USA > New York > Westchester County > Origin and History of Manors in the Province of New York and in the County. > Part 2
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2.
How the Indian Title vested successively in the Dutch West India Company, the British Crown, and the Independent State of New York.
The nature and extent of the Indian ownership, and the foundation of the title to the domain of the State of New York were settled by the principles on these subjects very early adopted and carried into effect by the different European nations which di-
1 Moulton's Hist. N. Y., 27.
vided between themselves this western world. These principles formed the basis of a conventional inter- national law which has been always observed in America. They define with precision, to whom the Indians could dispose of their rights to dominion and to the soil, and to whom they could not. They have been laid down by Chancellor Kent and Chief Justice Marshall in the highest courts of this State and the United States.2
These decisions are so admirably treated by Moul- ton, in that most valuable fragment of his "History of New York "' which is all that his early and la- mented death has left to us, that his statement a little abridged will be almost all that is necessary to say on this subject here.
"Upon the discovery of this continent the great na- tions of Europe, eager to appropriate as much of it as possible and conceiving that the character and re- ligion of its inhabitants afforded an apology for con- sidering them as a people, over whom the superior
DAVID PIETERSEN DE VRIES.
genius of Europe might claim an ascendancy, adopted, as by a common consent, this principle,-
"First, that discovery gave title to the government, by whose subjects, or under whose authority it was made, against all other European governments, which title might be consummated by possession. Hence if the country be discovered and possessed by emigrants of an existing acknowledged government, the pos- session is deemed taken for the Nation, and title must be derived from the sovereign in whom the power to dispose of vacant territories is vested by law.
"Secondly, Resulting from this principle was that of the sole right of the discoverer to acquire the soil from the Natives, and establish settlements, either by pur- chase or by conquest. Hence also the exclusive right cannot exist in government and at the same time in private individuals ; and hence also,-
"Thirdly, The Natives were recognized as rightful occupants, but their power to dispose of the soil at their own will to whomsoever they pleased, was
"In Goodell v. Jackson, 20 Johnson, 693, and Johnson & Graham's Lessee v. McIntosh, 8th Wheaton, 543.
3 P. 301, &c.
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HISTORY OF WESTCHESTER COUNTY.
denied by the original fundamental principle, that discovery gave exclusive title to those who made it.
"Fourthly, The ultimate dominion was asserted, and, as a consequence, a power to grant the soil while yet in the possession of the Natives. Hence, such do- minion was incompatible with an absolute and com- plete title in the Indians. Consequently they had no right to sell to any other than the government of the first discoverer, nor to private citizens without the sanction of that government. Hence the Indians were to be considered mere occupants, to be protected indeed while in peace in the possession of their lands, but with an incapacity of transferring the absolute title to others.
" Fifthly, The United States have acceded to those principles which were the foundation of European title to property in America. The Declaration of In- dependence gave us possession, and the recognition of Independence by Great Britain gave title to all the lands within the boundary lines described in the treaty that closed our revolutionary war, subject only to the Indian right of occupancy, and we thus be- came possessed of all the right Great Britain had, or which before the separation the provinces possessed, but no more. Hence the exclusive power to extin- guish that right, was vested in that government which might constitutionally exercise it. Therefore each State before the Union in 1789, and each State since, (within its circumscribed territorial jurisdic- tion) possessed, and possesses, by its government the exclusive right to purchase from the Indians.
"Sixthly, That the allodial property in the territory of this State, or that which has become exclusively vested in the United States, is solely in the govern- ments respectively, and that no foreign grant or title can be recognized by the Courts of Justice of this State, or of the United States.
"Spain though deriving a grant from the Pope, was compelled to rest her title on discovery ; Portugal to the Brazils; France to Canada, Acadia, and Louis- iana ; Holland to the discoveries of Henry Hudson. England, though she wrested the Dutch possessions on the ground of pre-eminent right, asserted it on the same principle, tracing her right to the discovery of the Cabots, though they merely sailed along the coast of America, and extending her claim from 34° to 48° of north latitude. This principle of ultimate domain, founded on discovery is recognized in the wars, nego- tiations, and treaties of the European nations claiming territory in America. Such were the con- tests of France and Spain as to the territory on the north coast of the Gulf of Mexico; between France and Great Britain from their nearly contemporaneous settlements, till the treaty of Paris in 1763, when France ceded and guaranteed to Great Britain, Nova Scotia or Acadia, Canada and their dependencies. The cessions and retrocessions of the European powers in America were all made while the greater portion of the territories so ceded and retroceded were in the
possession of the Indians. This was also the case when the right of ultimate dominion was asserted by actual settlement. The charter to Sir Humphrey Gilbert, renewed in that to Sir Walter Raleigh ; the charters of James I. successively vacated, surrendered, annulled, or renewed, to the North and South Vir- ginia Companies, until that to the Duke of Lenox and others in 1620; were all granted while the coun- try was in the occupation of the Indians.
"Under the last mentioned patent, viz. to the Plym- outh Company, New England has, in a great meas- ure, been settled. They conveyed to Henry Rosewell and others in 1627, the territory of Massachusetts, who, in 1628, obtained a charter of incorporation. Having granted a great part of New England, the Company made partition of the residue in 1635, and surrendered their charter to the Crown. A Patent was granted to Ferdinando Gorges for Maine, which was allotted to him in the division of property. New Hampshire was granted to John Mason. Before the surrender by the Dutch of their colony, now New York, in 1664, the King of England had granted to the Duke of York, the country of New England, and as far as the Delaware Bay. The Duke subsequently transferred New Jersey to Lord Berkeley and Sir George Carteret. And yet, during these events, a great proportion of the country was in possession of the Indians. In 1663 the Crown granted to Lord Clarendon and others the country lying between the 36th degree of North latitude and the River St. Mary's; in 1666 the proprietors obtained a new char- ter granting to them that province in the King's do- minions in North America from the Atlantic to the South Sea. Thus our whole country, the soil as well as the right of dominion, was granted while occupied by the Indians. However extravagant the pretension may appear, of converting the discovery of an inhab- ited country into conquest, if the principle has been asserted in the first instance, and afterwards main- tained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land and cannot be questioned. . The law of conquest, founded in force, but limited by that humanity or policy which incorporates the conquered with the victorious, spares all wanton oppression, and protects title to property, whether the vanquished became in- corporated, or were governed as a distinct society, was incapable of application to the aborigines of this country. The tribes of Indians were fierce savages, whose occupation was war, and whose subsistence was chiefly from the forest. To leave them in pos- session of their country, was to leave the country a wilderness ; to govern them as a distinct people was impossible, because they were as brave and high spirited as they were fierce, and were ready to repel by arms every attempt on their independence. To mix with them was impossible. The Europeans were then compelled either to abandon the country, and all
37
THE ORIGIN AND HISTORY OF THE MANORS.
claim to their discovery, remain exposed to perpetual hazard of massacre, or enforce their claim by the sword. Wars, in which the whites were not always the aggressors, ensued. European policy, numbers, and skill, prevailed. As the white population ad- vanced, that of the Indians necessarily receded. The country in the neighbourhood of agriculturalists be- came unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil to which the Crown originally claimed title, being no longer occupied, was parceled out according to the will of the sovereign power, and taken posses- sion of by those claiming under it. Hence the abso- lute title and exclusive right of extinguishing that of the Indians having been vested in, and exercised by, the government cannot exist at the same time in pri- vate individuals, and was incompatible with an abso- lute and complete title in the Indians. The British government, which was then ours, and whose rights passed to the United States by, and at, the peace of 1788, asserted, and maintained, a title to all the lands occupied by the Indians in the British colonies in America, and the exclusive right of extinguishing their title by occupancy. These claims were carried to the line of the Mississippi by the terms of the treaty of 1783. Our title to a vast portion of the lands we hold originates in them. The United States therefore maintain the principle which has been received as the foundation of all European title in America."
By the treaty of peace, in 1783, Great Britain relin- quished all claim not only to the government, but to the soil, and territorial rights, of the thirteen Colonies as claimed by the American negotiators of that treaty, the boundaries of which collectively were fixed by its second article. And by that treaty all the powers of that government and its right to the soil passed to the Thirteen States, not as a single Sovereignty, but as thirteen Independent Sovereignties. But neither the Declaration of Independence, nor the Treaty, could give us more than we possessed by virtue of the for- mer, or to which Great Britain was before entitled.
New York, four years before the Articles of Con- federation were adopted and became operative (which did not occur till March, 1781), adopted a constitu- tion, at Kingston, on the 20th day of April, 1777; by the 37th Article of which (since reincorporated in all the subsequent State Constitutions), contracts for lands with the Indians in this State are made void unless sanctioned by the Legislature, and such pur- chases are declared to be a penal offense by a subse- quent act of the Legislature; the object being the protection of the Indians in the possession of their lands.
During her whole existence as a British Colony, a period of one hundred and nineteen years, New York was a Royal Government, a Province indepen- dent in all respects except her allegiance to the British sovereign, whose representative was the Royal
Governor for the time being. As such representative the Governor granted by patent all the lands which were granted in the Province, except those previously granted by, the prior Dutch government, the posses- sion of which by their owners was duly confirmed by the Articles of Capitulation under which the Dutch surrender of New Netherland was made in 1664.
By the thirty-sixth article of the first State Consti- tution of 1777, all these crown grants under, through, and by Provincial Governors, prior to October 14, 1775, were declared to be valid and incontestible, and were thereby confirmed. And this declaration and confirmation have been continued and adopted in all the succeeding constitutions of New York to the present time. Consequently a grant from the British Crown is the highest source of title in this State, and one which is irrefragable, and incapable of being affected adversely in any way by any legislative, or other, act of the State government, or any decision of any Court of this State, or of the United States.
3. The Dutch in New Netherland.
A brief statement of the dealings of the Dutch with their newly discovered country, before its colon- ization was actually begun, is necessary to a right understanding of the principles upon which that colonization was undertaken, and of the system of government, and laws, which that great nation estab- lished, in New Netherland.
And here let it be noted, that this name was New Netherland, not New Netherlands, as so often, and so wrongly, printed, written, and spoken. "Niew Ned- erlandt" was the term in Dutch. Adding a final "s" to the English translation, and calling it New Netherlands, is simply a pure New England vulgar- ism, and an utterly erroneous translation of the true name.
The Netherlands, in the plural, was the correct name in English of the United Provinces, from the fact that they consisted of seven Provinces, while Niew Netherlandt was but a single Province, not- withstanding its great extent, and hence was always spoken of, and written of, by the Dutch in the singu- lar number.
The announcement of Hudson's great discovery did not produce rapid results. The extraordinary success of the East India Company at that time and the enormous dividends it declared drew the general attention to the eastern, and not to the western world. A single vessel in 1610, the year after the return of the Half Moon, made a successful trading voyage to the "River of the Mountains," returning to Holland with a valuable cargo of peltries. Two Dutch navigators, Hendrick Christiaensen, or Cor- stiaensen, and Adrian Block, chartering a vessel commanded by Captain Ryser, next made a voyage to the new region. In the early part of 1613, Hendrick Corstiaensen, in the "Fortune," and Block, in the
i
38
HISTORY OF WESTCHESTER COUNTY.
Tiger, sailed again to the Manhattans, and ex- plored the adjacent coasts and waters. Other vessels also visited the bay and river, and all returned with profitable cargoes of furs. No trouble was expe- rienced with the natives, who were ready and willing to exchange their skins for the novel and attractive goods of Europe.
Block's vessel, the "Tiger," was accidentally burned in the Bay of New York in the autumn of 1613, and he therefore built another during the succeeding win- ter,1-the first ever constructed by white men in the waters of New York. It was a small yacht of only sixteen tons burden (English measure), which, with strange appropriateness, he named "the Onrust"-the Restless. In this yacht, in the summer of 1614, Block sailed through Hellgate and explored Long Island Sound and the adjacent coast as far east as Cape Cod, discovering the Housatonic, and Connecticut rivers, Narraganset Bay, and the island that still bears his name. He then first ascertained that Long Island was an island. The Connecticut river he ascended to a little above the present city of Hartford. He was the first European who sailed through the Sound, and the first white man who beheld the southern and eastern shores of Westchester County.
Corstiaensen finally determined to remain at Man- hattan to extend the Indian trade. Turning over his own ship to Block, who left him the Onrust, the latter returned to Holland. Corstiaensen built two fortified trading-stations, one on an island below Albany, the other at the south end of Manhattan Island, and visited and traded with the Indians of all the neighboring tribes. Three other vessels, the Little Fox, the Nightingale and the Fortune, under Captains John de Witt, Rhys Volkertssen and Cornelis Jacobsen May, respectively, visited the "River of the Mountains," exploring and trading with the natives, and those of the regions adjacent.
This trade, thus begun, was so profitable that it induced these navigators, and the owners of their ships, to apply to the States-General of the United Provinces for a grant of the sole privilege of trading with the new and pleasant land beyond the ocean. They presented a memorial to this effect, accompanied by the first map ever made of the region of New Netherland-a "Carte Figuratif," as they styled it- to the States-General in the autumn of 1614. The application met their approval, and on the 11th of October, in the same year, that sovereign body made a grant to the petitioners of the privilege sought, to run for the term of three years, from the 1st of Jan- uary, 1615. This grant is in the following words, and in it appears for the first time, as the name of the new region, the term " New Netherland."
"The STATES-GENERAL of the United Netherlands to all to whom these presents shall come, Greeting.
Whereas Gerrit Jacobz Witssen, antient Burgomaster of the City of Amsterdam, Jonas Witssen, Simon Morrissen, owners of the ship named the Little Fox, whereof Jan de Witt has been skipper; Hans Hon- gers, Paulus Pelgrom, Lambrecht van Tweenhuysen, owners of two ships named the Tiger and the For- tune, whereof Adriaen Block and Henrick Corstiaen- sen were skippers; Arnolt van Lybergen, Wessel Schenck, Hans Claessen and Barent Sweettsen, own- ers of the ship named the Nightingale, whereof Thys Volckertsen was skipper; Merchants of the aforesaid City of Amsterdam, and Pieter Clementzen Brouwer, Jan Clementzen Kies, and Cornelis Volck- ertssen, Merchants of the City of Hoorn, owners of the ship named the Fortuyn, wherof Cornelis Jacobssen May was skipper; all now associated in one company, have respectfully represented to us, that they, the petitioners, after great expenses and damages by loss of ships and other dangers, had, during the present year discovered and found, with the above-named five ships, certain New Lands situ- ate in America, between New France and Virginia, the seacoasts whereof lie between forty and fortyfive degrees of Latitude, and now called New Netherland : And whereas We did, in the month of March last, for the promotion and increase of commerce, cause to be published a certain General Consent and Charter, setting forth, that whosoever should thereafter dis- cover new havens, lands, places or passages, might frequent, or cause to be frequented, for four voyages, such newly discovered and found, places, passages, havens, or lands, to the exclusion of all others from visiting or frequenting the same from the United Netherlands, until the said first discoverers and find- ers shall, themselves, have completed the said four voyages, or caused the same to be done within the time prescribed for that purpose, under the penalties expressed in the said Octroy, &c., they request that we should accord to them due Act of the aforesaid Octroy in the usual form :
" Which being considered, We therefore in Our As- sembly having heard the pertinent Report of the Pe- titioners, relative to the discoveries and findings of the said new Countries between the above-named limits and degrees, and also of their adventures, have consented and granted, and by these presents do con- sent and grant, to the said Petitioners now united into one company, that they shall be privileged exclusively to frequent, or cause to be visited, the above newly dis- covered lands, situate in America between New France and Virginia, whereof the seacoasts lie between the for- tieth and forty fifth degrees of Latitude, now named New Netherland, as can be seen by a Figurative Map hereun- to annexed, and that for four voyages within the term of three years, commencing the first of January, sixteen hundred and fifteen next ensuing, or sooner, without it being permitted to any other person from the United Netherlands, to sail to, navigate, or frequent the said newly discovered lands, havens, or places, either di-
1 I. Col. Hist. N. Y., 12. I. O'Callaghan's Hist. of New Nether- land, 47.
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39
THE ORIGIN AND HISTORY OF THE MANORS.
rectly or indirectly, within the said three years, on pain of confiscation of the vessel and Cargo where- with infraction hereof shall be attempted, and a fine of Fifty thousand Netherland Ducats for the benefit of the said discoverers or finders; provided, neverthe- less, that by these presents We do not intend to prejudice or diminish any of our former grants or charters; And it is Our intention, that if any disputes or differences arise from these our concessions they shall be decided by ourselves.
" We therefore expressly command all Governors, Justices, Officers, Magistrates, and inhabitants, of the aforesaid United Countries, that they allow the said company peaceably and quietly to enjoy the whole benefit of this Our grant and consent, ceasing all con- tradictions and obstacles to the contrary. For such we have found to appertain to the public service. Given under our seal, paraph and signature of Our Secretary, at the Hague the xith of October, 1614."1
This exclusive charter expired by its terms on the first of January, 1818, and the company of merchants to whom it had been granted,-" the United New Netherland Company "-as they styled themselves, applied for its renewal. This the States-General re- fused, having in contemplation to charter a great military and commercial company for the West Indies similar to the great organization of that nature then existing for the East Indies. The object in view in both was the same, namely, to establish a power, which could, at the same time, maintain profitable foreign trade, and carry on military and naval enter- prises against Spain, thus in both ways crippling their hereditary enemy. In the summer of 1618, Hendrick Eelkens and his partners, by special per- mission of the States-General, sent their ship, the "Scheldt" to the Manhattans for a single trading voyage. In 1619 Captain Cornelis Jacobsen May, who had made the voyage, a few years before in com- mand of the "Fortune," sailed again in the ship "Glad Tidings," and explored the Bays of the Del- aware, and the Chesapeake. Returning in 1620, he and his owners applied to the States-General for a special charter in their favor, and Eelkens and his partners put in an opposing petition claiming such special charter for themselves on the ground of prior discovery. The States-General tried to compel these parties to settle their differences, and unite their interests, and appointed a committee upon the sub- ject. This committee sat for several months endeav- oring, after hearing both sides, to effect this object ; but finding it impossible, they so reported, and the States General refused to give either party the wished for prize. In less than seven months after this rejection, "the long pending question of a grand armed commercial organization was finally settled; and an ample charter, (bearing date the third day of June 1621) gave the West India Company almost
1 1. Col. Hist. N. Y. 11.
unlimited powers to colonize, govern, and defend New Netherland." ?
In the year 1619 Captain Thomas Dermer, a naviga- tor in the employment of Sir Ferdinando Gorges, one of the leading corporators of the "Council of Plym- outh " (as the Company chartered by James I. in 1606, was styled) who terms him " a brave stout gen- tleman," was sent in command of a ship of two hundred tons on a voyage to Monhegan, an island on the Coast of Maine some distance east of the Mouth of the Kennebec. One object of this voyage was to obtain a cargo of fish, another was to return to his home Squanto, one of the twenty-seven Massachu- setts Indians kidnapped, carried to Malaga in Spain, and sold as slaves, late in 1614, by Hunt, the master of one of the three vessels of Captain John Smith, which that famous explorer left behind him to com- plete her cargo on his departure from New England in July, 1614.3 .
By the good efforts of some benevolent monks of Malaga many of the kidnapped Indians were rescued from slavery, and eventually found their way back to America. One of these was Squanto, who on reaching London, was sent by Mr. Slaney, merchant and treasurer of the Newfoundland Company to that island. There Dermer met him, on touching at the island on his way to England on a previous voyage, and carried him back to that country, as the easiest way of returning him to New England. On this, his next voyage he carried Squanto along with him. On arriving at Monhegan, and leaving his vessel there to obtain her cargo of fish, he took the ship's pin- nace, an open, undecked boat, of only five tons, and with Squanto and two or three sailors departed for the home of his Indian friend. The unhappy sav- ages so wickedly kidnapped by Hunt were natives of Patuxet on the coast of Massachusetts Bay and its neighborhood, Squanto himself having been born at that place. Dermer left Monhegan on the 19th day of May, 1619, and in his letter to the Rev. Samuel Purchas, (which the latter published in the fourth volume of his "Pilgrimage," in 1625,) says, "I passed along the coast where I found some ancient plantations, not long since populous, now utterly void; in other places a remnant remains, but not free from sickness. Their disease is the plague, for we might perceive the sores of some that had escaped who described the spots of such as usually die, (evi- dently the small-pox). When I arrived at my savage's native country, finding all dead, I travelled a long days journey westward to a place called Nummastaguyt (a place fifteen miles west from Pa- tuxet) where finding inhabitants, I despatched a messenger a days journey farther west to Pocanaoket which bordereth on the sea, (now Bristol, Rhode Island); whence came to see me two kings, attended
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