USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 31
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to make the rate for building and repairing the church, for the maintenance of the minister, and for the support of the poor. From the overseers the constable selected the jurors, who attended the courts of session and assize. Every town, at its own expense, must provide a pair of stocks for offenders and a pound for cattle, besides prisons and pillories in places where courts of session were held.
the town court was composed of the constable and overseers. It had cognizance of all causes for debts and trespass under five pounds ; and the justice of the peace was authorized, but not required, to preside in the court
All actions of debt, accounts, slander, and actions on the case con- cerning debts and accounts, were to be tried in the jurisdiction where the cause of action arose. Debts and trespasses under five pounds were to be arbitrated by two persons, selected by the constable of the place, and if either party refused the justice of the peace should choose three arbitrators, whose award should be final. All actions or cases from five to twenty pounds were to be tried at the sessions, from whence there should be no appeal. Any person falsely pretending greater damages or debts than due, to vex his adversary, should pay treble damages. If the action be entered and the parties compromise it, yet the agreement should be entered by the clerk of the court.
Upon the death of any person, the constable and two overseers should repair to the house of the deceased to inquire after the manner of the death, and whether he left any will or testiment. But no administration should be granted, except to the widow or child, until the third session after the person's death. The surplus of the personal estate was divided as follows : one-third to the widow, and the other two-thirds among the children, except that the eldest son should have a double portion.
All amercements and fines, not expressly regulated by law, were to be imposed at the discretion of the court ..
No arrest could be made on the Sabbath, or "day of humiliation for the death of Charles the First, of blessed memory," or on the anniversary of the restoration of Charles the Second, except of rioters, felons, and persons escaped out of prison. Persons necessarily attending courts should be exempt from arrest. All arrests, writs, warrants and proclamations were to be in the name of His Majesty.
All assessments were to be made by the constable and eight overseers of the parish, proportionable to the estate of the inhabitants; and the jus- tices of the peace were exempt from assessments during the continuance in office, except only for payments to the church.
Persons of known ability, when imprisoned, must pay for their support till the second day of the next session after their arrest, and longer if there be a concealment of property.
To rebuke an officer with foul words, so that he depart through fear without doing his office, should be taken for an assault. A servant or work- man convicted of assaulting his master or dame should be imprisoned.
No foreigner or stranger could have attachment against an inhabitant without giving security for costs.
No justice of the peace, sheriff, constable, or clerk of the court while in office should be permitted to be attorney in any case, unless assigned by the court on request.
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No Christian should be kept in bond, slavery or captivity, except persons adjudged thereto by authority, or such as had willingly sold or might sell themselves.
Every town must set out its bounds within twelve months after they were granted, and it was required that once in three years the oldest town should give notice to the neighboring towns to go (over) the bounds between their towns, and to renew their marks; the time for perambulation to be between the twentieth and the last day of February, under the penalty of five pounds for neglect thereof. Owners of adjoining lands were re- quired to go the bounds between their lands once a year if requested, under penalty of ten shillings.
No person was permitted to follow the business of brewing beer for sale but those skilled in the art.
The name and surname of every inhabitant in the several parishes must be registered; and it was provided that the minister or town clerk should truly and plainly record all marriages, births and burials in a book to be provided by the church wardens.
It was provided that no body should be buried except in public places, and in the presence of three or four of the neighbors, one of whom should be an overseer of the parish.
"Whereas, the public worship of God is much discredited for the want of painful and able ministers to instruct the people in the true religion, and for want of convenient places capable to receive any assembly of people in a decent manner for celebrating God's holy ordinances," it was ordered that a church should be built in the most convenient part of each parish capable to receive and accommodate two hundred persons. To pre- vent scandalous and ignorant pretenders to the ministry from intruding themselves as teachers, no minister could be admitted to officiate within the government but such as should produce testimonials to the governor that he received the ordination either from some Protestant bishop or ministers within some part of his majesty's dominions, or the dominions of any foreign prince of the Reformed religion; upon which testimonials the gov- ernor should induct the said minister into the parish that should make presentation of him. Ministers of every church must preach every Sunday and pray for the King, Queen, Duke of York and the royal family; and marry persons after legal publication or license. No person should be molested, fined or imprisoned for differing in judgment in matters of religion, who professed Christianity. Church wardens must report twice a year of all profaneness, Sabbath breaking, fornication, adultery, and all such abominable sins. No person employed about the bed of any man, woman or child as surgeon, midwife. physician or other person, should exercise or put in practice any art contrary to the known rules of the art in such ministry or occupation.
The constable should whip or punish any one when no other officer was appointed to do it.
All sales and alienations of property must be by deed, or last will and testament.
No condemned person could be buried near the place of execution.
Every parish minister was enjoined to pray and preach on the anni- versary of the deliverance from the Gunpowder Treason, November 5, 1605,
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and on January 30 "to manifest the detestation of the barbarous murder of Charles I in 1649," and on May 29th, "the birthday of Charles II, of blessed memory."
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Every town must have a marking or fresh-brand for horses. No ox, cow, or such like cattle could be killed for sale or for private use without notice given thereof to the town registrar.
No person could be a common victualler, or keeper of a cookshop or house of entertainment without a certificate of his good behavior from the constable and two overseers of the parish; nor suffer any one to drink excessively in their houses after nine o'clock at night, under the penalty of two shillings and sixpence.
No purchase of land from the Indians should be valid without a license from the governor, and the purchaser must bring the sachem or right owner before him, to confess satisfaction. No one was permitted to sell, give, or barter, directly or indirectly, any gun powder, bullet, shot, or any vessel of burthen, or row-boat (canoe excepted), with any Indian, without permission of the governor, under his hand and seal; nor sell, truck, barter, give, or deliver any strong liquor to an Indian, under penalty of forty shillings for one pint, and in proportion for any greater or lesser quantity ; except in case of sudden extremity, and then not exceeding two drams .- Chester's "Legal and Judicial History of New York," Vol. I, 158-163.
25. Upon the Peticon of John Matthews desiering to bee admitted as an attorney to this Court, etc .: The Court did admit the Peticonr as an attorney and was sworne accordingly: You doe sware by the Everliving God That you will according to Lawe truely plead & manadge all Cases wherein you shall be employed by yor Clyant that you will not exact in yor fees above what shall be allowed by the Governor & Court. That you will not in one and the same action take fees both of the Plt and deft; That you will not take any apparent unjust Case in hand, but in all Respects behave yor selve as all attorneys are obliged to by the Lawes of this gov- ernment .- "Records of the Court of Newcastle, 1667."
26. That no high Sheriffe, under Sheriffe, high Constable, petty Con- stable or Clarke of the Court shall be permitted to plead as an Attorney in any Persons behalfe in the Court where he Officiates, provided always that if any poore person not able to plead his own Case shall request the Court to Assign him the High Sheriffe under Sheriffe, high Constable, petty Con- stable or Clark to plead for him it shall be Lawful for the Court to grant it; And for the person to plead accordingly. But the person so pleading the poor man's Case is not to give Judgment provided also that any high Sheriffe, under Sheriffe, high Constable or Clark Acting as general At- torneys for any person, absent, out of the Country, and Negotiating their Affaires, and so Lyable to be sued for their Employers such Persons shall have liberty also to plead and prosecute in any Cause that shall any way Concerne their said Employers .- "Duke of Yorke's Laws," p. II.
27. Edmund Cantwell, High Sheriffe, in the behalfe of our Soveraigne Lord, the Kingh. Indytes Justa Andries and Aeltie, his wyfe, for that they the said Justa and Aeltie, not haueing the feare of God before their eyes and forgetting all Civility and the Respect due unto the Court and Justices who so nearly Represent the person of our soueraigne Lord, the King, haue
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on the 28th of June Laest past in a most slanderous, absurd, threatening and menacing manner by their ill dirty Language slaundered this Court and their officers, saying God dam the Court they bee all Cheating Rogues. Should I bee tryed by such Rogues as John Moll and a theef and hogh stealer as Gerrit otto they haue Given away a Cowe from mee I am sure to Loose all as Comes to the Court. I will beat and make them fly all to the Devill Iff I come to the Court in Earnest, saying further that hee would an other bout for the Cowe and hee would arrest Robberd Morton again to ye Court, and that then hee would see whether they, meaning the Court, had the hart to give away the Cowe, with a great many more dirty scan- dalous words and Expressions against the Court and their officers, and on the same day Aeltie, the wyfe of the said Justa Andries, fell Lykewyse a Raling, Cursing and swearing against the Court and their officers in these and the like words :* God dam that Moll, they are all a Lyke, Cheating Rogues, God dam the Sherrifes & Clarkes. .
To wich above said Indytment Justa Andries and aeltie, his wyfe, pleaded not guilty, but after the hereafter menconed witnesses were all sworne and examined in Court: They the said Justa & Aeltie said they would not stand out upon their vindication, but humbly threw themselves upon the mercy of the Court which being taken into Consideration :
The Court (haueing Regard to their submission Doe order an Sen- tence as followeth That they, the said Justa Andries and Aeltie, his wyfe, doe both upon their knees in Court aske forgiveness for their said offences, and that Justa Andries bee of the good behauior (and give security for the same during the Court's pleasure, and Laestly that they pay a fine of six hundred Gilders and give security for the payment thereof togeher with the Costs .- "Records of the Court of New Castle," pp. 226-228.
28. Undoubtedly the (Duke of York's) code was designed for the ultimate government of the entire province, but that it would be impossible immediately to bring all its provisions into effect among a people of such widely divergent character as the English and Dutch, who together con- stituted the bulk of population in the colony, was recognized by the judicious and far-sighted governor. For nearly half a century the Dutch in New Netherland had lived under municipal and judicial institutions derived from their mother country, and these were decidedly different from those to which the English were habituated. The population of New Amsterdam and of the valley of the Hudson was still mostly Dutch, although there had begun an infusion of other nationalities. For the most part, few of these people were in any wise familiar with English customs; as a matter of fact, they could not even understand or converse in the English language. Therefore, it was wholly impracticable to consider at the moment any abrupt substitutions of courts and legal procedure of English character in place of those which had been instituted by the Dutch. With his divided people to rule, the task before Nicolls was indeed one of tremendous difficulties. A wise reserve led him to refrain from interference with the Dutch ad- ministration, which he found in efficient operation, and to permit the authori- ties of the Dutch towns, such as Beverswyck, Rensselaerswyck and Esopus on the upper Hudson, and New Amsterdam and the purely Dutch com- munities in what afterward became Kings County, to administer their affairs and to distribute justice in their own ways.
So it was that for a considerable period the colony exhibited the anomaly
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of working under two legal systems, the Dutch continuing to follow the forms to which they were attached through inheritance from the Fatherland, and through their own local practices of nearly a half century. As the historian of the New York Court of Common Pleas, James Wilton Brooks, has said, the Roman-Dutch system of law which had been brought from Netherland to America by the Dutch pioneers was "a kind of irregular mosaic"; but the same authority considers that "on the whole it was infinitely superior to the more technical and artificial system" to which the English had been accustomed, and which Governor Nicolls now started to impose upon the colony. Upon the civil side, it is doubtful if the Dutch law was much, if at all improved upon by the English substitution. On the other hand, in the treatment of criminal cases the English practices were surely better, although it was long before the people of New Amsterdam, transformed into New Yorkers, became agreeably disposed to the English custom of trial by jury; they preferred and tenaciously clung to their own methods of settlement by arbitration or by the decision of judges.
Many of the Dutch practices continued to adhere with a persistency that fully demonstrated their usefulness, their righteousness. In fact, some of them were, in the course of time, permanently absorbed as a part of the English system. Nicolls carefully refrained from interfering with land ownership as much as possible, and his successors generally followed his example. Laws pertaining to property held under the Dutch land patents were permitted to stand as they were, and, in the course of time, many of these became part of the established laws of the province and the State. Primogeniture, an English custom particularly distinguished from that of Holland, made no headway with the New Yorkers, who rigidly held to the Dutch customs in respect to inheritance. Other traces of the Dutch legal and municipal systems are found in the laws of later periods. Among these are the Dutch methods of making wills by oral declaration before a notary, or by written instructions put in his keeping; the restricted rights of suffrage, which beginning with the time of Stuyvesant lasted for more than a half century and left a permanent influence; the modern district attorney, who is clearly the schout of the Dutch period; the practice of raising money for public purposes by excise tax, which was imposed upon the colony by the first Dutch governors; the practice of laying special assessments to provide for local improvements; and other instances showing the influence of the Dutch mind and Dutch practices upon the subsequent law and practices of the colony and State might be cited.
the (Duke of York's) code, as finally shaped and imposed upon the colony was far from being adequate and satisfactory for the purpose for which it was devised. At the first sitting of the newly formed Court of Assizes, in October, following the Convention (1665), more than one hundred amendments were made to it, and in due course these were con- firmed by the Duke of York. Other additions and alterations were made from time to time, and with these changes the colony was governed under the provisions of the code and according to its terms until the first provin- cial assembly was convened by Governor Dongan, in 1683 .- Chester's "Legal and Judicial History of New York," Vol. I, 164-168.
29. A parchment copy of this code, certified by Matthew Wren, Sec- retary of the Duke of York as "concordat cum originale," now faded with
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age and indistinct, is in the New York State Library. A copy is in Volume I of patents in the office of the Secretary of State in Albany. It has been reprinted in full in the "Report of the Regents of the University of the Boundaries of the State of New York," 1873, and in "The Colonial Laws of New York," Vol. I, pp. 6-73. When this code was promulgated in March, 1665, copies were sent to the several ridings constituting Yorkshire. The Easthampton copy has been preserved in the office of the town clerk. Another copy was filed in the clerk's office of Hempstead, but when North Hempstead was erected from Hempstead it was filed in Roslyn in the office of the clerk of the former town. It is now owned by the Long Island His- torical Society, 1811, Vol. I, p. 305. The amendments to the code are in "The Colonial Laws of New York," Vol. I, pp. 73-79. The "Duke of Yorke's Book of Laws" is the title of a publication by the Commonwealth of Pennsylvania in 1879.
CHAPTER XIX. THE NICOLLS AND LOVELACE ADMINIS- TRATIONS .*
As might have been expected, the Dutch nation protested strongly against the seizure of its North American province. Late in 1664 the news of the British success in New Nether- land, and also against Dutch colonies in Africa, reached England, to be received with open approval at court. Car- teret told Pepys that "the king did joy mightily at it," but asked him, laughing, "How shall I do to answer this to the ambassador when he comes?" The answer was "by the in- solent claim of priority of ownership," the English ambassa- dor at the Hague also treating the matter with a high hand. The Dutch Grand Pentionary, De Witt, on the other hand, had no intention of taking the affront meekly. He demanded the return of the American province; and he secretly ordered De Ruyter, with his fleet, to retaliate on the English posses- sions on the Guinea coast. Before the end of the year 1664 the two nations were undoubtedly in a state of war, though
*AUTHORITIES-Pepy's "Diary"; Bryant's "History of U. S."; "Docu- ments Relative to the Colonial History of New York"; Valentine's "New York Manual (1852) ; Brodhead's "History of the State of New York"; Mrs. Schuyler van Rensselaer's "History of the City of New York in the Seventeenth Century"; White's "National Cyclopedia of American Biog- raphy"; Josslyn's "Two Voyages to New England" (1672) ; Denton's "Description of New York," 1670; Werner's "Civil List and Constitu- tional History of the Colony and State of New York"; "The Historical Magazine"; Chester's "Legal and Judicial History of New York"; Red- field's "English Colonial Polity and Judicial Administration, 1664-1776," "History of Bench and Bar of New York"; Scott's "Courts of the State of New York"; "Courts and Lawyers of Worcester County, Massachusetts"; Washburn's "History of the Judiciary of Massachusetts"; Eastman's "Courts and Lawyers of Pennsylvania"; "Records of the Court at New Castle"; "Records of New Amsterdam"; Trumbull's "History of Connec- ticut"; "Bartow Genealogy"; Gordon's "History of New Jersey"; White- head's "Historical Memoir of Newark," N. J. Hist. Soc. Coll., Vol. VI; Whitehead's "East Jersey Under the Proprietary Government"; "Maverick's Letters in the Winthrop Papers," Mass. Hist. Soc. Coll.
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formal declaration was not made until March, 1665. Nicolls was probably aware of this state of affairs early in 1665; surely, he knew of it when Carteret reached New York in June; and it probably had been influencing his plans as to the municipal government of the two principal cities, New York and Albany, both of which were essentially Dutch towns, and as such, by the terms of surrender, should be priv- ileged to continue the Dutch system of burgher government.
Nicolls was so tolerant and honorable in most of the acts of his administration that there seems good reason to believe that he would not have revoked the authority of the burgomasters and schepens had not the two nations drifted into a complete state of war. Certainly, most governments, if so placed, would have acted in their own interests as he did for the English, for when the Dutch naval forces were, if anything, superior to those of the enemy, it would hardly be deemed wise to permit the local government of the two chief fortified places of a British province to remain in Dutch hands, even though the Dutch magistrates of these munici- palities had taken the oath of allegiance to the English crown.
But whatever may have been the reason for his action, the inhabitants of New York knew, positively, early in June, 1665, that burgher government must give way to the English sys- tem in New York at once, and ultimately everywhere in the province. On June 12, by proclamation, Governor Nicolls made known that, upon mature deliberation and advice, he had found it necessary to "revoke and discharge the fforms and Ceremony of Government of this his Majesties towne of New Yorke under the names, style or styles, of Schout, Burgomasters & Schepens." Accordingly, the municipal court of this character was from that time dissolved, and the officers elected to it in the preceding February thus had to relinquish their authority. "For the future administracon of Justice by the Lawes established in these Territoryes of his Royall High-
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nesse, wherein the welfare of all inhabitants and the Preser- vacon of all their due Rights and Privileges Granted by the Articles of this towne upon surrender under his Majesties Obedience are concluded," the governor ordained that "by a particular Commission, such persons shall be authorized to putt the lawes in Execucon in whose abilityes, prudence & good affection to his Majesties Service and ye Peace and happiness of this Government I have especial reason to put Confidence, which persons so constituted and appointed, shall be knowne and called by the Name and Style of Mayor, Al- dermen and Sheriffe, according to the Custome of England in other of his Majesties Corporacons." On the same day, by another ordinance, Manhattan Island was to wholly come within the jurisdiction of the municipality of New York, the ordinance reading: "That the inhabitants upon Manhattan Island are and shall be forever counted, nominated and Es- tablished as one Body Politique & Corporate under the Gov- ernment of the Mayor, Aldermen and Sheriffe."
An English sheriff, John Manning, was appointed to the Albany district in 1665, though it does not seem that that city was under mayoral government until 1686, when Peter Schuyler became mayor. But in New York City the conver- sion to the English municipal system was effected in 1665. In the constitution of the new court the celebrated Mayor's Court of New York City, Governor Nicolls tried to be fair to the Dutch inhabitants as well as reasonably cautious in the interests of the English crown1; at least four men of the
I. when, in June, 1665, Thomas Willetts was appointed mayor, and other Englishmen were put upon the board of aldermen, Nicolls was accused of disregarding the articles of capitulation. Such complaints the Governor met by pointing to his instructions, which required him to con- form to English custom in his rule of the province. In the appointment of Englishmen to office his wish was, he declared, to provide for the peace and quiet of the whole community by having in office men of both nations. The discontent was speedily allayed, for no fault could be found with the selec- tion of officers made among the English. The mayor, Willett, especially was greatly esteemed among the Dutch, whom more than once he had served
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new court were connected with the old, those appointed to the Mayor's Court being : Thomas Willett, mayor; Thomas Dela- vell, Oloff Stevenson van Cortlandt, Johannes van Brugh, Cornelis van Ruyven and John Lawrence, aldermen; Allard Anthony, sheriff. Van Cortlandt had been burgomaster of the outgoing court, and Anthony had been its schout. Johannes Nevius, who had been the secretary of the Schepens Court, became the clerk of the new.2 The formal inaugura- tion of the Mayor's Court, which for one hundred and fifty-six years was destined to be the municipal court of New York City, was observed on June 15, the new magistrates taking their oaths of loyalty to the crown and to the Duke of York and Albany without, of course, having knowledge of the great events which had almost cost the life of the royal proprietor,3 while giving England the victory in a naval engagement of
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