USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 29
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3a. The government engaged in war with the United Provinces. The House of Commons readily voted sums unexampled in our history. . . But such were the extravagance, dishonesty and incapacity of those who had succeeded to his (Cromwell's) authority that this liberality proved worse than useless. The sycophants of the court, ill qualified to contend against the great men who then directed the arms of Holland, against such a statesman as De Witt, and such a commander as De Ruyter, made fortunes rapidly, while the sailors mutinied from very hunger, while the dockyards were unguarded, while the ships were leaky and without rigging. It was at length determined to abandon all schemes of offensive war; and it soon appeared that even a defensive war was a task too hard for that administra- tion. The Dutch fleet sailed up the Thames and burned the ships of war that lay at Chatham. It was said that, on the very day of that great humiliation, the king feasted with the ladies of his seraglio and amused him- self with hunting a moth about the supper room. . . . Soon the capital be- gan to feel the miseries of a blockade. . The roar of foreign guns was heard for the first and last time by the citizens of London. . . . Great multitudes of people assembled in the streets crying out that England had been bought and sold. The houses and carriages of the ministers were attacked by the populace; and it seemed likely that the government would have to deal with an invasion and with an insurrection. The extreme dan- ger, it is true, soon passed by. A treaty was concluded, very different from
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of New York did not arrive until 1668. Until then, distaste- ful though the office may have been to him, Colonel Nicolls had to continue as deputy governor. Still, it is generally conceded that his administration was thorough and able; that he handled a difficult situation well.
The terms of capitulation of New Amsterdam, signed on September 6, 1664,4 were faithfully observed by Nicolls. There was no looting, no disorder; private property was everywhere respected; and within a week the burgomasters and schepens of New Amsterdam, of the Stuyvesant régime, resumed their meetings, and for the time being were not inter- fered with in municipal matters. They were probably not so ill at ease, their plight was not so distressing as their report to the West India Company, on September 16, 1664, would indicate.5 They had, in fact, not so much to fear from the English soldiers under Nicolls as from the Connecticut col-
those which Oliver had been in the habit of signing; and the nation was once more at peace, but was in a mood scarcely less fierce and sullen than in the days of shipmoney.
. While the ignominous war with Holland was raging, London suf- fered two great disasters, such as never in so short a space of time befell one city. A pestilence . swept away, in six months, more than a hundred thousand human beings. And scarcely had the dead-cart ceased to go its rounds, when a fire, such as had not been known in Europe since the conflagration of Rome under Nero, laid in ruins the whole city-Macaulay's "History of England," Vol. I, 149, 150.
4. The signers were: Johannes de Decker, Nicolas Varleth, Samuel Megapolensis, Cornelis Steenwyck, Jacques Cousseau and Oloff Stevensen van Cortlandt, for the Dutch; and Robert Carr, George Cartwright, John Win- throp, Samuel Wyllys, John Pynchon and Thomas Clarke for the English. 5. The Court resolves to write the following to the Lords Directors :
"Right Honble Prudent Lords, the Lords Directors of the Honble West India Company, Department of Amsterdam.
"Right Honble Lords,
"We, your Honrs loyal, sorrowful and desolate subjects, cannot neglect nor keep from relating the event, which thro' God's pleasure thus unex- pectedly happened to us in consequence of your Honrs neglect and for- getfulness of your promise (of military aid)."-Then follows an account of the events of capitulation, the report concluding :
"Meanwhile, since we have no longer to depend on your Honours' prom- ises of protection, we, with all the poor, sorrowing and abandoned Com- monalty here must fly for refuge to the Almighty God, not doubting but he will stand by us in this sorely afflicting conjuncture and no more depart
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onists. The latter, however, were kept on the other side of the river.
Colonel Nicolls organized the new government without delay. New Amsterdam as well as New Netherland became New York, and a provincial council was soon constituted, those appointed to it being: Robert Needham and Thomas Delavell, who were from England; Thomas Topping and William Wells, of Long Island; and Matthias Nicolls.6 The latter was appointed provincial secretary.
In October all citizens were required to take the oath of allegiance. There was some resistance at first, the Dutch pointing out that it was not prescribed in the articles of capitulation. However, even Stuyvesant consented when it was shown that it did not affect the terms of surrender. Those who did not wish to take the oath were at liberty to return to Holland; this Pieter Tonneman, city schout, did, in the following February, at the time of the election of new magistrates in New Amsterdam. His place, as city schout, was taken by Allard Anthony. However, it is evident by the names of the new magistrates7 that the English did not wish then to control or influence the election.
from us: And we remain-Understood -- your sorrowful and abandoned subjects. .
"Pieter Tonneman (Schout), Paulus Leenderzen van der Grist and Cornelis Steenwyck (Burgomasters), Jacob Backer, Timotheus Gabry, Isaack Graevenraat and Nicholaas de Meyer (Schepens). Done in Jorck heretofore named Amsterdam in New Netherland, Ao. 1664, the 16th Sep- tember."-Quoted from "Records of New Amsterdam," Vol. V, pp. 114-116. 6. He may have been a relative of Governor Nicolls; and is described as "a lawyer from Islip, Northamptonshire," who came out with the ex- pedition.
6. Another account reads :
" . . as he (Governor Nicolls) was a soldier, not a lawyer, he no doubt availed himself to the assistance of Matthias Nicolls, an English law- yer, who had settled in New Amsterdam before it was captured by the English."-See "History of the Court of Common Pleas of City and County of New York," (J. W. Brooks. 1896), p. 194.
7. Cornelis Stenwyck and Oloff Stevensen van Cortlandt, burgomasters ; Timotheus Gabry, Johannes van Brugh, Johannes de Peyster, Jacob Kip, schepens ; Allard Anthony, schout.
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The negotiations with Connecticut as to boundaries brought an admission by the latter colony that Long Island was rightly New York territory; and while the boundary commissioners defined the boundaries on the mainland so erroneously and so palpably in Connecticut's favor, that the territory left to New York on the mainland would reach no farther up the Hudson River than fifty miles on its eastern bank-which cartographic blunder Governor Nicolls at once pointed out in report to the Earl of Clarendon8-the status of Long Island was clear ; so the convention of February-March, 1665, at which the Duke of York's Code of Laws was pro- mulgated, was confined, it seems, to the ridings of Yorkshire
8. In the settlement of the boundary on the mainland a singular want of knowledge of the topography of the country was shown on both sides, unless there was, as has sometimes been suggested, a sharp advantage taken by one side of the ignorance of the other. The line, it was understood in general terms, should be run about twenty miles east of the Hudson River. That agreed upon was to start at tidewater on the Mamaroneck Creek and run thence north-northwest to the southern boundary of Massachusetts. But the mouth of the Mamaroneck Creek is much less than twenty miles from the Hudson, and a line drawn from it north-northwest would cross that river within fifty miles of New York.
This boundary would give to Connecticut a large, and the most valua- able portion of the late province of New Netherland. The blunder was so substantially in favor of Connecticut that the suggestion of fraud can hardly be sustained. That the beginning of the line was twenty miles from the Hudson was clearly a mistake; and the commissioners can hardly have realized that the line crossed the river. But it did not escape the notice of the Governor, who, in a letter to the Earl of Clarendon (see "Clarendon Papers," N. Y. Hist. Soc. Coll., 1869, p. 76) pointed out some of the pre- posterous consequences :
"Your Ldpp will allsoe perceiue by this inclosed determinacon betweene the Commissrs with the Governor and councell of Conecticutt that those Townes upon the maine to the Eastward of N. Yorke did properly belong to their precedent patentt, soe that there remaynes only, One small Towne to his Royall highnesse of all that tract of land from Connecticut Riuer which is all the North part and soe cold that few or none will bestow their labours. Only one Towne is seated wth Planters to which or very near the Indenture reacheth. Aboue that 70 miles is Albany seated, who are noe planters but only a towne of Trade with the Indians. Thus the extent of the Dukes Pattent is described to yor Ldpp."
By the one towne "to which or very near the Indenture reacheth," sev- enty miles below Albany, the Governor must have meant Esopus. A line from the mouth of the Mamaroneck running north-northwest and touching Esopus would necessarily if produced cross the river at that point.
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(Long Island, Eastchester and Westchester), wherein the laws were to be immediately effective.9
The convention opened at Hempstead, Long Island, on February 28, 1665, and continued for two or three days. Two delegates of each of the seventeen towns, or districts, of the ridings of Yorkshire attended,10 and on March I adopted the Duke's laws, which seem to have been prepared to meet the particular needs of English colonists in general; at least they reflected some of the agitation of previous years. The English settlers had hoped to gain all the popular rights which the people of Massachusetts and Connecticut enjoyed ; and though they did not gain all, it is clear that they gained some, for, as stated on the title page of the digest of these laws, gathered into one volume "for the publicke use of the Territoryes in America," the code was "Collected out of the Seuerall Laws now in force in his Majesties American Col-
As if doubting the wisdom of this settlement of the boundary, Nicolls adds : "I humbly beg your Ldpp to take the whole matter into serious con- sideration, for if the Duke will improove this place to the vtmost, Neither the trade, the Riuer, nor the Adjacent lands must be devided from this Collony, but remayne Entire."-"Clarendon Papers."
Twenty years later, a new line was drawn, beginning at Byram River, which is essentially the present boundary between New York and Con- necticut.
9. To Long Island, thus made . a part of New York, the name of Yorkshire was given. That, with the neighboring country, was afterward divided into three judicial districts, or ridings, in each of which a court was to sit three times a year. The present Queen's County (excepting the town of Newtown) and Westchester formed the North Riding; Newtown, the present King's County and Staten Island made the West Riding; the present Suffolk alone was the East Riding. There was, however, some question whether Staten Island belonged to New Jersey or New York, which was not settled until 1668, and seems to have been referred to the Pro- prietary in England. Samuel Maverick, one of the Commissioners, writing in February, 1669, to Governor Winthrop, says, on the authority of a letter from Nicolls-who returned to England in the previous autumn: "Staten Iland is adiudged to belong to N. Yorke." It is, he says in another letter, "the most commodiosest seate and richest land I haue seene in America."- Bryant's "History of U. S."; also "Maverick Letters in the Winthrop Papers." Mass. Hist. Soc. Coll., 4th series, Vol. VII.
10. Jacques Corteleau and Younger Hope, New Utrecht; James Hub- bard and John Boone, Gravesend; Elbert Elbertsen and Roeloffe Martense, Flatlands; John Stryker and Hendrick Gucksen, Flatbush; John Stealman
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onyes and Plantations."11 In some respects, the Duke's laws improved on the Massachusetts and Connecticut codes, for the severe religious restrictions of the New England codes were disregarded. This in itself, however, gave rise to sus- picion, knowing as the colonists possibly did that the Duke was inclined to Catholicism. Some of the measures were objected to by the delegates, and some slight concessions were made by Nicolls, and many amendments were taken under advisement by the governor, the delegates believing that they would be accepted, but the code was passed by the delegates substantially as submitted. They even went so far as to sign a memorial to the Duke of York approving the laws; and by so doing brought themselves into public odium,13 for as a whole the laws did not meet with approval by the English
and Guisbert Tunis, Bushwick; Hendrick Lubbertsen and John Evertsen, Brooklyn; Richard Betts and John Coe, Newtown; Elias Doughty and Richard Cornhill, Flushing; Daniel Denton and Thomas Benedict, Jamaica ; John Hicks and Robert Jackson, Hempstead; John Underhill and Matthias Harvey, Oyster Bay; Jonas Wood and John Ketcham, Huntington; Daniel Lane and Roger Barton, Brookhaven; William Wells and John Youngs, Southold; Thomas Topping and John Howell, Southampton; Thomas Baker and John Stretton, Easthampton; Edward Jessup and John Quimby, Westchester.
II. LAWES.
Established by the Authority of his Majesties Letters patents, granted to his Royal Highnes, James, Duke of Yorke and Albany; Bearing Date the 12th Day of March in the Sixteenth year of the Raigne of our Soveraigne Lord, Kinge Charles the Second.
Digested into one Volume for the publicke use of the Territoryes in America under the Government of his Royall Highnesse.
Collected out of the Severall Laws now in force in his Majesties Americar. Colonyes and Plantations.
Published March the Ist Anno Domini, 1664, at a general meeting at Hemsted upon Longe Island by virture of a Commission from his Royall Highness, James, Duke of Yorke and Albany given to
Colonell Richard Nicolls Deputy Governeur, bearing date the Second day of April, 1664.
13. Much animosity was displayed by the English inhabitants against their deputies for their ready acquiescence in the proceedings of the Hemp- stead convention. Most of them had signed a memorial to the Duke of York, approving their laws.
In 1666 an ordinance was passed, which declared it a penal offence to in any way reflect on those who had thus committed their constituencies to
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inhabitants. In 1691 this code was entirely repealed by the First General Assembly after the Revolution of 1688, "as being in spirit contrary to the constitution of England, and the practice of the government of their Majesties' other plan- tations in America."14
The "Duke's Laws," or "Nicoll's Code" as they are some- times called, were arranged somewhat after the order of a modern digest, the subjects beginning with Absence and end- ing with Warrant; "but the arrangement under the various headings is unscientific, and it is necessary to read practically the whole code to ascertain the law relative to any particular subject."
While the code did not expressly provide for a Court of Assizes as the supreme judicial tribunal, its appellate juris- diction was set out therein, and a clause fixed its sessions, the Duke's laws prescribing the holding of one annual session of this court, on the last Thursday in September, at New York City. While the Court of Assizes was, in effect, a continu- ation of the Dutch plan of a high court functioning in the Council of the Director-General, it was, in fact, not only the executive voice. The governor and his council were mem- bers of this court, but two justices of each of the judicial dis- tricts, or ridings, were also seated. Sometimes the court was even larger. On at least one occasion, (October 6, 1680), the tribunal was formidable, having in all thirty-nine members, the normal bench being increased, for this case, by inclusion
this obnoxious code, by subscribing to the hypocritical and obnoxious address to His Royal Highness, the Duke of York. It was prescribed that the offender be brought before the Court of Sessions, and if the gravamen of the offence so warranted, held for the next assize .- Scott's "Courts of the State of New York," p. 62.
1.4. In 1757, the first historian who has written on this subject, says that all "laws made here antecedent to this period (1691) are disregarded, both by the Legislature and the Courts of Law; the validity of the old grants of the powers of government, in several American colonies, is very much doubted in this province."
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of the mayor and aldermen of New York City, and the two commissaries at Albany, besides others.15
The Court of Assizes had exclusive jurisdiction in cases of capital offenses, but, to avoid delay, the Governor and Council could issue a commission of oyer and terminer for prompt trial of a cause, instead of holding all over for the annual session. Under the terms of the patent an appeal lay to the King in Council from the judgments of the Court of Assizes. Besides its annual session, the Court of Assizes might be called at any time to hear and determine civil and criminal cases which required a speedy despatch.16
15. This was an appeal from a judgment of the court at the Whorekill, and involved the title to four hundred and thirteen acres of land, not there- fore a case of the greatest importance. There are, however, records of other sessions of this court at which extremely important matters were passed upon, when no more than five or six persons, including the Governor and Provincial Secretary, sat.
16. Except in cases of appeal, the process issued for the trial of actions at this court was the Governor's special warrant. Twelve jurors were im- panelled in all cases tried before the court. All appeals to the Court of Assizes were made by a petition to the Governor and Council, and security was required in civil cases from the appellant for the prosecution of his appeal. In cases of a criminal nature, not capital, the party was required not only to give bail for his appearance, but also for his good behaviour until the hearing. With the appeal and securing the party appealing was required to file a brief statement in writing under his own or his attorney's hand of the grounds and reasons of his appeal eight days before the begin- ning of the court to which he appealed. On the filing of an appeal, a fee cf ten shillings was exacted, besides two shillings and six pence to the clerk. No summons, pleading, judgment, or any kind of proceedings in courts of justice were to be abated, arrested, or reversed upon any kind of circumstantial errors or mistakes, if the person or cause "be rightly under- stood & Intended by the Court."
By an amendment of the laws passed at a session of the court in Sep- tember, 1665, it was provided :
Where the Original Point is matter of equity the proceedings shall be by way of Bill and delivered in answers upon Oath and by the examina- tion of witnesses, in like manner as is used in the Court of Chancery in England, and due regard must be had that the Defendant have timely notice thereof, as is appointed at Common Law; which is eight dayes warn- ing before the court shall sit."-(See "Duke of York's Laws," p. 61.
Where the laws made no provision for the disposition of a given case it was provided as follows :
In regard it is almost impossible to provided Sufficient Lawes in all Cases, or proper Punishments for all Crimes the Court of Sessions shall
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If we may assume that the Court of Assizes came into be- ing with the organization of a Council by Governor Nicolls, its erection would date from October, 1664; but the first ses- sion, proper, of this court was held in September-October of the next year, the justices sitting in the Fort at New York, and the session opening on September 28, 1665. On the first day the case of John Richbell against the inhabitants of the town of Huntington was tried "before a full bench, Governor
not take further Cognizance of any Case or Crimes whereof there is not provision made in somes Lawes but to remit the Case or Crime, with due Examination and proof to the Next Court of Assizes where matters of Equity shall be decided, or Punishment awarded according to the discretion of the Bench and not Contrary to the known Lawes of England.
No justice of the peace who had voted in any inferior court in a case appealed from was permitted to have any vote in the Superior Court appealed to, and in all cases of appeal the appellate court was required to to judge the case according to former evidence and no other, unless some material witness was not then in the country or was unnecessarily hindered from giving evidence at the trial below the Appellate Court: Only recti- fying what is amiss therein, and where matter of fact is found to agree with the former Court and the Judgment according to Law; not to revoke Sentence or Judgment; but to abate or increase damages as shall be Judged Right.
The capital offenses of which the Court of Assizes had exclusive juris- diction, except when it delegated the same by commissions of oyer and terminer, were constituted by the following :
CAPITAL LAWES.
I. If any person within this Government shall by direct exprest, impious or presumptious ways, deny the true God and his Attrobutes, he shall be put to death.
2. If any person shall commit any wilful and premeditated Murder he shall be put to Death.
3. If any person Slayeth another with Sword or Dagger who hath no weapon to defend himself : he shall be put to Death.
4. If any man shall slay, or Cause another to be Slain by lying in wait privily for him or by poisoning or any such wicked Conspiracy : he shall be put to Death.
5. If any man or woman shall lye with any Beast or Bruite Creature by Carnal Copulation they shall be put to Death, and the Beast shall be Burned.
6. If any man lyeth with mankind as he lyeth with a woman, they shall be put to Death, unless the one party were Forced or be under fourteen Years of age, in which Case he shall be punished at the Discretion of the Court of Assizes.
7. If any person forcibly Stealeth or carrieth away any mankind : he shall be put to Death.
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Nicolls presiding, and a jury of seven." John Rider appeared for the plaintiff, and "Mr. Leveridge (was) attorney for the defendants."
At this session of court, legislative matters were consid- ered also, certain amendments of the Duke's laws, tentatively accepted by Governor Nicolls at the Hempstead Convention of the previous spring, being adopted. According to Brod- head, this court was all-powerful, having certainly as much authority as had the Council of the Dutch governors, for the latter did concede some degree of legislative authority to the
8. If any person shall bear false witness malliciously and on purpose to take away a man's life, He shall be put to Death.
9. If any man shall Traitorously deny his Majestyes right and titles to his Crownes and Dominions, or shall raise Armies to resist his Authority, he shall be put to Death.
IO. If any man shall treacherously conspire or Publiquely attempt to invade or Surprize any Town or Towns, Fort or Forts, within this Govern- ment, He shall be put to Death.
II. If any Child or Children, above sixteen years of age and of Suffi- cient understanding, shall smite their Natural Father or Mother, unless thereunto provoked an forct for their selfe preservation from Death or Mayming, at the Complaint of the said Father and Mother, and not other- wise, they being Sufficient witness thereof, that Child or those Children so offending shall be put to Death .- "Duke of York's Laws," pp. 14-15.
These provisions were substantially taken from the Massachusetts Body of Liberty, but the provision of that code which established as capital offenses idolatry, witchcraft, adultery, rape and rebellious stubbornness in children were not followed.
There were, however, other capital offenses : the malicious setting afire of any dwelling-house, church, storehouse, outhouse, barn, stable or stack of hay, corn or wood, was punishable by death, in the discretion of the court, and when it is considered that so late as the beginning of the nineteenth cen- tury there were about two hundred offenses punishable under English law by death, the Duke's Laws seem to have been lenient.
In some other respects, however, the New York law was harsh. "Per- sons stealing hogs or boats or canoes were punished for the first offense by having one of their ears cut off, for the next more severe punishment, as the court might direct. Burglars and highway robbers were to be branded on the forehead for the first offense, again branded and severely whipped for the second offense, and put to death for the third. Larceny of goods to the value of ten shillings or over was punished by whipping and the exaction of a fine. Forgery, which was punishable by death in England as late as 1820, was punished by standing in the pillory three several court days, rendering double damages to the party wronged, and being disabled to give any evidence or verdict to any court or magistrate.
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