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The University of the State of New York
New York State Library
History Bulletin 10
EARLY RECORDS
OF THE CITY AND COUNTY OF ALBANY AND COLONY OF RENSSELAERSWYCK
Volume 3
(Notarial Papers I and 2, 1660-1696)
TRANSLATED FROM THE ORIGINAL DUTCH
BY JONATHAN PEARSON
LATE PROFESSOR OF NATURAL PHILOSOPHY IN UNION COLLEGE
REVISED AND EDITED BY A. J. F. VAN LAER Archivist, Division of Archives and Ilistory
ALBANY THE UNIVERSITY OF THE STATE OF NEW YORK 1918
THE UNIVERSITY OF THE STATE OF NEW YORK
Regents of the University With years when terms expire
1926 PLINY T. SEXTON LL,B. LL.D. Chancellor. Palmyra 1927 ALBERT VANDER VEER M.D. M.A. Ph.D. L.L.D
Vice Chancellor Albany
1922 CHESTER S. LORD M.A. LL.D. Brooklyn
1930 WILLIAM NOTTINGHAM MI.A. Ph.D. LL.D. . Syracuse
1921 FRANCIS M. CARPENTER. Mount Kisco
1923 ABRAM 1. ELKUS LL.B. D.C.L. LL.D. New York
1924 ADELBERT MOOT LL. D Buffalo
1925 CHARLES B. ALEXANDER M.A. L.L.B. LL.D. Litt.D. . . Tuxedo
1919 JOHN MOORE LL. D. Elmira
1928 WALTER GUEST KELLOGG B.A. LL.D. Ogdensburg
1920 JAMES BYRNE B.A. LL.B. LL.D. New York
1929 HERBERT L. BRIDGMAN M.A Brooklyn
President of the University andCon.miss.oner of Educal.on JOHN II. FINLEY M.A LL.D.L.H.D
Deputy Commissioner and Assistant Commissioner for Elementary Education THOMAS E. FINEGAN M.A. Pd.D. LL.D.
Assistant Commissioner and Director of Professional Education AUGUSTUS S. DOWNING M.A. L. H.D. LL.D
Assistant Commissioner for Secondary Education CHARLES F. WHEELOCK B.S. L.L. D.
Director of State Library JAMES I. WYER, JR, MI.L.S.
Director of Science and State Museum JOUN MI. CLARKE D.Sc. LL.D.
Chiefs and Directors of Divisions Administration, HIRAM C. CASE
Agricultural and Industrial Education, LEWIS A. WILSON Archives and History, JAMES SULLIVAN, M.A. Ph.D. Attendance, JAMES D. SULLIVAN
Educational Extension, WILLIAM R. WATSON B.S.
Examinations and Inspections, GEORGE M. WILEY M.A. Law, FRANK B. GILBERT B. A .. Counsel
Library School, FRANK K. WALTER M. A. M.I.S.
School Buildings and Grounds, FRANK H. WOOD M .. 1.
School Libraries, SHERMAN WILLIAMS Pd.D.
Visual Instruction, ALFRED W. ABRAMS Ph. B.
n. of :3. OCT 2 1919
PREFACE
The two volumes of Notarial Papers in the Albany county clerk's office which are published herewith belong to a class of records of which, considering the number of Dutch notaries who are known to have practised their profession in this State, comparatively little has been preserved. Corresponding in character to the well-known registers of notaries Salomon La Chair and Walewyn van der Veen in New York City,1 these Notarial Papers consist of the originals, or "minutes," of a variety of legal instruments, such as bonds, powers of attorney, contracts and bills of sale, indentures of service, assignments, leases, wills, marriage settlements and inventories of estates, which were executed before notaries Dirck van Schelluyne, Adriaen Jansen van Ilpendam and Jan Juriaensen Becker. Of the first of these notaries, Dirck van Schelluyne, who practised his pro- fession at Beverwyck from his arrival as secretary of the colony of Rensselaerswyck in 1660 till his appointment as secretary of Albany in 1665, and again after the expiration of his term of office in 1668, there are four distinct registers, or "protocols," which together cover the period from August 17, 1660, to December 4, 1664. Of Adriaen van Ilpendam, who was apparently first admitted as a notary in 1669 and who exercised his functions till his death in 1686, there is a practically complete record extending from July 12, 1669, to February 23, 1686, while of the third notary, Jan Becker, who was appointed on November 1, 1669, and who died shortly before November 25, 1698, there are a few isolated docu- ments ranging in date from April 2, 1685, to July 23, 1690. In addi- tion to these records, there are copies of seven private letters of van Ilpendam and a few miscellaneous papers varying in date from February 25,
March 7, 1667, to November 1, 1696, which, strictly speaking.
do not belong in the volumes. Leaving these last mentioned papers out of account, the Notarial Papers embrace a period of thirty years, during which the province changed from Dutch to Eng- lish, from English to Dutch and again from Dutch to English control. During all these years, and notwithstanding the repeated
1 These registers run from January 20, 1661, to October II, 1662, and from May 20, 1662, to June 1664, and are published in calendar form in Holland Society of New York, Year Book. 1900, 13: 129-58. A full translation of the register of Walewyn van der Veen is printed in Minutes of the Orphan Masters, edited by Berthold Fernow, N. Y. 1907, 2:15-72.
[3]
EARLY RECORDS OF ALBANY
changes of administration, each of which was accompanied by a corresponding change in system of jurisprudence, from the civil to the common law and vice versa, the records continued to be written in Dutch and to be kept in the customary form based on the prin- ciples of the Roman law, the original instruments themselves remaining in the custody of the notaries as the authentic record of the transactions that had taken place. While this is but natural in view of the nationality and training of the notaries and their appointment or confirmation in office by the early English governors, it is nevertheless an interesting sign of the lenient policy of these governors toward the Dutch inhabitants that their system of record- ing legal instruments which differed so radically from the English method was allowed to prevail till far into the period of English colonial administration. To show clearly what the particular features of the Dutch notarial system were, it is necessary to trace briefly the origin and development of that system before its intro- duction into this State.
According to the introductory chapter of Brooke's Treatise on the Office and Practice of a Notary of England. it is generally admitted that the office of a notary has its origin in the civil institut- tions of ancient Rome. Being at first used in the general sense of a writer of notae, or marks of abbreviation, in other words, a short- hand writer, the word notarius in course of time was applied almost exclusively to registrars of the provincial and municipal courts, to the private secretaries of the emperors and to certain officials assigned to the imperial chancery or privy council. Besides acting as clerks and advisers to the various magistrates and recording their judgments and decrees, Roman registrars were officially connected with what was known as the voluntary or noncontentious jurisdic- ton of the courts. In this capacity they were employed in drafting deeds, contracts and other legal documents, which were afterwards sealed in the presence of the magistrate with the official seal of the court. Private documents, however, were as a rule prepared and attested by tabelliones, who were simply professional scribes and held no public office. Their functions were regulated by law and included the preparation of important documents, such as contracts. wills, pleadings and petitions to the court. From these professional scribes several of the functions of the modern notary are derived. The act of a tabellio were styled instrumenta publice confecta and commanded a degree of credit and authenticity that was not accorded to instrumenta privata, or documents executed by private individuals without the intervention of a tabellio. They were not.
5
NOTARIAL PAPERS I AND 2, 1660-1696
however, in Roman law accorded the full credit and authenticity that attached to an official or judicial record. They did not prove themselves and in case of need, the tabellio or, in the event of his death, the attesting witnesses were called to authenticate the par- ticular act. To avoid this inconvenience and enable the documents to be put in evidence beyond dispute, it was necessary that they should be registered and deposited in the public archives and thus become instrumenta publica in the proper sense of the term.
The office of notary or tabellio (for the terms soon became synonymous) did not become extinct with the downfall of the Western Empire. The Teutonic counts, who in the stead of the former Roman governors administered the districts into which the empire had been divided, found it convenient to retain many of the laws and institutions of ancient Rome and consequently appointed registrars to prepare and engross deeds and other legal documents. These registrars were known as notaries of the count. A similar class of officials was attached to the king's court over which the count palatine presided and who hence were termed palatine notaries, while after the year 803 there existed yet a third class of notaries, known as royal notaries, who were appointed by the itinerant justices or royal commissioners who at different places held assizes four times a year. In the beginning of the tenth century the royal and palatine notaries became registrars with a fixed residence and were employed in recording judicial proceedings and private deeds. Soon their number greatly exceeded that of the notaries of the count and in the eleventh century all distinction between the three classes of notaries disappeared and the office of notary acquired a uniform character. Still later the right to appoint notaries, hitherto enjoyed by the count palatine, was extended by the emperors of Germany to other high officers and municipal authorities and corporate bodies and notaries were thenceforth styled imperial and palatine notaries. During the twelfth century notaries began to assume the character and importance which with slight changes they have retained on the continent of Europe to the present day. The first step taken by them in this direction was to describe their instruments as publica and to claim for them the complete authenticity that Roman law attached only to documents bearing an official seal. This innovation gradually prevailed. Another step in the same direction was the attempt on the part of the notaries to obtain for their deeds the second " essential element of authenticity " as it is understood on the continent of Europe, namely the executory force, which until then resulted from judgments only. This point
6
EARLY RECORDS OF ALBANY
was gamed in the thirteenth century and from that time an acknowl- edgment or contract embodied in an instrument authenticated by a notary has been on the continent judicially enforced like a judgment. although no action is brought.
In consequence of these innovations notaries in course of time ceased to be dependent on judicial authorities. Gradually and almost imperceptibly the law relating to notarial instruments became so complicated and technical that magistrates of the local courts who in many cases had no legal training, avoided taking part in lega? work of a nonlitigions character and left this to the notaries. 1s a result thereof the number of notaries rapidly increased, many entered the profession who were not qualified for the work and grave abuses ensued. To remedy this situation Emperor Charles the Fith, on March 21. 1524, at Mechlin, issued an ordinance 1 which restricted the number of notaries in the county of Holand to as many as would be deemed necessary by the burgomasters and schepens of each place and be presented by them for examination by the Court of Holland, and at the same time forbade the courts to take judicial cognizance of any documents executed before notaries other than those who had been so examined, sworn and registered. This ordinance was followed on October 7. 1531, by the further decree = " that henceforth no one shall be admitted to the aforesaid office fof notary or labellio] but persons of good char- acter and reputte, who upon examination by the president and men- bers of our council and the judges of the provincial court in each province shall be found to be qualified. competent and sufficiently trained." The real foundation, however, for the regulation of the notarial practice in the Netherlands was laid by the Perpetual Edict granted by Emperor Charles the Fifth at Brussels on October 4. 1510." article XIII of which provides: " That all notaries admitted and approved shall be held to keep a proper register or protocol of all contracts, wills and other acts which shall be attested and received by them and to record the same in the order in which they are attested and received and at the end of each contract, will or other act to sign the aforesaid register and to carefully preserve the same, in order to resort thereto in case of need; on pain of being deprived of the aforesaid office and forever debarred from exercising the same and in addition subjected to arbitrary punish ment." These and other provisions of the Perpetual Edict, which
1 Girnot Placaet Boeck, 2:1381 84.
2 Groot Placaet Boeck, 2:1387.
3 Groot Placaet Boeck, 1.311 22.
NOTARIAL PAPERS 1 AND 2, 1660-1696
brought unity in the Dutch notarial system, were afterwards supple- mented by ordinances of the provincial legislatures, with the excep- tion, however, of those of the territory now covered by the provinces of Groningen, Drenthe, Overysel and Gelderland, where till the closing days of the Dutch republic the notarial system remained unknown. Under these ordinances and the principles derived from the Roman corpus juris, the office of notary became one of great importance and responsibility. Whereas in countries where the common law prevails the functions of a notary public are chiefly confined to administering oaths and taking acknowledgments of deeds and other instruments, noting and protesting bills of exchange and drawing up ship protests and other similar documents, the services of a Dutch notary public in the seventeenth century, as of the corresponding officer on the continent of Europe at the present day, may be likened to those of a family attorney and were required in connection with the drawing up of all formal legal contracts, except in so far as the acknowledgment of such contracts was also permitted or specially reserved to the secretaries and schepens of the local courts. To the latter class belonged the formal transfers and mortgages of real estate and documents involving the adminis- tration of an oath, which did not come within the province of the notarial office. Aside from such documents, practically all legal papers, including contracts of sale of real estate and depositions in the form of affirmations, which might afterwards be sworn to before the proper officer,1 not only could, but had to be executed before a notary and two trustworthy witnesses, the latter to be males over 24 years of age. By law the notary was required to keep the orig- inals of such documents, properly signed by the parties and witnesses and by himself. When thus executed. the originals, as well as the so-called " grosses," or first copies issued to the respective parties, were by all courts held as authentic, that is, they proved themselves and against the truth of their contents no testimony was admitted. This character of authenticity, which guarantees the date as well as the genuineness of the signatures of the documents, is considered to be the chief advantage of the notarial system.
Another important feature in which the system differs from any- thing known to English law is the confidential character of the records, which forbade the notary from letting any one have access to his records or to issue copies thereof or extracts therefrom to
1 Hence the phrase which commonly occurs in the Dutch depositions : "the deponent being ready, if need be and when required, to confirm the same by solemn oath.'
8
EARLY RECORDS OF ALBANY
any but the interested parties. A striking reference to this con tidential character occurs in an ordinance of the states of Holland and West Friesland, dated April 22, 1670, which provides for the transfer of notarial records to the office of the secretary of the place within six weeks after the death of a notary, stating as the reasons for this order that complaints had been received that after the death of some notaries the protocols and minutes were scattered and lost. " whereby frequently not only the truth becomes hidden, but also what ought to remain secret is untimely revealed, while in all cases persons who are interested in the papers that have been carried off are put to great expense and trouble to recover the said papers." Whatever may be the advantage of the element of secrecy, the liability of loss of the notarial records, hinted at in this ordinance and also illustrated by the incompleteness of the present records, may be regarded as one of the disadvantages of the notarial system. while the expense involved in the necessary employment of a highly trained and consequently high-priced notary public constitutes another drawback of the system.
It can be readily seen that legal papers of such confidential nature must be of great importance for the history of social conditions at a given period. Better than any other historical material they inform us about the home surroundings, daily occupations, customs and intimate business and family relations of all classes of society and it is not to be wondered at that with the present tendency to turn from the study of the outward movements of peoples to that of the effect of the community upon the life of the individual, these ancient notarial records have become objects of particular interest. On the continent of Europe. where these records form the bulk of the local archives and are numbered by the thousand.1 various efforts have been made in recent years to overcome the ancient prejudice against giving the public access to their contents. Notally in Holland, where the researches of Dr Bredius and a few other privileged persons have yielded such a rich harvest of facts relating to the history of art, the notarial records prior to 1811 have by royal decree of August 23. 1907, no. 237, been thrown open to the public and now form one of the most promising fields of exploration for the particulars of many transactions which affect the early history of this State.
1 At the Hague alone, according to the list of Notaricele protocollen van 150; tot 1811, opgenomen in het archiefdepot der gemeente 's-Gravenhage: compiled by H. E. van Gelder, civ archivist, 's Gravenhage 1011, the local notarial records before 1811 consist of no less than 5300 volumes.
9
NOTARIAL PAPERS I AND 2, 1660-1696
To turn now from the notarial system as it existed in the Nether- lands to the introduction of the practice into this State, it is to be noted in the first place that in spite of the early origin of the system in the mother country, no notary public existed in New Netherland till 1650. Even then, his arrival appears to have been part of a movement of the people of New Amsterdam to free themselves from the despotic control of the director general, rather than the result of any distinct plan on the part of the West India Company. In fact, the appointment of this first notary, Dirck van Schelluyne, who happens to be also the first of the notaries who afterwards practised at Albany, was so intimately connected with the popular movement against Director Peter Stuyvesant and so strongly resented both by this director and by the company, that there can be no doubt that he was engaged by the leaders of the opposition because the latter, in connection with the preparation of evidence to be submitted to the States General, found it necessary to have at their service an officer of the law who, unlike the provincial secretary, was inde- pendent of the director as well as of the company. Having been employed on October 13, 1649, at the Hague, in the capacity of a notary public, to attest a copy of the famous historic document known as the Remonstrance of New Netherland, which on that date was presented to the States General by certain delegates of the commonalty of New Netherland in support of a petition for redress of their grievances against Director Stuyvesant, Van Schelluyne was on the 8th of April following commissioned by the States Gen- eral " to exercise the aforesaid profession of Notary at the above- named Manhatans and further throughout the whole of New Neth- erland." Soon after he sailed with Jacob van Couwenhoven and Jan Evertsen Bout, two of the delegates, on the ship " New Nether- land Fortune " for New Amsterdam, where he arrived on June 28. 1650, and immediately, as secretary of the board of select men, took an active part in the opposition to the director. As a result of these activities, he soon became an object of persecution by Stuyvesant, who in 1651, in spite of the resolution of the States General that Van Schelluyne was to exercise his office " without opposition or contradiction of the director or any others, for the benefit of the commonalty there," arbitrarily forbade him to practise his profes- sion. Van Schelluyne bitterly complained of this in a letter of October 11, 1651, to Adriaen van der Donck, then at the Hague, saying: "If the Redress be not confirmed, and if it do not arrive by the first vessels, I shall be obliged to sell my little property and go
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EARLY RECORDS OF ALBANY
back with my wife and children. Otherwise I must waste it alto- gether in poverty, inasmuch as every effort is made use of here to ruin me and to take the bread out of my mouth. I should have sent the papers in the case of Melyn altogether, but as nobody would consent to collate them with me, not even Allard Anthony, notwith- standing I had requested him to do so, and I dare not trust the documents in my house through fear that Stuyvesant would remove all my papers as he proposed and threatened. it was therefore out of my power to send them over. Had he been willing to permit me to go, I should have carried them with me. I doubt not but such unheard of mode of proceeding will be taken into consideration. and we released at once from this dreadful yoke. I have had every intention to build on a lot that I had purchased from Mr. Dincklage : also, to undertake a bouwerie, but dare not commence so long as things continue thus, dreading and anticipating the moment I had any real estate here, that a false suit would be thrown around my neck and my property be swallowed up : according to all the exam- ples I have seen of those who do not submit to haughty humor, and can not say Yes, My Lord. Had I been able to go over. I should] indeed say, what now 1 dare not write."1 This letter and others written by Van Schelluyne about the same time reveal the temper of the man and show him to have been the worthy supporter of Cornelis Melyn and Adriaen van der Donck in the struggle for popular government in New Netherland.
That Director Stuyvesant in his action against Schelluyne had the full support of the directors of the West India Company, is shown by a representation made by them on February 13. 1652. 10 the burgomasters of Amsterdam, in which they complained that ". committee of their Iligh : Might : have last year provided with safe- guards all the indecent complainants, who came here from New Netherland, and relying thereon they now, on their return here. believe themselves authorized to commit all kinds of disorders by instigating evil-minded persons against the Director and the Com- pany's officers." They stated furthermore that " The honorable committee of their High: Might : have sent without knowledge of the Directors as Notary Public to New Netherland one Dirck van Schelluyn, who there calls himself authorized by their High : Might : and as such a movement is directly against the orders of the Com- pany, the Directors feel themselves much aggrieved by it." In their reply, the burgomasters gave it as their opinion that " no deputy of
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