USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 28
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Charles II, on the 12th of March, 1664, conveyed by patent to his brother James, Duke of York and Albany, all that portion of the present State of Maine included between the rivers St. Croix and Kennebec ; also Nantucket, Martha's Vineyard and Long Island; together with all the land from the west side of the Connecticut River to the east side of Delaware Bay .- Werner, in "Civil List and Constitutional History of the Colony and State of New York," 1888 ed., pp. 64-66.
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ceded that English domination was due to the success of British arms, the law remained as it had been before the conquest, and was so applicable to all causes of action which had origin prior thereto. Taking this latter view, the Dutch possession was that of mere squatters holding possession ad- verse to the real owners of the soil, and of no legal effect and subject to removal and confiscation upon the forcible or other entry of the lords paramount. The vacillating tactics of the colonial judges, who never sharply and clearly defined their position in this matter, has left the title of eminent domain in doubt and uncertainty," writes Scott. From 1664, however, when the first formal English occupation of New York terri- tory took place, the English common law has controlled the decisions of the New York courts.5.
The Duke of York and Albany's Laws, promulgated at the Hempstead convention in 1665, held drastic provisions relat-
5. The question of the validity of the grants of vast tracts of land on both sides of Lake Champlain, made by the French provincial government at Quebec, provoked vehement discussion in the New York Assembly in 1773, when it published a vindication of the British title, as founded on "original right" by virtue of Cabot's discovery, and not by conquest. The question was argued before Kent, Ch. J. in Jackson ex dem Winthrop vs. Ingraham, 4, Johns, 163, but the judgment proceeded on other grounds. Another important case in which this question came up was the Canal Ap- praisers of the State of New York vs. The People on the relation of George Tibbits, which was argued and decided in the court for the cor- rection of error (17 Wend. 571). Chancellor Walworth in his opinion said : "Until the former argument of this cause I had not supposed that any one seriously contended that the Roman-Dutch law which was brought here by the original settlers from Holland, in 1614, remained a part of the law of the colony after the capitulation of Governor Stuyvesant. I also supposed it was generally conceded that the province of New York was claimed by the English by right of discovery, and not by right of conquest; and there- fore that when it was taken possession of as an English colony under the Duke of York, in 1664, no formal act was necessary to substitute the com- mon law of England in the place of that law by which the Dutch settlers had previously been governed. In a colony acquired by discovery or occupancy merely, and not by conquest or cession, the discoverers, and new occupants thereof carry with them all the general laws of the mother country which are adapted to their new situation as colonists."
The chancellor further insisted that even if the province be considered acquired by the English by conquest, there was sufficient to show an inten- tion on the part of the conquerors to abrogate the Dutch laws and substitute
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ing to conveyances of land.6 Under the code old land grants were to be "looked upon as valueless unless submitted to the provincial authorities and confirmed by new patents issued by the governor in the duke's name." There was consider- able resistance to this ordinance, especially by the English settlers in eastern Long Island, but eventually all land owners had to comply.7
those of England in their place. Lord Mansfield, in Campbell vs. Hall, decided in King's Bench in 1774, and reported in I Cowper, 204, held the same opinion on this point. Among other cases, the question was argued by the counsel in briefs in Jackson vs. Gilchrist, 15 Johnson's Report, 89, and in brief or in opinion the subject appears in Canal Commissioners vs. The People e.r. rel. Tibbits, 5 Wendell, 423 (1850), and Bogartus vs. Trinity Church, 4 Paige Ch., 178 (1833) .- Chester's "Legal and Judicial History of New York," Vol. I, p. 191, 192.
6. That henceforth no Sale or alienation of Houses or Lands within this Government shall be holden good in Law except the same be done by Deed in writing under hand and Seal delivered and possession given upon part in the name of the whole by the Seller or his Attorney so Authorized under hand and seal Unless the said Deed be Acknowledged and Recorded according to law.
That all Deeds and Conveyances of Houses and Lands within this Government wherein an Estate of Inheritance is to pass, it shall be ex- pressed in these words: or to the Like effect (viz.) To have and to hold the said houses and Lands Respectively to the party or grantee, his heirs and Assigns forever, Or if it be an Estate Entailed, then to have and to hold, etc. : to the party or grantee, and to the Heirs of his body Lawfully begotten between him and such an one his Wife; or to have and to hold to the Grantee for term of Life, or for so many years, Provided that the Law shall not include former Deeds and Conveyances, but leave them in the same Con- dition as they were, or shall be in before this Law shall take effect: which shall be from the publication thereof, Provided also That this Law shall not extend to Houses or Lands given by will or Testament, or to any Land granted by the Inhabitants of a Town.
That no Conveyance Deed or Promise whatsoever shall be of Validity if it be obtained by illegal violence imprisonment threatenings or any kind of forcible Compultion called Dures.
All Covenants or fraudulent Alienations or Conveyances of Lands, Tene- ments or any hereditaments shall be of no force or validity to defeat any man from his due Debt or Legacies or from any just Tithe Claime or pos- session of that which is so fraudulently Conveyed.
That after the time aforesaid No Mortgage, Bargain Sale or Grant made of any Houses, Land Rents or other Hereditaments where the Granter remains in Possession shall be of force against other Persons Except the Granter and his heirs under the Same be acknowledge before some Justice of the peace or Superior Officer in the Government and Recorded as is hereafter expressed. And that no Such Bargain Sale or Grant already
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made in any way of morgage where the Granter remains in possession shall be in force against others; but the granter or his Heirs except the same shall be entred as is here expressed (that is to say) within one month after the date before mentioned if the party be within this Gouvernment or else where within three Months after he shall returne, And if any such Granter shall refuse being required by the Grantee his Heirs or Assigns to make an acknowledgement of any grant, Sale, Bargain or Mortgage, by him made shall refuse so to do, it shall be in the power of any Justice of peace, to send for the party so refusing, and Commit him to prison without Bail or Mainprize, unless he shall Acknowledge the same, and the Grantee is to enter his Caution with the Clerk of the Court of Sessions, and this shall save his Interest in the meantime, And if it be doubtful whether it be the Deed or Grant of the party he shall be bound with Sureties, to the next Court of Sessions, and the Cautient shall remain good as aforesaid.
And for the recording of all such Grants, Sales and Mortgages That every Clerk of every Court of Sessions shall enter all such Grants, Bar- gains, Sales and Mortgages of Houses, Lands, Rents and Hereditaments as aforesaid together with the estates of the Granter and Grantee; things and Estates granted, together with the Date thereof .- Duke of Yorke's Laws, published by Commonwealth of Pennsylvania, 1879.
7. . new trouble arose in the same region (eastern Long Island) in resistance to the enforcement of the law of renewal of patents-a matter requiring the wisest management. The Court of Sessions decreed in Sep- tember (1666) that the neglect of the Long Island towns and of indi- viduals to renew their land grants under the Duke of York could be no longer tolerated. It required all Nicoll's skill and firmness to carry out the measure, accompanied as it was by the exaction of fees and quit-rents. After much discontent, however, all the towns of consequence, except South- old and Southampton, vielded, and these complied with the conditions a year or two afterward .- Bryant's "History of United States," Vol. II, 331.
CHAPTER XVIII. THE DUKE OF YORK'S LAWS .*
The Duke of York and Albany having been granted by his brother, King Charles II, on March 22, 1664, by royal patent, "all that part of the maine Land of New England be- ginning at a certain place called or known by the name of St. Croix next adjoining to New Scotland in America, and from thence extending thereof to the furthest head of the same as it tendeth Northward ; and extending from thence to the River Kenebeque and so upwards by the shortest course to the River Canada Northward. And also all that Island or Islands commonly called by the several name or names of Matowacks or Long Island, situate, lying and being towards the West of Cape Cod and the Narrow Higansetts abutting upon the main land between the two Rivers there called or known by the several names of Connecticut and Hudson's River, together also with the said River called Hudson's River, and all the land from the West side of Connecticut to the East side of Delaware Bay. And also those several islands called or known by the Names of Martin's Vineyard and Nantuckes, otherwise called Nantuckett"-having been granted, in short, the entire Atlantic coast from the State of Maine to the Alle- gany Mountains, and that portion more particularly bounded
*AUTHORITIES-"The Colonial Laws of New York"; New York His- torical Society Collections; "The Duke of Yorke's Book of Laws, Com- monwealth of Pennsylvania"; Chester's "Legal and Judicial History of New York"; "Records of the Court of New Castle"; Macaulay's "History of England"; Eastman's "Courts and Lawyers of Pennsylvania"; "English Colonial Polity and Judicial Administration, 1664-1776"; Redfield, in "His- tory of the Bench and Bar of New York"; Brodhead's "History of New York"; "Maverick's Letters in the Winthrop Papers," Massachusetts His- torical Society Collections ; Bryant's "History of United States"; "Claren- don Papers," N. Y. Hist. Soc. Coll., 1869; "Records of New Amsterdam"; Scott's "The Courts of the State of New York"; Brooks' "History of the Court of Common Pleas of the City and County of New York."
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on the east by the Connecticut River and on the west by the Delaware River, the Duke of York and Albany lost no time, one of his first acts being to appoint a deputy governor of the province, and to prepare to take possession, forcibly if necessary, of New Netherland and contiguous territory which came within his proprietary province. By the royal patent the Duke of York and Albany had been given almost unlimited power1; and, in commissioning Colonel Richard Nicolls as his deputy governor, the Duke of York vested in his represent- ative authority "to perform and exact all and every the powers" granted by the patent, and in accordance with a code of laws compiled, it was for long thought, by Edward Hyde, the first Earl of Clarendon, the Lord Chancellor of England, a commoner who had been raised above all the nobility of England because of the secret marriage of his daughter to the Duke of York. The "Clarendon Papers" support the belief
I. ". . . unto our said dearest brother James, Duke of York, his Heirs, Deputies, Agents, Commissioners and Assigns, full and absolute power and authority to correct, punish, pardon, govern and rule" the inhabitants of those parts and places, "according to such Laws, Orders, Ordinances, Di- rections and Instruments as by our said Dearest Brother or his Assigns shall be established; And in defect thereof, in case of necessity, according to the good discretions of his Deputies, Commissioners, Officers or Assigns respectively ; as well as in all causes and matters Capital and Criminal as civil, both marine and others; So always as the said Statutes, Ordinances and proceedings be not contrary to but as near as conveniently may be agreeable to the Laws Statutes & Government of this Our Realm of England. And saving and reserving to us Our Heirs and Successors the receiving, hearing and determining of the Appeal and Appeals of all or any Person or Persons of in or belonging to the territories or islands aforesaid ir or touching any Judgment or Sentence to be there made or given. And further that it shall and may be lawful to and for our Dearest Brother his Heirs and Assigns by these presents from time to time to nominate, make constitute, ordain and confirm by such name or names stile or stiles as to him or them shall seem good, and likewise to revoke, discharge, change and alter as well all and singular Governors, Officers and Ministers which here- after shall be by him or them thought fit and needful to be made or used within the aforesaid parts and Islands; and also to make, ordain and es- tablish all manner of Orders, Laws, Directions, Instructions, forms and ceremonies of Government and Magistracy, fit and necessary for and Con- cerning the Government aforesaid, so always as the same be not contrary to the laws and statutes of this Our Realm of England but as near as may be agreeable thereunto. And the same at all times hereafter to put in execu-
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that Lord Clarendon did compile the Duke's Laws2; but other evidence seems to show just as positively that they were not compiled by Nicolls, and not indeed in America2ª ; moreover, that they were prepared prior to the departure of Colonel Nicolls for America. It is not known who was the author of them, but it would not be surprising if it were ultimately dis- covered that Lord Clarendon, who was so well fitted for the task and so close to the royal parties thereto, had some part in the work. Much of it followed the laws of the New Eng- land colonies, the Massachusetts and New Haven codes being available in print, in London, the former probably about 1642 and the latter in 1656. The Connecticut code, however, was only in manuscript form at the time the Duke of York received
tion or abrogate, revoke or change not only within the precincts of the said Territory or Islands, but also upon the Seas in going and coming to and from the same as he or they in their good discretions shall think to be fittest for the good of the Adventurers and Inhabitants there. And We do further of Our Special Grace, certain knowledge and mere motion grant, ordain and declare that such Governors, Officers and Ministers as from time to time shall be authorized and appointed in the manner and form aforesaid shall and may have full power and authority to use and exercise Martial Law in cases of Rebellion, Insurrection and Mutiny in as large and ample Manners as Our Lieutenants in Our Counties within Our Realm of Eng- land have or ought to have by force of their Commissions of Lieutenancy or any Law or Statutes of this Our Realm."-Quoted from Brodhead's "History of the State of New York," Vol. II, 651. The original of this patent is in the Public Record Office in London, but a parchment duplicate is in the keeping of the State Archivist, at the State Library, Albany.
2. Governor Nicolls brought with him a code of laws for the colony. It was long believed that this code, famous as the first set of laws prepared for the colony, was drawn up by Clarendon, Lord Chancellor of England, and the First Lord of the Committee on Foreign Plantations-the father- in-law of the Duke of York. That statement is no longer credited, how- ever, documents and letters to the contrary having effectually disproved it .- Chester's "Legal and Judicial History of New York," Vol. I, 155, quoting Clarendon Papers.
2a. In 1669 Colonel Lovelace, the second English governor, was ap- proached by the inhabitants of Long Island to grant them a share in the legislative affairs of the province-which they asserted had been promised to them by Nicolls, in his first proclamation. Governor Lovelace expressed ig- norance of any such promise made by his predecessor. "Moreover," states one record, "the governor's instructions forbade his making any alteration in 'ye Lawes of ye government settled before his arrival.'" This might be taken to mean before the arrival of Governor Nicolls. Another record,
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his patent, though this fact does not refute the thought that the Duke's code of laws may have been compiled in England.
The Duke's code was patterned largely after the Massa- chusetts Fundamental Law, the "Body of Liberty"; but the Connecticut code was also drawn upon. Still, whether com- piled in London-by Lord Clarendon, than whom "no man wrote abler state papers" said Macaulay,2b or by some other London man of law and politics-or in New York by the Gov- ernor and his Provincial Council, it is quite clear that the Duke's code was available, in finished form, for the convention of 1665 at Hempstead, also that the Long Islanders who attended that convention, as delegates of their towns, were not expected to make laws, but merely to ratify those already prepared. Brodhead, in his "History of the State of New York," Vol. II, 65, states that the Court of Assizes created by Nicolls was invested with "the supreme power of making, altering and abolishing any laws"; and a Pennsylvanian fol- lows this statement with an assertion that Nicolls and his Council actually did compile the Duke's laws.2c Another
however, seems to indicate that it was to the instructions to himself that Lovelace referred, for when Colonel Lovelace arrived in 1668 he "brought to New York a confirmation by the Duke of York of the code of laws that had been promulgated at Hempstead; among other things, the instructions required him 'to make no alterations in the laws of the governor settled before his arrival.'"
2b. In some respects he was well fitted for his great place. No man wrote abler state papers. No man spoke with more weight and dignity in council and in parliament. No man was better acquainted with general maxims of statecraft. . . . It must be added that he had a strong sense of moral and religious obligation, a sincere reverence for the laws of the country, and a conscientious regard for the honor and interest of the crown. -Macaulay's "History of England," Vol. I, 134.
2c. This Court of Assizes, as yet consisting only of the Governor and his Council, proceeded to prepare a code of laws for the colony under the provisions of the patent.
Nicolls appears to have obtained copies of the codes of Massachusetts and New Haven, the latter of which had been printed in London in 1656. The Connecticut code existed only in manuscript, and a transcript could not be obtained in time to be of use, though some of the provisions of Nicolls' Code seem to have been taken therefrom. The Massachusetts "Fundamen- tals" or "Body of Liberty," an elaborate code of ninety sections or sub-
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narrows the authorship to "Matthew Nicolls, secretary of the colony."2d
Deputy Governor Nicolls proved to be well fitted for the responsibility vested in him. The change of government in New Netherland had been attended by little unusual commo- tion; and the ordinary affairs of New Amsterdam quickly re- turned to their normal channels. "Nicolls wisely acted as if he were receiving a penitent province that had for a season forgotten its true allegiance, rather than as taking possession of one he had conquered." He did not disturb the order of burgher government in the distinctly Dutch towns, such as Rensselaerswyck, Fort Orange (which now became Albany), and Esopus, of the upper reaches of the Hudson, neither did he interfere in the municipal affairs of New Amsterdam, or of the Dutch group of municipalities in Kings County. And while the Dutch were reluctant to take the oath of allegiance to the English crown, they seemed to be well contented with their state in general. On the other hand, Governor Nicolls had more trouble in the essentially English towns. When the English fleet had appeared, the militant towns of Long Island had rallied in armed force to aid in the subjugation of New Amsterdam, which no one had expected would surren-
divisions enacted in 1641, appears to have been principally drawn upon. The new code, having been prepared, Nicolls, on February 8, 1665, addressed a letter to each of the towns on Long Island inviting them to send delegates to a meeting to be held at Hempstead to give him "their best advice and in- formation." The convention was held on the appointed day, and consisted of thirty-four delegates. The delegates found that instead of being popular representatives to make laws, they were merely agents to approve those already prepared, although Nicolls accepted a few amendments and prom- ised that when any reasonable alterations should be afterwards offered by any town to the courts of sessions the justices should tender them at the next Assizes "and receive satisfaction thereon."-Eastman's "Courts and Lawyers of Pennsylvania," Vol. I, 34.
2d. "It was known as 'the Duke's laws,' and was drawn up by Matthew Nicolls, secretary of the colony, from the laws of other British provinces, the common law of England, and the former Roman-Dutch law of New Netherland."-"Nat. Cyclo. Am. Biog.," XIII, 448.
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der without the firing of a shot; and two days after the entry of the English into the capital Nicolls had promised them that "Deputys shall in convenient time and place be sum- moned to propose and give their advice in all matters tending to ye peace and benefit of Long Island." They were, of course, actuated by national impulses at the outset; and although the Duke of York did not openly become a Catholic until 1672, all royalty was looked upon with suspicion by rigid Puritans, for past history had shown that most of them leaned toward the Catholic faith. As the first patriotic im- pulses passed Long Islanders saw that life under the Con- necticut system of government, civil and ecclesiastical, would be preferable, i. e., more surely Protestant than life in a royal province of proprietary status. Such an underlying thought made the task of the proprietary governor harder. Moreover, there were some towns of mixed population, and in these towns seditious inclinations soon became obvious.3 In all, the situation called for adminstrative tact and ability of high order. These qualities Nicolls possessed. His gentlemanli- ness and tolerant interest in all classes made his work easier ; but he liked his task little after New Jersey had passed to
3. The authorities of the Dutch towns, such as Beaverwyck, Rensselaer- wyck and Esopus, on the upper Hudson, and of New Amsterdam and the purely Dutch towns in what is now Kings County, continued to administer their small affairs, and to distribute justice in their own way. The really restive and even seditious towns were those of a mixed population which had been founded by New Englanders in times of Kieft and Stuyvesant, such as Newtown, Flushing, Hempstead, New Utrecht and Jamaica, and West Chester and East Chester, but more especially the purely English towns, in what is now Suffolk County, never under Dutch Government, but settled under the jurisdiction of Connecticut, except Southold, the oldest town on the Island, which had elected to belong to the jurisdiction of the New Haven colony. These militant towns which had turned out an armed force to assist in the subjugation of New Amsterdam, in response to the royal proclamation, on the arrival of the fleet, were by no means satisfied to lose their connection with Connecticut, with whose religion and system of government they were in complete sympathy. Nicolls promised them, two days after the surrender, that "Deputys shall in convenient time and place be summoned to propose and give their advice in all matters tending to ye peace and benefit of Long Island."
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Carteret; what was then left to the Duke of York he consid- ered "hardly worth possessing, much less governing." The Duke of York, indeed, had granted the whole country, from the Hudson to the Delaware, and from latitude 41 degrees 40 minutes to Cape May, to two favorites of the court, Lord Berkeley and Sir George Carteret, before even Nicolls had reached New Amsterdam. Carteret arrived in June, 1665, and Nicolls had perforce, though reluctantly, to relinquish to Carteret authority over that part of the former New Nether- land which became New Cæsarea and a few years later New Jersey. After Carteret's arrival Nicolls had no desire to re- main in the New York governorship. He asked to be relieved -asked many times during the next two years, but without avail. England and the Duke of York had other and more engrossing affairs in hand during those eventful years, which included the presence of enemy ships of war (Dutch) within London waters, the black plague, which took 100,000 lives, and the great fire which laid in ruins the whole city of London.3ª It is not surprising, therefore, that a new governor
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