Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
§ 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, etc. 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 of rebellion, insurrection, mutiny, and invasion.3 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.4 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.5 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 contrary to those of England were allowed; and taxes were to be levied by authority of a general assembly.6 The peace of Breda, in 1667, confirmed the title in the conquerors by the rule of uti possidetis.7 In the succeeding Dutch war the colony was reconquered; but it was restored to the Duke of York upon the succeeding peace of 1674.8
§ 113. As the validity of the original grant to the Duke of York, while the Dutch 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, 1674.9 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.10 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.11 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 proprietary.12 Upon the revolution of 1688, the people of New York immediately took side in favour of the Prince of Orange.13 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.14
§ 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.15 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 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;16 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 1697.17 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 historians18 a half century afterwards gave this exclusion the warm praise of being worthy of perpetual duration. And the constitution of New York, of 1777,19 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.20 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;21 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. 1 Chalmers’s Annals, 569, 570, 572; Marsh. Colon. ch. 5, p. 143; 2 Doug. Summ. 220, etc.
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.
3. 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.
4. Smith’s New-York, 31, 32, [10, 11.]; 1 Chalmers’s Annals, 613.
5. Smith’s New-York, 44, 45, [19, 20.]; 1 Chalm. Ann. 574; Smith’s New-Jersey, 36, 43, 44; 2 Dong Summ. 223.
6. 1 Chalmers’s Annals, 575, 577, 579, 597; Smith’s New-Jersey, 44, 48.
7. 1 Chalmers’s Annals, 578; 2 Doug. Summ. 223.
8. 1 Chalmers’s Annals, 579; 1 Holmes’s Annals, 364, 366.
9. Smith’s New-York, 61, ; 1 Chalm. Annals, 579.
10. 1 Chalmers’s Annals, 579, 580.
11. 1 Chalmers’s Annals, 581, 583; Smith’s New-York, 123, 125, 126, [72,75] 12. 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.
13. 1 Holmes’s Annals, 429; Smith’s New-York, 59.
14. 1 Chalm. Annals,585, 590,591,592.
15. 1 Holmes’s Annals, 435; Smith’s New-York, 127, [75,76]; Acts of 1691.
16. 1 Holmes’s Annals, 435; Smith’s New-York, 127, [75, 76]; Prov. Laws of 1691.
17. 1 Holmes’s Annals, 434; Province Laws of 1691; Smith’s N. York, 127, ; 2 Kents Comm. Lect. 25, p. 62, 63.
18. Mr. Smith.
19. Art. 42.
20. 2 Kent’s Comm. Lect. 25, p. 62, 63.
21. 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.