia should have no greater weight in the determi
nation than one of the smallest colonies — that he should be censured
by his constituents, and unable to answer his want of attention to their
interest should he assent to it, and that he was very apprehensive that
if such a disrespect was put upon his countrymen we should never see
them at another convention. The debate then took a different turn.
It was observed that if an equal representation was ever so just the
delegates from the several colonies were unprepared with materials to
settle that equitably. This was an objection that could not be
answered. The question was then put and it was resolved that the
sense of Congress shall be taken by voting in colonies each to have
one vote. In the couree of this session two committees were resolved
upon, one to state the rights of the colonies, the several instances in
which they have been violated and infringed, and the means most
proper to obtain redress ; the other to state and report the several
statutes affecting the trade and manufactures of the colonies.
This day, also, was raised the question, whether the Congress should
be opened by prayer by a clergyman ; and the same arguments were
urged for and against it, that we hear a), the cotnmencement of every
session of Congress and of our Legislature. The result was, however.

13
that Mr. Duchee, of the Episcopal church, proposed by Samuel Adams,
was invited to open Congress the next morning with the service of the
church of England, and a suitable prayer.
On the 7th September, the congress was opened with prayers by
the Rev. Mr. Duchee. The thanks of congress were voted to him,
and a motion made that he should be requested to print his prayer
composed for the occasion ; but it was withdrawn, lest his compliance
with it should be some disadvantage to him. The next question de
bated at this meeting was the appointment of the two committees. A
motion was made by Mr. Lynch, to make the appointment of the
committee on the rights of the colonies, &c., from the congress at
large, without reference to the colonies from which the membei-s were,
so as to embrace those gentlemen who had made these subjects their
study. This was opposed on the ground of the difficulty of making
a selection, on this ground — that diflerent colonies had different rights,
&c ; and it was finally resolved, that this committee should be com
posed of two from each colony, to be named by the members fi-om
that colony.
Mr. Duane and Mr. Jay were selected for the first of these com
mittees and Mr. Low for the second. As these committees withdrew
so many members from the Congress, and as the matters referred to
them were those which had occasioned the congress to be called, the
President was authorised to adjom-n it from day to day and call it
together when he should think fit. The committee, to state the rights,
&c., met forthwith on the adjournment of the Congress and Mr.
Duane proposed Mr. Lynch as chairman, but he declined and proposed
Mr. Hopkins, who was unanimously chosen, and Charles Thompson,
the Secretary of the Congress, was chosen clerk. The committee met
daily until the 22d September, when it made a report in part. Mr.
Duane and Jay, in conformity with the known wishes of their con
stituents, were for such measures as should secure the rights of the
colonies as then undei-stood, and yet continue them members of the
British empu-e, allowing to the King his acknowledged prerogatives,
and to ParUament, by express declaration, her supremacy in matters
of external trade and in relation to foreign connections. Mr. Duane
embodied these ideas in a preamble and a series of resolutions in sub
stance, and some of them verbatim, as those which were reported to

14
and adopted by Congress and found in their Journal. The rights
of the King and Parhament are only briefly alluded to in the adopted
resolutions, though substantially acknowledged in the addresses pub
lished by the Congress.
Among the subjects of debate before this committee was the ques
tion whether the Quebec bill should be reported as a grievance, and
Mr. Duane was against including it in the report, but Mr. Lee, from
Virginia, on temtorial considerations, the eastern members, under
jH-etence of religion, and others, because it would be popular to insert
it both in England and America, having united, formed a great ma
jority aganist him and he acquiesced in its being reported unanimously.
The proceedings of Congress being had with closed doors, and ,
secrecy being imposed on the members, much that transpired within
the Congress is unknown. Among Mr. Duane's papers is found a copy
of Dr. Franklin's plan of a union of the colonies proposed in 1754,
with an indorsement that it was offered to the Congress on the 28th
September, by Mr. Galloway, seconded and supported by the New
York members, but finally rejected and ordered to be left out of the
minutes. Mr. Duane was opposed to the non-importation agreement on the
grounds that our importations would not materially affect the trade of
Great Britain ; that it would increase the irritation between the two
countries and render reconciliation more difficult, and that, in case of
war, the possibility of which was even then contemplated, we should
be in want of the articles we would thus exclude. He, however, sign
ed the association, and was sincere in his efforts to enforce its observ
ance. Congress adjourned the 26th of October, recommending the
meeting of another on the 10th of May then next ensuing.
The expenses of the delegates from New York to the first Congress
seem to have been paid by themselves, and Mr. Duane's, as entered
in his memorandum book, were £87 and upwards, exclusive of his
two months' board. The expenses of the Committee of Correspond
ence in New York, were of course defrayed by subscription, and it ap
pears by the receipts of Thomas Petit, the collector, that Mr. Duane
paid for this purpose £6, November 12th, 1774, and a hke sum. May
6th, 1775. He was also a subscriber to the fund for the reUef of the
Bostonians, and to all the public entertainments and celebrations given

15
by the American patriots in New York in 1774 and be^nning'of 1775,
and in addition to this he lost, by reason of his absence in Congi-ess,
the October term of the Supreme Court of the former of these years,
which, to a professional man of his eminence at the time, was a con
siderable sacriSce. Thus it will appear that even in the outset of the
Revolution, he had a foretaste of the sacrifices of property he after
wards experienced, as well as a knowledge of the consequences to his
life, should his country prove imsuccessful.
Mr. Duane's conduct must have been satisfactory to his constituents,
for in Apiil, 1775, he was elected a member of the Provincial Congress
which met on the 20th of that month in the city of New- York, and
by that body was chosen a delegate to the Congress that had been
recommended to meet in Philadelphia on the 1 0th of May. Thither
he repaired, leaving home soon after the battle of Lexington, and
after the news of that important event had reached New- York. He
was present on the day appointed for opening ; co-operated with his
fellow delegates in raising the army, appointing Washikgton Com
mander-in-chief, issuing bills, establishing a post office, and in fact
assuming aU the powers of government. He probably also joined
them in further attempts at reconciliation with the mother country,
an object all yet assumed to have in view.
There is not space here to detail either the doings of the Congress
or the share Mr. Duane took therein. The session continued until the
2d August and congress then took a recess until the 5th September,
In the recess Mr. D. attended the Indian Treaty at Albany, and among
his private expenses it appears that he paid £5 for a silver tobacco
bar for Abraham, the Mohawk Chief. He rejoined Congress on the
12th September and continued in constant attendance on it until the
31st May, 1776, when he was called home to attend the New- York
Congress, of which he had again been chosen a member fi-om the city
of New York in April preceding. The object of this call was to assist
in fi-aming a State Government which, as a member of Congress, he
had recommended, and which the New-York Congress had agreed to
set about on the 20th May. It was neither fear nor incHnation that
drew both him and Mr. Jay from the General Congress at this time
and prevented them fi-om appearing as signers of the Declaration of
Independence, to the preparatory steps of which they had so effectually

16
contributed; and to the maintenance of which they both devoted
several after years of labor.
Mr. Duane took his seat in the Provincial Congress on the 2d June,
but left New- York on the 6th, having obtained leave of absence to
procure a place of residence for his family. He did not again set
his foot in his native city until he entered it in triumph on the 25th
November, 1783. The Convention also retu-ed soon after from the
city of New- York on account of the invasion of the British troops, and
met at various places until it assembled more permanently at Fishkill
and there Mr. Duane again joined it on the first of August. He was
sent, on the same day as one of a committee to inquire iiito the state of
defence of the forts Montgomery and Constitution in the Highlands ;
was absent several days ; returned, made report and continued with
the convention and the committee of safety at Fishkill and Kingston,
until the 3d AprU, 1777, when he was directed to repair to the Con
gress at Philadelphia. In this last period of his attendance in the
Provincial Congress, the constitution for the State, the draft of which
he had reported, was taken up. Though he had taken an active part
in its formation he left Kingston before it was finally voted on.
Mr. Duane continued in Congress this time from April to December,
1777, when having obtained leave of absence, he returned to his
family at Livingston's Manor. On the 13th May preceding, the
Provincial Convention, after thanking him for his long and faithful
services, had appointed him delegate to Congress until the new Legis
lature should make an election, by which body he was also appointed
a delegate. In 1777, Mr. Duane, with Messrs. Lee and Lovell, were
a committee to arrange the Articles of Confederation, (after they h£td
been agreed to by Congress ) alter the phraseology, without, however,
altering the sense and report them complete. This was done on the
18th November ; on the I7th of the same month the same committee
reported a circular letter from Congress to the several States to
accompany the articles.
In Februai-y, 1778, Congress, by resolution, requested Governor
Clinton to appoint a suitable person Commissioner of Indian affairs for
the Northern Department, and on the 2d AiJi-il of that year, the
Governor appointed Mr. Duane to the office. He accepted it, and
attended to its duties until some time in the summer, when he had

It
the most severe attack of sickness with which he had ever been
afflicted. Although hardly sufficiently recovered, he retm-ned to con
gress in Nov. 1778, having been re-appointed a delegate on the
16th October preceding. His attendance at this time was particularly
urged by the Governor and his fellow Delegates on account of the
Vermont dispute, with which he was thoroughly acquainted. He
attended Congress until September, 1779, when having obtained leave
of absence, he returned home on a short \mt. In October of the
same year, he, John Morin Scott, and Egbert Benson were appointed,
by the Legislature, commissioners to collect evidence for New- York in
the controversy with Vermont. In November he was re-appointed
delegate, attended Congress untU sometime in the winter of 1780, when
he returned home to execute the commission with which he was
entrusted the preceding October. He spent some time in this duty
and in arranging the evidence collected and set out to rejoin Congress
on the 13th of April. On his way to Philadelphia, he stopped at
Morristown, then the head-quarters of the army and found there on a
visit to General Washington, the French Minister, his Secretai-y
Marbois and the Spanish Agent Don Juan Mirales. For their enter
tainment a review and ball were had. It was this session that he
completed his brief in the Vermont case, but the matter was not argued
before Congress until September following, and then ineffectually as
regarded Vermont, who refused to appear or submit to the decision
of Congress ; in effect however, it put an end to any further serious
claims of New Hampshire or Massachusetts in that quarter.
After a short visit home Mr. Duane returned to Philadelphia on
the 4th September. On his way he again visited head-quarters, and
as he writes to his wife, "The General was so good as to give me a
"view of our native city. It was a remote one from a point above
"Weehawk ferry, it however gave me some satisfaction. The Island
"was in full sight and the enemies works and ships. The island itself
"makes a desolate appearance and the works do not seem so formidable
"as reported." This was probably the only time he had seen the city
since he left it in June, 1776, and although he had left there a valuable
property, he makes no lamentations, even to his wife, about then- own
losses, but directs his attention to the defences erected to prevent his
country's army from regaining it by conquest.

18
Mr. Duane was re-elected in 1780, and on the 1st March, 1781,
executed, with Col. Floyd and Gen. McDougall, then delegates, the
power with which they had been entrusted, of ceding the New-York
claims to the western lands to the United States. On the same day
Maryland, the only State which had not done so before, acceded to
the Articles of Confederation, Those two matters had specially de
tained Mr. Duane at Philadelphia, and they being completed he
announced his intention of returning home. He could not leave Con
gress until the beginning of May, and he remained absent until the
31st of July when he resumed his seat. While in the State on this
occasion, he appeared before the Legislature for the purpose of giving
that body information with respect to public business. This done, he
called its attention to certain slanderous charges published anonymous
ly in the newspapers and requested some action of the Legislature
thereon. This occasioned a joint resolution to be passed, the 27th
June, expressing its continued confidence in him and Gen. Scott and
requesting them to return to Congress as soon as they conveniently
could. At the same time, Genls. McDougall, Schuyler and Scott,
Col. Floyd, Chancellor Livingston, Mr. Wisner and Governor Clinton,
who had been his colleagues in Congress at different times, came for
ward with strong and full certificates in his vindication. In the speech
he delivered on this occasion, after apologising for occupying the leg
islature with matters merely personal to himself, he states the charges
made by the anonymous writer, and thus fearlessly and indignantly
defends and justifies himself:
" There is scarce a crime which can disgrace a pubhc character,
which is not painted in black color in the portrait exhibited for a man
who thinks it no vanity to say that he has endeavored, to the utmost of
his abilities, to deserve the love of his country, and that he has possess
ed her confidence in an eminent degree — that I was, at the commence
ment of this dispute, connected with the Royal Govei-nment by every tie
of public and private villainy — that, in fact, I held under the grant of
the British Crown, a great many thousand acres of land, which had an
age before, been gi-anted by the Crown to a set of industrious farmers,
some of whose possessions bore date before the present ceiitury. Sir,
the whole of this passage is a despicable falsehood. In this assembly
I behold many respectable patriots, who have known me fi-om my
youth, and to whom I can appeal for the integrity of my life. Easy
in my patrimony, happy in many friends, and successful in a lucrative

19
profession, my stock of virtue must have been small indeed, to have
yielded to the tampering of villains. But, sir, independent of the pre
sent contest, were the pei-sons who composed the late government of
New York, villains ? Were they ever even suspected of private vil
lainy ? Had not the late council of New York acquired reputation for
their opposition to the stamp act, and their advice to Lt. Gov. Colden
to dehver the stamp papers to the magistrates and citizens ? Had
they not taken a decided part in favor of liberty, in the great contro
versy between Forsey and Cunningham, which involved a constitu
tional point (jf vast magnitude ? Besides, sir, by what tie was I con
nected with the Royal Government ? Unplaced and unpensioned, I
ever retained my freedom and independence. A crown grant of lands
under immoderate quit-rents and excessive fees of office, was no favor ;
it was a purchase. But the charge is attempted to be specified. It
is said that in. fact I held many thousand acres of land which had, an
age before, been granted by the same crown to a set of industrious in
habitants, some of whose possessions bore date before the 'present cen
tury. Sir, a more groundless calumny never was invented by the
most implacable mahce. The district in dispute between New Hamp
shire and our state, comprehends but one township which admits of
the character of an ancient settlement. I mean Hinsdale. It is this,
evidently, to which the passage refers. It is true, that by pretext of
a mandamus from the crown. Col. Howard, an intimate friend of the
then Governor, Tryon, obtained a grant of it in prejudice to the inha
bitants. Sir, it is equally true, that the act was held in universal de
testation. The agents of the inhabitants were recommended, by an
eminent lawyer of Connecticut, to my fiiendship. I left nothing un-
attempted, to procure them redress. I remonstrated to Tryon, against
the grant, in such forcible terms, that he actually offered Howard a
large sum of money for a surrender, persuaded that this transaction
would bear hard upon his character. The agents for Hinsdale were
witnesses of my disinterested exertions for their relief. They have to
this moment considered me ^s their fiiend, and continued to the last
manfully attached to this state. The imputation that I have made
the dirty traffic in regranted titles to the seats of the laborious poor,
the means of establishing my authority, bears some relation to what
precedes. To you, sir, who know that I derive the only office or au
thority which I possess, from the legislature, the extreme folly of this
charge must be obvious. So fer is it from being true, that I never
made a purchase, or obtained a grant of land, with any view to its
sale. I have never sold, in a single instance, an improved farm, but
to the person who actually improved it. I never charged or received
any consideration for such improvement, but valued the land as if it
continued in a state of nature. Sir, instead of exacting, I may ven
ture to affirm, that I have uniformly acted, with respect to my private
property in this district, with unexampled liberality. That the origi-

20
nal right of this state to the jurisdiction is incontrovertible, I have pub
licly maintained and am clearly convinced, and as a good citizen it
was my duty to maintain it. I did not think it unjust to acquire pro
perty. When my locations originated, the lands were unoccupied and
unimproved. In some instances, those with whom I am interested,
were the first occupants. I never attempted or wished to take advan
tage of any man's labor. To all, I offered a title on a valuation as un
occupied vrild land. When the dispute became serious, and the over
tures for peace made by this state were rejected, on a supposition that
the legislature could not revoke the patente, I repeatedly offered to re
sign all my titles, to be disposed of at the pleasure of the legislature,
and without stipulating for any compensation."
Independently of its honorable testimony in respect to Mr. Duane,
what a contrast does the conduct of our legislature exhibit, to that of
the French Assembly, about ten years later. The former dismissed to
his post, with a vote of confidence, a faithful officer, though he dared
to speak well of the private character of their bitter opponents, then
using every effort to subdue them, and the contest yet doubtful, —
while in the latter body a suspicion that any one within its power en
tertained a favorable opinion of the banished Royalists, would have
been proof enough to ensure him a sentence to the guillotine.
Mr. Duane, immediately after this occurrence, rejoined Congress.
He returned home on the 18th October, and although he was the
same month reappointed delegate, he does not appear to have attend
ed Congress untU the 24th of June, 1782. On the 22d July follow
ing, he was reappointed delegate for one year from the first Monday
of November then next, which was his last appointment to that office.
He was, at the same time, chosen by the Assembly (as was then al
lowed) a Senator from the Southern District in place of Sir James Jay,
whose seat was declared vacant. In November, 1782, Mr. Duane ob
tained leave of absence from Congress, returned home, and on the
meeting of the Legislature in January, 1783, attended as a Senator,
and continued so until the adjom-nmept of that body on the 28th of
March following. On the 16th July, he took his seat for the kst term
in Congress, remained there until the adjournment thereof to Annap
olis, in the beginnmg of November, when he was called home to act
as one of the Council for the Government of the Southern District of
New York, of which body the Legislatm-e had some time before elect
ed him a member. Before he left Congress, he had the pleasure of

21
drawing, reporting and helping to pass the resolution of thanks to the
brave army which more than eight years before he had voted to raise.
The council above mentioned had been vested with almost dictato
rial power to contimie until the government could be re-established
over that part of the state so long possessed by the enemy, and now
about to be evacuated. Mr. Duane joined the other members of this
body, and with General Washington, Governor Clinton, and hun
dreds of his fellow exiles, entered on the 25th November, 1783, his
native city, when he took possession of his dilapidated property. He
found his houses in King (now Pine) street, and at the corner of Wa
ter street and Fly market, almost entirely destroyed. His farm, as he
calls it, consisting of about twenty acres, at what is now called Gram-
ercie park* and its vicinity, was in pretty good order, the house hav
ing been occupied by one of the British generals.
The council took possession of the property of Trinity chm-ch, set
aside an election of vestrymen that had been held just before the Ame
ricans regained New York, and ordered a new election, in which Mr.
Duane was chosen one of the church wardens, and other whigs ves
trymen. This election was afterwards confirmed by act of Legislatm-e,
and the persons elected chose as rector of the church the Rev. Samuel
Provoost, a whig who had left New York when the British took pos
session, and who was afterwards the Bishop of this Diocese. The pro
perty was afterwards restored, and Mr. Duane continued to be elected
church warden so long as he remained a resident of the city of N. York.
About the last of December, 1783, the elections in the Southern
District took place and Mr. Duane, who had been nominated, was
chosen senator. The Legislature having met in New York, in Janua
ry, 1784, the powers of the Council ceased and the government went
into full and peaceful operation over the whole State.
Mr. Duane, hke most of the other patriots who had participated in
the Revolution, found it necessary, at the conclusion of the war, to
resort to business again for a hvehhood, and he entered New York with
a firm determination to resume the practice of his profession ; but the
members of the Common Council of the city now petitioned the Gov
ernor to nominate him Mayor, "as no one," they say in their petition,
* In 1831, Samuel B. Ruggles becatne possessed of a portion of the old
Duane Farm. This farm had a front of about 400 feet on the Bowery-road,

22
"is better qualified, so none wUl be more acceptable to us and our
constituents at large than Mr. Duane. Few have sacrificed more or
deserve better from their country." Many private friends urging him
to accept this office, Mr. D. consented and was accordingly appointed
on Sih February, 1784, Mayor of his native city.
Though his duties now were, in many respects, very onerous, yet
his position was, on many occasions, a source of great gratification.
In 1785 he had the pleasure, as Chief Magistrate of his native city, to
welcome to their session therein, the old Congress under the Presiden
cy of his old fiiend Richard Henry Lee, and filled with others of his
Revolutionary colleagues as members ; the same agreeable duty he
performed in March, 1789, to the first Congress under the present
Constitution, and a few weeks after, he welcomed Washington him
self as President of the RepubUc, which their joint labors, in diverse
but equally essential fields of action, had helped to establish.
As Mayor of the city of New York Mr. Duane not only held civil
and criminal courts for the city, but was included in the conmiission
of Oyer and Terminer for the county. As a Judge of the latter
court, at the request of Judge Hobai-t of the Supreme Court, also in
the commission, he dehvered the charge to the first Grand Jury sum
moned in that court, in the city, after the war, on the 18th May, 1784
— a mark of distinction that would only have been paid to one whose
eminence in the country and profession were such as to elicit no invi
dious observations. In the Mayor's Court held by him much business
was dispatched, and in that Court were the then young lawyers,
Hamilton, Burr, Troup, Lewis, Brockholst and Edward Livingston,
and ran thence easterly almost to the river, with some upland, but much morasa,
overgrown with cat-tails, and through which wandered a stream known as
Crummassie-Vly or Winding Creek. * * * He planted on the edge of the
morass, in December, 183 1, Gramercy park, by gratuitously giving the whole
of the 66 lots it comprises — now worth two hundred thousand dollars — and
attaching to the grant a condition that ten dollars a lot should be annually paid
forever by the residents around the square as a fund out of which to plant, pre
serve, and adorn it. Disdaining too, the personal vanity of entailing his own
name upon this creation of his own energy and property, he preserved the
name by which the old Duane estate was known, the Gramercy Seat — corrupt-
ed, probably, from the Crooked Creek, or Cromme-see, which meandered
through its meadows. — President Kms'a Progress of New York daring the last
Fifty Years^

23
Hoffinan and others, trained up to the eminence they afterwards at
tained in their profession. Among the cases decided by him in 1784,
and which was published, was that of Rutgers vs. Waddington, involv
ing the validity of what was called the Trespass Act, passed just before
the close of the war to enable the whigs, who had fled from New York
to recover damages from those who had occupied their property while
in possession of the enemy. This case excited great sensation in the
community of that day, and became the subject of Legislative resolu
tions ; and it is a curious coincidence that the same gentleman who
was the defendant then, was also defendant in a suit, that of Griswolds
vs. Waddington, at the close of our next war with England, exciting
almost equal interest and involving a much larger amount of property
than the one decided just after the revolution. Mr. Duane presided
in the Mayor's Court for nearly six years, and in that time very many
of the questions came before him and received his decision, which
were subsequently decided the same way by our Supreme Court,
and perpetuated in the Reports of Caines, Johnson and their suc
cessors. He was thus one of the channels by which the legal lore of
England and the colony was conducted to those who have distributed
it in our State courts, and caused these to become the admiration of
our sister States.
Mr. Duane was State Senator, except in 1786 and 1787, from the
time of his election at the close of the war, until 20th March, 1790,
when the Senate voted that his seat, as well as that of three other
Senators, had become vacant in consequence of having accepted offices
imder the United States. The correctness of this decision was acqui
esced in without much objection. In this period of his Senatorship
many of om- most important public laws were passed, of the provisions
of which he was the principal author. The law for incorporating re-
hgious societies, for establishing the university, and for the sale of the
pubhc lands are instances. The first revision of our statute law after
the Revolution, by Jones & Varick, also came before the Legislature
at this period, and his attention and knowledge were bestowed, and
were very useful in the accomphshment of the work.
The claims of Massachusetts on New-York, which prior to the Re
volution seemed only to relate to om- eastern boundary, after the peace
assumed a more important form. The former State put in a claim to

24
all the territory lying between her western boundary and the Pacific
ocean. On the 12th November, 1784, James Duane, John Jay, Rob
ert R. Livingston, Egbert Benson, and Walter Livingston, were ap
pointed agents of the State in that controvei-sy which was then ex
pected to be tried by a federal court under the articles of confedera
tion. In December- the agents proceeded to Trenton, where Congress
then sat to meet the Massachusetts agents to form the court. Several
weeks were spent in vain attempts to obtain unobjectionable judges,
and when such were found, some of them would not serve, so that the
business had to be done over again. The conferences were extended
into 1785, and New York selected as the place of meeting. In this
matter Mr. Duane drew the brief on the part of New York* ( subse
quently indeed handed to Samuel Jones and Alexander' Hamilton, as
counsel to complete) and drew most of the notes and communications
to the other agents, the petitions to Congress, and the letters to the
selected judges. The difficulty of procuring a court in which both
parties had confidence and a conviction among all the agents, that an
amicable arrangement might be made by themselves, advantageous
to both parties induced them to request their respective Legislatures
to allow them to settle the dispute as each should think most for the
interest of their own State. Such acts were passed both by New- York
and Massachusetts, the former State at the same time substituting
Melancthon Smith, Robert Yates and John Lansing, Junr., as agents,
in place of John Jay and Walter Livingston, resigned. The agents on
both sides met at Hartford, in November, 1786, and after about three
weeks negotiation made the final arrangement by which Massachu
setts was allowed the ownership of most of the western part of our
State, beyond the mihtaiy tract, whUe the jurisdiction over it was to
be retained by New York. As the Indian title was not then extin
guished, as the land was -wild and our State in want of population,
few of the present day will doubt the advantage of the bargain to have
been ours. The dhection then given to emigration from Massachu
setts was to her vrild lands in our State instead of the Ohio, which
was then opening to settlement, and to which country great efforts
were making in New-England to allure settlers.
* This document is among the MSS. of the New-York Historical Society, a
copy taken by permissionof the Society, has been deposited in the State Library.

25
In 1788, Mr. Duane was elected a member of the Convention that
met at Poughke^psie, to consider the propriety of adopting the Con
stitution of the United States, and it is hardly necessary to say, that
like most of those who had served long in Congress, and viewed the
importance of a closer Union of the States, and the necessity of more
powers in the general government to perform many of its essential
functions, he spoke and voted" in favor of its adoption. The new
government -went into operation in the spring of 1789, and in Sep
tember of that year, Mr. Duane was nominated by President Wash
ington, and appointed by the Senate, District Judge of the District
of New- York. The President accompanied his commission by an
autograph letter, in which, after the formal announcement of the
appointment, he says,
"In my nominations of persons to fill ofHces in the Judicial department, I
"have been guided by the importance of the object. Considering it as of the
"first magnitude and as the pillar on which our political fabric must rest, I have
"endeavored to bring into the high offices of its administration such characters
"as will give stability and dignity to our National Government, and I persuade
"myself they will discover a due desire to promote the happiness of our coun-
"tiy by a ready acceptance of their several appointments."
Mr. Duane was much gratiSed at this appointment, as it was given
him by Washington, and without solicitation on his part. Indeed,
until the nomination was made he does not appear to have been in
formed that it was contemplated. He was sworn into office on the
I4th October, 1789, before Chief Justice Morris. His first Jury Court
commenced in January, 1790, and his charge to the Grand Jury pre
sents a concise account of the extent and distribution of the judicial
power of the United States, as well as a statement of the crimes of
which the jury had cognizance, and their general duties.
On the 27th November, 1790, his father-in-law. Col. Livingston,
died, and if we may judge from the coi-respondence between them for
a period of thirty years, he lost one whom he reverenced as a parent
and who esteemed him with affection and pride as an elder and
accomplished son.
For about five years Judge Duane continued to execute the duties of
his last office earnestly endeavouring to fulfil the wishes of Washing
ton, and the still higher object of satisfying his enlightened conscience.

26
Most of the questions that came before him he was familar -with, so
that this office was less burthensome to him than any he had held for
many years. The French, indeed, gave him some trouble as they
did almost evei-y other judicial officer, as well as the administration,
¦with their new construction of the law of nations, and their claims
that their former services created different legal obligations between
us and them than that law and our treaties imposed. He carefully
examined their cases, and his decisions were very generally sustained.
He was fond of riding on horseback, and had no doubt, preserved his
health by continuing the practice to a late period of his life. But
forty years labor had so affected his health, as to induce a resolution
on his part, to resign and retire to Duanesburgh, where his only son
and one of his daughters resided. Accordingly, on the 10th of March,
1794, he addressed a letter to the President, announcing his wishes,
and m-ging the appointment of a successor by the middle of April.^
The President answered in a kind letter dated 23d March, and on the
8th April, as soon as the business of the court permitted, he transmit
ted his resignation in due form, and retired finally from a long and
honorable public hfe. After consultation with Judge Wilson, of the
Supreme Court of the United States as to the form of relinquishing
the office; it was thought most proper to do it by an instrument
under his hand and seal. Such an one was dra-wn, in which after
reciting "the Letters Patent," by which he was authorized to hold the
office dm-ing good behaviour, he did "by these presents freely and
"voluntarily and absolutely resign, rehnquish and surrender the said
"office of Judge of the New York District, -with all the powers,
"privileges and emoluments to the same appertaining." This was
sealed, signed, witnessed by two -witnesses, and acknowledged in due
form, before Judge Wilson. Such were the formalities -with which
our distinguished men of former days thought it best to transact im
portant business and neither their cotemporaries or successors were the
worse for then- precautions. On the 12th April, he announced to
Bishop Provost, his intended removal fi-om the city, and that he
should no longer be a candidate for his office of church warden of
Trinity Church, which he had then held since 1784, and of which
church he had been a vestryman some yeai-s before the Revolution.
The vestry passed resolutions highly acceptable to Mr. Duane, which

2Y
were transmitted to him, at their request, by the Bishop, in a letter
expressive of his regard and regret in such terms as befitted their re
lations as old friends.
Judge Duane removed a few days after to Schenectady, where he
o-wned some property, and where he had frequently spent part of the
year vrith his family, designing to remain in that city until he could
carry into effect his intention of fixing his permanent residence in
Duanesburgh. His private business gave him sufficient occupation,
his estate consisting principally of wild lands purchased before the re
volution, and which by leasing and improving in his own hands he
was endeavoring to render productive. His Vermont lands had been
released to that state by New York, against his consent, imder promise
of a ti-ifling equivalent, and even that not paid until some time after
his death. He considered our State botmd to make good the loss of
its citizens in relinquishing these lands, and among his papers is part
of a brief on the subject prepared for Mr. Harrison, who once argued
the matter before the Assembly on behalf of the proprietors. In 1795
he had the gratification of witnessing the consecration, by Bishop
Provost, of an Episcopal church he had erected in Duanesburgh, at his
own expense. In 1796 he commenced building a house in that town
for his own residence, but he never lived to complete it. On the
morning of the first of February, 1797, just as he was about to rise,
he was taken -with an affection of the heart, and expired immediately.
This notice of his public employments shows the esteem and respect
in which the Hon. James Duane was universally held ; in private life
there is no tradition of his having ever lost a friend. He was of a
kind, cheerful, and social disposition, fond of society, and well calcula
ted to bear a prominent part in it, whether the amenities and courte
sies of life were requu-ed to be exercised, or whether grave matters of
business were topics of discussion. The judicious benevolence and
laudable example he exhibited, by almost, his first act after his appoint
ment as Mayor, illustrates his independence and freedom from the
shackles of custom, when they were unsuited to the times. On the
7th February, 1784, two days after the date of his commission, he ad
dressed a communication to the common council, in which he informs
them of his appointment, and after alluding to the former custom of giv
ing a public entertainment on entering into the office, he says, "But

28
when I reflect on the want and distress which are so prevalent at this
season, I flatter myself that my declining it will be justified by your
approbation. Rather permit me, gentiemen, to entreat you to take the
trouble of distributing for me, twenty guineas, towards the relief of my
suffering fellow citizens, in your respective wards. My liberality on so
laudable an occasion, is hmited by the shock which has affected my
private fortunes in the progress of the war." At his. instance too, most
of the clergy of the city preached charity sei-mons, and took up a
collection in then- respective churches, and upon one of these occasions
when Dr. Livingston preached, the Mayor and common council at
tended in a body, at the Dutch church, to promote by their presence,
the benevolent object.
Many societies in other states enrolled him among their members.
He was an honorary member of the Cincinnati Society, chosen in
July, 1784, attended their meetings, was one of their committee of
correspondence, and aided in procuring the alteration in their consti
tution that took away the jealousy of so many of the ardent democracy
of the country. No layman of the Episcopkl church was more instru
mental than himself in uniting all its membei-s in the United States
under one constitution, and in obtaining the consecration of her first
bishops. Except his occasional pubhcations in the newspapers, and
those on the subject of our bomidaries and territorial rights, he
published two of his law opinions, one in 1784, in the case of Rutgers
vs. Waddington, before alluded to, and the other in 1794, in the case
of the Catharine, involving our neutral rights and obligations and the
juiTsdiction of the District Courts.
At his death Judge Duane was survived by his widow, one son and
four daughters. The son was the late James C. Duane, of Schenectady.
His oldest daughter married the late General North of Duanesburgh,
and is long since dead. His second daughter man-ied George Wr
Featherstonhaugh, an English gentleman, who after her death return
ed to England, and has been for some yeai-s consul at Havre. —
Another daughter man-ied the late Alfi-ed S. Pell Esq., and is yet
living in the city of New- York, and the remaining daughter* resides
in Duanesburgh, and for her disposition and deeds of charity, is the
worthy representative of her distinguished father.
• This lady died 29th September, 1852, while these sheets were in the press.

29
Judge Duane is interred under the church he built in Duanesburgh,
and a neat mural tablet within the church is erected to his memory.
His widow survived until 1821, and is buried beside her husband, and
a similar monument to his, records her memory, and reminds us of
her virtues. There are two original portraits of Judge Duane pre
served; one by Coply, painted about the year 1773, now in the pos
session of his great grand-daughter, Mrs. Weston, of Augusta^ Maine ;
the other painted by C. W. Peale, about the close of the revolution,
now in the possession of his grandson, James Duane, of Franklin coun
ty, and of which the ong in the City Hall, of New- York, is a copy.

APPEIDIX.

NOTE.
As eveiy scrap of authentic information relative to the action of the
first and second Congresses, and of the individual members of them,
excites intense interest in those who are desirous of investigating the
early history of our government, I have appended from Judge Duane's
manuscripts, copies of tke following papers :
I., Minutes of the first three days' proceedings of the Congress of
1774, and of the first meeting and organization of the principal com
mittee of that body, in the hand-writing of Mr. Duane, and from the
appearance of the manuscript made at the times of the transactions
they record. They differ in some instances fi-om those pubhshed as
taken by John Adams, but are not less likely than his to be correct.
II. Propositions made by Mr. Duane in the committee, on stating
the rights of the colonies, &c., from the 7th to the 22d September,
1774, and what remains of a speech of his in support of the proposi
tions. The views set forth in these papers were those of his constitu
ents at that time, beyond which the two merchants of the delegation,
Messrs. Alsop and Low, appear to have been unwilhng to advance, the
fii-st becoming a neutral in the American lines, and the other a tory in
the city of New York.
III. The Plan of Union proposed to the Congress by Mr. Galloway,
of Pennsylvania, on the 28th September, 1774, with the resolutions
intended to be offered with it, and the endoreements made on these
papers by Mr. Duane.
IV. The Form of Government said to have been offered by Dr.
Franklin, 21st July, 1776, differing in several particulars from the
copy published in the Secret Journal of Congress, some years since.
It is hoped that the facts disclosed by these papers, may prove grat
ifying to those who wish to see the original documents, from which
history should bo written,
S. W. J,

33

NO. I.
Minutes of Congress of 1774.
Phitadelhia, Monday, 5fh September, 1774.
The members of the Congress met at Smith's Tavern — The
Speaker of the Pennsylvania Assembly having offtrtd the Con
gress the use of the State House, and the Carpenters the use of
their Hall, it was agreed to take a view of each.
We proceeded to the Carpt-nters' Hall, Mr. Lynch proposed
the question, whether, as that was in all respects suitable it
ought not to be lixed upon without further enquiry.
[ observed that if the State House was equally convenient it
ought to be preferred being a provincial, and the Carpenters'
Hall a private house: and besides, as it was tendered by the
Speaker it seimed to be a piece of respect which -was due to him,
at least to enquire whether the State House was not equally
convenient. The question was however called for and a great
majority fixed upon the Carpenters' Hall,
The names of the members were then called over, after which,
Mr, Lynch proposed that we should elect a President or Chair
man, and named Mr. Peyton Randolph. Speaker of the Assembly
of Virginia, who was unanimously approved and placed in the
chair. A question was then put, -what title the convention should
assume, and it was agreed that it should be called The Congress.
Another question was put, what should be the stile ot Mr. Ran
dolph, and it was agreed that he should be called The President.
The next point was to fix on a Clprk or Secretary. Mr. 
Thompson was proposed by Mr. Lynch. Mr. Jay observed that
he had authority to say that one of the members of the Congress
¦was willing to accept the office, and he conceived the preference
was due to him ; to which it was answere d, that such an appoint
ment would deprive the Congress of a member, as he would be
too much incumbered by the duties of a clerk, to attend to the
trust for which he was chosen. The objection being thought
reasonable, Mr. Thompson was appointed by the stile of Secre
tary of the Congress.
The credentials of the several members were then read, and
after those of New York were produced. I observed that we did
not assume the characters of Provincial dehgates, being only
appointed for particular counties, that we were ourselves in
doubt how far we were entitled to a seat at a Congress of Provin-
5

34
cial Delegates, and therefore moved that this point might be
determined by the Congress, upon which it was unanimously
resolved in the affirmative, and that such other members as should
come from the different counties of New York should also be ad
mitted to their scats.
I then moved that a Committee should be appointed to con
sider of rules for the conduct of the Congress and report them.
This was opposed by, [Mr. Rutledge] the elder, who observed
that doubtless the usage of the House of Commons would be
adopted in our debates, and that as every gentleman was ac
quainted with that usage, it would be a waste of time to appoint
a Committee on this subject.
It was answered that the Assemblies on the Continent had
different usages and rules; that it was the practice of Parliament
that no member should speak more than once on the same point,
which would be very inconvenient on the present occasion, that
there was the highest necessity for fixing a rule on the present
occasion with respect to the mode of voting, to wit : whether
the sense of Congress should be taken by the majority of voices
of the members, or whether each Colony should have a vote and
the majority be determined in that way.
Upon motion, these points were deferred for further considera
tion, and the Congress adjourned until 10 o'clock to-morrow
morning. Tuesday the 6th September.
The Congress met, and the first question debated was whether
the Congress should vote by Colonies and what weight each
Colony should have in the determination.
Mr. Henry from Virginia, insisted that by the oppression of
Parliament, all Government was dissolved, and that we were
reduced to a state of nature, that there was ro longer any such
distinction as c ilonies, that he cor.ceived himself not a Virginian
but an American; that one of the greatest mischiefs to society
was an unequal representation; that there might and probably
would be further occasion for a Congress, and that it was time
to form such a system as would give each Colony a just weight
in its deliberations, in proportion to its opulence and numbers
of inhabitants, its exports and imports.
He was answered by Mr. [Ward] of Rhode Island, who insist
ed that every Colony should have an equal vote: that we come,
if necessary to make a sacrifice of our all, and that the weakest
Colony by such a sacrifice would suffer as much as the greatest.
Col. Harrison from Virginia, insisted strongly on the injustice
that Virginia should have no greater weight in the determination
than one of the smallest ('olonies; that he should be censured
by his constituents and unable to answer his want of attention to

35
their interest, and that he was very apprehensive that if such a
disrespect should be put upon his countrymen we should never
see them at another convention.
The debate then took a different turn ; it was observed that
if an equal representation was ever so jujt, the delegates from
the several Colonies were unprepared with materials to settle
that equitably; this was an objection that could not be answered.
The question was then put and
1. Resolved. That the sense of the Congress should be taken
by voting in Colonies, each to have one vote.
2. Resolved. That no person be permitted to speak twice on
the same point, unless with the leave of the Congress..
3. Resolve!. That no question be determined the same day
it is debated if anyone of the Colonies desires that the determin
ation be deferred to another day.
4. Resolved. That the doors of the Congress be kept shut
during the debates, and that every member be obliged under the
strongest obligations of honor, to keep secret the proceedings of
the Congress, unless they shall be ordered to be published by the
Congress. 5. Resolved. That a Committee be appointed to state the
rights of the Colonies, the several instances in which they have
been violated and infringed, and the means most proper to obtain
redress. 6. Resolved. That a Committee be appointed to state and
report the several statutes affecting the trade and manufactures
of the Colonies.
7. A question was put whether this Congress should be opened
to-morrow morning with prayer.
Mr. Samuel Adams proposed the Rev. Mr. Duche for this
service. Debates arose on this subject. Those who were for the mo
tion insisted on the propriety of a Reverence and submission to
the Supreme being and supplicating his blessing on every under
taking, on the practice of the Romans, the British ParUament
and some of the Assemblies on the Continent.
The difference of the religious tenets of the members, that it
would be considereel as enthusiasm and cant, the efficacy of
private devotion, the want of a suitable form in the book of com
mon prayer, and the hazard of submitting such a task to the
judgment of any clergyman, were the topics urged by those who
were of opinion against the motion.
It was however resolved, that the Congress shall be opened
to-morrow morning with the service of the church of England
and a suitable prayer, and that Mr. Duche be requested by the
President to perform this office.
The Congress then adjourned till 9 o'clock to-morrow morning.

36
N. B. During the meeting of the Congress, an express arrived
to the Jersey members, giving in'elligence that the soldiers had
seized the powder in one of the Towiis near Boston; that a party
was sent to take them, and that six of the inhabitants had been
killed in the skirmish; that all the Country were in arms, down
to  in Connecticut; that the cannon fired upon the town
the whole night.
N. B. Mr. Henry affirmed that, at a former Congress, one of
the members had despatched intelligence of an important matter
to a great person in America while it was under debate, which
was one of his reasons for secresy in our proceedings.
Wednesday morning, 9 o'clock, September 7th.
The Congress was opened with prayers by the Rev. Mr. Du
che, «hich he concluded with one suitable to the occasion.
He was much admired both for his eloquence and composition,
and Mr. Ward, of Rhode Island, moved that the thanks ot the
Congress be given to him for his servicus, which was unanimously
agreed to. and Mr. Gushing and Mr. Ward were appointed a com
mittee for the purpose.
It was then moved that he should be requested to print the
prayer, but it being objected that this might possibly expose him
to s' me disadvantage, it was, out of respect to him, waived.
The appointment of a committee to state the rights of the
colonies, the several instances in which they have been violated
and infringed, and the means most proper to obtain redress was
then taken into consideration.
Mr. Lynch, of Virginia, moved that the appointment might be
made out of the members at large, wihout regard to colonies,
alleging that in this way the gentlemen who had made this point
their study, and were best qualified, would be fixed upon. This
occasioneel much debate.
The difficulty of knowing who possessed this qualification in
the highest degree; the different rights of the several Colonial
governments and their infringements, which must be best known
to their respective lepresentatives, were insurmountable objec
tions, and it was accordingly
1. Resolved, That this committee shall be composed of two
members fi-om each colony, to be recommended by their associ
ates. Then the committee were named, viz.: —
For New Hampshire  Mr. Sullivan,  Mr. Folsume,
Massachusetts,  Mr. Samuel Adams, Mr. J. Adams,
Rhode Island  Mr. Hopkins,  Mr. Ward,
Connecticut,  Mr. Dyer,  Mr. Sherman,
New York  Mr. Duane  Mr. Jay,

37
For New Jersey  Mr. Livingston  Mr. Deheart.
Pennsylvania  Mr. Jos. Galaway, . .Mr. Ed. Biddle,
Lower counties on ) ,- „ ^i , m rr. ht rr
Delaware,  l^^'^' ^^^^^ Rodney,. .Mr. T. McKeen,
Maryland  Mr. Johnson  Mr. Goldsborough,
South Carolina,  Mr. Lynch  Mr. J. Rntledge,
Virginia, ,  .Mr. Lee  Mr. Pendleton,
2. Resolved, That one member from each Colony form the
committee to state and report the several statutes affecting the
trade and manufactures of the Colonies.
The following gentlemen were appointed, viz.: —
For New Hampshire,
Massachusetts,Rhode Island,
Connecticut, New York  Mr. Low,
New Jersey.  Mr. Kinsey,
Pennsylvania,  Mr. Mifflin,
Lower counties on )
Delaw.are, 3
Maryland, South Carolina,
Virginia,
Resolved, That the President have power to adjourn the Con
gress from day to day, and to convene it occasionally when he
shall thii.k fit.
N. B. An express arrived from New York, (Thos. Ives), with
a duplicate of the intelligence received yesterday, of the conflict
between the soldiers and inhabitants at Boston, and also with an
appointment from Dutchess and Albany counties, of the city
delegates as their representatives at the Congress.
Part of the New York credentials were produced at our first
meeting, the remainder this day, viz. : —
-1. The returns of the magistrates of the city and county of
New York, on polls taken in the respective wards, by which
James Duane, Philip Livingston. Isaac Low, John Jay, and John
Alsop, were unanimously elected.
2. The vote of a general meeting of the county of Westches
ter, Col. Philipse in the chair, by which they are unanimously
elected for that county.
3. A vote of the northern precincts of the county of Ulster,
by which they are unanimously chosen for those precincts, and a
like vote from ihe southern precincts, by which they and the
other delegates for the cities and counties are chosen for those
precincts.

38
4. A vote of the inhabitants of the precincts of Pokeepsie, by
which they are unanimously chosen for that precinct.
5. A vote of the several committees for the county of Suffolk,
by which Col. Floyd is unanimously elected for that county.
The credentials produced to day are: —
1. A vote of the inhabitants of the city and county of Albany,
by which the New York delegates are unanimously elected to re
present that city and county.
2. A vote of the inhabitants of the precincts of in
Dutchess county, by which the same delegates were appointed
for those precincts.
The Congress adjourned till 9 o'clock to-morrow morning.
The two committees agreed to meet immediately to elect a
chairman and clerk.
The committee to state the rights, &c. of the Colonies met in
the Carpenters' Hall.
Present all the members.
I proposed Mr. Lynch as chairman, and was seconded, but he
declined, atid proposed Mr. Hopkins, of Rhode Island, who was
unanimously approved, and Mr. Charles Thompson appointed
clerk of the committee.
The committee adjourned till 9 o'clock to-morrow morning.
[The above are all the minutes of the Congress of 1774, kept
with any regularity by Mr. Duane. I have inserted the name of
Mr. Ward in one blank, as the person from Rhode Island who
answered Mr. Henry as to the equality of the Colonies in voting,
because Mr. Ward was a distinguished public speaker, and his
colleague, Mr. Hopkins, not irueh of one. It will be observed
that in one place in the minutes, Mr. Lynch is said, probably
by inadvertence, to be of Virginia; I have not corrected the mis
take, but published the paper as I found it written. S. W. J.]

No. II.

Propositions offered by James Duane to the Committee of Con
gress for staling Rights, fyc, between the 1th and 22d Sep
tember, 1774.
A firm union between the parent state and her colonies ought
to be the great object of this Congress. It is this alone which
can ensure the permanent stability of the British empire, and
the mutual happiness of its respective members. In the resolves
therefore, to be adopted, the prerogatives Of the crown, the in
terest of Great Britain, and the rights of the Colonies ought
each to have their proper influence, and our proceedings to be

39
tempered not only with a regard to justice, but a desire of re
conciliation. I. The supremacy of the crown will be secured upon the princi
ple that the king is entitled to the same allegiance and to the
like royal prerogatives in the respective Colonies as are due
from his subjects, and appertains to his sovereignty within the
realm of England.
II. The rights of the British nation. These may be divided into
two branches:
I. The advantages of Commerce.
2. Aids from the Colonists for the defence of tl.e empire.
1. The advantages of commerce. These arise
a. By furnishing the parent state in preference to every
other country with so ranch of the produce of the Colo
nies as they can spare and she may require.
b. By receiving from her exclusively every commodity she
may raise or manufacture and of which we stand in
need.
c. By admitting only her ships navigated with her sub
jects, to any commercial intercourse with the respective
Colonies.
d. By yielding up to her the power of regulating the gene
ral trade of the empire. to answer these purposes, and
to preserve a uniform system in this respect among the
several Colonies.
The difficulty is to establish a principle upon which we can
submit this authority to Parliament without the danger of their
pleading a right to bind us in all cases whatsoever.
I think a solid distinction may be taken. It has hitherto been
a received maxim that we brought over as our birthright the
Common Law of England, and such statutes applicable to our
local circumstances as existed at the time of our colonization, and
that these with our charter rij.'hts and provincial laws form our
Colony constitutions. This principle seems Indisputable, because
every charter comprehends a prohibitory clause against enacting
any laws repugnant to those of England, which necessarily im
plies that the latter must originally have extended and been the
basis of our Constitution. Some of the Colonies have been planted
since the Navigation Act passed in the reign of King Charles II.,
which explicitly asserts claims, and reserves for the people of
England the commercial advantages we have enumerated. In
such Colonies, therefore, this statute is a part of the law of the
land. Others have adopted or extended it by positive law. All
have submitted to and acquiesced in its authority for more than
a century. By all, therefore, the regulation of trade may be
yielded to Parliament upon the footing of a compact reasonable

40
in itself and essential fO the well-being of the whole empire as a
commercial people. Tko principle from which our exclusive
Colony legislation with respect to taxation and internal polity is
derived, will not be crossed by such ai concession, and this is the
point to be guarded.
2. Aids from- the Colonists for the defence of the empire.
These are founded in justice due for protection and necessary
for common preservation.
The difficulty of drawing together the strength and just con
tributions of so many separate branches of the Empire, and the
danger of leaving it to the discretion of each is the great basis on
which the reasonableness of Parliamentary interposition is built,
nothing could be more conciliatory than to ob-viate this objection,
for this purpose it is proper.
1. That each Colony should engage to pro-fide a competent and
honorable support for the administration of Government and
Justice within its own limits.
2. That considering the present position and state of the Na
tional funds, and the protection we constantly derive from its
fleets, a present supply be recommended in lieu of the money
extorted from us under the falacious idea of regulating the
trade.
3. That a plan be offered for ascertaining the quotas and securing
the aids of every Colony in case of future emergency.
1st. The first we justly consider a privilege instead of a
burthen.
2d. To a present supply is objected the danger of its being
employed as a means of corruption, but this might be pre
vented by a specific appropriation to the support, for
instance, of a certain number of the Royal Navy on an
American establishment, the funds to be raised by the
authority, and on the inhabitants of each Colony in such
proportion as might be agreed upon in general Congress.
3d. The plan for securing tlie aids of the Colonies in future
emergencies, can only be established by the mutual con
sent of the crown and the respective Colony Assemblies.
Would it not be sufficient for this purpose if deputies from
each respective House of Assembly should be authorized
by Provincial laws when called upon by the Crown to
meet its Commissioner in a general Continental council
and adjust the several quotas, and their determination to
be declared decisive and binding upon each Colony? I
do not know that the Dutch States have any other bond
of union, or at least, that one Province has by the terms
of the confederacy coercive authority over the other;
common interest, which is the only cement of such States
will prove a sufficient obligation.

41
III. The Rights of the Colonies.
These as has been already intimated are derived :
1. From the common law of England and such ancient statutes
applicable to our local circumstances as existed at the time of
our Colonization which are fundamentals in our Constitution.
2. From our respective Charters confirming these rights,
3. From our several codes of Provincial laws.
Nothing seems necessary for the preservation of those rights,
but an exclusive provincial Legislation in each Colony, respecting
Taxation and internal Polity, and comprehending the dispensa
tion of justice, both civil and criminal, subject only to the nega
tive of the Crown where that negative has not been ceded by
Royal Charter.
If these ideas are just and properly arranged, then the resolves
of the Congress may be to the following effect:
I. That his Majesty is entitled to the same allegiance and to
the like Royal Prerogatives in these his loyal Colonies as are
due fVom his subjects and constitute his sovereignty within the
Realm of England.
II. That the acts of navigation, and for the encouragement of
trade, passed in the reign of Charles the Second, though in some
respects extremely burthensome to the Colonies, do in their
general tendency establish wise and salutary regulations, on
which the wealth, strength and safety of the whole British Em
pire greatly depend, and having taken place before the settlement
of some of the Colonies, and been adopted in others in their
infancy by positive Provincial law, and in all having been sub
mitted to and acquiesced in for more than a century ought to be
considered in the light of a compact between the Parent State
and these Colonies, which has reserved to the British Parliament
the supreme direction and superintendence forever over the
general trade of all his Majesty's dominions, and that this
authority interwoven with our Establishments from their first
rise ought not to be drawn in question, provided that it is bona fide
restrained to the regulation of our trade. {^Alteration. That from
the spirit of this compact and the necessity of a supreme controuling
power in this respect, and for the protection which we have enjoy
ed and still derive ft-om Great Britain we cheerfully acknowledge
that it belongs only to Parliament to direct and superintend the
trade of all his Majesty's dominions and this authority exercised
bona fide for the purpose of securing the commercial advantages
of the whole Empire to Great Britain, with a just regard to the
interests of its respective members ought not to be drawn into
question.] But in this declaration we absolutely exclude every
idea of Taxation, internal and external, for raising a Revenue on
the subjects of America without their consent.
6

42
III. That it is the duty of the several Colonies, not only to
provide a competent and honorable support for the administra
tion of his Majesty's Government and the dispensation of justice
within their respective limits, but also to grant a present and
annual supply towards defraying the expense of the Royal Navy,
from which we derive the great blessing of protection in common
with the rest of our fellow subjects throughout the Empire.
IV. That it is the duty of the several Colonies in every emer
gency that may threaten the security of the Empire, to contribute
their aids of men and money in the common cause according to
their several abilities, and that this Congress is firmly persuaded
that the respective Legislatures of the Colonies will agree to any
reasonable plan which shall be recommended by his Majesty for
drawing forth the united strength and aids of these branches of
his Royal dominions, whenever it shall be found necessary.
V. That the Colonies are entitled to the benefifs of the Com
mon L;iw of England and such of the Statutes of that Realm as
from experience have been found applicable to their condition
and local circumstances, as existed at the time of our Coloniza
tion, we do not however admit, but absolutely reject the authority
of the Statutes of 26th, King Henry 8th, ch. 13th, and King
Edward 6th, respecting the trials for treasons and misprisons or
concealments of treasons committed out of the Realm, as applied
to us by a late construction, which would effectually destroy all
security of the lives, liberties and properties of the Colonists,
which can not nor were intended to be of force where Tribunals
are established for the due administration of justice, according to
the laws of England, but only in remote and foreign parts where
offenders, for want ot such Tribunals, can not be brought to
legal trial. That these His Majesty's Colonies are each entitled
to all the immunities and privileges granted to them by the
Riyal Charters, and confirmed and secured by their several codes
of Provincial laws, and that these respective rights can not be
altered or abridged by any other authority than that of their
respective Legislatures.
VI. That the Cjlonists within their several Colonies are re
spectively entitled to a free and exclusive power of Legislation in
all cases of Taxation and internal Polity, subject only to the
negative of the Crown, where that negative has not been ceded
by Royal Charter, and that the representatives of the people in
General Assembly constitute a fundamental and indispensable
branch in such Legislation.
(Indorsed on the original of above by Mr. Duane.)
" Propositions offered by J. Duane, to the Committee for stating
Righ's, Grievances and the means of Redress. In Congress at
Philadelphia, between 7th and 22d September, 1774."

43

SPEECH.
The task assigned to this Committee is no less important than
it is difficult. It may be reduced to these heads;
1. To state the rights of the Colonies.
• 2. Their Grievances.
3. The means of Redress.
It is necessary that the first point, our Rights, should be fully
discussed and established upon solid principles, because it is only
from hence that our Grievances can be disclosed, and from a
clear view of both, that proper remedies can be suggested and
applied. To ascertain the Constitution of the Colonies, has employed
the thoughts and the pens of our ablest politicians, but no system
which has hitherto been published is .solid or satisfactory.
During the disputes which arose from the Stamp Act, an ex
emption from internal Taxes seemed to give general content.
The regulation of Commerce was submitted to Parliament.
Their authority to alter the police of our respective Govern
ments was not in contemplation because it had not been exercised.
Upon the repeal therefore of the Stamp Act, we had reason to
conclude that the blessings of security in our liberties and harmo
ny with the Parent State would be placed on a permanent basis;
but short was our repose and fleeting our expectations. A
despotic minister soon discovered that under the idea of a com
mercial regulation, our property might still be invaded, and that
by a guileful change or a name we might still be oppressed at
his pleasure, Hence arose Mr. Townsend's project of loading
British commodities (which we are restrained from importing
from any other nation.) with American duties, as if this poor
evasion could blind the Colonists and conceal the evil which was
cloaked under so thin a disguise.
The resentment and vigorous opposition of this Country and
the immense loss to which it exposeel the Briiish Manufacturers
compelled the repeal of this detested law, excepting the anicle
of Tea, which has been the fatal cause of our present misfortunes.
It is now, Sir, essential to place our rights on a broader and
firmer basis, to advance and adhere to some solid and con
stitutional principle which will preserve us from future violations;
a principle clear and explicit, and which is above the reach of
controversy and the arts of oppression.* I hope if we have the
happiness to rest upon such a principle, we shall have the forti
tude and the strength to maintain it, Let it be founded upon
reason and justice, and satisfy the consciences of our countrymen;

44
let it be such as we dare refer to the virtuous and impartial part
of mankind, and we shall and must in the issue of the conflict be
happy and triumphant.
I conceive it to be the duty of every member to offer his senti
ments on this great occasion without reserve or scruple; it will
be examined with candour, and have all the weight it merits, and
if mine is defective it will be excused from the upright intention
with which it is offered, and because it is an indespensable duty.
I shall not forget that we are Colonies ; that we are indebted to
her for the blessings of protection, and that she ought to derive
from us every commercial advantage, which is the result of our
connection and dependence; nor shall I anticipate our own past
merits, or the cruel oppressions under which we now labour,
because these will more properly be the subject of our next head
of enquiry. To the Rights of the Colonies, I mean at present to
be confined. They may be derived from two sources :
1st. From the common law and such ancient statutes as are
coeval with our Colonization.
2d. As I hey are granted and secured by Charter.
Upon this last head I shall reserve myself for further informa
tion from gentlemen whose local circumstances have led them
to discuss it with more precision than leisure has enabled me.
I shall only observe that their Charters are to be esteemed as
compacts, that they have long been acquiesced in, and if excep
tionable in their origin can not now be violated but by oppression.
Tlie first is a principle that is more genSral and extensive, if
not more solid and secure, and this I shall proceed to consider.
England is governed by a limited nonarchy and a free constitu
tion, but if the subject is bound by a law to which he does not
assent, either personally or by his representative, he is no
longer free, but under an arbitrary power which may oppress or
ruin him at pleasure. It is admitted by the English judicatories
and has been solemnly resolved by the King in Privy Council,
that the Common Law of England and such Statutes as existed
prior to our emigration are fundamentals in our Colony Constitu
tion; upon this grand basis the prerogatives of the Crown and
the rights of the subjects are as fully ascertained in the Planta
tions as in the Parent State. By the same Constitutions the
King has the executive power, and is the fountain of titles,
offices and honors; hence arises his Royal prerogatives in the
formation of Colonies to establish a system of Government
Legisla'ive, judical and executive, suitable to the circnm.'-tances
of a people who are blessed with the privileges which they never
meant, nor were supposed to, nor could forfeit by altering their
local situation within the same Empire. The privileges of
Englishmen were inherent, they were their birthright, and of
which they could only be deprived by their free consent. Every

45
institution, legislative and judicial, essential to the exercise and
enjoyment of their rights and privileges in constitutional security
were equally their birth right and irreclaimable inheritance;
they could not be withheld but by lawless oppression, and by
lawless oppression only can they be violated. It is objected
that upon this principle the Colonies are independent and exempt
from the authority of the British Parliament, and free from all
obligations to render to the Parent State those advantages which
ought to be the recompence of protection, to result from the very
nature of Colonization, and to be justified from the usage of
every commercial nation.
To which it may be answered that the sovereignty and pre
rogatives of the Crown, our own security, the ties of friendship,
common interest, government, laws and manners will be sufficient
to prevent our independence, which nothing but oppression can
ever reconcile to an American ear. But we need not depend on
this observation. Had Great Britain till this late day taken no
measures to secure the commerce of the Colonies, but left them
free to pursue their own interest and inclinations, I should not
hesitate to pronounce that all restraints by authority of Parlia-
mei|t would now be unauthoritative and oppressive. This how
ever, is not the case; every just and reasonable advantage
the Parent Country has long since effectually secured and
uniformly enjoyed. * * * [Rest missing.]

NO. III.
A Plan of a proposed Unidn between Great Britain and the
Colonies of JSfew Hampshire, the Massachusetts Bay, Rhode
Island, Connecticut, JVew York, Mew Jersey, Pennsylvania,
Maryland, the three lower Counties on Delaware, Virginia,
Jforth Carolina, South Carolina and Georgia.
1. That a British and American Government for regulating
the administration of the general affairs of America, be proposed
and established in America, hicluding all the said Colonies,
within and under which Government each Colony shall retain its
present Constitution and powers of regulatiiig and governing its
own internal Police in ail cases whatsoever.*
2. That the said Government be administered by a President
General, to be appointed by the King and a Grand Council to be
chosen by the Representatives of the people of the several
Colonies in their respective AssembUes, once in every three
years.

46
3. That the several Assemblies shall choose members for the
Grand Council, in the following proportions, viz: (number left
blank.) who shall meet at the City of  . for the first time
being called by the President General, as soon as conveniently
may be after his appointment.
4. That there shall be a new eIe;ction of members for the
Grand Council every three years and on the death, removal or
resignation of any member, his place shall be supplied by a new
choice, at the next sitting of the Assembly of the Colony he
represented. .<
5. That the Grand Council shall meet once in every year if
they shall think it necessary, and oftener if occasion shall require
at such time and place as they shall adjourn to at the last pre
ceding meeting, or as they shall be called to meet at by the
President General in any emeigency.
6. Th-dt the Grand Council shall have po«-er to choose their
Speaker, and shall hold and exercise all the like rights, liberties
and privileges as are held and exercised by and in the House of
Commons of Great Britian.
7. That the President General shall hold his office during the
pleasure of the King, and his assent shall be requisite to all^cts
of the Grand Council, and it shall be his office and duty to
cause them to be carried into execution.
8. That the President General by and with the advice and con
sent of the Grand Council, hold and exercise all the Legislative
Rights, Powers and Authorities necessary for regulating and ad
ministering all the general Police and affairs of the Colonies in
which Great Britain and the Colonies or any of them, the
Colonies in general, or more than one Colony are in any manner
concerned, as well civil and criminal, as commercial.
9. That the said President General and Grand Council be an
inferior and distinct branch of the British Legislature, united and
incorporated with it for the aforesaid general purposes, and that
any of the said general regulations may originate and be formed
and digested either in the Parliament of Great Britain, or in the
said Grand Council, and being prepared, transmitted to the other
for their approbation or dissent, and that the assent of both shall
be requisite to the validity of all such general Acts or Statutes.
10. That in time of war, all bills for granting aids to the Crown
prepared by the Grand Council and approved by the President
General, shall be v|ilid and passed into a law without the assent
of the British Parliament.
Indorsement on above plan by. Mr. Duane.
Mr. Galloway's motion and plan of Union proposed in Congress
28th September, 1774, seconded and supported by the New
York Delegates, but finally rejected and ordered to be left out
of the minutes.
JAS. DUANE.

47

RESOLUTIONS.
Resolved. That there is a manifest defect in the constitution
of the British Empire with respect to the Government of the
Colonies, upon those principles of Liberty which form an essen
tial part of that constitution, and that such defect has arisen
from the circumstance of Colonization which was not included
in the system of the English Government at the time of its
Institution, nor has been provided for since.
Resolved, That the Colonies hold in abhorence the idea of
being considered Independent Communities on the British Govern
ment, and most ardently desire the establishment of a political
union, not only among themselves, but with the Mother State,
upon those principles of safety and freedom which are essential
in the Constitutions of all free Governments, and particularly
that of the British Legislature, and therefore,
Resolved, As the Colonies from their local and other circum
stances can not be represented in the British Parliament, they
most earnestly recommend (as a measure of the greatest import
ance in reconciling the unhappy difference between G. B. and her
Colonies, and restoring them to a permanent union and harmony,)
to the consideration of the several continental American Assem
blies, the following plan of Government to be by them humbly
proposed to his Majesty and his two houses of Parliament, under
which the strength of the whole Empire may be drawn together
on any emergency, the interest of both Countries advanced and
the rights and freedom of America secured.
(With the sheet which contains the prececding resolutions is
one in the following form :)
Resolved, That this Congress will apply to his Majesty for a
'redress of grievances under which his faithful subjects in America
labor, and assure him that the Colonies hold in abhorrence the
idea of being considered independent communities on the British
Government, and most ardently desire the establishment of a
political union, not only among themselves but with their mother
state, upon those principles of safety and freedom which are es
sential in the constitution of all free Governments, and particu
larly that of the British Legislature; and as the Colonies from
their local circumstances can not be represented in the Parliament
of Great Britain they will humbly propose to his Majesty and his
two Houses '¦£ Parliament the following plan under which the
strength of the whole Empire may be drawn together on any
emergency, the interest of both countries advanced and the Rights
and Liberties of America secured.

48
(Indorsement on the sheet containing the first three of the pre
ceding Resolutions made by Mr. Duane.)
Resolves intended to be offered by Mr. Galloway and seconded
by J. D., for promoting apian of union between Great Britain and
America. But as the plan itself was rejected by the Congress the
resolves became fruitless anel were not proposed.

NO. IV.
Articles of Confederation and Union entered into hy Ike Dele
gates of the several Colonies of JVew Hampshire, fyc, in Gen
eral Congress met at Philadelphia, May the lOth, 1775.
Article 1st. The name of this Confederacy shall henceforth be
The United Colonies of North America,
2d. The said United Colonies hereby severally enter into a firm
League of Friendship with each other binding on themselves and
their posterity for their common defence against their enemies,
for the security of their liberties and properties, the safety of their
lives, persons and franchises, and their mutual and general wel
fare. 3d. That each Colony shall enjoy and retain as much as it may
think fit of its own present laws, customs, rights privileges and
peculiar jurisdictions within its own limits, and may amend its
own Constitution as shall seem meet to its own Assembly or
Convention. 4th. For the more convenient management of general interests
delegates shall be annually elected in each Cplony to meet in
General Congress at such time and place as shall be agreed on
in the next preceding Congress, only when particular circum
stances do not make a deviation necessary, it is understood to be ,
a rule that each succeeding Congress to be held in a different
Colony till the whole number be gone through, and so in perpetual
rotation and that accordingly the next Congress after the present
shall be held at Anapolis in Maryland.
5th. That the power and duty of the Congress shall extend to
the determining on War and Peace, the entering into Alliances,
the reconciliation with Great Britain, the settling all disputes and
differences between Colony and Colony if such should arise, and
the planting of new Colonies where proper. The Congress shall
also make such general ordinances as tho' necessary to the gen
eral welfare particular Assemblies can not be competent to ; viz :
those that may relate to our general commerce or general curren
cy, to the establishment of Posts, the regulation of our common

49
forces. The Congress shall also have the appointment of all offi
cers, civil and military, appertaining to the General Confederacy,
such (as) General Treasurer, Secretary. &c., &c.
6th. All c larges of War, and all other general expenses to be
incurred for the common welfare shall be defrayed out of a com
mon Treasury which shall be supplied by each Colony in propor
tion to its number of male Polls between 16 and 60 years of
age ; the taxes for paying that proportion are to be laid and levied
by the laws of each Colony.
7th. The number of delegates to be elected and sent to the
Congress by each Colony shall be regulated from time to time by
the number of such Polls returned, so as that one delegate be al
lowed for every (5000) Polls, and the delegates are to bring with
them to every Congress an authenticated return of the number of
Polls in their respective Colonies which is to be triennially taken
for the purpose above mentioned.*
8fh. At every meeting of the Congress onehalf of the members
returned (exclusive of proxies) shall be neces.sary to make a quo
rum, and each delegate at the Congress shall have a vote in all
cases and if necessarily absent shall be alloweel to appoint ally
other delegate from the same Colony to vote for him.
9th. An Executive Council shall be appointed by the Congress
out of their own body, consisting of (12) persons, of whom in the
first appointment one third (4) shall be for one j'ear (4) for two
years and (-1) for three years, and as the said terms expire the
vacancies shall be filled by appointment for three years, whereby
one third of the members will be changed annually and each per
son who has served the said term of three years as Counsellor t
shall have a respite of three years before he can be elected again.
By this Council of whom two thirds shall be a quorum in the recess
of the Coiigiess shall be executed what shall be enjoined thereby,
to manage the General Continental busines and interests, to re
ceive applications trom foreign countries, to prepare matters for
the consideration of the Congress, to fill (pro tempore) Continent
al offices that fall vacant, and to draw on the General Treasurer
for such moneys as may be necessary for general service and ap
propriated by the Congress to such services. «
10th. No Colony shall engage in an offensive war with any na
tion of Indians without the consent of the Congress or Great
Council above mentioned who are first to consider the justice and
necessity of such war.
* The Delegates from each Colony should be changed as the Council is, and
I believe that if each Colony had but one vote in the present manner of voting
it would be a more equal government, but much may be said on this subject —
it requires consideration.
t This Council should consist of one from each Colony,
7

50
11th. A perpetual alliance offensive and defensive is to be en
tered into as soon as may be with the Six Nations, their limits
ascertained and to be secured to them, their lands not to be en-
c-oached on, nor any private or Colony purchases made of them
hereafter to be held good, nor any contract for such lands to be
made but between the Great Council of the Indians at Onondaga
and the General Congress. The boundaries and lands of all the
other Indians shall also be ascertained and secured to them in
the same manner, and persons appointed to reside among them in,
proper districts, who shall take care to prevent injustice in the
trade with them and be enabled at our general expense by occa
sional small supplies to relieve their personal wants and distresses
and all purchases from them shall be by the Congress for the gen
eral advantage and benefit of the United Colonies.
12th. As all new Institut:ons may have imperfections, which
only time and experience can discover, it is agreed that the
General Congress from time to time shall propose such amend
ment of the constitution as may be found necessary, which being
approved by the majority of the Colony Assemblies, shall be
equally binding with the rest of the articles of this confederation,
13;li. Any and, every Colony from Great Britain upon the
Continent of North America, not at present engaged in our
Association, may upon application and joining the said Associa
tion, he received into the Confederation, viz: Quebec. St. Johns,
Nova Scotia, Bermuda, and the East and West Floridas, and
shall thereupon be eniitled to all the advantages of our union,
mutual assistance and commerce. ;
These articlts shall be proposed to the several provincial Con
ventions or Assemblies, to be by them considered, and if approved
they are advised to impower their Delegates to agree and ratify
the same in the ensuing Congress, after which, the Union there
by established, is to continue firm until the terms of reconcilia
tion proposed in the Petition of the last Congress to the King
are agreed to, till the acts since made restraining the American
Colonies and Fisheries are repealed, till reparation is made for
the injury done to Boston, by shutting up its port, for burning of
CharlestoMfn, and for the expense of this unjust war, and until
all the British troops are withdrawn from America ; on the
arrival of these events, the Colonies are to return to their former
connection and friendship with Great Britain; but, on failure
thereof, this confederation is to be perpetual.
[N. B. The notes opposite articles 7, 8, 9, are in a different
hand writing from the copy of the Articles, believed to be that of
Mr. Thomas Johnson, of Maryland. S. W. J.]

51

ERRATA.

Page 28 1, 21, for "except," read "besides."
" 29 I. 6, for ''Coply," read "Copley."
" 5 1. 20, "Cong'' appears by Colton's Map of Ireland,
to be in the County Mayo.
" 6, after "Stirling," in the 13th line insert, We learn from
John Adams' Diary, that he accustomed himself to read
the Year Books, and that he had been recommended to
do so by Ch. Just. De Lancey, as the best method of
imbibing the spirit of the law. For his compliance
with this advice he was well rewarded by his future
eminence as a lawyer.

3 9002

CO

/ti«r 'lis

M|> ^"'^4
^^^^'-'.4

i'>

'i

¦'/,

. 1

I

a.j"

_i«.
.-*-'4,r