ject was included in the Constitution of 1777, but was not in the original draft of that instrument as presented to the Convention. In the chapter on the work of the first Convention it appears that, while the Constitution was under consideration, John Jay presented a section relating to Indian land, which, with some modifications, became § 37 of the Constitution of 1777, and the basis of the present provision. The subsequent acquisition of nearly all the land then held by the Indians has rendered this provision almost obsolete; but until the Indian title to the remaining reservations shall be extinguished by allotment or otherwise, the restriction imposed by the section will possess all its original force, though in a reduced and diminishing degree. Following the custom of stating in a preamble the reasons for constitutional or legislative action, Mr. Jay prefixed to his proposed section a statement reciting that "the right of preëmption to all Indian lands within this state appertains to the good people thereof," that "it is of great importance to the safety of this state that peace and amity with the Indians within the same be at all times supported and maintained," and that "the frauds too often practised towards the said Indians in contracts for their lands have, in divers instances, been productive of dangerous discontents and animosities." In disposing of this section the Convention omitted the first clause in the preamble, which asserted the right of preemption to Indian lands by the people of the state, but retained the remainder. The section incorporated in the Constitution the policy regarding Indian land which had prevailed scarcely without interruption during the entire colonial period, and the importance of the original provision is manifest from the fact that when the first Constitution was adopted the Indians were in possession and control of a large part of the state.

Dutch policy. The Dutch adopted at the beginning the policy of purchasing Indian lands. Thus, Peter Schagen, in a letter to the States General, dated November 5, 1626, says that the colonists had purchased Manhattan Island for sixty guilders ($24). This policy was expressed in the first "Freedoms and Exemptions," 1629, in the provision that whosoever shall settle elsewhere than on Manhattan Island, which had already been purchased, "shall be obliged to satisfy the Indians for the land they shall settle upon." The patent to Kiliaen Van Rensselaer, bearing date August 13, 1630, of the tract afterwards embracing the county of Rensselaer and parts of the counties of Albany and Columbia, recited the purchase thereof from certain Indians. In the preliminary article on agricultural leases in the chapter on the Convention of 1846 I have given a sketch of the history of the Manor of Rensselaerwyck, and the influence of the land policy there established in producing the constitutional provision limiting such leases to twelve years. The requirement in the first Freedoms and Exemptions that land must be purchased from the Indians was repeated in the Freedoms and Exemptions of 1650, in the provision that the settlers must satisfy the natives for the soil.

The Dutch expressly recognized the Indian title, and sought to extinguish it by treaty or purchase. The Assembly of XIX., in a communication to the States General, under date of October 25, 1634, say that the Dutch West India Company purchased Manhattan Island of the Indians, "who were the indubitable owners thereof," and "there laid the foundation of a city," and also established colonies elsewhere, "for which purpose were also purchased from the chiefs of the Indians the lands and the soil, with their respective attributes and jurisdictions."

The feudal system, established in a modified form by

the Freedoms and Exemptions, was inconsistent with the general right of the people to become independent landowners. We are therefore not surprised to find that, in a new project of Freedoms and Exemptions, proposed in October, 1634, but which was not approved by the States General, it was declared that "all private and poor people are excluded from these Exemptions, Privileges and Freedoms, and are not allowed to purchase any lands or grounds from the sachems or Indians in New Netherland, but must repair under the jurisdiction of the respective Lords Patroons."

The history of that period shows that there was an active and protracted controversy between the Dutch and English as to the title to certain parts of Long Island and Connecticut, but this controversy, especially in its national aspects, was terminated by the English conquest in 1664.

English policy.-The English government at this period apparently entertained different views of the obligation to purchase Indian land, for we find that, in an answer to a remonstrance concerning colonial affairs, presented by the Dutch ambassador to Charles I. in 1632, in which it was claimed that the English had usurped a certain plantation in the north parts of Virginia, which had been bought by the Dutch of the natives, it was denied that the Indians were in bona fide possession of the lands "so as to be able to dispose of them either by sale or donation, their residence being unsettled and uncertain, and being in common," and that it could not be proved that all the natives had joined in the pretended sale. If this was intended as a statement of English policy, it was soon modified, for in subsequent colonial history the English as well as the Dutch did, at least nominally, purchase of the Indians land which was occupied and settled in the course of colonization.

The policy of a central control of Indian affairs, which included a prohibition against purchasing Indian lands without the consent of the government, and which policy has been expressed in all our Constitutions, was asserted in the Dutch Freedoms and Exemptions and continued under the English colonial administration; accordingly, we find that the governor and council exercised jurisdiction over this subject, and granted or refused, in their discretion, petitions for leave to purchase Indian lands. I have elsewhere given a history of the establishment of the New York assembly in 1683. At its second session in October, 1684, the assembly enacted a law which stated in substance the rule in relation to Indian contracts, which was incorporated ninety-three years afterwards in the first Constitution. This act provided "that from henceforward no purchase of lands from the Indians shall be esteemed a good title without leave first had and obtained from the governor, signified by a warrant under his hand and seal, and satisfaction for the said purchase acknowledged by the Indians from whom the purchase was made;" and the deed, with proof of payment, was required to be recorded in the office of the secretary of the colony.

The English policy of purchasing lands from the Indians, to which I have already referred, was formally adopted by the Duke of York, for many years proprietor of the colony. In his instructions to Governor Andros, in 1674, he observed that if opportunities are presented for purchasing "great tracts of land," the Governor and council should use their discretion and make such purchases as might be deemed for his interest. So, in the Duke's instructions to Governor Dongan in January, 1683, the Governor was requested to purchase from the Indians, on reasonable terms, land contiguous to the Duke's territory. Instructions to subsequent governors

embrace substantially the same directions, and their reports show the purchase of large tracts which were added to the colonial possessions.

Treaty of 1701.—On the 19th of July, 1701, a conference was held at Albany between Lieutenant Governor John Nanfan and representatives of the Five Nations (Mohawks, Oneidas, Onondagas, Cayugas, and Senecas), at which time an agreement was made with the Indians concerning a large tract of land. The Lieutenant Governor, in his report on the 20th of August, said he had procured from the Five Nations an instrument whereby they convey to the Crown of England "a tract of land 800 miles long and 400 miles broad, including all their beaver hunting." But this transaction, by which the Crown apparently acquired 320,000 square miles of territory,-a tract some six times larger than the state of New York,-does not seem to have been deemed a cession and relinquishment of territory, but, at most, an arrangement by which the English government acquired a general dominion and assumed the defense and protection of the Five Nations. I have not seen a copy of the instrument referred to by Lieutenant Governor Nanfan, and from Wraxall's Indian Records (unpublished), containing an abridgment of the transactions relating to Indian affairs, it seems that the deed was not recorded in the original transactions, which are now said to be lost. Wraxall's Abridgment quotes from the original transactions a proposition made by a representative of the Five Nations, and which was apparently accepted, that "we do give and render up all that land where the beaver hunting (is) which they won by the sword then eighty years ago, and pray that he, the King, may be our Protector and Defender," and they offered to sign and seal an instrument to be prepared for that purpose. The arrangement was apparently not completed, or, at least, it seems to have re