98 HISTORY OF THE COLONIES. [Book I.
§ 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
CH. X.] NEW-YORK. 99
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. ; Smith's New-Jersey, p. 210 to 215.
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-
100 HISTORY OF THE COLONIES. [BOOK I.
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.
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
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, ; 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
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
1 Chalm. Annals, 584,485; Smith's N. York, 127,; 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.
102 HISTORY OF THE COLONIES. [BOOK I.
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.
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,
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,
; 2 Kents Comm. Lect. 25, p. 62, 63.
CH. X.] NEW-YORK. 103
3 Mr. Smith.
4 Art. 42.
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.
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.