The Discovery and Settlement 
 
 OF 
 
 NEW YORK 
 
 CONSIDERED IN ITS LEGAL ASPECT. 
 
 BY 
 
 WILLIAM HENRY ARNOUX. 
 
 The Evening Post Job Print, New York. 
 
IE* ICtbrtB 
 
 SEYMOUR DURST 
 
 When you leave, please leave this book 
 
 Because it has been said 
 "Ever thin^ comes f him who waits 
 
 Except a loaned book." 
 
 Avery Architectural and Fine Arts Library 
 Gift mi si ymour B. Di rst Old York Library 
 
TEC IE 
 
 DISCOVERY AND SETTLEMENT OF NEW YORK 
 
 CONSIDERED IN ITS LEGAL ASPECT. 
 
 To properly determine whether the Dutch ever 
 obtained any title to the soil of Manhattan Island, 
 it becomes necessary to investigate the history of 
 the discovery and settlement of America, and in 
 so doing to begin at a time prior to the original 
 discovery of this continent to establish the legal 
 principles applicable thereto. 
 
 The Portuguese first discovered the African Con- 
 tinent, and to obtain the proper title thereto, ap- 
 plied to the Pope for a grant of the land which 
 they had discovered. This grant gave them the 
 whole of the East from Cape Non to India. 
 
 In the spring of 1493, after the return of Colum- 
 bus, the Spanish, faithful to the traditions of the 
 Church, that the Pope as the Vice-Gerent of God 
 had the absolute power of disposing of all land 
 occupied by the heathen, sent a deputation to 
 Pope Alexander VII., from whom they obtained a 
 grant In May, 14:»:>. of all the continents and 
 islands known and unknown, discovered and to be 
 discovered on a line one hundred miles west of the 
 Azores, and extending from pole to pole. 
 
 The discovery of Columbus aroused Western 
 Europe to make further discoveries, and in 1497, 
 John Cabot, a Venetian, with his three sons, in- 
 
2 
 
 eluding Sabastian, whose fame has overshadowed 
 all the others, authorized by King Henry VII., 
 fitted out an expedition from Bristol, then the 
 principal seaport of England, and first discovered 
 the Continent of America. He laid his course to- 
 wards Iceland and from thence changing to the 
 westward, eventually reached land, as he believed, 
 on the eastern coast of Asia, in the territory of 
 the Grand Cham. He landed on Labrador, on St. 
 John's Day, the 10th day of June, 1497. He 
 formally set up first the cross, next the standard 
 of England, and last the banner of St. Mark's, and 
 took possession of the territory on behalf of the 
 King of England, naming the place St. Johns, in 
 honor of the day, now supposed to be by some 
 Cape Breton. • The exact spot probably can never 
 be absolutely determined. It is enough to know 
 that he first discovered the continent and landed 
 somewhere and took possession. 
 
 He sailed some distance along the coast as far 
 southward as the 38° north latitude, and then re- 
 turned to England. 
 
 The following year, under the same authority, 
 he sailed across the Atlantic and skirted the shore 
 from Labrador to the Gulf of Mexico. The father 
 died before his return, leaving the expedition in 
 the care of his son Sebastian. Under the law of 
 nations, as it then existed in Europe, and has been 
 recognized by the Supreme Court of the United 
 States, these two voyages gave to England the 
 title to three thousand miles of the continent as 
 the original discoverer, besides the untold riches of 
 the deep in the food fisheries of Newfoundland and 
 the whale fisheries of the Artie Sea in which she 
 shared with the other nations. "We derive our 
 rights hi America," said Edmund Burke, " from 
 the discovery of Sebastian Cabot, who first made 
 the North American continent in 1497. The fact 
 is sufficiently certain to establish a right to our 
 settlement in America." "To this discovery," 
 says Chief Justice Marshall (Johnson v. Mcintosh, 
 
3 
 
 8 Wheat., 570), "the English trace their title. 
 * * * The absolute ultimate title has been con- 
 sidered as acquired by discovery. * * * If the 
 discovery be made and possession of the country 
 be taken under the authority of existing govern- 
 ment which is acknowledged by the emigrants, it 
 is supposed to be equally well settled that the dis- 
 covery is made for the whole nation, that the 
 country became a part of the nation." 
 
 And Taney, Ch. J., in Martin v. Waddell, 16 
 Peters, 3G7, which involved the land in New York 
 and New Jersey, under the patent to the Duke of 
 York, says: "The English possession in America 
 was not claimed by right of conquest, but by 
 right of discovery. The discoveries made were 
 by persons acting under the authority of the Gov- 
 ernment and were for the benefit of the nation." 
 
 Pursuant to the terms of the Patent from the 
 King, Cabot was entitled to the exclusive occupation 
 and possession of all the lands which he had thus 
 discovered. 
 
 Sebastian Cabot endeavored for } r ears fruitlessly 
 to enlist the capital of Englishmen to prosecute 
 his discoveries, and in 1512 left England disheart- 
 ened and engaged in the service of the King of 
 Spain. He subsequently in 15-iS returned to Eng- 
 land. In March, 1551, he was granted a pension 
 by the King, which, on the 27th day of Novem- 
 ber, 1555, was renewed to him by Queen Anne. 
 The last official notice we find relating to him 
 is that on the 27th day of May, 1557, he resigned 
 this pension; and he died about 1559, but the ex- 
 act date of his death is unknown. No stone marks 
 his last resting place. No monument in England 
 or America commemorates the fame of the original 
 discoverer of America. 
 
 The next explorers were the Portuguese, who 
 also sought to find a new way to the East Indies 
 that did not encroach upon the Spanish grant, 
 which was then considered to give them a mon- 
 opoly by way of South America. In the summer 
 
4 
 
 of 1500 Gasper Cortereal, having obtained from 
 Emanuel, then King of Portugal, a license to dis- 
 cover new islands, sailed from Lisbon to the north- 
 west, and returned with a report that he had 
 landed in a country he named Terre Verde (Green- 
 land). The next year he renewed his search and 
 sailed along the coast of North America for six 
 hundred leagues without finding any end to the 
 land. 
 
 In 1502 his brother, Miguel, sailed to North 
 America and found many estuaries and large 
 rivers and safe havens. Others followed in this 
 track in pursuit of the cod upon the fishing banks, 
 and a large traffic was thus inaugurated. 
 
 In 1524 Giovanni de Verrazano, a Florentine, 
 under the authority of Francis I., King of France, 
 sailed to North America with the intention of 
 reaching Cathay, on the extreme coast of Asia. 
 He explored the coast from the Tropic of Cancer 
 to the 50th degree north latitude. He visited the 
 Bay of New York with its "grandissima riviere," 
 and from thence he sailed to Newport. 
 
 Doubt has been expressed in regard to the verity 
 of this discovery. No question has been made 
 that the description shows that the author of the 
 letter visited Newport and New York; but it has 
 been claimed that the letter which he wrote, an- 
 nouncing his discovery, was a forgery. In view 
 of which Mr. Bancroft, in a later edition of his 
 history of the United State, has omitted all refer 
 ence to Verrazano. Subsequent to this publication 
 recent discoveries have established beyond ques- 
 tion the authenticity of this letter.. 
 
 On the 27th day of March, 1523, Esteban 
 Gomez, a Portuguese, who had been the chief 
 pilot of Magellan, obtained a concession from the 
 King of Spain for an expedition to the northwest 
 to find a passage to Asia. 
 
 In February, 1525, he sailed from Corunna, a 
 port in the north of Spain, and was absent ten 
 months. He ran along the coast from Florida to 
 
5 
 
 41° north latitude, and in the course of his voyage 
 he discovered a large river in latitude 40° and 41°, 
 which he named Rio de Antonio, because he entered 
 the harbor on the 13th day of June, St. Anthony's 
 day. It is certain, therefore, that he entered 
 the Bay of New York and sailed up the Hudson 
 River. In honor of his discovery, the later Span- 
 ish seamen who followed in his track, and were 
 familiar with the river, called it Rio de Gamas. 
 
 The Spaniards engaged largely in the catching 
 of cod on the fishing banks, sailing across the At- 
 lantic to the West Indies, and thence skirting 
 timidly along the coast to Newfoundland. In 
 fact, for nearly a century the customary route for 
 vessels visiting America was to sail first to the 
 West Indies, and then along the shore as far 
 north as Labrador, and to return by retracing their 
 course In these voyages the Spanish visited certain 
 ports, which were called "stages," one of which 
 was New York. 
 
 No attempt was then made to settle any part of 
 the coast, the principal commerce being the bring- 
 ing of fish from the banks of Newfoundland to 
 Europe. 
 
 In 1534 Jacques Cartier, under a commission 
 from the King of France, founded a settlement in 
 -Canada. In 1564 Ribault and Laudonniere, under 
 a similar commission from Charles IX., colonized 
 the Carolinas, and the French claimed all the inter- 
 mediate territory. The English always conceded 
 that the French had territorial rights. They only 
 disputed their extent. 
 
 On the 11th day of June, 1578, Elizabeth, Queen 
 of England, granted to Sir Humphrey Gilbert a 
 patent in fee of all lands in America two hundred 
 leagues in either direction north and south from 
 the place of his landing, and from ocean to ocean; 
 his intent being to found a station from which he 
 could explore and discover, what was firmly be- 
 lieved to exist, a northern passage to Asia. In 
 November, 157S, with a fleet of seven vessels, one 
 
6 
 
 of which, named the Falcon, was commanded by 
 his half-brother, who subsequently became famous 
 as Sir Walter Ralegh, he sailed from England 
 with three hundred and fifty men. Unfortunately 
 the seasou was unpropitious, and the voyagers 
 were compelled to return. Nothing daunted, the 
 noble knight, in June, 1583, again sailed for 
 America with a fleet of four vessels, and, as he 
 says, " On the fifth of August I entered here (St. 
 John's) in the right of the Crown of England, and 
 have engraven the arms of England, divers Span- 
 iards, Portuguese and other strangers witnessing 
 the same." Then he sailed for Norumbega, and 
 in latitude 40° lost his great ship the A dmiral with 
 most of his supplies, which compelled him again 
 to return. His ship foundered in midocean on the 
 return voyage, and he and all the crew perished. 
 Walter Ralegh, on the 20th day of March, 1584, 
 obtained a similar grant from Elizabeth of all 
 land extending two hundred leagues north and 
 south of any point where he might locate a colony. 
 The colony that he sent out under this grant landed 
 on the 4th of July at the haven of New Inlet, and 
 "took possession in the name of the Queen's most 
 excellent Majesty, as rightful queen and princess 
 of the same," and subsequently made a settlement 
 upon Roanoke Island. His two hundred leagues 
 being calculated on degrees of latitude carried his 
 ownership to Maine. Although he expended a 
 fortune in the attempt to colonize, his efforts 
 proved abortive, and on the 10th of June, 1586, the 
 colonists returned to England. Ralegh in 1589 
 granted a patent to ' ' the Governors and assistants 
 of the City of Raleigh, in Virginia," which lapsed in 
 1596 without accomplishing anything. His title to 
 the land patented to him was recognized by the 
 English courts, for in 1602 one Gosnold came to 
 the coast of Massachusetts and loaded his ship with 
 sassafras and cedar wood from the Island of Cut- 
 tyhunk. Upon his arrival in England Sir Walter 
 Ralegh had his cargo confiscated, because he had 
 
7 
 
 trespassed upon his domain. It follows if his title 
 extended to Massachusetts, it embraced New York. 
 
 In November, 1603, Sir Walter Ralegh \Vas at- 
 tainted and convicted of treason, for which in 
 1617 he was beheaded. Under the law of England 
 the execution of the sentence was not necessary to 
 cause the forfeiture or escheat of the property. 
 Petersdorff in his Abridgement lays it down that 
 "by the verdict of guilty goods and chattels are for- 
 feited to the crown, upon judgment in attainder 
 the lands are divested " (2 Petersdorff, Abr., 491). 
 And Blackstone says ; ' by attainder in high treason 
 a man forfeited to the crown all his lands and ten- 
 ements of inheritance." 
 
 The title to this property having thus reverted 
 to the crown, King James I. on the 16th of April, 
 160G, made the famous charter to the Virginia Col- 
 ony. This is contained in one instrument, but it 
 divides the patentees into two parts. The one 
 called the First Colony of Virginia was to have the 
 territory in America, extending from 31° to 41°; 
 the Second Colony of Virginia was to have the ter- 
 ritory extending from 39° to 45°. It will thus be 
 seen that Manhattan Island and the land adjacent 
 thereto was included in the patent to both colonies. 
 It being the intent that they should occupy in 
 severalty the northerly and southerly portions, 
 while the central portion should be in common to 
 prevent conflicting interests. 
 
 This grant the States General officially recognised 
 on the 24th day of April, 1608, by permitting Sir 
 Thomas Gates, Captain of English soldiers in their 
 employ, to be absent one year /'to command in 
 the country of Virginia in colonizing the said 
 countries.'' 
 
 These Colonies continued under this patent for 
 a number of years, until their interests became 
 hostile and they both obtained from the Crown 
 separate patents for their several portions The 
 one known as the Virginia Colony and the other 
 
8 
 
 the New England Colony. The former created in 
 1609, the latter on the 16th of Nov., 1620. 
 
 The Dutch were the last ofall the maritime 
 powers to visit America. In 1596 certain Dutch 
 merchants obtained from the States General the 
 incorporation of a company known as " The 
 Greenland Company," which proposed by that 
 northerly route to find a way to the East Indies. 
 In 1098 the ships of this company entered the port 
 of New York and their crews built some huts upon 
 Manhattan Island where they wintered. Nothing 
 further was done by them in America until 1609 
 when Henry Hudson, who had previously been in 
 the employ of the Muscovy Company of England, 
 sailed in the employ of the East India Company to 
 discover a route to the East Indies by way of 
 Greenland, in which he failed, and then according 
 to the suggestion of Captain John Smith, sailed to 
 Maine and on the 4th of Sept., 1609, came 
 to the Hudson River and ascended as far as 
 Albany. When he discovered that the river 
 which he supposed would lead him to the Indies 
 was becoming an unnavigable stream, he returned 
 to England and never renewed the attempt in 
 these waters. He never claimed to have been a 
 discoverer, but he kept a log which accurately re- 
 corded his voyage and its events. In 1611 some 
 Dutchmen fitted out some ships destined to look 
 for a north passage to China, and on the 1st day 
 of Feby., 1611, the States General resolved to pro- 
 vide them with letters to the princes of the coun- 
 tries at which they might arrive, written in such 
 language and characters as might be most useful. 
 These vessels landed at New York, and in 1614 
 their owners petitioned the Government for an ex- 
 clusive grant of trading to this territory and the 
 harbor which they thought they had discovered. 
 Here finding the fur trade profitable, they had a 
 Governor for the little Colony and they built three 
 or four houses and a warehouse for the storage of 
 their furs. This petition was granted, and a Dutch 
 
9 
 
 monopoly was granted to them which continued 
 until 1621. 
 
 • The year previous to this petition Captain Argall 
 in the employ of the Virginia Colony sailed with 
 an armed fleet to the coast of Maine, to expel the 
 French, and on his return- he stopped in the Bay of 
 New York, discovered the Dutchmen there and 
 threatened them with extermination if they did 
 not recognize the authority of Virginia, thereupon 
 they paid him the tribute, which he had demanded. 
 This event has likewise been strongly criticized, and 
 by some historians absolutely denied, but the better 
 authorities show that this was true. There is no 
 dispute that Capt. Argall did drive the French 
 from Port Royal and Mount Desert. Part of them 
 he took prisoners and carried to Virginia and 
 the rest he sent in an open boat to sea. Having 
 thus compelled the recognition of the authority of 
 Virginia by force, as far north as Maine, it is very 
 certain that if he knew of the existence of the 
 Dutch Colony at an intermediate point, he would 
 not suffer them to remain unmolested; and as the 
 port of New York had become a recognized 
 stopping place for vessels sailing along the coast, 
 he undoubtedly would have entered the port on 
 his going or returning, on the two voyages which he 
 made to Maine, during that summer. Without 
 citing the authorities at length it is sufficient to say 
 that the Rev. Dr. De Costa has established the 
 weighty fact beyond dispute that the Dutch settlers 
 on Manhattan Island did in 1(113 recognize and ac- 
 knowledge the English sovereignty to that territory. 
 
 In 1619 the English again under Capt. Dormer, 
 molested theDutchand threatened to confiscate 
 their property. Whereupon th* 1 Dutch promised 
 to come " thether no moe." 
 
 In L621 after many years of laborious and patrio- 
 tic effort William Usselinx and his compatriots 
 succeeded in procuring from the States General 
 the incorporation of the West India Company for 
 the principal purpose of attacking the commerce 
 
10 
 
 of Spain. Into this company was merged the 
 association of traders who had previously obtained 
 the right to trade in New Netherland. 
 
 The West India Company originally had no in 
 tention of colonizing in north America, It made 
 New York a naval station, from whence their 
 ships might attack the commerce of Spain, and it 
 was so successful that within a few years it boasted 
 that "it had exhausted the treasury of the King 
 of Spain by depriving him of so much silver, which 
 was as blood from one of the arteries of his heart. 
 
 The story of the exodus from England to Hol- 
 land and from Holland to Plymouth Rock of those 
 Godly men who are fondly remembered as the Pil- 
 grim Fathers is too often told to be repeated here. 
 They, however, bear a part in the legal history of 
 New York that needs to be mentioned. In 1617 
 they concluded to leave Holland, and they then 
 determined to settle in New York. Thereupon, 
 they sent a delegation to England to obtain a char- 
 ter. Two years elapsed before they were able to 
 obtain a favorable answer. Finally, in February, 
 1620, the First Colony of Virginia granted to John 
 Pierce and his associates a patent under which the 
 pilgrims sailed in the Mayflower to America. Be- 
 fore landing on Plymouth Rock, on the 11th of 
 November, 1620, in the cabin of the Mayflower, 
 they designated themselves the loyal subjects of 
 King James, who were undertaking to plant the 
 first colony in the northern part of Virginia. In the 
 meantime the King had granted the separate char- 
 ter to the New England Colony, and on the first 
 day of June, 1621, the President and Council of 
 New England confirmed to the Pilgrims the 
 Virginia Charter by a patent which embraced New 
 York. On the 15th day of December, 1621, the 
 English Privy Council addressed a letter to the 
 British Minister to the Hague, demanding the re- 
 moval of certain Hollanders who had during the 
 past year intruded upon lands in part of the 
 north of Virginia called New England. The British 
 
11 
 
 ambassador thereupon presented the memorial, 
 and asserted in his own Idler the ineontestible 
 right of the King of England to said country, both 
 by original disco very and jure primce occupations. 
 
 It was this protest that secured the incorporation 
 of tin 1 Wes\ India Company, for its charter con- 
 tained a clause that it obligated itself to protect 
 the Dutch Territory in North America. 
 
 In 1623 the English prepared, by force, to attack 
 the Hollanders in America, to give them fight and 
 spoil and sink them down in the sea, but the 
 Treaty of Southampton prevented the execution of 
 this intention. 
 
 In 1623 the Dutch, under the auspices of the 
 West India Company, made their first permanent 
 settlement upon Manhattan Island. 
 
 The following year terminated the first Colony 
 of Virginia, and, consequently, its claim to juris- 
 diction over Manhattan Island. In 1619 the King 
 having become dissatisfied with the condition of 
 a Cfaiis in that colony, sent over a commission, 
 which brought back an unfavorable report; where- 
 upon, in 1624 by writ of quo warranto, theVirgina 
 charter was annulled. 
 
 In 1626 the Dutch attempted to fortify their 
 claim to this colony by buying of the Indians the 
 Island of Manhattan, supposed to contain twenty- 
 two thousand acres, for twenty-four dollars. It is 
 claimed that this purchase was made by fraud, and 
 that it was consummated by the transfer to the 
 Indians of a quantity of whiskey, in place of their 
 money. However that may be, the Supreme 
 Court of the United States has had before it the 
 question, what title the Indians had in this coun- 
 try, and what the purchaser of such title acquired, 
 and it has been determined that the Indians had 
 simply a possessory title and not any ownership 
 of the soil, and that a purchaser from them ob- 
 tained no more than the right to the possession, 
 subject to the right and title of the owner of the 
 fee. 
 
12 
 
 In 1627 Governor Bradford suggested that the 
 Dutch were trespassing upon English territory, 
 whereupon, the West India Company petitioned 
 the British government to accord to them the 
 benefits of the treaty of Southampton, which was 
 granted by decree of the Privy Council, on the 
 fifth day of September, 1627, and thereby the 
 Dutch again recognized the sovereignty of Eng- 
 land over that territory. 
 
 Up to this time the Dutch never in a single in- 
 stance asserted any title to the territory. They 
 invariably retreated from any discussion upon the 
 subject. 
 
 The original grant from the New England Com- 
 pany to thePlymouthColony extended beyond New 
 York. A grant was also made to Connecticut which 
 included New York, and to Lord Sterling of Long 
 Island and the lands adjacent thereto, within six 
 miles, which likewise embraced New York. Be- 
 sides this every New England charter granted by 
 Charles recited the original grant to the Second 
 colony of Virginia as embracing the territory 
 which included New York. In 1631 the Governor 
 of Virginia and the King granted trading licenses 
 to the English captains to the Dutch plantations. 
 
 The Governor General of Ireland also granted 
 to Sir John Plowden, in 1632, a patent to New 
 York. Of all these Plowden was the first to at- 
 tempt to take possession of his property; he ap- 
 peared and demanded of the Dutch that they 
 should recognize his authority, which they refused 
 to do, upon the ground that his patent was invalid 
 because the seal thereto was broken, and as he had 
 not a sufficient force at his command to compel 
 submission to his claim he found it expedient tore- 
 treat. But the English, continuing thus to patent 
 the land, never admitted that the Dutch had any 
 right here. On the contrary, in 1632, Captain Ma- 
 son denounced the Dutch as interlopers and com- 
 plained of their great trade. When the Eenchxicht, 
 which sailed from Manhattan Island for Holland on 
 
13 
 
 the 19th day of March, 1632, loaded with furs and 
 bearing the first governor who had been recalled, 
 was by stress of weather forced into the Port of 
 Plymouth, in England, the vessel and cargo were 
 seized by the British authorities upon the ground 
 that she had invaded their rights in trading upon 
 British territory. A diplomatic correspondence 
 ensued and the English claimed the territory by 
 right of discovery and ownership. The West India 
 Company laid claim to it because the New England 
 and Virginia Colonies were chartered "upon the 
 express condition that the respective incorporated 
 parties should remain one hundred miles apart 
 from each other, and have so much between them 
 both.'' This statement was incorrect and, if true, 
 would have given the Dutch no right to come in 
 there. The Dutch ambassador added to that rea- 
 son the further one that they had acquired the title 
 of the Indians. Some time after, this vessel was 
 released with the express reservation of his Ma- 
 jesty's right in the premises. In April, 1633, the 
 William , a British vessel, under command of one 
 Elken, came to New York and ascended the Hud- 
 son, in spite of Dutch protests, to trade with 
 the Indians. The Dutch came to the place where 
 he landed and by force drove him away, and the 
 British ambassador made a demand upon the 
 Dutch West India Company for the damages that 
 had been sustained. Whereupon the Company pe- 
 titioned the States General to interfere on its be- 
 half, and after long consideration, on the 25th 
 day of October, 1034, the Government declined to 
 interfere and advised the Company to confer in 
 this matter with the English ambassador. W hat 
 the final result was cannot be ascertained. 
 
 On the 7th day of June, 1635, the President and 
 Council of New England surrendered its great 
 charter to the Crown, to the end that the land 
 embraced therein might be divided into twelve pro- 
 vinces, of which the 9th extended from the Con- 
 
14 
 
 necticut to the Hudson and fell to the share of the 
 Duke of Lenox. 
 
 Wouter Van T wilier, who succeecfed Minuet was 
 the prototype of some of the modern city fathers. 
 He employed servants of the Company who were 
 in its pay, to labor in his private farm, and thus 
 enriched himself at the public expense. In 1639 he 
 was recalled and William, Kief t appointed his suc- 
 cessor. He, in 16-13, planned and executed the most 
 unjustifiable massacre of the Indians ever com- 
 mitted in America. In consequence of which the 
 surrounding Indians became bitterly hostile to all 
 the Dutch settlers indiscriminately, to the apparent 
 surprise of Kieft. who imagined that the blow he 
 had struck would awe them into abject submission. 
 In one week the smiling country was transformed 
 into a frightful and desolate wilderness. On the 
 fourth of March the panic stricken governor pro- 
 claimed a day of general fasting and prayer, with- 
 out bettering the situation. As the spring 
 advanced the Indians became more and more ag- 
 gressive, destroying barns, dwellings and cattle, 
 and preventing the cultivation of the farms. In 
 their distress, in the fall, the wretched settlers sent 
 petitions to the home government either to keep 
 them from starvation or to send vessels that would 
 take them home. One of the documents signed 
 by the eight men who had been selected as the re- 
 presentatives of the Dutch colonists, stated that 
 the Indians had destroyed all their boweries or 
 plantations upon the island and beyond the fort, 
 except three, and that the inhabitants were in 
 peril of their lives. The Government adopted a 
 resolution that the population were neglected by 
 the Company, and was decreasing. This was in 
 striking contrast with the flourishing condition of 
 all the New England settlements. 
 
 On the 23d day of July, 1646, Stuyvesant was 
 sent over as Governer, because of the dissatisfac- 
 tion with his predecessor, and his first endeavor 
 was to settle the dispute in regard to the bound- 
 
15 
 
 aries; the English encroaching upon it from New 
 England on the one side, and from Delaware upon 
 the other. 
 
 In this connection it is interesting to know 
 that in the early days of the discovery and 
 conquest of America, it was customary for 
 every adventurer to take possession in the 
 name of his sovereign, and to put up some en- 
 sign to signify the authority of the home govern- 
 ment. This was done by Columbus and by Cabot. 
 This the Dutch did in Delaware. They affixed a 
 piece of tin to a post. One of the Indian chiefs, 
 not understanding its significance, and attracted 
 by the brightness of the tin, stole it, and to punish 
 this affront, he or one of their number was mur- 
 dered. To avenge this murder, the Indians exter- 
 minated the colonists, and the next vessel that 
 arrived from Holland found that not a living being 
 had been spared. 
 
 No such definite mark of Dutch authority ever 
 appears to have been set up at Manhattan Island; 
 upon the contrary the Dutch apparently endeavor- 
 ed to keep their position in New York as much 
 from the observation of the world, and of the 
 English, as possible, because they anticipated a 
 very profitable business in furs, if they could 
 c arry it on unmolested. But the colony proved to 
 be an expense to the West India Company, almost 
 continuously, so that it became unwilling to ex- 
 pend the moneys necessary for the protection of 
 the colony, or for its development. 
 
 Siuyvesant Wrote letters to the Home Govern- 
 ment, telling them that unless the colony was 
 taken under the wing of the State, instead of being 
 allowed to remain tinder a private corporation, the 
 English would soon displace them. 
 
 In 1647 an agent of Lady Sterling, who held the 
 Long Island patent, demanded of Stuyvesant the 
 surrender of the territory, which he, likePlowden, 
 was unable to enforce, and his demand was re- 
 fused. 
 
16 
 
 In 1649 Stuyvesant effected the settlement of a 
 boundary line between New Netherland and Con- 
 necticut, but the action of the Colony was never 
 ratified in England, and never became effectual. 
 
 In 1650 certain delegates from New Netherland 
 presented a petition to the States General, in which 
 they set forth the calamities that had befallen them 
 through the mismanagement of the West India 
 Company, by which " their territory had became a 
 desert, and the people impoverished, harassed, af- 
 flicted and reduced to utter ruin, while New En- 
 gland was populous, rich, prosperous and driving 
 an immense trade and commerce almost with the 
 entire universe,-' and recommended " in order to 
 block the further progress of the English, that they 
 should provisionally set about hitching on to New 
 Netherland the most distant lands lying between 
 the Dutch nation and the English, which were yet 
 vacant." 
 
 To add to their afflictions, the British Parliament 
 enacted in the same year, that all vessels trading 
 to Virginia and New England without English 
 authority after the 26th day of March, 1651, should 
 be confiscated. The Dutch merchants petitioned 
 the States General to afford them some relief. In 
 the interim, and in January, 1651. England de- 
 manded that the Dutch should surrender some 
 political refugees, which was refused with insults 
 to the English ambassador. Thereupon the Navi- 
 gation Act was passed for the protection of En- 
 glish shipping against the Dutch, which resulted in 
 war between the two countries. 
 
 On the second day of July, 1652, the States Gen- 
 eral for the first time directly interfered in the 
 action of the Colony, and instructed Stuyvesant to 
 take good care and be of a watchful eye respecting 
 the persons he employed during the rupture be- 
 tween that State and England. 
 
 On the second day of February, 1653, the anni- 
 versary of the feast of the Purification of the 
 Virgin, commonly called Candlemas, the little 
 
17 
 
 colony on Manhattan Island, in the midst of the 
 war, became a city. 
 
 In December, 1653, Cromwell became Lord Pro- 
 tector of England, and he immediately opened 
 negotiations for peace, which was concluded in 
 April, 1G54. Thereupon tbe States General directed 
 the West India Company to present to the British 
 Government their pretentions, reckoning from the 
 beginning of 1011 to 1650. This they proceeded 
 to do and a delegation was sent to England, and 
 they wrote back to Holland that they themselves 
 did not consider the claim of the company sub- 
 stantiated by the evidence adduced, and unless 
 better evidence was brought forward, they could 
 not possibly press the claim on the English Govern- 
 ment (3 Asher, 35). Lord Thurloe, Cromwell's 
 minister, asserted the justice of the English claim 
 historically and legally with a vigor and clearness 
 that must have convinced even the Dutch dele- 
 gates. 
 
 In 1050, a census of the citizens was taken and its 
 population numbered one thousand, a large pro- 
 portion of whom were negro slaves, who were 
 cheaper than cattle. 
 
 In 1050, Stuyvesant sent a delegation to re- 
 monstrate with the authorities of Maryland upon 
 their alleged encroachments upon New Netherland, 
 to which the same reply was made as theretofore, 
 that the English were the original discoverers and 
 occupiers of fche land known as Virginia, and that 
 they claimed under the patent to Ralegh in 1584. 
 For the first time the Dutch claimed to derive their 
 title from the King of Spain and the Popes dona- 
 tion, abandoning apparently the foundation upon 
 which they had theretofore stood, of the discovery 
 of Hudson. 
 
 The death of Cromwell, the downfall of his son 
 .Richard and the restoration of Charles II, succeeded 
 one another with startling rapidity and changed 
 the aspect of affairs. A revised and more ob- 
 noxious Navigation Act was passed. On the 20th 
 
IS 
 
 day of July, 1660, Lord Baltimore demanded that 
 the.Dutch should surrender the lands they actually 
 occupied on Delaware Bay. News was sent to 
 Holland that the English nation was seeking to 
 dispossess the West India Company of the North 
 Eiver and to invade its shores. 
 
 In 1663, the English Royal Council for Foreign 
 Affairs, alleging that the Dutch had of late years 
 unjustly intruded upon and possessed themselves of 
 certain places on the main land of New England and 
 some islands adjacent, as in particular on the Man- 
 hatoes and Long Island, ordered a commission to 
 draw up a brief narrative of the Dutch intrusion, 
 and the means to make them acknowledge and 
 submit to his majesty's government, or by force to 
 compel submission or expulsion. 
 
 In the early part of 1664, King Charles sent 
 certain Royal Commissioners ostensibly to visit the 
 New England colonies, with secret instructions 
 regarding the Dutch. As a part of the same 
 movement Lord Clarendon, father-in law of the 
 Duke of York and Prime Minister of Charles, 
 negotiated the purchase of the Sterling grant, and 
 thereupon on the 29th day of June, 1664, he ob- 
 tained the Royal Charter to James, Duke of York, 
 of all the territory from the Connecticut River to 
 Delaware Bay. Col. NichoUs, one of the Royal 
 Commissioners, was empowered by James to take 
 possession. 
 
 A fleet was sent secretly to America, landing 
 first at Boston, and sailing thence to New York, 
 to enforce this claim. The Dutch, being illy pro- 
 vided with troops or ammunition to cope with the 
 forces sent by England, surrendered the colon}^, 
 and gave to the " representatives of the Duke of 
 York peaceable possession, on the second day of 
 September, 1664, reserving to the inhabitants se- 
 curity in their person, property, customs, con- 
 science and religion. 
 
 On the 12th day of January, 1665, Gov. Nicholls 
 granted to the City of New York its first English 
 
19 
 
 charter, which has ever since heen know as the 
 Nicholls Charter. 
 
 The outcome of this cowardly and unjustifiable 
 seizure was what might reasonably have been ex- 
 pected; the Dutch, in 1664, engaged in war with 
 England, and, under Von Tromp, defeated the Eng- 
 lish, so that the Dutch Admiral, to signify the com- 
 pleteness of his victory, fastened a new broom to 
 his mast-head, to indicate that he had made a 
 clean sweep of the ocean. He even ascended the 
 Thames and threatened to put London under con- 
 tribution. 
 
 The next year brought the 'English to terms. 
 They sued for peace, and the King was compelled 
 to sacrifice Clarendon. 
 
 Subsequently the Treaty of Breda was made, in 
 1665, between England and Holland, by which 
 New York, the great bone of contention and the 
 cause of the war, was surrendered to England in 
 exchange for Surinam and other places which the 
 English then held. 
 
 This transaction caused great dissatisfaction in 
 England, that such rich provinces in the East 
 should have been surrendered by the Crown for 
 such a worthless possession as New York. 
 
 This peace lasted until 1673, when France and 
 England combined to declare war against the 
 Dutch. In this emergency "William of Orange 
 was appointed Statholder, and with heroic cour- 
 age he led the war party to victory. The Dutch 
 squadron in the West Indies, composed of 
 twenty-seven vessels and sixteen hundred men 
 under his orders attacked the English on the 
 Chesapeake Bay, destroyed the tobacco fleet of 
 Virginia, and on the 28th day of July, 1773, sailed 
 into the port of New York and demanded its sur- 
 render. The English, unable to cope with 
 this formidable array, yielded the next day. On 
 the 8th of August the Admirals of the fleet 
 placed Sir Anthony Oolve in command of the 
 Province, and the Dutch became, by conquest, 
 
20 
 
 the lawful sovereigns of New York. Thenceforth 
 neither Cavalier nor Puritan, Royalist or Colonist 
 of England had any claim to political authority 
 over the territory, but private rights of owner- 
 ship under the law of nations were fully recognized 
 and protected. The conquest, however, availed 
 the Ducth very little. The Prince of Orange, with 
 true statesmanship, concentrated all his resources 
 against the King of France, and therefore deter- 
 mined to restore New Netherland to England. 
 On the 8th of February, 1681, the Treaty of West- 
 minster transferred the title to the King of Great 
 Britain. 
 
 An . interesting legal question arose, which was 
 submitted to the Crown lawyers, with regard to 
 this transaction, and that was, did the Patent 
 to the Duke of York revive by virtue of the 
 English acquisition of the territory; and it was 
 unanimously held that it did not; that the grant 
 had been extinguished by the Dutch conquest, 
 and that the re-possession of the property by Eng- 
 land did not revive it. Thereupon, Charles, on 
 the 29th of June, 1674, gave a new grant of New 
 York to his brother James, without reference to 
 the former grant, in its identical words. 
 
 The effect of these grants has been adjudicated 
 by the Supreme Court of the United States in 
 Martin v. Waddell, 16 Peters, 367, and it was held 
 that the right of the King to make these grants was 
 unquestioned; that they were made to enable the 
 Duke of York to establish a colony to be governed 
 according to the laws and usages of England; that 
 it was a Vice-Royalty; and that the people were 
 subjects of Great Britain. 
 
 And it may be here added, that it has been re- 
 peatedly affirmed, by the same tribunal, that the 
 making of these grants, from the beginning to the 
 end, was the continual declaration of the Crown 
 of its sovereignty over the lands so patented . 
 
 Still another change took place in the political 
 title of New York, when Charles was succeeded 
 
2j 
 
 as King by his brother James, and it was held, 
 that the patent which James held as the Duke of 
 York, went to the Crown when James became 
 King. Thus, once more, the political title reverted 
 to the Crown. 
 
 James' representative made a grant of all the 
 waste and unpatented lands to the City of New 
 York. The only reservation made in either of 
 these two transfers from the English to the 
 Dutch, and from the Dutch to the English was 
 that the Dutch rights of private ownership, and 
 all successions under wills should be respected. 
 
 In this brief summary of the events which have 
 taken place, it will be seen that under the law, as 
 it lias always been declared in both Europe and 
 America, the English were the owners by right of 
 discovery under govermental authority. This 
 gave them the exclusive ownership. 
 
 The Dutch were squatters. They had no title 
 in fee to the land. Their only right was that of 
 private ownership, recognized by treaty. Their 
 purchase from the Indians gave them no title 
 as against the English; and it has been always 
 maintained by the English authorities that the 
 Dutch simply were squatters here, and obtained no 
 title to the soil. Among private individuals a 
 squatter's title may become valid by lapse of time. 
 It is not so with nations, as the Supreme Court 
 decided in relation to acts by the Confederate 
 Government, when the usurping authority ends it 
 is as if it never existed. 
 
 Under these circumstances, it will readily appear 
 to the Court that the Dutch-Roman law as to high- 
 ways never could prevail in this colony. It has 
 been so declared by Mr. O'Connor, in points which 
 he has presented to the Court of Appeals, and in the 
 decision of our own Courts, and in the Supreme 
 Court of the United States. The rightful title of 
 the English has been recognized in every case but 
 one; and that was in regard to a highway on Long 
 
22 
 
 Island, which decision has no application to this 
 
 case. 
 
 In the diplomatic correspondence between the 
 Dutch and the English Government respecting the 
 City of New Amsterdam, as the Dutch called 
 New York, their first claim was by virtue of their 
 purchase from the Indians. When that claim was 
 exploded they fell back upon the discovery by 
 Henry Hudson; but as we have shown, Henry 
 Hudson individually claimed no right of discovery, 
 and he was preceded by the Portuguese, the Span- 
 ish, the French and the English in the Port of New 
 York. Upon the Dutch map annexed to the petition 
 of the shipowners in 1G13, which gives the names 
 of the Indian tribes adjacent to the Hudson Eiver 
 as far north as Albany, there are in several in- 
 stances Spanish names ; and the Pompey Stone, 
 which is now supposed to record the death of a 
 Spanish captive in or about the the TWn of Pom- 
 pey, also proves that the Spanish had made their 
 impress upon the tribes long before Hudson ever 
 came to America. But Hudson took no possession 
 of the property. Finally, the Dutch relied for 
 their title upon the Papal Grant. As we have 
 seen, this was given to Spain, and the Dutch claim 
 under the grant of Spain. That claim arose in 
 this manner. The grandson of Ferdinand and 
 Isabella, in 1514, ascended the throne of Spain as 
 Charles the Second, and three years later, of Ger- 
 many, as Charles the Fifth, Emperor of Germany. 
 Through his maternal grand-father and grand- 
 mother he obtained the title to the Spanish 
 crown. Through his grand-father on his father's 
 side, Maximilian, he became Emperor of Ger- 
 many. Through his paternal grandmother he 
 became the Duke of Netherlands. If the Dutch 
 had remained a part of the Empire of Spain it 
 might with some show of reason be claimed that 
 the grant made to Spain in the preceding century 
 would enure to their benefit. They were no part 
 of the Spanish dominion at the time the grant was 
 
23 
 
 made. They resisted the authority of Charles, and 
 under him and his successors was inaugurated and 
 conducted the famous eighty years' war, begun 
 as a war of religion, which continued until Spain 
 was humbled and Holland became one of the 
 richest, freest, most flourishing and powerful 
 countries in Europe. They could not deny the sov- 
 ereignty of Spain and claim the benefit which the 
 Spanish Crown had obtained through the Papal 
 grant. They never were incorporated in the Span- 
 ish dominion. Charles was always called by his 
 different titles, King of Spain, Emperor of Ger- 
 many, and Duke of Burgundy and the Nether- 
 lands ; but beyond that, Spain herself never 
 claimed that the Papal grant gave her any title to 
 any part of North America north of Florida, and 
 the Dutch could obtain no larger right than the 
 Spanish themselves had in this continent under 
 that donation. Besides the Protestant countries of 
 Europe never recognized the Papal grant at any 
 time. Elizabeth, in 1584, haughtily answered the 
 Spanish Ambassador, "that England knew nothing 
 of a Papal gift, or any authority in the Pope to 
 giant any land in the world" and refused to recog- 
 nize the claim which the Spanish Ambassador had 
 made, of infringing upon Spanish rights under 
 that grant ; and no attempt was ever made to en- 
 force it. The great writer on national law, Gro- 
 tius, himself a Hollander, denied that the Pope 
 had any authority to grant the ocean to any pow- 
 er, because in the nature of things it was free to 
 all, and the same reasoning would apply with 
 equal force to the unoccupied lands of the then un- 
 discovered world; so that in no point of view can 
 this claim of the Dutch be maintained. 
 
 These are the only grounds upon whirl) the 
 Dutch have ever claimed the right to the owner- 
 ship of any part of North America, and the more 
 thoroughly these are investigated the weaker they 
 appear. The claim of the French to Norumbega, 
 and New France, antedates and is superior to the 
 
24 
 
 claim of the Dutch, and this included New York. 
 But the highest and best claim of all is that of 
 the English. 
 
 A question has arisen in regard to the nature of 
 those conflicting grants which England gave. 
 Later in the century she limited all the patents 
 which had been made from the Atlantic to the 
 Pacific Ocean, to the line of the Mississippi River. 
 The Supreme Court of the United States has 
 authoritatively determined the nature and effect of 
 these different grants, and they have been held to 
 be royal grants which gave political rights and 
 * privileges; and that the Crown could, so far as the 
 land remained in the possession of the patentees 
 themselves, revoke or limit such grants, but the 
 grantees of such representatives took a good title, 
 so that when the representatives of the Duke of 
 York, afterwards James the Second, King of Eng- 
 land, by their charters given to the City of New 
 York, all the waste and unoccupied lands, they con- 
 veyed in fee the property which had theretofore 
 been undisposed of, but that only gave in respect 
 to the existing highways such title as the State 
 then had, and no more, and throughout the length 
 of the Bowery that title was simply the use of the 
 property, subject to the right in fee of the owner 
 of the bed of the highway. . 
 
 This historical summary, therefore, leads to the 
 conclusion that the Dutch-Roman law never had 
 any application to the Bowery as a Dutch highway; 
 that the common law of England must bo held to 
 prevail, and, therefore, that the judgment that 
 abutting owners upon the Bowery had no right 
 title or interest in or to the said highway was 
 erroneous. 
 
 Wm. H. Arnoux, 
 
 Of Counsel. 
 
 [N 9510]