USA > New York > History of the state of New York. Vol. II, Pt. 1 > Part 9
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* Chalmers's Pol. Ann., i., 574; Rev. Col., i., 116, 117; Calvin's Case, 7 Coke's Rep., 17; *** rws. l'arl. C., 31; Cowper, 204; Blackstone's Comm. ; Jacob, v., 159; Col. Doc., li., 206; lesming and Spicer, 666; ante, vol. i., p. 769 ; post, App. A and B. I venture, with much 4.4. Peter, to express my opinion that Mr. Barnard, in his sketch of Rensselaerwyck, 156, and IL .- E
make lawz.
66
HISTORY OF THE STATE OF NEW YORK.
CHAP. II.
1665.
4 Feb.
English laws to be establish- ed.
Power of Nicolle to make laws.
It was nevertheless generally understood that "English lawes" were to be established in New York at the end of six months after the surrender. In writing from Boston, Cartwright advised Nicolls that the Dutch "will rather take that for oppression which shall be imposed on thein afterward, than for the present acknowledge your indul- gence in letting them for a while longer use their own lawes." But, if the governor hesitated at following his colleagues' advice with respect to the Dutch portion of the province, he had no doubt in regard to Yorkshire. Before the surrender, in explaining at Gravesend the phrase of the proclamation that all persons submitting to the royal government were to enjoy "all other privileges with his majesty's English subjects," he had promised the people of Long Island that at a convention of delegates from their towns, "laws were to be enacted and civil officers estab- lished." A few days afterward, he told them that they should be summoned "to propose and give their advice in all matters tending to the peace and benefit" of the island. Again he assured them " of equal (if not greater) freedoms and immunities than any of his majestic's colonies in New England." These expressions appear to have been differ- ently understood by Nicolls and by the Long Island people. The latter supposed that the New England system was to be transplanted into New York, with all the machinery of royal corporations to perpetuate their benefits or abuses. The governor, on the other hand, was the deputy of a pro- prietor who centred in himself all the delegated authority of the king possessed by any of the New England oligarch- ies. It was his function under a royal patent, as it was theirs under royal charters, to make laws. Nicolls, how- ever, was desirous to adopt in New York all that he might find good or expedient in the several codes of the New En- gland colonies. For this purpose he appears to have ob- tained copies of those of Massachusetts and of New Haven, the latter of which had been printed at London in 1656. He also applied to Winthrop for a copy of that of Connec- ticut, which existed only in manuscript; but a transcript
Chancellor Walworth, in 17 Wendell, 5S7, and Mr. Butler in it. N. Y. H. S. Coll., ii., 43, have not accurately stated the condition of the law in New York immediately after the sur- render. Certainly Long Island was differently situated from the rest of the province.
08
67
RICHARD NICOLLS, GOVERNOR.
could not be made for him in time to be of use. With the CHAP. II. assistance of members of the Court of Assizes, he made it his " whole business to prepare a body of lawes" to be sub- 1665. Code pre- mitted to the general meeting proposed to be held on Long pared by Nicolls. Island. These laws were largely borrowed from those "in practice in his majesty's other colonies in New England," but with a relaxation of their severity against those who differed " in matters of conscience and religion."*
To fulfill his promises, Nicolls addressed a letter to each 8 Feb. of the towns on Long Island, announcing that in discharge of his "trust and duty to settle good and known lawes within this goverment for the future," and receive their " best advice and information in a general meeting," he Meeting had appointed such a meeting to be held at Hempstead on liemp- the last day of February, to which he invited each town to stead. send two deputies chosen by a majority of the tax-payers. These deputies were to be "the most sober, able, and dis- ercet persons;" and were to produce at the meeting the doc- unents showing the boundaries of their respective towns, notify the Indian sachems whose presence there might be necessary, and bring with them certificates of their due election, "with full powers to conclude any cause or mat- ter relating to their several towns." A similar letter was sent to Westchester. But no deputies were summoned from New York, Esopus, Bergen, or any other town in the province.t
At the appointed day the Convention met at Hempstead. 28 Feb. It consisted of thirty-four delegates-two from each of the English and Dutch towns on Long Island, and two from Westchester. Some of them had been members of Stuy- vesant's last General Assembly of New Netherland a year before. New Utrecht sent Jacques Cortelyou and Younger Delegates Fosse; Gravesend, James Hubbard and John Bowne; Flat- lands, Elbert Elbertsen and Roeloff Martense; Flatbush, John Stryker and Hendrick Jorassen; Bushwick, John Stealman and Guisbert Teunis; Brooklyn, Frederick Lub- bertsen and John Evertsen ; Newtown, Richard Betts and
* Gen. Ent., 1., 23, 29, 66; Dreds, il., 43; Col. Doc., ii., 251; iii., 86, 88, 114; iv., 1134; Thompson, i, 1:0, 127. 382; ii , 323, 324, 327; Dunlap. ii., App. xxxvii. ; Smith, i., 383; But. Ma : . viii., 211; Trumbull MISS., xx., 74; ante, p. 25, 33, 43, 57.
1 Goo. Ent .. 1., 93-55; Wood, ST, SS ; Thompson, i., 131, 132; Bolton, ii., 180; Journ. Le .. Council of N. Y., i., Int., iv.
called at
68
HISTORY OF THE STATE OF NEW YORK.
CHAP. II.
1665.
John Coe; Flushing, Elias Doughty and Richard Cornhill; Jamaica, Daniel Denton and Thomas Benedict ; Hempstead, John Hicks and Robert Jackson ; Oyster Bay, John Under- hill and Matthias Harvey; Huntington, Jonas Wood and John Ketcham; Setalcott (or Brookhaven), Daniel Lane and Roger Barton; Sonthold, William Wells and John Younge; Southampton, Thomas Topping and John How- ell; Easthampton, Thomas Baker and John Stratton; and Westchester, Edward Jessop and John Quinby."
28 Feb.
Nicolls's code pro- posed.
The governor opened the meeting by reading the duke's patent and his own commission; and told the delegates that their first business should be to decide some of their local differences about boundaries, which were afloat before he came to the government ; but that "he had prepared a body of general laws hereafter to be observed." These were delivered to the delegates, who, upon perusal, found them to be chiefly compiled from the laws then in force in New England, "with abatement of the severity against such as differ in matters of conscience and religion." The delegates, however, were not satisfied. Most of them rep- resented towns which had recently been under the juris- diction of Connecticut ; and they supposed that in promis- ing them "equal, if not greater freedoms and immunities than any of his majestie's colonies in New England," Nicolls meant to establish in New York a government resembling those of his Puritan neighbors. The inhabitants of South- old especially had signified their desire that all civil officers should be annually elected by the freemen, that all military officers should be chosen by the soldiers, that no magistrate should have "any yearly maintenance," and that taxes should be levied only by consent of a majority of the dep- uties at a General Court. But the code prepared by the governor recognized none of these points. The delegates therefore objected against some of its clauses, and proposed others. Several of their amendments were accepted by Nicolls, who moreover promised that when any reasonable alterations should be afterward offered by any town to the
Objected to.
* Gen. Ent. i., 96 ; Journ. N. Y. Leg. Council, Int., v. It will be observed that the names of several of these towns are different from those which they had borne under the Dutch authority. Flatlands was formerly Amersfoort ; Flatbush, Midwont ; Bushwick, Boswyck : Brooklyn, Breukelen : Newtown, Middleburgh or Hastings; Flushing, Vlissingen or New- arke : Jamaica, Rustlerp or Crafford; and Oyster Bay, Folestone: sce ante, vol. i., CIS, 723, 720.
69
RICHARD NICOLLS, GOVERNOR.
Sessions, the justices should tender them at the next Assizes, CuAp. II. "and receive satisfaction therein." He further declared that "he expected no benefit for his labours out of the 1665. purses of the inhabitants," but that it was absolutely neces- sary to establish a system of county rates to support the public charges. The delegates accordingly " pitched upon the form and rule" then observed in Connecticut, with which most of them were familiar. But when they asked to be allowed, "according to the custom of the other colo- nies," to choose their own magistrates, Nicolls exhibited his instructions from the Duke of York, " wherein the choice of all the officers of justice was solely to be made by the governor." Upon this point the delegates were pacified by the consideration "that a Parliament, of England can nei- ther make a judge nor justice of the peace." To stop fur- ther debate, Nicolls told them that they had seen and read his commission and instructions, and that if they would have a greater share in the government than he could allow, they " must go to the king for it." This was decisive. The delegates found that instead of being popular representa- tives to make laws, they were merely agents to accept those already prepared for them. Nicolls's code, as amended, 1 March. was now formally promulgated at the " General Meeting." a " Nicolls's code pro- During its session, which lasted ten days, several orders mulgated. were made respecting the boundaries of some of the towns. The only act which the delegates really performed was to adopt a loyal address to the Duke of York, in which, 1 March. after acknowledging their dependence, they declared their the Duke "cheerful submission to all such laws, statutes, and ordi- of York. nances which are or shall be made by virtue of authority from" his royal highness; whose rights under the king's patent they would forever maintain, and whom they be- sought " to accept of this address, as the first-fruits of this General Meeting, for a memorial and record against us, our heirs and successors, when we or any of them shall fail in our duties."*
The New York code thus promulgated at the Hemp-
* Theda, li , 1-15. 43. 48; Col. Doc., iii., 91, 260; N. Y. IL. S. Coll., i., 307; il. (ii.), 32; Jura, Low. Council of N. Y., i., Int., v .; Thompson, i., 132, 136, 382; if., 324, 525, 327; 16" xof. ST. 13. 1:1-175; Dunlap, ii., App. xxxvi. ; Bolton. ii., 180; Smith, i., 41 ; Chalmers. 1, :: , 5 -. 50%. The duke's in-tructions, which Nicolls exhibited at Hempstead, were not temadel in the New York provincial archives, as was his commission : ante, p. 18, note.
Address to
70
HISTORY OF THE STATE OF NEW YORK.
Cuar. IT. stead meeting is generally known as "THE DUKE's LAWS."
1665. ": The Duke's Laws."
It was arranged in an alphabetical order of subjects, like the New England codes. A very general analysis of its provisions is all that can now be attempted.
Courts.
:
Jurymen.
The Court of Assizes -- as an existing institution-was to meet in the city of New York once a year, on the last Thursday in September. But, in pressing capital cases, the governor and council might issue commissions of Oyer and Terminer. Inferior courts of Sessions, composed of the justices of the peace, and in which any counselor might preside, were to be held three times a year in each rid- ing of Yorkshire. Trials by jurymen, who were not to exceed seven, except in capital cases, were provided for. Arbitrators might be appointed in small causes between neighbors. Whenever the law was silent in any case, the Sessions were to remit it to the next Assizes, where mat- ters of equity were to be decided and punishments award- ed " according to the discretion of the bench, and not con- trary to the known laws of England."
Each town had a local court for the trial of small causes under five pounds, which was to be held by the constable and six overseers, and from which there was an appeal to the Sessions. Eight " men of good fame and life" were to Overseers. be chosen as overseers for each town by a majority of the freeholders. Four of these overseers retired at the end of Constable. each year, and from them a constable was to be annually chosen, on the first or second of April, by the frecholders, who was to be confirmed by the justices at the next ses- sions. The constable and overseers had power to make local ordinances in the several towns.
Sheriffe.
A high-sheriff over Yorkshire was to be annually ap- pointed by the governor from each riding in rotation, and also an under-sheriff or high-constable in each riding. Jus- tices of the peace were to continue in office during the gov- ernor's pleasure. But the governor and council might, by special warrant, displace any officer within the government "for neglecting of his office, or other notorious misdemean- or and misbehavior."
Rater.
Each inhabitant was to contribute to public charges in Church and State according to his estate. Assessments were to be made every year, after the first of June, by the
71
RICHARD NICOLLS, GOVERNOR.
officers in each town. Provision was made for the en- CHAr. IT. forcement of the rates imposed; and all the plantations within the government were "fully comprehended in this 1665. law."
The tenure of lands was to be from the Duke of York. All persons were required to bring in their old grants and take out new patents from the governor, upon the seal- ing of which a fee was to be paid. After the first of March, 1665, no purchase of lands from the Indians was Lands. to be valid unless the governor's leave was obtained, and the savage owner acknowledged satisfaction before him, upon which a grant was to be made by the governor and recorded in the secretary's office. All conveyances in the several ridings were also to be recorded in New York.
No barter with the savages in ammunition, fire-arms, Indians. strong liquors, or furs, was allowed without the governor's license. All harm done by the English to them, or their cattle, or corn-lands, was to be promptly and justly satis- fied, as fully " as if the case had been betwixt Christian and Christian." But no Indian was to " be suffered to Powow, or perform outward worship to the devil, in any town with- in this government."
There was no particular Protestant denomination more Religion. favored than any other in the province. The English Episcopal Church was not established. The Reformed Dutch Church, by the articles of capitulation, preserved its ancient ecclesiastical system. But in every parish a church Churches. was required to be built, the expense of which, and of the maintenance of its minister, was to be provided for by the church-wardens, appointed yearly by the overseers and con- stables. No minister was to officiate within the govern- ment but such as should produce testimonials to the gov- ernor of his having "received ordination, either from some Protestant bishop or minister within some part of his maj- Ministers. esty's dominions, or the dominions of any foreign prince of the Reformed religion." Thereupon the governor was to induct such minister "into the parish that shall make presentation of him as duly elected by the major part of the inhabitants householders." Each minister was to preach every Sunday ; and on the fifth of November, the Sunday; and holi- anniversary of the gunpowder treason ; on the thirtieth of dayz.
72
HISTORY OF THE STATE OF NEW YORK.
CHAP. II. January, when King Charles the First was beheaded; and 1665. on the twenty-ninth of May, when King Charles the Sec- ond was born and restored to the throne. He was also to pray for the king, queen, Duke of York, and the royal family, baptize the children of Christian parents, and mar- ry persons " after legal publication or sufficient license." No congregations were to be disturbed during divine sery- ice ; " nor shall any person be molested, fined, or imprison- ed for differing in judgment in matters of religion who profess Christianity."
Freedom of religion.
Negro Slavery.
Negro slavery was recognized; but servants were pro- tected from tyranny and abuse. No Christians were to be kept in bond slavery except those sentenced thereto by authority, "or such as willingly have sold or shall sell themselves." All servants were prohibited from trading or trucking " any commodity whatsoever." If servants ran away, justices and constables were authorized to press men, horses, and boats, at the public charge, and bring them back by force.
Militia.
All males above sixteen years old, except certain exempt persons, were subject to military duty. Enrollments, the supply of arms, the appointment of officers, and the pun- ishment of offenders were provided for. In each town there were to be four days of training every year; and in each riding a general training of all the towns once a year. Once in every two years there was to be general training of all the soldiers within the province. No person was obliged to bear arms beyond the limits of the government ; but volunteers might be raised by beat of drum to assist the neighboring English colonies. All defensive or vin- dictive wars against the Indians were to be maintained by a general assessment on each town.
Capital offended. In many respects the duke's capital laws followed those of the New England colonies. Denying the true God, murder, treason, kidnapping, the striking of parents, and some other offenses, were punishable with death. But witchcraft and blasphemy were not included. There were Other reg- numerous regulations respecting the administration of es- ulations. tates, boundaries of towns, brewers, births and burials, con- veyances of lands, surgeons and midwives, children and servants, marriages, laborers, orphans, pipe-staves and casks,
73
RICHARD NICOLLS, GOVERNOR.
s :ilors, weights and measures, the destruction of wolves on CHAP. II. Long Island, and wrecks and whales. Inn-keepers were not allowed to charge "above eight pence a meal, with 1665. small beer," and were always to have a supply of "strong and wholesome" malted liquor. No mares were to be car- ried out of the government to other plantations without special license. Cattle and horses were to be marked with a letter which distinguished each town on Long Island and Westchester. Every town was to provide a pair of stocks and a pound; and a pillory was to be erected in each place where the Courts of Sessions were held.
The code was intended to be ultimately the law of the Operation whole province, and several of its provisions went into gen- eral operation at once; but many of them were evidently applicable only to Long Island and its neighborhood. The inhabitants of the Valley of the Hudson, most of whom were Dutch, hardly understood the yet strange English tongue. Only by degrees could the institutions which they derived from Holland, and under which they had lived so long, be safely altered. Nicolls, therefore, prudently ab- stained from enforcing the new code in New York, Esopus, Albany, and Schenectady. From the original manuscript deposited in the office of the Provincial Secretary at Fort James, copies and translations were made for the several towns on Long Island and Westchester. It was not until more than a century after the "Duke's Laws" had be- come obsolete that they were first printed as historical curiosities .*
Upon the adjournment of the Hempstead meeting, Coun- p lor William Wells, of Southold, in the East Riding, was commissioned by the governor to be high-sheriff of York- 11 Merch. shire. Captain John Underhill, of Oyster Bay, who had pointed. Wwen so prominent in the affairs of New Netherland, was appointed high - constable and under-sheriff of the North is March. Riding ; and similar appointments were made for the oth-
* ('. 1 bor., ill., 101, 183, 220; Chalmers, i., 50G; Wood, 88-90; Thompson, i., 133-150; 1 stor. I+ ii. N. Y. H. S. Coll., ii., 33; Daly's Introduction, 21-25; Dankers's and Sluy- try . Journal. 166. The Duke's Laws, copied from the transcript in the Easthampton ! whererk's office, deposited there on 24 June, 1665, are printed in the first volume of N. 1 lht. A.r. Coll., 305-428, published in 1911. There is a copy in the Secretary of State's , " "> a! Ahany, approved by the Duke of York, and certified by his secretary, Matthew #: n, which was probably brought over by Governor Lovelace in 106S. A much-needed ro plati nof all the laws of New York previous to 1021 has been, for several years, prom. out ly Mi. George II. Moore.
of the code.
Officers af
74
HISTORY OF THE STATE OF NEW YORK.
CHAP. II. er ridings. Daniel Denton, of Jamaica ; John Hicks, of 1665.
22 April.
Hempstead; Jonas Wood, of Huntington; and James Hub- bard, of Gravesend, were appointed justices. Underhill was also made surveyor general of Long Island. All these appointees had been delegates to the Hempstead meeting, and, by thus promptly favoring them, the governor expect- ed to silence their murmurs .?
May. Race- course at Hemp-
stead.
Nicolls's visit to Hempstead was the immediate cause of the establishment of a race-course on Long Island. To improve the provincial Dutch or Flemish breed, which was better adapted to slow labor than to fleetness or display, the governor directed that a plate should be run for every year. The ground selected for the course was in the town of Hempstead, on a part of the great plain, about sixteen miles long and four broad, which was covered with fine grass like the English downs, and where could be found "neither stick nor stone to hinder the horse heels, or en- danger them in their races." For many years this remark- able tract was known as "Salisbury Plains." The race- course itself was named "Newmarket," after the famous English sporting ground, and it long continued to be the favorite annual resort of the governors of New York and the farmers of Long Island.t
6 April. Albany affairs.
Captain John Manning, the commander of the garrison at Albany, was now commissioned as schout, with instruc- tions similar to those of the schout of New York. Not- withstanding the Duke's Laws, the municipal affairs of Al- bany continued to be managed as they had been under the Dutch, by commissaries elected by the people, and con- firmed by the governor. Excepting some differences be- tween the townspeople and the soldiers there and at Esopus, there was little to disturb their tranquillity.#
Thus occupied in arranging his government, Nicolls had been unable to act as a fourth commissioner to the New England colonies. His colleague, Cartwright-while con- ceding that the duke's deputy had work enough at New York, where "the bare hearing of impertinences, without
13 April.
* Deeds, il., 16, 17, 10, 20; Gen. Ent., i., 115; Dunlap, ii., App. xxxv .; Wood, 150; Thompson, i., 130; il., 151, 350 ; Riker's Newtown, 70; Bolton, i., 150, 180; an'e, vol. i., 536, 671, 728 ; N. Y. IL. S. Coll. (1869), 76.
t Thompson, i .. 271, 272; il., 63; Dunlap, i., 119; Prime's L. I., 71; Denton's New York (Gowan's ed ), 6, 31, 55 ; Burnaby, in Pinkerton, xiii., 739; Oldmixon, i., 275.
# Patente, 1., 155 ; Col. Doc., iii., 94, 117, 143.
75
RICHARD NICOLLS, GOVERNOR.
the framing of laws, the ordering of the soldiers, the gain- CHAP. II. ing of the Dutch, the governing of the English, the regu- 1665. lating of the trade, and the providing of necessaries, is more than enough to trie one" -- urged that the chief busi- ness of the commissioners was now at Boston, where, " though they should refuse us all three, having a preju- dice against us, you, whom they respect and honor, might be prevalent with them, because acceptable to them." Finding that his presence was indispensable at Boston, Nicolls appointed Captain Robert Needham to command 20 April. in New York during his absence. As the new code had Boston. Nicolls at just gone into operation, Captain Topping, High-sheriff Wells, and Secretary Nicolls, all members of the Court of Assizes, were appointed to sit with the justices of the East, 21 April. North, and West Ridings of Yorkshire at their approaching sessions, and explain the laws to them .*
The visit of Nicolls to Boston was unavailing. Massa- May. chusetts, "presumptuous and refractory," repelled the royal The royal commissioners, who " could obtain nothing that might be sionera re-
commis- satisfactory to his majesty's desires." Finding that their1 pelled. time and labor were lost upon men "misled by the spirit of independency," Carr, Cartwright, and Maverick went eastward to Maine, and Nicolls hastened back to New York, 26 May. at any rate with a better reputation for prudence and dis- cretion than was accorded to either of his colleagues.t
The first care of the governor, after his return, was, in obedience to the duke's instruction, to make the city gov- City cov. ernment, which had remained unaltered for nearly ton New York months since the capitulation, " conformable to the custom changed. of England." To do this in the most conciliatory manner, he selected, as the first mayor of New York, Captain Thomas Willett, of Plymouth, who, while he was an Englishman, was highly esteemed by the Dutch. He had been one of Stuyvesant's negotiators at Hartford in 1650, and had acted with discreet friendship at the surrender. So much did his prudence on the Albany expedition impress Cartwright, that he wrote to Nicolls from Boston, "I believe him both a 4 Feb.
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