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0The Dutch in America.
A HISTORICAL ARGUMENT
William Henry Arnoux.
New York.
PRIVATELY PRINTED.
1890.PREFACE.
The following pages were presented to the Court
of Appeals in the State of New York as an argu-
ment in an elevated railroad case then pending, in
which the fundamental question involved was
whether the Dutch Roman law prevailed in Man-
hattan Island before 1664, under which law the
railroad claimed that the State absolutely owned
the streets and that adjacent owners had no rights
or easements therein. This question depended
upon the determination of the historical question
who, under the law of nations, discovered and
settled New York. To aid the Court in the solution
of this problem this argument was written.THE DUTCH IN AMERICA.
In 1632, when the ambassador of the Netherlands
at the Court of St. James, entered into diplomatic
correspondence with the government to which he
was accredited, on behalf of the Dutch West India
Company, to obtain the release of a Dutch vessel
which was detained in an English port, “ it pro-
voked,” says Mrs. Lamb, in her History of New
York, “another spirited correspondence between
the two nations. The Dutch statesmen claimed that
they had discovered the Hudson River in 1609, that
some of their people had returned there in 1610;
that a specific trading charter had been granted in
1614 ; that a fort and garrison had been maintained
there until the formation, in 1623, of the West
India Company, which has since occupied the
country; and great stress was laid upon the pur-
chase of the land from its aboriginal owners.”
Subsequently other claims were made that events
showed the exercise and recognition of sovereignty
between 1611 and 1653, and of a title under the
grant made of the New World to Spain by Pope
Alexander VII. These we shall consider in the fol-
lowing order:
1.	Title by purchase from the Indians.
2.	Title by the discovery of Hudson.
3.	Title under the Borgian grant to Spain.
4.	Title acquired after 1611 (exclusive of the
Indian purchase).6
It was never contended that either by original
recognition or by subsequent acquiescence, the Eng-
lish had estopped themselves from asserting what-
ever rights they may have at any time acquired, and
after examining the claims above set forth it will be
shown herein that such contention would have been
without the slightest justification.
1. Title by purchase from the Indians.
In 1626, it has been asserted, the Governor of the.
Dutch West India Company bought the Island of
Manhattan, then supposed to contain 24,000 acres
of land, for the paltry sum of twenty-four dollars.
If a document preserved in the collection of the
Pennsylvania Historical Society is genuine, this
was a fraudulent transaction. The unscrupulous
Dutchman negotiated with the tribe of the Man-
hatoes, who occupied the island, and whose wig-
wams were located on the shore of the little lake
afterwards called the Collect,which was situated be-
tween Broadway and the Bowery, having its outlet
eastwardly into the East River, for a piece of land
for his back garden. When the bargain was con-
summated he claimed the whole island beyond his
house. Without discussing the morality of the
matter we shall accept the Dutch version as pre-
sented in the address of the Assembly of XIX. to the
States-Geueral, in Oct., 1634, which was as follows :
“ After the county had passed into the hands of the
incorporated West India Company, said company
purchased from the Indians, who were the indubita-
ble owners thereof, the Island of Manhattan, situate
at the entrance of said river,, and there laid the
foundation of a city,” and examine only the legal
effect.
“ America, separated from Europe by a wide
ocean,” says Ch.-J. Marshall, in the case of Wor-
cester vs. State of Georgia, 6 Peters, 574, “was in-
habited by a distinct people, divided into separate
nations, independent of each other, and of the rest7
of the world, having institutions of their own and
governing themselves by their own laws. It is diffi-
cult to comprehend the proposition that the inhabi-
tants of either quarter of the globe could have right-
ful original claims of dominion over the inhabitants
of the other, or over the land they occupied, or that
the discovery of either by the other should give the
discoverer right in the country he discovered, which
annulled the pre-existing rights of its ancient pos-
sessors.”
In Johnson vs. McIntosh, 8 Wheat., 543, 591, the
same great jurist said : “However extravagant the
pretension of converting the discovery of an inhabi-
ted country into conquest may appear; if the princi-
ple has been asserted in the first instance, and after-
wards sustained; if a country has been acquired and
held under it; if the property of the great mass of
the community originates in it, it becomes the law
of the land, and cannot be questioned. So, too,
with respect to the concomitant principle that the
Indian inhabitants are to be considered merely as
occupants to be protected indeed, while in peace, in
the possession of their land, but to be deemed inca-
pable of transferring the title to others ; however
this restriction may be opposed to natural right, and
to the usage of civilized nations, yet if it be indis-
pensable to that System under which the country
has been settled, and be adapted to the actual condi-
tion of the two people, it may perhaps be supported
by reason, and certainly cannot be rejected by
courts of justice. ’ ’
“ So far as respected the rights of the crown no
distinction was taken between vacant land and land
occupied by the Indians.. The title, subject only to
the right of occupancy of the Indians, was admitted
to be in the king.”
Subsequently the same question was discussed by
Ch.-J. Taney in Martin vs. Waddell, 16 Pet., 867,
and it was there decided that the Indians were
simply tenants, having only a usufructuary interest8
in the soil, without any title thereto ; but, as Mar-
shall said, only the rightful sovereign could acquire
such right.
As it is said in Wadsworth vs. Buffalo Hydraulic
Association, 15 Barb., 89: “It is true that the
Indian title has been styled simply a right of occu-
pancy, and the European sovereigns discovering the
country claimed the ultimate title. The course,
however, adopted was to acquire the title of the
Indians by treaty, and the right to make treaties
appertained to the sovereignty.”
This whole question has been disposed of in a
single sentence of Brown, J., in the Town of South-
ampton vs. The Mecox Bay Oyster Co., 1161ST. Y., 7:
“Nor did the Indians have any title to the land
which they could grant, and which could be recog-
nized in the courts of this country.”
This is not a new principle of law announced in this
country, or in this century. It was the settled doc-
trine of Europe in the sixteenth century, and it
could not be successfully controverted by the jurists
of Holland. They were therefore compelled to sup-
plement it by the assertion that they were the origi-
nal discoverers of the region, and therefore the
Indian title ratified that which they had previously
acquired.
Unless it can be established that the Dutch were
the discoverers it inevitably follows that their Indian
title was a nullity.
2. Title by the discovery of Hudson.
It is an incontrovertible fact that our first accu-
rate and definite knowledge of the existence of the
noble river that bears the name of Hudson is due to
that intrepid navigator. There was a corporation
in England named the Muscovy Company, in whose
service Henry Hudson had made several voyages in
the northern seas, in which he had made such a
reputation that the East India Company employed9
him to discover a route to India by way of Green-
land. Of course the attempt was a failure. He was
engaged by said company to make a second voyage,
in which, adopting the suggestion of Capt. John
Smith, he sailed to Maine, and on the 4th day of
September, 1609, reached the Hudson River, which
he hoped would prove an arm of the South Sea, and
by which he could accomplish his desired end. He
ascended the river as far as Albany, where he dis-
covered that the river which he supposed would
lead him to India was becoming an unnavigable
stream. He therefore abandoned the attempt, re-
turned to England, and never visited the place
again.
This, however, alone does not establish that he
was the discoverer, either actually or in a legal
sense. The English have never disputed that Hud-
son made this voyage. On the contrary, they were
proud of it, and they, not the Dutch, gave his name
to. the river. They base their claim upon priority.
Each government acknowledges the same principle
of law.
“ We derive our rights in America,” said Ed-
mund Burke, “from the discovery of .Sebastian
Cabot, who first made the North American conti-
nent in 1497. The fact is sufficiently certain to
establish a right to our settlements in America.”
“ To this discovery,” says Marshall, in Johnson vs.
McIntosh, 8 Wheat., 576, “the English trace their
title.” The same view is presented by Taney:
“ The English possession in America was not
claimed by right of conquest, but by right of dis-
covery.”
Every historian, every geographer, every jurist
and every English statesman concur on this point.
What is the fact l
The discovery of Columbus aroused the curiosity
and the cupidity of all Europe. The news of a new
world stimulated every adventurer in every other mar-
itime country to find a new course to the Indies. A10
refugee from Venice, whose anglicized name was
John Cabot, who resided in Bristol, then the chief
port of England, petitioned Henry VII., King of
England, to authorize him to embark on a voyage
of discovery. The King made the grant with that
frugal mind that made him the richest sovereign in
Europe, on condition that he should receive one-
seventh of the profits of the voyage. The merchants
of Bristol provided him with a fleet and its equip-
ments, and, with his three sons, he set sail for Ice-
land; thence changing his course to the westward, he
eventually reached land which he supposed, to the
day of his death, was the eastern coast of Asia, in the
territory of the Grand Cham. It was on St. John’s
Day, the 10th day of June, 1497, that he landed.
It was on the coast of Labrador, and is supposed to
have been Cape Breton. The exact spot can never
be absolutely determined. It is certain that he first
in modern times discovered and landed upon the
continent of America. Following the custom of the
times, when he landed he planted first the cross, then
the English standard, and finally the banner of St.
Mark’s, the ensign of his beloved Venice. He then
formally, took possession of the territory in the
name of the King of England, and named it St.
John’s in honor of the day.
The legal effect of this transaction has been adju-
dicated by the Supreme Court of the United States,
in the opinion of Marshall, in the case against the
State of Georgia before cited.
“This principle, suggested by the actual state of
things, was that discovery gave title to the govern-
ment by whose subjects or by whose authority it
was made against all other European governments,
which title might be consummated by possession.
This principle, acknowledged by all Europeans,
because it was the interest of all to acknowledge it,
gave to the nation making the discovery, as its
inevitable consequence, the sole right of acquiring
the soil, and of making settlements on it. It was11
an exclusive principle, which shut out the right of
competition among those who had agreed' to it. * *
It regulates the right given by discovery among the
European discoverers.”
In the McIntosh case, he also treats the same sub-
ject : “ It is supposed to be a principle of universal
law that if an uninhabited country be discovered by
a number of individuals who acknowledge no con-
nection with and owe no allegiance to any govern-
ment whatever, the country becomes the property of
the discoverer, so far at least as they can use it.
They acquire a title in common. The title of the
whole land is the whole society. It is to be divided
and parcelled out according to the will of the
society, expressed by the whole body, or by that
organ which is authorized by the whole to express
it. If the discovery be made, and possession of the
country be taken, under the authority of existing
government which is acknowledged by the immi-
grants, it is supposed to be equally well settled that
the discovery is made for the whole nation, that the
country becomes a part of the nation, and that the
vacant soil is to be disposed of by that organ of the
government which has the constitutional power to
dispose of the national domains, by that organ in
which all vacant territory is vested by law.
“ According to the theory of the British Consti-
tution, all vacant lands are vested in the crown, as
representing the nation, and the exclusive power to
grant them is admitted to reside in the crown, as a
branch of the royal prerogative.”
Under this determination of the law the act of
Cabot in taking possession of the continent where
he landed vested its title in the British crown.
After performing this momentous deed, by which
England became the owner of a territory of almost
illimitable extent, Cabot sailed along the coast
southward, as far as the 38° north latitude, that is, to
the Capes of the Delaware; then returned to Eng-
land and reported his success.12
The following year, 1498, Cabot presented a second
petition to the King and obtained a renewal of his
concessions, upon which he, with his son Sebastian,
crossed the Atlantic and skirted the shore of America
from Labrador to the Gulf of Mexico. The
father died before his return, leaving the expedition
to the care of Sebastian. “ Did these adventurers,
by sailing along the coast, and occasionally landing
on it, acquire for the several governments to which
they belonged, or by whom they were commissioned,
a rightful property to the soil from the Atlantic to
the ^Pacific, or rightful dominion over the nu-
merous people who occupied it?” It seems absurd
to claim that such voyages could give England
ownership to the land upon which the mariners
had scarcely gazed. This question, propounded
by Marshall, he indirectly, but conclusively,
answered thus: “But power, war, conquest, give
rights which, after possession, are conceded by the
world and which can never be controverted by those
on whom they descend.”
Under the law of nations these two voyages of the
Cabots gave to England the exclusive title to three
thousand miles in latitude of the American con-
tinent, as the original discoverer, besides the untold
riches of the deep in the food fisheries of Newfound-
land and the whale fisheries of the Arctic sea, in
which she shared with other nations.
Sebastian Cabot, whose name has eclipsed his
father’s, inherited the patent given to his father,
which entitled him to the exclusive possession and
occupation of all the lands which he had thus dis-
covered. To us the stupendous folly of that age is
utterly incomprehensible. This vast continent,
with a wealth not yet developed, but exceeding the
most daring flight of the miser’s avarice, invited
England to take possession, and the invitation was
rejected for nearly a century. Cabot endeavored
fruitlessly for years to enlist the capital of English-
men to prosecute his discoveries, and in 1512 left13
England disheartened at Ms disappointment, and
engaged in the service of the King of Spain. Sub-
sequently, in 1548, he returned to England. In
March, 1551, he was granted a pension by the King,
which was renewed by Queen Anne in November,
1555. On the 27th day of May, 1557, he resigned
this pension, and in or about 1559 he died unhonored
and unknown. The date of his death, the place of
his burial, are forgotten. No stone marks his last
resting place. No monument in England, which he
so greatly enriched, or in America, which owes him
such a debt of gratitude, commemorates the fame of
the original discoverer of America. The irony of
fate has ordained that the name of Columbus should
shed lustre upon the reign of Ferdinand and Isa-
bella, although he brought to the Spanish crown a
gift that proved its destruction, while Cabot, who
by this discovery laid the foundation of England’s
greatness, wealth and power, is forgotten.
The grant to Cabot expired with his death, and
for nearly twenty years thereafter not a man in
England thought it worth his while to even ask for
a similar privilege. There was, however; one in-
dividual, Sir Humphrey Gilbert, who had a scien-
tific interest in exploring, who conceived an idea,
such as now exists, in the endeavor to reach the
North pole. He firmly believed that there existed
a northern passage to Asia, and that, if stations
were founded from which explorations could be
conducted, that passage would be discovered. On
the 11th day of June, 1578, Elizabeth, then Queen of
England, granted to Sir Humphrey a patent of all
lands in America two hundred leagues in either
direction north and south from the place of his land-
ing, and from ocean to ocean. So worthless was
this Continent! Sir Humphrey had a half brother,
twenty-six years of age, named Walter Ralegh,
who already had achieved a heroic career, first
fighting as a volunteer in aid of the Huguenots
in France, and afterwards assisting the Dutch14
in their patriotic struggle against Spain, and
to whom he intrusted the command of one
of the fleet of seven vessels with which
he sailed from England in November, 1578, with
three hundred and fifty men. Unfortunately the
season was unpropitious, and the voyagers were
compelled to return without having accomplished
anything. Nothing daunted, the noble knight in
June, 1588, again sailed for America with a fleet of
four vessels and the good wishes of Elizabeth, but
without his half brother, who had become one of the
Queen’s favorites, and she forbade his thus risking
his life.
He arrived at St. John, on the shores of New-
foundland, in August, and, as he writes, “ On the
fifth of August I entered here in the right of the
Crown of England, and have engraved the arms of
England, divers Spaniards, Portuguese and other
strangers witnessing the same.” Then he sailed for
Norumbega, and in latitude 40° lost his great ship,
the “Admiral,” with most of his supplies. This
disaster compelled him to set sail for England, and
on the way thither his little craft foundered in mid-
ocean, and he and all his crew perished.
On the 20th day of March, 1584, Walter Ralegh
obtained from Elizabeth a similar grant of all land
extending two hundred leagues north and south of
any point where he might locate a colony. His
patent authorized Ralegh to detain and possess, as
lawful prize, all citizens of England and all other
persons in amity with us, their ships, goods and
furniture, who should trade to the new found lands
without Ralegh’s consent. And that he might
expel and resist any who should inhabit in the
lands granted without his assent. Giving unto him
full power and authority to take and surprise by
all manner of means whatsoever all and every per-
son, their ships, goods and furniture, which, with-
out his license, shall be found trafficing in any
harbors or creeks within said territory.15
On the 4th day of July, 1584, the first English
speaking colony landed in the territory of the
United States. Thus the foundation of the nation,
and the establishment of the nation’s liberties, have
the same anniversary. This landing was made at
the haven of New Inlet, where they “ took posses-
sion in the name of the Queen’s most excellent
Majesty, as rightful Queen and Princess of the
same.” The settlement was subsequently made on
Roanoke Island, but it was of short duration, for in
June, 1586, the colonists returned to England. In
1589 Ralegh granted a patent to “the Governor
and assistants of the City of Raleigh in Virginia,”
as he had named the country in honor of the virgin
queen, who had in turn conferred upon him the
rank of Knight. Before the end of the century
Ralegh had sent out eight colonies and had expend-
ed £40,000, an immense sum in those days. He had
an abiding faith in the future of America. “ I shall
live to see an empire on its shores,” was his
prophetic utterance, the fulfilment of which was
prevented by hiis untimely death.
In 1602, a Capt. Cosnold sailed from England
with some colonists, whom he landed on the Island
of Cuttyhunk, and returned with a cargo of sassa-
fras and cedar wood. Upon his arrival in England,
Sir Walter Raleigh had his cargo confiscated in the
Court of Queen’s Bench, under the clauses of his
charter from Elizabeth above cited, because he tres
passed upon his domain without license from him.
Thus, so far as the English Courts could determine,
Ralegh had a valid title to the territory from New
Inlet to Massachusetts,, and it follows that that title
included the whole of New York at the seaboard.
The following year England’s greatest queen was
succeeded by the son of her hated rival, and
Ralegh’s fortunes suffered a great eclipse. In
November, 1603, this unworthy monarch, James I.,
caused the arrest, attainder and conviction of Ralegh
for treason. Under the law of England the execu-16
tion of the sentences is not essential for the forfeit-
ure or escheat of the convict’s property. Peters-
dorif, in his Abridgment, says, “By the verdict of
guilty, goods and chattels are forfeited to the
Crown ; upon judgment in attainder the laws are
divested.” Blackstone states the law thus, “By
attainder in high treason a man forfeited to the
Crown all his lands and tenements of inheritance.”
Consequently, under the forms of law, this immense
territory, which Elizabeth had granted to Ralegh,
reverted to the Crown in 1603.
On the 16th day of April, 1606, King James made
the famous charter to the Virginia colony. By it
the patentees are divided into two classes, which
are severally designated as the First Colony of Vir-
ginia and the Second Colony of Virginia. The terri-
tory assigned to the first colony extended from 34°
to 41°; to the second colony from 39° to 45°. It will be
observed that the land from 34° to 39° and from 41°
to 45° was to be enjoyed severally by the respective
colonies, and that from 39° to 41°, which embraces
New York and the adjacent territory, was patented
to both as tenants in common. It was intended as
a neutral zone, over which both might enjoy a com-
mon jurisdiction.
This charter, which is too long to be reproduced
here, contains, among other provisions, one by
which the patentees were empowered “for their
several defenses, to encounter, expulse, repel and
resist all persons who shall, without license,” at-
tempt to inhabit “within the said precincts and limits
of the said several colonies, or that shall interfere
or attempt, at any time hereafter, the least detri
ment or annoyance of the said several colonies or
plantations.”
The nature of grants of this character has been ex-
amined and determined by the Supreme Court of the
United States. It was a royal grant, revocable by the
sovereign, so far as the lands remained in possession
of the original patentees. As there is no waste or17
unoccupied land of the Crown, so there is no waste
or unoccupied land of the viceroy. All made the
same claim. “ France claimed all Canada and Acadia
at a time when the French population was very in-
considerable, and the Indians occupied almost the
whole country. No one of the powers of Europe
gave its assent to this principle more unequivocally
than England.”
The right of England to this territory, stretching
from the boundary of North Carolina to the north-
ern part of Maine, under the name of Virginia, was
officially recognized by the Dutch Government. On
the 24th day of April, 1608, the year"before Hudson
sailed on the voyage to New York, on a petition pre-
sented to the States-General of Holland, requesting
it, leave of absence to Sir Thomas Gates, a Captain
of English soldiers in their employ, was granted for
one year, “ to command in the country of Virginia
in colonizing the said countries.”
Thus England discovered, named, patented and
colonized the territory in question before a single
Dutchman had ever visited the coast of America.
No one can read the records, which have thus
been briefly mentioned, without being convinced
that the Dutch had no claim of title to New York
by discovery under the voyage of Hudson.
It will, however, be wise to recur to the explora-
tions of other nations, which will establish, not only
that the Dutch never had any claim to the discovery
of America, but in fact, they were the very last to
explore these shores.
The Portuguese, who had been the first maritime
nation of Europe, and who had discovered the way
to the Indies by doubling the Cape of Good Hope,
sought to find a more direct course to the Orient.
In the Summer of 1500 Gasper Cortereal, having
obtained from Emanuel, then King of Portugal, a
license to discover new islands, sailed from Lisbon
to the northward, and returned with a report that
he had landed in a beautiful country which he named18
Terre Verde. The next year he renewed his search,
and sailed along the coast of North America for six
hundred leagues, without finding any end to the
land, and therefore concluded that there was no
passage to the Indies to be found there. In 1502
his brother Miguel sailed to North America, and
made a closer exploration, in which he found many
estuaries, large rivers and safe havens.
In 1524 Giovanni de Verrazano, a Florentine,
under the authority of Francis I., King of France,
sailed to North America with the intention of reach-
ing Cathay, on the extreme coast of Asia. He ex-
plored from the Tropic of Capricorn to the 50° north
latitude. On the way he visited a bay with a
“grandissima riviere,” and from thence sailed one
hundred and fifty miles eastward to a bay with
several islands, in the latitude of Rome, which has
been identified with Newport. Consequently, the
bay and river he had previously seen could have
been only the bay of New York and the Hudson
River. Doubts have been expressed regarding the
veracity of this discovery, which have been argued
with such force that Mr. Bancroft, in the later edi-
tion of his History of the United States, has omitted
all reference to Verrazano which the previous edi-
tion contained. N o serious question has been made
that the author of the description had visited New
York and Newport. It was con tended, that it was a
forgery in attributing it to Verrazano. No com-
mission to him can be found in the French archives,
and the letter purporting to have been written by
Verrazano to the King was of later origin. Recent
discoveries have established, beyond all reasonable
doubt, the authenticity of this letter, and the prior-
ity of Verrazano’s discovery of the Hudson River.
In February, 1525, Esteban Gomez, a Portuguese,
who had been the chief pilot of Magellan, under a
concession from the King of Spain for an expedition
to the northwest, to find a passage to Asia, sailed
from Corunna, a port in the north of Spain, and19
was absent for ten months. He coasted from Florida
to 41° north latitude, and on the 18th of June he
likewise discovered a large river in latitude 40° to
41°, which he named Rio de Antonio, in honor of St.
Anthony, whose day it was. Not content with visit-
ing the harbor, he sailed up the river, and in honor
of his discovery the. Spanish seamen who followed
in his track, and were familiar with the river, called
it Rio de Gamas.
These adventurers returned with information of
the teeming food fishes which have always abounded
on the coast off the Banks. And all the seamen of
Western Europe, particularly the hardy fishermen
of Gascony, Spain and Portugal, frequented these
waters for cargoes of fish. For nearly a century the
customary route to America was to sail to the Azores,
then to the West Indies, and thence along the coast
of America to the fishing grounds, and to return by
retracing their course. It was in the presence of
these fishermen Sir Humphrey Gilbert took pos-
session of the main land, and it was in following
their route, near the Azores, that his “little frigate”
foundered.
In coasting along the shore these fishermen had
several ports of ref age from storms, which they
called stages, one of which was this Rio de Gamas,
now known as the Hudson. In a map presented by
certain Dutch captains to the States General in 1611,
which has been preserved to this day, and which
represents the Hudson and the adjacent country as
far north as Albany, there are names of undoubted
Spanish origin. And “the Pompey stone,” pre-
served in the State collection at Albany, the genu-
ineness of which is undoubted, and which is now
supposed to record the death of a Spanish captive
in or near the town of Pompey, also proves that the
Spaniards had made their way to the headwaters
of the river before the advent of the Dutch.
In 1534 Jacques Cartier, under a commission from
the King of France, founded a settlement in Canada;20
and in 1564 Ribault and Landonniere, under a com-
mission from Charles IX., colonized the Carolinas,
and the French claimed all the intermediate terri-
tory. The name Norumbega, which they gave
the country, has been derived from the corruption
of the original name they gave to the Palisades,
that high basaltic formation on the western bank of
the river, V enorme berge (the enormous cliffs). The
English always conceded that the French had terri-
torial rights. They only disputed their extent.
English, French, Portuguese and Spanish had
visited the region. The French had originally dis-
covered the harbor and river, the Spanish had ex-
plored it. The fishermen of all had made it a place
of refuge. Then came the Dutch. In 1596 certain
Dutch merchants obtained from the States-General
of Holland the incorporation of a company known
as “The Greenland Company” which proposed by
that northerly route to find a way to the Indies.
In 1598 some of their ships, avoiding the rigor of the
Arctic Winter, entered the port of New York—per-
haps having knowledge of it as one of the stages of
the fishermen—and their crews built some temporary
huts on Manhattan Island, where they wintered.
In the Spring they departed, and no native of Hol-
land ever returned until the famous voyage of Henry
Hudson, eleven years afterwards.
The claim of the Dutch to title by discovery,
under the voyage of Hudson, must, under the fore-
going facts, be considered exploded. When in
1654 the States-General directed the West India
Company to present their pretensions to the British
Government, they were limited to reckoning from
the beginning of 1611 and to conclude with 1650.
When they proceeded to do this, and sent a dele-
gation with it to England, they wrote back to
Holland that they themselves did not consider the
claim of the Company substantiated by the evidence
adduced, and unless better evidence was brought
forward they could not possibly press the claim
I21
upon the English Government (B Asher, 35). Equally
indefensible must the claim as discoverers be con •
sidered.
3. Title under the Borgian grant.
This claim seems to have been a dernier resort,
and not to have been very seriously pressed. Its
examination carries us back to a period anterior to
the discovery of America.
When commerce was piracy, and might was right,
the Church was the acknowledged superior and
ultimate arbiter of the civilized world. Under the
promise in the Messianic psalm,
“ Ask of me
And I will give thee the heathen for thine inheritance
And the uttermost parts of the earth for thy possession/'
the Pope was conceded to have the right to dispose
of all the territory inhabited by savages.
When the* Turks captured Constantinople, and
Yenice entered into a treaty with the Sultan of
Egypt, which gave it a monopoly of the commerce
to the East, the wealth of which Europe had lately
learned, through the travels of Marco Paulo and
other adventurers into Asia, the endeavor of Europe
was to find a new way to the Indies. Arabian
knowledge, especially in navigation and astronomy,
was slowly diffused through the Mediterranean,
until the belief became general that the earth was
not the flat plane patristic geography had taught
but a globe, and that Africa was a mighty pen-
insula.
These ideas, developed by the Portuguese, who
were aided by the newly discovered mariner’s com-
pass by which they could venture boldly on the
shoreless main, led to the discovery of the coast of
Guinea, the Cape of Good Hope, and, finally, to the
coveted goal of the Indies.
Dutiful sons of the Church as they were, they did
not claim to own this territory by right of dis-22
covery, but they applied to the Pope for a grant of
the whole of the maritime East. This petition re-
ceived a favorable answer, and they thereby ob-
tained a monopoly of the whole of the East, from
Cape Non to India.
But Venice and Portugal were not destined to
have this rich traffic wholly undisturbed. An en-
thusiast and speculative dreamer of Genoa, named
Columbus, went from Court to Court, endeavoring
to obtain a fleet to sail westward to India, for he
reasoned that, if the world were truly a sphere, the
East could be found in the We3t, and he had ob-
served, in his voyages among the islands in the
Atlantic near Europe, that the westerly gales had
wafted to their shores unknown vegetation, which
must have come from land to the westward. For
many long and weary years the Bible and common
sense defeated his project. The theologians said,
how could it be said that every eye should behold
the Lord at His second coming, if there were people
on the other side of the globe, and the wise, practi-
cal men wanted to know how the ships could sail
up hill back again. At last Spanish cupidity over-
came such unanswerable logic, and Columbus be-
came immortal.
In the Spring of 1493, after the return of the dis-
coverer of the New World, Ferdinand and Isabella,
faithful to the traditions of the Church that the
Pope, as Viceregent of God, had the absolute power
of disposing of all land occupied by the heathen,
sent a deputation to Rome, to Pope Alexander VII.,
petitioning for a grant of the newly discovered
lands. The Pope, mindful of the previous donation
to Portugal, made a grant by which he gave to
Spain all continents and islands, known and un-
known, discovered and to be discovered, lying west
of a meridional line, to be drawn from pole to pole,
one hundred miles west of the Azores, and confirmed
to Portugal all to the eastward of such line.
How did this grant affect Holland ?S3
Mary, of Burgundy, brought to her husband,
Maximilian, of Austria, as her dowry, the provinces
of the Netherlands. Her son married Joanna, the
daughter of Ferdinand and Isabella, the issue of
which union was Charles V., Emperor of Austria,
King of Spain, Duke of the Netherlands, and ruler
over one-third of the habitable globe, the most pow-
erful sovereign the world had seen since the de-
struction of the Roman empire.
That wonderful war between Holland and Spain,
which lasted eighty years, and ended with Holland
independent and prosperous, and with Spain crip-
pled and impoverished, was primarily undertaken
by Charles to enforce the obedience of his disloyal
and rebellious subjects. The glowing pages of
Motley worthily record the heroic struggle, in
which, on the 26th day of July, 1581, the United
Provinces, assembled at the Hague, solemnly de-
clared their independence of the King of Spain and
renounced their allegiance forever.
The pretensions of the Dutch to an interest in this
Borgian grant were simply absurd. It was made
before they were part of the Spanish Empire, and
asserted by them after they had achieved their
independence. Besides, Spain herself never claimed
that the Papal grant conferred upon her any title to
any part of America, north of Florida. “ Spain,”
says Marshall in Johnson vs. McIntyre, “did not
rest her title solely on the grant of the Pope. Her
discussions respecting boundary with France, with
Great Britain, and the United States all show that
she placed it on the rights given by discovery.”
And the Dutch could obtain no larger right under
this donation than the Spanish had for themselves.
In addition to these considerations, the Protestant
countries of Europe never recognized the validity
of the Papal grant. When the Spanish Ambassa-
dor complained to Elizabeth, in 1584, that Drake
was infringing on Spanish rights under that grant,
she refused to recognize the claim, haughtily answer-24
ing, “that England knew nothing of a Papal gift,
• or any authority in the Pope to grant any land in
world.”
That great writer on National Law, Grotius, him-
self a Hollander, whose work, De Mare Juris, says
Hallam, constituted an epoch in the affairs of Europe,
denied that the Pope had any authority to grant
the ocean to any power, because, in the nature of
things, it was free to all. The same reasoning
would apply, with equal force, to the unoccupied
lands, of the then undiscovered world.
Spain, except in case of the Pacific Ocean, never
made any such claim. Her position, in respect to
the islands and continents of the new world, was
like a mortgagee, who takes his mortgage to secure
past and future advances. The Papal grant made
it unnecessary for her to renew her application to
the Pope on every fresh discovery.
Hence, in no point of view can this claim of the
Dutch be maintained.
These are the grounds upon which the Dutch
claimed the right to the ownership of any part of
North America, and they are as untenable as
“ The baseless fabric of a dream.”
4. Title by the de facto exercise of Dutch sover-
eignty over the Colony of New Netherland.
To state the facts on this subject it will be neces-
sary to commingle the acts of the Dutch and Eng-
lish as they concurrently transpired during the
period in question.
In 1610 some Hollanders, still affected by the
craze for a short route to China, fitted out some
ships for a north passage thither, and on the 1st of
February, 1611, the States-Gfeneral perpetrated the
most stupendous joke on record; they resolved to
provide the adventurers with letters to the princes
of the countries at which they might arrive, written
in such language and characters as might be most25
useful! These vessels, in the course of their explor-
ations,.landed at New York, and a commercial value
in the furs obtained here led for the first time
to a renewed voyage. In 1614 the owners of these
ships, claiming and believing that they had discov-
ered the harbor and bay of New York, petitioned
the States-General for an exclusive grant of trading
to this territory, which was granted only to the ex-
tent of conferring upon them a monopoly among
their own subjects. It was limited upon its face to
this and was merely granted for the purpose of
trade ; no territorial rights whatever, either by word
or implication, were conferred. This monopoly was
limited for three years, and subsequently renewed
and extended to 1621.
The trade in furs proving profitable, they built
three or four houses for the residence of those who
remained, and a warehouse for the storage of their
furs. One of their number was designated Governor
of the colony, which had been continued from 1611.
While the Dutch were planting a fur trading
colony on Manhattan Island, the French emigres
were extending their colonies from Canada to Port
Royal and Mount Desert for the pious purpose of
converting the Indians.
When Sir Thomas Gates came to Americain 1609,
he brought with him to Jamestown, Virginia, or
was followed by Capt. Thomas Argali, a regular old
pirate, ready to pillage and destroy, to whom the
Governor gave command. By virtue of his author-
ity, and to supply the needs of the colony, in 1610,
he visited the Penobscot region for cod and salmon.
On his return he informed the Governor of the
French settlements within the boundary of the Vir-
ginia grant, of which he had thus learned, and forth-
with he equipped a fleet, and sailing to Maine drove
the French from Port Royal and Mount Desert.
Part of them he took prisoners and carried to Vir-
ginia, and the rest he inhumanly sent in an open
boat to sea. Thus the Virginia colony asserted its
26
authority over the territory included in their grant,
and enforced the rights conferred upon them to
eject all trespassers. On his way back he stopped
in the port of New York and threatened the Dutch-
men there with extermination, such as he had
visited upon the French, if they did not recognize
the authority of Virginia. The defenseless Dutch-
men thereupon paid him the tribute which he had
demanded.
This statement has also been denied, but this de-
struction of the French settlements has been deter-
mined by the best possible authority, the report of
the Jesuits to Rome, and that being true, there is
inherent probability in the story of his treatment of
the Holland traders. Without citing the authorities,
it is sufficient to say that the Rev. Dr. De Dosta, a
thoroughly informed scholar on American history,
has established that the early Dutch settlers on
Manhattan island did, in 1613, acknowledge the
English sovereignty over the territory.
Again in 1619 or 1620, Captain Thomas Dormer,
an Englishman in the service of Sir Ferdinando
Gorges, touched at Manhattan on his way to New
England, and molested these Dutch settlers and
threatened to confiscate their property, whereupon
the Dutch promised “to come thether no moe.”
The story of the exodus from England to Holland
and from Holland to America of those Godly men,
who are fondly remembered as the Pilgrim Fathers,
has been too often told to be repeated here. They
however bear a part in the legal history of New
York that must be mentioned. In 1617 they con-
cluded to leave Holland, and they then determined
to settle in New York. Thereupon they sent a del-
egation to England to obtain a charter. Two years
elapsed before they were able to obtain a favorable
answer. Finally, in February, 1620, the first colony
of Virginia granted a patent to John Pierce and his
associates which entitled them to locate here, under
which they sailed in the Mayflower. Contrary to27
their original intention, they landed on Plymouth
Rock. Before debarking on the 11th day of Nov-
ember, 1620, in the cabin of the Mayflower, they
designated themselves the loyal subjects of King
James, who were undertaking to plant the first
colony in the northern part of Virginia. In the
meantime, the King had granted a separate charter
to the second colony of Virginia, under the desig-
nation of the New England Colony, and on the first
day of June, 1621, the President and Council of New
England confirmed to the Pilgrims the Virginia
charter by a patent which embraced New York.
On the 15th day of December, 1621, the English
Privy Council addressed a letter to the British Min-
ister at the Hague, demanding the removal of cer-
tain Hollanders who had, during the past year,
intruded upon lands in that part of the north of
Virginia called New England. Writing to the
Lords of Council in February, 1621, the Ambassador
says that he had made inquiry of merchants, the
Prince of Orange and some of the States and learned
that about four or five years since two particular
companies of Amsterdam merchants began a trade
in those parts betwixt 40 and 45°, whither they had
ever continued to send ships to fetch furs which
was all their trade, for the providing of which they
had certain factors resident there trading with the
savages; but he could not learn of any colony either
already planted there by these people or so much as
intended. He would therefore demand of the As-
sembly to take information of the business of which
they professed ignorance. Thereupon the British
Ambassador presented a memorial and asserted in a
letter accompanying it the incontestable right of
the King of England to said country, both by orig-
inal discovery and jure primes occupationis, and
that it was notorious to every one that he had by
his letters patent granted quiet and full possession
of the whole of said country to several private indi-
viduals.28
It was this protest that secured the incorporation
of the West India Company. For many years the
patriot William Usselinx and his compatriots had
besought the States-General to incorporate said
company for the principal purpose of attacking the
commerce of Spain. Into this company was merged
the association of traders who had previously
secured the Dutch monopoly of trading in the New
Netherlands. The West India Company originally
had no intention of colonizing in North America.
It made New York a naval station, from whence its
ships could intercept the golden argosies of Spain, in
which it was so successful that within a few years it
boasted that “it had exhausted the treasury of the
King of Spain, by depriving him of so much silver
which was as blood from one of the arteries of his
heart.” In return for this anticipated aid, the
States-General incorporated a provision in the char-
ter by which they obligated themselves to protect
the Dutch territory in America.
“Hitherto,” says Mrs. Booth, “the Dutch had
looked on Manhattan only as a trading post. They
did not think of making themselves homes in this
new wild country, but dwelt in temporary huts, of
the rudest construction, which scarcely protected
them from the cold. But the English were exploring
the coast and laying claim to all the country between
Canada and Virginia, and the Dutch began to real-
ize the importance of planting colonies in the new
province, and thus securing their American posses -
sions.”
This charter was dated on the 3d of June, 1621,
but the establishment of the company, although
chartered, was postponed. The charter conferred
upon the corporators, for a period of twenty-one
years, the exclusive right of trade in the Atlantic,
from the tropic of Cancer to the Cape of Good Hope
on the eastern, and from Newfoundland to the
Straits of Magellan on the western shore. This was
the extent of the West Indies. “Nothing could be29
more magnificent, nor more vague.” The company
was authorized to maintain fleets and armies, build
forts and cities, carry on war, make contracts with
the native princes, administer justice, appoint gov-
ernors subject to the approval of the States-Gen-
eral to whom they were required to take oaths of
allegiance. In return the company pledged itself to
colonize the new territories (not any portion in par-
ticular), and to report its proceedings to the States-
General. The government was vested in nineteen
members, one appointed by the State,, the others by
five chambers of managers, established in the prin-
cipal cities of Holland. Under this charter the
Hutch had the same right to occupy Canada, Massa-
chusetts, Florida and Brazil that they had to occupy
New York.
About 1622 (most probably in 1620), although the
only date given is 1622, certain Walloons and
French who were desirous to go into Virginia, who
were then residing in Holland, addressed the Eng-
lish Ambassador at the Hague, petitioning that his
Majesty would permit fifty or sixty families as well
Walloons as French, all of the reformed religion, to
settle in Virginia a county under his obedience, that
they might erect a town for their security, that they
might have a grant of territory which they should
hold from his majesty in such fealty as he might
deem reasonable, under which conditions and
privileges they would promise fealty and obedience
such as faithful and obedient subjects owe their
King and Sovereign Lord.
This petition was transmitted to Secretary Calvert,
who acquainted his Majesty with it, by whom it
was referred to the Virginia Company, to whom he
had given all power by his letters patent to admit or
exclude whom they pleased in that plantation, and
thereupon the company were content to receive
them upon certain conditions which were sent to the
Hague to impart to the petitioners.
No further mention is made of this matter in the
130
State papers nor are the names of the petitioners
mentioned. It adds to the weight of the argument
that the Dutch people were fully advised of the
English claim to the territory embraced in New
York and that they asserted no right thereto. It
affords Color for an assertion that these were the
identical people who actually founded the colony,
for in 1623 the Amsterdam Chamber, to whose
special care the province of New Netherland was
consigned, despatched a vessel of large size with
thirty families, mostly Walloons and French pro-
testants,to found the colony. “ These were, properly
speaking, the earliest colonists of the province, the
Dutch, who had previously emigrated thither, hav-
ing been mere traders and temporary sojourners.”
In the same year the English prepared by force to
attack the Hollanders in America, to give them
fight and spoil and sink them down in the sea as
they had previously served the French. But the
Dutch entered into negotiation with England for a
new treaty and the expedition never was despatched.
The English again asserted their rights here in
January, 1624. On receiving information that there
was a Dutch ship riding in the haven of Plymouth
bound to a place in America which was compre-
hended in a grant made by his Majesty, an order
was issued to the Yice-Admiral of Devon and the
Mayor of Plymouth to make stay of the ship until
otherwise ordered. It does not appear that it was
ever permitted to prosecute the proposed voyage.
A treaty offensive and defensive against the
unjust usurpations of Spain was solemnly made and
concluded between the Lords States-G-eneral of the
United Netherlands and his Majesty of England at
Southampton, on the 7th day of Sept., 1625. This
treaty gave to the respective parties the right of free
ingress, egress and regress into all ports, havens,
roads and creeks of the other with their men of war,
merchant ships and prizes, and freedom of trade31
and commerce. In it there was nothing that could
be tortured into any territorial concession.
In 1625 the jurisdiction of the first colony of Vir-
ginia over this territory was terminated by writ of
quo warranto, which annulled the original Virginia
charter.
In May, 1626, Peter Minnit arrived at Manhattan
as its Governor. His first act was the purchase of
the Indian title. “ Having thus become the lawful
owners of the property,” says Mrs. Booth, with more
partiality for the Hutch than knowledge of the law,
“ the first care of the colonists was to provide for
their personal safety. The English were constantly
prowling about their coasts and threatening their '
destruction,” to circumvent which Minuit, on the
9th of March, 1627, caused an amicable letter to be
addressed Governor Bradford at Plymouth suggest-
ing that they should maintain friendly relations.
Of course it was intended to entrap the Governor
into some admission of right, but Bradford was not
so easily beguiled. He answered courteously, but
suggested that the Hutch were trespassing on Eng-
lish territory. Alarmed by this answer Minuit
replied a few weeks after vindicating the right of the
States-General to the territory of Hew Netherland.
Not content with this he communicated the matter
to the Amsterdam Chamber, whereupon the West
India Company petitioned the English government
to accord to them the benefits of the treaty of South-
ampton. On the 5th day of September, 1627, this
petition was granted by decree of the Privy Council,
with this significant recital: “Whereas the com-
panie of the West Indies in the united Provinces
hath made humble suite unto his Matie that their
shipps employed thither either in trade or merchan-
dize or on warfare for the weakening of the common
enemy; might quietly pass on their intended voy-
ages, both outward and homeward bound, without
any molestation, stay or hindrance by his Maties own32
shipps or those of his subjects employed with lrs of
marque to the southwards or elsewhere.”
No clearer admission of English right could have
been made than this petition. By the acceptance of
the decree the Dutch were forever estopped from
denying the right of England. It was the unquali-
fied recognition of English sovereignty over that
territory. Up to this time the Dutch had never *
asserted any title to New Netherlands. It was sim-
ply a trading company that had a monopoly as
against other Hollanders of the furs and peltries of
the province, and that had had there a local habita-
tion and a name.
The benefits of the treaty of Southampton did
not give the Dutch any title to the land, nor did the
English so intend it. The original grant to the Vir-
ginia Company, the royal grants to the patentees of
Connecticut, to Lord Sterling of Long Island and
the lands adjacent thereto, and from the New Eng-
land Company to the Plymouth Colony, all included
New York. And every New England charter
granted by Charles recited the original grant to the
Second Colony of Virginia as embracing territory
which included New York. Last of all the Gov-
ernor-General of Ireland in 1632 granted to Sir John
Plowden a patent to New York. On the principle
that the last should be first, Plowden was the first to
attempt to take possession of his property, he ap-
peared and demanded of the Dutch that they
should recognize his authority, which they refused
to do upon the ground that his patent was invalid
because the seal was broken, and as he had not a
sufficient force at his command to compel submission
to his claim, he found it expedient to retreat. But
the English continuing thus to patent the land, con-
tinually asserted their right and title to the same.
Besides these royal grants the colonial Governors
exercised jurisdiction over this territory. In 1628
the Governor of Virginia gave to Wm. Clayborne
full power and authority to “saile into any the33
ryvers creekes portes and havens” within the
degrees of 34 and 41 “ and there to trade and truck
with the Indians for furs skins corne or any other
comodities of what nature or quality soever they
bee.”
The King of England also made similar grants.
In 1632 more vigorous measures were adopted to
assert English sovereignty over New York. Captain
Mason, interested in the New England patents, de-
nounced the Dutch as interlopers “betwixt Cape
Codd and Bay de la Warre in 40 degrees northerly
latitude, being a part of that country which was
granted to Sir Walter Rawleigh by Queene Eliza-
beth in Anno 1684 and afterwards to divers of her
subjects under ye title of Virginia,” and complained
to the Government of their great trade. On the
19th of March, 1632, the Dutch vessel the Eendracht
sailed from Manhattan Island for Holland loaded
with furs and having as a passenger Governor
Minuit, who had been recalled. By stress of
weather it was forced into the port of Plymouth in
England, and the vessel and cargo were seized by
the British authorities upon the ground that the
Dutch had invaded British rights in trading on
English territory without a license. A diplomatic
correspondence ensued, in which the English, as they
invariably had done, claimed the territory by right
of discovery and prior occupation. The Dutch
West India Company laid claim to it because the
New England and Virginia Colonies were chartered
“ upon the express condition that the respective in-
corporated parties should remain one hundred miles
apart from each other, and have so much between
them both.” This statement, as the original charter
shows, was incorrect, and if it were true would not
countenance the Dutch claim. But it proves they
knew the terms of the Virginia charter, and conse-
quently they neither deceived others nor themselves
by perverting its meaning. To this reason the Dutch
ambassador added the further consideration that84
they had acquired the title of the Indians. After
several months of negotiation the King of England
directed the release of the vessel with the express
reservation of his rights in the premises. The Com-
pany received the vessel without making any claim
for damages for its detention.
The next year there was the converse of this situ-
ation. In April, 1633, the William, & British ves-
sel, British manned, came to New York, and in
spite of the Dutch protests ascended the Hudson to
trade with the Indians. The Dutch assembled in
force where the crew landed and drove them away.
The British Ambassador at the Hague thereupon
made a demand npon the Dutch West India Com-
pany for the damages thns sustained. The Com-
pany petitioned the States-General to interfere on
its behalf. After long consideration, on the 16th
day of October, 1634, the government declined to
interfere, and advised the Company to confer in this
matter with the English Ambassabor. Is this the
attribute of a sovereign ? The Dutch were no pol-
troons. Invincible at sea, flushed with victory over
Spain, fearless of England, would they have thus
ignominiously refused to espouse the cause of their
own citizens, whose patriotic efforts had largely con-
duced to their success, if they were sovereign over
New N etherlands %
On the 7th of June, 1635, the president and coun-
cil of New England surrendered its great charter to
the Crown for the purpose of having the land em-
braced therein divided into twelve provinces, which
the proprietors might enjoy in severalty. The
ninth of these extended from the Connecticut to
the Hudson, including Manhattan Island, and was
allotted to the Duke of Lenox.
In 1634 the Privy Council again ordered the de-
tention of a ship of Holland lying at Cowes bound
for the Hudson River, and the prevention of any
others that might come thither for like purposes.
During the next fifteen years the troubles in Eng-53
land prevented much consideration of America.
We can now with difficulty comprehend the situ-
ation as it then was. The whole country was called
“the Wilderness,” the horrors of which induced a
criminal, to whom the choice was given of execution
or transportation, to prefer hanging in England to
living in America. Consequently the Dutch re-
mained unmolested for the time being.
In 1643 William Kieft,- who had become Governor
of the little colony, planned and executed the most
unjustifiable massacre of the Indians ever perpe-
trated in America under the delusion that he would
awe the remainder into submission. In one week
the country was desolated. On the fourth of March
the panic-stricken Governor proclaimed a day of
general fasting and prayer without atoning for his
crime. The colony never recovered from the blow.
The Indians destroyed the dwellings, the barns and
the cattle of the settlers and prevented the cultiva-
tion of the soil. The distress had so increased that
in the Fall they petitioned the Government to sup-
ply them with food to save them from starvation or
with vessels to return them to Holland. The eight
men, who were the chosen representatives of the
colony, stated in one of the documents forwarded
to the Government that the Indians had destroyed
all the boweries or plantations upon the island
beyond the fort, with the exception of only three,
and that the inhabitants were in peril of their lives.
The Government adopted a resolution that the popu-
lation was neglected by the Company and in conse-
quence decreasing.
In July, 1646, that doughty old Knickerbocker,
Petrus Stuyvesant, was sent over to be the Governor
of the province, and he found that while the Dutch
had been suffering from the just resentment of the
Indians, the English colonies had been prospering
and flourishing and were rapidly approaching New
York both from the east and the south. He there-
fore wrote to the States-General that unless the36
colony was taken under the wing of the State instead
of being allowed to remain under a private corpora-
tion, the English would soon displace them.
In 1647 an agent of Lady Sterling, widow and
devisee of Lord Sterling, who held the Long Island
patent, demanded of Stuyvesant the surrender of
the territory.
In 1649 Stuyvesant negotiated with the Connecti-
cut colony the settlement, of the boundary line
between that colony and New Netherlands, but the
action of the colony was never ratified in England
and never became effectual. This was the nearest
approach ever made by the Dutch to any recognition
by England.
While the English colonies were rapidly increas-
ing in numbers and wealth, and were extending in
every direction, the affairs in New Netherland were
going from bad to worse, and in 1650 certain dele-
gates sent to Holland presented a petition to the
States-General in which they set forth the calamities
that had befallen them through the mismanagement
and neglect of the Dutch West India Company, by
which “their territory had become a desert and the
people impoverished, harassed, afflicted and reduced
to utter ruin, while New England was populous,
rich, prosperous and driving an immense trade and
commerce almost with the entire universe,” and
recommended “in order to block the further prog-
ress of the English, that they should provisionally
set about hitching on to New Netherland the most
distant lands lying between the Dutch nation and
the English,- which are yet vacant.”
To add to their afflictions the British Parliament
in that year enacted that, after the 26th day of March,
1651, all vessels trading to Virginia and New Eng-
land without English authority should be confiscated.
That the Dutch came within the purview and penal-
ties of this act was fully recognized by them in a
petition which the Dutch merchants addressed to
the States-General for relief. In the meantime, in37
January, 1651, before the foregoing act was to take
effect, England demanded that the Dutch should
surrender some political refugees, which was refused.
In the turmoil that ensued it was alleged that the
English ambassador was insulted by the populace.
Thereupon the Navigation Act was passed for the
protection of English shipping against the Dutch,
which resulted in war between the two countries.
In consequence of that, for the first time the States-
General directly interfered in the affairs of the col-
ony, and that only to this extent: On the 2d day of
July, 1652, they directed Stuyvesant to take good
care and be of a watchful eye respecting the persons
he employed during the rupture between that State
and England.
While this war was being waged, on the 2d day of
February, 1653, on the anniversary of the feast of
the Purification of the Virgin commonly called
Candlemas, the little colony on Manhattan Island
became a city."'
The following December, Cromwell became Lord
Protector of England, and he immediately opened
negotiations for peace, which was concluded in Feb-
ruary, 1654. It was then that the States-General
directed the Dutch West India Company to present
to England their claim in the possible hope that it
would meet with a favorable consideration, which
has been before mentioned. Lord Thurloe, Crom-
well’s Prime Minister, asserted the justice of Eng-
land’s claim, both historically and legally, with
convincing clearness and vigor.
In 1656 a census of the city was undertaken and
its population was ascertained to be only one thou-
sand, a large proportion of whom were negro slaves;
so foreign to Dutch temperament and education was
the effort at colonizing in America.
The encroachments of the English on the south
induced Stuyvesant in 1659 to send a delegation to
remonstrate with the authorities of Maryland in
relation thereto, to which remonstrance the English38
returned the answer they had invariably made that
they were the original owners and occupiers of all
the land known as Virginia and that they claimed
under the patent to Raleigh in 1584. Then it was
that the Dutch first claimed to derive their title
from the King of Spain and the Pope’s donation.
They apparently abandoned the claim previously
made of title by purchase from the Indians, or dis-
covery by Hudson.
The death of Cromwell, the downfall of his son
Richard and the restoration of Charles II. succeeded
one another with startling rapidity and changed
the aspect of affairs between England and Holland.
A revised and more obnoxious Navigation Act was
passed. In July, 1660, Lord Baltimore demanded
that the Dutch should surrender the land they occu-
pied on Delaware Bay. Stuyvesant sent word to
Holland that the English were seeking to invade
the shores of the North River and to dispossess the
Dutch West India Company. All was gloom and
distress for these settlers.
In 1663 the English Royal Council for Foreign
Affairs, alleging that the Dutch had, of late years,
unjustly intruded upon and possessed themselves
of certain places on the main land of New England
and some islands adjacent, as in particular Man-
hatoes and Long Island, ordered a commission to
draw up a brief narrative of the Dutch, invasion and
the means to make them acknowledge and submit
to his Majesty’s government, or by force to compel
submission or expulsion. The direct result is un-
known. Its purpose was apparent. The time had
arrived when England found it expedient and profit-
able to assert her claim. Lord Clarendon, Prime
Minister of Charles and father-in-law of James, the
Duke of York, was undoubtedly intriguing on be-
half of his noble son-in-law to obtain this prize. In
furtherance of the scheme Clarendon purchased the
Sterling grant, and in the early part of 1664 Charles
sent royal commissioners, of whom Col. Nicholls was39
one, ostensibly to visit the New England colonies
with secret instructions hostile to the Dutch. On
the 24th day of J une, 1664, Charles granted to his
brother James the famous royal charter to all lands
from the Connecticut River to the Delaware Bay.
James empowered Col. Nicholls to take possession.
Stuyvesant obtained tidings of these proceedings
which he sent to Holland, but they were treated as
idle rumors unworthy of attention. An ancient
friend and ally could not be guilty of such conduct.
Meanwhile, a fleet was secretly sent to America,
landing first at Boston and sailing thence to New
York to enforce this claim. On the 2d day of Septem -
ber, 1664, the Dutch, unable to cope with the armed
force England had sent, surrendered the colony
and gave to the representative of the Duke of York
peaceable possession, reserving to the inhabitants,
in articles of capitulation, security in their person,
inheritance, customs, conscience and religion.
This underhanded and cowardly act cost England
dear. In consequence of it the Dutch declared war,
and under Van Tromp, their great admiral, defeated
the English, ascended the Thames and threatened
to put London under contribution. The brave
Dutch admiral had the audacity to fasten a new
broom at his mast head to signify that he had made
a clean sweep.
We are concerned with the legal aspect of this
affair. If the Dutch were, as the English repeatedly
asserted, interlopers and squatters, the law is very
plain. It is the same with nations as matter of right
as it is with individuals. If A occupies the land of
B without right or title, and B ejects him by force
or by fraud even, the manner and the time of the
ejectment does not give A any redress as relates
to ownership.
In 1665, the English having sued for peace, the
treaty of Breda was made between England and
Holland by New York, the cause of the war was
conceded to England, and Surinam was surrendered40
to Holland to the great dissatisfaction of the Eng-
lish people, who valued the rich provinces of the
East more highly than obscure and insignificant ter-
ritory in the American wilderness.
England remained in quiet possession of New
York until 1673, when the English and French de-
clared war against Holland. In this emergency
William of Orange was appointed Stadtholder, and
he despatched the West India squadron, composed
of twenty-seven vessels and sixteen hundred men, to
attack the English. It destroyed the tobacco fleet
of Virginia, and on the 28th day of July, 1673,
sailed into the port of New York and demanded its
surrender. The English, unable to resist with this
formidable array, yielded on the following day. On
the 8th of August the admirals of the fleet placed
Sir Anthony Colve in command of the Province, and
the Dutch became, by conquest, the lawful sover-
eigns of New York. The conquest, however,
availed the Dutch very little. The Prince of Orange,
with true statesmanship, determined to concentrate
all his resources against the King of France, and
therefore restored New Netherland to England. On
the 8th of February, 1674, the treaty of West-
minister transferred the title to the King of Great
Britain.
Upon this the question arose whether the patent
to the Duke of York revived by virtue of the acqui-
sition of the territory by the English. The crown
lawyers, to whom it was submitted, unanimously
held that it did not. The grant had been extin-
guished by the Dutch conquest, and now belonged
to the crown by the English conquest.
Thereupon Charles, on the 29th day of June, 1674,
executed to James a new patent in the identical
words (except its date), but without any reference
whatever to the first patent. Many well informed
persons have fallen into the error of supposing that
this was a confirmatory grant, but James had no41
title whatever to confirm and the error has arisen
from a failure to appreciate the exact situation.
The effect of these grants has been adjudicated
upon by the Supreme Court of the United States in
Martin vs. Waddell, 16 Peters, 369, which involved
the title to lands in New Jersey embraced therein.
It was held that the right of the King to make these
grants was unquestionable; that they were made to
enable the Duke of York to establish a colony to be
governed according to the laws and usages of
England; that they created a viceroyalty; and the
people were subjects of Great Britain. It has also
been held by the same tribunal that the making of
the grants heretofore mentioned from the days of
Henry VII. to James was the continual declaration of
the Crown of its sovereignty over the lands so pat-
ented. James’s representative granted to the City
of New York all the waste and unpatented lands.
And in the changes from the Dutch to the English
and from the English to the Dutch the only reserva-
tion made was that which accorded with international
law, that the rights of private ownership and all
succession under wills should be respected, and the
Dutch claimants obtained from the English author-
ities confirmations of their previous grants. Once
more the political title, that is the title to all unpat-
ented lands, reverted to the Crown when James on
the death of Charles succeeded to the throne of
England.
In this brief summary of the events that trans-
pired here it will be seen that under the law of
nations as it has always been declared in both Europe
and America the English were the lawful owners by
right of discovery under governmental authority,
perfected by taking possession long before the Dutch
ever landed here, and continued by assertion of such
ownership down to the time of the conquest.
On the other hand the Dutch were interlopers,
intruders, squatters. They had no title in fee to42
the land before 1678. A squatter’s title may become,
valid by lapse of time, but there is no statute of
limitations against nations. When national or
political usurpation ceases it is obliterated. This
has been so decided in regard to the so-called Con-
federate States government. When it ended it was
as if it had never existed. Its ordinances and decrees
afforded no justification and gave no color of right
to any acts done thereunder. Prior to 1673 the law
of England was the only law that can now be recog-
nized as the law of the land. Whatever may be the
effect of the Dutch-Roman law upon roads and
highways, respecting which there is a wide differ-
ence of opinion, in places where Holland has had
jurisdiction, it is immaterial in this case. That law
never prevailed in this colony except for the few
months that elapsed between the end of July, 1673,
and the beginning of February, 1674.
4. The objections made to this claim answered.
One might be curious to know what answers have
been made to these views, and therefore we state all
that has heretofore been presented as the result of
the laborious research of the counsel for the Elevated
Railroad in Hew York who are interested in main-
taining the proposition that certain roads in New
York were of Dutch origin and governed by their
law. This is what they say :
“The de facto exercise of sovereignty over the
colony of New Netherland by the States General of
Holland is shown: (1.) By the recognition of their
sovereignty in petitions and other papers emanating
from the inhabitants of New Netherland. (2.) By
acts and resolutions of the States-General pertain-
ing to New Netherland. (3.) By expressions em-
ployed by the magistrates of New Netherland in
patents for land and other official papers. (4.) By
the recognition of their sovereignty in diplomatic
intercourse between the States-General and the43
foreign powers in relation to matters other than
treaties. (5.) By the exercise of judicial authority
by the States-General in matters arising in New
Netherland. (6.) By the recognition of the previous
authority of Holland by the English, after the sur-
render in 1664 and again in 1674.”
We have quoted their language word for word in
full, and on it judgment might be asked in favor of the
English claim. For conceding that every one of the
six propositions could be proved as fully as might
be presumed from the statement there is nothing
whatever that in the slightest degree invalidates the
preceding argument which leads inevitably to the
determination that England by right of discovery
and possession became and never ceased to be the
sovereign of New York.
But such argument is deserving of respectful and
detailed consideration and the more it is con-
sidered the weaker will the Dutch case appear.
(1)	. In 1643 the eight men who have been hereto-
fore mentioned subscribed their petition “your High
Mightinesses’faithful servants and subjects.” The
petition of the Commonalty in 1649 was addressed
to the States-General ‘ ‘ our Most Excellent Sover-
eigns,” and its appendix to “our Most Serene
Sovereigns.” The address of the colonists deter-
mines nothing. Agency and tenancy are not
established by the declarations of the agents and
tenants to bind third parties. For the question
is not what they called themselves but what they
were.
(2)	. Under the second head they cite orders of the
Dutch Government in the aifairs of the Dutch West
India Company and in the affairs of individuals.
No one disputes that the Dutch West India Com-
pany was incorporated by the States-General, and
consequently the government had control over its
affairs. Does legislation over the affairs of the44
New York Central Road make its tenants citizens
of the State of New York ? Does the appointment
of government directors in the Union Pacific Rail-
road make it a national road ? If the law of New
York required the appointment of the president of
the elevated road by the State, and that he should
swear allegiance thereto, would that make the road
over which he presided the property of the State
and its servants State officers? Besides these, there
were two instances in which the State interfered in
private affairs, first in 1641 and again in 1652, author-
izing particular individuals to devise property in
New Netherland. Hollanders in their native land
and in its colonies where they owned the soil must
have had by general law power to devise, and this
express request and grant must have been a recog-
nition that no such power existed here These two
cases were covered by the terms of one of the articles
of capitulation in 1554, of which we shall speak here-
after.
(3). Under the third claim there are four prin-
cipal subdivisions—purchased from Indians, grants
by the Company, Stuyvesant’s title; and declarations
in 1673—from the conquest to the surrender. The
Indian grant recitals were substantially as follows :
“We the Director and Council of New Netherland
on the Island of Manhattan in Port Amsterdam,
under the jurisdiction of their High Mightinesses’
the Lords, the States-General of the United Nether-
lands and the General Incorporated West India
Company do by these presents: publish and
declare, that on this day, the date under
written before us, in their proper persons
came and appeared, &c.” The utmost that such
grants could convey, as has been decided by the Su-
preme Court, is a usufructuary use (voidin this case);
but waiving that question, it nowhere appears that
the States-General or the Company ever knew of
his assumption on the part of the Governor who45
had no authority to use the State’s name. The
same is true in the title used by the Governor in his
colonial court and in the private grants. There no-
where appears either the slightest authority, knowl-
edge or recognition for, or of, the bombastic rhet-
oric of the conceited Governor who was only a
servant of the Company and had no right to use the
name of the State. The last stand on a different
footing. The conquerors had the right to speak in the
name of the States-General then, and from thence-
forth until the end of their occupation; but that
did not affect the past and gave them no authority
to make any declarations of the past; it was no part
of the res gestce, as the courts would say.
(4)	. Under this heading two instances, the William
and the Eendragt, are given as showing English
recognition of Dutch sovereignty. In the first the
Dutch Ambassador wrote to his Government that
complaint had been made to him about the exclusion
of the English from the Hudson, thus recognizing
the control and authority actually possessed by the
States-General in New Nether land is the inference
drawn therefrom. In other words if an American
citizen were driven from the coast of Spain by an
English ship and should make complaint and the
British minister should write to his own government
that complaint had been made to him about the
matter, that would be American recognition of Eng-
land’s authority in Spain. Not by any means. It
recognized that the trespassers were subjects of the
power from which they demanded compensation.
So the admission that the Dutch were in possession
without right, was a declaration that they were tres-
passers and intruders who were to be removed by
the States-General.	'
(5)	. The Dutch undoubtedly did exercise judicial
authority in New Netherland in cases of a personal
character—as are all cited—and perhaps also relating46
to realty; so did the Confederate States, in the time
of their usurpation ; so has been done everywhere by
organized mobs and rebels ; so it is among the ban-
ditti ; but when the force that sustains such exer-
cise of authority disappears the judicial authority
vanishes.
(6). The confirmatory grants did recognize that
previous grants had been made and for a good con-
sideration confirmed them. Parallel instances fre-
quently occur in real estate titles at the present day.
A buys of B land which in fact C owns. He then
purchases of C the real title and takes a deed con-
firming his title and possession. No one for an
instant would dream of asserting that C thereby
recognized that B was the true owner.
These are the facts, a beggarly array, on which
those who have a personal professional interest in
upholding the Dutch title rely.
In opposition to all the acts of the Dutch from
which title might be presumed, one omission is very
significant. When Cabot first landed he took posses-
sion of the continent in the presence of witnesses on
behalf of the English sovereign; so did Ralegh’s
colonists at Roanoke; so did Columbus on behalf of
Ferdinand and Isabella; so did De Soto and all the
great discoverers. This became so universal that
Lord Stowell in The Fama, 5Robt. Adm. R., said:
“ Even in newly discovered countries where a title
is meant to be established for the first time, some
act of possession is usually done and proclaimed as
a notification of the fact.” This the Dutch never
did in New York. This was not omitted through
ignorance. For when they subsequently took pos-
session of the land on the South River, as they called
the Delaware, they placed upon a pole a piece of tin
stamped with the Holland arms to signify its sover-
eignty there.
There is also a little law ot which they make much,
but which is without authority.47
Judge Murray Hoffman wrote a treatise on the
Estates and Rights of the Corporation, a self-im-
posed task, which however valuable in its informa-
tion had not the least claim to authority. In it he
says:	“It cannot be questioned at this day that
the right of discovery and occupation of Hew Nether-
land, and particularly of Manhattan Island, was in
the Dutch, and that the claims of the English were
unfounded.” And more of the like dogmatic and
unsupported assertion. And this he says with full
knowledge of Chief-Justices Marshall and Taney’s
opinions.
Oftentimes a bold and unblushing falsehood de-
ceives the very elect. It was so in this respect. There
came before the Court of Appeals the case of Dun-
ham vs. Williams, 37 N. Y., 251, involving a Dutch
title at Flatbush. The arguments of the counsel
engaged were considered by the reporter to be too
insignificant to be reported. Judge John K.
Porter wrote an opinion which inferentially said that
the Dutch did have title here before the capitulation,
citing therefor three authorities, one from Louisiana,
which might expound the civil law, but not the
Dutch rights here; another argument of Charles
O’ Conor, which quoted Hoffman, and then Hoffman.
So when it came to the crucial test it is Hoffman
unadulterated and unsupported. Turning to Mr.
O’Conor’s argument he will be found to have ex-
pressed himself thus guardedly :	“ This colony was
first settled by Holland and was consequently gov-
erned de facto at the time of its settlement by the
civil law.” The italics are his. He subsequently
denied that the Dutch ever had a title here.
In the case of the Canal Company vs. The People,
5 Wend., 445, Chancellor Walworth says : “It is a
matter of history that this province was always
claimed by the English by right of discovery and
not as a conquered country, and that no part of the
civil law as such, except that which was derived48
from England, has ever been in force in this colony.
The province was granted to the Duke of York as
part of the domain of the crown, several months be-
fore the surrender to Sir Richard Nicholls and before
any attempt had been made to take possession by
force. The guaranty to the Dutch settlers of the
peaceable enjoyment of their possessions did not
alter the nature of the British claim to the country.
It was a just and wise policy on the part of the
Duke’s Government; by it he retained in the colony
a great number of industrious, intelligent and valu-
able inhabitants, of whom and their descendants
even at this day the State has much reason to be
proud. After a short struggle they submitted
peaceably to the Duke’s claim, and subsequently
they obtained patents from the crown for the lands
they originally held. The territory being thus
claimed and established as a British colony, the
common law of England became the fundamental
law of the province.”
In Canal App. vs. People, 17 Wend., 609, the
Court says of a patent there under consideration:
“The original Dutch grant being made, the civil
law which prevailed in Holland, and which if
brought to this State by the Dutch,” &c. Mark
the if !
In Mayor vs. Hart, 95 N. Y., 450, Finch, J., uses
this language in relation to a grant made in 1666,
two years after the grant to the Duke of York:
“ We must assume such to have been the common
law at the date of the grant. Two years earlier the
Dutch had surrendered Amsterdam to Col. Nicholls,
who with an armed force asserted the right and
authority of the Duke of York and the English
Government. The common law of England entered
the city with him.” That assertion was sufficient for
the case before the Court, and cannot be construed
as deciding that it was not here before, for that
question was not before the Court.
Gould vs. Hudson River R.R., 6 N. Y., 522;49
People vs. Canal Company, 83 N. Y., 461, and
People vs. Perry Co., 68 N. Y., 71, have no refer-
ence to the Dutch. They involve only the common
law right of navigable waters.
In U. S. vs. Perot, 98 U. S. (80th), 428, and in
Freemontws. U. S., 17 How., 542, the judicial notice
which the Court is bound to take of the antecedent
law was Spanish, a legal, regular and recognized
authority, not the law of a usurper. Would the
Supreme Court take judicial notice of Confederate
laws ?
Some stress has also been laid upon certain remarks
of England’s greatest jurist, Lord Mansfield, in the
celebrated case of Campbell vs. Hall (1 Cowp., 211;
20 State Trials, 239), as militating against the Eng-
lish claim.
That case was so complicated and important that
it was elaborately argued four times before a deci-
sion was rendered. It involved the validity of a
tax imposed upon exports from the island of Gra-
nada, imposed by the King of England after it had
been taken by the British arms in open warfare
from the French King. Cases of conquest, includ-
ing the conquest of New York from the Dutch, were
instanced by Lord Mansfield as showing historically
the right of the conqueror to lay down the law for
the vanquished, and the nature and extent of that
right. This was his language:
“ After the conquest of New York, in which most
of the Dutch remained, King Charles II. changed
the form of their constitution and political govern-
ment by granting it to the Duke of York, to hold of
his crown under all the regulations contained in the
Letters Patent. No question was ever started be-
fore, but that the King has a right to a legislative
authority over a conquered country.”
The error that has been made is in applying this
first sentence quoted to the first grant to James in
1664. The error is manifest when it is observed that
he is speaking of conquest and a conquered country50
as applied to open warfare between the French and
English. The grant in 1664 was made in a season of
profound peace not after conquest, but in 1674, after
a brief but bloody struggle in which the English had
sustained a series of humiliating defeats and had
been compelled to sue for peace, and therefore the
illustration was opposite to the case under consid-
eration.
Another line of argument has been adopted by
Mr. Richard Webster, who says in an opinion in
the Lauderdale Peerage Case :
“ Yery 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 Pro-
vince 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
were mere intruders. For if English dominion,
sovereignty and title were thus valid and com-
plete, then by the accepted rules of public law,
both English and American, the aboriginal In-
dians had from 1609 to 1664 no right, without
English permission, to convey any portion of their
lands to Holland, its officers, subjects or citizens,
and therefore all titles to lands depending solely on
such grants or conveyances were and are null and
void.”
Inconvenient legal results cannot determine the
administration of law, and none can flow from the
successful maintenance of English sovereignty over
this territory on account of making Indian titles
null and void, for there are no such titles, the law
of nations having always been that the Indians had
none to convey. His protest, however, involves the
concession for which we have contended, that the
Dutch obtained nothing from the Indians if the
English had any rights whatever.
No Judge has made a more prolonged or thorough51
study of the early history of New York than Judge
TruaS:. The question of the Dutch title has been be-
fore him thrice in his judicial capacity. As a de-
scendant of the issue of the first marriage ever cele-
brated in the colony his personal prejudices or pre-
delictions could not have been hostile to the Dutch.
In Mortimer vs. N. Y. El. R.R., 6 N. Y. Supplement,
898, he presents an admirable condensed statement of
the situation, and concludes:	‘ ‘ I am of the opinion
that the fee of the Bowery and of the other streets
in the City of New York that are known as Dutch
Streets never was in the Dutch government; and
that it was prior to the Revolution bound by the
rules of the common law and not by the rules of the
Dutch civil law. While the Dutch -were in actual
possession this execution of the common law was
suspended, just as during the late Rebellion the
execution of the laws of the United States could not
be enforced in some of the Southern States.”
In a concurring opinion Judge Freedman says in
reference to the authorities cited by Judge Truax :
“ These decisions proceeded upon the theory that the
claim of the Dutch was contested by the English
from the very start, not because they questioned the
title given by discovery, but because they insisted
on being themselves the rightful claimants under
that title, and that the claim of the English was fin-
ally decided in their favor by the sword. That be-
ing so,it follows that in contemplation of present law,
neither the Dutch nor the Roman law ever prevailed
in the State of New York dejure and that the com-
mon law of England must be deemed to be the com-
mon source of all our law.”
In the equity case of Hine vs. El. R.R. depending
in the Superior Court recently decided, Judge Truax
amplifies the history he gave in the Mortimer de-
cision by citations from Ogelby’s America, the His-
torical Society Publications, Hakluyt and Kohl’s
History of Maine, all of which are in confirmation
of what he had previously written.52
The opinions delivered by Judge Truax in the first
two cases above cited were so convincing that the
General Term of the Supreme Court in the law case
of Hine vs. El. R.R. depending in that Court, unani-
mously reversed a judgment dismissing the com-
plaint pronounced by Yan Brunt, P. J., who held
that the Dutch Roman law prevailed here. This
reversal was based upon those decisions.
So the weight of authority is on the English side.
These decisions have been made after a full discus-
sion of all the earlier decisions and with an exhaus-
tive review of the historical facts. For, however
weighty the opinion of the Courts may be in dispos-
ing of questions of law, they cannot bind in histori-
cal or scientific matters. They adjudicate upon the
facts as they are known and are as liable to error as
the Court of the Inquisition in the trial of Gallileo.
What is the practical result of this discussion ?
The counsel for the Elevated Railroad, if we under-
stand him correctly, answers that it is nothing that
he is willing to concede all for which we contend ;
it is true that under the common law the rights of
property owners adjoining highways extends to the
centre, but under the Dutch law they are limited to
the side, and as the grant was made by the Dutch
authorities it must be construed according to Dutch
law and the English confirmative deed ratified only,
what had been previously obtained.
In other words, although we admit that the Dutch
were squatters and had no rights de jure you must
treat them as rightful sovereigns. For if they were
the legal owners no more could be claimed.
An exact statement carries its own refutation.
This must be the law governing such a case ; the
common law of England always prevailed here
although not always recognized. The Dutch gover-
nor was a private individual, granting property on
English soil, and consequently the grant extended
to the centre of the highway under English law ;
just as if the man had been in England.53
What force then do you give to the defacto gov-
ernment % Do you not ignore it altogether in such a
construction ? Not entirely—when the English re-
sumed their rightful authority, yes; while the
Dutch held possession, no. They could then use
the highway as if they were its rightful owners ; this
and nothing more.
The language of Mr. O’Conor in Wetmore vs.
Story, 22 Barb., 440,“that when Britain expelled
the intrusive power of Holland and resumed her
lawful possession, she adopted the existing settle-
ment, with its existing customs,” is cited against
this proposition, and if the adoption were as broad
as Mr. O’Conor states it, and the word “ customs ”
could be construed to mean all the Dutch laws, there
might be some force in it. But it is not necessary
to construe the word, for it has its own limitation,
and the law of eminent domain is thereby excluded.
This was the provision in the Articles of Capitula-
tion in 1664 :
“XI. The Dutch here shall enjoy their own cus-
toms concerning their inheritances.”
i It is not necessary to discuss the distinctions be-
tween the vice publicce and the vice vidnales, the
highways and byways or country roads, and nothing
could be added to the brief of Mr. Yan Nest on that
subject. Nor is it necessary to pursue the line of
argument so ably presented to the Court by Mr.
Cowles.
It is conceded that the historical question which
the Court takes judicial notice of, Hunter vs. N. Y.
C. & W. R.R., 116 N. Y., 615, underlies arid deter-
mines the whole matter if the Court of Appeals
entertains the views herein expressed, and as to
that there can be no reasonable doubt.
The City of New York has had the most romantic
legal history of any place on earth. Its title was
acquired by England by original discovery ; the
grant to Cabot reverted to the Crown by his death ;
the grant to Raleigh escheated on judgment in at-54
tainder; the grant to Virginia was cancelled by quo
warranto proceedings; the grant to New England
was voluntarily surrendered ; the title of the Dutch
in 1673 was acquired by conquest in 1674; and the
grant to Janies passed to the Crown on his accession
to the throne. There was one other possible trans-
mission which did not take place, England never
bought it. Hers by original right, hers it continued
to be until 1673, and her laws governed it (except for
a few months in 1673 and 1674), until it was wrested
from her by successful Revolution in 1776, when the
United States became a nation.