The Albany Argus, Tuesday, March 24, 1840

Transcribed by Ray Hand. Bold selections chosen by John Elberfeld for emphasis.

From The Albany Argus, Tuesday, March 24, 1840

Vol. XXVII No. 2835

LEGISLATURE OF NEW-YORK

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THE HELDERBERG WAR

The committee of the whole, Mr. D. S. DICKINSON in the chair, again took up the bill to provide for the payment of certain portions of the militia called into service in December, 1839.

The question was on the amendment offered by MR. HUNTER, to insert the counties of New York, Westchester, Suffolk, Queens, Kings and Richmond.

MR. LEE said there was no evidence that the militia of those counties had been called out by any body, nor that they were in service. The amendment was not founded upon any recommendation of a state officer, or application from the citizens.

MR. HUNTER read from the documents, the orders of the Adjutant General to Gens. Doughty and Sanford, of New-York, to hold 1500 men in readiness to march at two hours' notice. These men were compelled to leave their occupations, to obey that order; and he was informed that they were held subject to the order for six or seven days. Mr. H. thought they had been called into service, and performed duty, and he saw no reason why they ought not to be remunerated.

MR. LEE still contended that no evidence was before the legislature that those troops had been called into service, nor was the fact so. He was informed by the Adjutant General, that the facilities for calling out those companies in New York were such, that two hours notice was sufficient to muster them at any time. So the Adjutant General had been informed by Gen. Sanford in September last, and he had then remarked that he should bear the fact in mind, anticipating the occurrrence of an exigency, growing out of this Helderberg difficulty. Those troops had rendered no services for which they expected or desired compensation. That was to be inferred, both from the fact that the notice could be given without taking them from their business, and from their own silence on the subject. For that reason, he was opposed to the amendment.

Mr. H. A. LIVINGSTON was also opposed to the amendment. The hon. mover of it might as well have extended it to the whole second senate district; for he presumed the militia were all in readiness. Those in Dutchess were, he knew. They were always in readiness.

Mr. YOUNG inquired if the order was, to the officers to hold themselves in readiness to warn the men; or to hold the men in readiness to march.

Mr. HUNTER replied, that the order was distinct, to hold in readiness a specific number of men from each brigade. He did not doubt the gallantry of the militia of Dutchess, of which his friend and colleague (Mr. H. A. LIVINGSTON) was a specimen; but he was a little surprised that his colleague, who was familiar with the business habits of a commercial city, should suppose that citizen soldiers of such avocations could hold themselves in readiness for entering upon a campaign, at 2 hour's warning, without leaving their daily pursuits. They must of necessity abandon their whole business, to answer such a call of duty.

Mr. YOUNG said, the assertion that there was no evidence of the performance of duty by the troops provided for in the amendment, was contradicted by the Adjutant-General's order. He lauds them for their promptitude and spirit, and speaks of their "duty" as less arduous than that of the troops actually despatched to the scene of supposed resistance.

Mr. EDWARDS supported the amendments, as due in justice to the militia of those counties if they had performed duty; and if they had not been called into service, by the terms of the bill, they could take nothing under it. It could therefore do no harm, and might obviate the necessity of passing another bill; for he was informed that since petitions had been found to be requisite, they would be forwarded.

Mr. ROOT was opposed to the amendment, and he was not pleased with the course adopted in the bill. It was not the right mode to undertake to decide legislatively who had been called into service, so that senators may strive to include this body of men, or exclude that. The governor had been imperatively required by a representation of facts to him, to order out the militia; and, on a bill to provide for their payment, the legislature were not to inquire whether the sheriff of Albany lacked firmness; it was made to appear to the governor that the whole power of the county had been resisted, and was insufficient to enable the sheriff to serve process. It became the duty of the executive to summon the militia to his aid. — Whether the mountain snows impeded the progress of the posse comitatus, or whether bands of Helderbergers occupied the summit, ready to drench in blood the good citizens of Albany called out to aid the sheriff, there could be no question that the militia should be paid. But this bill was altogether unlike every thing of a military character. Instead of fixing a tariff of payment and a per diem allowance, it should be simply an appropriation bill to be carried into effect by the executive; under it the paymasters should pay the officers and men according to existing regulations and the tariff now established by congress—allowing the privates $5 a month in lieu of clothing, and extending the period of service to be paid for, as was the custom, so as to afford an adequate remuneration. With such a bill you might get along regularly; but as it is presented, it will be placing on the statute book provisions which were any thing like military. He could not vote for the amendment nor the bill either.

Mr. LEE did not profess to have all the military experience of the learned senator from the 3rd (Mr. ROOT); perhaps he should have gone to him for advice. He had, however, consulted some who had a little knowledge on the subject, and had exercised his own feeble judgment, in reporting the bill nearly as it came from the assembly; and if it did not meet the approbation of the senator from the 3rd, it was to be regretted, perhaps, but could not be helped. Mr. L. replied farther to the arguments in favor of the amendments, denying that the legislature were in possession of any evidence that those troops had been in service on the requisition of the commander-in-chief.

Mr. HUNTER rejoined, insisting that they had been called out by an order from head-quarters, and had suffered loss of time, inevitably, in obeying this order.

Mr. VAN DYCK said the senate had the same evidence of the performance of duty by the militia in the first and second senate districts, as by that in the third—the official orders. But it was said the exigency did not arise for which they were commanded to hold themselves in readiness. By a parity of reasoning, it might be said that the exigency did not arise for which the Albany and Rensselaer troops were ordered to the Helderberg; for the apprehended resistance was not found. He did not wish to depreciate the services of those troops, nor to deprive them of their payment; but about the whole hardship which it was deemed they had endured, consisted in marching to the scene of supposed disturbance, and marching back again. Now, by looking at the Comptroller's report, it will be seen that even this should not have been required of them, for the state has paid horse hire enough to have conveyed those troops the whole distance. He saw no reason why the N. York militia should not be paid, in proportion to their services, as well as those provided for in the bill; and the more especially since the state had not been called upon to make an advance from the treasury in their behalf for boots, blankets, blacksmithing and printing—the necessary concomitants, it would seem, of this famous campaign.

The question was taken on the motion to insert the counties above named, and lost.

The next amendment was one offered by Mr. D. S. DICKINSON, altering the rates of payment—reducing the field officers to $5 a day, staff and line officers to $4, and raising the privates to $3. This was also lost.

Mr. YOUNG moved to strike out the word Albany from the first section; and argued at length, that the people of the whole state ought not to be taxed with the expense of assisting the sheriff of Albany county in overcoming resistance. It would be just, Mr. Y. said, that the county of Albany should pay the whole expense incurred by this parade. If the people of a county are so turbulent as to require the intervention of armed citizens of other counties, they ought to be made to pay the expense. But there had in fact been no resistance. [Mr. Y. briefly reviewed the history of the disturbances as detailed in the documents, and said that the people of the county ought also to be responsible for electing so inefficient a sheriff.]

Mr. Y. read from the revised statutes, showing that the entire force of the county was placed under the full control of the sheriff, and that the governor could not exercise any power over the militia of the county wherein the resistance is made or apprehended. The action of the governor in transforming the armed posse into a military force, was therefore nugatory—it was a trampling upon the laws; and could have no other object than to saddle the whole state with the expense which belonged to Albany county.

Mr. HUMPHREY said there seemed to be a misapprehension in the senator's mind as to the effect of this bill. It did not propose to pay any of the expenses of the Albany posse—that the people of Albany expected to pay. The bill included only those troops ordered out by the commander-in-chief; and the idea was a novel one to him that the commander-in-chief had not command over the whole militia of the state.

Mr. SIBLEY followed, at length, in defence of the course of the Executive.

Mr. YOUNG replied, calling attention particularly to the point embraced in his amendment that the Governor had no power to call out the militia of Albany county.

Mr. SIBLEY rejoined, and this colloquy occupied some time—Mr. YOUNG continuing to ask the senator to point to the provision of law under which the Governor could legally order into the service of the state, persons over whom the sheriff had exclusive control.

Mr. EDWARDS moved an amendment in lieu of that offered by Mr. Young—providing that the amount of expense incurred by the militia of Albany county shall be certified to the board of supervisors of that county, whose duty it shall be to levy a tax on the county to that amount, to reimburse the state treasury.

Mr. E. said he was opposed to striking out the word Albany, because that would leave a part of the men unpaid. He would have them promptly paid, and for that purpose would advance the money from the state treasury; but it was perfectly clear that the Albany troops could be nothing else than a sheriff's posse, and their expnses ought therefore to be a county charge. Mr. E. fortified this opinion by reference to authorities—among them a note of the revisers, alluding to the doctrine as a well settled one, that the power of the sheriff extended to the military force of his county.

Both the amendments of Mr. YOUNG and Mr. EDWARDS were rejected.

The amendment to the second section, giving allowances for rations, to the officers in addition to their pay, was briefly explained and advocated by Mr. LEE.

Messrs. HULL and ROOT opposed it, and it was lost.

The bill having passed through the committee,

Mr. EDWARDS renewed his amendment, and it was negatived, ayes 5, noes 15.

Mr. D. S. DICKINSON renewed his amendment, (reducing the pay of officers and raising that of privates) saying that he agreed with the senator from the 3rd (Mr. Root) that this bill was not according to military usage; and, since we were to pass an arbitrary law, he was for doing justice to all. He believed the time of the privates was as valuable to them as that of the officers.

The amendment was negatived.

Mr. HUNTER renewed his proposition to insert the counties of New York, Westchester, Suffolk, Queens, Kings and Richmond. Mr. H. said he was informed that in addition to the duty performed by those troops, they had incurred pecuniary sacrifices of some considerable amount. The expense of a band of music, of which each regiment had one, was about $50 a day; and he was informed that a squadron of horse was ordered to rendezvous the beat of which extended to Suffolk county. These men had been put to the expense of some day's detention and travel, for themselves and horses, and some of them with hired horses too. It was manifest injustice to reject their claim for remuneration.

The amendment was rejected by the following vote:

AYES—Messrs. D. S. DICKINSON, EDWARDS, ELY, HUNTER, JOHNSON—5.

NOES—Messrs. A. B. DICKINSON, DIXON, FURMAN, HAWKINS, HOPKINS, HULL, HUMPHREY, LEE, H. A. LIVINGSTON, MAYNARD, MOSELEY, NICHOLAS, ROOT, SIBLEY, VERPLANCK, WORKS—16.

The report of the committee of the whole was then agreed to, and the bill ordered to a third reading.

Adj. to 10 o'clock to-morrow morning.