98 HISTORY OF THE COLONIES. [Book I.
CHAPTER X.
NEW-YORK.
§ 111. New-York was originally settled by emigrants
from Holland. But the English government seems at all times to
have disputed the right of the Dutch to make any settlement in
America; and the territory occupied by them was unquestionably
within the chartered limits of New-England granted to the council
of Plymouth.1 Charles the Second, soon after his
restoration, instigated as much by personal antipathy, as by a
regard for the interest of the crown, determined to maintain his
right, and in March, 1664, granted a patent to his brother, the
Duke of York and Albany, by which he conveyed to him the region
extending from the western bank of Connecticut to the eastern
shore of the Delaware, together with Long Island, and conferred
on him the powers of government, civil and military.2
Authority was given (among other things) to correct, punish,
pardon, govern, and rule all subjects, that should inhabit the
territory according to such laws, ordinances, &c. as the Duke
should establish, so always that the same "were not
contrary, but as near as might be agreeable to the laws and
statutes and government of the realm of England," saving to
the crown a right to hear and determine all appeals. The usual
authority was also given to use and exercise martial law in cases
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1. 1 Chalmers's Annals, 569, 570, 572; Marsh.
Colon. ch. 5, p. 143; 2 Doug. Summ. 220, &c.
2. Smith's New-Jersey, 35, 59); I Chalmer's Annals, 573; Smith's
New-York, p. 31. [10]; Smith's New-Jersey, p. 210 to 215.
CH. X.] NEW-YORK. 99
of rebellion, insurrection, mutiny, and invasion.1 A part of this tract was afterwards conveyed by the Duke, by deed of lease and release, in June, of the same year, to Lord Berkeley and Sir George Carteret. By this latter grant they were entitled to all the tract adjacent to New-England, lying westward of Long Island, and bounded on the east by the main sea and partly by Hudson's river, and upon the west by Delaware bay or river, and extending southward to the main ocean as far as Cape May at the mouth of Delaware bay, and to the northward as far as the northernmost branch of Delaware bay or river, which is 41 degrees 40 minutes latitude; which tract was to be called by the name of Nova Caesarea or New-Jersey.2 So that the territory then claimed by the Dutch as the New-Netherlands was divided into the colonies of New-York and New-Jersey.
§ 112. In September, 1664, the Dutch colony was
surprised by a British armament, which arrived on the coast, and
was compelled to surrender to its authority. By the terms of the
capitulation the inhabitants were to continue free denizens and
to enjoy their property. The Dutch inhabitants were to enjoy the
liberty of their conscience in divine worship and church
discipline; and their own customs concerning their inheritances.3
The government was instantly assumed by right of conquest in
behalf of the Duke of York, the proprietary, and the territory
was called New-York. Liberty of conscience was granted to all
settlers. No laws con-
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1. I copy from the recital of it in Smith's
History of New-Jersey in the surrender of 1702, of the provinces
of East and West Jersey.
2. Smith's New-York, 31, 32, [10, 11.]; 1 Chalmers's Annals, 613.
3. Smith's New-York, 44, 45, [19, 20.]; 1 Chalm. Ann. 574;
Smith's New-Jersey, 36, 43, 44; 2 Dong Summ. 223.
100 HISTORY OF THE COLONIES. [BOOK I.
trary to those of England were allowed; and taxes were to be levied by authority of a general assembly.1 The peace of Breda, in 1667, confirmed the title in the conquerors by the rule of uti possidetis.2 In the succeeding Dutch war the colony was reconquered; but it was restored to the Duke of York upon the succeeding peace of 1674.3
§ 113. As the validity of the original grant to the
Duke of York, while the Duch were in quiet possession of the
country, was deemed questionable, he thought it prudent to ask,
and he accordingly obtained, a new grant from the crown in June,
1674.4 It confirmed the former grant, and empowered
him to govern the inhabitants by such ordinances, as he or his
assigns should establish. It authorized him to administer justice
according to the laws of England, allowing an apical to the king
in council.5 It prohibited trade thither without his
permission; and allowed the colonists to import merchandise upon
paying customs according to the laws of the realm. Under this
charter he ruled the province until his accession to the throne.6
No general assembly was called for several years; and the people
having become clamorous for the privileges enjoyed by other
colonists, the governor was, in 1682, authorized to call an
assembly, which was empowered to make laws for the general
regulation of the state, which, however, were of no force without
the ratification of the proprie- ___________________________________
1. 1 Chalmers's Annals, 575, 577, 579, 597;
Smith's New-Jersey, 44, 48.
2. 1 Chalmers's Annals, 578; 2 Doug. Summ. 223.
3. 1 Chalmers's Annals, 579; 1 Holmes's Annals, 364, 366.
4. Smith's New-York, 61, [32]; 1 Chalm. Annals, 579.
5. 1 Chalmers's Annals, 579, 580.
6. 1 Chalmers's Annals, 581, 583; Smith's New-York, 123, 125,
126, [72,75].
CH. X.] NEW-YORK. 101
tary.1 Upon the revolution of 1688, the people of NewYork immediately took side in favour of the Prince of Orange.2 From this era they were deemed entitled to all the privileges of British subjects, inhabiting a dependent province of the state. No charter was subsequently granted to them by the crown; and therefore they derived no peculiar privileges from that source.3
§ 114. The government was henceforth administered by
governors appointed by the crown. But no effort was made to
conduct the administration without the aid of the representatives
of the people in general assembly. On the contrary, as soon as
the first royal governor arrived in 1691, an assembly was called,
which passed a number of important acts. Among others was an act
virtually declaring their right of representation, and their
right to enjoy the liberties and privileges of Englishmen by
Magna Charta.4 It enacted, that the supreme
legislative power shall for ever reside in a governor and council
appointed by the crown, and the people by their representatives
(chosen in the manner pointed out in the act) convened in general
assembly. It further declared, that all lands should be held in
free and common soccage according to the tenure of East Greenwich
in England; that in all criminal cases there should be a trial by
a jury; that estates of femes covert should be conveyed only by
deed upon privy
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1. Chalm. Annals, 584,485; Smith's N. York,
127,[75]; 1 Holmes's Annals, 409.--In the year 1683 certain
fundamental regulations were passed, by the legislature, which
will be found in an Appendix to the second volume of the old
edition of the New-York Laws.
2. 1 Holmes's Annals, 429; Smith's New-York, 59
3. 1 Chalm. Annals,585, 590,591,592.
4. 1 Holmes's Annals, 435; Smith's New-York, 127, [75,76]; Acts
of 1691.
102 HISTORY OF THE COLONIES. [BOOK I.
examination; that wills in writing, attested by three or more
credible witnesses, should be sufficient to pass lands; that
there should be no fines upon alienations, or escheats and
forfeitures of lands, except in cases of treason; that no person
should hold any office, unless upon his appointment he would take
the oaths of supremacy, and the test prescribed by the act of
Parliament;1 that no tax or talliage should be levied
but by the consent of the general assembly; and that no person
professing faith in Jesus Christ should be disturbed or
questioned for different opinions in religion, with an exception
of Roman Catholics; The act, however, was repealed by king
William, in 1697.2 Another act enabled persons, who
were scrupulous of taking oaths, to make in lieu thereof a solemn
promise to qualify them as witnesses, jurors, and officers. In
the year 1693, an act was passed for the maintenance of ministers
and churches of the Protestant religion. New-York (like
Massachusetts) seemed at all times determined to suppress the
Romish church. In an act passed in the beginning of the last
century it was declared, that every Jesuit and Popish Priest, who
should continue in the colony after a given day, should be
condemned to perpetual imprisonment; and if he broke prison or
escaped and was retaken, he was to be put to death. And so little
were the spirit of toleration and the rights of conscience
understood at a much later period, that one of her historians3
a half century afterwards gave this exclusion the warm praise of
being worthy of perpetual duration. And the constitution of
New-York, of 1777,4
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1. 1 Holmes's Annals, 435; Smith's New-York,
127, [75, 76]; Prov. Laws of 1691.
2. 1 Holmes's Annals, 434; Province Laws of 1691; Smith's N.
York, 127, [76]; 2 Kents Comm. Lect. 25, p. 62, 63.
3. Mr. Smith.
4. Art. 42.
CH. X.] NEW-YORK. 103
required all persons naturalized by the State, to take an oath
of abjuration of all foreign allegiance, and subjection in all
matters, ecclesiastical as well as civil. This was doubtless
intended to exclude all Catholics, who acknowledged the spiritual
supremacy of the Pope, from the benefits of naturalization.1
In examining the subsequent legislation of the province, there do
not appear to be any very striking deviations from the laws of
England; and the common law, beyond all question, was the basis
of its Jurisprudence. The common law course of descents appears
to have been silently but exclusively followed;2 and
perhaps New-York was more close in the adoption of the policy and
legislation of the parent country before the Revolution, than any
other colony.
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1. 2 Kent's Comm. Lect. 25, p. 62, 63.
2. I do not find any act respecting the distribution of intestate
estates in the statute book, except that of 1697, which seems to
have in view only the distribution of personal estate
substantially on the basis of the statute of distribution of
Charles the Second.