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HTl'YVKSAXT FISH, 
 
 N V.W YOU K 
 
ev ^ /tit <? o^t. 0-jlmS*s * < e > ? 
 
 OPINION 
 
 hi 
 
 Sidney Webster, Esq. 
 
 nil 
 
 Law of XIaw'riack 
 
 Prevailing ix.vhk CotIony 
 
 OF NVav York ix 
 
 17713. 
 

 
OPINION 
 
 Sidney Wbbstkr, Esq., 
 
 Marriage Law of the Colony of New York, 
 
 I IT 1 V V 2 . 
 
 The following specific questions are submitted to me for 
 my opinion : 
 
 1. Whether the law of marriage in New York, in 1772, 
 was contained in Dongan's law of 1684, supplemented, 
 where defective, by the older laws of the Duke of York 
 and of the Dutch i 
 
 2. Whether, in 1772, a non-observance of the require- 
 ments of Dongan's Act entailed a nullity of the ceremony 
 of marriage '. 
 
 3. Whether the statement in the certificate of the Rev. 
 Dr. Ogilvie (assuming the certificate to be evidence), that 
 the marriage was performed by him "according to the rites 
 " and ceremonies of the Church of England, as by lave 
 " established," proves that the alleged marriage was pre- 
 ceded by the statutory requirements of banns or license? 
 
 I will proceed to answer these inquiries in the order in 
 which they have been propounded. 
 
First Question. 
 
 From 1609 to 1772 there was not an opening, or an oppor- 
 tunity, through which any English common law, as regu- 
 lating marriage, could and did enter and become established 
 in the Province of New Netherland or the Colony of New 
 York. Englishmen settling in a newly discovered region 
 occupied by the aboriginal races, or not peopled by any 
 human beings, may bring with them and establish so much 
 of English law. which is the birthright of every subject of 
 the Crown, as they shall decide is applicable to their cir- 
 cumstances ; but when Henry Hudson arrived in 1609 in 
 what is now the Bay of New York, there were not, and 
 never had been. English settlers in all that territory known 
 in 1772 as the Colony of New York. Certainly from that 
 date down to 1664 the political and municipal government, 
 de facto, of all the region, had been continuously Dutch 
 and not English. It is also my opinion that the Govern- 
 ment of the Province of New Netherland and the laws of 
 marriage prevailing therein were, down to 1664, dejw 
 well as <h: facto* Dutch. 
 
 Whatever may be said of the other portions of the Atlan- 
 tic seaboard south of Delaware Bay. or 38° of latitude. 
 and north of 41 of latitude. I assume it to be an historical 
 fact that all the region within those lines was. first and 
 foremost among Europeans, settled, planted, occupied and 
 used by the Dutch, to the exclusion of any other Europeans 
 forming an organized political body. Who, among Euro- 
 peans, first discovered that seaboard and region is a different 
 question. I assume it. however, to be an unquestioned 
 historical fact that no evidence has yet been disclosed show- 
 ing conclusively that either of the Cabots actually saw that 
 seaboard or region while cruising under the patent from 
 Henry VII. issued in 1496. That one or the other or both 
 of the Cabots first discovered and touched the main land of 
 the Western Continent at or near Labrador in 1497, and 
 first recognized and appreciated the tremendous fact of the 
 existence of a new continent, may not now be denied; but 
 
8 
 
 (lie researches of nearly four hundred years since that date 
 have utterly tailed, 1 think, to produce satisfactory evidence 
 
 of a glimpse of land by either Cabot, south (if the line of 46 
 of latitude, and it would he unreasonable to stretch the 
 
 doctrine of contiguity or vicinity, as governing the law of 
 
 title by discovery, so as to make it include the [aland of 
 Manhattan and Bay of New York situated so many hun- 
 dred miles away. That Verazzano, cruising under a patent 
 issued by Francis I., did touch the American coast at a 
 point near the 34th of latitude, and, thence sailing north- 
 ward, did enter the harbor of New York in 1524, ascend the 
 Hudson River a short distance, and afterwards enter Xarra- 
 gansetl Bay, situated further northward on the coast, appears 
 to he well established. The mouth of the Hudson River 
 was also visited during the same year and partially explored 
 by Gomez, cruising under a Spanish patent. But neither 
 of those two discoverers, or their countrymen, or France or 
 Spain, made settlements, or asserted title or jurisdiction in 
 or over any part of the region afterwards covered by the 
 Province of New Netherland, or by the Colony of New 
 York. The result of modern geographical and historical 
 exploration seems to clearly show that, even down to 1620, 
 the Dutch were the only Europeans who had visited and 
 explored the seaboard of what is now the States of Connec- 
 ticut, New York (including Long Island Sound) and New 
 Jersey. To the north of Cape Cod and. to the south of 
 Delaware Bay, the English had been before those dates, 
 and had fairly gained a title by discovery and occupation, 
 and so had the French further north in that region gener- 
 ally known as Canada. 
 
 " We derive our right in America," says Edmund Burke 
 in his account of the European settlements in America, 
 " from the discovery of Sebastian Cabot, who first made the 
 " Northern Continent in 1497. The fact is sufficiently cer- 
 " tain to establish a right to our settlements in North 
 " America." Possibly the researches of an hundred years, 
 since that was written, have shown that the name of John 
 Cabot should be substituted for that of Sebastian, but other- 
 
wise the statement of Mr. Burke respecting English claims 
 may now be taken as substantially correct. 
 
 Chief Justice Marshall, in announcing the decision of the 
 Supreme Court of the United States in the year 1823, in the 
 case of Johnson and Graham? ' s lessee vs. William Mcintosh 
 (8 Wheaton's Reports, 543) said that, " On the discovery 
 "of this immense continent the great nations of Europe 
 '•were eager to appropriate to themselves as much of it as 
 "they could acquire * * * but as they were all in pursuit 
 " of nearly the same object, it was necessary, in order to 
 "avoid conflicting settlements and consequent war with 
 "each other, to establish a principle which all should 
 "acknowledge as the law by which the right of acquisition 
 " which they all asserted should be regulated as between 
 " themselves. That principle was that discovery gave title 
 '• to the Government by whose subjects or by whose 
 "authority it was made, against all other European Gov- 
 ernments, which title might be consummated by posses- 
 sion." In that sense, Mr. Burke was correct when he 
 declared rhat England derived her rights in America from 
 the discovery of Cabot, since first discovery by an individual 
 gives an inchoate title to possession and political dominion 
 by the Government of which the discoverer is a subject, 
 or a citizen, provided the discoverer holds the com- 
 mission of his Government at the time of the discovery, or 
 his discovery be afterward adopted by his Government. 
 The fact of discovery may be the foundation of the right to 
 occupy. Lord Stowell in The Fama (5 Rob. Adm. Rep., 
 114) says: " Even in newly discovered countries, where a 
 " title is meant to be established for the iirst time, some act 
 "of possession is usually done, and proclaimed, as a noti- 
 fication of the fact." This right of an individual, or a 
 Government, to appropriate the object of his or its discov- 
 ery, rests upon the presumption that it has no owner, which 
 presumption in the case of the first comer is a accessary 
 presumption and consequently a presumption of law. A 
 clear statement of the limitations and conditions of title by 
 discovery and occupation was first made by Wolff in his 
 
Institutions du Droit de la Natun et desGens, §213, pub- 
 lished in L749, and by Ya:t<>l in his Droit des Gens, h. I.. 
 §208, published in L758. The Last-named author (in trans 
 lalion) says : 
 
 "The law iif nation-; will therefore nut acknowledge the property and so v- 
 " ereiguty of a nation over any uninhabited countries except those of which it 
 
 " has really taken possession, in which it has formed settlements, or of which 
 "it has actual use. In effect when navigators have nut with deserl countries, 
 " in which those of other nations had in their transient visits erected some 
 " monuments to show their having taken some possession or them, they have 
 
 •• paid as little regard to that empty ceremony as to the regulations of the Popes 
 "who divided a great part of the world between the Crowns of Castile and 
 
 ■• Portugal." 
 
 Martens wrote in 1789 to the same effect in his Precis du 
 Droit des Gens, § 37; and so did Kluber in 1819 in his Droit 
 des Gens, $ L26. The principle and rule to be deduced, 
 respecting title to unoccupied regions, or those in the pos- 
 session of tlie aboriginal inhabitants, from the writings of 
 the accepted teachers of public law, are that acquisition and 
 title may be original and derivative ; that original title in- 
 cludes discovery, rise, and settlement, which are ingredi- 
 ents of occupation, and will constitute a valid title, but that 
 derivative title comes of conquest, treaty and transfer. My 
 opinion is that the English title to sovereignty and domin- 
 ion in the Province of New Netherlands and the Colony of 
 New York was not original in this sense, but was derivative 
 from conquest. 
 
 The principles applicable to snch questions were elabo- 
 rately discussed very soon after the establishment of the 
 ( Government of the United States of America under its exist- 
 ing Constitution. The occasion was the negotiations at 
 Madrid, and in ^Vashington, between the American Com- 
 missioners appointed on the part of the United States, and 
 the Spanish Minister of Foreign Affairs, on the subject of 
 the western boundary of Louisiana. The treaty between 
 the United States of America and the French Republic, 
 concluded April 20, 1803, by which the French Repub- 
 lic ceded to the United States specifies ''The colony 
 " or province of Louisiana with the same extent that 
 
6 
 
 "it now has in the hands of Spain and that it had 
 " when France possessed it." The controversy was 
 over the boundaries of the region to which France bad 
 acquired a title originally by first discovery and occupa- 
 tion, which France had ceded to Spain, and Spain had 
 retro-ceded to France, and France had ceded to the United 
 States The Commissioners appointed by the United States 
 to conduct the negotiations with Spain in 1803, were Mr. 
 Monroe, afterward President of the United States, and Mr. 
 Charles Pinckney, a lawyer of conspicuous learning and 
 renown. A complete copy of the text of the early corre- 
 spondence which passed between the two Governments is 
 to be found in American rtlt/fe Papers, Foreign Relations, 
 and Volume 2. On pages G63— 4 of this volume, those Com- 
 missioners are reported as having used this language : 
 
 " The facts which are material in the ease arc such as relate to the diseov- 
 " cry and possession of the territory referred to by the subjects and under the 
 " authority of each nation. The principles are those which have been recog- 
 " aized by European powers in similar transactions, and which of course ought 
 " to govern in the present one. * * * The principles which are applica- 
 
 " ble to the ca^c arc such as are dictated by reason and have been adopted in 
 " practice by European powers in the discoveries and acquisitions which they 
 " respectively made in the New World. They are principles intelligible and 
 " at the same time founded in strict justice. The Bret of these is that when 
 " any European nation lakes possession of an extensive sea coast, that posses- 
 " sion is understood as extending into the interior country to the source of the 
 " rivers emptying within that coast, to all their branches and the country they 
 " cover, and to give it a right iu exclusion of all other nations to the same. 
 " It is evident that some rule o]- principle must govern the rights of European 
 " powers in regard to each other in all such cases ; and it is certain that none 
 " can lie adopted in those to which it applies more reasonable or just than the 
 " present ones. Many weighty considerations show the propriety of it. 
 " Nature seems to Lave destined a range of territory so described for the same 
 ■• society, to have connected its several parts together by the ties of a common 
 " interest and to have detached them from others. If this principle is 
 " departed from it must be by attaching to such discovery and possession a 
 " more enlarged or contracted scope of acquisition ; but a slight attention to 
 " the subject will demonstrate the absurdity of either. The latter would be 
 " to restrict the tights of a European power Who discovered and took posses 
 " sion of a new country, to the spot on which its troops or settlement rested ; 
 " a doctrine which has been totally disclaimed by all the powers who made 
 " discovery and acquired possessions in America. The other extreme would 
 
 "be equally improper; that is that the nation who made such discovery 
 
should Id all cases be entitled to the whole of the territory bo discovered. 
 
 Ill the rase of all Island, whose e\l< nl was ki.ii. wliirli mighl I"' BOOU sailed 
 
 around and preserved by a few forts, ii may apply with justice ; bul in thai 
 of a continenl ii would be absolutely absurd. Accordingly we Ond that iliis 
 opposite extreme has been equally disclaimed and disavowed bj the doctrine 
 and practice of European nations. The great continent of America, North 
 and South, was never claimed by any one European nation, Dor was either 
 portion of it. Their pretensions have been al way b bounded by more mod 
 
 crate and rational principles. The one laid down has obtained general 
 
 assent. This principle was completely established in the controversy which 
 
 produced the war of 1T.V>. Great Britain contended that she had a light, 
 
 founded in the discovery and possession of such territory, to define its boun- 
 daries by given latitudes in grants to individuals, retaining the sovereignty 
 to herself from sea to sea. This pretension on her part was opposed by 
 France and Spain, and was finally abandoned by Great Britain in the treatj 
 of 1763 which established the Mississippi as the western boundary of her 
 
 possessions. It was opposed by France and Spain on the principle here 
 
 insisted on, which, of course, gives us the highest possible sanction in the 
 present case. 
 
 " The second is that whenever one European nation makes a discovery and 
 takes possession of any portion of that continent and another afterwards 
 docs the same at some distance from it where the boundary bet ween them 
 is not determined by the principle above-mentioned, the middle distance 
 becomes such of course. The justice and propriety of this rule are too 
 obvious to require illustration. 
 
 " A third rule is that whenever any European nation lias thus acquired a 
 right to any portion of territory on that continent, that right can never be 
 diminished or affected by any other power by virtue of purchases made by 
 grant or conquests of the natives within the limits thereof. It is believed 
 that this principle has been admitted and acted on invariably since the dis- 
 covery of America in respect of their possessions there by all the European 
 powers. It is particularly illustrated by the stipulations in their most im- 
 portant treaties concerning those possessions and the practice under them, 
 towit, the treaty of Utrecht in 1718 and that of Paris in 1758. * * * These 
 facts prove incontestably that that principle is not only just in itself but 
 that it has been invariably observed by all the powers holding possessions 
 in America, in all questions to which it applies relative to those possessions." 
 
 It will be observed that actual possession is, in the fore- 
 going declarations of principles, made an essential element 
 of a valid and complete title. 
 
 These principles were announced in 1805. Fourteen 
 years afterwards they were re-affirmed, as American law, 
 by Mr. John Quincy Adams, then Secretary of State of the 
 United Suites, who afterwards became President of the 
 United States. In a diplomatic correspondence in 1818 
 
8 
 
 between Mr. Adams and the Spanish Minister in Washing- 
 ton, the former, on March 12th, 1818, summarized the 
 principles which had been announced to Spain by Mr. 
 Monroe and Mr. Pinekney, and declared that they were 
 "sanctioned alike by immutable justice and the general 
 " practice of the Euiopean nations which have formed set- 
 " tlements and held possessions in this hemisphere/' (See 
 American State Papers, Foreign Kelations. Vol. 4, p. 
 407.) 
 
 In 1826, an international conference was held at London 
 
 between the British and the American Commissioners to 
 
 consider conflicting territorial claims in Oregon. On that 
 
 occasion, the British Commissioners, Messrs. Huskisson 
 
 and Addington, maintained these views : "Upon the ques- 
 
 ' tion how far prior discovery constitutes a legal claim of 
 
 ' sovereignty, the Law of Nations is somewhat vague and 
 
 ' undefined. It is, however, admitted by the most approved 
 
 • writers that a mere accidental discovery, unattended by 
 ' exploration, by formally taking possession in the name 
 ' of the discoverer's sovereign, by occupation and settle- 
 ' ment, more or less permanent, by purchase of the terri- 
 ' tory on receiving the sovereignty from the nation, con- 
 
 • stitutes the lowest degree of title ; and that it is only in 
 ' proportion as the first discovery is followed by any or all 
 ' of these acts that such title is strengthened and con- 
 
 • firmed." 
 
 That rule and principle, when applied to the Province of 
 New Netherlands, defeats any English claim of title by 
 original acquisition. 
 
 The American Commissioner and Plenipotentiary on this 
 occasion was Mr. Albert Gallatin, an eminent and illustrious 
 American publicist and statesman. Mr. Gallatin formu- 
 lated the American contention in this language : 
 
 " It may be admitted as an abstract principle that in the origin of society 
 
 " fir>t occupancy and cultivation were the foundation of the rights of private 
 •• property and of national sovereignty. Bui that principle, on which princi- 
 " pally if not exclusively it would seem that the British Government wishes to 
 " rely, could be permitted in either case to operate alone and without restric- 
 " tion so lorn: only as the extent of vacant territory was such in proportion to 
 
" the population thai then was ample r for every individual and for even 
 
 " di8tinct Community or nation without danger of collision with others. As 
 " in every society it had soon become necessary to make laws regulating the 
 " manner in which its members should lie permitted to occupy and to acquire 
 "vacant land within its acknowledged boundaries, so also nations found it 
 " indispensable for the preservation of peace and for the exercise of just juris- 
 " diction to adopt, particularly after the discovery of America, b i general 
 
 •• rules which should determine the important previous question who had a 
 
 "right to occupy. The two rules generally, perhaps universally, recognized 
 " and consecrated by the usage of nations, have followed from the nature of 
 " the subject. My virtue of the first, prior discovery gave a righl to occupy. 
 " provided that occupancy took place within a reasonable time and was ulti- 
 " mately followed by permanent settlement ami by the cultivation of the soil. 
 " In conformity with the second, the light derived from prior discovery and 
 ■'settlement was not confined to the spot discovered or first settled The ex- 
 •• tent of territory which would attach to such first discovery or settlement 
 " might not in every case he precisely determined. l>ut that the first discovery 
 
 " and subsequent settlement within a reasonable time of the mouth of a river, 
 " particularly if none of its branches had been explored prior to suchdis- 
 " covery, gave the right of occupancy and ultimately of sovereignty to the 
 
 " whole country drained by such river anil its several branches, has been gen- 
 erally admitted. And in a question between the United States and Great 
 " Britain her acts have with propriety been appealed to as showing that the 
 " principles on which they rely accord with their own." 
 
 Mr. Gallatin, in support of his contention, appealed to 
 the language of ancient charters given to companies of ad- 
 venturers, and to individual explorers, by various European 
 sovereigns, as evidence of the practice of European nations 
 in regard to the rights resulting from discovery. But the 
 British Commissioners replied that those charters had no 
 valid force or effect against the subjects of other sovereigns, 
 but could only bind and restrain, v/'r/ore s/io, those who 
 were under the jurisdiction of the grantor of the charters, 
 and that although they might confer on the grantees an 
 exclusive title against the subjects of the same sovereign 
 power, they could only affect the subjects of other sovereign 
 powers so far as the latter might be bound by the common 
 law of nations to respect acts of discovery and occupation 
 effected by the members of their independent political com- 
 munities. This reply of the British Commissioners to the 
 American Commissioner, Mr. Gallatin, was claimed to be 
 in perfect harmony with the principle under which Great 
 
10 
 
 Britain, France and Holland refused to recognize the au- 
 thority of the Papal domination by virtue whereof Spain 
 and Portugal claimed to exclude all other European nations 
 from the possession and use of the lands and seas which 
 had been granted to them in the famous Bull of Pope 
 Alexander VI. in 1493 ; and that accordingly when the 
 Spanish Ambassador remonstrated against the expedition 
 of Drake, Queen Elizabeth replied that " She did not un- 
 " derstand why either her subjects, or those of any other 
 " European power, should be debarred from traffic in the 
 " Indies, for she did not acknowledge the Spaniards to have 
 " any title by donation of the Bishop of Rome. So she 
 " knew no right they had to any places other than those 
 ".they were in actual possession of, for their having touched 
 " only here and there upon a coast and given names to a 
 " few rivers and capes were such insignificant things as 
 " could in no way entitle them to property further than in 
 " the parts where they actually settled and continued to 
 " inhabit." 
 
 The position of law maintained on behalf of the United 
 States by Mr. Gallatin in 1827 had been previously ad- 
 vanced by Mr. Rush in 1824, when American Minister in 
 London. " I asserted," he writes to the American Secre- 
 tary of State, Mr. Adams, "that a nation discovering a 
 " country by entering the mouth of its principal river at 
 " the sea coast must necessarily be allowed to claim and 
 " hold as great an extent of the interior country as was 
 " described by the course of such principal river and its 
 " tributary streams." 
 
 A. faithful application of the foregoing American prin- 
 ciples to the material historical facts surrounding the dis- 
 covery and settlement of the Province of New York will, 
 it is believed, confirm and strengthen the opinion that 
 England had no valid title thereto or therein. 
 
 The cruise in 1618 of one Dermer, an Englishman, from 
 Cape Cod along the coast to Cape Charles, over which 
 cruising ground Block, a Dutchman, had been five years 
 before, se^ms to have given in London the first authentic 
 
11 
 
 information from an English source <>f that region. Dermer 
 visited in thai year Manhattan Island, where he found the 
 Dutch established. He did not stop anytime, nor did he 
 leave any English settlers in the Dutch province. Sir 
 Walter Raleigh's successful landing on the coast of what 
 is now North Carolina in 1584-5 led to the expedition of 
 Gosnold in L602 and L606, and the new and capacious charter 
 granted by .lames I. in 1606 to the London and Plymouth 
 Companies, which charter embraced the region between 
 34 and 4.") of latitude, and resulted in the founding of 
 Jamestown in 1607, and eventually to the founding of Ply- 
 mouth in 1620. These two grants made to two separate 
 companies, one to operate in the South and the other in the 
 North, defined the limits of the concessions on the North 
 and South by lines of latitude. To the Southern company 
 was given a space of 100 miles along the coast in any part 
 of the country between 34° and 41°, and to the Northern 
 company similar privileges between 38° and 45°. By the 
 overlapping of the two grants the middle region between 
 38 and 41 ', which included the Bay of New York, a free, 
 middle zone was left, open to either company, under the re- 
 striction that the last plantation made should not approach 
 within 100 miles of one already planted. It is also to be 
 mentioned that the grant of 1606 by James I. only covered 
 '•territories in America, either appertaining unto us, or 
 " which are not now actually possessed by any Christian 
 •• prince or people," thus emphasizing the law that, while 
 discovery may give an inchoate title, there must be settle- 
 ment, occupation, use and actual possession to make a com- 
 plete title as against a foreign nation. "But at the time 
 the patent was sealed," says Brodhead (Vol. i.. p. 11), "no 
 " English navigator had searched the American coast fur- 
 " ther south than Buzzard's Bay nor further north than Roa- 
 "noke" * * and " not (p. 15) a single English colony 
 was permanently planted north of Virginia until 1620." 
 The new patent for New England, granted by James I. in 
 16-20, which gave to the Plymouth Council an absolute 
 property in all the American territory between 40 3 and 48°, 
 
12 
 
 and from the Atlantic to the Pacific, and which was signed 
 a week before the " Mayflower " arrived at Cape Cod, did, 
 like that of 1606, except any territories " actually possessed 
 or inhabited by any other Christian prince or State," as was 
 at that time Manhattan Island. The active movements of 
 the Dutch in the colonization and settlement of New Neth- 
 erlands, and the fitting out in Holland of many new ships for 
 Manhattan, inspired the proprietors of the Plymouth colony 
 to vindicate their assertion of an English title against the 
 Hollanders, who, they affirmed to the King, " as inter- 
 lopers/^ into the middle between" Virginia and New 
 England. The British Ambassador at the Hague was in- 
 structed to bring, and he did bring, the matter to the notice 
 of the States General, and the unlawfulness of the Dutch 
 settlement in New Netherlands was asserted on the claim, 
 which subsequent examination has proved to be unfounded, 
 that " his Majesty's subjects have many years (1621) taken 
 possession of the whole precincts." The British Ambassa- 
 dor asked that the settlement, and also the departure of the 
 six or eight ships then fitting out, might be arrested, and 
 he insisted that the title of British subjects to Manhattan 
 Island " by right of first occupation " was not to be contra- 
 dicted. Here again title was conceded to depend on " occu- 
 pation," which occupation by Englishmen of Manhattan 
 Island and of the then Province of New Netherland, geo- 
 graphers and historians of all nations now agree, did not, 
 as a fact, then exist. Neither the Dutch settlements nor 
 the sailing of the ships were, however, arrested or inter- 
 fered with. 
 
 In the year 1631 occurred another incident tending to 
 show that any asserted English title to Manhattan must, in 
 the opinion of the Government at London, depend not 
 merely on first discovery, but on English " occupation and 
 possession." The Dutch ship in which the third Dutch 
 Governor and Director General of New Netherland em- 
 barked for Holland was carried out of her course by stress 
 of weather into an English port, where she was seized, on 
 the suit of the Plymouth Council in London, and prose- 
 
13 
 
 cuted for condemnation on the charge of trading unlaw- 
 fully with the King's dominions. The Dutch Ambassadors 
 in London presented to the King in person a remonstrance 
 against the detention of the ship, who undertook to make 
 :i personal inquiry into the- circumstances. The seizure led 
 to a diplomatic correspondence between London and the 
 Hague concerning the relative merits of the conflicting 
 claim of jurisdiction, asserted by the Dutch West India 
 Company on the one hand, and by the English Plymouth 
 Company on the other hand, over the Province of New 
 Netherlands, wherein the title of the English was asserted 
 to l>e by " liist discovery, occupation and possession which 
 they have taken thereof, and by charters and letters patent 
 obtained from our sovereigns." The diplomatic corre- 
 spondence resulted in a release of the vessel, "saving and 
 without any prejudice to his Majesty's rights." The seizure 
 of the ship had. it may be conceded, the effect, which was 
 probably all that the Government at London desired, to 
 assert in that form a title to New Netherlands, which an 
 unprotested Dutch occupation would destroy. 
 
 In April 1633, there was another incident which ex- 
 hibited how complete, in that year, was Dutch power 
 and control over the province. A London vessel, the 
 " William," arrived at Fort Amsterdam, in what is 
 now the harbor of New York, and w 7 as the first English 
 vessel to enter the Hudson River. Her supercargo as- 
 serted the right to trade in the province, and refused 
 to retire from his contention. Whereupon he and his 
 ship were, by the Dutch Director General, compelled 
 by force to put to sea and leave the province. Her super- 
 cargo returned to London, demanding damages and redress, 
 but there is no evidence that any action w r as taken by the 
 English Government. 
 
 In the month of July, 1646, Petrus Stuyvesant was ap- 
 pointed Director General of the Province, and was by the 
 States General of the United Netherlands authorized and 
 commissioned, in cooperation with a Council, " to direct all 
 matters appertaining to traffic and war," and "to admin- 
 
14 
 
 ister law and justice, as well civil and criminal.' 1 '' In 
 1647 he arrived. He reorganized the Courts of Justice. He 
 conceded to the people the principle and right of represen- 
 tation in the Government. His sway over Manhattan Island 
 was unresisted. He concluded an arrangement in 1650, at 
 Hartford, Connecticut, with the deputies of the English 
 Colonies, which was approved by Holland, and by which 
 jurisdiction of Holland in New Netherlands was recognized, 
 the boundary line between Connecticut and the Province of 
 New Netherlands was established, and regulations for the 
 mutual surrender of runaway slaves were made. From that 
 date down to 1664, whatever may have been the character 
 and force of the difficulties of political rule and administra- 
 tion that he experienced on the extreme borders of the 
 province, the sway of the Dutch over Manhattan Island, 
 the greater portion of the region on the navigable part of 
 the Hudson River, and the greater part of the province, 
 was unresisted and complete, and continued so to be till 
 1664. 
 
 "What was the legal character of the transaction of 1664 
 which resulted in unfurling for the lirst time the English 
 tlag over Port Amsterdam and exchanging the name of 
 New Netherlands for New York '. It was influenced by 
 the negotiations of 1654, concluded by Cromwell with Hol- 
 land, in consequence of which the Protector not only de- 
 sisted from the contemplated English attack on New 
 Netherlands, but virtually recognized the title of the Dutch 
 to the province. Tn January, 1664 the Dutch Ambassadors 
 at London were instructed by the States General to press 
 for the ratification by the British Government of the 
 articles of the Hartford Treaty, concluded fourteen years 
 before, and also Cor a delimitation of the boundaries between 
 the English and Dutch colonies. That demand, made in 
 the first month of L664, would, if yielded by Charles II., 
 have been a ratification of the recognition of Dutch title to 
 New Netherlands made by Cromwell ten years before. 
 Another reason, — more general and irresistible than a dis- 
 pute over a boundary line, — precipitated the crisis. The 
 
L6 
 
 rivalry of trade was arousing the tremendous energies of 
 the two greatest commercial powers of the world. The 
 maintenance of the British Navigation Ad was deemed by 
 the English rulers of the day vital to the success of England. 
 Strictly enforced at home, it was evaded in America, and 
 Largely on account of the presence <>l' the Dutch in what is 
 now the Harbor ;in<l Bay of Nev» York. In L663, it was 
 represented to the King that ten thousand pounds ayear 
 were lost by that presence. The seizure of New Amsterdam, 
 and the reduction of the power of Holland in New Nether- 
 lands were decreed, and on the 29th of February, 1664, a 
 military and naval expedition was ordered "against the 
 Dutch in America." The Legal significance of the transac- 
 tion comes more clearly out by taking note of the fact that 
 the Patent to the Duke of York, was uot issued till two 
 weeks later, and on March 12, 1664. An English fleet, 
 consisting of one man-of-war of 36, one of 30, one of 16, 
 and a transport of 10 guns, with three full companies of 
 tlif King's veterans, commanded by three commissioners, 
 all officers in the Royal army, sailed from Portsmouth for 
 the scene of encounter in New York on May 15, 1664. On 
 reaching Boston, military aid was demanded from the 
 Massachusetts colony. The expedition anchored near 
 Coney Island, just outside the harbor of New York, where 
 it was joined by militia from Connecticut. The city as 
 well as the Hudson River were thus made incapable of 
 military defence, by the Dutch. A commission to negoti- 
 ate the terms of surrender was therefore agreed upon 
 between Colonel Nicolls and Governer Stuyvesant, whereby 
 the inhabitants were confirmed in the possession of their 
 property, in the exercise of their religion and in their free- 
 dom as citizens. The stipulations continued municipal 
 officers temporarily in their rule. It was stipulated that 
 the " Dutch here shall enjoy their own customs concerning 
 their inheritances ;'' 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." Under those conditions and stipulations Stuyve- 
 
16 
 
 sant marched out of Fort Amsterdam with the honors of 
 war ; Nicolls marched in, and immediately established a 
 new government. 
 
 I am of the opinion that that occupation of the 
 Province of New Netherland, in 1664, by the English, 
 was, in its legal relations and consequences, an act of war, 
 and of military conquest by a superior force. The title 
 flowing therefrom was a title by conquest, modified by the 
 terms of capitulation, and had not the legal relations and 
 consequences of a peaceful entry by the order of Charles 
 II., into the possession of a part of the territory of an 
 ancient English colony, of right belonging to the English 
 Crown, into which the Dutch had from the first unlawfully 
 intruded and unlawfully maintained themselves for fifty- 
 five years. 
 
 My opinion that the occupation of the Province of New 
 Netherland in 1664 by the English was not a peaceful 
 assertion of valid title, but was an act of military conquest 
 by a superior force, is confirmed by the circumstances of 
 the treaty between England and Holland, concluded at 
 Breda, on June 30, 1667. Although the rupture between 
 England and Holland may not have been publicly and 
 formally announced at the time of the capture by England 
 of New Netherlands, yet it may be correctly affirmed that 
 the capture of New York was the first act of armed 
 hostility in the war, which the Duke of York so largely 
 promoted and in which he so greatly distinguished himself, 
 and which came to an end by the Treaty of Breda. 
 Proposals for peace were first offered to the belligerents 
 through the mediation of Sweden. Plenipotentia lies were 
 appointed by both countries, and Breda was agreed upon as 
 the place of meeting. When the plenipotentiaries met 
 at Breda, England proposed an armistice, which was 
 rejected by the Dutch, and the Dutch Admiral De 
 Ruyter, with a portion of his fleet of seventy ships, sailed 
 up the Thames and the Medway as far as Chatham. 
 Both belligerents then became desirous of peace. Mean- 
 time Governor Stuyvesant had arrived at the Hague, and 
 
17 
 
 presented to the States General his report of the surren- 
 der of New Netherlands, and the Dutch negotiators at 
 Breda insisted that, in the terms of peace, New Nether- 
 Lands should be restored to Holland. Finally, Holland 
 instructed their negotiators at Breda to adhere to the offer 
 actually made on the 10th of the previous September, 
 namely. "Thai it be left to His Majesty's choice to make 
 " peace by a reciprocal restitution, on both sides, of what 
 " had been seized by force of arms, or detained from the 
 " other, either before or after the commencement of the 
 " war; or else that the one party retain what it hath 
 " taken by force of arms, or otherwise seized, from the 
 " other, as well before as after the commencement of the 
 " war." It has been said that the King of France sug- 
 gested and urged the relinquishment by the Dutch of the 
 claim of restitution of New Netherlands. Negotiations 
 for peace were finally successful. The portion of the Treaty 
 of Breda which is pertinent to the question under consid- 
 eration, is as follows : 
 
 "Articles of Peace and Alliance between the Most Serene and Mighty 
 •' Prince. Charles the Second, by the Grace of God, King of England, Scot land, 
 "France, and Ireland. Defender of the Faith, &c. , and the High and Mighty 
 " Lords, the States General of the United Netherlands, concluded the § j Day 
 "of July. 1667. 
 
 I. "First, that from this day there he a true, firm, and inviolable peace, 
 "sincere friendship, a nearer and straiter alliance and union between the most 
 "serene King of Great Britain, and the high and Mighty States General of the 
 "United Provinces of the Netherlands, and the lands, countries, and cities 
 "under the obedience of both parties, wheresoever situate, and their subjects 
 " and inhabitants, of what degree soever they be. 
 
 II. " Also, that for the time to come, all enmities, hostilities, discords, and 
 " wars, between the said Lord the King, and the foresaid Loi-ds the States Gen- 
 "eral, and their subjects and inhabitants, cease and be abolished ; and that 
 "both parties do altogether forbear and abstain from all plundering, depreda- 
 " tion, liarnuloing, injuries, infestation whatsoever, as well by laud as by sea, 
 "and in fresh waters, everywhere; and especially through all tracts, dominions. 
 " places, and governments (of what condition soever they be) within the juris- 
 " diction of either party. 
 
 III. "Also, that all offences, injuries, damages, losses, which his said maj- 
 " esty and his subjects, or the foresaid States General and their subjects, have on 
 " either side sustained during this war, or at any time whatsoever heretofore, 
 "upon what cause or pretence soever, be buried in oblivion, and totally ex- 
 
18 
 
 "punged out of remembrance, as if no sncli things had ever past. Further- 
 " more, that the foresaid peace, friendship, and alliance may stand upon firm 
 " and unshaken foundations, and that from this very day all occasions of new 
 " dissention and difference may be cut off ; it is further agreed, that both the 
 " parties, and either of them, shall keep and possess hereafter, with plenary 
 •'right of sovereignty, propriety, and possession, all such lands, islands, cities, 
 "forts, places, and colonies (how many soever) as during this war. or in any 
 "former times before this war. they have by force of arms, or any other way 
 " whatsoever, gotten and detained from the other party, and that, altogether 
 "after the same manner as they had gotten and did possess them the A" day 
 " of May last past, none of the same places being excepted.'' 
 
 Surinam having been conquered by the Dutch from 
 England before the 10th of May, was confirmed to the 
 United Provinces, and in the same manner England 
 acquired, by the treaty, a valid title to New Amsterdam, 
 and the vessels taken during the war by either side 
 remained the property of the captors. 
 
 Upon this record it is difficult to see how it can be suc- 
 cessfully denied that the acquisition of New Netherlands 
 by England in 1664 was by conquest, subsequently con- 
 tinned and ratified by treaty. 
 
 It is to be inferred, from the report of the celebrated case 
 of tk The Island of Granada," generally known in the law 
 reports as that of Campbell vs. Hail, which gives the 
 shorthand writer's report of arguments, as well as from 
 the opinion of Lord Mansfield delivered therein on Novem- 
 ber 28th, 1774, contained in Volume 20, State Trials, 
 p. 289. that in the opinion of that Court the transaction 
 in the Harbor of New York in 1664 was a military 
 conquest. Lord Mansfield, in the course of the argument 
 and in ltis opinion, refers to it as a " conquest." In his 
 opinion he says: "After the conquest of New York, in 
 " which most of the old Dutch inhabitants remained,'" &c. 
 
 Very inconvenient legal consequences may flow from a 
 successful maintenance, in the United States at least, of 
 the contention that English dominion and sovereignty over 
 Manhattan Island and the Province of New York, and all 
 the lands therein, were valid and complete in 1609, when 
 Henry Hudson arrived, and continued valid and complete 
 down to 1664, and that the Dutch during all that period 
 
I '.I 
 
 were mere intruders. For it' English dominion, sovereignty 
 
 and title were thus valid and complete, then, by the 
 accepted ndes of public law. both English and American, 
 the aboriginal Indians had. from 1609 to L664, no right, 
 without English permission, to convey any portion of their 
 
 lands to Holland, its officers, subjects or citizens, and 
 therefore all titles to land depending solely on such grants, 
 or conveyances, were and are null and void. 
 
 If, then, it be historical and legal truth that New 
 Netlierland was discovered and planted by Dutchmen, first 
 with the authority and under the patronage of the Cham- 
 ber of the semi-sovereign city of Amsterdam, and Later 
 on of the States General of the sovereign and independent 
 state of The United Netherlands, which raised great armies 
 and conducted great wars against the most powerful nations 
 of the world, and if the Province of New Netlierland was 
 exclusively controlled and governed by Holland till the 
 conquest in 1G64, and if also The United Netherlands had 
 a well-ordered system of jurisprudence and of common 
 law, which was continuously applied in their American 
 province during more than half a century, to all municipal 
 and domestic affairs, including marriage, and which was 
 in force in the Province in 1664, how much of it remained 
 after the conquest '. 
 
 In the New York Collection of Colonial Manuscripts, 
 Volumes IV., p. 456; V., p. 197; XVI., p. 40; VIII., p. 
 647 ; and XVI., p. 129, are to be found two Dutch Ordin- 
 ances relating to marriage. The first is entitled " An Ordin- 
 ance of the Director <tn<l Council of New Netlierland regu- 
 htfi /iff the publication of Bans of Matrimonii. Passed 19 
 January, 1664." It is in the following words : 
 
 " The Directob General and Council op New Netherland. 
 " To all who hear or se< these presents read, Greeting, made known: 
 
 " Thai we understand and are certainly informed by the report of our 
 " Fiscal and others, as well as by letters from Gravesend, dated 18 January. 
 '• 1654, thai the Magistrates there have presumed and undertaken publicklyto 
 " post notices of marriage in regard to persons both of whom arc. and for a 
 '• long tunc have been domiciliated in and about this City of New Amsterdam, 
 " far beyond the district of the aforesaid village, aud whereas such is in direct 
 
20 
 
 " contradiction to both the Civil and Ecclesiastical Law of United Nether- 
 " lands, which not only the above-mentioned Magistrates of Gravesend, but 
 '• also all other Colonies within this Province, are by contract and oath bound 
 " to observe ; Therefore, the above mentioned Director General and Council 
 " order and notify the aforesaid Magistrates of Gravesend, and all others within 
 " this province, to annul such posting of intentions of Marriage, and on sight 
 " hereof to withdraw the same, and in all cases to proceed with and confirm 
 " no such Marriages, either privately or publiekly, before and until such per- 
 " sons, according to Netherland style, have entered and received their bans and 
 " proclamations of marriage where they are dwelling and have resided the last 
 " years. 
 
 " Thus done in the Assembly of the Director and Council of New Nether- 
 " laud, this 19 January, A" 1654, New Amsterdam. 
 
 •' Laws and Ordinances of New Netherlands." 
 
 The second is entitled as follows: — "■Ordinance of the 
 " Director General and Council of New Nether land to 
 " oblige parties to marry after the publication of their 
 " bans. Passed 15 January, 1G58." 
 
 It is in the following words : 
 
 " Whereas the Director General and Council of New Netherland not only 
 " are informed, but have even seen and remarked, that some persons, after the 
 '• proclamation and publication, for the third time, of their Hans or Iuten- 
 " lions of .Marriage, do not proceed further with the solemnization of their 
 " marriage as they ought, but postpone it from time to time, not only weeks, 
 " but some months, which is directly contrary to. and in contravention of the 
 " good order and custom of our Fatherland, wherein being willing to provide, 
 " in order to prevent the mischiefs and irregularities which will How there- 
 " from ; 
 
 " Tin ii hm the Director General and Council aforesaid do hereby Ordain 
 " that all published persons, alter three Proclamations have been made and no 
 " lawful impediment occurs, shall cause their marriages to be solemnized 
 "within one month at furthest, after the last Proclamation or within that 
 " time, appear and show cause where they ought, for refusing ; and that on 
 " pain of forfeiting ten guilders for the lirst week alter the expiration of the 
 "aforesaid month, and for the succeeding weeks 80 guilders for each week 
 " until they have made known the reasons for refusing. 
 
 "Furthermore, no .Man and Woman shall be at liberty to keep house as 
 " married persons, before and until they are law fully married, on pain of for- 
 " feiting One hundred guilders, more or less, as their quality shall be found 
 " to warrant, and all such persona may heainerced anew therefor every month, 
 " by the Officer, according to the order and the custom of our Fatherland. 
 
 "Thus done in Council holden in Fort Amsterdam in New Netherland. the 
 " 15 January A" 16S 
 
 " Laws and Ordinances of New Netherlands, p. 838." 
 
 Here is a distinct assertion of "the civil and ecclesiastical 
 law of United Netherland," and " the custom of our (Dutch) 
 
21 
 
 fatherland" over the province. It is an exercise l»\ the 
 state over the institution of marriage as n civil institution. 
 Assuming it to be true that the transaction in the harbor of 
 New York in L 664 was the exercise of military and naval 
 force by England, which resulted in a military capture and 
 conquest of the Province of New Netherland, which capture 
 and conquest were confirmed by articles of capitulation, 
 what was the legal effect of the transaction on these two 
 Ordinances relating to marriage? On the day before the 
 capture, these two Ordinances were in force in the Province 
 of New Netherland. Were they not in force on the day 
 after the province was surrendered to England, and England 
 had entered into complete possession \ Did all the Dutch 
 municipal laws fall and perish by and with the surrender 
 of Governor Stuyvesant? The case of "The Island of 
 Granada" (20 State Trials, p. 239), or Campbell vs. Hall 
 (Cowper, p. '204), deals directly and satisfactorily with this 
 inquiry, so far as English Law is concerned. In the opin- 
 ion of the Court of King's Bench, delivered by Lord Chief 
 Justice Mansfield, he said: 
 
 "A- great deal has been said and authorities cited relative to propositions 
 
 " in which both sides exactly agree or which are too clear to be denied. The 
 " stating of these will had us to the solution of the first point. 
 
 <: 1st. A country conquered by the British arms becomes a dominion of the 
 "king in right of his crown, and therefore necessarily subject to the legis- 
 " lative powers of the Parliament of Great Britain. 
 
 "2nd. The conquered inhabitants once received into the conqueror's pro- 
 '■ tection become subjects, and are universally to be considered iu that light, 
 " not as enemies or aliens. 
 
 " 3rd. Articles of capitulation upon which the conquest is surrendered, and 
 •■ treaties of peace by which it is ceded, are sacred and inviolable according to 
 " their true intent. 
 
 " 4lh. The law and legislation of every dominion equally affects all persons 
 •' and property within the limits thereof and is the true rule for the decision 
 " of all questions which arise there: Whoever purchases, sues or lives there, 
 •' puts himself under the laws of the place and in the situation of its inhab. 
 " itants. An Englishman in Minorca, or the Isle of Man, or the Plantations, 
 " has no distinct right from the natives while he continues there. 
 
 "5th. The laws of a conquered country continue until they are altered by 
 " the conqueror. The justice and antiquity of this maxim is incontrovertible. 
 " The absurd exception as to pagans in C'alden's case shows the universality 
 " of the maxim. The exception could not exist before the Christian Era 
 " and in all probability arose from the mad enthusiasm of the Crusades. 
 
22 
 
 " 6th. If the King has power — and when I say the King I mean in this 
 " case to he understood ' without concurrence of parliament ' — to make new 
 '" laws for a conquered country, tliis being a power subordinate to his own 
 " authority as a part of the Supreme Legislature in Parliament, he can make 
 " none which are contrary to fundamental principles; none excepting from 
 " the laws of trade, or authority of Parliament, or privileges, exclusive of his 
 " other subjects." 
 
 The Lord Chief Justice adds that " After the conquest of New York, in 
 " which most of all the old Dutch inhabitants remained, King Charles the 
 " Second changed their constitution and political form of Government and 
 " granted it to the Duke of York to hold from his crown under all the regu- 
 " lations contained in the letters patent." 
 
 And Lord Mansfield further adds that in English juris- 
 prudence "the distinction in law between a conquered 
 country and a colony is clear and indisputable." 
 
 Some thirty years after the case of Campbell vs. Hall was 
 decided, there were important and serious proceedings 
 before the Court of King's Bench, at Winchester, in the 
 case of Thomas Pieton, Esquire, Governor and Commander- 
 in-Chief over and in the Island of Trinidad, in the Wesl 
 Indies, on an indictment for misdemeanor, in causing the 
 torture to be inflicted upon Louisa Caldcron, a free mulatto, 
 in the Island of Trinidad. Those proceedings defined even 
 more clearly the distinction, in English law, between a 
 planted colony and a conquered colony ; and more sharply 
 emphasized the fifth resolution in Lord Mansfield's opinion, 
 in Campbell v. Hall, which declared, "that the laws of a 
 " conquered country continue in force until they are altered 
 " by the conqueror." On the first trial of the indictment, 
 in 1804, the jury found that, at the time of the cession of 
 Trinidad to England, there was no existing law which 
 authorized the severities of torture that were practiced upon 
 the woman, and a verdict of guilty was entered against the 
 accused. Subsequently there was a motion for a new trial 
 on new evidence of the condition of the Spanish law respect- 
 ing torture, which motion was granted. On the second 
 trial, in L808, the jury found a special verdict, which, among 
 other things, declared that, previous to February 18th, 
 1797, Trinidad was a colony belonging to Spain ; that on 
 that day it was surrendered to England, and reduced under 
 
23 
 
 its dominion by articles of capitulation, wherein it was 
 agreed that all contracts and purchases between individuals, 
 according to the laws of Spain, should be held binding ;m<l 
 valid by the British Government ; that the free colored 
 people who had been acknowledged as such by the laws of 
 Spain should be protected iu their liberties, persons and 
 property like other inhabitants; bul that no stipulation 
 was made to the effect that the laws which had existed in 
 the island previous to the surrender should continue, or be 
 in force, other than as especially provided. The special 
 verdict also found that up to the time the island was sur- 
 rendered, the laws of old Spain were in force in Trinidad. 
 and thereby, at the time of the surrender, torture might be 
 inflicted upon any person against whom there was strong 
 suspicion of having committed certain specified offences. 
 This special verdict also declared that after the island was 
 surrendered, and on June 1st, 1801, the King of England 
 did commission and constitute the defendant, Picton, to be 
 Governor and Commander-in-Chief of Trinidad ; that Pic- 
 ton assumed the Government of the island by virtue of this 
 commission, and did order and command the torture to be 
 applied. In behalf of the accused, it was contended that 
 by the conquest, and the terms of capitulation, all the 
 powers of the Royal Audience of Caraccas were vested in 
 General Picton, and consequently he had done nothing 
 illegal in inflicting the torture, for the reason that the tor- 
 ture was part of the law of the Island of Trinidad, as well 
 before as after the conquest. On the part of the prose- 
 cution, there was an attempt to qualify the principle 
 expounded by Lord Mansfield in Campbell vs. HaM, to the 
 extent that the laws and customs of the conquered country 
 shall hold place, unless they are contrary to the religion 
 of England, or unless they enact filing* that ore mala in se. 
 Mr. Nolan, in behalf of the Crown, insisted that in the case 
 of a conquered country the old laws of the conquered must 
 be put into re-operation, if at all, by the will of the 
 conqueror, either expressed or implied ; that the British 
 Constitution vests that power in the King, who may give 
 
24 
 
 the authority to the Commander of his forces until his royal 
 pleasure is definitely known ; or the old laws may revive, 
 by the self action, of the British laws and Constitution, sub- 
 ject to those regulations and restrictions which are laid 
 down in the books : but, whether the laws of the conquered 
 are continued or modified by the sovereign's will, and 
 whether that will is expressly or impliedly declared, it is 
 clear that no greater power can be given by the Crown than 
 the Crown has to bestow: and that his Majesty cannot, by his 
 individual authority, continue institutions which he could 
 not by his prerogative originate in the code of a new colony. 
 Therefore the King can. neither by commission nor charter, 
 invest any colonial Government with power to punish an 
 accused without being heard, or to extract evidence from 
 him for the purpose of conviction by inflicting torture ; and 
 so. the King cannot continue such tyrannous institutions in 
 a conquered colony. Owing to circumstances which are 
 fully set forth in a note to the report of the proceedings in 
 this ease, given in Vol. 30. State Trials, p. 955, no judg- 
 ment was given by the Court in the case; but, in the 
 course of the argument, Lord Ellenborough made remarks 
 from time to time which must be taken as significant of his 
 opinion. He said, for example, (p. 943) of the contention 
 in behalf of the Crown just referred to : 
 
 " If they arc iir>t governed by the old laws, by what laws arc they gov- 
 ' lined .' Either the old laws continue, or they cease on the conquest ; the 
 " laws of a conquering country supercede them, or the old laws remain, under 
 ' certain qualifications. Who is to find out these qualifications? Some of 
 " the persons who were sent out from this country, judging for themselves, 
 " may say that some of these laws are not consistent with the principles and 
 " spirit of the British Constitution, and therefore it is not incumbent upon 
 " us to obey them. * * * The former laws they knew, because they lived 
 "under them, and obeyed them before; but now the two laws are com- 
 '• pounded. You will find sufflcienl difficulty in compounding the two laws. 
 " It is supposed to be a part of the custom of China to expose infants. It 
 " would be difficult, prima facte, to say that that was murder in them ; and 
 " yet that is malum in v. It is as much malum in u as anything can be sup- 
 " posed to be." 
 
 To this suggestion from the bench, Mr. Nolan, in behalf 
 of the Crown, replied : 
 
26 
 
 ■■ Your Lordships observe thai the position in 2 I'. Williams Bays thai the 
 •• laws of this country shall prevail where those of the conquered country are 
 " either contrary to the laws of God, or arc totally silent." 
 
 " Lwd Ellenborough : My difficulty is ahoul those exceptions. 'Funda- 
 " mental principles' and • Main in ae,' introduce some difficulty." 
 
 " Mr. Nolan : There is undoubtedly a difficulty in drawing the precise 
 " line, liul so there is in all hmiian matters ; and tins duty must be reposed in 
 " Judicial discretion." 
 
 " l.mil EUmborongh : All difficulty in drawing the line is avoided, if, in 
 " conformity to the fifth resolution in Campbell v. //"//, you say that the laws 
 " of a conquered country continue in force until they are altered by the 
 
 '• conqueror. That leaves no uncertainty or difficulty, as the colony is to re- 
 ' ' main as it was before." 
 
 " Mr. Nolan : My Lords, the mischief and grievous consequences I have 
 " pointed out are not simply theoretical. Conquerors can loose no privilege 
 
 " as the direct result of their conquest ; but, to subject them to Strange laws, 
 •' of which they have never heard, is to deprive them of their rights, and strip 
 " them of their privileges." 
 
 " Lord BUenborough : The conquerors individually, loose no privilege ; but, 
 " if they choose to go abroad, into a Spanish colony, where different forms of 
 " law prevails, they must abide by the consequences. You must cither admit 
 " they the old laws continue until the new are introduced, or they must be 
 " positively in a lawUti stale." 
 
 To the same effect are, I think, the legal consequences of 
 a completed conquest in the domain of international law. 
 The subject is carefully and concisely treated by Mr. 
 Richard Henry Dana, Jr., in his excellent Notes to Whea- 
 ton's " Elements of International Law." In Note 109, page 
 A'M of the Eighth Edition of Wheaton, published in 1866, 
 Mr. Dana gives a careful summary of the positions taken 
 on the subject of conquest by Hefter, Puffendorf, Yattel, 
 Grotins, Wildman and Phillimore among others, and 
 says : 
 
 " The reasons for considering the former political laws as abrogated (in 
 " ease of completed conquest), do not npply to the municipal laws which regu- 
 " late the private relations of individuals to each other and their private rights 
 " of property. The change of sovereignty does not obliterate the subject 
 " matters of property or obligation, nor the parties to the rights, duties or 
 " compacts ; and in respect to these things there is a permanent necessity for 
 " an uninterrupted existence of laws of some kind. Accordingly, it is held 
 " that the municipal Private Code remains in force. Y T et it is not propria 
 " vigore, or by the will of the people of the conquered country, but by the 
 " acquiescence of the new sovereignty which is held to intend the continu- 
 " ation of such laws in the absence of new laws displacing them." 
 
26 
 
 To the same effect is the opinion of Halleck in his " In- 
 ternational Law " (see Baker's London Edition of 1878). 
 General Halleck treats the subject more completely and 
 elaborately than has any other author. His education as 
 a soldier in the Military Academy of the United States at 
 West Point, his subsequent education and experience as a 
 practising lawyer in California, together with his later ex- 
 tensive military command and service in the field, and as 
 Chief of Staff of the War Department at Washington 
 during the Civil War in America, have given to his 
 opinions on this subject exceptional value. The subject of 
 the " Rights of Complete Conquest" occupies some thirty 
 pages, and the 34th Chapter of his second volume. He 
 considers at length therein the rules of English law, Inter- 
 national law and American law, governing the subject. 
 He says : 
 
 "The English Courts make a distinction between ceded or conquered 
 " territory and territory acquired by discovery or occupancy, and peopled by 
 " the discoverer, British colonists are considered as carrying with them such 
 " laws of their sovereign as arc beneficial to the colony, and applicable to the 
 " new condition of the colonists * * and laws passed after the settlement 
 '• of a discovered or occupied country do not affect Buch colony without special 
 "provisions to thai effect, unless they relate to the exercise of the powers 
 " of the sovereign with regard to foreign relations, navigation, trade, revenue 
 " and shipping. Hut the rule is different with respect to territory acquired 
 " by cession or conquest, for the municipal laws of such territory at the time 
 " of its acquisition remain until changed by competent authority, and the sub- 
 " jects of the new sovereignty who enter such newly acquired territory do 
 " not in general cany with them the laws of their sovereign ; hut with respect 
 "to their rights and relations inter se, they are in the same condition as the 
 " inhabitants of BUCh territory ; thai is, they are governed by the laws and 
 " usages of the country at the time of the conquest or cession." 
 
 Again : 
 
 " When it is said that the law political ceases on the conquest and that the 
 " law municipal continues till changed by the will of the conqueror it is not 
 " meant that these latter laws propria vigor* remain in force, but that it is pre 
 "sumed the new political sovereign has adopted and continued them as a 
 "matter of convenience. They do not derive any force from the will of the 
 "conquered, for the person capable of having and expressing a will, or body 
 " politic or lawmaking power of the colony, is extinguished by the conquest. 
 " When, therefore we come to pronounce upon the force of a law of the con- 
 " quered people after the conquest and to determine whether it has been tacitly 
 
27 
 
 "adopted by the conqueror we must look to the character of its provisions 
 "and compare them with the laws and institutions <>r the conquering Btate: 
 " That is, with the will of ihe conqueror as expressed by himself in similar 
 "matters. Whatever is in conflict with or directly opposed to such expres- 
 "sions of his will we cannol presume to have been adopted by his tacit con- 
 "sent Hence Lord Cokesays, if a christian King should conquer an infidel 
 "country the laws of Ihe conquered ipso facto cease, because il is nol to be 
 •■ presumed that a christian King has adopted the laws of an infidel race. But 
 •■ where there is no such conflict in the institutions and laws of the two coun- 
 ■• tries those of the conquered which regulate personal relations, commercial 
 "transactions and property in all its moods of transfer and acquisition are 
 "presumed to have been adopted as a matter of convenience. This rule of 
 " international law is both reasonable and just. Each case must rest upon its 
 "own basis and be judged of by its own circumstances. From this view of 
 " the jurisprudence of the conquered country we must determine what laws of 
 " the acquired territory remain in force and what laws of the conqueror, 
 " i>n>j)ri" vigors, extend over such territory." 
 
 The acquisition by the United States, from time to time, 
 of inhabited countries, either by conquest, or cession, or 
 both, has naturally brought before the Supreme Court of 
 the I'ni ted States one or more aspects of the inquiry pre- 
 sented in Campbell vs. Hall. Those acquisitions have been 
 from England, France and Mexico. In 1833, there came 
 before that Court, in the case of United States vs. Perche- 
 man (7 Peters, 8(5), a question, arising under the treaty be- 
 tween the United States and Spain of February 22, 1810, in 
 respect to certain rights in Florida. Chief Justice Mar- 
 shall, delivering the opinion of the Court, said : 
 
 " It may not be unworthy of remark, that it is very unusual, even in cases 
 ■• of conquest, for the conqueror to do more than to displace ihe Sovereign and 
 " assume dominion over the country. The modern usage of the United States, 
 "which has become law, would be violated. * * * The people change 
 " their allegiance, their relation to their ancient sovereign is dissolved; but 
 " their relations to each otherand theirrights of properly remain undisturbed. 
 " If this be the modern rule, even in cases of conquest, who can doubt its 
 " application to the case of an amicable cession of territory? " 
 
 In MUchel vs. The United States (9 Peters, 734), the 
 same Court said : 
 
 " By the law of nations the inhabitants, citizens or subjects of a conquered 
 " or ceded country, territory or province, retain all the rights of property 
 " which have not been taken from them by the orders of the conqueror, or the 
 " laws of the sovereign who acquires it by cession, and remain under their 
 " former laws until they shall be changed." 
 
28 
 
 In Strothers vs. Lucas (12 Peters, 435) the same Court 
 said : 
 
 " The Slate (Missouri) in which the premises arc situated was formerly a 
 " part of the territory, first of France, next of Spain, then of France, who 
 '■ ceded it to the United Slates by the treaty of 1803 in full property, sov- 
 " ereignty and dominion, as she had acquired and held it; by which this 
 " Government put itself in place of the former sovereigns, and became 
 " invested with all their rights, subject to their concomitant obligations to 
 '• the inhabitants. Both were regulated by the law of nations, according to 
 '• which the rights of property are protected, even in the case of a conquered 
 '• country, and held sacred and inviolable when it is ceded by treaty, with or 
 " without any stipulation to such effect ; and the laws, whether in writing or 
 " evidenced by the usage or customs of the conquered or ceded country, con- 
 " tinue in force till altered by the new sovereign." 
 
 In LeitensdoTjfer </ al. vs. Webb (20 Howard, 176) the 
 Court said : 
 
 •■ Upon the acquisition, in the year 1846, by the arms of the United States, 
 
 ■ of the Territory of New Mexico, the Civil Government of this country 
 ' having been overthrown, the officer, General Kearney, holding possession 
 
 • for the United States, in virtue of the power of conquest and occupaucy and 
 ' in obedience to the duty of maintaining the security of the inhabitants and 
 ' their persons and property, ordained, under the sanction and authority of 
 
 • the United States, a provisional or temporary government for the acquired 
 ' property. By this substitution of a new supremacy, although the former 
 ' political relations of the inhabitants were dissolved, their private relations, 
 
 • their rights vested under the Government of their former allegiance, or 
 ' those arising from contract or usage, remained in full force and unchanged, 
 ' except so far as they were in their nature and character found to be in con- 
 
 • tbet with the Constitution and laws of the United States or with any regu- 
 
 • lations which the conquering and occupying authority should ordain. 
 
 • Amongst the consequences which would be necessarily incident to the 
 
 • change of Sovereignty would be the appointment or control of the agents by 
 ' whom and the modes in which the Government of the occupant should be 
 
 • administered ; this result being indispensable in order to secure those 
 ' objects for which such a Government is usually established. This is a 
 
 ■ principle of the law of nations, as expounded by the highest authority. 
 ' In the case of the Fama. in the fifth of Robinson's Reports, p. 106, Sir 
 
 ■ William Bcotl declares it to be ' the settled principle of the law of nations 
 ' ' that the inhabitants of a conquered territory change their allegiance, and 
 ' ' their relation to their former sovereign i- dissolved; hut their relations to 
 ' ' each other, and their rights of property not taken from them by the orders 
 ' ' of thi' conqueror, remain undisturbed.' So, too, it is laid down by Yattel. 
 ' Hook III., Chapter 13, Sec. 200, that the conqueror lavs his hands on the 
 
 ■ possessions of the State, whilst private persons are permitted to retain 
 ' their>; they sutler but indirectly by the war. and to them the result is that 
 ' they only change masters." 
 
29 
 
 Chief-Justice Marshall, id the opinion of the Court, de- 
 livered in the case o!' American Insurance Company vs. 
 Cantor (1 Peters, .">l I ), said : 
 
 ■• The usageof the world is if a nation be doI entirely subdued i<> consider 
 " the holding of conquered territory us a mere military occupation until its 
 " fate shall be determined at the treaty of peace I f it be ceded by the treaty 
 " the acquisition is confirmed and the ceiled territory becomes a part of the 
 
 " nation to which it is annexed, either on the terms stipulated in the treaty of 
 " cession or on such as its new master shall impose. On such transfer of tcr 
 " ritory it has never been held that the relations of (he inhabitants with each 
 " other undergo any change. Their relations with their former sovereign are 
 " dissolved and new relations are created between them ami the government 
 " which has acquired their territory. The same act which transfers their coun 
 " try transfer the allegiance of those who remain in it ; and the law which may 
 " be denominated political is necessarily changed, although that which regU 
 " lates the intercourse and general conduct of individuals remains in force 
 •' until altered by the newly created power of the State." 
 
 Applying these rules and principles to the transaction of 
 L664 in the Harbor of New York, can it be doubted that 
 the Dutch laws of marriage prevailed, and were in force in 
 the Colony of New York until abrogated, or repealed, or 
 modified by the conqueror '. 
 
 Immediately on taking possession of New York, the au- 
 thority of the King was firmly established ; the boundaries 
 
 After this opinion was in type, I received, by the kindness of Mr. Han- 
 croft-Davis, the reporter of the decisions of the Supreme Court of the United 
 States, a copy of the opinion of that Court in the case of The Chicago •nul 
 Pacific Railway Co, vs. McOlinn, decided at the October Term, lsf>4. which 
 will appear in Volume 114 of the decisions now in press. The opinion of 
 the full bench, delivered by Mr. Justice Field, is especially interesting, because 
 there was not in the case any element of the application of military force; and 
 because the rule was applied to a cession made by one of the States of the 
 Initial States to the Government of the United States. The suit was originally 
 begun, in the State Court of Kansas, to recover the value of a cow ($25) 
 alleged to have been killed by the engine and cars of a railway. The action 
 was founded upon a peculiar statute of Kansas in respect to the killing or 
 wounding of cattle by railways. After the enactment of this law the State of 
 Kansas ceded to the Government of the United Stales a certain tract of laud 
 to be used as a military fort (Fort Leavenworth); and also ceded jurisdiction 
 over it. There was a railway running over the premises at the time of the 
 cession. One question before the Court was whether or not the Kansas 
 statute, relating to the killing or wounding of cattle by railways, continued in 
 force within the tract, after its cession to the Government of tin- United 
 Stales. On that branch of the ease the Court say : 
 
80 
 
 were arranged, and new courts of justice were organized. 
 The Justices sitting with the Governor and his Council, 
 once in each year, in the Court of Assizes, formed the Su- 
 preme law-making power wholly subordinate to the will of 
 the Governor, and after him to the approval of the Duke. 
 To this body fell the duty of establishing of a Code of Laws 
 for such parts of the province as still remained under the 
 Dutch forms of government. Carefully examining the 
 
 '• Upon the second question the contention of the railroad company is that 
 " the act of Kansas became inoperative within the Reservation upon the 
 -sion to the United Stales of exclusive jurisdiction over it. We are 
 " clear that this contention cannot be maintained. It is a general rule cf 
 " public law, recognized and acted upon by the United States, that whenever 
 " political jurisdiction and legislative power over any territory are transferred 
 " from one nation or sovcrign to another, the municipal laws of the country, 
 •' that is, laws which are intended for the protection of private rights, con- 
 " tinue in force until abrogated or changed by the new government or 
 "sovereign. By the cession public property passes from one government to 
 " the other, but private property remains as before, and with it those munici- 
 " pal laws which ate designed to secure its peaceful use and enjoyment." 
 
 The Court then explain that of necessity any laws of the Stale of Kansas, 
 existing at the time of the cession, that were in violation of the written Con 
 StitUtionof the United States, would cease to be of obligatory force ; " but," 
 adds the Court, " with respect to other laws affecting the possession, use and 
 '■ transfer of property, anil designed to secure good order and peace in the 
 " community, and promote its health and prosperity, which are strictly of a 
 •■ municipal character, the rule is general, that a change of government leaves 
 " them in force until, by direct action of the new government, they are altered 
 " or repealed. American Insurance Go. v. Canter, 1 Pet., 542; Halleck, Inter- 
 " national Law, eh. lit, £ 11." "The counsel for the railroad company 
 " does not controvert this general rule in cases of cession of political jurisdic- 
 " lion by one nation to another, but contends that it has no application to 8 
 " mere cession of jurisdiction over a small piece of territory having no 
 
 " organized government or municipality within its limits ; and argues upon 
 " the assumption that there was no organized government within the 
 " limits of Fort Leavenworth. In this assumption he is mistaken, 
 ***** *■* **** 
 
 "It is true that there is a wide difference between a cession of political 
 "jurisdiction from one nation to another and a cession to the United States 
 " by a Stale of legislative power over a particular tract, for a special purpose 
 " of the general government ; but the principal which controls as to laws in 
 " existence al the time is the same in b >th. * * The law of Kansas on the 
 " subject, in our opinion, remained in force afler the cession, it being in no 
 respect inconsistent with any law of the United States, and never having 
 " been changed or abrogated." 
 
31 
 
 statutes of the New England Colony, Nicolls prepared from 
 them a code of laws, and, summoning a convention of dele- 
 gates of towns to meel at Bempstead, on Long Island, he 
 submitted it for their approval. The Code thus established 
 is known as "The Duke's Laws," wherein the capacity of 
 persons competent to contracl a valid marriage was care- 
 fully defined, togetherwith the conditions and essentials of 
 a valid ceremony. These changes occurred in June, 1664. 
 The pertinent provisions and requirements in respect to 
 marriage contained in the "Duke's Laws" were as fol- 
 lows : 
 
 " M UUUCAQES. 
 
 " Whereas by the Law of England no marriage is lawfully consummated 
 "without a minister whose office it is to join the parties in Matrimony after 
 ■■ the Banes thrice published in the Church or a Lycence first had and ob 
 ■• tained from some person thereunto authorized. All which formality cannot 
 " be duly practiced in these parts. 
 
 " Yet to the end that a decent rule therein may be preserved It is Ordained 
 "that from henceforth the names and surnames of each party who sue for 
 " Marriage shall he publicquely read in their Parish Church or place of usual 
 " meeting, where they both then inhabit three several Lord's days successively. 
 
 " And where no Church or meeting place shall happen to be, a publication 
 " in writing shall he first fourteen days before Marriage upon three doors of 
 " each parish whereof the parties Inhabit (viz.) one on the Constables the 
 "other two upon any two doors of the Over-seers of the Parish Unless they 
 " produce a lycence from the Governour in both which cases, and not other- 
 " wise, it shall be lawfull for any Minister or for any Justice of Peace to join 
 •• the Parlies in Marriage, Provided that the said Partys do purge themselves 
 " by Oath before the Minister of Justice that they are not under the bonds of 
 " Matrimony to any Other person living. And if it shall be after proved, 
 " that either both of the Parties are perjured, and thereby attained a double 
 " marriage for the said perjury the party or partys offending shall be bored 
 " through the tongue with a red hot Iron and moreover preceded against as in 
 " case of adultery is provided ; 
 
 " But if either Party be approved Innocent as to him or her Self and Ig- 
 " norant of the others wicked fraud the Innocent Person shall recover dam- 
 age against the nocent ; and be set at Liberty as if no such Marriage had 
 ■• been made. 
 
 "No man shall harbor, conceal or detain Contrary to the consent of the 
 " Husband any married woman, upon penalty of fife shillings for every hour 
 " that such married woman remains under his roof ; after demand made by her 
 " husband at the Dwelling house where his wife is so harbored concealed or 
 " detained. Provided always that any woman flying from the barbarous 
 "Cruelty of her Husband to the House of the Constable or one of the Over- 
 
32 
 
 "seers of the same Parish maybe protected by them in the manner as is 
 " directed for Servants in such cases, and not otherwise." 
 
 * * * * * * # * * 
 
 "If any man shall presume to marry contrary to these Lawes prescribed, 
 " the person offending shall be proceeded againsl as for adultery, or fornica" 
 '• lion, according to evidence, the children so begotten shall be reputed Bas 
 " tards. and the parents suffer such paines and penalties by lines or punish- 
 " ment as they hive deserved." 
 
 Certainly up to this date there was no opening or oppor- 
 tunity for the entry into the colony of marriage according 
 to the common law or customary usage of England. The 
 "Duke's Laws " regulating marriage in the colonies were 
 modified from time to time, and notably in the years 1656 
 166(5 and 1677. Meanwhile, and up to 1674 or thereabouts, 
 the Colony of New York was subjected to English rule as a 
 colony, but in L672 English politics in respect to Holland, 
 and eventually in respect to the Colony of New York, began 
 to feel a change. The King of France entered upon new 
 plans for the invasion of the Spanish Netherlands The 
 Triple Alliance which had compelled Louis XIV. to stop 
 short in his career of conquest was dissolved. A secret 
 treaty, the full text of which has only come to light in the 
 present age, was concluded between the Kings of France 
 and England, by the stipulations of which England was 
 bound to join with France in a war against the Dutch Re- 
 public at such time as the French King should think 
 proper. In accordance with this secret treaty, Charles II. 
 issued on March 17th, 1672, a declaration of war againsl 
 the Dutch. A Dutch squadron was thereupon dispatched 
 against the English colonies in America, which after cap- 
 turing or destroying tobacco ships in the Chesapeake, sailed 
 northward, and on August 7th, 167:? anchored off Stater 
 Island. The Dutch commander made an immediate de- 
 mand for the surrender of the city. Against the Dutch 
 force no successful resistance was then any more possible 
 than, in 1664, was a Dutch resistance against the English 
 fleet. The English fort of New York was thereupon sur- 
 rendered, the English garrison marched out with the honors 
 of war, and New York fell again into the hands of the 
 
33 
 
 Dutch. Not long afterward, the intervention of Spain in 
 behalf of Holland induced England to open negotiations to 
 conclude a separate peace with Holland and a treaty was 
 concluded .it Westminster on February 19th, 1674. The 
 6th and 7th Articles of that treaty were in these winds : 
 
 VI. •• Ii Is agreed and concluded, thai whatsoever countries, islands, town-, 
 " ports, castles or forts, bave <>r shall be taken on both Bides since the time that 
 '• the late unhappy war broke out, either in Europe or elsewhere, and before 
 " the expiration of the terms above mentioned for the cessation of hostilities, 
 ■• shall be restored to the former lord and proprietor, in the same condition 
 " they shall be in when the peace itself shall be proclaimed. Alter which time 
 
 " there shall be no Spoil Or plunder of the inhabitants, no demolition of forti- 
 
 " Qcations, nor carrying away of guns, powder, or other military stores, which 
 
 " belonged to any castle or fori at the time when it was taken. 
 
 VII. "That the treaty of Breda concluded A. I). 1007, as likewise all other 
 " preceding treaties confirmed by that treaty, he renewed and remain in full 
 " force, as far as is consistent with the present treaty." 
 
 The incident of the re-conquest of New Netherlands by 
 the Dutch in 1078, and the subsequent treaty of Westmin- 
 ster in L674, led to serious legal complications and conse- 
 quences in respect to the patent issued by Charles II. to 
 the Duke of York in 1664. England had negotiated by 
 the treaties of Breda and "Westminster with the States 
 General as a sovereign, and as the possessor of the Province 
 of New Netherland. The patent of 1664 to the Duke of 
 York had been sealed many days before the naval expedi- 
 tion against New Netherlands had been ordered, and had 
 sailed from England, and while the Dutch were in the 
 quiet possession of that province. No new r grant had been 
 made to the Duke of York after the Treaty of Breda, which 
 confirmed to the English King his conquest of the Dutch 
 province. In respect to this new situation, Mr. Brodhead, 
 in the second volume of his History of New York (page 
 260), says : 
 
 " Eminent lawyers very justly questioned the Duke's pretension to the 
 " territory which England had recently (1604) recovered; because its cession 
 to her sovereign by the Dutch Government 'had given no strength to 
 "original defect-.' James was qow (1674) obliged to give up the claim of 
 "English right which he and his brother had formerly maintained, more- 
 over, the Duke wished to regain New Jersey which he had so foolishly squan- 
 " dered to Berkeley and Carteret. Besides this, the boundary agreement with 
 
3-4 
 
 " Connecticut, which had never been ratified by the Crown, or by himself, 
 •• was a sore point. The opinion of counsel having been taken, they advised 
 " thai the Duke's proprietorship had been extinguished by the Dutch con- 
 '• quest, and that the King was now (1074), alone seized of New Netherlands 
 •' by virtue of the Treaty of Westminster. The jut post UminU did not obtain 
 " in New York. A new patent to the Duke of York was therefore sealed. 
 " By it the King again conveyed to his brother the territory he had held 
 " before and granted him anew the absolute powers of Government he had 
 ■' formerly enjoyed over British subjects, with the like additional authority 
 " over any other person or persons inhabiting his province. Under the same 
 " description of boundaries. New Jersey and all the territory West of the Con- 
 " uecticut River, together with Long Island and the adjacent islands and 
 " the regirfD of Pemiquid were again included in the grant. The new patent 
 '• did not, as has been commonly but erroneously stated, recite and con- 
 " firm the former.' It did not in any way allude to that instrument. 
 " It read as if no previous English patent had ever existed. It was a 
 " si coiid grant : in almost the same terms with the first ; and it conveyed to 
 " the Duke ostensibly for the first time a territory which the Dutch Govern- 
 " ment. after conquering and holding, had. by treaty. ' restored to His Maj- 
 '• esty.' Thus. .lames again became the proprietor of a vast American province, 
 *• over which he was to domineer until his delegated authority from the King 
 '• was merged in his inherited right as a successor to the Crown." 
 
 Here, again, is confirmation of the opinion that the trans- 
 action in 1664 was a military conquest. The Treaty of 
 Westminster proceeded upon the principle of reciprocal 
 restitution, and. if it was decided in England that the rule 
 of jus post Uminii did not apply to New Netherlands, it 
 must have been upon the principle that the title of England 
 to the province was established in L664 by the right of con- 
 quest, and. therefore, the province having been conquered 
 and confirmed to the conqueror by the treaty of peace of 
 1664, the English could claim no right oipost limini under 
 the Treaty of Westminster. 
 
 The Duke of York appointed Major Andros to be his 
 Colonial Lieutenant and Deputy, giving to him minute and 
 specilic instructions for his guidance, and among them was 
 one to the effect that the laws and orders established by 
 Nicollsand Lovelace were not to be varied from, "butupon 
 argent necessities and with the advice of the Council and 
 the gravest and most experienced inhabitants;' 1 amino 
 alteration was to be valid unless confirmed by the Duke 
 within a year. Andros assumed the government of New 
 
36 
 
 York October 31, 1674. Be issued a proclamation Novem- 
 ber i), 1(574, declaring "That the known Book of L;i\\s 
 "formerly established ;m<l in force under his Royal Bigh- 
 "ness' Government is now again confirmed by his Royal 
 "Highness, the which arc to be observed and practiced 
 "together with the manner and time of holding Courts 
 "therein mentioned as heretofore." This proclamation, 
 which was in legal effect a Royal Order, reestablished the 
 statutes of 1664 in respect to marriage, and again closed 
 any opening for the entrance of the English Common Law, 
 or any Common Law, on that subject. 
 
 A few years later the question of taxation in the colony 
 without representation and laws of a Colonial Assembly, 
 came prominently to the front. A petition was presented 
 to the Duke of York praying for a change in the form of 
 Government, and calling for a Governor, Council and As- 
 sembly, the last to be elected by the freeholders of the 
 colony. The Duke of York perceived the need of conces- 
 sion to the popular demand, and gave notice of his inten- 
 tion to Brockholls, who was temporarily acting as Colonial 
 Governor while Andros was absent in England. A new 
 Colonial Governor, Colonel Dongan, was selected by the 
 Duke of York, who arrived in New York on August 28th, 
 1683, assumed control of the Government, and summoned 
 an Assembly, which met in the next October. Its first act 
 bore the title "Charter of Liberties and Privileges granted 
 by his Royal Highness to the inhabitants of New York and 
 its dependencies." On October 4, 1664, a year later, the 
 Duke signed and sealed the charter. In the instructions 
 given by the Duke of York to Colonel Dongan on January 
 27th, 1682-3, were the following : 
 
 " In the passing and enacting of all such laws as shall he agreed unto by the 
 said Assembly, which I will have called hy the name of the General Assem- 
 " bly of my colony of New York and its dependencies wherein the same shall 
 " he (as I do hereby ordain they shall be) presented to you for your assent 
 " thereunto, you are to consider whether the same be for the general good and 
 " not prejudicial to me ; and if you find them so to be then you arc to give 
 " your assent thereunto. But if you shall judge them inconvenient or preju- 
 " dicial you are to refuse your assent thereunto and in all cases you are to have 
 
36 
 
 " a negative voice to refuse all laws that are presented to you. And when you 
 " have given your consent to such laws as shall he so agreed, you shall by the 
 " first opportunity transmit the same to me under the band of yourself and 
 " Council and under the seal of the colony (which you are to use in passing 
 " all grants), to the end that I may ratif}" and confirm the same if I shall ap- 
 " prove, or reject them if I do not think them reasonable But the said laws 
 " so assented unto by you shall be good and binding until such time as I shall 
 " cause my dislike of and refusal to pass them to be signified unto you and 
 " from thenceforth the same shall cease and be null and void to all intents." 
 
 The second session of the first Assembly of the Colony 
 of New York under Governor Dongan began in October, 
 1684, and among the laws passed by the Assembly was one 
 entitled the "Bill Concerning Marriages" which was in 
 the words folloAving : 
 
 " 'A Bill concerning Marriages.' 
 
 " Whereas by the law of England noe Marriage is lawfully consumatcd 
 "Without a Minister whose Office is to joyne the partyes in matrimony after 
 " the Banes thrice published in the Church or a Lyceuce first had and obtained 
 " from sonic Other person thereunto authorized all which formality cannot be 
 '• duel; practised in these parts. Yett to the end a decent Rule may be therein 
 '-observed, Be it enacted by the Generall Assembly and by the authority of 
 " the same Thai from henceforth the names and sirnamesof Each party who 
 "intend Marriage shall be publiquely read in the Parish Church or usual 
 " meeting place where they both then inhabitt three several] Lord's dayes to- 
 " gether or where noe Church or publiquc meeting place shall happen to be a 
 "publicacon in writeing shall be fixed fourtccne ilaycs before Marriage on the 
 "door of the Constable of Each Parish where the partyes inhabit unless they 
 " bring or produce a Lycence under the hand and Sealc of the (Jovernour in 
 " all which cases and not otherwise. It shall be lawfull for any Minister or 
 " Justice of the peace within this Province to joine together in Matrimony the 
 " partys so published or produceing a Lycence as aforesaid, Provided always 
 " they bring a certificate from under the Minister's hand that published them 
 "or under, the Constables hand on whose doores their names were affixed 
 " which Certificate shall be sent to the office of the Register of the County and 
 " there Entred on Record together with a certificate of their Marriage with the 
 " day and date thereof from the party by whom they were Marrycd thereto re- 
 "main in perpetuara rei memoriam for Entring and recording of which said 
 "certificates the Gierke or Register shall be paid by the party marryed for Each 
 " one shilling. Provided alsoe that said partyes -purge themselves by Oath if 
 " required before the Justice of the Peace or the Minister who have hereby 
 " power to administer the same that they are not under thebondsof matrimony 
 " to any other person liveing, and if it shall after happen to be proved that 
 " either or both of the said partyes are perjured and thereby obtained another 
 "marriage for the said perjury the party or partyes offending shall suffer 
 
'tf 
 
 'as in cases of Perjury and further be proceeded against as in cases of 
 
 ■ Polygamy. 
 
 •■ Provided always that if either parly be approved innocent the said party 
 'so approved as aforesaid may be free to many whom they pleaBe not forhid- 
 
 • ilcn by the Laws of the Province. 
 
 •• Be ii further enacted by the authority aforesaid Thai if anj man shall pre- 
 sume to marry contrary to this Law prescribed the person offending shall be 
 
 ■ proceeded against as for fornication and the Minister or Justice thai marryed 
 'thrm shall forfeit twenty pounds and be suspended from his benefice and 
 
 ■ office. 
 
 " Be it further enacted by the authority aforesaid That if any person 
 ' whether man or woman travailing by Sea or Land into any foireigne parts 
 
 ' which voyage by Computacdn may he perfected in one yeare or lesseof 
 ' whom noe certaine knowledge or news shall be had within five yeares after 
 ' his or her departure nor of any who accompanied him or her in the Voyage. 
 
 • It may be justly presumed that such person is Dead and after the Expiracon 
 ' Of five COmpleate ycaics as aforesaid it shall and may he lawfull for the 
 ' other person to Remarry. 
 
 " Provided Always That if either the man or woman shall at any time after 
 
 ' the expiracon of live yeares return and bring full and sufficient testimony 
 
 ' That he or she hath divers ways indeavoured bywriteing or messages to make 
 
 ' known to his wife or her husband that he or she were then Liveingor I hat 
 
 • they were by imprisonment or bond Slavery Lawfully hindred from giving 
 
 • such informaeon It shall and may be law full for the said man or woman to 
 'Challenge his or her premarriage and may by an order out of the High 
 ' Court of Chancery Cohabit as formerly. 
 
 " Provided Always That if neither shall sue for such Order they may by 
 
 ■ mutual! agreement Enter a Release to Each other, which Release shall be 
 ' Entred in the Office of Records and both remaiue free from their former 
 
 ■ obligacdn. 
 
 " Provided nothing in this Act shall be construed or intended to prejudice 
 ' the Custome and manner of Marriage amonst the Quakers, but their manner 
 ' and forme of marriage shall be judged Lawfull, provided they adinitt of 
 ' none lo marry that are restrained by the Law of God contained in the five 
 ' Books of Moses, and that they permitt none to be marryed within their 
 ' Congregation or meeting of any other persuasion then themselves by Licence 
 ' from the Governour or publicacon as this Law directs and record made of 
 ' such marriages as this Law does direct under the penalty aforesaid. 
 
 State of New York. j 
 
 ' Office of the Secretary of the Board of j-ss. 
 " Regents of the University ) 
 
 "I, David Murray, Secretary of the Board of Regents of the University of 
 ' the State of New York, do hereby certify, that the foregoing is a true and 
 ' correct transcript of a law, entered on pages 51, 52, 53 and 54 of a volume 
 ' called ' Dongan's Laws 1683, 1684' (inner title 'The Duke of Yorke's Charter 
 ' of Liberties and Privileges to the Inhabitants of New York anno 1683 with 
 'Acts of the Assembly of that year and the year 1684 '), deposited in the 
 
38 
 
 "Manuscript Department of the State Library under Cliap. 120, Laws of 
 " 1881, — aud of the whole thereof. 
 
 ' Witness my Band and the seal <>f said Board of Regents at Albany this 
 " 10th day of January, 1885. 
 
 " David Mukray, 
 
 " Secretary." 
 ********* 
 
 This marriage law of 1684 was assented to by Governor 
 Dongan, and received the confirmation of the Duke, and 
 brings specific royal orders, or legislation, on the subject 
 of marriage, down to the date of the death of Charles II., 
 and again precluded, up to that time, the intrusion of the 
 English Common Law, or any other law, on that subject. 
 
 The new King, James II., issued a new commission to 
 Governor Dongan and new instructions, dated May 29th, 
 1686, wherein, among other things, the Charter passed by 
 the late Assembly was repealed and declared void, but " all 
 " other laws, statutes and ordinances already made within 
 - - our said Province of New York shall continue and be in 
 •• full force and vigor so far forth as they do not in any 
 •• wise contradict, impeach or derogate from this commis- 
 •• sion or the orders and instructions herewith given you, 
 " till you shall with the advice of our Council pass other 
 " laws in our name for the good government of our said 
 ■■ province, which you are to do with all convenient Bpeed." 
 By these instructions all statute laws and ordinances, made 
 within the province, were to be transmitted to the King, 
 and the Committee for Trade and Foreign Plantations, 
 within three months or sooner after their enactment, and 
 all of them disallowed and not approved by the King shall 
 thenceforth cease and become void. 
 
 A second Assembly met on November 3d, L685, but on 
 September 4th, 1680, it was prorogued by Governor Dongan. 
 and thereafter the Governor and Council, by orders in 
 council, became the only political power in the colony, 
 excepting, of course, the British Parliament when the 
 colony was expressly named in its enactments. 
 
 In October, 1668, came the abdication of James II. and 
 the ascension of William and Mary To the throne. The 
 
39 
 
 Crown appointed Governor Sloughter to be the new Governor 
 of New York, authorizing him, with the advice and consent 
 of liis Conncil, to summon and call general assemblies of 
 the inhabitants being freeholders therein, according to the 
 usage of other English plantations in America, with power 
 and authority to make laws, statutes and ordinances for the 
 public good and welfare of the province, which are to be as 
 near as may be agreeable to the laws and statutes of 
 England, provided that within three months or sooner after 
 the making thereof they be transmitted to London for royal 
 approval or veto, and that so many as are not approved shall 
 become utterly void and of no effect. In these instructions 
 to Governor Sloughter, the King ordained that " to the end 
 " the ecclesiastical jurisdiction of the said Bishop of Lon- 
 " don may take place in that our province as far as con- 
 " veniently may be, we do think fit that you give all coun- 
 " tenance and encouragement in the exercise of the same 
 " excepting only to the collating of benefices, granting 
 " licenses for marriages, and probates of wills, which we 
 kk have reserved to you our Governor, and to the Com- 
 " mander- in-Chief for the time being. You are to take 
 " especial care that a table of marriages established by the 
 " canons of the Church of England be hung up in all ortho- 
 " dox churches, and duly observed." 
 
 The first Assembly under William and Mary was con- 
 vened at the City of New York on April 9, 1691, and 
 fifteen days thereafter, as appears by the Journal of that 
 Assembly, the lower branch thereof passed a resolution in 
 respect to the repeal of all laws consented to by the General 
 Assembly under the Duke of York, and also the several 
 ordinances made by the late Governors and Councils, which 
 resolution will be referred to again hereafter. 
 
 There was no legislative enactment or order of the Colo- 
 nial Governor and Council, or Royal order of the King, or 
 legislative enactment by the British Parliament, expressly 
 relating to marriages in the Colony of New York that has 
 come under my observation subsequent to the marriage law 
 of the colony of 1684 heretofore referred to, nor have I 
 
40 
 
 been able to find any marriage law of the colony down to 
 the year 1112 which repealed or modified that legislation 
 of 1684. 
 
 In the examination that I have made of the question 
 presented by the inquiry to which I am now replying, and 
 in the opinion I have formed thereon, I have not been 
 unmindful of a series of American Judicial Decisions by 
 the Federal Courts of the United States, and by the Courts 
 of the State of New York, which have more or less bearing 
 upon the questions presented, and especially the opinion 
 of the Supreme Court of the United States in the cases of 
 Johnson vs. Mcintosh (8 Wheaton's Reports, 543) and 
 Martin vs. WaddeWs Lessee (16 Peters' Reports. 367) and 
 the cases in the courts of New York entitled The Canal 
 Commissioners vs. The People (5 Wendell, 424) ; Bogardus 
 v>. Trinity Church (4 Paige's Chancery Reports. 178); 
 Humbert vs. Trinity Chun-It (24 Wendell, 587). 
 
 In Johnson vs. Mcintosh (8 Wheaton's Reports, 543), 
 decided in 1828, the conflict was over the title to land in 
 Illinois, which had been conveyed by the Indians in 1773 
 and 1775, and also by a patent from the Government of the 
 United States on July 30, 1818, which had purchased the 
 lands from the same tribe of Indians. Both litigants 
 claimed a title flowing from the same original source. The 
 real question was whether the United States Courts could 
 recognize the first-named title — the power of the Indians to 
 give and of private individuals to take. In the opinion 
 given by Chief Justice Marshall, the Court begin by saying 
 that "discovery" gave to the nation making the discovery 
 "the sole right of acquiring the soil from the natives and 
 establishing settlements upon it." The opinion asserts 
 that Cabot "discovered the of continent North America, 
 along which he sailed as far south as Virginia;" that the 
 United States adopted the rule that the discoverer had an 
 exclusive right to appropriate the lands occupied by 
 Indians; that the English title to Indian lands by dis- 
 covery passed to the United States, and, therefore, the 
 Indian conveyance to individuals was worthless as against 
 
41 
 
 the United States. The land In controversy was conceded 
 to be in a region to which the English acquired a title 1>\ 
 discovery and settlement, it being within the patent of 
 .lames I., dated May 23, l(H)i). Neither the case nor the 
 opinion touches the presenl inquiry, whether or not the 
 Dutch or the English first discovered or settled Manhattan 
 Island and the Province of New York, and whether the 
 transaction of L664 was or was not a military conquest. 
 On the contrary, the case and opinion sustain Dutch title 
 in New York it* the Dutch were first discoverers and 
 settlers. 
 
 In the course of his opinion Chief Justice Marshall refers 
 specifically to the circumstances of the settlement of New 
 Netherlands and the acquirement of title therein by the 
 English in 10G4. He says : 
 
 " The states of Holland also made acquisition in America and sustained 
 " their right on the common principle adopted by all Europe. They alleged 
 " as is told by Smith in his history of New York, that Henry Hudson, who 
 
 " sailed as they say under the orders of the East India company, discovered 
 " the country from Delaware to the Hudson up which he sailed to the 43 of 
 " North Latitude and this country they claimed under the title acquired by this 
 " voyage. Their first object was commercial as appears by a grant made to a 
 "company of merchants in 1614 ; hut in 1621 the States General made, as we 
 "are told by Mr. Smith, a grant of the country to the West India company by 
 " the name of New Netherland. The claim of the Dutch was always con- 
 " tested by the English, not because they questioned the title given by dis- 
 "covery but because they insisted on being themselves the rightful claimants 
 "under that title. Their pretensions were finally <h<-i<irtl by the sword." 
 
 Here is a positive declaration by Chief Justice Marshal, 
 and the Supreme Court of the United States, that the trans- 
 act ion in New York Harbor in 1664 was, in its legal conse- 
 quences, a military conquest. 
 
 The case of Hart in et al. vs. Tlie Lessee of William C. H. 
 Waddell (16 Peters, 367) presented the question whether or 
 not the grant from Charles II. to the Duke of York of the 
 territory which now forms the State of New Jersey passed 
 to the Duke the soil under the navigable waters within the 
 colony as one of the royalties incident to the powers of 
 Government, including the exclusive use of the waters 
 and the right of fishery therein. The Court decided 
 
42 
 
 that the public and common right of fishing in 
 such navigable waters was not given to the grantees. 
 The question was presented to the Supreme Court 
 under a special verdict of a jury in the Court below, 
 which found specially, among other things, as matter of 
 fact, the two grants of Charles II. dated June 33, 1064, and 
 June 29, 1 074. The Court was divided in opinion, two of 
 the nine Justices dissenting from the conclusions of the 
 majority. The opinion of the Court was delivered by Mr. 
 Chief Justice Taney, who began by saying that "The plain- 
 "tiff makes title under the charters granted by Charles II. 
 " to his brother the Duke of York in 1004 and 1074 for the 
 " purpose of enabling him to plant a colony on this con- 
 tinent. The last mentioned grant is precisely similar to 
 "the former in every respect and was made for the purpose 
 "of removing doubts which had then arisen as to the val- 
 idity of the first * * * The point in dispute between 
 "the parties therefore depends on the construction and 
 " legal effect of the letters patent to the Duke of York and 
 " of the deed of surrender subsequently made by the pro- 
 prietors * * * The right of the King to make this 
 "grant, with all of its prerogatives and power of govern - 
 " ment, cannot at this day be questioned." 
 
 The Chief Justice then goes on to reaffirm the principles 
 governing Indian titles, announced by the Court in the case 
 of Johnson vs. Mcintosh. 
 
 It is to be observed that both grants, the one in 1004 and 
 the other in 1674, were before the Court, and it is to be 
 assumed that the decision was based upon and referred to 
 the subsequent grant of 1674. 
 
 In the course of the opinion of the Chief Justice, and 
 after declaring that "the right of the King to make this 
 grant" of 1674 " cannot at this day be questioned," he says 
 that "in order to enable us to determine the nature and 
 " extent of the interest which it conveyed to the Duke it 
 " is proper to inquire into the character of the right 
 " claimed by the British Crown in the country discovered 
 " by its subjects on this continent, and the principles upon 
 
43 
 
 " which it was parcelled out and granted." Thereupon 
 the Chief Justice proceeds to say thai 'The English pos- 
 sessions in America were not claimed by right of conquest 
 but by right of discovery," which proposition in its appli- 
 cation to all of the English possessions in America, except- 
 ing those acquired from Holland and from France by 
 conquest and treaty, was manifestly correct ; but incorrect 
 in its application to a portion of Canada and to New York, 
 and therefore it is to be assumed that the Chief Justice did 
 not refer to either of the two. Indeed, Chief Justice Mar- 
 shall, in the previous opinion of the Court in Johnson vs. 
 Mcintosh, had expressed the opinion that the English title 
 to New York was acquired "by the sword." 
 
 The case of The Canal Commissioners vs. The People 
 (.") Wendell, 424), 1830, presented the inquiry whether or 
 not the '"middle sprout" in the Mohawk River, in New 
 fork, was embraced in a Patent, in the manor of Ren- 
 selaewyck, bearing date May 20, 1704. The place in con- 
 troversy was above tide water. The discussions at bar, 
 and the opinions given by the several members of the 
 Court of Errors, took a large range in respect to grants 
 bounded on rivers above tide-water and in respect to the 
 question whether or not the common law prevailed in New 
 York in that relation. It was contended that as New York 
 was a Dutch colony the rule of the civil law prevailed in 
 New York, and that the English common law was for that 
 reason never in force on that subject in the colony. Chan 
 cellor Walworth expressed the opinion that the common 
 law did prevail, because "it is a matter of history that it 
 it was always claimed by right of discovery and not as a 
 conquered country." Mr. Senator Allan, another Judge, 
 was decidedly of the contrary opinion in every particular. 
 Mr. Senator Benton was of the opinion that the common 
 law as against civil law was not before the Court, and he 
 expressed no opinion. 
 
 In 1836, the same question came again before the Court 
 in 17 Wendell, 571, and Chancellor Walworth reaffirmed 
 his views at great length, basing them on the supposition 
 
44 
 
 that no one seriously contended that the Roman-Dutch 
 law remained in force after the capitulation by Governor 
 Stuy vesant in 1664, or seriously denied that the New York 
 province was claimed by the English by right of discovery, 
 or asserted an English title was by right of conquest, or 
 that any formal act was needed after 1664 to introduce 
 the English common law into the colony as a body of law. 
 Mr. Senator Beardsley asserted the contrary opinion, and 
 Senator Tracy asserted that the common law doctrine set 
 up did not apply to the question at bar. 
 
 In Bogardus vs. Trinity Chun-It (4 Paige's Chancery 
 Reports, 178), Chancellor Walworth asserted again in 1833 
 the same opinions as in 1830, and said that in 1705 the 
 statutes of 32 Henry VIII., Ch. 2, and 21 James I., (Mi. 16, 
 constituted a part of the law of the New York colony, 
 because brought thither by Englishmen, and because 
 New York was acquired by England by first discovery 
 and settlement. 
 
 In Humbert vs. Trinity Church (24 Wendell, 587), de- 
 cided in 1840, the questions were about the law of inherit- 
 ance and the effect of lapse of time, but one of the .ludges 
 (Furnian) while declaring that the case did not call for the 
 saying, said in passing that the Vice-Chancellcr was right 
 in asserting that " the English common law was, as a mat- 
 " ter ol* course, introduced into the colony immediately 
 •• afterthe conquest of 1664." 
 
 In respect to the value which shall be given at this day 
 to the judicial opinions and decisions of American Courts 
 wherein it is disclosed that those opinions and decisions are 
 based upon imperfect theories of fact then assumed by the 
 Court to be perfect, it is proper to say that until the com- 
 paratively recent discoveries made by Mr. Brodhead of 
 New York, the author of "The History of New York" in 
 two volumes, the tirst volume of which was published in 
 1853, and the second volume in 1871, the current knowl- 
 edge in the United States of the early colonial history of 
 what is now the State of New York was defective in many 
 particulars. The first history of New York by Smith was 
 
4/5 
 
 published in London in 1767. An American edition was 
 
 published in 17!>2. The author was a lawyer in the New 
 York colony and had been engaged under appointment of 
 the New York Assembly in a review and digest of the laws 
 of the province, which employment induced the prepara- 
 tion of his history of the colony, lie died ( Ihief -Justice of 
 Canada, and left behind him, in manuscript, a continuation 
 of his history of New York, written by his own hand, which 
 covered the period From 1732 to 1762, but it was not pub- 
 lished until after its communication to the New York His- 
 torical Society in 1824 by the son of the author. The manu- 
 script appeared in print for the first time in 1826. It is 
 from the narrative of events thus given by Smith that have 
 largely come the opinions in respect to the events of 1604, 
 1674 and L691, which have been announced by the historians 
 that followed him, and by judicial tribunals down to the 
 publication of the hrst volume of Mr. Brodhead in 1853, and 
 the first volume of O'Callaghan's History of New Nether- 
 land in 1848. Mr. Brodhead was a lawyer by profession ; 
 he was attached to the American Legation at the Hague, and 
 was commissioned by the State of New York to procure 
 original materials relating to its early history. In this 
 labor he spent more than three years in the archives of 
 England, Holland and France, and as the result of his labors 
 sent home sixteen volumes of Dutch documents which he 
 had collected in Holland. If Chancellors Kent and Wal- 
 worth could have had before them the results of Mr. Brod- 
 head' s researches, when their opinions in the cases I have 
 mentioned were given, and the results of other modern 
 researches, it is to be assumed that neither of them would 
 seriously have contended that the foundation of the English 
 colony in New York rested on discovery made by Cabot in 
 1497, and not on military conquest accomplished in 1664. 
 
 I have not been unmindful of a decision in the case of 
 Jackson et aZ. vs. Gilchrist (15 Johnston's Reports, 89), 
 made in 1818 by the Supreme Court of the State of New 
 York, a court inferior in jurisdiction and subordinate in 
 authority to the Court of Appeals of the same State. The 
 
46 
 
 question in that case was whether a deed of land purport- 
 ing to have been made by husband and wife had been 
 iw acknowledged " by the wife so as legally to divest her 
 title thereto. There appears to have been a diversity of 
 opinions on the bench "how far the common law mode of 
 proceeding was at that time in force in New York," when 
 the acknowledgment was made, and that question was left 
 undecided by the Court. The Judge who announced the 
 decision of the Court gave it, however, as his own opinion, 
 that "the common law in this respect had never been 
 adopted with us," but the decision turned on a Colonial 
 Act of 1771. It had been argued at bar that this Act of 
 1771 was in conflict witli the Duke of York's Charter of 
 1683, and that argument seems to have suggested, or 
 required, a consideration of the inquiry whether or not that 
 Charter of 1683 was in force in 1771. Upon that point the 
 Court said : 
 
 "I believe it lias been the general, if not the received, opinion that this 
 " charter was not in force here after the revolution of 1688 
 
 An inference has here and there been drawn, by his- 
 torians rather than lawyers, from this casual remark of the 
 Court, that the charter referred to came to an end by reason 
 of the abdication of James II. and the coronation of Will- 
 iam and Mary. Such probably could not have been the 
 opinion of the Court if its attention had been drawn to the 
 instructions given by .lames II. to Governor Dongan on 
 May 29th, L686, in which the King said : 
 
 " And whereas we have been presented with a bill or charter passed in the 
 "late Assembly of New York containing several franchises, privileges, and 
 " immunities mentioned to be granted to the inhabitants of our said province, 
 "you are to declare our will and pleasure thai the said bill or charter of Iran 
 " chiscs be forthwith repealed and disallowed as the same is hereby repealed, 
 "determined and made void." 
 
 It was for that reason the opinion " had been universally 
 received" that the charter of 1683 "was not in force here 
 after the revolution of 1688." 
 
 The opinion of the Court then refers to. ami quotes, ap- 
 parently by way of showin.u that " the universally received 
 opinion" in respect to the charter of 1683 was correct, the 
 
47 
 
 record of the proceedings of the General Assembly of New 
 York, convened by Governor Sloughter under William and 
 Mary, fchal mel in April, L691. Tin's was the firaf Assembly 
 that had been convened in the colony under the direcl 
 authority of the English King and Crown, li came to- 
 gether under circumstances of exceptional popular emotion 
 and partisan strife, growing out of the doings of Leisler, 
 who had usurped colonial authority before the arrival oi 
 Governor Sloughter. The members of this Assembly ap- 
 pear to have been bitterly hostile in every sense to Leisler 
 and his doings. The Assembly resolved unanimously that 
 Leisler' S acts had been tumultuous, illegal, arbitrary. 
 destructive and rebellious. The Assembly presented to 
 Governor Sloughter an address which declared that : "In 
 "our hearts we do abhor and detest all the rebellious, 
 " arbitrary and illegal proceedings of the late usurpers of 
 "their Majesty's authority over this province." A few 
 days afterward the Assembly adopted another extraordin- 
 ary resolution in which, after reciting by way of preamble, 
 that "upon an information brought into this house by 
 " several members of the house declaring that the several 
 " laws made formerly by the General Assembly and his late 
 " Royal Highness James, Duke of York, etc., and also the 
 " several ordinances or reputed laws made by the preceding 
 •( Governors and Councils for the rule of their Majesty's 
 " subjects within this province are reported amongst the 
 " people to be still in force ;" 
 
 "Therefore, Resolved, Nemim Contra Diccente, That all the laws consented 
 " to by the General Assembly under .Tunics, Duke of York, and the liberties 
 " and privileges therein contained granted to tlie people and declared to be 
 " their rights, not being observed and not ratified and approved by his Royal 
 " Highness nor the late King, are null, void and of none effect Anil also the 
 " several ordinances made by the late Governor and Council being contrary to 
 " the Constitution of England and the practice of the Government of their 
 " Majesty's other plantations in America are likewise null, void and of none 
 " effect nor force within this province." 
 
 It will be observed that the first branch of the resolution 
 simply declares in effect that all the laws of the General 
 Assembly convened under the Duke of York, including the 
 
48 
 
 charter which .had not been ratified and approved by his 
 Royal Highness nor the late King, are "null, void and of 
 none effect." That was only a declaration of the legal fact. 
 The second branch of the resolution, however, relates not 
 to the charter but to "several Ordinances'' which the re- 
 solution asserts were null and void, because unconstitu- 
 tional, and in conflict with colonial usage. That branch of 
 the resolution will be referred to hereafter, but it has no 
 bearing on the charter of 1683, which was vetoed by the 
 King in 1686. 
 The opinion of the Court in Jackson vs. Gilchrist adds : 
 
 " We do not tint] this charter published in any edition of the colonial laws 
 " as we most undoubtedly should had it been considered in force." 
 
 It was. in fact, immaterial whether or not this charter 
 had been published in any edition of the colonial laws, in- 
 asmuch as no mere publication by a compiler of the laws 
 could have given it validity, if it fell by the veto of the 
 King. 
 
 The opinion of the Court also says that the General 
 Assembly of 1791, after making the foregoing declaration 
 of nullity, enacted another charter, which, in the view of 
 the Court, contained all that was intended to be in force. 
 But the allusion to the second charter was irrelevant, inas- 
 much as it was vetoed and annulled by the King in 10!)?. 
 The Court, however, concludes, that in 171 1, which was 
 the date of the "acknowledgment " in question, there was 
 no statute regulation of acknowledgments then in force. 
 
 I am aware that an inference has here and there been 
 drawn, chiefly by historians, from the remark, in Jackson 
 vs. Gilchrist, in respect to the charter of 1683, that all the 
 statutes, laws and ordinances of the Colony of New York 
 enacted or declared under English authority subsequently 
 to 1604 fell in consequence of the revolution of 1088. The 
 lit si suggestion of such an inference was made, 1 think, by 
 Smith, in a note to his "History of the Province of New 
 York," in which he says : 
 
 " All laws made here antecedent to this period (1691) are disregarded both 
 " by the Legislatures and the Courts of Law. In the collection of our acts 
 
49 
 
 " published in 1752, the compilers were directed to begin :ii this Assembly. 
 •• The validity of the old grants of the powers of govei amcnl in several A mer 
 " lean colonies is very much doubled in this province." (See American Edi- 
 tion of Smith's History; Philadelphia, April -2, 1793, p 
 
 I am quite unable in perceive how or why the abdication 
 of James 11. and the coronation of William and Mary 
 should have produced such a tremendous legal consequence 
 in the Colony of New York. Certainly the new king by a 
 Royal Order continued in power the colonial officers then 
 exercising authority in the province until his further inten- 
 tion should be manifested, and it would be quite absurd, it 
 seems to me. to assume that those officers were continued 
 in power with no statutes or ordinances to prescribe the 
 rights to lie held and the duties to be performed in the 
 Colony of New York by such officers. That the remark of 
 the Judge giving the opinion of the Court in Jackson vs. 
 Gilchrist was not law at the time and is not accepted as 
 law in New York may be inferred from the opinion of 
 Judge Furman, expressed in the case of Humbert vs. 
 Trin it a Church (24 Wendell, 587), sitting in the Court of 
 Errors, which is a tribunal of final appeal and jurisdiction. 
 He said : 
 
 "There lias been considerable anxiety manifi sled in the course of this 
 " argument to show that there were no colonial laws previous to the enactment 
 " of 1691 or that they were of a loose and vague description as lo merit no 
 " attention and that even those had probably been lost or destroyed: and for 
 • that purpose 'J Graham Hist. U. S. 325 and Smith Hist. X. Y. 4,2 124, have 
 " been cited. It is really strange how such matters get into histories and pass 
 "from one age to another without contradiction. The truth is thai those' 
 " laws of the colony of New York, enacted in the year 1683, l<i*-I and 1685 are 
 " generally as well worthy of attention as any which have been passed since, 
 " but never having been printed the public knew little or nothing about them, 
 " and they are all now presi rved in the office of Secretary of Stale." 
 
 That opinion was delivered in 1840. 
 
 In 1863, and in the case of Van Winkle vs. Constantine 
 ilo New York Keports, 424), the Court of Appeals, a tribu- 
 nal of final jurisdiction, said that the resolution of the 
 colonial Assembly of 1691 "was not intended as a repeal 
 k ' but as a statement of the fact that they had been disal- 
 " lowed or discontinued by the late Duke of York and 
 
so 
 
 " were therefore not binding upon the people of the 
 " colony." 
 
 The question of the effect of the resolution of 1691 only 
 becomes relevant to the inquiry now submitted to me by 
 reason of its bearing upon the "Bill concerning Marriages" 
 enacted by the colonial Assembly in 1684 and the sugges- 
 tion here and there made that this marriage law was also 
 repealed by the resolution of 1691. In regard to that sug- 
 gestion, it is to be said that the first branch of the resolu- 
 tion only attempts and purports to declare null and void 
 such laws as have been (1) consented to by the General 
 Assembly under James, Duke of York, and (2) not ratified 
 and approved by his Royal Highness nor the late King. But 
 1 have not been able to discover any evidence, and I believe 
 there is no evidence, that the "Bill concerning Marriages" 
 was either vetoed, or was "not ratified and approved, by 
 his Royal Highness nor the late King," and so, for that 
 reason, the resolution of 1691 did not touch that marriage 
 law. The second branch of the resolution of 1691 only 
 refers to and declares null and void " the several Ordinances 
 " made by the late Governors and Councils being contrary 
 " to the constitution of England and the practice of the 
 " government of their Majesty's other plantations in Amer- 
 " ica." The "Bill concerning Marriages" was not an 
 ordinance made by the late Governors and Councils, but 
 was a legal statute enactment. It was not unconstitutional, 
 nor in violation of colonial usage, and, for this second 
 reason, therefore, this marriage law was not touched by the 
 resolution of 1791. 
 
 But there is another consideration which seems to show 
 conclusively that the resolution of 1791 cannot have the 
 effect of repealing the marriage law of 1684. 
 
 In the ■• Colonial History of New York, London Docu- 
 ments, 1788 L782, Volnme VIII.," there is to be found a 
 copy of the report to the Earl of Dartmouth, dated ,Iune 
 11, 1774, by Governor Tryoi in obedience to the King's 
 commands, which exhibits the opinions entertained by the 
 then Captain-General and Governor-in-Chief of the colony 
 
51 
 
 concerning the general character and condition of the 
 political affairs of the colony after the powers of govern- 
 ment therein were completely rested in the Duke, of York 
 by the treaty of Westminster and the patent of 1(374. He 
 
 says : 
 
 " By the Grants of this Province and other Territories to the Duke of 
 fork in HiiiJ and 1674, the powers of Government were vested in him, 
 
 • and were accordingly exercised by his Governors until he ascended the 
 
 ■ Throne when his Rights as Proprietor merged in hi* Crown, and Ihe 
 
 • Province ceased to be a Charter Government. From that time it lias been 
 
 • a Royal Government, and in its constitution nearly resembles that of Great 
 
 • Brit on and the other Royal Governments in America. The Governor is 
 
 • appointed by the King during his Royal Will and pleasure by Letters 
 ' pattent under the Great Seal of Great Britain with very ample powers. — He 
 ' has a Council in Imitation of His Majesty's Privy Council. — This Board 
 
 • when full consists of Twelve Members who are also appointed by the 
 ' Crown daring Will and Pleasure ; and three of whom make a Quorum. — 
 ' The Province enjoys a Legislative Body which consists of the Governor, as 
 ' the King's Representative ; the Council in place of the House of Lords, and 
 
 ■ the Representatives of the People, who are chosen as in England ; of these 
 ' the City of New York sends four. — All the other Counties (except the new 
 
 • Counties of Charlotte and Gloucester as yet not represented) send Two. — 
 ' The Borough of Westchester, The Township of Schenectady and the three 
 ' manors of Renselaerswyck, Livingston and Cortlandt cacti send one ; in the 
 ' whole forming a Body of Thirty-one Representatives. The Governor by his 
 
 • Commission is authorized to convene them with the advice of the Council, 
 
 • and adjourn, prorogue or dissolve the General Assembly as he shall judge 
 necessary. This Body has not power to make any laws repugnant to the 
 Laws and statutes of Great Britain. All Laws proposed to be made by this 
 Provincial Legislature, passed thro' each of the Houses of Council and 
 
 ' Assembly, as Bills do thro' the House of Commons and House of Lords 
 ' in England, and the Governor has a Negative voice in the making and 
 ' passing all such Laws. Every law so passed is to be transmitted to his 
 ' Majesty under the Great Seal of the Province, within three Mouths or 
 ' sooner after the making thereof and a Duplicate by the next Conveyance, 
 ' in order to be approved or disallowed by his Majesty ; And if his Majesty 
 ' shall disallow any such Law and the same is signified to the Governor 
 ' under the Royal Sign Manual or by Order of his Majesty's Privy Council, 
 ' from thenceforth such law becomes utterly void. — A law of the Province 
 ' has limited the duration of the Assembly to seven years. The Common 
 ' Law of England is considered as the fundamental law of the Proviuce, and 
 ' it is the received Doctrine that all the Statutes (not Local in their Nature, 
 ' and which can be fitly applied to the circumstances of the Colony) enacted 
 ' before the Province had a Legislature, are binding upon the Colony ; but 
 ' that statutes passed since do not affect the colony, unless, by being specially 
 ' ntimed, such appears to be the Intention of the British Legislature." 
 
52 
 
 This exhibition of the rule and practice which controlled 
 the making and repealing of laws in the colony may be 
 fairly assumed to have prevailed in 1791, and if that be so, 
 the resolution of that year was nothing more than a mere 
 declaration of the wishes or opinions of one branch of the 
 legislative body, not concurred in by the other branch or 
 approved by the Governor. I have not been able to rind 
 even an indication, and do not believe that any exists, 
 showing that this extraordinary resolution of 1691 was 
 concurred in by the upper house of Council, or approved 
 by the Governor, and if that be so then the resolution had 
 no legal effect as a repealing enactment. 
 
 It will be observed that Governor Try on, in his Report, 
 says that : 
 
 " The common law of England is considered as the fundamental law of 
 " the province, and it is the received doctrine that all the statutes (not local in 
 " their nature and which can he fitly applied to tin- circumstances of the e<>l- 
 " ony), enacted before the province had a legislature are binding upon the co|- 
 " ony ; but that statutes passed since do not affect the colony Unless by being 
 " specially named, such appears to he the intention of the British Legislature." 
 
 To which laws, and to what laws in particular did Gov- 
 ernor Tryon, in 1774, intend to refer by the phrase, "the 
 common law of England." That phrase has been, and is, 
 used in many different senses. Blackstone tells us in his 
 Commentaries (the first volume of which was published in 
 17(i.'). and the second volume three years later, which was 
 very near the year to which we are referring) : 
 
 "The municipal law of England, or the rule of civil conduct prescribed to 
 " the Inhabitant* of this Kingdom, may, with sullieient propriety, be divided 
 " into two kinds ; the In mm sciipta, the unwritten law, or common law ; and 
 ■' the l<-r teripta, the written or statute law. * * * This unwritten, or com- 
 '• mon law, is properly distinguishable into three kinds : (1.) General customs, 
 " which are the universal rule of the whole kingdom, and form the common 
 '• law in its stricter and more usual signification. (2 ) Particular cu-toms, 
 " which for the most part affect only the inhabitants of particular districts. 
 " (3.) Certain particular laws, which by custom are adopted and used by some 
 " particular Courts of pretty general and extensive jurisdiction. * * * Hut 
 " here a very natural and very material question arises. How are these CUS- 
 " toms or maxims to be known, and by whom is their validity to be deter- 
 " mined '.' The answer is, by the Judges iu the several Courts of Justice. 
 " They arc the depositaries of the law, or living oracles, who must decide in 
 
53 
 
 " all cases of doubt, and who are bound by an oath, to decide according to 
 " the law of the land." 
 
 As Blackstone makes a sharp distinction between the 
 common law, which is to be found in the decisions of the 
 judges, and the statute law, which is to be found in the 
 books of statutes, it cannot have been in the mind of Gov- 
 ernor Tryon to use the phrase in the sense expressed by 
 Blackstone, inasmuch as the Governor declared it to be 
 " received doctrine that all the statutes, not local in their 
 " nature, and which can be fitly applied to the circum- 
 " stances of the Colony, enacted before the province had a 
 " legislature, are binding upon the Colony," unless he 
 intended to say that those statutes were only considered as 
 a definition and expression of the common law. .And the 
 Governor adds that not all those English statutes w r ere 
 considered as "binding upon the Colony," but only such 
 as "can be fitly applied to the circumstances of the 
 " Colony." 
 
 But where shall w r e look to ascertain which of the stat- 
 utes were considered as "fitly" applicable? In Van Nest 
 v. Packard (2 Peters, 144) the Supreme Court of the 
 United States says : 
 
 "The common law of England is not to be taken in all respects to be that 
 "of America. Our ancestors brought with them its general principles, and 
 " claimed it as their birthright ; but they brought with them and adopted 
 ■' only that portion which was applicabli to their condition." 
 
 In Cathcart v. Robinson (5 Peters, 280) the same Court 
 says : 
 
 "The acts of Parliament passed after the settlement of a colony were not 
 " in force therein unless made so by express words or by adoption." 
 
 The principles announced by the Supreme Court of the 
 United States must be taken, I think, to refer to a planted 
 colony and not to a conquered colony, inasmuch as the 
 phrase " settlement of a colony " cannot be predicated of a 
 conquered colony. If subjects of the British Crown were 
 to discover to-day in the Pacific Ocean, and to take posses- 
 sion of, an uninhabited island, rich in mines or other com- 
 mercial treasures, and English settlers were rapidly to 
 
54 
 
 occupy the region, in which no law existed, the rule would 
 undoubtedly be that those settlers brought with them, and 
 introduced into the new settlement, so much of English 
 law as, by general consent, was deemed applicable to their 
 conditions. The law thus brought and introduced would 
 be, not merely the unwritten law and immemorial customs 
 of England, but the written or statute law as well. But if, 
 on the other hand. England were to-day to conquer from 
 Spain the Island of Cuba, and the conquest were ratified 
 by treaty cession, and subjects of the British Crown were 
 thereafter to arrive and settle in Cuba, it would not be cor- 
 rect to say that those settlers could in the same sense bring 
 with them, and introduce by their arrival, English law. In 
 the last-named case, any new law must be introduced by the 
 specific orders or the legislation of the conquering power 
 acting as a Government. In the case of planted English 
 colonies the term. " common law," as a rule for the govern- 
 ment of individuals, in the sense now under consideration, 
 must be taken as referring to a particular date, together 
 with statute laws in force at the time of the emigration, 
 which (and here is an important qualification) the settlers 
 deemed applicable to their condition. Chancellor Kent, in 
 ih.' first volume of his Commentaries (p. 343), says of the 
 common law : 
 
 "It is the common jurisprudence of the United States, and was brought 
 " with them as colonies from Eogland ami as established here to far as it was 
 "adapted to our institutions and circumstances. * * * It fills up every 
 " interstice and occupies every wide space which the statute law cannot 
 " occupy." 
 
 The true inquiry, therefore, in respect to the ma rriage 
 laws in force in the New York Colony in 1772, must be, 
 first, whether there was any "interstice" and "wide 
 space" in respect to the institution of marriage which was 
 then not occupied by statute laws ; and, secondly, if any 
 such '-interstice" and "wide space" existed, then what 
 provision of the common law regulating marriage was, by 
 the colonists, deemed suitable and applicable thereto, in 
 1772. The test in regard to the common law is not the 
 
56 
 
 common law of England, but the common law of the Colony 
 in 1772, if the two were unlike. In England and in the 
 
 United States one looks for evidence of the existence and 
 control of a common law at a particular date, to declaratory 
 statutes, to the commentaries of learned jurists, and to the 
 decisions of the Courts; but such a test in the Colony of 
 New York in 1772 is certainly not easy of application. In- 
 deed, on the subject of marriage it is difficult to-day to 
 ascertain what was the common law of England at any par- 
 ticular date, as the case of Regina r. Mills (10 CI. & Fin., 
 655) sufficiently discloses. I can but think that "the fun- 
 damental law " of the Colony of New York in 1772 and in 
 1774 was made up of: (1) So much of the Dutch law as 
 was unrepealed and continued in force; (2) so much of the 
 English common law as had been established after the con- 
 quest in l()f!4; (3) so much of the English Parliamentary 
 statutes as had been enacted and specially made ap- 
 plicable; and (4i the colonial statutes legally enacted 
 and sanctioned by the Crown. A great deal of the con- 
 fusion of thought and inexactness of expression in deal 
 ing with the early colonial law of New York may have 
 grown out of a failure to adequately discriminate be- 
 tween planted colonies and conquered colonies, and a failure 
 to appreciate the fact that during half a century the Prov- 
 ince of New York was governed and controlled by Holland, 
 which had a common law of its own as distinct and well 
 recognized as was the common law of England. 
 
 That there was a common law which may be generally 
 described as "English common law" prevailing on certain 
 subjects, and regulating certain transactions in the Colony 
 of New York in 1772, cannot be denied. Nor, on the other 
 hand, can it be denied that, in certain other matters, there 
 was another and a different law. The English common law- 
 has not prevailed, and does not prevail everywhere in the 
 United States, as is seen in the case of Louisiana, which, 
 having been acquired by treaty from France, presents some 
 analogies to the circumstances of the acquirement by 
 England of the Colony of New Y r ork from Holland. That 
 
56 
 
 some portion of the English common law did exist in the 
 Colony of New York is recognized in the first Constitution 
 of the State after it became independent, which declares, in 
 effect, that such portion of that common law as was in use 
 in the colony at the date of the battle of Lexington, April 
 19, 1775, should be the law of the State, unless modified by 
 some statute or constitutional provision. But that clause 
 in the State Constitution will afford little aid in ascertaining 
 whether, in 1772, the institution of marriage was or was not 
 regulated by a specific statute applicable thereto. That 
 some portion of the Dutch common law was in force in New 
 York at the time of the adoption of the Constitution is to 
 be inferred from the case of Dunham v. Williams (37 N. 
 Y. Rep., 251), in which the Court of Appeals, in 18G7, de- 
 cided in effect that the title to a certain roadway was gov- 
 erned, not by the English common law, but by the Dutch 
 common law. The Court say: 
 
 '• The highway was ancient. It was laid out when New York was a 
 •• province of the States General, and when it was in the possession of the 
 •■ original settlers and subject to the dominion and laws of the Dutch Govern- 
 '■ ment. * * * The highway having been laid out prior to the capitula- 
 '• tion, the title of the Government to the roadbed was absolute. This was 
 " the rule of the civil law which prevailed in all the colonial provinces of 
 " the Dutch." 
 
 There have been other questions adjudicated by the New 
 York Courts which uphold the contention that, in regard 
 to certain matters, the Dutch law prescribes the rule of 
 decision in New York at the present time. 
 
 It could not well but be that when the sovereignty of 
 Holland over the Province of New York was exchanged 
 for the sovereignty of England, some portion of the then 
 English common law would be immediately introduced. 
 Brodhead tells us (Vol. I. History of New York, p. 163) 
 that "the will of the West India Company, as expressed 
 " in instructions or declared in ordinances, was the 
 • supreme law of New York. In cases not thus specifi- 
 " cally provided for, the civil law, and the statutes, edicts 
 " and customs of the fatherland were to be paramount. 
 " To assist the Director a Council was appointed, which 
 
57 
 
 " was invested with ;ill local legislative, judicial and 
 " executive powers, subject to the supervision and appel- 
 •• late jurisdiction of the Chamber at Amsterdam. Crim- 
 " inal justice was administered by the Council to the 
 
 "extent of tine and imprisonment, but not to the taking 
 "away of life. If any person was capitally convicted, 
 
 " • he must be suit, with his sentence.' to Holland." 
 
 It is to be assumed that up to 1064 the language used in 
 courts of justice, as well as in statutes, was the Dutch. 
 After the conquest and. surrender, the Duke of York was 
 authorized by the King to make and establish laws and 
 magistracy "lit and necessary for and concerning the 
 " government of* the territories and islands aforesaid, so 
 ••always as the same be not contrary to the laws and 
 " statutes of this our realm of England, but as near as may 
 "be agreeable thereunto." The Duke's Laws, or the 
 Nicolls' Code of 1064, was the first successful attempt at 
 Codification, on a large scale, attempted in America. That 
 Code, as published in the first volume of the Collections of 
 the New York Historical Society, occupies 120 octavo 
 pages. It was apparently intended to cover, and it does 
 cover, nearly all the transactions of the colony which, at that 
 time, it was deemed necessary to regulate by positive law. 
 It deals with private rights and public rights, as well as 
 private wrongs and public wrongs, and with the constitu- 
 tion and procedure of courts of justice. Necessarily and 
 naturally, in such a code, published in the English language, 
 there were words and phrases, the definition and meaning 
 of which could only be determined by the customs and 
 common law of England, which would be the Law Diction- 
 ary of the Code. One sample will be a sufficient illustra- 
 tion. Under the head of "Actions," the Duke's Laws 
 say: 
 
 "All actions of debts, accompts, slanders, and actions of the case eoncern- 
 " ing debts and accompts, shall bo tryed within that jurisdiction where the 
 
 " cause of action dotb arise." 
 
 By what test, or standard, could a definition of "slan- 
 ders" or "actions of the case," or "jurisdiction," or 
 
58 
 
 "cause of action" be determined, unless by reference to 
 the English customs and common law. In that sense, and 
 for that purpose, it may be said that English common law 
 was introduced into the colony after the conquest, and 
 became the foundation. 
 
 The Colony of Massachusetts was in every sense a planted 
 colony, and a colony planted by Englishmen ; but even in 
 that colony it has been recently decided by the Supreme 
 Court of the State that the English common law never pre- 
 vailed to regulate the institution of marriage. In the case 
 of Commonwealth vs. Munson (127 Mass., 459), the defend- 
 ant, at a public religious meeting called by himself, at 
 which no magistrate or clergyman was present, gave out a 
 text from Scripture and talked awhile about " repentance " ; 
 then a woman came forward and read another text from 
 Scripture ; then the two joined hands and each promised to 
 take the other in wedlock ; then the two bowed to the as- 
 sembly and the defendant offered a prayer. Neither party 
 was ;i Friend or Quaker (the case of Quakers being excep- 
 ted by the Massachusetts statute); and the ceremony was 
 not comformable to the usage of any religious sect ; but the 
 rite was apparently performed in good faith, and was fol- 
 lowed by cohabitation. The usual license required by 
 statute had been taken out of the Clerk's office, and after 
 the strange ceremony it was duly returned to that office. 
 The Court held that there had not been a valid marriage. 
 The opinion of the Court was delivered by Chief Justice 
 Gray, who now sits in the Supreme Court of the United 
 States as Mr. Justice Gray. He said : 
 
 " In Massachusetts, from very early time, the requisites of avalid marriage 
 " have been regulated by the statutes of the Colony, Province, and Common- 
 " wealth; the Canon law was never adopted; and it was never received here 
 " as common law that parties could, by their own contract, without the pres- 
 " encc of an officiating clergyman or magistrate, take each other as husband 
 " and wife and so marry themselves. * * * The Province laws on this 
 " subject remained in force until after our Revolution." 
 
 What the Massachusetts Court said of the Massachusetts 
 colony is, in my opinion, true of the Province and Colony 
 
50 
 
 of New York, which is, thai the requisites of a valid mar- 
 riage were in New York regulated by the statutes of the 
 province or colony ; and it was never received in New 
 York, nj) to 1772, that concensnal marriages were valid, 
 even if (which is doubted) such marriages, without the 
 interposition of an officer, either civil or ecclesiastical, com- 
 plying strictly with the conditions and prerequisites pre- 
 scribed by the law giving- validity to the acts of such offi- 
 cer, were ever valid in England by the common law of 
 England. 
 
 I have not seen nor heard of a denial that the Colonial 
 Marriage Law of 1684 was a valid enactment at the date of 
 its enactment. In so far as it covered matters and also 
 punishments embraced in any previous statute, or 
 ruled by the common law, and was inconsistent there- 
 with, it repeated or abrogated both by implication. 
 Any contract of marriage, or any other contract, in 
 palpable violation of its requirements, would be void so 
 long as the law was in force. The same was true of 
 the Duke's Laws of 1664 concerning marriage, and their 
 amendments, and if it could be found that the Marriage 
 Law of 1084 was repealed prior to 1828, then, in the absence 
 of any positive law to the contrary, the Duke's Laws would 
 by implication be revived. 
 
 Second Question. 
 
 Whether, in 1772, a non-observance of the requirements 
 of Dongan's Act entailed a nullity of the ceremony of mar- 
 riage '. 
 
 Among the things specifically prescribed in the Dongan 
 Marriage Act of 1664, are the following : 
 
 First. — Any minister of religion, or justice of the peace, 
 within the Province, can join persons together in matri- 
 mony, provided, and not otherwise : 
 
 (a.) They bring a certificate from under the minis- 
 ter's ha ml that published them, that the names and 
 
60 
 
 surnames of each have been publicly read in the Parish 
 Church, or usual meeting place where they both then 
 inhabit, three several Lord's days together, as intend- 
 ing marriage ; or 
 
 (b.) Where no Church, or public meeting place, shall 
 happen to be, a certificate, under the constable's hand 
 on whose doors their names were affixed, of a publica- 
 tion in writing that has been affixed 14 days before 
 marriage on the door of the constable of each parish 
 where the parties inhabit ; or 
 
 (c.) They bring, or produce, a license, under the hand 
 and seal of the Governor ; and 
 
 (d.) The parties purge themselves by oath, if required, 
 before the justice of the peace or the minister, (who 
 have by the law power to administer the same) that 
 they are not under the bonds of matrimony to any 
 other person living. 
 
 Second. — Those certificates, thus brought and produced, 
 shall be sent to the office of the Register of the County, and 
 there entered on record, together with a certificate of their 
 marriage, with the day and date thereof made by the party 
 by whom they were married, there to remain in perpetuam 
 rei memoriam; for entering a record of which said clerk or 
 register shall be paid by the parties married for each one 
 shilling. 
 
 When 1 1n- foregoing conditions have been complied with, 
 il and not otherwise," it shall be lawful for any minister or 
 justice of tlir peace to join the parties together in matri- 
 mony. The clear implication surely is that any other mar- 
 riage, solemnized in any other way. would be unlawful. 
 
 The Statute of 1604 begins by declaring that, by the law 
 of England, do marriage is lawfully consummated excepting 
 by certain formalities which "cannot be duly practised in 
 these parts;" and therefore, to the end that " a decent rule " 
 mav be observed in respect to marriage in the Colony of 
 
61 
 
 New York, the Statute of 1(584 is enacted by the General 
 Assembly. It then goes on to declare that if either or both 
 
 of the paities "are perjured, and thereby obtain another 
 marriage for the said perjury," in making oath that "they 
 
 arc not under the bonds of matrimony to any other person 
 living," then the party or parties so offending shall suffer 
 " as in cases of perjury, and further be proceeded against 
 as in cases oi polygamy." 
 
 This provision respecting "bonds of matrimony" 
 appears to have had relation to the English rule governing 
 espousals, or "pre-contracts of marriage," which, up to 
 1541, made a marriage invalid in England if in disregard 
 and violation of snch a previous contract. Whether that 
 system of pre-contract was in existence after 1753, and 
 at the time of the publication of his Commentaries, Black- 
 stone leaves " to be considered by the canonists." The 
 Statute of 1684, however, seems, in one sense, to treat 
 such a pre-contract in the light of an actual marriage, 
 inasmuch as it denounces in that regard a subsequent 
 actual marriage as a committal of the crime of polygamy, 
 which is the having of more husbands or wives than one. 
 In the State of New York, at present, a polygamous 
 marriage is void, even as to the innocent party, and no 
 divorce is necessary, and such, Blackstone says, was, in 
 1756, the English law. 
 
 This statute of 1684 further enacts : 
 
 " That if any man shall presume to marry contrary to this law prescribed, 
 " the person offending shall lie proceeded against as for fwnicatum." 
 
 It seems to me that, under this enactment of 1684, a mar- 
 riage is constituted by the concurrence of two elements— 
 the consent of the parties and the action of public authority, 
 and not by either alone. The public authority, which may 
 be either a clergymen or a justice of the peace, must hist 
 ascertain, verify and declare, that certain prescribed and 
 specified things have been done by those seeking to be 
 married, and by other persons, before there can be a 
 The reality of the matrimonial consents, must 
 
62 
 
 be tested, constituted and proclaimed by the colonial 
 authority in a prescribed manner. Such interposition of 
 public authority cannot be dispensed with. 
 
 It is true, however, that this law of 1684 does not ex- 
 pressly declare that if two persons are joined together in 
 matrimony without a compliance with each and all of the 
 foregoing requisites, the marriage "shall be null and void ;" 
 but did not the law makers intend, nevertheless, that the 
 pre-requisites of jniblication of banns in a church, or of 
 written notice on the constable's door, or of a license and a 
 }Hirging oath, if the oath be required, should be mandatory 
 on the parties, and on the officiating priest or minister i 
 Or did the law-makers intend, on the contrary, that those 
 pre-requisites should be considered as simply directory, 
 and not absolutely essential to be followed, and that 
 parties could be lawfully married without any regard what- 
 ever to the statute? I have not seen a judicial decision 
 of that question, or of the other question — whether or 
 not a marriage in which all the prescribed conditions 
 precedent were not complied with would be null and 
 void, and I have no other means of forming an opin- 
 ion in respect to what the judicial tribunals of the 
 Colony of New York would have said or done if the ques- 
 tion had been presented to them in 1772, than by consider- 
 ing what, in my own appreciation, should and therefore 
 would have been the decision in 1772 of the final Court of 
 Appeal. In 177:2, there were in the Colony of New York 
 courts of common law, of which the chief Court was the 
 Supreme Court, the decisions of which could, in certain 
 cases, be reviewed by the Governor and Council, and in cer- 
 tain other cases an appeal lay to his Majesty in Privy 
 Council. There was also an inferior Court of Common 
 Pleas, whose errors could be corrected by the Supreme 
 Conrt. The Judges were appointed, and held office during 
 the Kings will and pleasure. There were also courts of 
 criminal jurisdiction corresponding to those in England. 
 There was also a Court of Chancery, in which the Governor 
 sate as Chancellor, and a prerogative court, in which the 
 
68 
 
 Governor was properly the Judge, but in which he usually 
 acted bya delegate. Therefore, the question resolves itself 
 
 in its last analysis into an inquiry what interpretation on 
 the point inquired of, the King in Council, would have 
 given to this act in 1772. 
 
 Of course, the circumstances of the time, the opinions of 
 the day in respect to marriage, and the evils to be remedied 
 by the statutes of 1(564 and 1084, are to betaken into consid- 
 eration. Obviously enough, the object of the law was to 
 prevent clandestine wedlock. Lord Hardwick's Marriage 
 Act of 26 Oeorge II., had come to be a law nineteen years 
 before 177*2, under the influence of the flagrant evils arising 
 from Fleet wedlock and the habitual practices of Fleet clergy- 
 men. That law had declared that all marriages, solemn 
 ized from and after March 25, 1754. in any other than a 
 specified place, unless after publication of banns, or special 
 license, "shall be null and void to all intents and purposes 
 whatsoever." In or about the year 1772, unavailing efforts 
 were made in England to repeal that legislation. 
 
 I am aware of the modern rule, to the effect that a mar- 
 riage, good at the common law, is good notwithstanding the 
 existence of a statute on the subject, which has been 
 disregarded, unless the statute contains apt expressions of 
 nullity. The same rule is sometimes stated in another 
 form, and to the effect that when a statute requires a partic- 
 ular form of marriage, the not doing of the things required 
 by the statute does not make the marriage void, unless the 
 statute so declares by appropriate language. The Supreme 
 Court of the United States has recently said, in the case of 
 Meister v. Moore (96 U. S., 76), that : 
 
 "A marriage valid at common law is valid notwithstanding tlie statutes of 
 " the State in which it was contracted or solemnized prescribe directions and 
 "rules which have not been followed in its formation or solemnization, unless 
 " the statutes of the State contain express words of nullity." 
 
 Was such a rule enforced in 1772 by the judicial tribunals 
 of the Colony of New York or of England \ When did the 
 Courts first begin to say that the general rule that when a 
 statute directed a thing to be done in a particular way, the 
 
64 
 
 thing would be void if done in any other way, did not apply 
 to marriage \ How much fluctuation of opinion there has 
 been in the United States on the subject of marriage maybe 
 inferred from the fact that in 1843 the Supreme Court of the 
 United States, in Lessee of Jewell vs. Jewell (1 Howard, 219), 
 was equally divided in opinion on the question whether, ( 
 under the laws of Georgia or of South Carolina, a valid, 
 legal marriage can be made by an agreement of the parties, 
 in the presence of friends, to marry before any sexual in- 
 tercourse between them, and followed by cohabitation. 
 Thirty -four years afterwards the same Court, in Meister vs. 
 Moore (96 I 1 . S. Rep., 76), while not declaring distinctly 
 that a consensual marriage without the intervention of a 
 priest or judicial officer was valid at common law, did unani- 
 mously say that a marriage valid at common law is, in 
 Michigan, valid notwithstanding the statutes of the State 
 where it is contracted, prescribed directions respecting 
 its confirmation and solemnization which have not been fol- 
 lowed, unless the statutes contain express words of nullity. 
 In the beginning of the present century there was to be 
 detected, I think, at the bar and on the bench, in the sev- 
 eral States of the United States, the beginning of a conflict 
 of opinion and policy in respect to marriage, not un- 
 like, even if very different in manifestation, that which 
 existed in England in the second quarter of the last cen- 
 tury on the same subject. Lord Hardwick's Marriage Act 
 became English law in 1753 ; and in 1765, 1772 (the very 
 year of the transaction in New York now under considera- 
 tion) and in 1781, there appears to have been futile attempts 
 made in Parliament to undo Lord Hardwick's work. In 
 1809, a ease came before the Supreme Court of the State of 
 New York, of which Mr. Kent, the illustrious author of 
 the Commentaries subsequently published, was then the 
 Chief Justice. The case is entitled Fenton vs. Reed (4 
 Johns. R., 51). The opinion is "Per Curiam" the Court 
 at that time consisting of five Judges. It is sufficient to 
 quote the language used by the Court without a recital of 
 the facts : 
 
65 
 
 " It is stated," say the Court, " that tbere is nol proof of anj subsequent 
 '• marriage in fact, and that no solemnization of marriage was abown to have 
 " taken place. But proof of an actual marriage was not necessary. Such 
 " strict proof is only required in prosecutions for bigamy, and Inactions for 
 " criminal conversation. A marriage may be proved in other cases from oo 
 " habitation, reputation, acknowledgment of tin- parties, reception in the 
 "family, and other circumstances from which a marriage may lie inferred. 
 " No formal solemnization of marriage was requisite. A contract of marriage 
 " made per r, rba dt praaenti amounts to an actual marriage, and is as valid as 
 •' if made inibcA ecclema. In the present case there existed strong circum- 
 " stances from which a marriage subsequent to the death of Quest might be 
 
 " presumed." 
 
 It will be seen that the general doctrine therein sanctioned 
 goes lo the full length of the doctrine of consensttal marriage 
 without the intervention of any other persons, or of any 
 religions or other civil officer. 
 
 During the next year, 1810, another case entitled Milford 
 vs. Worcester (7 Mass. Rep., 48) came before the Supreme 
 Judicial Court of Massachusetts, of which Theophilns Par- 
 sons was ( 'hief .1 nstice. The question was over the town in 
 which a pauper had a legal settlement. The Trial Judge 
 left it to the jury to decide whether or not the alleged pro- 
 ceeding of marriage had the sanction of a justice or magis 
 trate, and the jury found specially that it had not. And 
 the case finally turned before the full court upon the in- 
 quiry whether the mutual neknowledgment of the parties 
 made at a tavern was. under the circumstances, and by the 
 Massachusetts Statute, a lawful marriage. That statute 
 declared that no person other than a Justice of the Peace, 
 or ordained minister, should join any persons in marriage ; 
 nor without a certificate of publishment; but the only 
 penalty for disobedience of the statute appears to have been 
 the forfeiting of fifty pounds to the county. The opinion 
 of the Court was delivered by Chief Justice Parsons, and 
 in the course of it he said that unless the parties make the 
 mutual acknowledgment in the presence of a justice of the 
 peace or minister, with his assent, and he undertaking to 
 act on that occasion in his official character, ' ; the marriage, 
 " I am well satisfied, will not be solemnized pursuant to, 
 " nor be a lawful marriage within the statute." The Chief 
 Justice adds : 
 
66 
 
 "But it has been argued that this marriage, although not solemnized pur- 
 '• Buant to the statute, is yet a lawful marriage had between parties competent 
 " to contract marriage and not declared void by any statute. This ground for 
 " supporting the marriage deserves consideration, as, if it he tenable, the con- 
 " sequences are very extensive. * * * It has been truly observed by the 
 " Counsel for the plaintiffs that a marriage acknowledgment of this kind is 
 " not declared void by any statute. But we cannot thence conclude that it is 
 " recognized as valid unless we render, in a great -measure, nugatory all the 
 "statute regulations on this subject * * * Whether cohabitation after 
 " such a pretended marriage will subject cither of the parties to punishment 
 " as guilty of fornication may depend on circumstances. If either of the 
 " parties were circumvented, and verily supposed the marriage legal, perhaps 
 " such party would be protected from punishment; on the general principle 
 " that to constitute guilt the mind must appear to be guilty. But every young 
 " woman of honor ought to insist on a marriage solemnized by a legal officer 
 " and to shame the man who prates about marriage condemned by human laws 
 " as good in the Bight of heaven. This cant she may be assured is a pretext 
 '• for seduction, and il not contemned will lead to dishonor and misery. Upon 
 1 the whole it is the opinion of the Court that the mutual acknowledgement 
 " of the parties in this case to take each other for husband and wife in the 
 " room where a Justice was present, he not assenting but refusing to solemnize 
 " the marriage, is not a lawful marriage." 
 
 The difference in theory between these two eminent 
 tribunals on the subject of marriage is here very apparent. 
 
 In the year L826, or thereabouts, Mr. Kent published the 
 first edition of his Commentaries, which immediately 
 
 became a uthority among members of the American bench 
 and bar. In each of the first three editions there was (Vol. 
 2, p. 82) this sentence relating to the marriage contract : 
 " If the contract be made per verba dt /in/tint/, and remains without eohab- 
 
 " i tat ion, or if made per verba dt fnt>ir<>. and be followed by consummation. 
 " it amounts I" a valid marriage, and which the parties, being competent as to 
 " age and consent, cannot dissolve, it is equally binding as if made in fur e 
 
 " ( crh siii ." 
 
 In the year 1843, the case of Jewell vs. Jewell came before 
 the Supreme Court of the United States by writ of error 
 from the Circuit Court of South Carolina (1 Howard's U. 
 S. Rep., 219). Chief Justice Taney delivered the opinion 
 of the Court. One of the questions in the case related to 
 the validity of a marriage. On the trial the plaintiffs 
 prayed the Court to instruct the jury as follows : 
 
 " 3. That if the jury do not believe that Benjamin Jewell and Sophie Pre- 
 " vost were married by a magistrate in Savannah in the year 1796, or before 
 
I '.7 
 
 " that time, then there ia u<> evidence of a marriage before them on which 
 •• they can liml the defendants lo be the legitimate heirs of Benjamin Jewell. 
 ••i). That a promise to marry at a future time, followed by cohabitation, 
 " does not constitute marriage, though the promise be accepted at the time 
 •• when ii was made.'' 
 
 The defendanl prayed the Court to instinct the jury : 
 
 " That it' the jury believe that before any sexual connection between 
 " Sophie Prevost and Benjumin Jewell, they, in the presence of her family, 
 " ami his friends, agreed to marry, and did afterwards live together aa man 
 
 " and wife, the tie was indissoluble even by mutual consent." 
 
 Thereupon the Court gave substantially the instructions 
 requested by the defendant, but refused the third instruc- 
 tion asked by the plaintiff. Upon the sixth, asked by the 
 plaintiff, the Court below directed the jury in the language 
 of the sentence which I have just quoted from Kent's Com- 
 mentaries. The Chief Justice of the Supreme Court of the 
 United States said : 
 
 " Upon the point thus decided " (the correctness of the sentence in Kent's 
 Commentaries) " this Court is equally divided, and no opiniou can therefore 
 •' be given." 
 
 After the opinion of that Court had been published, Mr. 
 Kent added, in the next and subsequent editions of his 
 Commentaries, the words in the sentence which I italicize 
 and put in brackets below : 
 
 "If the contract be made per verba <h prcBsenti and remain without cohab- 
 " itation, or if made per verba <lt future, and be follwed by consummation, it 
 " amounts to a valid marriage [mi the <ihxcnce <>f <ili civil regulations to the con- 
 " trary], and which the parties, being competent as to age and consent, can- 
 " not dissolve, and it is equally binding, as if made in fode eecUsia. " 
 
 It will be seen that the Supreme Court of the United 
 States did not divide, and could not well have divided, 
 over the sentence as just now exhibited, and as contained 
 in all of the editions of Kent's Commentaries subsequent 
 to the 4th edition. The division of the Court was upon the 
 question whether such a contract of marriage would be 
 valid, without reference to the presence or absence of muni- 
 cipal regulations. Those words — " The absence of all civil 
 " regulations to the contrary" are extremely material, 
 inasmuch as it is difficult to find a civilized land in which 
 there is an entire absence of such regulations. 
 
68 
 
 But, meanwhile, the difference of opinion disclosed in 
 1809 and 1810, between two such illustrious men as Chief- 
 Justice Parsons, of Massachusetts, and Chief-Justice Kent, 
 of New York, on the legal nature of the marriage tie, grew 
 wider and wider, and the declaration of Chancellor Kent in 
 the first four editions of his Commentaries, and up to 1851, 
 tended greatly to further widen the breach. 
 
 But the marriage with which we are now concerned was 
 in 1772, and is to be considered by the judicial opinion of 
 1(584 and 1772. My allusions to judicial opinions in the 
 United States during the present century have been by way 
 of caution that such modern opinions, and especially those 
 of 1885, cannot be relied upon as a safe test of judicial 
 opinion on the same question two hundred or even one 
 hundred years ago, when possibly there was no tendency, 
 on the part of judicial or executive officers, to treat statutes 
 to prevent clandestine marriages as enactments to be disre- 
 garded, and evaded, or to use presumptions in the ascer- 
 tainment of legal truth about a marriage for any other 
 purpose than to lead up to, and establish, a marriage con- 
 stituted as the statute commanded. 
 
 All the American authorities are, however, agreed, I 
 think, in the principle that if the alleged marriage in 1772, 
 now under consideration, was not valid at common law, it 
 could not have any validity whatever unless all the require- 
 ments of the statute weir complied with. But, apart from 
 all that, and apart from the uncertainty whether any such 
 rule of statute interpretation was in force in 1084, or 1772, I 
 am of the opinion that the Dongan Act does denounce as 
 illegal and void any marriage attempted in disregard, or 
 in violation of the prerequisites specified therein. I 
 do not think that any other interpretation can be fairly 
 !j;hvn to the declaration in the act "that if any man shall 
 " presume to marry contrary to this law prescribed, the 
 11 person offending shall be proceeded against as for forni- 
 " cation." The Duke's Laws declare that, "if any person 
 " commit fornication with any single woman they shall 
 " both be punished by enjoining marriage, fine or corporal 
 
69 
 
 " punishment, or any of those according to the discretion 
 "of the Court." It is to be inferred that the fornication 
 referred to in these two laws of L664 and L684, could 
 only be affirmed between an unmarried man and an 
 unmarried woman. It is also to be inferred that, by 
 both of these laws, the offence of fornication is made an 
 indictable offence. And, that a complaint or indictment 
 for fornication must then have set forth that the two per- 
 sons did commit the crime of fornication by then and there 
 having carnal knowledge of the bodies of each other, the 
 one being then and there a single and unmarried man, and 
 the other being then and there a single and unmarried 
 woman, the said two parsons not being then and there 
 lawfully married to each other. It is also to be inferred 
 that the Duke's Laws of 1664, which prescribed that if any 
 man shall many contrary thereto, " the children so begot- 
 ten shall be reputed bastards." is to be read in pari 
 materia with the law of 1684, which declared that " the per- 
 son offending shall be proceeded against as for fornication," 
 since the latter law did not either expressly or by implica- 
 tion repeal that part of the former law, and the denuncia- 
 tion of the latter that the children shall be bastards remained 
 in force in the Colony of New York in 1772, and so for that 
 reason the law of that date in effect declared any marriage 
 void if attempted in violation of any of its requisites. 
 
 It is true that the law of 1684 did not, like Lord Hard- 
 wick's Act of 1754, declare all marriages solemized in dis- 
 regard of its requirements "null and void to all intents 
 and purposes whatsoever." But I think we should bear in 
 mind the respective dates of the two laws, and the circum- 
 stances under which each was enacted. The Barebones 
 Parliament of 1653 had declared in effect that a ceremony 
 before a civil magistrate was requisite for the validity of a 
 marriage ; but the Parliament of 1656, when it confirmed 
 the marriage law of the Barebones Assembly, excepted 
 from confirmation the clause "that no other marriage 
 whatsoever withiu the Commonwealth of England shall be 
 held or accounted a legal marriage." On the restoration 
 of Charles II., the Parliamentary mode of celebrating 
 
70 
 
 marriage was abandoned ; and some twenty years and more 
 after that the marriage law of 1684 was enacted in the 
 Colony of New York. But not till some three-quarters of 
 a century later was Lord Hard wick's Act adopted, which 
 used the phrase " null and void." I am not unmindful of 
 the ancient maxim that statutes in derogation of common 
 law rights are to be strictly construed, which maxim seems 
 to have grown out of the saying of Lord Coke that "the 
 wisdom of the judges and sages of the law have always 
 suppressed new and subtle inventions in derogation of the 
 common law"; but perhaps modern law has since de- 
 vised a better rule, which was in force in the Colony of 
 New York in 1772, which was that all statutes are to be 
 interpreted and applied as the law-makers intended, and 
 therefore the saving of Lord Coke never had a solid foun- 
 dation in American colonial jurisprudence. 
 
 I am also aware that a usage, if sanctioned for a very 
 long time by judicial and executive officers, is entitled to 
 great weighl in doubtful cases ; but the true rule was, I 
 think, expressed by the Chancellor of New York, when he 
 said, iu Bank of Utica vs. Mersereau (:5 Barb. Ch., 530 : 
 "Lord Coke's expression that common law is good author- 
 " ity does not apply to a mere speculative opinion in the 
 " community as to what the law on a particular subject is." 
 Certainly usage, while it may be employed to interpret, 
 cannot be used to defeat statutes. Lord Mansfield, in 
 Fin;/, /• vs. Edwards (Cowper, 112), said: >k Tsage will 
 avail nothing if meant asan evasion of the statute." It has 
 been repeatedly said in American Courts, as in Ham vs. 
 Sawyer (38 Maine, 37), that no prescriptive rights can be 
 claimed against an existing statute. 
 
 For all these reasons it is my opinion that, in 1772, the 
 evidence necessary to establish the fact of an actual mar- 
 riage in the Colony of New York was and is that prescribed 
 in the law of 1684. The intervention of a clergyman or a 
 magistrate is prescribed by that statute. And I cannot 
 think that the requisites and conditions precedent therein 
 specified could or would, in 1772, have been regarded as 
 merely recommendatory. 
 
71 
 
 Third Question. 
 
 As the second interrogatory concerned the way in which 
 a marriage could be constituted in the colony in 1772, the 
 present interrogatory concerns the way in and by which 
 the marrriage could be proved. My opinion is thai the 
 fact of marriage could not be proved either by facts <>!' con- 
 sent between the parties and copulation, or of habit and 
 repute, occurring alone or in conjunction, and for the 
 reason, among other reasons, that mere consent did not, in 
 the Colony of New York, constitute a marriage in 1772, 
 but a consent and an application thereto by the State of 
 specified ecclesiastical or judicial acts. No possible acts of 
 the parties, prior or subsequent to the mutual consent, could 
 in the absence of the prescribed ecclesiastical or judicial 
 acts create a marriage. If the alleged marriage between 
 Richard Maitland and Mary MacAdam in 1772, is contested, 
 the fact in issue must be whether the law of 1684 was 
 complied with ; and there must be direct proof of such 
 compliance. The certificate of the Mayor of New York 
 which accompanies the certificate of the Reverend Dr. Ogil- 
 vie, certifies not that he was a minister, but only "one of the 
 "assistant ministers of the Reverend Samuel A uch in uty. 
 " Rector of Trinity Church in the said City of New York." 
 The law of 1684 makes it lawful for a "Minister" to 
 join persons in matrimony. The certificate of the Rev. 
 Dr. Ogilvie is certified by the Mayor to have been sworn to 
 before him on January 6th, 1773 ; but Dr. Ogilvie certifies 
 that he joined together in matrimony Richard Maitland and 
 Mary MacAdam on July 11, 1772, which was nearly six 
 months before the certificate purports to have been sworn to 
 in the presence of the Mayor. It is also to be observed that 
 Dr. Ogilvie does not certify that he joined the two in matri- 
 mony in compliance with the provisions and requisites of the 
 Dongan Act. or of a colonial law. but "according to the 
 rites and ceremonies of the Church of England, as by law 
 established.'" It is familiar law that a declaration may be 
 deemed relevant when it was made by the declarant in the 
 
72 
 
 discharge of professional duty at the time when the matter 
 stated occurred, and of his own knowledge; but that such 
 declarations are deemed to be irrelevant except so far as they 
 relate to the matter which the declarant stated in the ordi- 
 nary course of his business or duty. Was it the business 
 or duty of Dr. Ogilvie to make such a certificate under the 
 law of 1684 I On the contrary, that law made it the duty of 
 the minister to send a certificate of marriage therein pre 
 scribed " to the office of the Register of the County," where 
 it must be entered on record. In the case of Chambers vs. 
 Bernesconi (1 C. M. & R., 347) the question was whether 
 A. was arrested at Paddington or in South Morton Street, 
 and a certificate annexed to the writ by a deceased sheriff's 
 officer and returned by him to the sheriff was deemed to be 
 irrelevant so far as it related to the place where the arrest 
 took place. So in the case of R. vs. Clapham (4 C. & P., 
 29), the question was in respect to the age of A.: and a 
 statement made by the incumbent in a register of baptism 
 that A. was born on a given day was deemed to be irrele- 
 vant because it was not the incumbent's duty to make the 
 statement. 
 
 I am not aware of any decision of any Court that can 
 make the statement of Dr. Ogilvie that he married the 
 parties ''according to the rites and ceremonies of the 
 Church of Kngland, as by law established," relevant to the 
 issue whether or not the parties were married according to 
 the requirements and provisions of the law of 1G81 in 
 respect to banns or license. The difficulty with the certifi- 
 cate of Dr. Ogilvie is that it does not touch and cover or 
 lead u]) to the facl in issue. In American Courts it would 
 not be admissible in evidence to prove a compliance with 
 the colonial law in existence in 1772. 
 
 SIDNEY WEBSTER. 
 New York, May 26, 1885. 
 

 
 
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