Liberty attached to the land...

The East Hampton Patent of 1686

By Bob Ficalora,
Montauk, rev. 10/22/98

Introduction

Liberty, a free and democratic government. As Americans we claim this as our birthright, it is what keeps us free as a people in a world in which tyranny has not yet been vanquished. America's sons have died in battle to protect these rights for us and in the hope of bringing them to others. We should know the origins and nature of our liberties, for it was in East Hampton that the first legal demand for democratic American government was made.

The story begins with the original settlement of New England. The settlement program of the English involved the introduction of English private property law to the Americas by land patent, grant or charter from the King. These legal documents established ownership of the land and in many cases corporations to administer them. These "proprietaries" were given - and established - broad legal dominion over the lands conveyed. Any reservations upon the use and/or administration of the land were contained within the chartering or granting document.

Although in most cases the claim to the right of ownership of real property under these documents was through the King, there was at least one notable exception. East Hampton, and the colony of Connecticut of which it was a part, did not make its claim to ownership or powers of governance through the King. The colony of Connecticut and the Town of Easthampton were self constituted and claimed their ownership of the land through deeds from the Indians. Connecticut was an independent and sovereign member of the Commonwealth of England and made full use of this liberty in establishing the first democratically constituted government. (This is why Connecticut is the "Constitution State.")

What you will find below is the story of the struggle by the men of East Hampton to retain their liberties while their Dutch neighbors were fitfully overcome by Great Britain and jurisdiction was claimed by James the Duke of York and Albany subsequent to the restoration of King Charles II in 1660. Upon receipt of his charter of 1664, the Duke of York made claims to that part of Long Island (now Suffolk county) which was then claimed by the independent colony of Connecticut. This history gives meaning to the Nicholls and Dongan Patents which confirmed the settlers' ownership of the land, affirmed their jurisdictions, and guaranteed fundamental liberties to the owners and inhabitants of East Hampton forever.

The Colony of Connecticut

The existence of the colony of Connecticut began with the Massachusetts Bay Company being established by a royal charter on March 14th, 1629. The Bay Company was made up almost exclusively of Puritan men anxious to flee the religious persecution which they suffered in England. In 1628 the Puritan men of Parliament (which included young Oliver Cromwell) had delivered the Petition of Right to King Charles I which demanded certain fundamental civil liberties and the guarantee that taxation would be by representation only. The King at first assented but then, in 1629, dissolved Parliament and refused the Petition. The charter specified no location for its annual meeting and the settlers quickly transferred the company to New England and transformed it into a self-governing commonwealth.

In 1636, following unrest in the Massachusetts Bay Colony due to inadequate pasturage, a group of settlers headed by John Winthrop the Younger settled at the mouth of the Connecticut River. Winthrop, the son of the Bay Colony's governor, was accepted as governor of the new Colony, and the Massachusetts General Court (assembly) laid down a plan of government which placed final authority in the hands of the "inhabitants."

It is important to understand that the Colony of Connecticut was established without a patent, grant or charter from the King. The land was purchased directly from the Indians (a contractual practice which the settlers adhered to). Connecticut was an independent colony, beholden only to the laws of God, nature, and those of its own making.

It was in this setting of absolute liberty that the settlers of the Colony of Connecticut drafted, adopted and put into operation the Fundamental Orders of Connecticut the first written constitution of democratic government in America. (This is why Connecticut is called the "Constitution State.") The Fundamental Orders self-constituted an independent and sovereign nation with a fully functioning democratic assembly. Under this document the Colony of Connecticut was established as a confederation of Townships (at first Hartford, Windsor, and Wethersfield), and utilized a process of regular assemblies and elections. Mindful of the tyranny from which they had fled, it was designed to protect the democratic liberties of the inhabitants. The absolute sovereignty of the Colony is reflected in the fact that the King is not mentioned within the Fundamental Orders.

In 1642 the English Civil War broke out with full fury between the Puritan men of Parliament and King Charles I. The war was to continue until the King was to be executed for high treason in January, 1649. England was then governed without a King until the Restoration in 1660. It was during this period that the Commonwealth of England was established and the roots of much of our system of English law were established. During most of this period England was governed as a protectorate under Oliver Cromwell.

In 1648 the governors of the Colonies of Connecticut and New Haven together purchased East Hampton up to the Montauk line (at Napeague) from the Montauk tribe of Indians. In 1650, Connecticut entered into a treaty with the Dutch colony of New Amsterdam dividing Long Island. A north-south line was drawn at Oyster Bay establishing Connecticut's independent claim of jurisdiction to the lands of the eastern half of Long Island (East Riding, now Suffolk). This was the first international boundary in America.

In 1654 the settlers of the 1648 purchase lands (East Hampton) studied the Fundamental Orders and passed a resolve to "associate and conjoin ourselves to be one Town or Corporation." This resolve established the Town of East Hampton. Three years later, in 1657, the Town of East Hampton joined the confederated townships of the Colony of Connecticut. Southampton had already joined.

The Fundamental Orders set forth an activist and highly participatory model of government. The settlers were almost without exception very involved in the process of government (sometimes laws were passed to compel participation!). They well understood the liberties which they possessed.

When the restoration of 1660 threatened the independent existence of the Colony of Connecticut, John Winthrop, Jr., the Governor of Connecticut since 1657, obtained a royal charter (May 3rd, 1662). This charter altered fundamentally the governance of Connecticut by mandating the repeal of the law requiring approval by the towns of laws of the General Court (enacted March 1664). The democratic link between the bodies politic of the people assembled and the regional head which was to oversee their laws had been severed.

The Importance of East Hampton

In 1664 the Dutch ceded their colony of New Amsterdam (NYC, NYS up to Albany, and western Long Island) to the English. A charter was issued by the newly crowned King Charles II to his brother, the Duke of York for the Dutch lands. Based upon this charter, the Duke claimed all of Long Island as included in his grant and under his jurisdiction. Southhampton and East Hampton protested the arbitrary rule of the Duke and petitioned to continue under the government and jurisdiction of Connecticut. They showed their claim of ownership of the land and demonstrated their orderly governance of it. They made known to the Duke their determination not to pay taxes to him.

In 1666, in the midst of the second Anglo-Dutch war, Col. Richard Nicholls, governor of the colony of New York, issued the "Nicolls' Patent" to the settlers of Southampton and East Hampton confirming their ownership of the lands through deeds from the sovereign Indians and recognizing their township governments. Promises were made at the conveyance of this patent that the freedoms and liberties to which they were accustomed would be respected. The second Anglo Dutch War ended with the Peace of Breda in July of 1667.

In March of 1672 the Dutch attacked New York and quickly reoccupied their historic territory. Only the five towns of the East Riding (Suffolk County) were not occupied. The East Riding again asserted that it was a part of the Colony of Connecticut. When the Treaty of Westminister in February of 1674 restored the Dutch lands to England and the Duke of York, his new governor Sir Edmund Andros acted quickly to reestablish the Duke's Laws. He reappointed the previously ousted English officials, confirmed previous land grants, and secured the submission of the East Riding which claimed to be under Connecticut's jurisdiction.

The democratic liberty enjoyed by these Puritan men was not easily given up by them, however, and popular demands for an assembly were made by them. In January of 1676 the Duke of York indicated his opposition to a popular assembly on the ground that such a body would "prove destructive ... to the peace of the government."

At the General Training of the militia in 1682, the men of East Hampton issued a grievance and petition for the right to government by a general and free assembly of their representatives. The comparison between this assertion of fundamental democratic liberties and the Declaration of Independence ninety-four years later is interesting. The Puritan settlers were not demanding independence from England. They knew that the Duke's charter specified that if their grievance was not satisfactorily addressed they could bring the matter to the King. They sought a Royal guarantee of the liberties which they had come to know and cherish for themselves and their posterity.

On August 28, 1683, a new Governor was delivered by the Duke of York to his American Colony, a Catholic Irishman named Thomas Dongan, the Earl of Limerick. Pursuant to instructions from the Duke he called a general assembly of delegates from assemblies across the Duke's vast charter.

The assembly was convened on October 17th, 1683, at Fort James (by New York City). This was the first convening of what is today the State Assembly of the State of New York. Although calls and protests had been previously made for an assembly by other parts of Long Island, most notably by John Young of Southold, they had all been ignored or denied by the Duke. The Court of Assize had also made a recommedation that an assembly be convened which was being ignored. East Hampton must be given the credit for delivering the effective moving papers to the Duke which established the assembly. East Hampton is responsible for establishing the State Assembly of New York.

The first Assembly did not waste its opportunity. On October 30th, 1683 it enacted New York's first Constitution of democratic government. the Charter of Liberties and Priviledges. Note that this document drew upon the Petition of Right and the Magna Charta for its tenets. This Constitution has been substantially continued to this day as the Constitution of the State of New York.

This charter was first approved by the Duke but after his accession to the throne as James II (6 Feb. 1685) he disallowed the legislation of the assembly (29 May 1686). He then expressly empowered the Royal Governor to exercise full legislative as well as executive power in conjunction with the council. The assembly was dissolved (Jan. 1687), never to meet again.

The foregoing events set the stage for further rebellion in the East Riding, particularly East Hampton. At the first convening of the Duke's new autocratic corporate government, on December 9th, 1686, Thomas Dongan issued a second patent over the lands at East Hampton (known as the "Dongan Patent" or "Town Patent") which confirmed the Nicolls patent, established the Trustees of the freeholders and commonalty of the town of East Hampton as a municipal corporation, and at its conclusion states that:

"Wherefore by virtue of the power and authority aforesaid, I do will and command, for and on behalfe of his said Majesty, his heirs and successors, that the aforesaid Trustees of the freeholders and commonalty of the town of East-Hampton and their successors, have, hold, use and enjoy, and that they shall and may forever have, and they shall hold use and enjoy, all the libertyes, authorityes, customes, orders, ordinances, franchizes, acquittances, lands, tenements and hereditaments, goods and chattels aforesaid, according to the tennure and effect of these presents, without the let or hindrance of any person or persons whatsoever."

The Kings and their courts were fairly consistent in the administering of their courts. King James II had done for the men of East Hampton that which had been done for the men of the Massachusetts Bay colony subsequent to the denial of the Petition of Right: he had released significant powers of sovereign dominion over land. In both cases the release was received through a contract and incorporation which is attached to and runs with the land. These contracts confer extraordinary home-rule powers to govern upon these municipalities.

The events in England continued apace, with the men in England outraged by the King's impositions. In 1688 the Glorious Revolution to the dethroning of King James II. In 1689 an assembly enacted the English Bill of Rights which ended forever the devine right of Kings. The Glorious Revolution and the enactment of the English Bill of Rights brought the supremacy of Parliament. The events in East Hampton and New York must be considered among the most important in the history of western civilization.

Later, during the American Revolution, the protection of the charters and the form of government which had been obtained by this history were central to the Declaration of Independence.

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