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HISTORICAL SKETCH
OF THE
JUDICIAL TRIBUNALS
OF
NEW YORK,
FROM
1623 To 1846.
BY CHARLES P. DALY, ONE OF THE JUDGES OF THE NEW YORK COMMON PLEAS.
OF
CALIFOR
New Dork : JOHN W. AMERMAN, PRINTER, No. 60 WILLIAM-STREET. - 1855.
JK 3481 ·12
35627
-
UNIVERSITY
CALIFO
HISTORY
OF THE
COURT OF COMMON PLEAS
FOR THE
CITY AND COUNTY OF NEW YORK,
WITH AN ACCOUNT OF
THE JUDICIAL ORGANIZATION OF THE STATE
AND OF ITS TRIBUNALS,
FROM THE TIME OF ITS SETTLEMENT BY THE DUTCH, IN 1623, UNTIL THE ADOPTION OF THE STATE CONSTITUTION OF 1846.
-
THE following sketch was written and has recently been published as an introduc- tion to the first volume of the Reports of the New York Court of Common Pleas, by E. DELAFIELD SMITH, Esq. (1 E. D. Smith, xvii.) The court being the oldest judi- cial tribunal in this state, it became necessary, in preparing an account of it, to make a thorough investigation of the judicial history of the state, from its settlement to the present period. As it was essential, in such an investigation, to consult not only a number of works, historical, biographical, and otherwise, but to go into a very labo- rious examination of manuscript records and early colonial documents, it was felt that the information obtained should at least be preserved; and though it was not originally the intention of the writer to do anything more than to furnish, at the request of the reporter, a history of the court of common pleas, he finally con- cluded to connect with it an account of the judicial tribunals of the state from the time of its settlement. It was deemed the more necessary to do so, as every thing relating to the administration of justice during the early period of the colony of New York, or, as it was then called, New Netherland, has hitherto been involved in the greatest obscurity. Our first historian, Chief Justice Smith, devotes but a few pages to the period, and had little to communicate but the fact of the settle- VOL. I. B
4
HISTORY OF THE COURT AND OF THE
X
ment of the colony by the Dutch, and the particulars of its surrender to the English. The late Mr. Graham, who published, in 1834, a work on the jurisdiction of our courts, merely copied what he found in Smith, and went even so far as to assume that there was nothing remaining to show what courts existed among the Dutch, or that would shed any light upon the manner in which justice was administered by them. He appears to have relied upon the absence of any information in the pages of Smith, and to have made no investigation himself, for, on the contrary, the records of these early courts, in the Dutch language, from the first establishment of a regular and fixed judicial tribunal, until the close of the Dutch dynasty, have always remained in the city of New-York. It is nearly the same in respect to the first half century after the colony had passed into the hands of the English. All that has been known of the tribunals which then existed, is what has been furnished by Smith. But though his work was written nearly a century ago, and it might be supposed, as he was a lawyer by pro- fession, that he would have taken some pains to investigate, his account, on the con- trary, is not only very meagre, but grossly inaccurate. In respect to his own period, and for a quarter of a century before it, he was well informed; but in all that relates to a period anterior, his history is of little or no value. Since his time, no attempt has been made thoroughly to investigate the subject. Indeed, without the aid of the documentary information, obtained by Mr. Brodhead from the state offices at Lon- don and at the Hague, it would have been difficult to do so. The deposit, however, in the state department at Albany, of copies of the documents found by Mr. Brod- head, has supplied facts heretofore wanting, while the admirable arrangement and classification of the colonial manuscripts, by Dr. O'Callaghan, bas enabled an inves- tigator to get at sources of information which before were scarcely within his reach. To the latter gentleman the writer returns his acknowledgments for facilities afforded in inspecting these manuscripts, for much valuable information, and many useful hints in the course of his inquiries.
The colony of New Netherland was planted by the West India Company, a com- mercial corporation of Holland. This corporation had obtained from the states general an exclusive charter or patent, to found colonies and carry on trade, navigation and commerce upon the coast of Africa, North America and the West Indies ;1 and, for this purpose, was invested, among other things, with the most comprehensive judicial powers. It was exclusively entrusted with the administration of justice in the colonies it should establish, having the right to appoint governors, officers of justice, and all other public officers; to maintain order and police, and generally, in the language of the charter, to do all that the service of those countries might require.2 The government of this gigantic corporation was vested in five separate chambers, to one of which, the chamber of Amsterdam, was committed the management of the affairs of New Netherland, the general executive power of the whole body being entrusted to nineteen delegates, representing conjointly the separate chambers and the states general, and which was known by the appellation of the College of Nineteen. The colony of New Netherland was formally organized by May, the first director or governor appointed for it by the Amsterdam chamber, and a settlement was established at Manhattan, the present site of the city of New York, in 1623. May's
1 Brodhead, 134. O'Call. 184.
2 O'Callaghan, App. 400; Charter, art. 2.
5
JUDICIAL ORGANIZATION OF THE STATE.
administration lasted but a year, and whether during this brief period, or in that of his successor, Verhulst, whose rule was equally short, any provision was made for the administration of justice, there is now no means of determining. The number of the colonists, however, was so small, and they were so fully occupied in providing for their immediate wants, that there could be little, if any, occasion for organizing a judicial tribunal. In 1626, Minuit came out as governor. He had, to assist him, a council of five, who, with himself, were invested with all legislative, executive and judicial powers, subject to the supervision and appellate jurisdiction of the chamber at Amsterdam.1 There was also attached to this body an officer, well known in Holland by the title of the Schout Fiscal. He was a kind of attorney general, uniting with the power of a prosecuting officer the executive duties of a sheriff ; a more particular enumeration of whose duties, from the careful compilation of Dr. O'Callaghan, will be found in a note.2
To the governor, his council, and the schout fiscal, the administration of justice was left during the six years that Minuit was governor, and the four years of his successor, Van Twiller, that is, from 1626 to 1637. In what manner judicial pro- ceedings were conducted is unknown. Records were kept under Van Twiller, but they are now irretrievably lost.8 His schout fiscal, however, Lubbertus Van Din-
1 Brodhead, 162. This council had criminal jurisdiction to the extent of fine, &c.
2 He was charged specially with enforcing and maintaining the placards, ordinances, resolutions and military regulations of the high mightinesses, the states general, and protecting the rights, domains and jurisdiction of the company, and executing the orders as well in as out of court, without favor or respect to individuals; he was bound to superintend all prosecutions and suits, but could not undertake any actions on behalf of the company, except by order of the council, nor arraign nor arrest any person upon a criminal charge, unless upon information previously received, or uniess he caught him in flagrante delictu. In taking information, he was bound to note as well those points which made for the persons as those which supported the charge against him, and after trial, he was to see to the faithful and proper execution of the sentence, pronounced by the judges, who, in indictments carrying with them loss of life and property, were not to be less than five in number. He was, moreover, specially obliged to attend to the commissions arriving from the company's outposts, and to vessels arriving from or leaving for Holland, to inspect their papers, and superintend the loading and discharging of the cargoes, so that smuggling might be prevented ; and all goods introduced, except in accordance to the company's regulations, were at once to be confiscated. He was to transmit to the directors in Holland, copies of all information taken by him, as well as of all sentences pronounced by the court, and no person was to be kept long in prison, at the expense of the company, without special cause, but all were to be prosecuted as expeditiously as possible before the director and council. * * * He was strictly forbidden to accept presents or gifts from any person whatsoever, and had to content himself with the civil fines and penalties adjudged to him, and such part of the criminal fines and confiscated wages of the company's servants as the director and council, after prosecution, might allow. He was not to have any part, however, of captured prizes or confiscated goods.
3 Mr. Brodhead informed the writer that when, in pursuance of an act of the legislature, he was sent to Holland in 1841, to collect information respecting our early colonial history, he found that the voluminous archives of the Dutch West India Company had been sold but a few years before his arrival, as waste paper. Had the legislature acted upon the suggestion of Governor Clinton, in 1816, the records of this company, covering the whole period of the Dutch dynasty, and including all the private correspondence between the directors in Amsterdam and their agents in New Netherland, would, upon request, have been willingly presented to the state, by the Dutch government. The sale had been so recent, that Mr. B. was enabled to discover some of the pur- chasers ; but he found in the process of sale and resale, that the papers had passed into the hands of innumerable small dealers in the Dutch metropolis, and had been used as wrappers for mer- chandise, and that the great bulk of them had been scattered and appropriated to similar uses, along both banks of the Rhine. In the indefatigable search which he instituted, he was enabled to res- cue some fragments, but the amount obtained was very trifling.
6
.HISTORY OF THE COURT AND OF THE
clage, was a doctor of laws, and a man of ability ; and as long as he continued to act, it may fairly be presumed, that the management of judicial matters was un- der his charge. In 1630, extensive grants of lands in New Netherland were made by the West India Company, to certain patroons, who were invested with the feudal privileges of manorial lords. They were authorized to erect courts of justice, and courts known as the patroons' courts were accordingly established, exercising un- limited civil and criminal jurisdiction within the patroons' territory. In these tri- bunals the patroon presided in person, or by deputy. He was clothed with the power of life and death, and could decide all civil suits arising within his jurisdic- tion, subject-where he rendered judgment for a sum exceeding fifty guilders-to an appeal to the director general and council of New Amsterdam. This right of appeal was reserved by the original charter, under which the patroons held, but it was practically defeated by exacting from the tenants, before they came upon the manor, a condition that they would in no case appeal from the judgment of the manorial court.1
In 1638, William Kieft was appointed governor. This governor was a grasping, arbi- trary, narrow-minded man, full of his own importance, with a restless activity, that was never turned in any right direction, or applied to the accomplishment of any wise purpose. During the nine years that he misgoverned the colony, he retained in his hands the sole administration of justice. In obedience to his instructions, it was necessary that he should keep up the form of a council, but that he might enjoy ex- clusive control, he reduced it to one member, reserving two votes to himself.2 In 1640, a charter of exemptions and privileges, designed to encourage emigration, was adopted by the College of Nineteen, in which it was declared that the governor and council should decide all questions respecting the rights of the company, and all complaints, whether by foreigners or inhabitants of the province; that they should act as an orphan's and surrogate's court, judge in criminal and religious affairs, and administer law generally. In conformity with the charter, Kieft directed that the council should sit every Thursday, as a court of justice, for "the hearing and adju- dication of all civil and criminal processes, and for the redress of all grievances of which any one might have to complain ;" and he established certain rules for securing the attendance of parties, and for the general conduct of business.3 In a court thus constituted, guided and controlled by a man vain, rapacious and vindictive, it may readily be imagined in what way justice was administered. He enacted laws, levied fines, or inflicted penalties according to his will. The schout fiscals, of whom there were two during his governorship, Ulrich Lupold and Cornelius Vander Huygens, were occasionally invited to be present at the sittings of the council, but neither they nor his counsellor, Doctor Johannes La Montague, a learned Huguenot physician, ap- peared to have had much weight with him. Ever involved in trouble, either with the natives or with the colonists, he was constantly inflicting fines, confiscations and banishments ; and though an appeal lay from his judicial decisions to the cham- ber of Amsterdam, he effectually cut it off, by subjecting to fine or imprisonment any one who attempted to resort to it.4 Such an administration was fruitful at least
1 Brodhead, 304.
2 Brodhead, 327.
$ 1 0'Call. 184. Brodhead, 277.
4 Riker's Annals of Newtown, 23.
Breeden Raedt, (Broad Advice,) printed at Antwerp, 1650, and attributed to Cornelius Melyn,
7
JUDICIAL ORGANIZATION OF THE STATE.
of one result. It stirred up the colonists to demand the establishment of judicial and municipal tribunals, similar to those which they had enjoyed in Holland. There had existed in every town and village in Holland, for more than a century, a local tribunal of a highly popular character. It united the twofold functions of a court of justice and of a municipal government, and consisted of a bench of magistrates, de- nominated burgomaster and schepens, with whom were associated a schout, whose especial duty it was to prosecute all offenders before the court, and to carry into execution its resolves or decrees. The burgomaster was a kind of mayor. The schepen resembled an alderman, and the schout performed the duties which, under our system, are respectively assigned to sheriffs and district attorneys. The princi- ple of popular representation was recognized in the composition of this body. The mode of appointment was not uniform throughout Holland ; but generally the inhab- itants of the town who were possessed of a certain property qualification, assembled annually in a town council or " Vroedschap," and elected eight or nine " good men," and this representative body chose the burgomaster and schepens. The schout, under the feudal law, was appointed by the count or manorial lord, though in certain places, as in the city of Amsterdam, he was chosen by the burgomaster and sche- pens.1
Kieft wished to go to war with the Indians, but, unwilling to take the entire re- sponsibility of such a step, he deemed it prudent to call the community together and submit the question to them. The heads of families met, and according to the custom of Holland, selected twelve men to represent them. This representative body assented to the war; but, at the same time, presented a memorial to the gov- ernor, demanding, among other reforms, the establishment of courts of justice simi- lar to those which existed in the towns and villages of Holland .? This privilege Kieft felt no disposition to grant, and after evading the request for some time, he finally got rid of it, by dissolving the popular body. Two years later, however, having, by his rashness and folly, brought the colony to the brink of ruin, he found it necessary again to convoke the community. They met, as before, and selected " eight men" to advise upon the state of affairs. This second representative council did not trouble Kieft with any further requests; but they addressed an earnest memorial to the College of Nineteen, and to the states general, describing the condition of the colony, and de- manding a new governor, and the establishment, in New. Amsterdam, of a burgher government, according to the custom and usage of Holland; a request that produced no other effect but the recall of Kieft and the appointment of Stuyvesant.3
president of the " board of eight men." This rare tract has been translated by Henry C. Murphy, Esq., and a few copies have been printed for private circulation, by James Lennox, Esq.
Vertoogh, Van N. N., printed at the Hague, 1649, and attributed to Adrian Van der Donck. This has also been translated by Mr. Murphy, and printed, together with the Brceden Raedt, by Mr. Lennox, and by the N. Y. Hist. Soc. 2 Coll. 2d series, 251. Brodhead, 277. A translation will also be found in the Holland documents, iv. 74.
1 Esprit Origine et Progress des Institutions Judiciaries des principaux pays de l'Europe, par J. D. Mycr, Paris, 1823; tome iii., livre 5, coup d'oiel, sur l'etat, politique des Pays Bas. chap. 11, 253, chap. 14, 887. Placards of Hollande, vol. ii. 695. Van Leuwen's Roman Dutch Law, book 1. chap. ii. §§19,20, 21. Vander Linden's Institutes of Holland, part 1, book 8, chap. 1. O'Call. i. 391; ii. 210. Brodhead, 453.
2 Brodhead, 326.
3 Brodhead, 364.
8
HISTORY OF THE COURT AND OF THE
Peter Stuyvesant came out as governor in 1647. Van Dinclage, who had acted as schout fiscal under Van Twiller, came with him, in the capacity of vice director, and Hendrick Van Dyck as schout fiscal. Immediately after his arrival, Stuyve- sant established a court of justice, of which Van Dinclage was made the presiding judge, having associated with him, occasionally, others of the company's officers. The new tribunal was empowered to decide " all cases whatsoever," subject only to the restriction of asking the opinion of the governor upon all momentous questions, who reserved to himself the privilege, which he frequently exercised, of presiding in the court, whenever he thought proper to do so.1
The desire for a popular form of government became so strong after Stuyvesant's arrival that he found it necessary to make some concession. He allowed the com. monalty to elect eighteen persons, from whom he selected nine, as a permanent body to advise and assist in public affairs. This body, who were known as the board of the nine men, had certain judicial powers conferred upon them. Three of their num- ber attended in rotation upon every court day, to whom civil cases were referred as arbitrators, and their decision was binding upon the parties, though an appeal lay to the governor and council, upon the payment of one pound Flemish. These tribunals, with the manorial courts before referred to, constituted the judicial organization of the colony for seven years afterwards.
The government of Stuyvesant but increased the popular discontent. Though a man of capacity and integrity, he was unfitted for the place assigned him, or his duty as the careful guardian of the pecuniary interests of a commercial corporation, was inconsistent with the just and politic rule of a people like the colonists, who had their own views as to the manner in which a community should be governed. It was natural that they should desire to live under institutions to which they had been accustomed in Holland, and which, whatever might be their advantages or de- fects, had to them the merit of nationality, and were associated with their earliest recollections. This Stuyvesant did not, or would not, see. Strongly conservative himself by nature, and long used to military rule, he saw in a demand so just and reasonable, nothing but a desire to break loose from the restraints of lawful authority. Though not an unjust man, he felt himself warranted in resorting to any means to crush every thing in the shape of popular encroachment, and, as he was both prompt and energetic, his government became insufferably oppressive. Before the end of two years he was in open collision, not only with the board of nine men, but with the schout fiscal, Van Dyck, and the vice director, Van Dinclage, an enlightened and learned man, and the most influential member of his council. The council he was enabled to control, but not so with the popular body. In one of its members, Adrian Van der Donck, he had to cope with a man whose ability and energy was equal to his own. Instigated by Van der Donck, the board of nine men resolved to send a delegation to Holland, but they had no sooner decided upon this step than Stuyvesant arrested its projector, seized his papers, and procured a decree of the council removing him from his position as one of the popular representatives. But this violent and arbitrary measure did not produce the effect expected. The nine men met together, a spirited remonstrance was prepared to the states general,
1 Breeden Raedt, extracts in 4 Doc. Hist. of N. Y. 69. Albany Rec. 20, 28, 29, 38, 56 to 61. 2 O'Call. 24 to 81. Brodhead, 467, 523, 532.
9
JUDICIAL ORGANIZATION OF THE STATE.
and three of the number, of whom Van der Donck was one, went with it as a depu- tation to Holland.
This mission was so far successful, that in 1650, a provisional order was made by the states general, which, among other things, decreed, that a court of justice should be erected in New Netherland, and that a burgher government should be established in New Amsterdam, to consist of two burgomasters, five schepens and a schout, and that in the mean time, or for three years, the nine men should continue to exercise judi- cial powers in the trial of civil causes.1 This order was resisted by the Amsterdam chamber as a violation of the privileges granted by their charter, and Stuyvesant, no doubt under instructions from them, refused to obey it.2 When it was known at New Amsterdam that Stuyvesant would not comply with the order, the nine men again appealed to the home government, and Van der Donck, who had remained in Holland, appeared as their advocate before the states general. A long struggle ensued, during which Stuyvesant grew more violent and unreasonable. He impris- oned Van Dinclage for uniting with Van der Donck in a protest to the states gene- ral, dismissed the schout fiscal, Van Dyck, from office, for co-operating with the nine men, and followed up these arbitrary and illegal acts, by equally violent measures against other leaders of the popular movement.3 The Amsterdam chamber, who regarded the establishment of a burgher court as likely to prove detrimental to the in- terests of their commercial monopoly, employed every means to counteract the efforts of Van der Donck ; but after maintaining the contest for two years, they at last thought it prudent to yield, and signified to Stuyvesant their assent to the wishes of the colonists. The inhabitants of New Amsterdam were to be allowed to elect a schout, two burgomasters and five schepens, "as much as possible according to the custom of old Amsterdam," and the magistrates, thus elected, were to compose a municipal court of justice, subject to the right of appeal to the supreme court of the province. " We have resolved," they wrote to Stuyvesant, " to permit you hereby to erect a court of justice, (een banck Van Justitie,) formed as much as possible after the custom of this city; to which end, printed copies relative to all the law courts here, and their whole government, are transmitted. And we presume that it will be suffi- cient, at first, to choose one schout, two burgomasters and five schepens, from all of whose judgment an appeal shall lie to the supreme council, where definite judg- ment shall be pronounced."" It was evident, from the order of the states general, that these officers were to be elected by the commonalty, as was customary in the cities, towns and villages of Holland; and such would seem to be the direction in the dispatch of the Amsterdam chamber. The language of the dispatch was, perhaps, a little ambiguous, and Stuyvesant, putting the construction upon it that conformed most with his own views, and which, if erroneous, he perhaps felt would not be un- palatable to his employers, resolved to appoint the new magistrates himself. He not only determined thus to keep the power in his own hands, but he practically defeated the provision that had been made for a city schout, by appointing to that office Cornelius Van Tienhoven, a man of depraved and dissolute life, exceedingly obnoxious to the colonists, whose only recommendation was the ability he had
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