USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 13
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I. After three years of delay the prayer of the people was listened to in earnest. It was decreed that a "burgher government" should be estab- lished; that the citizens of New Amsterdam should have the right to elect their own municipal officers ; that these officers should constitute a court of justice, with appeal to the supreme court of the Director and Council; that the export duty on tobacco should be abolished; that emigration should be encouraged by a reduction in passage money; that the importation of negro slaves, hitherto a monopoly of the Company, should be now free to all citizens ; and Stuyvesant was ordered to return home ..
These long-delayed concessions were taken to New Amsterdam by Van der Donck himself, and in accordance therewith Stuyvesant published a proclamation on the day of the Feast of Candlemas, the 2d of February, 1653. But none knew better than he how to keep a promise to the ear and break it to the hope. The States General meant to bestow upon New Amster- dam the right of self-government as it existed in their own city of Amster- dam-in the election by the people of a schout or sheriff; of two burgo- masters, who were in effect the chief magistrates of the town; and of five schepens, who constituted the court of civil and criminal jurisdiction. Van der Donck might well come home in triumph with this grant of municipal government as the fruit of his three years of incessant labor in Holland; and the people might well rejoice that they were at last to govern them- selves. . . . But even this first success the Governor defeated for a time, by assuming the right to appoint, where election was ordered .- Bryant's "History of U. S.," Vol. II, 138.
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porarily stifled. The colonists, or at least their leaders, were well aware that this burgher government which Stuyvesant condescended to establish was not government by the people.
However, by the proclamation, the settlement on the island of Manhattan became the city of New Amsterdam; and the municipal officers appointed by Stuyvesant took office. They were: Arendt van Hattem and Martin Kregeir, burgomasters; Paulus Leendersteen van der Grist, Maximillian van Gheel, Allard Anthony, Pieter Wolfertsen van Couwenhoven and Wil- liam Beeckman, schepens. At their first meeting, on Feb- ruary 6, 1653, Van Tienhoven, the schout-fiscal of New Neth- erland, acted as the city schout ; and Jacob Kip was secretary, or city clerk. It was only a formal meeting, for inauguration ; but it was then resolved that regular weekly meetings should henceforth be held at the Stadt Huys, which had formerly been the City Tavern.2 The magistrates accordingly met on the following Monday, though the place of meeting was in the fort, the Stadt Huys not being ready for use.
There can be no doubt as to the attitude of the city gov- ernment. The proceedings on February 10 opened with a prayer3 which testifies to the sincerity of purpose of the burgo-
2. Thursday, February 6, 1653, present Martin Krigier (Aarent van Hattem), Poulus Leendersen van die Grift, Maximilynus van Gheel, and Allard Anthony, Willem Beeckman and Pieter (Wolfertsen).
Their Honors, the Burgomasters, the schepens of this city of New Amsterdam, herewith inform everybody that they shall hold their regular meetings in the house hereto called the City Tavern, henceforth the City Hall (Stadt Huys), on Monday mornings from 9 O'c., to hear all questions of difference between litigants and decide as best they can. Let everybody take notice hereof. Done this 6th of February, 1653, at New Amsterdam. Signed (as above except Arent van Hattem) .- "The Records of New Am- sterdam, From 1653 to 1674, Anno Domini," edited by Berthold Fernow, 1897, Vol. I, 49.
3. We beseech thee, O! Fountain of all good gifts, qualify us by Thy grace that we may, with fidelity and righteousness, serve in our respective offices. To this end enlighten our darkened understandings, that we may be able to distinguish the right from the wrong, the truth from falsehood, and that we may give pure and uncorrupted decisions, having an eye upon Thy word, a sure guide, giving to the simple wisdom and knowledge. Let Thy law be a lamp unto our feet and a light unto our paths, that we may never
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masters and schepens, whatever may have been their thoughts of their own impotence, in the face of Stuyvesant's expressed intention to override their actions and findings at will. So far as their power went, however, the city magistrates, the burgomasters and schepens meant to administer their judicial and civic offices with justice, for the common good. They constituted what was to all intents a Court of Sessions, and also a Common Council, though at the outset they placed more importance on judicial functioning, and were inclined to interfere as little as possible in municipal affairs. In this way they thought, perhaps, that they would be able to avoid clashing with vital commercial interests of the Director and Company.
The burgher government of New Amsterdam had been intended to conform as far as practicable with that of Amster- dam, but in actual practice there was considerable difference. In Amsterdam there were four burgomasters, each of whom sat in city hall in rotation, for three months of each year, to deal with matters of public business. Their duties were mainly executive, whereas the duties of the schepens were especially judicial. The schout was the president of the court, as well as prosecuting attorney, though when acting as the latter, his presidential office was filled by the senior burgo- master. For the enactment of municipal ordinances and laws the three bodies, burgomasters, schepens and schout, meeting together, constituted a "college," dignified by the title of "The
turn away from righteousness. Deeply impress on all our minds that we are accountable not to man but to God, who seeth and heareth all things. Let all respect of persons be far removed from us, that we may award jus- tice unto the rich and unto the poor, unto friends and enemies; to residents and to strangers, according to the law of truth; and grant that not one of us, in any instance, may swerve therefrom; and as gifts do blind the eyes of the wise and destroy the heart, keep therefore our hearts in judgment. Grant unto us also that we may not rashly prejudge any one, but that we patiently hear all parties, and give them time and opportunity for defending them- selves; in all things looking up to Thee and to Thy Word for counsel and direction .- "N. Y. Record of Burg. and Schep.," I, 3.
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Lords of the Court of the City of Amsterdam." In New Am- sterdam, however, there was but one body, the burgomasters, presiding over the sessions of schepens for all purposes- judicial, executive and legislative. Arendt van Hattem, bur- gomaster, was the president of the court in the first year, and when he retired, the senior of the succeeding burgomasters became president. In 1656, Stuyvesant decreed a change of presidency every three months; and this order prevailed until 1660, when the burgomasters and schepens succeeded in sep- arating the offices of schout-fiscal and city-schout. Schout- Fiscals Van Tienhoven and De Sille had held the office of city- schout successively, without demanding the presidency of the inferior court, but when Peter Tonnemann was appointed sheriff (schout) of New Amsterdam, in 1660, he insisted upon his right to preside. Furthermore, Stuyvesant insisted that the city-schout be given a vote in all matters in which he was not a party, as irregular a privilege as had been the holding of two offices by the Schouts-Fiscal Van Tienhoven and De Sille. The burgomasters protested, but Stuyvesant had his way, the burgomasters accepting the situation pending response from Holland to their appeal in the matter.
New Amsterdam was a place of about seven hundred in- habitants in 1653, and, as the years passed, the executive work of the municipality increased. In 1657 the burgomasters es- tablished a separate court, meeting on Thursday in each week, for the discharge of these duties; and they sought the Direc- tor's sanction of the separation of the judicial and legislative courts, releasing them from attendance at the burgher's court. He was unwilling to do so, however, and the court of schout, burgomasters and schepens was destined to continue as a mixed tribunal until the end of the Dutch règime.4 Stuyve-
4. The proceedings of this tribunal, or as it has been denominated "the Worshipful Court of the Schout, burgomaster, and schepens," were all recorded by their secretary, or clerk; and as everything that took place before it, the nature of the claim, or of the offence, the statements of the parties, the proof and decision of the court, with the reasons assigned for
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sant's interference with the city administration grew less as the years passed. He soon came to concern himself little in its judicial court, though for many years he kept watchful eye on the general affairs of the city, at least those that af- fected the purse of the Company. He could hardly be blamed for this vigilance, for the whole scheme of colonization had a commercial basis. And, as will be shown in the next chapter, the authorities in Amsterdam were not always at one with
it, were carefully noted and written down, these records supply a full ac- count of the whole course of its proceedings, and furnish an interesting expo- sition of the habits and manners of the people. Upon perusing them, it is impossible not to be struck with the comprehensive knowledge they display of the principles of jurisprudence, and with the directness and simplicity with which legal investigations were conducted. In fact, as a means of ascer- taining truth, and of doing substantial justice, their mode of proceeding was infinitely superior to the more technical and artificial system intro- duced by their English successors. None of these magistrates were of the legal profession. They were all engaged in agricultural trading or other pursuits, and yet they appear to have been well versed in the Dutch law, and to have been thoroughly acquainted with the commercial usages, customs and municipal regulations of the city of Amsterdam. This is the more remarkable, as a knowledge of the Dutch law at that period was by no means of easy acquisition. Though the prin- ciples and practice of civil law prevailed in Holland, it was greatly modified by ancient usages, some of them of feudal origin, others the result of free institutions, which had existed from the earliest period. . . . In every town and village in Holland, moreover, there existed usages and customs peculiar to the place, which had the force of law, and were not only dif- ferent in different towns, but frequently directly opposite. The Dutch law, in fact, was then a kind of irregular mosaic, in which might be found all the principles as well as the details of a most enlightened system of jurisprudence, but in a form so confused as to make it exceedingly difficult to master it. That these magistrates should have had any general or practical acquaintance with such a system at all was scarcely to have been expected ; but that they had is apparent, not only from the manner in which they disposed of the ordinary controversies that came before them, but in their treatment of difficult questions as to the rights of strangers, their familiarity with the complicated laws of inheritance, and the knowledge they displayed of the maritime law while sitting as a court of admiralty. The Amsterdam Chamber sent out to them the necessary books to guide them as to the practices of the courts of Amsterdam, and when the province passed into the hands of the English there was attached to the court a small but very select library of legal works, mainly in the Dutch language. The authoritive work used in the administration of the criminal law was Damhouwer's "Practyke in Criminele Saecken" . . . printed in Rotterdam in 1628. . . . There were, moreover, men educated in the legal profession
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complaining colonists. Undoubtedly, there were many cross currents in the province.
The first meeting of the burgher court in the Stadt Huys at New Amsterdam was on February 24, 1653. Thereafter this reconditioned City Tavern became the venue of all meet- ings of the municipal body. The building "was situated on Pearl Street, at the corner of Coenties Lane, at the head of the
in the colony Van Dinclage, the Vice-Director, who had acted as Schout Fiscal for Van Twiller, and Chief Judge of the court established by Stuyvesant, was a Doctor of Laws; and there is sufficient known respecting him to warrant the opinion that he was an able and accomplished jurist. Van der Donck was admitted to the same honorable degree in the University of Leyden, and was afterwards an advocate of the Supreme Court of Holland. The Schout-Fiscal, Nicasius de Sille, who acted as City-Schout for four years, is stated in his commission from the Amsterdam chamber to be "a man well versed in the law." In addition to these there were sev- eral notaries : Dirk van Schellyne, who came out in 1641, had previously practiced at the Hague; David Provorst discharged the duties of notary for some years before Schellyne's arrival; and there was another notary named Matthias de Vos. Under the civil law as it prevailed in Holland, a considerable part of the proceedings in a cause, if it was seriously contested, was conducted by the Notary, who was required at least to be well versed in the manner of carrying on legal controversies; and as he was frequently consulted by suitors for advice as to their rights and liabilities, he was generally well informed and capable of giving it. Such was the case with Van Schellyne, who, from the records he has left, was evidently an ex- perienced and skillful practitioner. He was not only connected with the court in the discharge of his duties as Notary, but he was appointed by it, in 1665 High Constable (conchergio). All of these men must have had more or less to do with establishing the mode of legal proceeding, and of advising and guiding the magistrates. Van Schellyne and De Sille were in constant official communication with them. Van Dincklage must have brought into use the forms of legal procedure in the court over which he had presided, and Van der Donck was one of the chief getters up of the new tribunal; and, though he survived its creation but two years, he was no doubt advised with and consulted in respect to its organization, and as to the mode in which it was conducted. We find him, in fact, the very year that it was established, claiming its protection as a "citizen and burgher," against the menaces of Stuyvesant. The Court was required in all its determinations to regard as paramount law all regulations estab- lished by, or instructions received from, the Chamber of Amsterdam, or the College of Nineteen, for the government of the colony. Next, all edicts or ordinances duly established by the Governor and Council; then the usages, customs or laws prevailing in the city of Amsterdam, and, where they fur- nished no guide, the law of the fatherland, by which it was particularly understood the ordinances of the province of Holland and of the States
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Coenties Slip, facing the East River.5 It was a structure of three stories. The court room, or council chamber, was on the second floor. In the rear of the court room was the jail, or public prison. Court sessions for the trial of minor cases were held fortnightly, and in times of pressure weekly, from 9 o'clock until noon, continuing in the afternoon if necessary.
Court procedure was very exhaustively described by Jus- tice Daly in his review of the "State of Jurisprudence During the Dutch Period," published in 1897, in the "History of the
General, and the civil law as it prevailed in the Netherlands, or, as it is denominated by jurists, the Roman Dutch Law .- Ex-Chief Justice Daly, in the "State of Jurisprudence During the Dutch Period," Vol. I, 19-22, of "History of the Bench and Bar of New York," quoting "N. Y. Rec. of Burg. and Schep."; Brodhead's "History of New York"; O'Callaghan's "History of New Netherland"; Valentine's "History of New York"; Meyer's "Institutions Judiciaries"; Van Leuwen's "Practyk der Notarissen (Rotterdam, 1742) ; "Practyke in Criminele Saecken," by Joost de Dam- houwer (Rotterdam, 1628), and others.
5. It was a stone building originally put up as a tavern during the time of Director-General Kieft. It was fifty feet square, with three upright stories and a two-storied gabled roof, and was conspicuous far down the harbor. Behind it was a Dutch garden of flowers and veg- etables, and through this was a pathway leading to Hoogh Strat, or Stone Street, the road to the ferry.
On the second floor of this building, at the southeast corner, was a large chamber which was used for the court room. On the window panes of this room were engraved the arms of New Amsterdam. Above the bench on which the magistrates sat were the orange, blue and white of the West India Company, and the colors of Holland. Here also was the painted coat-of-arms of the city, which were sent over by the directors of the West India Company in 1654. On the wall near the door were suspended fifty leathern buckets, which constituted the fire equipment of the city. In the cupola which surmounted the building hung a bell which was rung for the assembling of the court and for the announcing of proclamations. The bell ringer was a man of many and varied employments. He served as the court messenger, was the village grave digger, and the church chorister, and sometimes was schoolmaster. As an attendant of the court he served the magistrates in small ways, keeping the court room in order, providing the magistrates with papers and other things necessary to their work, and ringing the bell at the opening of the court in the morning and for ad- journment at noon. From the platform erected in front of the Court House he read the proclamations. For many years the bell ringer was Jan Gillisen, familiarly called Kock .- Chester's "Legal and Judicial History of New York," Vol. I, p. 60.
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Bench and Bar of New York."6 In early years Stuyvesant often clashed with the burgomasters and schepens in matters of city administration. He did not appear to have great respect for their authority at any time. Once, indeed, in a public proclamation, he referred to them as "the little bench of justice,"7 yet it is obvious from Judge Daly's review that the burgomasters and schepens had many and important respon- sibilities. They conducted civil and criminal courts, courts of admiralty and probate, in addition to the ever-increasing exec- utive duties of a growing provincial capital. And, as the years passed, they were accorded enhanced dignity in the city. Although they were fined for absence from court,8 and received stipends of little more than $100 yearly,9 with no assurance that said stipend would be promptly forthcoming, the burgomasters nevertheless could probably find satisfaction in being addressed as "My Lord," also in other evidences of the fact that they were recognized as dignitaries of conse-
6. The mode of procedure in civil cases was simple and summary. The court was held once every fortnight, though frequently once every week, upon a stated day. Attached to the court was an officer known as the Court Messenger, who, at the verbal request of the party aggrieved, sum- moned the adverse party to appear at the next court day. If the defendant failed to appear, he incurred the cost of summons, lost the right to make any objection to the jurisdiction of the court, and a new citation was issued. If he failed again, he incurred additional costs, lost the right to make all "dilatory exceptions" or to adjourn or delay the proceeding. He was then cited for the third time, and if he did not then appear, the court proceeded to hear the case and give judgment, and he was cut off from all right of appeal, or review. But if, upon hearing the plaintiff's case, the court deemed the presence of the defendant essential, they might issue a fourth citation, in the nature of an arrest, and compel his appearance. Parties, however, usually attended upon the first citation The plaintiff stated his case, and the defendant made his answer. If they differed in a fact which the court thought material, either party might be put to an oath, and if they were still in conflict, the court might require the examination of witnesses and the matter was adjourned until the next court day, during which time either party might take the depositions of his witnesses before a notary, or the court might require that the witnesses should be produced, to be ex- amined orally before it, at the adjourned day, under oath. But most generally the matter was disposed of upon the first hearing of the parties without resorting to the oath, or the examination of witnesses. If it was intricate, and it was difficult to get at the truth, it was the constant practice
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quence in the provincial capital. "In the court room of the Stadt Huys soft cushions made their seats very comfortable, and on Sunday these cushions were removed to the church within the fort, for the further accommodation of the digni- taries. A pew in the church was set apart for them, and on Sunday they and their families went early to the Stadt Huys and proceeded to the church in a procession which was led by the court messenger."10 Their social standing became even clearer in 1657, when Stuyvesant attempted to introduce the "burgher right," with the intention that thereafter no citizen could hold public office who was not classed among the Great Burghers.11 That there were few of this aristocracy, the Great Burgher class, in New Amsterdam in 1658 is testified to in the fact that in that year, the first in which Stuyvesant would permit double nominations for burgomaster and schepens offices, the Director-General found it necessary to "invest some of the more prominent citizens with the right,
to refer the cause to arbitrators, who were always instructed to bring about a reconciliation between the parties, if they could; and this was not con- fined merely to cases of disputes about accounts, or of differences growing out of contracts, but it extended to nearly every kind of case that came before the court. The arbitrators were left to the choice of the litigants, or appointed by the court, or one of the schepens was directed to take the If no reconciliation matter in hand and try to reconcile the contestants.
could be effected, or the parties would not submit to final determination or conclusion of the arbitrators, the dissatisfied party might again bring the matter before the court, where it was finally disposed of. These ref- erences were frequent upon every court day. In fact, the chief business of this tribunal was in acting as a court of conciliation; and it is worthy of remark that though the amount involved was frequently considerable, or the matter in dispute highly important, that appeals to the court from the decision of the arbitrators were exceedingly rare. Indeed, the first appeal to be found upon the records was brought by a stranger. (a).
There was a more formal mode of proceeding, if parties preferred it. After the plaintiff had stated his case, the defendant might require him to put it in writing, and a day was given to that purpose. The defendant was then obliged to answer in writing, to which the plaintiff would reply, and the defendant rejoin, and there ended the pleadings Each party then went before the notary of his choice, and had the depositions of his witnesses reduced to writing, a draft or copy of which was retained by the notary, in a book kept by him for the purpose; and, where it was necessary a commis- sion, or as it was called a requisitory letter, might be obtained for the exam-
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in order to fill the offices." The magistrates were jealous of the dignity of their public office, and dealt heavily with of- fenders. One man who, in commenting on a certain judg- ment, was so indiscreet as to say that the magistrates were "mere blockheads," was called before the court and the schout recommended that he be "sentenced to pray for forgiveness and to pay a fine of twelve hundred guilders with costs."12 Stuyvesant, when crossed by the municipal officers was wont to ridicule them, yet in all of his official communications, he addressed the City Court in most dignified terms. Some of his communications are directed to the "Honourable, Beloved, Faithful, the Schout, Burgomasters and Schepens of the City of New Amsterdam in New Netherland"; "the Most Worship- ful, Most Prudent, and Very Discreet, their High Mighti- nesses, the Burgomasters and Schepens of Nieuw Amster- dam"; "Respected and Particularly Dear Friends"; "Most Worshipful, Gracious and Distinguished," and other flattering
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