trary to those of England were allowed; and taxes were to be levied by authority of a general assembly.' The peace of Breda, in 1667, confirmed the title in the conquerors by the rule of uti possidetis. In the succeeding Dutch war the colony was reconquered; but it was restored to the Duke of York upon the succeeding peace of 1674.3 § 113. As the validity of the original grant to the Duke of York, while the Dutch were in quiet possession of the country, was deemed questionable, he thought it prudent to ask, and he accordingly obtained, a new grant from the crown in June, 1674. It confirmed the former grant, and empowered him to govern the inhabitants by such ordinances, as he or his assigns should establish. It authorized him to administer justice according to the laws of England, allowing an appeal to the king in council. It prohibited trade thither without his permission; and allowed the colonists to import merchandize upon paying customs according to the laws of the realm. Under this charter he ruled the province until his accession to the throne. No general assembly was called for several years; and the people having become clamorous for the privileges enjoyed by other colonists, the governor was, in 1682, authorized to call an assembly, which was empowered to make laws for the general regulation of the state, which, however, were of no force without the ratification of the proprie 48. 1 1 Chalmers's Annals, 575, 577, 579, 597; Smith's New-Jersey, 44, 2 1 Chalmers's Annals, 578; 2 Doug. Summ. 223. 3 1 Chalmers's Annals, 579; 1 Holmes's Annals, 364, 366. 4 Smith's New-York, 61, [32]; 1 Chalm. Annals, 579. 5 1 Chalmers's Annals, 579, 580. 61 Chalmers's Annals, 581, 583; Smith's New-York, 123, 125, 126, [72, 75.] tary. Upon the revolution of 1688, the people of NewYork immediately took side in favour of the Prince of Orange. From this era they were deemed entitled to all the privileges of British subjects, inhabiting a dependent province of the state. No charter was subsequently granted to them by the crown; and therefore they derived no peculiar privileges from that source.3 § 114. The government was henceforth administered by governors appointed by the crown. But no effort was made to conduct the administration without the aid of the representatives of the people in general assembly. On the contrary, as soon as the first royal governor arrived in 1691, an assembly was called, which passed a number of important acts. Among others was an act virtually declaring their right of representation, and their right to enjoy the liberties and privileges of Englishmen by Magna Charta.1 It enacted, that the supreme legislative power shall for ever reside in a governor and council appointed by the crown, and the people by their representatives (chosen in the manner pointed out in the act) convened in general assembly. It further declared, that all lands should be held in free and common soccage according to the tenure of East Greenwich in England; that in all criminal cases there should be a trial by a jury; that estates of femes covert should be conveyed only by deed upon privy 1 Chalm. Annals, 584, 485; Smith's N. York, 127, [75] ; 1 Holmes's Annals, 409. — In the year 1683 certain fundamental regulations were passed, by the legislature, which will be found in an Appendix to the second volume of the old edition of the New-York Laws. 2 1 Holmes's Annals, 429; Smith's New-York, 59. 31 Chalm. Annals, 585, 590, 591, 592. 4 1 Holmes's Annals, 435; Smith's New-York, 127, [75, 76]; Acts of 1691. examination; that wills in writing, attested by three or more credible witnesses, should be sufficient to pass lands; that there should be no fines upon alienations, or escheats and forfeitures of lands, except in cases of treason; that no person should hold any office, unless upon his appointment he would take the oaths of supremacy, and the test prescribed by the act of Parliament;1 that no tax or talliage should be levied but by the consent of the general assembly; and that no person professing faith in Jesus Christ should be disturbed or questioned for different opinions in religion, with an exception of Roman Catholics. The act, however, was repealed by king William, in 1697.2 Another act enabled persons, who were scrupulous of taking oaths, to make in lieu thereof a solemn promise to qualify them as witnesses, jurors, and officers. In the year 1693, an act was passed for the maintenance of ministers and churches of the Protestant religion. New-York (like Massachusetts) seemed at all times determined to suppress the Romish church. In an act passed in the beginning of the last century it was declared, that every Jesuit and Popish Priest, who should continue in the colony after a given day, should be condemned to perpetual imprisonment; and if he broke prison or escaped and was retaken, he was to be put to death. And so little were the spirit of toleration and the rights of conscience understood at a much later period, that one of her historians3 a half century afterwards gave this exclusion the warm praise of being worthy of perpetual duration. And the constitution of New-York, of 1777,* 1 1 Holmes's Annals, 435; Smith's New-York, 127, [75, 76]; Prov. Laws of 1691. 2 1 Holmes's Annals, 434; Province Laws of 1691; Smith's N. York, 127, [76]; 2 Kent's Comm. Lect. 25, p. 62, 63. 3 Mr. Smith. 4 Art. 42. required all persons naturalized by the State, to take an oath of abjuration of all foreign allegiance, and subjection in all matters, ecclesiastical as well as civil. This was doubtless intended to exclude all Catholics, who acknowledged the spiritual supremacy of the Pope, from the benefits of naturalization. In examining the subsequent legislation of the province, there do not appear to be any very striking deviations from the laws of England; and the common law, beyond all question, was the basis of its Jurisprudence. The common law course of descents appears to have been silently but exclusively followed; and perhaps New-York was more close in the adoption of the policy and legislation of the parent country before the Revolution, than any other colony. 1 2 Kent's Comm. Lect. 25, p. 62, 63. 2 I do not find any act respecting the distribution of intestate estates in the statute book, except that of 1697, which seems to have in view only the distribution of personal estate substantially on the basis of the statute of distribution of Charles the Second. CHAPTER XI. NEW-JERSEY. 115. NEW-JERSEY, as we have already seen, was a part of the territory granted to the Duke of York, and was by him granted, in June, 1664, to Lord Berkeley and Sir George Carteret, with all the rights, royalties, and powers of government, which he himself possessed.1 The proprietors, for the better settlement of the territory, agreed in February, 1664-1665 upon a constitution or concession of government, which was so much relished, that the eastern part of the province soon contained a considerable population. By this constitution it was provided, that the executive government should be administered by a governor and council, who should have the appointment of officers; and that there should be a legislative or general assembly, to be composed of the governor and council, and deputies, chosen by the people. The general assembly were to have power to make all laws for the government of the province, so that "the same be consonant to reason, and as near as may be conveniently agreeable to the laws and customs of his majesty's realm of England;" to constitute courts; to levy taxes; to erect manors, and ports, and incorporations.2 The registry of title deeds of land and the granting thereof, as a bounty to planters, were also provided for. Liberty of conscience was allowed, and a freedom from molestation guaranteed on account of any difference in opinion or practice in matters of religious 1 1 Chalm. Ann. 613; Smith's New-York, p. 31 [11.]; Smith's N. Jersey, 60; Marsh. Colon. 177 to 180; 2 Doug. Summ. 220, &c. 231, 267, &c. 2 Smith's New-Jersey, 6, Appx. 512; 1 Chalm. Annals, 614. |