had borne away for New-York. "One Captain Kidd lately arrived here, and produced a Commission under the Great Seal of England for suppressing of Piracy. When he was here many flockt to him from all parts, men of desperate fortunes and necessitous, in expectation of getting vast treasure. He sailed from hence with 150 men, as I am informed. . . It is generally believed here they will have money per fas aut nefas; that if he miss of the design intended for which he has Commission, twill not be in Kidd's power to govern such a hord of men under no pay," which surmise proved to be true. The sequel of Kidd's enterprise, however, belongs to a succeeding chapter. The outcome of the examination was unfavorable to Fletcher. The Lords of Trade reported to the king that his proceedings concerning the pirates "were contrary to his duty and an encouragement to Piracy"; and, on the land grants, that "his having made such large grants of land to single persons without due caution for improvement, was not for your Majesty's service, nor did it tend to the settlement of those parts"; and recommended that the charges be referred to the AttorneyGeneral for further action.

Fletcher attributed the decision to the influence of Bellomont and Livingston. "I cannot be ignorant," he said, in the letter above quoted, “that there are two Scotchmen got into credit who are my mortal enemies, men that are able not only to trouble a Province, but to turn it upside down; and if these men can by successive complaints keep me under prosecution they have their ends." And again: "When I consider the cloud I am under, and the bitterness with which I am pursued even to gall, and that all my actions are ransacked, 'tis truly a wonder that in so many years administration I should not have fallen into more absurdities and errors." And on August 5, 1698, at London, he wrote Mr. Blathwayt about being prosecuted by the Earl of Bellomont, and observing "the great credit his Lordship has with persons in the chiefe Stations and trust here. . . . I am confounded at the design and meaning of it; especially, looking back at the five and thirty yeares that I have borne Commission under the Crown of England, without the least reproach or impeachment of my reputation, and after nine years service in the war of Ireland and America, to become a castaway in the rear of my days is no small mortification to me."

The king, however, seems to have interposed in favor of a faithful servant; at least we discover no evidence of further proceedings against him. From certain expressions in a letter of Bellomont's it appears that the Bishop of London espoused his cause. Of Benjamin Fletcher's subsequent career nothing is known, nor is there any record of either the time or place of his death.

[Among the Archives of the English Government is an ancient document dated 1698, descriptive of our city, from which the following quaint and curious extract is taken. EDITOR.]

"The citty of New Yorke was first founded by the people of the Nether Dutch nation, in the year of our Lord 1619, and had then granted to them by the Staets Generall of ye United Provinces and the West India Company, sundry rights and priviledges. Since the first settlement of the said citty, it hath been allways the metropolis, staple-porte, and the only publick mercate [market] of the whole Province; and hath allways without interruption enjoyed all the aforesaid priviledges, according to its growth and improvement; and so by that means hath been allways termed an ancient eitty, and that justly, there being nothing more ancient in this Province then the time when itt was first settled, and att that time itt was incorporate by the name of the Citty of New Amsterdam, and governed in its trade by its own laws; and albeit itt is not one thousand years old, yett itt is older than any other citty corporation within this Province, all or most of the settlements of the same proceeded from itt, and fell upon the improvement of tillage, whereby graine became the staple community [commodity] of the Province; and the cittizens of the said citty no sooner perceived that there were greater quantities of wheat raised then could be consumed within the said Province, but they contrived and invented the art of bolting, by which they converted the wheat into flower, and made itt a manufacture not only profitable to all the inhabitants of the Province by the incouragement of tillage and navigation, but likewise beneficial and commodious [accommodating] to all the plantations, and the improvement thereof in this citty is the true and only cause of the growth, strength and encrease of buildings within the same, and of the riches, plenty of money, and the rise of the value of lands in the other parts of the Province, and the livelyhood of all the inhabitants of this citty did chiefly depend thereon.

"Now the reason why this citty was so incorporated and had granted to them the aforesaid rights and priviledges, is because the first founders of the same were not suffered by the then government to extend themselves into particular settlements, until first there should be gathered together a sufficient number of people at this place that might be of a reasonable force for their common security and defence; whereupon they began to fortify, and finding this place of their situation to be very barren, and unfit by their industry to make them any return for their subsistence, it was therefore projected that all such as would fix themselves at this place, should only adict themselves to trade for the accommodation of those that should go settle in the country, that they might be plentifully supplied with such things as was necessary for cultivation, and likewise that they might finde at this place a mercate to vend what they raised from their industry, and that the trade thereof might be more regularly managed the said inhabitants had power given them to make laws, rules, and orders for the government of the same trade and the good and weale of the Burgers and inhabitants of the said citty, by which reglement and good order this city did encrease in people, strength, and riches, to such a degree that it became the envy of the crown of England.

"While this province was under the Dutch Government, they were so jealous of the trade of this citty that they would not permit any settlement to be made in any place within their jurisdiction, but under such restrictions as they thought convenient for the security of their trade, and particularly did restraine the inhabitants of Hudsons River and Long Island that they should not plant nor manadge any parte of husbandry without paying one-tenth parte of what they raised unto the government, and besides did oblige the planters that they should not apply themselves to any trade but only to husbandry, and that the inhabitants of Albany should only apply themselves unto the Indian trade, and all their grants or patents had that reservation or tenure in them."

FAC-SIMILE OF A PATENT

FROM THE ORIGINAL IN THE POSSESSION OF THE EDITOR.
SAMUEL BAYARD, SON OF PETER BAYARD, AND ELDEST NEPHEW AND GODSON OF

OF NEW-YORK CITY PROPERTY, GRANTED BY GOVERNOR FLETCHER TO

STUYVESANT.

522

CHAPTER XIV

CONSTITUTIONAL AND LEGAL HISTORY OF NEW-YORK IN THE SEVENTEENTH CENTURY

EW States present in a period as brief so many political changes as our own. Settled secondarily by one body of the Teutonic stock, it was soon transferred as a result of warfare to another people of like origin, but possessed of widely different institutions. In course of time the stronger people abrogated the political and legal institutions of those they had conquered; but this result was accomplished consistently with the forms of law. The constitution and laws which grew up among a people thus blended by conquest have, in turn, been subjected to many modifications, attributable

to dynastic influences, to political nuurive

revolutions, to legislation, or to

de nassan:

the subtler and less majestic forces referable to a voluntary and extended immigration into this territory of persons of widely different origin. Of such extensive causes any outline can be only suggestive.

A portion of the territory now embraced in this great and splendid modern State was occupied under feeble Dutch auspices about the year 1614, a ship bearing the Dutch flag having discovered the Hudson River in 1609. Prior to the incorporation of the Dutch West India Company in 1621, under the Stadholderate of Prince Maurice of Orange-Nassau, who was actively interested in its establishment, the settlements in New Netherland consisted of one or two fortified trading stations, the commandants of which exercised the necessary civil jurisdiction under trading licenses or charters. In 1626 the Dutch first established a rudimentary but adequate form of government for New Netherland, the nature and extent of which comprehend the first phase of our subject; for by assumptions of our jurisprudents the rights and title of the aboriginal inhabitants of this territory are substantially ignored, or do not figure in the jurisprudence of the modern State-the aborigines being said by jurists to have had no government recognizable by the law of nations and no institutions compatible with our standard of civilization. Curiously

enough, what rights the aborigines enjoyed after the European ingress seem to have been relegated to the domain of ethics rather than to that of law, although the Europeans often went through the form of extinguishing the Indian's title to the lands wanted for European occupation.

The constitution and laws first enjoyed by the early Dutch inhabitants of New Netherland were consistent with the colonial status. They depended largely on the terms of the charter granted by the States-General of Holland to the Dutch West India Company in 1621. In any survey of the jurisprudence and institutions of a European colony the controlling factor is the seat of the sovereign power. A colony is not a state; its government and institutions may be to some extent autonomous, but they are essentially ab extra, not ab intra. Therefore the politics of all colonies irresistibly tend to autonomy or to secession from the mother country. To comprehend this fact, as English statesmen now do, is to understand the dynamics of colonial politics and colonial institutions.

The Nether Dutch of England and Holland were from the first, and still are, the really strong colonial powers of Europe. Historically, New-York affords one example of their rivalry, Africa now another. The wonderful partition which followed the Columbian voyages to American territory proceeded on principles which still figure in our jurisprudence, and which, in the sixteenth century, were recognized by both England and Holland. This principle, in common with most principles of international law, is a refinement of the Roman law. International ownership jure occupationis has two elements: priority of discovery and priority of possession must concur in order to give valid title to res nullius in the shape of territory. The powers in question both claimed title to New Netherland by right of prior occupancy and discovery. The Dutch claimed the entire territory between the Delaware and the Connecticut rivers, or between Virginia and New France (40° and 45° N. latitude). They actually settled small scattered tracts, notably those on the shores of the Hudson River and its confluents. As Sir Travers Twiss has well pointed out in his work on "International Law," the investitive facts relating to title to new countries jure primæ occupationis are often very complicated, especially when the only actual occupation is at the embouchure of a river penetrating far inland. New-York affords a good illustration of the result of such complexity, for her jurisprudence is still slightly affected by the ancient contention as to the paramount right of the original European claimants to her territory. Indeed, to this day lawyers contend over the facts involved in the English and Dutch claims to New Netherland. The reason of this long dispute is very simple if we have recourse to the juridical results which are supposed to flow from such conflicting