hundred guilders and his new marriage declared illegal, but was advised to apply to the director general for a divorce.1

At the last period of the Dutch dominion (1673-4) three judicial districts were recognized, one for the inhabitants of the Whorekill, between Cape Henlopen and "Boomties" (Bombay) Hook, another for New Amstel, from Bombay Hook to Kristina Kill, and a third for Upland from Kristina Kill "unto the head of the river." Roughly speaking, the first of these districts corresponds to the lower counties of the state of Delaware, the second to New Castle County, in that state, and the third to so much of the southeastern part of Pennsylvania as was then settled, extending to the falls at Trenton.

The humble and widely scattered settlers seldom had time or occasion to indulge in law suits involving questions or amounts beyond the limited jurisdiction of the schepens, but such disputes as did arise were the cause of endless discussion and much heartburning between the officers of the West India Company and those of the city of Amsterdam, whose complaints and recriminations distracted the governor at New Amsterdam. In justifying the action of the council in such a contest Peter Stuyvesant writes to the directors in Holland: "We might here remark upon and continue with the insults and slights, heaped on your Honble Worships' servants in their capacity as supreme judges of this province, but will desist for the present to keep ourselves above party spirit and avoid further displeasures." Appeals heard and decided by the governor

1 Hazard's Annals of Pennsylvania, 330, 333; VII Pennsylvania Archives (2d Series), 670, 672, 680.

2 Hazard's Annals of Pennsylvania, 407; VII Pennsylvania Archives (2d Series), 758; Whorekill is a corruption of Hoorn Kill, Sussex Records (Turner), 2.

and council seem to have been carried to the directors in Holland, and occasionally reversed to the chagrin of Stuyvesant, who thus reproaches his employers in a letter dated July 21, 1661:

"Your Noble Worships say in regard to the third and last point concerning the appeal and the reversing of a sentence pronounce d against one Jan Gerritsen van Marcken, that we would have done better not to meddle with this case. Honorable Worships! It surpasses our conception to understand how to avoid such proceedings and the reproaches following them, how to satisfy your Honors and the parties to the suit without exposing ourselves to blame for refusing a hearing and justice, as long as it is your Honble Worships' order, and pleasure, that appeals are to be brought before your Honors' humble servants and we declare with good conscience that in this and the abovementioned case we have not aimed at nor intended anything else, but what we in our humble opinion judged to be just, equitable and our duty: God the Ominiscient is the witness for it: we have no knowledge of it, that the Sheriff van Sweeringen was to be forced here, to ask pardon of God and justice in addition to what his opponent had demanded: we refer to the sentences regarding this point." 1

Dutch rule and Dutch laws, however, were destined to endure on the Delaware. On the twelfth of March, 1664, Charles II of England granted to his brother, the Duke of York (afterwards James II), the territory comprising the New Netherlands.

The charter to James is neither as elaborate nor as carefully drawn as that granted eighteen years later to Penn. The standing committee of the privy council for the foreign plantations had been but recently organized and the Crown lawyers were just beginning to realize that vast problems, legal and social, were connected with the administration of the colonial domain. It has been well said that in the colonial charter will be found the germ of American constitutional

1 VII Pennsylvania Archives (2d Series), 662.

law, whether of the trading company or proprietary type, since it contained beside the grant of territory a scheme of political organization.1 It is a significant fact that the charter of James contains no reference to a legislative assembly; the Duke is given “full and absolute power and authority" to "correct, punish, pardon, govern and rule" the inhabitants of the territories according to such laws, ordinances and directions as he should establish, not contrary to the laws of England, reserving to the Crown the right to hear and determine appeals from judgments or sentences there given.2

With the history of the conquest of the New Netherlands we are not directly concerned; suffice it to say that Sir Robert Carr who was charged with the reducing of the Dutch possessions on the Delaware arrived at that river in the latter part of the year 1664, and without much bloodshed obtained the surrender of the colony. Carr established the seat of government at New Amstel, the name of which was now changed to New Castle, and under the terms of his agreement with the inhabitants, continued all the magistrates in their offices upon their taking the oath of allegiance. The wise policy of enlisting the local authorities in support of the new government was continued, and Dutch and Swedish magistrates administered justice to their neighbors until long after the arrival of William Penn.

The period of the Duke of York's rule is of more importance in our judicial history than would at first be supposed. It was a formative period, and the law and practice as then developed had a marked influence upon the early legislation of the province of Pennsylvania.

1 Constitutional law by S. E. Baldwin in Two Centuries Growth of American Law, 11.

2 V Pennsylvania Archives (2d Series), 494.

3 V Pennsylvania Archives (2d Series), 544.

The establishment of English jurisprudence in the colonies on the Delaware was not the work of a day, but a gradual process, involving compromises with the established customs and practices of the inhabitants, the gradual transformation of the Dutch schouts and schepens into their English equivalents, the education of the magistracy in the rudiments of English court practice and the actual modification of many of the rules of the common law, both as to property and practice, to meet the necessities of the primitive social conditions in the New World.

The legal conceptions of the new rulers found expression in a brief code promulgated at Hempstead, Long Island, in 1664, which, quaint and unsystematic as it may seem to us now, contained several notable departures from the common law well worth careful study by those interested in legal history.

The principle seems to have been generally accepted in the American colonies that the elements of public and private law should be stated in a concise and permanent form. Whether originating with the people, as in the case of the "Body of Liberties" in Massachusetts, or with the proprietors, as in the case of the "Fundamental Constitutions" of the Carolinas, the tendency of early colonial law was toward codification.1 And what could be more natural than that both adventurers and proprietors should dream of creating little Utopias by force of the statute book? New conditions, too, required new measures, the laymen who administered justice required brief and simple handbooks for their guidance, and the mixed population a homogeneous system in the place of their various ancestral customs. Such a code was the Duke of York's Laws which is stated to have been "Collected out of the Severall Laws

1 Reinch's Colonial Common Law, reprinted in Select Essays in Anglo-American Legal History, Vol. 1, 367.

now in force in his Majesties American Colonyes and Plantations." Prior to the conquest of the New Netherlands, Colonel Nicolls, the newly appointed governor, and Sir Robert Carr had been appointed members of a commission for the visitation of the New England colonies, a part of whose duties it was with diligence and care "to peruse the collection of the lawes published in those colonies during the late usurping Government, or at any tyme before or since; to the end that upon examination thereof you may discerne both the indecent expressions and material and important points and determinations in them, which are contrary to our dignity and to the lawes and customes of this realme and to the justice thereof; all which they have obliged themselves to cancele and repeale; and if the same bee not already done, you are in the first place to cause it to be done."1

The commissioners were also empowered to hear all complaints and appeals in matters military, criminal and civil, but it was left to their discretion whether they would first visit New England or reduce the Dutch to submission. Having carried out the latter project it became necessary at once to organize the captured territory. The greater part of Long Island was already occupied by settlers from New England and, having obtained copies of the laws of Massachusetts and New Haven, Nicolls with the assistance of the secretary

Governor

1 V Pennsylvania Archives (2d Series), 501, 507. 2 Broadhead's History of New York, Vol. II, 66. Nicolls writes to Clarendon April 7, 1666: "My Lord, I have remitted for confirmation to his Royal Highness the present Lawes of this Colony collected out of the Lawes of the other Colonyes, onely with such alterations as may revive the memory of old England amongst us, ffor Democracy hath taken so deepe a roote in these parts, that ye very name of a Justice of the Peace is an abomination." New York Historical Society Collections, 1869, p. 75.