USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 32
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in important trusts in the time of the late governor. Moreover, there could be little real fear of injustice, for the sheriff . . and the majority of this new board of aldermen were still Dutch .- Bryant's "History of the United States," Vol. II, 329.
2. To the mayor and aldermen, or any four of them, full power and authority were given to rule and govern "according to the general laws of the government and such peculiar laws as are or shall be found convenient and necessary for the good and welfare of the corporation"; and they also had power to appoint officers for the orderly execution of justice.
On June 15, three days after receiving this commission, the mayor and aldermen met at the Stadt Huys and organized a court. This became the celebrated Mayor's Court of New York City, which continued under that name for one hundred and fifty-six years, when its jurisdictions were trans- ferred to other tribunals. The mayor's court constituted the Court of Sessions for the city, in the same manner as the justices of the peace of the country towns constituted the sessions courts of the counties. At their first meeting the members of the Mayor's Court chose as their secretary Johannes Nevius, who was the former secretary of the court of burgo- masters and schepens. On June 27th, the court held its first meeting for the hearing and trial of cases. It was directed that the records should be- kept in English and in Dutch, and thus, without break, the judicial adminis- tration of the affairs of the community went on as before, the difference in name being the only perceptible change .- Chester's "Legal and Judicial History of New York," Vol. I, 172.
3. While Nicolls peacefully debated with the burghers in the Stadt Huys, the Duke of York was face to face with the Dutchmen in quite an- other way, and one that came well-nigh giving to the Governor a new master ; for as the Duke, who was in command of the English fleet, stood on the
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two hundred ships of war. The first judicial session of the Mayor's Court did not, however, begin until June 27.
There had probably been earlier sessions of the courts of the country towns, but that of June 27 was the first in New York City at which the trial was by jury.4 Notwithstanding that the Dutch magistrates of the Mayor's Court of 1665 out- numbered the English, and that they were positively against the English system of trial by jury, and while in later years the English system in this respect was not fully accepted by the Dutch of New York, the court records show that the first case of the first day of the Mayor's Court introduced the jury trial, the suit being that of Francis Doughty against John
deck of his flagship, the "Royal Charles," three of his officers were shot down at his side, so that their blood "flew in the Duke's face."-"Pepys' Diary."
4. All cases were triable by a jury chosen in the following manner : A list of the causes for trial at the next session was given to the clerk of the court, the sheriff or under-sheriff, so that warrants might be issued sum- moning jurors, usually the overseers of the neighborhood, to hear the dif- ferent cases. Should a sufficient number not be available, the sheriff was authorized to select able and discreet men "as shall either attend the court upon other occasions, or shall happen to be inhabitants of the towne where the court shall be held."
It was the province of the jury to try the action between party and party, determine the facts of the case, and award damages according to the evidence. When the evidence had been fully submitted and the case tried, the governor and council, or in their absence, the senior justice, pronounced the judgment of the court, and instructed the jury as to the points of law which had arisen during the trial.
The compensation of jurors was three shillings and six pence per day, which were collected from the fees and charges of each court; or if these moneys were insufficient, from the public treasury.
As already stated, the number of jurors was not to exceed seven, nor be less than six, except in capital cases, where it was discretionary with the judge to appoint a jury of twelve.
. the verdict of the majority of the jury was final and binding on the minority, who were deprived of any allowance of protest.
On capital cases, where the verdict meant life or death, a unanimous verdict was required.
None were eligible to serve as jurors who were in any way related to the party or parties involved in the litigation; but after being accepted and sworn, a juror could not be challenged. Should a juror presume to reveal the discussions and opinions of dissenting jurors, or other proceedings of the jury, he was subjected to a fine of ten shillings, and further punished as the justices saw fit .- Scott's "Courts of the State of New York," p. 75-77.
C.&L .- 22
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Hinxman and Kenelm Winslow.5 Probably it was through the influence of Mayor Thomas Willett that the court opened with the empanelling of a jury of twelve to try civil causes ; also that the magistrates voted "that trials by jury should be on the first Tuesday of every month" thereafter.
When Governor Nicolls had brought the new system of government into full operation in the province, in accordance with instructions from the home authorities, he reported to the Lords of Plantations, of which body Lord Clarendon was the head, answering several queries concerning the affairs of New York. As to the courts and legal procedure observed, Governor Nicolls reported that all causes were tried by juries, and by "no Lawes contrary to the Lawes of England."6 Yet,
5. ffrancis Douthy, pltf. vs. John Hinxman and Knollum Winslow, defts. The Court doth Order that the Partyes shall deliver in their Evidence to the following Juries to witt, Caleb Burton, Isaacq Bedloe, Christ hoog- land, Balthw de Haery, Wm. dornel, James Bullaine, John Gurland, John Browne, Charles Bridges, John damrel, Thos. Carbet, Saml Edsal.
The Juries doe Judge that the defenders shal pay the plaintiv Soo much as he shall appeare by true accounts due unto him from the Sd defenders, besides the Costsd, Judgment & Nominates for the View, Examine and make up the accounts betwist the partyes from the time that the Bark was Sould to Mr. Tacher till the tyme that she was Returned againe to the sd Douthy to witt, Mr. Jacob Backer, Mr. Isaacq Bedloe, Mr. Balthazar de haert & Mr. Samuel Edsal Ady ut Supra.
Knellum Winslow, pltf. vs. ffrancis Douty, deft. The Court does order the Parties to deliver their Evidence to the before standing juries. The juries doe judge that the defendrs shall pay besides the damages of the Court to the Plaintive the Somme of five and twenty guilders Wampum. The honnble Court doe give their Assent to the foresd Judgement Adt ut Supra. ,
John Hinxman, pltf. vs. ffrancis Douty, deft. With Consent of both Partyes the Court does Order that they shal deliver their evidence to the jury. The juries judgment is, that the deft. shall pay to the pltff. Soo much as is due to him by Bond besides the Cost & damages of the Court. The Honnourable Court doe give their assent to the aforesaid judgment. Ady ut Supra.
ffrancis Douty, pltf. vs. Knellum Winslow, deft. In Action of Assalt & Batterie the wh The Court orders that the parties shall deliver in their Evidence to the aforesaid Judges. The Juries doe allow the Plaintive for his fine thirty pence besides the damages of the Court. The Honble Court doe give their Assent to the above said allowance. Ady ut Supra.
6. Ist. The Governour and Councell with the High Sheriffe & the Jus- tices of the Peace in the Court of General Assizes have the Supreme
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even in the first case tried by jury (Doughty vs. Hinxman and Winslow), the record "shows an instance of a compulsory reference of a part of the issues, a common enough procedure under the Dutch rule, but practically unknown in English procedure."7
However, during the two years of war, Governor Nicolls held close control of and vigilant watch over the affairs of the province. He tried not to hurt the feelings of the Dutch in- habitants; but the possibility that De Ruyter, with his great Dutch fleet, might suddenly appear in New York waters seemed to be ever before him.8 However, the apprehended attack never came, and the Dutch and English sections of New York's population did not at any time come into serious controversy in regard to the war in Europe. The English on Long Island during 1666, however, became restive through dissatisfaction with the Duke's laws. To meet the dissatis- faction evidenced at the convention at Hempstead, the gov- ernor had tentatively accepted more than one hundred amend- ments to the Duke of York's code, and in due course, at the first meeting of the Court of Assizes, in October, 1665, these amendments had been recognized, subject, of course, to ulti- mate confirmation by the Duke. These did not satisfy the
Power of making, altering and abolishing any Laws in this Government. The County Sessions are held by Justices upon the Bench, Particular Town Courts by a Constable and Eight Overseers, the City Court of N. Yorke by a Mayor and Aldermen. All causes tried by Juries.
7th. All causes are tried by Juries, no Lawes contrary to the Lawes of England. Souldyers only are tryable by a Court Marshall, and none others except in cases of sudden invasion, mutiny or Rebellion, as his Mates, Lieu- tenants in any of his Countries of England may or ought to exercise .- See "Documents Relative to the Colonial History of the State of New York," O'Callaghan, III, 188.
7. In Valentine's "New York Manual for 1852" will be found several extracts from the records of the first Mayor's Court of New York.
8. The immediate effect of the declaration of war upon that province was to compel Nicolls to take all possible measures for its defence, lest De Ruyter should come that way on his mission to "inflict . . . as much dam- age and injury as possible" upon the English .- "Dutch Document," cited by Brodhead, Vol. II, 58.
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Long Islanders, and some stern examples had to be made of the most intractable offenders, while extending indulgence to others. This trouble had scarcely ended before the gov- ernment had to deal with another arising out of the reluct- ance of land owners to comply with the requirements of the government, that they renew their patents, a formality which would enable the proprietary government to exact certain fees and insert the objectionable quit-rent clause. However, the enforcement of the law as to land patents had been decided upon by the Court of Assizes in September, 1666, and the in- habitants, after much discontent, yielded.
These troubles were before the provincial government in 1666; but they were not by any means the only perplexities that came to Governor Nicolls in that year. France had joined Holland in warring against England, and King Charles had instructed the American governors to begin what hostile measures were possible against Canada, the seat of France in North America. But the English colonists were reluctant to act, even though the French came, in armed force, to within a short distance of Albany. Therefore, Governor Nicolls tactfully accepted the affirmation of the French that they were warring only against the Mohawk Indians, and he actually aided the French commander, Tracy, in negotiating a treaty of peace with the Mohawks. By these able diplomatic moves he contrived to get the French to leave New York territory without conflict between the two white nations.
In 1667 (July), the peace treaty signed at Breda between England and Holland confirmed England in the possession of the former New Netherland. At the same time, by another treaty with France England lost Acadia. Massachusetts viewed the latter French advantage with apprehension, for it brought the frontiers of New France so much nearer New England; but when the peace of Breda was proclaimed in New York, on New Year's Day of 1668, there was general re- joicing in the province-at least among the English, though
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there must have been many of the Dutch inhabitants who had been praying that the success of Dutch arms in the war would end English rule of the former New Netherland.
However, the Dutch colonists, as a whole, were somewhat apathetic in the matter, for they recognized that Nicolls had judiciously governed the province that had been so misgov- erned by the earlier governors of their own nationality. True, he had not given them representative government, but the English were more discontented without it than they were. Therefore, when, at the end of August, 1668, Nicolls departed, having relinquished the governorship to Colonel Francis Lovelace, who had arrived in February, he was tendered good evidence that his administration had been appreciated. "The freemen of New York mustered under arms and in military order at the lower part of the town, to bid a ceremonious as well as a heartfelt farewell to the governor who had ruled them so justly that he had left no enemies behind." His fellow commissioner, Maverick, wrote of Nicolls, that he had served in the province "with great reputation and honor; had done "His Majesty and his Royal Highness very considerable ser- vice in these parts," having, "by his prudent management of affairs, kept persons of different judgments and of diverse nations in peace and quietness during a time when a great part of the world was in warrs." Nicolls had also brought the "several nations of Indians . . . into such a peaceable pos- ture and faire correspondence" as had never been known before.
On August 28, ex-Governor Nicolls sailed, bearing an address from the freeman of New York to the Duke of York, "setting forth his good service and the peacefulness of the province." He left behind "a name which stands preeminent among the royal governors in America for moderation, jus- tice and wise forbearance." In his four years as governor "he accomplished a work far in advance of anything that had ever been achieved by any of his predecessors," and had
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"placed the colony upon a sound foundation" and had "proved himself to be a remarkable man of affairs, farsighted and statesmanlike, tactful and generous in his dealings with the people over whom he had been placed, but at the same time unswerving and determined in whatsoever he believed to be the best interests of the community. His praises have been sounded by every historian of New York." Mrs. Van Rens- selaer very descriptively writes of the qualities, ability and achievements of the first English governor of the former Dutch province9; and her opinion of him perhaps agrees with that of the average Dutch colonist of Nicolls' day. As has been stated, Nicolls was recalled at his own request; and his recall "was accompanied with kind and flattering words from the king and the king's ministers."
Sir Richard Nicolls, for he attained knightly rank, was born at Ampthill, Bedfordshire, in 1624. He was pursuing his university course at the time Cromwell's opposition to King Charles I divided the people into Royalists and Round-
9. In New York his tact, his good temper and his impartiality had never failed. Many old matters, Van Ruyven wrote to Stuyvesant in Hol- land, had been "ripped up and misinterpreted," but the governor "wisely disregarded them." He well knew. as he wrote to his commissaries in Albany when urging them so to behave that the Dutch and English might "live as brothers," that to pay heed to "strange news" and gossip "commonly tends to the dividing of men's minds." With his soldiers he was so strict that they provoked only one small riot on Manhattan. When the Dutchmen at Esopus broke into open revolt, exasperated by the behavior of the gar- rison and the harshness of Captain Brodhead, who failed to follow the gov- ernor's good advice. Nicolls did indeed banish the ringleaders, but he also suspended Brodhead. His sympathy with the Dutch, and his confidence in their good intentions he showed in acts as well as words, notably in many ap- pointments to office, including the appointment of Van Ruyven to the re- sponsible post of Collector of Customs, as Delavall's successor. He did what he said he wanted to do-he won the affections of the people con- fided in such difficult circumstances to his care; yet in accomplishing this he shirked no responsibility, shunned nothing that his duty to the Duke or his own estimate of the needs of the province demanded, and ventured to break promises that had been given before he fully understood either local conditions or his master's desires. In all phases of his complicated work he stood virtually alone, with few to advise him, none to share responsibility with him. Nevertheless, his correspondence shows that he quickly learned to comprehend colonial problems even in their broader aspects, except only
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heads. Nicolls, although only eighteen years old, was given command of a troop of horse of the Royalist forces; and with the Stuarts he escaped to the continent. In exile, he was attached to the service of the Duke of York, fighting by his side in the Continental wars. He returned to England at the Restoration, and became a member of the Duke's house- hold. In 1664, he headed a commission to the American col- onies, being especially entrusted with the winning of New Netherland. His success in this trust has already been stated. After his return to England in 1668, he lived in retirement upon his Ampthill estate for a while, his purse being but slen- der and having become sadly depleted by his four years of underpaid service as governor. On several occasions, it ap- pears, he had contributed from his own means to meet the demands upon the "depleted provincial exchequer," and to maintain the governorship in proper vice-regal dignity. But when war broke out in 1672, Colonel Nicolls was again given a place at the side of the Duke of York, Admiral of the Fleet. On May 28, 1672, Nicolls took part in the great naval battle between the Dutch and English fleets, the former under De Ruyter and the latter in command of the Duke of York and Marshal d'Estress. It was the ex-governor's last battle, the gallant colonel being killed in that engagement in Southwold Bay. He had never married, and had given his life wholly in loyal service to the royal house of Stuart-most capable ser- vice ill requited-at least, by a monetary standard. Like many of his class of that day, Sir Richard Nicolls was of scholarly attainments, especially learned in classics, being
the supreme importance of the friendship of the Iroquois. In his official as in his private capacity, this first English governor of the Dutch province seems to have been a man in ten thousand. Certainly among those who followed him in office, only three or four deserved to be compared with him for ability, diligence or integrity; scarcely one showed so kindly a feeling for the people he governed; and not one continued, as did Colonel Nicolls, to bear their interests in mind and to labor for their good after he left their shores .- Mrs. Schuyler van Rensselaer, in "History of the City of New York in the Seventeenth Century," II, p. 64.
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"well versed in Latin and several European languages." He spoke Dutch fluently, which accomplishment enabled him to more clearly grasp the Dutch situation in New York. "Quick to see the future greatness of New York, he was the first to point out the rare advantage of its situation."10
Francis Lovelace, second son of the first Baron Lovelace, was the next governor of New York; but in his administration of five years he failed to show capability for the trust like that of his predecessor. His character was not especially strong ; he had little initiative, and was more inclined to follow lines of least resistance. But good lines had been laid by Nicolls, and Lovelace held the province fairly well on these lines of progress.
New York City was rapidly increasing in commercial im- portance, so much so, indeed, that "the brethren of Boston were very sensible" of the fact. "His Majesty's City of New York" in 1670 covered that part of Manhattan Island which lies below the present Wall Street .. In its very name, Wall Street commemorates the line of palisades which formed the northern limit of the town proper. Below the wall were the more permanent structures, the residences of the wealthier citizens and the business houses. Beyond the palisades were the hamlets and farms of the poorer colonists. In 1672, there were about four hundred buildings below the wall, "the meanest house therein," stated a visitor at that time, "being valued at one hundred pounds"11 They were solidly con- structed, "much after the manner of Holland," being built "with Dutch brick alla-moderna," "covered with red and black tile," with their gable ends facing the streets after the vogue of the Fatherland. A gateway in the palisade led from the Heere Straat below the wall to the Heere Wagh beyond, both making the lower end of the highway now known as Broadway. Along the Heere Wagh toward the upper end of
10. White's "National Cyclopedia of American Biography," XIII, 448. II. Josslyn's "Two Voyages to New England" (1672).
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the island the dwelling houses and farms (bouweries) stood, close together for a little distance beyond the wall. The Heere Wagh, however, soon passed into the thickly wooded and sparsely populated part of Manhattan Island. The "Flats," or "Common" covered the site of the present city hall; after which came farms, and then the "Great Bouwerie," from which the present Bowery takes its name. In it Petrus Stuyvesant lived, and in it in that year it is said he, the most famous of the Dutch governors of New Netherland, died. The governor's house probably stood near Tenth Street of modern New York, a little eastward of Third Avenue. Be- yond it, over the rest of Manhattan, were swamps, woods, clearings and outlying plantations to New Haarlem, a little village at the junction of Harlem and East Rivers.12
One of the most important acts of the Lovelace adminis- tration was the opening of the highway between New York and Harlem, as part of a post road between New York and
12. To complete the picture of New York province in 1670-72, it might be stated that from the Westchester villages along the Sound, the people always reached New York by water, risking the "terrible perils of Hell- Gate," the whirlpool of which "continually sends forth a hideous roaring, enough to affright any stranger from passing any further"; "yet a place of great defence against any enemy coming in that way, which a small Forti- fication would absolutely prevent, and necessitate them to come in at the west end of Long Island by Sandy Hook, where Nutten Island doth force them within command of the Fort at New York, which is one of the best Pieces of Defence in the North parts of America."-See Denton's "Descrip- tion of New York, 1670."
With the nearest part of Long Island the communication was by a ferry near the Peck Slip of two centuries later. There such passengers as would cross might summon the ferryman by blowing a horn that hung to a neighboring tree. The ferryman's boat carried its passengers to Brueke- len, described as a village with "a small and ugly church standing in the middle of the road"; whence the traveller might turn to the right to go to Gouanes (Gowanus), to Vlacke Bos (Flatbush), to Rust-dorp (Jamaica), Heemstede, and the hamlets and farms beyond.
Along the bank of the Hudson and kept in communication with the capital by the little shallops of the settlers, or the larger vessels of the fur traders, were scattered farms and little settlements; while Esopus, Rens- selaerswyck and Albany were garrisoned places. To the northwest of Albany, on the beautiful Mohawk, lay the outpost of civilization, the hamlet of Schaenhechstede (Schenectady), which was then in its first decade.
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Boston. But there was little else that disturbed the placidity of New York City life in those years. In general, the Dutch and English lived amicably together, some of the leaders on both sides, indeed, being especially painstaking in their efforts in this respect.13 But there were many, in other towns, who could not take kindly to Governor Lovelace, or to each other. Some of the Dutch in New York province became so discon- tented that they left their holdings and migrated to the Ash- ley River colony in South Carolina in 1670. There was un- rest on the northern frontier in 1670, the Dutch and English clashing at Albany. The English, apparently, were asserting their authority somewhat roughly. At least the commis- sioners sent to Albany to investigate in the spring of 1670 found that the provocation lay with the English commander at Albany, Captain Baker, who at their suggestion was dis- missed.
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