English Colony and Province
1664-1673 and 1674-1776

Under 16th century public international law, the great powers of Europe asserted the right to establish colonies on other continents based on claims of "first discovery and occupation." France, Holland and England all claimed the northeastern seaboard of North America. The French claim was based upon the explorations of Samuel de Champlain who mapped the St. Lawrence and Lake Champlain between 1603 and 1609. England's claim was founded on the lands found during the voyages of exploration commissioned by Henry VII in 1497 and 1498, and led by John Cabot, more properly known as the Italian Zuan Chabotto. The Dutch claim arose from Henry Hudson's 1609 voyage across the Atlantic and his discovery of the Hudson River valley.

Against the backdrop of the 17th century Anglo-Dutch wars (fought to gain supremacy in shipping and trade) Charles II of England in 1664 authorized his brother, James, Duke of York to send an armed force to New Netherland to enforce England's land claim. James commissioned Richard Nicoll to lead the attack, and the fleet of four warships and four hundred and fifty English soldiers arrived in Gravesend Bay, Long Island, an area that many English families had settled with the consent of the Dutch. Nicoll issued a proclamation declaring that Long Island was under English rule and promised English constitutional rights to the settlers in return for their assistance in the fight against the Dutch. Realizing that they had little chance of repelling the English attack, the Dutch surrendered on August 27, 1664 and Richard Nicoll became the first Governor of New York. Nicoll immediately called the Hempstead Convention where he promulgated the Duke's Laws, a legal code that introduced trial by jury to the colony and set up a court system consisting of local courts, intermediary Courts of Sessions and the highest court, the Court of Assizes, with jurisdiction in both law and equity. Much to the distress of the English settlers, the code did not provide for a representative assembly.

On June 12, 1665, Richard Nicoll extended the Duke's Laws to the City of New York through a charter that placed the executive power of the City in the hands of a mayor, five aldermen and a sheriff, all of whom were appointed by the Governor. These officials, with the exception of the sheriff, also constituted the judges of the Mayor's Court which, within the City of New York, exercised the jurisdiction of a Court of Sessions and convened for the first time on June 15, 1665. Although trial by jury was available, many of the Dutch procedures were retained in this court, and the records were kept in Dutch and English.

Thomas Willett was appointed the first Mayor of New York, and the office of Sheriff was held by Allard Anthony. In 1668, the Mayor, Aldermen and Sheriff were presented with the insignia of office by the English authorities, a Seal of the City, a ceremonial silver mace and seven crimson robes to be worn on official occasions.

In 1668, Richard Nicoll returned to England and was replaced by Colonel Francis Lovelace, the second Governor of New York. As soon as Lovelace arrived in the Colony, the citizens of the English towns petitioned him to remedy the failure of the Duke's Laws to provide for citizen representation. Although the petition was denied, the Court of Assizes began the practice of suggesting to the Governor and Council changes that might be made to the laws of the Colony for the common good.

Lovelace is remembered for setting up a postal system between New York and Boston and for advocating for closer ties among the English colonies. He was frequently absent from the Colony of New York, engaged in negotiations with his fellow governors. The Third Anglo-Dutch war broke out in 1672 and in 1673 a Dutch fleet was despatched to recapture New Netherland. When the fleet arrived, Governor Lovelace was in Connecticut meeting with Governor Winthrop and in his absence his deputy surrendered New York to the Dutch. The colony was renamed New Netherland and the Dutch form of government was restored. However, within a year, the Third Anglo-Dutch war ended with the Peace Treaty of Westminister (1674), and New Netherland was returned to English rule.

1674-1688

With English rule restored under the governorship of Edmund Andros, Charles II sent the Governor a bound copy of the Duke's Laws ("Book of Laws") with orders to reinstate the code as the law of New York. Again, the colonists objected that the code did not provide for a representative assembly, but their efforts came to naught. The courts established under the Duke's Laws (the Court of Assizes, the Court of Sessions and the town courts) were reinstated.

Andros proved to be very high-handed, regularly overturning jury verdicts and interfering with business and trade regulations. He also became embroiled in boundary disputes with the adjoining colonies and during a dispute over the New York-New Jersey line, he arrested and imprisoned the New Jersey Governor, Philip Carteret, which resulted in his recall to England in January 1681.

In September 1682, the Duke of York appointed Thomas Dongan, Earl of Limerick, to hold office as the fourth Governor of New York and authorized him to call an Assembly of Representatives, the first representative governing body in New York. The first meeting took place in 1683 and during that session the representatives passed the Charter of Liberties and Privileges (Original / Transcript), which went into effect immediately under the Duke's instructions that all laws passed by the Assembly and approved by the Governor were valid until rejected by the Duke of York.

The Assembly also passed an Act to settle Courts of Justice that abolished the Court of Assizes and transferred its jurisdiction as a court of law to the Court of Oyer and Terminer and its equity jurisdiction to the Court of Chancery. In later years, a Court of Oyer and Terminer was exclusively a criminal court, but under the act of 1683 it had unlimited jurisdiction in criminal and civil cases and also acted as a court of appeal. The court consisted of two permanent justices (Matthias Nicoll and John Palmer) commissioned by the governor who went on circuit to each county twice a year and were joined by four justices of the peace from the County in which they held court. The Courts of Justice Act also set up a Court of Sessions in each county and a Petty Court in each town.

Charles II died in 1685, and the Duke of York became King James II of England. Because the patent-holder and the Crown were one, the legal status of the Colony of New York changed became the royal Province of New York. On April 27, 1686 Governor Thomas Dongan promulgated a new charter for the City of New York known as the Dongan Charter which permitted the citizens of each ward to elect an alderman, an assistant and a constable.

But in early 1688, James II annexed New York to the Dominion of New England, established two years earlier to consolidate the colonies of New England under a single administration. Governor Thomas Dongan handed the Province of New York over to the Dominion's governor, Sir Edmond Andros, and the colonial seal of New York was ceremonially broken to symbolize the change in governance.

1688-1689

When word of England's "Glorious Revolution" (where the absolute monarchy of James II was replaced with a constitutional monarchy under William of Orange and Mary) reached the Dominion, the deeply disliked Governor Andros, Chief Judge Dudley and several other Dominion officials were arrested, jailed and returned to England.

1689-1691

In the political vacuum that ensued, rumors of an attack on New York by forces loyal to James caused much anxiety. To preempt such an attack, the local New York militia seized Fort James on May 31, 1689 and declared loyalty to William and Mary. Jacob Leisler, a German immigrant from a long line of jurists, drafted a declaration that stated "as soon as the bearer of orders from the prince of Orange shall let us see his power, then without delay we do intend to obey, not the orders only, but also the bearer thereof."

The militia set up a Committee of Safety to govern New York pending the arrival of the English Governor and Leisler, who had studied at a military academy in his youth, emerged as the commander. When Lieutenant-Governor Nicholson, Andros's deputy, returned to England on June 6, 1689, with depositions for the Crown, the only area of the Province not under Leisler's command was Albany, where the anti-Leisler faction, including Bayard and van Cortlandt, had gathered. Following Bayard's arrest and imprisonment by Leisler's forces, many of those opposed to Leisler fled to neighboring colonies and in early 1690, the Leisler militia took control of Albany.

1691-1776

Conditions at sea delayed the ship carrying Governor Henry Sloughter, and it was Lieutenant Governor Richard Ingoldsby who was first to arrive in New York. Ingoldsby demanded that Leisler surrender the city to him, but Leisler refused on the ground that Ingoldsby's royal commission was not available for inspection. When Governor Sloughter (and the royal commissions) arrived in New York on March 19, 1691, Leisler and his followers complied with the order to surrender, but as they left the fort they were arrested and imprisoned. Later that year, Leisler was tried for treason.

Governor Sloughter's commission authorized him to call a representative assembly elected by the freeholders in the counties of New York, Kings, Queens, Suffolk, Westchester, Richmond, Albany, Ulster and Dutchess. Representatives were required to take oaths of allegiance and Test oath before taking office.1 From 1692 forward, the English Privy Council administered the Province of New York, appointed the royal officials (Governor, Lieutenant-Governor, Attorney-General and members of the Governor’s Council) and served as the court of final appeal for the Province. In 1735, the New York Governor ceased to participate in Council meetings and from then on the Province's government took the familiar form of an executive (Governor), upper chamber (the Council) and lower chamber (the Assembly).

At the first session, the Assembly passed an Act on the Rights and Privileges of Citizens and an act setting up a new judicial system. Chapter 4 of the Laws of 1691 set up a permanent judicial system consisting of the Court of Chancery, the Supreme Court of Judicature, the Court of Common Pleas, Courts of Sessions and Justices’ Courts.

In the early years of the 18th century, the English authorities used the threat of criminal prosecutions to quell political opposition as is evidenced by the Leisler (1691) and Bayard (1702) treason trials. In Cosby v. Van Dam (1733) and Crown v. John Peter Zenger (1735), the colonists' growing resistance to arbitrary governmental action was supported by the increasing sophistication of the New York bar and the independence of the Province's juries. Slave holding, common in the Province, led to the iniquitous persecutions of the New York Slave Insurrection (1741) while the case of Forsey v. Cunningham (1764) established that the Crown did not have the authority to amend or reverse a jury verdict. And just before Independence, Crown v. Prendergast (1766) focused on the iniquities of manorial tenure that led to the Anti-Rent War in 19th century upstate New York..

The Provincial Assembly held its final session in April 1775. Meantime, in May 1774, some residents of New York City formed the Committee of Fifty-One and sent letters to the other twelve colonies suggesting a general congress of representatives to take action "for the security of our common rights." Throughout New York, elections were held and representatives selected to attend the First New York Provincial Congress. This body chose delegates to attend the Continental Congress that met at Philadelphia on September 5, 1774 and set up a union of the colonies.

Delegates to the Second Provincial Congress were elected and met intermittently between December 1775 and May 1776. In April 1776, delegates to the Third Provincial Congress were elected but when, on May 10, 1776, the Continental Congress recommended that the colonies set up permanent governments, the Third Provincial Congress called for election of representatives specifically authorized to do so. The Fourth Provincial Congress met in White Plains on July 9, 1776 to consider the Declaration of Independence proclaimed in Philadelphia on July 4, 1776 and unanimously adopted a resolution "that the reasons assigned by the Continental Congress for declaring the United Colonies free and independent states are cogent and conclusive, and that, while we lament the cruel necessity which has rendered that measure unavoidable, we approve the same, and will, at the risk of our lives and fortunes, join with the other colonies in supporting it." The next day, the Fourth Provincial Congress became the Convention of the Representatives of the State of New York. It set up a committee to draft a State Constitution and requested all magistrates and judges to exercise their respective offices under the authority and in the name of the State of New York.


NOTES

1) Members of Assembly were required to take the oaths prescribed by 1 William and Mary, c 8 (1688 [9]). This requirement continued during the colonial period.

"I, A. B., do sincerely promise and swear, that I will be faithful and bear true allegiance to Their Majesties King William and Queen Mary; so help me God.

"I, A. B., do swear that I do from my heart abhor and detest and abjure, as impious and heretical, that damnable doctrine and Position, that Princes excommunicated or deprived by the Pope or any authority of the See of Rome may be deposed or murdered by their subjects, or any other whatsoever.

"And I do declare, that no foreign Prince, Person, Prelate, State, or Potentate, hath or ought to have any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual, within this realm. So help me God, etc."

The "Test" refers to the requirements of 25 Car. II., c. 2 (1672), which provided that no person was entitled to hold a public office unless he had "received the sacrament of the Lord's Supper according to the usage of the Church of England," and had also made a written declaration against the doctrine of transubstantiation.



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