"History of New York State 1523-1927"
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Long before New Netherland passed to the English, the Dutch authorities must have been well aware of the significance of colonial happenings; they must have seen that colonial importance was inexorably pointing to English supremacy in America In the first decade of colonization the Governor of the English colony (Plymouth) bad had to exercise extreme caution in his negotiations with the Dutch, who were numerically stronger; but between 1629 and 1640 25,000 Protestants crossed to New England, while comparatively few Dutch crossed to New Netherland. The English, indeed, began to reach out into Dutch territory, Long Island, in the forties; and in the next decade Stuyvesant must have been often perplexed at the ominous shrinkage of Dutch governmental power on Long Island. In that part of New Netherland the English towns overshadowed the Dutch, just as the neighboring English colonies domineered over New Netherland; and New England was inclining more and more to side with the belligerent English towns of Long Island.

John Scott had been one of the disturbers of the peace. Stuyvesant had, indeed, imprisoned him for inciting Long Islanders to rebellion, but in 1663-64 Scott was again on the island, spreading disaffection. It appears he had gone to England after the Restoration, had petitioned King Charles II to bestow upon him the government of Long Island, and had returned as one of three commissioners, instructed not merely to examine into English titles upon Long Island but to consider the question of the "intrusion" of the Dutch and their disregard of English law. Scott prevailed upon Connecticut to annex the whole of Long Island; but when he visited the English towns of western Long Island he found that the Quakers, Baptists, and other dissenters of those towns were just as averse to rule by Connecticut as by New Netherland. They dreaded Puritan rule, indeed, more than Dutch. So when they heard that King Charles had given the whole of Long Island to the Duke of York the five English towns resolved to set up an independent government temporarily, with John Scott as their president, until such time as the will of the Duke of York would be made known. For mutual protection, the towns raised an army of I 50 men; and this force, headed by Scott, took the field "to reduce the Dutch towns to obedience to the English king."

The army of Scott did not clash with that of Stuyvesant, and fortunately these two governmental heads met in conference. It was agreed that there should be no hostilities for twelve months; that the case of Long Island should be referred to the home governments; and that, meantime, pending settlement of its status, the English towns should be permitted to govern themselves as they pleased.

The status of Long Island was finally decided within the twelve months, but not in the way the Dutch had hoped. Indeed, the States General had ordered the English towns, somewhat peremptorily, to renew their allegiance to New Netherland. At about the same time Connecticut claimed Long Island, and seemed likely to get it had the English Government itself not taken a hand. It happened in this way. James, the Duke of York and Albany, received letters patent on March 22, 1664, from his brother, King Charles II The instrument granted him proprietary right to not only Long Island, but to the whole of New Netherland as well. Certain other territory was included, and the royal brothers had, it seems, ulterior designs on New England also. So, having letters patent to what he anticipated would prove a lucrative territorial possession, and being of somewhat slender purse, the Duke of York hastened his plans to profit by the grant. In April, 1664, four ships of war, carrying a force of 300 or 400 men, under the command of Colonel Richard Nicolls, sailed from England for Boston. It was represented in Amsterdam that this force was sent "to reduce the New England colonies to obedience and uniformity in state and church"; and the Duke of York was not disinclined to let the Dutch think so. In Boston, however, the expedition was differently viewed; in fact, the English colonies were asked to cooperate with Colonel Nicolls and his fellow commissioners-Sir Robert Carr, Sir George Cartwright, and Samuel Maverick-in an attack on New Netherland. Rumor of the coming of the English fleet reached New Amsterdam in July. There was consternation for a time, but soon afterwards Stuyvesant received reassuring despatches from the Amsterdam directors of the Dutch West India Company, conveying the Amsterdam impression of the true motive of the Duke of York. So, calm was restored in governmental circles of New Netherland. The shock was all the more unnerving, therefore, when, in the next month, the English fleet entered New York waters with belligerent designs against New Amsterdam and the province.

That England, in a time of peace, should thus pounce upon the possession of another Nation seems indefensible. Of course, there is a reason-a justifiable one, as the English see it, and other people cannot form an opinion on the subject without informing themselves as to the bases of claims to sovereignty in America put forth by rival European Nations. As these conflicting claims entered 'importantly into land-title disputes between individuals of New York Province and New York State, it seems fitting to give a little space at this point to the subject

The explorations of Spanish navigators need not be considered; but, during the seventeenth century. France, England, and Holland clashed, each asserting positive claim to what is now New York territory. The French claim was based on the early explorations and settlement of the River St. Lawrence region, and the explorations of Samuel de Champlain in northern New York. Verrazzano was in New York waters in 1524, commissioned by the King of France, though one historian^[42] was of the opinion that the voyage, if made at all, was made in the service of Henry the Eighth of England. On the other hand, Cartier's voyages of 1534 and 1535 were undoubtedly in behalf of France; and subsequent French expeditions, down to that of Samuel de 'Champlain in 1609, when he penetrated far into New York, strengthened claims made' by France that French sovereignty should be supreme in North America.

Holland's claim rested upon the discovery of New York Bay and the Hudson River by Henry Hudson in 1609, and upon subsequent colonization. The United Provinces of the Netherlands claimed all the country lying between the Connecticut and Delaware rivers, and the land drained by them, their navigators and traders having been the first to ascend these rivers and their tributaries, and to settle upon their shores.

The English claim seems to have been best based. Henry VII gave to the Venetian John Cabot "the right to discover western lands"; and he, accompanied by his three sons, sailed westward, in due course reaching the western continent. The Cabots raised the English standard on the eastern coast of Labrador on June so, 1497. In the next year they followed the coast line from Labrador to Mexico, John Cabot dying during the voyage. Subsequent English expeditions were in New York and Delaware bays before the coming of Henry Hudson, an Englishman employed by the Dutch Government, in 1609. The settlement of New England might feasibly 'be dated from 1607, when the West of England Company sent two ships, under Raleigh Gilbert and George Popham, from England with colonists to establish a settlement in the' new land. They settled at the Sagadahoc (Kennebec), Maine, in August of that year. True, the surviving colonists were glad to return to England in the next year; and the abandonment might be taken as cancelling the occupational priority. Still, the Pilgrims reached Cape Cod in 1620, beginning settlement three years before the first permanent settlement was made at Albany by the Dutch, though trading posts had been established at several points a decade or so earlier. The English King, James I., had been quite' positive of the right of the English, and the patents granted to the English companies by the Crown left no room for Dutch colonization, save as English subjects or at the expense of the English companies. Hence we read that the English colonies protested to the English Government, and the latter protested to the Dutch Government "against this unwarrantable invasion of English territory." Of course, the Dutch authorities were just as positive of Dutch right to settle in the land lying between the territories named in the grants of the two English companies However, the political situation of the homelands governed the colonial policy, and, in the constantly changing fortunes of European Nations during the next forty years, a period in which the enemy of one year might become the ally of the next, the colonial question could not come up for final decision. In consequence, the Dutch remained in possession of New Netherland, although the English colonies, for a generation, had been strong enough to have ended the controversy by ousting her, had they felt so disposed.

During this period of occupation, there had necessarily been very many land transactions between the Dutch provincial authorities and individuals. The French, of Canada, had also made vast grants of land on both sides of Lake Champlain, thus complicating the situation. It was therefore only to be expected that, when the English entered into possession of the province in 1664 and considered that all prior land grants were without proper basis, land suits would begin to clear doubt as to the title of eminent domain. "The entire question turned on the point whether England had annexed this territory by prior discovery, or whether by conquest and invasion it had been reduced to an English dependency. If the former contention were tenable the English common law was paramount and had, from the date of discovery, been the law of the land. If, however, it be conceded 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 adverse 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,"^[43]

While it is a fact that since 1664, when the first formal English occupation of New York began, the English common law has generally controlled the decisions of New York courts,^[44] there is no doubt that the terms of capitulation of New Netherland, to Colonel Richard Nicolls in August, 1664, gave the Dutch holders of landed estate clearer title than they otherwise would have had, as squatters. But even as squatters, some had been long enough in occupation to acquire a landed right. Some other phases of the local situation explain why Roman Dutch law was to some extent recognized in New York Province, even though the English common law became paramount. The terms of surrender of New Amsterdam provided some recognition of Dutch institutions and customs, the papers stipulating that "the Dutch here shall enjoy their own customs concerning their inheritances; that no judgment that has passed any judicature 'here shall be called, in question; that all inferior civil officers and magistrates shall continue as they are (if they please) until the customary time of new elections, and then new ones to be chosen by themselves, provided such new chosen magistrates shall take the oath of allegiance; and that all differences of contracts and bargains made before this day by any in this country shall be determined according to the manner of the Dutch." It seems that these guarantees were never deliberately repudiated by the Duke of York's Governors "On the contrary, the Dutch law continued to be administered by Dutch methods, and in the Dutch language, in certain of the purely Dutch districts, like Albany and Esopus, until the reoccupation of the province by the English in November, 1674," after it had been reconquered by the Dutch in August, 1673, and held under Dutch rule for a few months by the Dutch naval council.

English administration of the former Dutch province does not seem to have strictly followed the capitulation terms of 1664, but much happened between that time and 'the beginning of the second English period, in 1674, to affect the status of the Dutch. In 1665 war broke out between the English and the Dutch home Governments, and although the English Governor in New York had, in February, permitted the burgomasters and schepens of New Amsterdam and other places to stand for reelection and had permitted, the Dutch court to be reestablished in the capital, thus indicating that the Duke meant to live up to the terms of surrender, he had had to recognize a few months later that the change in the European situation demanded a change in colonial policy. In that time of war he could hardly have left the local control of the few fortified places in any but English hands Although within a year of the signing of capitulation papers the English Governor departed from the spirit, if not the letter, of the terms of surrender, and abolished the New York City Court of Burgomasters and Schepens and created in its place an English municipal court, the records of his administration show that he protected the interests of the Dutch in America more scrupulously than they were cared for by the Dutch Government itself. Indeed, the Dutch of the former 'New Netherland seem to have been forsaken by their country-men, for in neither of the treaties signed between the English and Dutch Governments-the Treaty of Breda in 1667 and that of Westminster in 1674-was any express reservation made in favor of the Nicolls guarantees of 1664. Hence these subsequent treaties between English and Dutch authorities were considered to have nullified the agreement of 1664. At least, so the English contended; and as thenceforth they were dominant in the province, the English common law naturally became paramount. Nevertheless, Roman Dutch law was never quite stamped out by succeeding systems. Even a century after the surrender of New Amsterdam, the Dutch of the province still considered that the articles of surrender were in force, and, as Cadwallader Colden remarked, that any breach of them would be an "injustice to them."^[45]

After England's entry into New Amsterdam in 1664 the change of Government in New Netherland was effected without extraordinary commotion. It was a peaceful entry. The ordinary affairs of the capital, New Amsterdam, were hardly disturbed. Indeed, life for the Dutch of New Amsterdam, which now became New York, was more placid than it had been for some years. "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 endeavored to avoid unduly disturbing local affairs in the Dutch communities, and, for some time after the coming of the English, the municipal affairs of New Amsterdam and Fort Orange (Beverswyck), Esopus (Wiltwyck), the group of Dutch towns in Kings County, and the settlements on the Delaware, went along almost unchanged. The Dutch were not disposed to take willingly the oath of allegiance to the English Crown, but in other respects seemed to be more contented than the English of the essentially English towns of Long Island. The latter, perhaps, had some reason for dissatisfaction. When the English fleet had appeared in New York waters, in August, 1664, the English settlers had rallied in armed force, prepared to aid in the subjugation of New Amsterdam. Although Colonel Nicolls entered into possession without the firing of a shot, and in any case could probably have taken the place without assistance, the militant English towns of Long Island naturally expected that their loyalty would be rewarded, and that in the new order of government they would have privileged place. Nicolls promised them as much. Proclamation issued by him at the end of August, from Utrecht Bay, and "scattered broadcast" among the Dutch towns, promised protection to all who would submit. "Forasmuch as his majesty hath sent us, by commission under his great seal, among other things to expel or reduce under his majesty's obedience all such foreigners as have without his majesty's leave or consent seated themselves amongst any of his dominions in America, to the prejudice of his majesty's subjects and the diminution of his royal dignity," reads the proclamation of Nicolls and his fellow commissioners, "We, his Majesty's Commissioners, declare and promise that whosoever, of what nation soever, will, upon knowledge of his proclamation, acknowledge and testify themselves to submit to this his majesty's government, as his good subjects ought to do, shall be protected by his majesty's laws and justice, and peaceably enjoy whatsoever God's blessing and their own honest industry have' furnished them with, and all 'other privileges with his majesty's English subjects. We have caused this to be published that we might prevent all inconveniences to others, if it were possible; however, to clear ourselves from the charge of all those miseries that may any way befall such as live here and will not acknowledge his majesty for their sovereign-whom God preserve."

The commissioners had promised to meet delegates from the English towns on September 4, at Gravesend. They accordingly met Winthrop and other Connecticut magistrates also attending. Nicolls, in their presence, published the royal letters patent, and demanded submission of Long Island to his authority. To the inhabitants who lived east of the Dutch towns, the question was not one of passing from Dutch to English government, for they were already nominally within the jurisdiction of Connecticut. As Winthrop, on behalf of Connecticut, now recognized that the king's will was that the jurisdiction of Connecticut over any part of Long Island should cease, they were willing that it should. Whereupon, Nicolls promised that all civil officers appointed by Connecticut in the transferred territory should continue to act, but under him as the Duke's deputy, "until a convenient season served to convene deputies from all the towns on the island, when and where laws were to be enacted and civil officers established." In this promise the English seemed to see that their privileges under royal government would be important ones. Therefore, Long Island submitted willingly to the authority of the Duke of York, volunteer forces from its eastern towns joined others from New England, and all marched through Amersfoort and Midwout toward Brooklyn, prepared to cross at the ferry and with the English regular soldiers to attack Fort Manhattan. After the surrender had been accomplished without bloodshed, the militia units were dismissed, with the thanks of the commissioners. Colonel Nicolls addressed a letter to Captain John Younge, of Southold, who commanded the Long Island militia, asking him to list all who had rallied "for their king and country," so that they might be "suitably rewarded." He promised that deputies from the Long Island towns should "in convenient time and place be summoned, to propose and give their advice in all matters tending to the peace and benefit of Long Island."

Very soon afterwards the Provincial Council was organized by Governor Nicolls. Captain Matthias Nicolls became Provincial Secretary, and with Captains Robert Needham and Thomas Delavall, two of the commanders of the English expedition, and two Long Island residents, Thomas Topping, of Southampton, and, William Wells, of Southold, constituted the Council. This body, as well as having general governmental responsibility, was, it seems, the highest judicial court and was charged with the drafting of the legal code which was to be enforced throughout the Duke's proprietary province, and which was to be submitted to a convention of English representatives of Long Island towns. It was not until winter had come that the status of Long Island was finally settled by the inclusion of the whole of it in New York Province. Then, "to conciliate its inhabitants." Colonel Nicolls addressed a letter to Howell and Younge bringing up the subject of Long Island deputies to a Provincial Assembly, but stating that "as soon as the weather should permit" he would "notify them of the time and place of meeting." Meanwhile, he wished the existing municipal administrations to continue in office.

While Governor Nicolls, with the assistance of members of the Court of Assizes,^[46] made it his "whole business to prepare a body of laws," the Long Island towns became increasingly impatient. The English Governor had, it seemed, treated the Dutch residents with greater consideration than the English. The Dutch had at first refused to take the oath of allegiance; yet when informed that its terms would be considered as in no way infringing or nullifying any of the articles of capitulation, they no longer hesitated, even Stuyvesant taking the oath. The Dutch magistrates in the Dutch places were still in control of the municipal government. The city of New Amsterdam, now New York. had, on February 2, 1665, elected burgomasters and schepens for another year. These new city officers were confirmed in office by Nicolls, and "announced to the commonalty" in the old Dutch way "after the usual ringing of the bell." All of the officers were Dutchmen,^[47] except Allard Anthony, who, however, had long been a favored municipal official under Stuyvesant. Jeremiah van Rensselaer, the Patroon, had been confirmed in his patroonship (which was almost a province in itself) merely by renewing his patent under the Duke of York and taking the oath of allegiance; Albany and Esopus had been informed that the inhabitants there "should enjoy all the articles of surrender" made at New York; the English commander sent to reduce the Swedes in the Delaware region had been rebuked by Nicolls for making too rigorous a conquest, and reminded by Nicolls "that we came to serve his majesty and not our own ends." A vessel belonging to the Dutch West India Company had been permitted to go to and return from Holland with merchandise, and the city authorities of New York had been so evidently satisfied with the future prospects for the Dutch in New York, that Burgomaster Steenwyck had been prompted to write to the Duke of York, praising Nicolls as a "gentle, wise, and intelligent" Governor, under whose fostering care they hoped to "bloom and grow like the cedar on Lebanon." These and other evidences of consideration for the Dutch, and the lack of consideration of, or tardiness in fulfilling promises made to, English communities of the former New Netherland, tended to make the Long Islanders disconsolate.

However, on February 8, 1665, Governor Nicolls addressed a communication to each of the towns on Long Island, declaring that in discharge of his "trust and duty to settle good and known lawes within this government for the future" and receive their best advice and information in a general meeting," he invited each town to send two deputies, chosen by a majority of the taxpayers, to such a general meeting, or convention, to be held at Hempstead on the last day of February, 1665. He expected the delegates, or deputies, to be "the most sober, able and discreet persons" that the towns could choose, and . to produce in convention documents showing the boundaries of their towns, and to bring with them certificates of their election as deputies, "with full powers to conclude any cause or matter relating to their several towns." Westchester was also invited to send delegates, but invitations were not extended to the municipalities of New York, Albany, Esopus, Bergen, and other places.

Accordingly, on February 28, thirty-four delegates gathered at Hempstead, sixteen Dutch and English towns on Long Island sending deputies, and Westchester sending two also.^[48] These towns were within what the Governor and Council had decided should be the bounds of a new English county, or shrievalty, to be known as Yorkshire, and divided into three ridings.^[49]

Governor Nicolls opened, the convention, the General Meeting as the delegates chose to call it. by reading the Duke's patent and his own commission. He told the delegates that they should first settle their local differences, as to town boundaries, after which they would be able to consider "a body of general laws hereafter to be observed," which "he had prepared." This legal code^[50] was delivered to the delegates, and eagerly perused by them. They found it to be compiled chiefly from the codes of New England, "with abatement of the severity against such as differ in the matters of conscience and religion." This was satisfactory, but the delegates found fault with many other parts of the code. Those from the towns which had until recently been under Connecticut jurisdiction were especially disappointed. They had interpreted earlier promises made by Nicolls as indicating that an improved Puritan form of government would be established in New York. The people of Southold wished all civil officers to be elected annually by the freemen; that all military officers should be chosen by the soldiers; that no magistrate should have "any yearly maintenance," and that no taxes should be levied that had not been approved by a majority of the deputies of a General Court. The Duke of York's code made no such provisions. Therefore, the delegates, in convention, offered several amendments, some of which were accepted by the Governor, who, however, said it was absolutely necessary to establish a system of county rates, and that to permit them to choose their own magistrates would be directly contrary to his instructions. He exhibited that part of his instructions from the Duke of York "wherein the choice of all officers of justice was solely to be made by the governor"; but he pointed out to the delegates that by this provision they were assured "that a Parliament of England can neither make a judge nor justice of the peace." Finally, the Governor made it clear that it was not possible for him to allow them a greater share in the, government than his commission and instructions, which were before them for their perusal, permitted, and that they "must go to the king" for any expansion of privileges.

The delegates thereupon realized that they were not, in fact, a legislative body, convoked to make laws as popular representatives, in accordance with the will of the people, but were merely agents of the Duke of York, called together to accept laws already prepared by the Duke's chief representatives, the Governor and Council. Disillusioned and dissatisfied, they, nevertheless, had no option but to accept the code submitted and hope that the royal proprietor, or his chief representatives, would in the future consider and accept such amendments of the code as they, the delegates, might propose So, on March 1, the delegates passed the only act that was possible in this convention; they adopted a loyal address to the Duke of York. In this memorial they acknowledged their dependence, and declared their "cheerful submission to all such laws, statutes, and ordinances which are or shall be made by virtue of authority from" the Duke, whose rights they would forever, maintain, and whom they besought "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 "Duke of York's Laws," or the Nicoll's Code as it is otherwise called, thus promulgated at the Hempstead General Meeting, or convention, were arranged after the order of a modern digest, the subjects beginning with Absence and ending with Warrant; "but the arrangement under the various headings is unscientific, and it is necessary to read practically the whole code to ascertain the law relative to any particular subject." The courts to function under the code were: Assizes, the highest court; Sessions, a county court; and the Town, or Constable's Court.

The code did not expressly provide for a Court of Assizes as the supreme judicial tribunal, but its appellate jurisdiction was set out therein, and a clause fixed its sessions. The Duke's Laws prescribed the holding of one annual session of this court on the last Thursday in September, at New York City. It was somewhat after the plan of the Dutch supreme judicial court, though the Court of Assizes was not so much the executive voice as under the old system which made the Council of the Director-General the court of ultimate judicial appeal. The Court of Assizes, while composed chiefly of the Governor and his Council, also seated two justices of the peace of each of the judicial districts, or ridings. The justices of the peace, who may perhaps be properly classed as the representatives of the people, thus equalled, or outnumbered, the representatives of the government, at court sessions. Indeed, on at least one occasion (October 6, 1680) the Court of Assizes was formidable, having in all thirty-nine members, the normal bench being increased, in this case, by inclusion of municipal dignitaries of New York City and Albany. The Court of Assizes was made less cumbersome and tardy in operation by the right accorded to the Governor and council of issuing commissions of Oyer and Terminer for the prompt trial of pressing capital cases. And, besides its annual session, the Court of Assizes might be called at any time to hear and determine civil and criminal cases which required a speedy despatch. Appeals from its judgments might be taken to the King in council.

The territorial jurisdiction of the Court of Assizes was coextensive with the Duke's possessions, which included the Pemaquid country ( between the St. Croix and Kennebec in Maine), Martha's Vineyard, Nantucket, Fisher's (now Newcastle) in Delaware, New Jersey (at the outset), and also, of course, New York proper, as far north and west as Schenectady. The Court of Assizes had original jurisdiction in all criminal cases, and in civil actions for the recovery of more than twenty pounds, in addition to its appellate authority. "It was also made a vehicle, a veritable lit de justice, for promulgating and recording the ordinances of the Duke and his council in England, and those of his deputy (the Governor) and council here." Trial was to be by jury, yet it seems that the Governor possessed extraordinary power, for in at least one case the proceedings of the Court of Oyer and Terminer show that sentence was actually pronounced upon the criminal before he had been tried, the sentence indeed being decided upon by the Governor and council before the commission of Oyer and Terminer, for trial by jury, was issued; and the instructions that accompanied the commission of Oyer and Terminer were so explicit that the jury seemed to have no other course than to find the accused guilty.

The Courts of Sessions were to function three times yearly in each riding of Yorkshire. The court was to be composed of the Governor, the Deputy-Governor or any member of his council, as presiding justice, and of a number of justices of the peace drawn from the residents of the riding, but commissioned by the Governor and council. If the Governor or some one of the councillors should be absent, the senior justice would preside, and would pronounce the decrees or sentences of the court. Jurisdiction, in civil cases, was between five pounds and twenty pounds; and the court had criminal jurisdiction in all but capital cases. No appeal lay from their findings in civil cases involving less than twenty pounds, except "where there is a dubiousness in the expression of the Law." Whenever "the law is silent in any case," the sessions were to remit it to the next Assizes, "where matters of equity were to be decided and punishments awarded 'according to the discretion of the bench and not contrary to the known laws of England'."

A High-Sheriff^[51] was appointed. His authority extended over the three ridings of Yorkshire, and the incumbency was for one year, the Governor, in making the annual appointment, being expected to choose from each riding in rotation. In addition, each riding was to have a deputy-sheriff, or high-constable. The justices of the peace were to continue in office during the pleasure of the Governor; but the Governor and council might, by special warrant, displace any officer within the government "for neglecting of his office, or other notorious misdemeanor or misbehavior." The justices, or the high sheriff issued all writs or warrants, except in the case of special warrants from the Governor. The clerk of the sessions certified to the sheriff before the sitting of the court what, and how many, cases were entered for trial thereat; the sheriff then issuing warrants for jurymen to the constables of the several towns of the judicial district; and the constables notified so many of the town overseers as might be required to attend as jurors. Talesmen might be selected by the Court from persons attending the court, or from inhabitants of the town in which the session was held. The jury was to be composed of not less than six nor more than seven men, "unless in special cases upon life and death, the Justices shall thinke fitt to appoint twelve." The jury was required to find all fact, according to the evidence, the justices directing the jury in points of law. Matters of apparent equity the Bench might determine. In cases where the law was obscure, the jury might return a verdict contingent upon a later determination of the point of law.^[52] In case any juror might require advice concerning any case, he might consult "any particular man upon the bench, or any other whom (he) they shall think fitt to Resolve and direct (him) them before they give in their Verdict." Except in capital cases, the verdict of the majority of the jury disposed of the case at issue; protest by the minority was not permitted, and the revealing of dissenting votes of the jury was punishable by fine. Undoubtedly, the Duke of York's laws, in this vital question of jury, were out of harmony with the constitutional rights of Englishmen.^[53] Nevertheless, the proceedings of the Courts of Sessions probably impressed the average inhabitant, i. e., if pompous ceremony meant anything to the layman. The crier was an awesome functionary, and the command Silence! dared not be ignored. Moreover, criticism of a finding by the court was contempt, punishable "at the next Court of Sessions or Assizes."

Town government was based more upon the New England plan. Each town had a local court, for the trial of minor cases, up to five pounds. Each town at first was to have a governing body of eight "men of good fame and life," who were truly elected at town meeting by a majority of the freeholders. Four were to retire at the end of a year, and four more were to be elected to succeed them; thereafter the overseers were to remain in office for two years. One of their number, chosen by themselves and confirmed by the justices of the riding, was to be constable for one year. The constable was to be the highest local officer, and, with six overseers, was to hold the Constable's or Town Court, and also make the local ordinances. The constable and overseers had right to make assessments for church and town purposes.

This system, of course, was not operative in the Dutch communities outside of Yorkshire, the observance of the terms of surrender of New Netherland complicating jurisprudence in New York. It developed the anomaly of a government functioning under two legal systems which could not be merged without conflict in some of the vital principles. It was probably the intention of the Duke's advisors to eventually make the Duke's laws enforcable throughout the proprietary province; but it was hard to bring people who had grown under one system to take willingly to the other. For instance, the Dutch objected to trial by jury, preferring their system of settlement by arbitration, or by decision of the judges. Again, primogeniture, an English custom quite different from that of Holland, made no headway among New Yorkers, who rigidly held to the Dutch customs in respect to inheritance. The Dutch method of making wills by oral declaration before a notary, or by written instructions put in his keeping, could not be stamped out; and in many other ways Dutch methods, or some very similar, were to be found incorporated in provincial or State practices of later times.

The English supervision of the Dutch within the province was very lenient and some of the Dutch communities actually petitioned to be brought under the Duke's Lawe, which they preferred to their own. From 1674 until 1683, the Duke of York's laws were in force. The Dongan code then established in turn gave way, in 1691, to a better English code, which, with some modifications, remained in effect until the end of the provincial period. Nevertheless, it is difficult to change the customs of a people by statute or ordinance; and traces of Dutch influence are still to be found in some of the laws and customs of New York.

The general course of government by the English Governors was dictated to some extent by local conditions, but influenced more by European affairs and National exigencies. Governor Nicolls, for instance, in 1665, became aware that England and Holland were at war, and that strong Dutch naval forces were on the high seas, doing damage to English possessions, and seemingly stronger than, or at least not inferior to, the naval forces of England. Governor Nicolls was aware that the Dutch Grand Pentionary, De Witt, had demanded the return of their American province, and that the Dutch admiral, De Ruyter, might descend upon New York at any time. Therefore, although the Dutch of the former city of New Amsterdam had, in February, 1665, elected burgomasters and schepens to govern the city for another year in the old Dutch way, Colonel Nicolls deemed it more prudent to institute Anglicized municipal government in the provincial capital without delay. Early in June of 1665 Governor Nicolls, by proclamation, made known to the people that upon mature deliberation and advice, he had found it necessary to "revoke and discharge the forms and Ceremony of Government of this his Majesties towne of New Yorke under the names, style or styles, of Schout Burgomasters & Schepens." The proclamation thus put an end to burgher government in New York City. King Charles had written to Governor Nicolls and his colleagues in the American colonies, enjoining them "to use all possible diligence for their security"; the Duke of York had directed that his province should be put "into a posture of defense against the Dutch;" and Clarendon had written to Nicolls, warning him to "expect all the mischief the Dutch can do him."

Burgher government had already been ended in New York City before these final dispatches reached Nicolls, in June, from Carteret. The new municipal court, which was to have jurisdiction over the whole of Manhattan Island, was formally organized on June 15, in the Stadt Huys, Thomas Willetts becoming mayor, Thomas Delavell, Oloff Stevensen van Cortlandt, Johannes van Brugh, Cornelis van Ruyven and John Lawrence becoming the Aldermen, and Allard Anthony, a former burgomaster, becoming sheriff. Johannes Nevius, who had been secretary of the old Schepens Court, became clerk of the new Mayor's Court, which for more than 550 years was destined to be the municipal court of New York City. It may be pointed out that four members of the new court were connected with the old. Although trial was by jury on June 27, when the first session of court opened,^[54] the proceedings for long afterwards were recorded in both English and Dutch. On June 27, it was resolved that "trials by jury should be on the first Tuesday of every month" thereafter, this seeming to indicate that the Dutch practice of arbitrating differences was not to be wholly abolished. Even in the record of the first case tried by jury in New York County, that of Doughty vs. Hinxman and Winslow, is seen an instance "of a compulsory reference of a part of the issues, a common enough practice among the Dutch, but practically unknown in English procedure." The Mayor's Court of New York City was not merely a town court; it was a Court of Sessions, with jurisdiction equal to those of the ridings of Yorkshire.

In the same National emergency Governor Nicolls dealt with the courts of Albany and the Esopus. John Manning was appointed sheriff of the Albany district. He was in command of Fort Albany, and presumably had judicial responsibilities like those of his successor, Captain John Baker, who, in September, 1665, was commissioned to be "chief military officer," and instructed "in capital cases or treaties with the Indians" to "sit in the fort, with the schout and commissioners of Albany; but he was to have no concern with the ordinary civil courts."^[55] He was especially urged to "avoid all disputes with the inhabitants," with whom he was advised to live "as brothers together." Nicolls visited Esopus in September, 1665. At this place there had been trouble during the winter between soldiers and townsmen. A more arbitrary Governor may have dealt sternly with the Dutch leaders, but Nicolls "continued" Beekman and the other officers of Wiltwyck. Captain Daniel Brodhead was appointed "chief officer of the militia in the Esopus," and given responsibilities like those vested in Baker at Albany. Brodhead, however, was to see that the village authorities were respected, and seek "rather to reconcile differences than to be head of a party." The Governor's attitude toward the Dutch of New Netherland is well indicated by his instructions to Captain Brodhead: "Preserve yourself single and indifferent as to justice between soldiers and burghers." "Give not too easy an ear to private whisperers and insinuators, which may overrule your judgment and beget a prejudice in your mind against the Dutch. For, though I am not apt to believe they have a natural affection to the English, yet, without ill usage, I do not find them so malicious as some will seek to persuade you they are." Apparently the burgher system of government had not yet been taken away from Albany and the Esopus. Nevertheless, Nicolls reported to the Lords of Plantations, of which home department Lord Clarendon was the head: "All causes are tried by Juries, no Lawes contrary to the Lawes of England"^[56] (being in force).

The Court of Assizes went into session, according to the requirements of the Duke of York's Laws, in September, 1665, the session lasting from September 28 to October 4. It was attended by the Governor and his council, and also by the justices of the three ridings of Yorkshire. The fact that magistrates of Albany and Wiltwyck (Esopus) did not attend is further indication that the Dutch courts still functioned in these places. Several amendments of the Duke's laws were considered at this first session of the Court of Assizes; and they were adopted and promulgated, subject of course to approval by the royal proprietor.

After disposing of legislative business, the Court of Assizes sat as a judicial tribunal. The first case was that of John Richbell vs. the Town of Huntington. Governor Nicolls presided, and a jury of seven heard the case. Mr. John Rider was attorney for plaintiff and "Mr. Leveredge" for defendants. The jury found for defendants, but "the Court having heard the case debated at large" demurred, and, after examining "further into the equity of the cause and upon the nature and serious consideration, do find" the plaintiff to be the rightful owner of the parcel of land in dispute. "And all persons are hereby required to forbear giving the said Pl't or his assigns any molestation in the peaceful and quiet enjoyment of the premises." Another interesting case heard at the first session was a charge of witchcraft, or rather of murder, by sorcerous evils. The accused were Ralph Hall and his wife, Mary, both of Seatalcot, Long Island. Under the Duke's laws witchcraft could not be punished in the extreme manner of the New England systems, but the inhabitants were just as superstitious, and when they heard that the Halls "by some detestable and wicked acts commonly called witchcraft and sorcery," practiced upon the person of George Wood, had caused the latter sicken and languish and finally to die, they preferred a charge of murder against the couple. The jury, however, found "nothing considerable" to charge against the man. As to Mrs. Hall, however, they had "some suspitions," though not sufficient "to take away her life." Whereupon the court bound the accused to be of good behavior, "and to appear at every session of the court." In 1668, however, they were "released and acquitted from any and all recognizances."

The Court of Assizes, at its first session, ordered that all wills should be deposited in the Record Office in New York City thereafter, and in this office all land patents were thenceforth to be recorded. To enforce this provision of the Dukes' laws it was ordered that "all persons whatsoever who have any grants or patents of townships, lands, or houses within this government, shall bring in the said grants or patents to the Governor, and shall have them renewed by authority of his Royal Highness, the Duke of York before the beginning of the next Court of Assizes." A few days later, Governor Nicolls issued a patent to David Gardiner, confirming to him the grant of the Isle of Wight, or Gardiner's Island, which had been made to his father, in 1640, by the agent of the Earl of Stirling. Gardiner was, it is said, the first "considerable landowner" to meet the requirements of the English code. However, before the decree was generally recognized, by the English on Long Island as well as by the Dutch landowners elsewhere, some stern examples had to be made by the Governor.

The troubles Governor Nicolls had to face were not unlike those of the former Governors of New Netherland. There was considerable discontent on Long Island. Some towns positively refused to recognize the Duke's laws. Southampton, Southold and Easthampton would choose no local officers, and would pay no tax levies. Nicolls warned them that their action was in fact seditious; yet he tried to ease the way, realizing that the fomenters of the trouble were Howell of Southampton and Younge of Southold, both of whom were annoyed that William Wells had been made high sheriff of Yorkshire. The redoubtable Underhill, who seemed to be happiest when nursing a grievance, wrote from Oyster Bay, pointing out "the distempers of the people against the present form of government, by which they are enslaved under an arbitrary power," which might lead some to "hazard both life and estate in a mutiny and rebellion, rather than bear the burden of the public charge." The Governor, disappointed and annoyed that Englishmen should take such an attitude, denounced the complainants as traitors with whom he would act "vigorously."

The Long Island English "pined for a legislative assembly after the manner of New England." Moreover, they were mortified that their chosen representatives at the Hempstead General Meeting should have shown such abject servility as to adopt and sign a memorial to the royal proprietor accepting a ready-made code which few of them liked. Disaffection became so general during the summer of 1666 that Governor Nicolls, through the Court of Assizes, issued a decree to protect the deputies from further "slander."^[57] This did not end the reproachful and seditious utterances, but after a few of the principal townsmen had been fined or put in the stocks, the people soon began to realize that the government was not to be trifled with.

Another decree, issued at the same session of court, spread consternation among the Long Islanders. Towns as well as individuals were, by the decree, to lose all their landed estate unless the deeds were recorded, and new patents issued, at the Record Office in New York City prior to April I, 1667.^[58] Therefore, during the next few months, Neperhaem, Pelham, Westchester, Eastchester, Huntington, Flushing, Brookhaven, Easthampton, New Utrecht, Gravesend, Jamaica, Hempstead, Newtown, Flatlands, Bushwick, Flatbush and Brooklyn paid their fees and obtained new charters, confirming generally their old boundaries and "all the rights and privileges to a town within this government." Southold and Southampton were the only two towns that refused to comply with the law. They were not dealt with in the arbitrary manner threatened, and a few years later they also yielded.

The Governor's position was not an easy one. There were perplexities everywhere. The English were restless, but the Dutch were generally quiescent, though, of course, vigilantly watched, in that time of war. Not a ship came into New York with supplies for a year after Nicolls entered into possession, and the capital so was impoverished and Long Islanders lived so much from hand to mouth that supplies, or money for the public charges could only with great difficulty be collected in the province. The soldiers of the four garrisons had had only straw and canvas to sleep on since arrival, and Governor Nicolls had had to meet their sustenance needs out of his private purse. "For myself," he wrote home in April, 1666, "I am utterly ruined in my small estate and credit; and, which is worse, without very great supplies I shall not be able to secure or make an honest defense of his majesty's interest should we be attacked by a foreign force." His advice to Jeremias van Rensselaer, who claimed Albany as part of Rensselaerswyck, was therefore probably sincere. Nicolls advised Van Rensselaer "not to grasp at too much authority." "If you imagine," he said, "there is pleasure in titles to Government, I wish that I could serve your appetite, for I have found only trouble."

Richard Nicolls was an excellent Governor. By adroit diplomacy, he averted war between the French Canadian forces and his own in 1666, when a French force penetrated almost to Albany, ostensibly to punish the troublesome Mohawk Indians. Although signs of rebellion cropped out among the Dutch at Esopus, and Nicolls punished the ringleaders, he also dealt sternly with his own soldiers, who were not blameless. In this and other ways he showed that he desired to govern impartially and justly. "He did what he wanted to do," writes Mrs. Schuyler van Rensselaer; "he won the affections of the people confided in such difficult circumstances to his care"; and although he desired to be relieved of the governorship long before he was, he faithfully held to a tactful, loyal, considerate, and withal successful, superintendence of provincial affairs. Maverick, one of the royal commissioners, wrote of Nicolls that he had served in the province "with great reputation and honor"; had done "His Majesty and His Royal Highness very considerable service in these parts," having, "by his prudent management of affairs, kept persons of different judgments and of diverse nations in peace and quietness during a time when a great part of the world was in warrs." The Treaty of Breda brought peace between England and the Dutch in July, 1667, and confirmed England in the possession of the former New Netherland. The conclusion of peace became known in New York, by proclamation, on New Year's Day of 1668. Soon thereafter, Colonel Nicolls' request that another Governor be appointed was given attention, and his successor found in Francis Lovelace, second son of the first Baron Lovelace. When Colonel Nicolls sailed for England, on August 28, 1668, he bore an address from the freemen of New York to the Duke of York, "setting forth his good service and the peacefulness of the province." He left behind "a name which stands preeminent among the royal Governors in America for moderation, justice, and wise forbearance." In his four years as Governor, "he accomplished a work far in advance of anything that had ever been achieved by any of his predecessors," had "placed the colony upon a sound foundation," and had "proved himself to be a remarkable man of affairs, farsighted and statesmanlike, tactful and generous in his dealings with the people over whom he had been placed, but at the same time unswerving and determined in whatsoever he believed to be the best interests of the community. His praises have been sounded by every historian of New York."

As much cannot be said about his successor, Colonel Lovelace. During his five years as Governor of New York, he appeared in an unfavorable light, by comparison with the brilliancy of the Nicolls administration. Lovelace was of somewhat colorless character; manifested little initiative or energy, or was himself quite satisfied that Nicolls had already well laid the foundations of government. Like his predecessor, however, Lovelace found that the course of government is not always placid and enviable. The Dutch, in some parts of the province, were disconsolate. Their hopes that New Netherland would again come into its own had been blasted by the Treaty of Breda; and Lovelace did not manifest as intelligent an understanding of the Dutch, or as sincere an interest in them, as Nicolls had shown. The Dutch could not get along amicably with the English garrisons, and, although the English commander at Albany was removed, some of the Dutch preferred to leave the province altogether, migrating in 1670 to the Ashley River colony in North Carolina. However, the most prickly thorns on the governmental bush during the Lovelace administration were the English towns of Long Island. In 1669 they had refused to pay taxes levied for repairs to the fortifications at New York City, "because they had been denied . . . . the liberties due all Englishmen the right that no taxes could be levied except by their own representatives." The Court of Sessions, sitting at Gravesend, declared that the resolutions of the several towns were "false, scandalous, illegal, and seditious." Governor Lovelace ordered the town votes to be publicly burned. This was done, but it neither brought him the money he needed, nor decreased his difficulties. In the heat of the moment, when checked in his governmental measures, by a demand by the people for popular government, Governor Lovelace had indiscreetly ordered his council to "lay such taxes as may give them liberty for no thought but how to discharge them." Maybe the answer to this arrogant abuse of governmental authority is to be seen in the apathy of the English of Long Island in the emergency of 1673-when a Dutch fleet suddenly appeared in New York waters. The 'English were then at war with the Netherlands; nevertheless, the drummers who marched through the streets of New York, calling for volunteers to defend the city, did not stir any "martial ardor in the breasts of the citizens." Although all males, sixteen years of age and older, were by law liable to military duty, and each town had its militia unit, only a few of the militia captains of Long Island units responded to the call to arms sent out from Fort James. They had no companies to command, unfortunately; therefore, the first English period in New York ended with the Lovelace administration, ignominiously, in 1673, when a force of six hundred Dutch soldiers or sailors, from the Dutch ships of war, landed on the bank of the Hudson River, in the rear of Trinity Church on Broadway, and prepared to assault the fort which could not be defended.

Lovelace was out of the city at the time, but when, a few days later he indiscreetly' returned, he was placed under surveillance, and three days later had to 'bear the crushing indignity of being arrested for debt by the civil authorities of the city. Thereafter, until the departure of the Dutch naval commanders, the deposed Governor remained virtually under arrest. He was stripped of his last guilder when the naval authorities confiscated all his personal property; and the humor of the situation was no doubt lost upon him when then told that "if he would now pay what he owed, he would in six weeks be permitted freely to leave the country." He left the province eventually without harm having been done to his person; but he perhaps was a sadly disappointed man, fully convinced that his career had been wrecked by a mere chance turn of the wheel of fortune. The Dutch ships, in fact, had only come into New York Harbor to replenish their water supply, then perilously low; they had not thought it possible that the former Dutch province could be retaken so easily.

As to the functioning of the courts under the Lovelace administration, it seems that he interfered with court procedure oftener than his predecessor had. Smith, the historian, stated that Nicolls erected no courts of justice, and that he "would pronounce his verdict" in the manner of edicts to "be executed by the sheriffs whom he had appointed for that purpose." There is no doubt that a Court of Assizes did function, as a supreme judicial tribunal for the province, during the Nicolls period, and that a county court system was established in the Courts of Sessions of his time; also that the municipalities had either town or schepens courts, New York City having the greater privilege of a Mayor's Court.

The outstanding lawyer of the first English period was Matthias Nicolls, who served under Nicolls and Lovelace and was also later prominent under Andros and Dongan. Other early lawyers were John Rider, John Sharpe, Thomas Owen, Mr. Leveridge, Nicholas Bayard, and Mr. Bogardus. Many other names are recorded as "attorneys" in the minutes of inferior courts, though not all of them were learned in the law. Admission to practice was simple; all that seemed to be essential was that the applicant would pay the crier before whom he was sworn, and take' oath not to exact fees "above what shall be allowed by the Governor and Court," and not from both plaintiff and defendant of the same case. These temporary attorneys were drawn from "traders, factors for foreign merchants, land speculators, or, it may be, mechanics who, possessing a recognized talent for managing affairs, or for penmanship, or an easy volubility, were likely to be called on by their neighbors to act as conveyancers, attorneys, or advocates, as the matter in hand might require." However, the professional advocate was of better qualifications. He probably confined his practice to the Court of Assizes, to Courts of Oyer and Terminer, and to Courts of Sessions. The last named were 'held three times' in each year in each riding of Yorkshire, and as the sessions "were not to exceed three days in duration," and came in the first, second and third weeks of March, June, and December, the professional lawyers could practice in each Court of Sessions without difficulty. The justice chosen from residents in the three ridings could not sit in the court of any riding but his own, but the High Sheriff of Yorkshire had to attend all courts. Possibly the lawyers "rode the circuit" with him. Between times, the lawyers would centre their practice in the Mayor's Court of New York City, which sat weekly, with the Mayor as chief magistrate. Thus, Thomas Willett was head of this court for two years, 1665-67; Thomas DeLavell for one year (1666); Cornelis Steenwyck from 1668 to 1671; DeLavell again in 1671, and Matthias Nicolls in 1672. Thomas Lawrence was Mayor of New York in August, 1673, when the Mayor's Court had to give way temporarily to a revived Schepens Court, in which Vail Brugh, Luyck, and De Peyster, the burgomasters, had seats.

The records of the courts of the Delaware region indicate that the Dutch courts were still operating long after the Duke of York's Code had been brought into general operation. When Sir Robert Carr, in 1664, took possession of New Amstel it became New Castle. The Schepens Court was ' permitted to continue "for six months until His Majesty's pleasure be further known." The Schepens Court was still functioning in 1668, when Lovelace became Governor. In April of that year he made Captain John Carre commander of the colony of the Delaware and promulgated an ordinance making the said John Carre the chief magistrate. Further, he called "the Schout, Hans Bloch, Israel Helme, Peter Rambo, Peter Cock, Peter Alrichs, or any two of them," to act as Councillors to Captain Carre, "to prevent all abuses or oppositions in Civil magistrates." Further, he ordained: "That the laws of the government established by his Royal Highness be showed and frequently communicated to the said Councillors and all others, to the end that being therewith acquainted, the practice of them may also in convenient time be established.

An ordinance dated June 14, 1671, providing that constables might be appointed "as in the rest of his Royal Highness' dominions" indicates that even in the lowest local court burgher government still prevailed. In 1672, however, an ordinance erected the town of New Castle "into a corporation by the name of a bailiwick" and provided that the "office of Schout be converted into a sheriffalty." Peter Alrichs was appointed Bailiff-General of New Castle and the Delaware. In the next year the Dutch again came into possession of their former province, and Peter Alrichs became commandant, with authority over three Dutch courts, one at New Amstel, one at Upland, and one at the Whorekill. The Delaware courts were reorganized again in 1674 under the English authority, all the former officers and magistrates, except Alrichs, being continued in office. However,'the Duke's Code was still an unknown legal system on the Delaware, and evidently not in effect, for in September, 1676, Governor Andros found it necessary to order imperatively "that the books of Laws established by his Royall Highness and practiced in New York, Long Island and dependencies, be likewise in force and practice on this river." This indicates that the Duke's Laws were not effective in the Dutch communities at the head of navigation on the Hudson River either, the word "dependencies" being generally understood to refer to the Duke's outlying Maine settlement, and the several islands. Indeed, it is doubtful whether the Duke's Laws were ever enforced along the Delaware, for in 1677 the Court of New Castle wrote to Governor Andros: "Wee lykewise humbly desier that the sending of the Lawe Booke may not bee forgott; there being great occasion for the same." The book apparently was forgotten, for on July 17, 1678, they wrote, requesting "the new corrected Law-Booke and seal for ye office as heretofore promised."

Under the Duke's Laws capital punishment was provided for innumerable minor offences. For instance, any child under sixteen years of age, who raised a hand to strike its parent, might, upon the bare unsupported testimony of the parent, be put to death. Arson was punishable by death. Hog stealers, as first offenders, would have their ears cut off; burglars or highway robbers could be branded on the forehead for the first offence, severely whipped for the second, and put to death for the third offence. Still, a comparison of the Duke's Laws with any New England code of that period, or even with the English code, shows that it was more lenient than any. Indeed, even as late as the beginning of the nineteenth century death was the penalty for about two hundred offences under English law; and our own State code was stern by comparison with the Duke of York's Laws. While it was the law of the province the number of capital cases tried in New York City were few. Only one case need be referred to-that of Engeltie Hendricks, a Dutch woman, accused of infanticide. On September 13, 1666, she was sentenced to death, but was to receive twenty lashes with rods twenty-four hours before being "brought to the Townes Gate." She managed to escape from the jail, and was not apprehended until 1665. She was then hanged. In the "Records of New Amsterdam," Vol. I, 188, is a report, dated July 26, 1660, of an "Examination of William Fisher whether he had any conversation with Engel Hendrix, who is lately put to death for murdering her child." The sentence upon a negro who was involved in this woman's escape was "that he serve as public executioner for a period of five years or pay a fine." Apparently he did the latter. An indication of the disreputable class from which the hangmen were recruited is found in a letter from Jo. Clarke, "Ffrom ye Secretary's Office at ffort James the 28th day of January in the evening, 1672-3," addressed to "Captn. Silvester Salisbury, Governor at Fort Albany." The writer explained to the Albany commandant that "our Hangman, Ben Johnson," having been "taken in divers Thefts and Robberyes," and' found guilty, "scapd his neck through want of another Hangman to truss him up." He was fortunate, for his sentence was "only thirty-nine stripes at the Whipping-Post, loss of an ear and banishment."

The Treaty of Westminster concluded between England and Holland on March 6, 1674, finally ended Dutch sovereignty in any part of North America. It was a crushing blow to New Netherlands, but the Dutch Government had no option; its outlying province, New Netherland, had to be sacrificed to save the home provinces from possible extinction. Fortune' had favored the English, and soon afterwards King Charles II, of England, appointed Major Edmund Andros, "an officer of distinction," to receive the surrender of New Orange and New Netherland under the treaty.

That England's status in the former Dutch province was made clearer by the treaties of Breda and Westminster is indicated by the fact that the new patent issued to the Duke of York in June, 1674, gave him governing authority over not only British subjects within the territory, but also over "any other person or persons" living within the government. One would suppose that, ordinarily, the Government in possession or occupation would have authority over whomsoever might have residence therein. Possibly, the other person or persons were the Dutch who, by the terms of capitulation in 1664, had had a certain degree of independence from the general government.

The government under Andros was to be stiffened, but, as to the "formes of Justice," his instructions were to put in execution such lawes and ordrs" as he would find had "been established by Coll Nicolls and Coll. Lovelace, and not to vary from them but upon emergent necessities." So. on November 9, 1674, the day upon which the outgoing Dutch Governor, Colve, absolved the magistrates of New Orange from their oaths of allegiance, the incoming English Governor, Andros, proclaimed "the will of James regarding the rights and properties of the ceded province," and reestablished "the Duke's Lawes" as the legal code of the province. He declared "that the known Book of Lawes formerly establisht and in force under his Royall Highnesse government is now again confirmed by his Royall Highnesse the which are to be observed."

Accordingly the town and county (Sessions) courts again began to function, and where possible under the same officials as served Lovelace. "The two courts of sessions on Long Island and one for the towns of Esopus were revived." Sylvester Salisbury became High Sheriff of Yorkshire on December 9. Sheriffs of other judicial districts were Michael Siston for Albany, Thomas Gibbs for New York City, George Hall for the Esopus, and Edward Cantwell for the Delaware. These sheriffs were appointed in November, 1674, and energetic measures were taken to enforce the Duke's Laws throughout the province. In January, 1675, the first session of the reestablished Court of Assizes was held in New York. Of the inferior courts, the first to reorganize was the Mayor's Court of New York City, which began its first session on November 13, 1674, three days after Andros had ordered that the name of the city be changed from New Orange to New York, the fort at the same time becoming Fort James, instead of Fort Willem Hendrick. On the same day, Andros commissioned Matthias Nicolls as Mayor, John Lawrence as Deputy Mayor, and appointed William Dervall, Frederick Philipse, Gabriel Minvielle and John Winder as aldermen. All court records thereafter were to be in English; consequently, at the first session of the Mayor's Court "every paper offered was preserved in that language, except in the case of those Dutch or other foreign individuals who were too poor to pay for translation." The court procedure of the next ten years, however, again demonstrated that the customs and practices of a people cannot be changed at will by proclamation. Dutch modes of practices prevailed in the New York court "to a very considerable extent," though English forms were introduced. There was, of course, good reason for this. New York City remained predominantly Dutch, in population and sentiment. The leading merchants were Dutch, and the English were in a minority on the local bench, indeed, with two exceptions "the twelve immediate successors of Nicolls in the mayoralty were either of Dutch origin or had been residents of New Amsterdam under the Dutch." Therefore, although Andros ordered all trials to be by jury, the Dutch practice of referring cases to arbitration still continued in very general practice for many years.

In other respects Governor Andros was perhaps correct when, in 1678, he assured the Lords of Trade that the judicial system as planned had been brought into full operation, and that the "law booke in force" was that "made by the Governor & Assembly att Hempsted in 1665 and since confirmed by his Royall Highnesse."^[59] The English system of pleading then in vogue in England was introduced in the provincial courts by two English lawyers who arrived in New York in 1682. Thereafter the' English forms of procedure gradually made headway, but "did not entirely supersede those of Dutch origin until well into the first and second decades of the eighteenth century." Indeed, the particularly; Dutch custom of arbitrating cases continued, in disputed actions, until 1772, when it was regulated by statute enactment.

The Duke of York apparently was of the opinion that in the Cour of Assizes, the people had a General Assembly. Andros was oppose to legislative curb by a popular assembly, and the Duke agreed with him pointing out that the justices who attended the annual session of th Court of Assizes were the persons who, "in all probability would be theire (the People's) representatives if another constitucon were al bowed."^[60] Certainly the Court of Assizes was such a large bench that I might reasonably be pointed to as a Provincial Assembly. For instance thirty-one were seated at the session of October, 1680, including Si Edmund Andros, "who was a good lawyer," and Matthias Nicolls,whoh was a better. The latter was about to leave for England, so John West a New York lawyer, was appointed provincial secretary and clerk of th courts.

However, the people of New York did not look upon the Court of Assizes as a Provincial Assembly. They saw that other provinces ha legislative bodies. True, Andros was at odds with the governments of West and East Jersey and tried to assert the right of the Duke of York to these territories. He even arrested Carteret, the New Jersey Governor, and tried him in a New York court, which, however, acquitted Carteret. The discomfited Andros then referred the case to England but Carteret was upheld there, even though his case was against th King's own brother. All of which stiffened the resistance of the people of New York to the Government, thereby causing Andros to adopt measures that were more arbitrary and despotic. Eventually, the Duke of York was reluctantly forced to see that a change of officials was advisable, lest worse happen in the province.

Andros left New York on January 6, 1681, but a month or so before his departure, though some months after he had been relieved of the Governorship, the merchants of New York and the taxpayers in general had become positively defiant. The obnoxious import duty had expired by its own terms in November, 1680, and the merchants would not recognize a renewal. In fact, they had sued the collector of the port of New York for illegally detaining goods upon which tax had not been paid. "He was arrested, was brought before the Court of Assizes and charged with high treason, and sent to Britain for trial." This must have appeared distorted reasoning to the Duke of York, for the collector was only enforcing the will of the government.

Brockholst, the Lieutenant-Governor appointed by Andros, was then in charge of provincial affairs. And when, following this case the high sheriff of Long Island, John Young, drew up a petition, "praying for the early establishment of a General Assembly in New York like those of the Jersey provinces and in conformity with the constitutional rights of Englishmen," there was cause for apprehension in governmental circles. Brockholst wrote to England: "The people generally cry out for an Assembly. Authority and Magistracy is grown so low that it can scarce maintain the public peace and quiet of the government." The Duke of York could hardly fail to recognize, then, that, even if he considered his own purse, some degree of popular government must be extended to the people. So, although the next Governor, Thomas Dongan, did not come until 1683, one of the important missions entrusted to him was that of bringing into being an Assembly that would be representative of all the freeholders of the province.

It was apprehended that such a General Assembly would make changes in the Duke's Laws; nevertheless, the Duke's instructions to Governor Dongan were encouraging. He said: "If such laws shall be propounded as shall appeare to me to be for the manifest good of the Country in generall and not prejudiciall to me, I shall assent unto and confirme ym,"^[61] yet he made it quite clear that his right to veto any measure was still in force.

Colonel Dongan was commissioned on September 30, 1682, but did not reach New York until August 25, 1683. Anthony Brockholst was continued as Lieutenant-Governor; John Spragg became provincial secretary and clerk of the Court of Assizes; and Cornelis Steenwyck, as Mayor of New York, became chief magistrate of the courts of that city. On October 3, 1683, the Governor took his seat, as presiding judge, in the session then held of the Court of Assizes. It was its last session, and perhaps disposed of most pending matters, preparatory to the establishment of a new system of government.

At the close of this session, Governor Dongan issued notices convening a General Assembly. It was to consist of the eighteen representatives elected, in accordance with governmental decree, on September 13, 1683. The Assemblymen convened on October 17. Unfortunately, the records of this Dongan Assembly, the first legislative body organized in New York by some degree of popular vote, have not been preserved. From several sources the names of fourteen members of the Dongan Assembly have been gathered, but whether they all sat in the first session is not certain.^[62] The first session lasted three weeks, and fifteen acts were passed, the most sensational being "The Charter of Libertyes and Privilidges granted by his Royall Highnesse to the Inhabitants of New Yorke and its Dependencyes." This, which drew principles "from the immortal Magna Charta," was undoubtedly not liked by the Duke, though he did not at once make known his will in the matter. Fate decided for him, in placing him on the throne of England, succeeding his deceased brother, Charles II, in 1685. This important happening, of course, altogether changed his relationship to New York. He was no longer proprietor by royal patent, but ruler, by birthright, over New York and all other dominions of Britain. What James, Duke of York, may have accepted may have become positively obnoxious to James II, King of England. As a matter of fact, the charter which expressly declared that the supreme legislative authority, "under his Majesty and Royal Highnesse should forever be and reside in a governor, counsell, and the people meet in General Assembly," was objectionable to both Duke and King. As the Duke of York, James hesitated to state frankly his opinion, but as King of Britain James saw objectionable features in almost all clauses of the Charter of Libertyes and Priviledges. So the Charter came under the royal ban.

One of the important measures of the Dongan Assembly which did not come under the royal ban was "An Act to Settle Courts of Justice." By this act four distinct tribunals were created: a Petty Court, or Town Court, to function in every town, for the trial of small causes, fortnightly or monthly; a County Court, known as the Court of Sessions or Quarter Sessions, meeting quarterly or half-yearly in each county;, a Court of Oyer and Terminer and General Gaol Delivery, with original and appellate jurisdiction; and a Court of Chancery. The last was apparently intended to be the supreme court of the province. The act provided that the courts should "not be or remaine Longer in force than for the time and space' of Two Years and until the End of the sitting of the next Assembly after the expiration of the said Two Years." Thus, the Assembly wished to reserve to itself the power to meet, by further legislation, any adverse action by the Duke or his deputy, the Governor. The Dongan Laws, as those established by the Act to Settle Courts of Justice might be called, were amended even in Dongan's time, but not substantially, and "in the end became incorporated in the laws of the colony."

The second session of the First General Assembly was opened on October 21, 1684. Thirty-one acts were passed, the last being of importance to court history, for it abolished the Court of Assizes.^[63] The Second General Assembly passed six acts in its first session, which began on October 20, 1685, and continued until November 3 of that year. Adjournment was taken until September 25, 1686, but the Assembly was destined never again to meet. The King abolished the General Assembly altogether on June 16, 1686, and news of his action reached New York on September 14, eleven days before that on which the body was to begin its second session. Governor Dongan complied with the edict of the King by dissolving the General Assembly, by formal proclamation, on January 20, 1687.

Referring in more detail to the courts created by the Dongan Legislature: The Town Courts, which were to sit fortnightly or monthly, on the first Wednesdays, were to be conducted by three "commissioners" appointed by the Governor. Their jurisdiction extended to actions of debt or trespass, up to forty shillings. The Mayor's Court at New York (and the Mayor's Court at Albany from 1686) was not looked upon as a town court, by the way.

The county system was expanded, the old shrievalty of Yorkshire and other county divisions, bailiwicks, and so forth, giving way to new political divisions which organized the province into twelve counties.^[64] In each a Court of Sessions was to sit twice in each year, the court consisting of three or four justices of the peace, drawn from residents of the county. While in the town courts jury trial of the issues joined could only be had at the special request of either side upon payment of the proper cost therefor, all trials in the County Courts were to be by jury.

The Court of Oyer and Terminer and General Gaol Delivery was in fact a Circuit Court of Assizes, and was to function with one circuit judge and four or more justices of the peace. A regular term of this court was to be held in each county twice yearly, and, inasmuch as Governor Dongan appointed two circuit judges, Matthias Nicolls and Thomas Palmer, both of whom were barristers, it would seem that the province was divided into two judicial circuits. The province does not seem to ' have had a high sheriff under the new system, but each county had its sheriff, whose duty it was to meet the circuit judge and retinue upon their entrance into the county-town, and conduct the judge to his lodgings, which, according to the etiquette of the time, was not to be the same as that occupied by the lawyers. The Court of Oyer and Terminer had unlimited jurisdiction of criminal and civil cases, and generally acted as an appellate court.

The Court of Chancery, which took the place of the Court of Assizes and, indeed, assumed some of the functions of the Court of Sessions, was composed of the Governor and members of his council, the Governor haying power to depute or nominate in his stead "a Chancellour and be assisted with such other persons as shall by him bee thought fitt and convenient."^[65] The act creating the Court of Chancery gave only "a high-sounding but hated name to a body which, from the first, had assumed chancery jurisdiction,"^[66] the only effect of this act being to give legislative sanction to a jurisdiction which had hitherto been exercised as a prerogative of the Crown. Despite opposition, it remained so constituted to the end of the colonial period.

That successive royal Governors should insist upon the functioning of the Court of Chancery and the people be consistently opposed to it is not surprising, for it vitally affected the purses of both Crown and people.^[67] When its rulings were satisfactory to one class, they were displeasing to the other. However the Crown was in control until 1776, and the Court of Chancery continued as long. As a matter of fact, it continued longer, though for the benefit of the State instead of the Crown; and what arguments the Crown could find to justify its existence could be equally well used by the State from 1777 to 1847, when the Court of Chancery finally expired-at least under that name, for it thereafter was a branch of the Supreme Court. John Spragg, who was provincial secretary, was the first master of the Court of Chancery; his appointment was dated December 29, 1684; and at the same time he became registrar.

The Mayor's Court of New York was reorganized in 1684. At the request of the Mayor and Aldermen,^[68] the Governor, on January 14, 1684, appointed James Graham as recorder. On the next day "all the new magistrates went in a body to the Fort, where they were sworn into office by the Governor and Council, after which they returned to City Hall and opened court." The recorder took his seat on "ye right hand of ye mayor." John Tudor was appointed sheriff, and John West became clerk of the city of New York. James Graham was recorder of New York for the next seventeen years, except for one brief period. The Mayor's Court, which, by the new Dongan Charter, became the Court of Common Pleas, had jurisdiction up to twenty pounds sterling. It sat frequently as a municipal court^[69] and thrice yearly as a Court of Sessions. The Mayor and aldermen, to the number of four, also sat with the circuit judge twice yearly, as a Court of Oyer and Terminer; and, after the Dongan City Charter came into effect, the Recorder also had a seat on this appellate court. Whether they reviewed their own findings, in the lower courts, is not clear from the information at hand. In 1686 Albany also was accorded a city charter somewhat like that of New York.

One other court 'established by Dongan should be referred to. In a report which he made on February 22, 1687, to the Committee of Trade, Governor Dongan made reference to a new Court of Exchequer, which he called a Court of Judicature.^[70] There was need of such a court, to determine revenue cases, for the tax collectors of the province had but indifferently performed their duties. This was another of the unpopular courts, and did not function long, though in almost all cases where later courts sat as Courts of Exchequer, there was criticism. Chief Justice Atwood came into public odium and royal disfavor by certain exchequer-chamber business he disposed of irregularly, it was charged-in the Supreme Court in 1701. Governor Cosby also, in 1733, came under criticism by filing a bill against Rip Van Dam, conveniently using the Supreme Court as a Court of Exchequer; and in the Zenger case of the next year, the people more emphatically condemned exchequer proceedings in the Supreme Court. In 1742, however, the Court of Exchequer was, in effect, made a branch of the Supreme Court by an act then passed "for regulating payments of quit-rents and the partition of lands," the act clearing legal doubt by giving the Supreme Court jurisdiction. In 1766, Governor Moore, writing to the Lords of Trade, recommended the creation of a separate Court of Exchequer, but the Lords, while conceding the importance of establishing such a court, felt that at that time it was "a consideration of too great importance to be hastily taken up." No further development of the plan occurred during the English period, and to the end of the provincial period the Supreme Court had general cognizance of all matters in exchequer. Indeed, it still has such powers.

The Governor and Council were vested with three-fold judicial powers during the Dongan administration; its appellate jurisdiction was enlarged to £300 sterling, but cases involving more than that amount could be appealed to the King in Council. The Mayor's Court at Albany sat fortnightly at this period, and had jurisdiction up to twenty pounds.

Under the Duke's Laws, matters of probate were dealt with in the Courts of Sessions, and also in the Mayor's Courts; but after 1686 the Governor and provincial secretary took responsibility, Governor Dongan taking proof of the execution of wills and directing, or causing government officials to direct, the inventory and appraisement of estates. In 1691, Lieutenant-Governor Ingoldsby caused a clause to be inserted in all letters granted declaring "that the hearing of accounts, the granting of probates, the discharge of executors, and all cognate matters belonged to the Governor and not to the inferior judges." Wills were proved by the Provincial Secretary, certificate annexed to the instrument making it clear that the secretary "being thereunto delegated," had acted for his superior. The prerogative seal would be affixed to the papers, and the whole recorded in the secretary's office, the record, to be valid, having to be attested by the signature of the secretary. Gradually this department of the secretary's office developed into the Prerogative Office. Its records were styled the Registry of Prerogatives, and the entire department, in 1691, was denominated the Prerogative Court.

Still another court must be briefly referred to-that which dealt with admiralty matters. The first English Governors dealt with all admiralty proceedings, as matters within their own prerogative and under their general commission. Governor Andros, in 1678, had even wider admiralty authority, being commissioned to act as Vice Admiral "throughout the entire colonial government." He was also authorized to appoint a "Judge, Register and Marshall of the Admiralty." He did not act immediately in the matter, so the former method of issuing special warrants, when necessary, was continued, most of the admiralty cases being heard in the Mayor's Court of New York City. In practice it became evident that the Mayor's Court was the logical tribunal; so, on October 5, 1678, Governor Andros took his personnel for a Court of Admiralty from the officials of the municipal court. The mayor of New York, Stephen van Cortlandt, was appointed Judge of Admiralty, and it was decreed that his assistant judges should be the aldermen of the city. The city clerk, Wilham Leet, was appointed Register of Admiralty, and the city sheriff, Thomas Ashton, became Marshal of Admiralty. The outgoing mayor, it was planned, should thereafter be the ex officio Judge of Admiralty; outgoing aldermen were to take ex officio seats on the Admiralty bench. The plan does not seem to have been followed far, for though Thomas Delavell succeeded Van Cortlandt in 1679, the next Judge of Admiralty was Lucas Santen, in 1683, and he was collector, not mayor, of New York. In 1684 Thomas Palmer, a member of the Governor's council, became Judge of Admiralty; and in 1686 Circuit Judge Matthias Nicolls was appointed to the Admiralty bench. The next register after William Leet was William Nicoll, appointed in 1685; he became a member of the council. John Spragge, provincial secretary, became register in 1684. It therefore seems that Governor Dongan held the Admiralty Court more closely to his near officials. He created another Admiralty office, that of Advocate-General of Admiralty, and to this office he appointed John Tudor in 1684. In 1700 the attorney-general of the province became ex officio Advocate-General.

Governor Dongan's administration was good; indeed, he seems to have been the most liberal-minded Governor New York had during the provincial period. Dongan "had many arbitrary royal commands to execute," yet in all of his official acts a tolerant interest in the governed was seen. "The despot's heel was not shod with iron, nor was it stamped down too hard." As Duke of York, James could not, perhaps, so freely express his opinion and pleasure as he later could, as King; so Dongan's mild administration was borne. However, a sterner Governor than Dongan was eventually sent.

The change was not immediately made. Indeed, Dongan was, in 1686, recommissioned as Governor of New York by King James and he did well, both for his sovereign lord and for New York. Where he stumbled was in circumventing the aim of William Penn in the Susquehanna Valley. The gain was New York's, but William Penn had much influence with King James, and it is said that he prejudiced James against Dongan. Moreover, the French King had protested to King James against Dongan's encouragement of the Iroquois Indians who were thwarting the aims of the French Canadian Governor, Denonville, to establish firmly French sovereignty in upper New York. Once more, the gain was New York's. However, Dongan apparently was too good a steward to be retained.

Of course there were other vital reasons why it was deemed advisable to recall him. He had done well, by just and peaceful means, but was not the type of man James needed at the moment; Dongan was not the kind of man to institute arbitrary government; Andros was more suitable for such commissions. Andros was thought of by James, 'when he decided to take away the charters of all the New England colonies, and make them all royal provinces, perhaps in the hope that, in the remoulding, he could turn the Protestant colonies into Catholic provinces, just as he was then ' strenuously striving to draw Protestant England closer to Catholicism.

James was apparently confident that Andros could govern with a heavy hand, and effectively reduce all American colonies to direct dependence on the Crown. King Charles, had, indeed, begun with Massachusetts having in June, 1684 declared its charter conditionally forfeited, the judgment being confirmed in the Michaelmas term. Virginia became a royal province in the same year New York of course was already to all intents in that category; and when, after the death of Charles and the ascension of James to the throne, in February, 1685 it became clear that all colonies were to become Crown provinces, Lord Baltimore hastened to England to defend his charter rights to Maryland. He appealed in vain Maybe, James suspected that the colonies might hold traitors as deserving of attainder as those unfortunate Presbyterians to whom Judge Jeffreys had given such short shrift during the Bloody Assizes which followed the Monmouth rebellion in England in 1685.

The new, order in Massachusetts was brought prominently forward by the arrival in Boston in May, 1686, of Joseph Dudley; in the capacity of "President" of all the English colonies; from Nova Scotia to Narragansett Bay. In December of that year Andros arrived, commissioned as Governor of all New England, and charged with the 'abolishment of all popular assemblies and existing churches, or at all events of the establishment of a state church which could readily be converted to papal forms at the opportune moment. Moreover, taxes were to be imposed at the will of the Crown.

Andros had been riding roughshod-uncomfortably, it is true-over New England for twenty months before he appeared in New York to take the reins of government from Dongan. The new order had not gone well anywhere in America. South Carolina had defied, its royal Governor in 1687, refusing to pay quit-rents; Connecticut had contrived 'to hold possession of its charter, though declared non-effective by Andros, whose visit to Hartford in 1687 was especially disconcerting to himself, it seems; and everywhere the spirit of rebellion seemed'to be rising. In 1688 North Carolina deposed and actually exiled its Governor; the Virginians resorted to arms and obtained more moderate government; and Maryland was watched very closely. Of all the colonies, Massachusetts seemed to be most subdued, Andros there exercising absolute sway. There were no sessions of the General Court, taxes were imposed by command, and those who refused to pay, because such arbitrary measures infringed their inalienable rights as freeborn Englishmen, were told that they must not imagine that the laws of England could follow them to the ends of the earth; that, as a matter of fact, they had but one privilege: "Not to be sold as slaves." Furthermore, if they opposed the royal will there was a way, through judicial channels, of making them even slaves. Maybe Andros thought that in Dudley he had a Chief Justice who could emulate "Bloody Jeffreys." Certainly, Dudley was showing good promise in Massachusetts. "Juries were packed, and Dudley, to avoid all mistakes, told them what verdicts to render." A justice of the peace who was of independent mind was not wanted. "The scabbard of an English Red Coat shall quickly signify as much as the commission of a justice of the peace," Andros had declared, quite frankly. The Governor had flaunted Episcopacy in the face of the Church of the Puritans, and had crippled the latter, thus taking away a vital governing factor from the towns. "There is no such thing as a town in the whole country," Andros had declared after some months. Massachusetts seemed to be prostrate-under the heel of a tyrant. The Puritans, though passive, were no more in abject submission to the Papishly-inclined government than the Protestants of England were to King James, who was adhering to his policy against even the advice of his own bigoted Catholic courtiers, blindly declaring that he would "lose all or win all." Just as in England smouldering resentment was fast reaching the state of angry flame in the people, so were injustices to New Englanders reaching the point at which they could be borne no longer. Willard, in one church meeting grimly remarked to the gathered Puritans that they "had not yet resisted unto blood, warring against sin."

Such was the general state of governmental affairs at about the time Andros arrived in New York, commissioned as Captain-General and Governor-in-Chief of all the English possessions ' from Nova Scotia to Delaware Bay. After some days of pompous ceremonies in New York City, conspicuous features of which were the breaking of the seal of the province of New York and the substitution of that of the Dominion of New England, Andros crossed to the Jerseys, which were to be annexed to New York under the general plan. On October 9, 1688, Francis Nicholson, Lieutenant-Governor, was directed to make his headquarters in New York City; and Andros returned to his own headquarters at Boston.

News travelled slowly in those days, for although the momentous happenings which led James II to abdicate began with the landing of William of Orange at Torbay in November, 1688, Boston did not hear of it outside official circles, before April, 1685. During the winter the government of New York had remained in the hands of Nicholson, and the New York members of the New England Council-Philipse, Bayard, Van Cortlandt, Younge and Baxter. Dongan had retired to his farm at Hempstead, on Long Island, and took no further part in New York affairs. Little was done during Nicholson's short administration to change the judicial system Dongan had established. Nicholson, indeed, had hardly become settled in the deputy Governorship of New York and New Jersey before news reached him (in February, 1689,) of the landing of William of Orange, with all the ominous consequences it portended for James. He immediately transmitted the news to Andros, and took precautionary measures to safeguard the King's money, but he did not attempt any radical measures of government. Andros sent no extraordinary instructions from Boston Knowledge of the English situation seems to have been kept from becoming general until April, when John Winslow reached Boston from Virginia and spread the news, of the success of William and the flight and abdication of James. Action was quick and sensational thereafter. On April 18, the Andros government was abruptly terminated, and Andros himself was taken into custody. Throughout New England governing bodies drawn from the people sprang up with surprising quickness.

When news reached New, York of the happenings in Boston, Lieutenant-Governor Nicholson, on April 26, read the communication to his Council and other officials, including the Mayor and Common Council of the city, and the militia captains. What would have happened in New York City had not news simultaneously' reached the Governor that France had declared war on both England and the Netherlands can only be conjectured. With the possibility of active warfare against French Canadians on the northern frontier, and French naval forces off New York, the concern of those who gathered at the call of 'Nicholson to hear the news from Boston turned from affairs of local government to measures of defense against the common enemy, France. Nicholson was thus saved the fate of Andros. His Council, with an eye to the future of their own province, thought the moment opportune to address the Lords 'of Trade of the English Government-they did not mind whether of James or William-pointing out "how fatall it hath been to this city and the Province of New York for to be annexed to that of Boston, which, if it had continued, would have occasioned the totall ruin of the inhabitants 'of said Province."

However, the first scare of war soon passed, and the militia captains in particular seemed to realize how potential was their own power. They were mostly Protestants, and they began to be suspicious of Nicholson and his Council. They did not wish a provincial government that might favor the Catholic James, against the Protestant William, to continue in office. So, on June 3, the militia captains with James Leisler at their head mobilized the New York militia units, and took control of the city. Young Nicholson realized that, under the existing conditions, 'he could not long continue in office and so on June 6 he gave over the government to his Council, and at the end of that month sailed for England.

Leisler then became to all intents dictator. He and his associates seemed to be more suspicious of Bayard, Philipse and Van Cortlandt than of Nicholson, and he would not permit these three, as the Council, to exercise the powers of government passed to them by the outgoing Lieutenant-Governor. Leisler assumed the government himself, and on June 22 called upon all Catholic officeholders to vacate their offices. Ere long the members of the Council, feeling that their personal safety was in jeopardy, fled to Albany, where Leisler's authority had been repudiated.

Footnote 43: Scott, "Courts of New York."

Footnote 44: "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 Appraisers 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 Correction of Errors (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 that 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 therefore 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 common 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 intention on the part of the conquerors to abrogate the Dutch laws and substitute 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, in Johnson's Report, 89, and in brief or in opinion the subject appears in Canal Commissioners vs. The People, ex. rel. Tibbits, 5 Wendell, 423 (1850), and Bogardus vs. Trinity Church, 4 Paige, 578 (1833).-Chester's "Legal and Judicial History of New York," Vol. I, pp. 595-92.

Footnote 45: "So late as 1759 Lieutenant-Governor Cadwallader Colden wrote: "The Dutch of this province, it is probable, think the articles of surrender are still in force and that any breach of them is a piece of injustice to them and there among other things they may, in their own minds, justify themselves in carrying on an illicit trade with Holland in opposition to the Laws of Trade which have been carried on from New York for many years He then argues against any such assumption (N.Y. Hist. Soc. Coll. 1868 series ) This was a fruitful subject for hot debate in the province for many years. On November 9, 1674 the Duke's Deputy Governor confirmed by proclamation, "all former grants, privileges, and all estates legally possessed by any under the Duke of York before the late (Dutch) government which the Dutch claimed was only in accordance with the law of post-liminy, under which the intervening conquest operated merely to suspend not to extinguish their rights On the other hand it was argued that there had been no conquest; that the Dutch ships had no thought of attempting the conquest of New York when, in August, 1673, they came in under Staten Island, but only to take in wood and water, knowing that there was not sufficient force there to hinder them; but that the Dutch inhabitants treasonably told the Dutch commodore of the absence of the Governor and the greater part of the garrison up the river and of the defenseless condition of the city and invited him to consent to take it which he did without firing a gun; that, having voluntarily without force renounced their allegiance to the English crown and submitted anew to Holland's sovereignty, "they forfeited without doubt all privileges that they could claim by the articles of surrender -Colden, ibid, 184, Smith's History of New York 1854, ed, p 61 n, has the following: "In New York, the right of post-liminy was disregarded and perhaps unknown."

Footnote 46: The Court of Assizes thus established by Nicolls was no advance toward democracy. It was not in any popular sense a Legislature. It had not even the representative character enjoyed by Stuyvesant's "Landt-dag," or Assembly. Its members were wholly dependent on the governor's will, and they were expected to perform their legislative function with the usual docility of a French "bed of justice." The governor and his council remained the real law-makers, as well as the interpreters of the laws they made. Before long, it is true, the Court of Assizes deliberated with closed doors upon the general concerns of the province, and made such changes in the laws as were thought proper. But the Duke of York, who, by his patent, had "full and absolute power," disapproved of legislative assemblies as inconsistent with the form of government which he had established in his province. Yet he supposed that no harm and much good might result from the justices being allowed once a year to meet with the governor and his council, and make desirable changes in the laws, which, after all, were subject to his own approval. These justices, he complacently assumed, would be chosen by the people themselves as "their representatives, if another constitution were, allowed." Moreover, the Court of Assizes was the most convenient place for the publication of any new laws, or of any business of general concern...

The governor and his council, who at present were the only members of the Court of Assizes were early called upon to frame a body of laws for the province. . .

It was his (Governor Nicolls') function under the royal patent . . . . to make laws. . . . With the assistance of members of the Court of Assizes, he made it his "whole business to prepare a body of lawes" to be submitted to the general meeting proposed to be held on' Long Island.-Brodhead, "History of New York," Vol. II, pp. 64-67.

Footnote 47: Notwithstanding all the changes which had occurred in the province, the city magistrates of whom Stuyvesant thus took leave still exercised the same powers which he had himself conferred on them twelve years before. When their term of service expired, the burgomasters and schepens named their successors, as they had done under the Dutch government. This they did on the usual day, and in pursuance of the sixteenth clause of the capitulation. The new officers were confirmed by Nicolls, and announced to the commonalty after the usual ringing of the bell. They were Cornelis Steenwyck and Oloff Stevensen van Cortlandt, burgomasters; Timotheus Gabry, Johannes van Brugh, Johannes de Peyster, Jacob Kip, and Jacques Cousseau, schepens; and Allard Anthony, schout.-Ibid., II. 60.

Footnote 48: New Utrecht sent Jacques Cortelyou and Younger Fosse; Gravesend, James Hubbard and John Bowne; Flatlands, Elbert Elbertsen and Roeloff Martense; Flatbush, John Stryker and Hendrick Jorassen; Bushwick, John Stealman and Guisbert Tennis; Brooklyn, Frederick Lubbertsen and John Evertsen; Newton, Richard Betts and John Coe; Flushing, Elias Doughty and Richard Cornhill; Jamaica, Daniel Denton and Thomas Benedict; Hempstead, John Hicks and Robert Jackson; Oyster Bay, John Ijnderhill and Matthias Harvey; Huntington, Jonas Wood and John Ketcham; Setalcott (or Brookhaven), Daniel Lane and Roger Barton; Southold, William Wells and John Younge; Southampton, Thomas Topping and John Howell; Easthampton, Thomas Baker and John Stratton; and Westchester, Edward Jessop and John Quinby.-Gen. Exit., I, 96; Journ. N. Y. Leg. Council, Int., v.

Footnote 49: To Long Island, thus made part of New York, the name of Yorkshire was given. That, with the neighboring country, was afterward divided into three judicial districts, or ridings, in each of which a court was to sit three times a year. The present Queen's County (excepting the town of Newtown) and Westchester, formed the North Riding; Newtown, the present Kings County, and Staten Island made the West Riding; the present Suffolk alone was the East Riding. There was, however, some question whether Staten Island belonged to New Jersey or New York, which was not settled until 1668, and seems to have been referred to the Proprietary in England. Samuel Maverick, one of the Commissioners, writing in February, 1669, to Governor Winthrop, says, on the authority of a letter from Nicolls-who returned to England in the previous autumn:

"Staten Island is adjudged to belong to N. Yorke." It is, he says in another letter, "the most commodiosest seate and richest land I have seene in America."-"Maverick Letters," in the "Winthrop Papers," Mass. Hist. Soc. Coll., 4th series, Vol. VII.

Footnote 50: LAWES

Established by the Authority of his Majesties Letters Patents, granted to his Royal Highness, James, Duke of Yorke and Albany; Bearing date the 12th day of March in the Sixteenth year of the Raigne of our Soveraigne Lord, Kinge Charles the Second.

Digested into one Volume for the publicke use of the Territoryes in America under the Government of his Royall Highnesse.

Collected out of the Severall Laws now in force in his Majesties American Colonyes and Plantations.

Published March the 1st Anno Domini, 1664, at a general meeting at Hemsted upon Longe Island by virture of a Commission from his Royall Highness, James, Duke of Yorke and Albany given to Colonell Richard Nicolls Deputy Governeur, bearing date the Second day of April, 1664.

Footnote 51: The High Sheriff, in certain emergencies, might plead in court as an attorney, the Duke's Laws reading:

"That no high Sheriffe, under Sheriffe, high Constable, petty Constable or Clarke of the Court shall be permitted to plead as an Attorney in any Persons behalfe in the Court where he officiates, provided always that if any poore person not able to plead his own Case shall request the Court to Assign him the High Sheriffe under Sheriffe high Constable, petty Constable or Clark to plead for him it shall be Lawful for the Court to grant it; And for the person to plead accordingly. But the person so pleading the poor man's Case is not to give Judgment provided also that any high Sheriffe, under Sheriffe, high Constable, or Clark Acting as general Attorneys for any person, absent out of the Country and Negotiating their Affaires, and so Lyable to be sued for their Employers such Persons shall have liberty also to plead and prosecute in any Cause that shall any way Concerne their said Employers.-Duke of Yorke's Laws, p. 11.

Footnote 52: "In all cases wherein the Law is obscure, so as the Jury cannot be Satisfied therein, they have liberty to present a special verdict, vz.: If the law be so in such a point, We find for the plaintiffs, but if the Law be otherwise, We find for the Defendants, in which case the determination shall properly belong to the Court and all Juryes shall have liberty in matter of fact, if they cannot finde the main Issue, yet to find and present in their verdict so much as they Can."-See Eastman's Courts and Lawyers of Pennsylvania.

Footnote 53: While general legislative power for England was never claimed by any of her sovereigns, it was never doubted that the Crown possessed this high prerogative power over the colonies, and that this power was communicable to a subject. In New York, the Duke of York's deputy-governor might, as he did, declare that "no jury shall exceed the number of seven, nor be under six, unless in special causes upon Life and Death, the justices shall think fit to appoint twelve"-the verdict, in civil cases, to be by a majority vote and perjury to be a capital felony in certain cases. But in England, we are told, "the most violent and imperious Plantagenet never fancied himself competent to enact, without the consent of his Great Council, that a jury should consist of ten persons, instead of twelve, that a widow's dower should be a fourth instead of a third, that perjury should be a felony, or that the custom of gavelkind should be introduced into Yorkshire."-Macaulay, History of England, I, 35.

Footnote 54: They first met, i. e., the magistrates of the Mayor's Court, for a trial of civil causes on June 27, 1665, when a jury was impanelled (without doubt the first in New York County) in the cause of Francis Douty (Doughty) against John Haixman and Khellum Winslow. The record, which is brief, may be worth transcribing, if for no other reason than it shows an instance of a compulsory reference of a part of the issues, a common enough procedure under the Dutch rule, but practically unknown in English procedure. The judgment (which is the only indication the record gives of the nature of the action) was as follows: "The Court doth order that the partyes shall deliver in their evidence to the following juries to wit: Caleb Burton, Isaacy Bedow, Christ. Hoogland, Balek de Haert, Wm. Dornel, James Ballaine, John Garland, John Browne, Charles Bridges, John Dawrel, Thos. Carvet, Samuel Edsal. The juries do judge that the defendants shall pay the plaintiff soo much as he shall appeare by true accounts due unto him from the defenders, besides the costs and damages of the Court. The Honable Court does allowe off the above sd Judgment, and Nominates for to view, examine and make up the accounts betwixt the partyes from the tyme that the Bark was sould to Mr. Tatcher til the time that she was returned again to the said Douty, to wit: William Jacob Backer, William Isaacy Bedloo, William Balthazar De Haert, and Mr. Samuel Edsal" (two of the jurymen and two outsiders) .-See McAdam, "Hist. Bench & Bar of N. Y.," I, 49.

Footnote 55: Brodhead, "History of New York," II, 87-88.

Footnote 56: 1st. The Governour and Councill with the High Sheriffe & the Justices of the Peace in the Court of General Assizes have the Supreme Power of making altering and abolishing any Laws in this Government The County Sessions are held by Justices upon the Bench Particular Town Courts by a Constable and Eight Overseers, the City Court of N. Yorke by a Mayor and Aldermen. All causes tried by Juries.

7th. All causes are tried by Juries, no Lawes contrary to the Lawes of England. Souldyers only are tryable by a Court Marshall and none others except in cases of sudden invasion mutiny or Rebellion as his Mates Lieutenants in any of his Countries of England may or ought to exercise -See Documents Relative to the Colonial History of New York, O'Callaghan, III, 188.

Footnote 57: At the autumn session of the Court of Assizes it was accordingly decreed "that whosoever shall reproach or defame any person or persons who have or shall act in any public employment, either in court or otherwise, or shall vilify their proceedings who serve the public in this Government by authority under his Royal Highness the Duke of York, or whoever hereafter shall any ways detract or speak against any of the deputies signing the Address to His Royal Highness at the General Meeting at Hempstead, they shall be presented at the next Court of Sessions, and if the Justices shall see cause, they shall from thence, be bound over to the Assizes, there to answer for the slander upon plaint or information."-Brodhead, History of New York, II, 108.

Footnote 58: The Court, having taken notice of the defects and failings of both towns and persons in particular of not bringing in their grants or patents to receive a confirmation of them, or not coming to take out new grants where they are defective, or where there are none at all, according to former directions in the Law, As also taking it into their serious considerations that several towns and persons within this Government, as well English as Dutch, do hold their lands and houses upon the conditions of being subjects to the States of the United Belgic Provinces, which is contrary to the allegiance due to his Majesty, 'they do therefore Order that all grants or patents whatsoever formerly made, shall be brought in, to be confirmed or renewed by authority of his Royal Highness the Duke of York, and all such as have not patents shall likewise be supplied therewith by the first day of April next after the date hereof; after which time neither town nor private person, whether English or Dutch, shall have liberty to plead any such old grants, patents, or deeds of purchase in law, but they shall be looked upon as invalid to all intents and purposes."-"Court of Assizes," II, 80; "Col. MSS.," XXII, 107; "N. Y. Hist. Soc. Col.," I, 414-19; Hoffman's "Treatise," I, 97; Brodhead, "Hist. N. Y.," II, 109.

Footnote 59: I. The Governor is to have a Councell not exceeding tenn, with whose advice to act for the safty & good of the country & in every towne, Village or parish a Petty Court, & Court of Sessions in the several precincts, being three on Long Island, & Townes of New Yorke, Albany & Esopus, & some smale or poore Islands & out places; And the General Court of Assizes composed of the Governor and Councell & all the Justices & Magistrates att New Yorke once a yeare the Petty Courts Judge of five pounds & then may appeale to Sessions, they to twenty pounds & they may appeale to Assizes to ye King, all sd courts as by Law.

2 The Court of Admiralty hath been by speciall Comission or by the Court d Mayor & Aldermen att New Yorke.

3 The chiefe Legislatiue power thereis in the Governr with advice of the Cairn cell the executive power Judgments giuen by ye Courts is in the sheriffs & other civil officers.

4 The law booke in force was made by the Governor & Assembly att Hempsted in 1665 and since confirmed by his Royall Highnesse -See O'Callaghan's Documents Relative to the Colonial History of the State of New York, III, 260.

Footnote 60: Ibid., III, 230.

Footnote 61: And wn the said Assembly soe elected shalbe mett at ye time and place directed, you shall lett ym know that for the future it is my resolucon that ye said Genll Assembly shall have free liberty to consult and debate among themselves all matters as shalbe apprehended proper to be established for laws for the good government of the said colony of New Yorke and its Dependencyes, and yt if such laws shalbe propounded as shall appeare to mee to be for the manifest good of the Country in generall and not prejudicial to me I will assent unto and confirme ym In the passing and enacting of all such laws as shalbe agreed unto by the said Assembly, wch I will have called by the name of the General Assembly of my Colony of New Yorke and its Dependencyes wherein the same shalbe (as I doe hereby ordaine they shalbe) prsented to you for yor assent thereunto."-O'Callaghan's Documents Relative to the Colonial History of N. Y. III, 331.

Footnote 62: "In Chester's Legal and Judicial History of New York (1911), Henry Beeckman, William Ashton, Giles Goddard, Samuel Mulford, John Lawrence, Matthias Nicolls and William Nicolls are named. The Civil List of New York (1888) names seven others.

Footnote 63: An Act for the confirming all Judgments and proceedings in the former Courts, taking away the General Court of Assizes.

And forasmuch as the General Court of Assizes, heretofore held annually in this Province, is of great charge and Expense to the same, and by reason of the Great number of the members thereof nott so fit & capable to heare and determine matters and Causes of Civil nature, usually brought to the said court: Bee it enacted by the Authority of this Present Assembly: That the said Court called the General Court of Assizes, and all Jurisdiction, power, and Authority belonging unto or used and exercised in the said Court or by any of the Judges,, Ministers or members thereof, bee from the first day of November next ensuing clearly and absolutely dissolved, taken away and determined, and that from and after the said first day of November next ensuing, Neither Judge, ' Justice, Member or Minister of the said Court whatsoever shall have any power or Authority to heare, Examine or determine any matter or thing whatsoever in the said court called the General Court of Assizes, or to pronounce or deliver any Judgment, Sentence, Order, or decree, or to do any Judiciall or Ministeriall act in the same court; provided always that all actions, suits or Complaints now pending in the said Court of Assizes either by Bill, Plaint, Declaracon, appeale, review, by Peticon to the Governor and Councell, or any other ways or means whatsoever, shall be ended determined and finished by the High Court of Chancery.-See The Colonial Laser of New York, I, 172.

Footnote 64: In 1683, an act of the Dongan Legislature, effective November i, 1683, was passed to divide this Province and dependencies into shires and counties Twelve counties were decided upon, the name of some perhaps being suggested by Dongan. The City and County of New York included Manhattan Mannings and the Barn Island Westchester contained all the land eastward of Manhattan, "as far as the Government extends and northward along the Hudson to the Highlands Ulster embraced all the towns on the west side of the Hudson from Roelof Jansen s Creek and on the west side from Sawyer s Creek to the Saraaghtoga Dutchess extended from Westchester northward to Albany and eastward into the woods twenty miles Orange included the region on the west side of the Hudson from the New Jersey boundary northward to Ulster at the Murderer s Creek and westward into the woods as far as Delaware River Rschrnond contained all Staten Island with Shooter s Island and the islands of Meadow on the west side; King's County, on Long Island, including Bushwick, Bedford Brooklyn Flatbush Flatlands New Utrecht and Gravesend Queen's contained Newtown Jamaica Flushing Hempstead and Oyster Bay Suffolk embraced Hunting ton Smithfield Brookhaven Southampton Southold Easthampton to Montauk Point Shelter Island the Isle of Wight Fisher s Island and Plumb Island Duke's contained the islands of Nantucket Martha s Vineyard Elizabeth Island and No Man s Land Cornwall included Pemaquid and all his Royal Highnesses territories in these parts with the islands adjacent-Brodhead s Hist N Y II 385, 386.

Footnote 65: There shall bee a Court of Chancery within this province which said Court shall have power to heare and determine all matters of Equity and shall be Esteemed and accounted the Supreme Court of this province. And be it further Enacted That the Governor and Council bee the said Court of chancery, and hold and keep the said Court: And that the Governor may Depute or nominate in his stead a Chancellour, and be assisted by such other persons as shall by him bee thought fitt and Convenient. Together with all necessary Clerkes and other officers as to the said court are needful.- Colonial Laws of New York, I, 128.

Footnote 66: The earliest record of a proceeding in chancery is cited by Murray Hoffman in "A Treatise Upon the Court of Chancery." It was during the rule of Governor Andros.

"To the Right Honorble Major Edmond Andross, Esqr., Left & Govemr Generall of his Royal Highness, his Territoeries in America, Thomas Wandall, Complainant. Ofiffe Stephens, Deft. And the deft. to ye Complaints bill humbly answereth yt alt. 30 years last past. The Land in questione was by ye authority then in being-Ordered for a Lane or Alley-abt 16 years within sd time aforementioned-The 2d ground by Orde of the Burge Masters of this City was exposed to sale; thereupon this Complaint and deft joyntly purchased ye same; & soon after made eqwale divisione thereof; upon the sd ground this complaint hath built; & ever since the purchase enjoyed e quietly possessed ye same-And all soe this deft bath until ye 7th Novembe, 1676-by virtue of his Title aforesd & his quiett possessions he humblt conceives, makes him an undoubted right and ye Mutual agreemt upon partitione as aforesd being confirmed by a judgment given In the Mayors C. T. ' as p record appears: In tende Consideracon whereof humbly prays yr Honr and honble Bench to take the ye into yr Grave Consideracon & be pleased to grant judgmt according to Equity & Justice, and this deft as in duty bound shall pray &c (Endorsed).

The Answer. Tho. Wandall plf. Oloff Stevens, deft., 1677, put off by the Go."- Chester's Legal and Judicial History of New York, I, 293.

Footnote 67: From first to last the court was the most unpopular judicial establishment in the colony. This can be well believed. But it had a vital purpose, and the successive governors determinedly sustained it substantially as originally purposed and constituted. The Assembly of 1691, by Act of May 6th, continued the court for seven years, after which "the only authority for the exercise of equity jurisdiction by the successive governors was by ordinance or executive order." The "Court of Chancery as held by one man, and that man generally a stranger to the country, and always the immediate representative of the Crown, was especially obnoxious to public prejudice," wrote Butler in his "Outline of the Constitutional History of New York." Bellomont wrote to the Lords of Trade in 1700: "There is a great want of a Court of Chancery here, but no body here understanding it rightly I delay appointing one till the Judges and Attorney-Generals come from England." In January, 1701, he again wrote: "I am extremely importun'd to erect a ' court of chancery, many people being like to be ruin'd for want of one. I shall therefore very soon settle that court tho' I should make no decrees till the arrival of the judge and attorney-general." A court was erected in that year, but the obj ectionable conditions remained, the royal prerogative continuing to be the dommating factor. Lord Cornbury took heed of the popular opposition to this court when he became governor, for on June 13, 1703, he suspended its sessions. However, on November 7, 1704, he had to reestablish it, and did so by ordinance. Thus, it had not even the semblance of sanction by a 'popular body, and the opposition to it became more and more radical. In 1727, the Assembly, moved to action by the defeat of its speaker, Frederick Phillipse, in a case in the Court of Chancery wherein Governor Burdet sat as Chancellor, resolved: "That the Erecting or Exercising in this Colony a Court of Equity or Chancery (however it may be termed) without Consent in General Assembly is unwarrantable, and contrary to the laws of England, and a Manifest oppression and grievance to the subjects and pernicious consequence to their Libertys and propertys." The answer of the Governor and Council was that the resolutions were "unwarrantable and highly injurious to his majesty's prerogative." Thereafter, however, the Governors were reluctant to sit as chancellors, Historian Smith writing: "The wheels of the Chancery have ever since rested upon their axis-the practice being condemned by all gentlemen of eminence in the profession."-See Courts and Lawyers of New York, Chester and Williams, Chap. XXII.

Footnote 68: "that the Recorder bee appointed by the Governor and Council who shall be Judge of the City and Corporation and be aydeing and assisteing to the Mayor and Aldermen & Comon Councill in all matters that relate to the well beinge and supporte thereof.

And further that "a Sheriff bee annually appointed by the Governor & Councel."-O'Callaghan's "Documents Relative to the Colonial History of the State of New York," 111, 338.

Footnote 69: "AND I DO, by these presents, for and on behalf of his most sacred majesty aforesaid, his heirs and successors, give and grant unto the aforesaid Mayor, Aldermen, and Commonalty of the said city of New York and their successors that they and their successors shall and may have, hold, and keep within the said city and liberties and precincts thereof in every week in every year forever, upon Tuesday, one Court of Common Pleas, for all actions of debt, trespass upon the case, detinue, ejection and other personal actions; and the same to be held before the Mayor, Recorder and Aldermen, or any three of them whereof the Mayor or Recorder to be one, who shall have power to hear and determine the same pleas and actions, according to the rules of the common laws and acts of general assembly of the said province."-The Dongan Charter, City of New York.

Footnote 70: The Courts of Justice are most Established by Act of Assembly and they are:

1. The Court of Chancery, consisting of the Governor and Council, is the Supreme Court of this Province, to which appeals may be brought from any other Court.

2. The Assembly finding the inconvenience of bringing of ye peace, Sheriffs, Constables & other persons concerned from the remote parts of this Government to New York did instead of the Court of Assizes, which was yearly held for the whole Government of this Province erect a Court of Oyer and Terminer to be held once every year within each County for the determining of such matters as should arise within them respectively, the members of which Court were appointed to bee one of the two judges of this province assisted by three justices of the peace of that County wherein such Court is held. Which Court of Oyer and Terminer has likewise power to hear appeals from any inferior Court.

3. There is likewise in New York & Albany a Court of Mayor & Aldermen held once in every fortnight from whence their can be noe appeal, unless the Cause of Action bee above the value of twenty pounds who have likewise privilege to make such by-Laws for ye regulation of ye Govr. & Council. Their Mayors, recorders, Town-Clerks & Sheriffs are appointed by the Governor.

4. There is likewise in every County twice in every year (except in New York, where it's four times, & in Albany where its thrice) Courts of Sessions held by the Justices of ye peace for the respective Countys as in England.

5. In every Town wth ye Government there are 3 Commissioners appointed to hear and determin all matters of difference not exceeding the value of five pounds which shall happen within the respective towns.

6. Besides these, my Lords, I finding that many great inconveniences daily hapned in the managemt of his Mats (Majesty's) particular concerns within this Province relating to his Lands, Rents, Rights, Profits & Revenues by reason of the great distance betwixt the Cursory settled Courts & of the long delay which therein consequently ensued besides the great hazard of venturing the matter of Country Jurors who over and above that they are generally ignorant enough & for the most part linked together by affinity are too much swayed by their particular humors & interests I thought it fit in Feb last by & with ye advice & Consent of ye Council to settle and establish a Court which we call the Court of Judicature (Exchequer) to be held before ye Govr & Council for the time being, or before such & soe many as the Govr. should for that purpose authorize, commissionat & appoint on the first Monday in every month at New York, which Court bath full power and authority to hear try & determin Suits matters and variances arising betwixt his Maty (Majesty) & ye Inhabitants of the said Province concerning the said Lands, Rents, Rights, Profits and Revenues.

The Laws in force are ye Laws called His Royal Highnesses Laws and the Acts of the General Assembly, the most of which I presume yr Lops (Lordships) have seen & the rest I now send over by Mr Sprag to whom I refer yr Lops in this point -See New York Entries Vol II, p I, O'Callaghan's Documents Relative to the Colonial History of New York, III, 389.

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