§ 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.

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.

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 i  quiet possession o  the country, was deemed questionable,
he thought i  prudent t  ask, and h  accordingly obtained, a new grant from the
crown i  June, 1674.4 I  confirmed the former grant, and empowered him t  govern
the inhabitants b  such ordinances, a  he o  his assigns should establish. I 
a thorized him t  administer justice according t  the laws o  England, allowing
an apical t  the king i  council.5 I  prohibited trade thither without his
permission; and allowed the colonists t  import merchandise upon paying customs
according t  the laws o  the realm. Under this charter h  ruled the province
until his accession t  the throne.6 N  general assembly was called for several
years; and the people having become clamorous for the privileges enjoyed b 
o her colonists, the governor was, i  1682, authorized t  call a  assembly,
which was empowered t  make laws for the general regulation o  the state, which,
however, were o  no force without the ratification o  the proprie-

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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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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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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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