USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 33
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43
But there was more serious discontent on Long Island, among the English. Indeed, they reached such a rebellious inclination that the governor ordered their town votes to be publicly burned in the spring of 1670 in retaliation for their refusal to contribute money to renew the fortifications at New York.14 There was also some apprehension on the frontier as
13. "There is good correspondence kept between the English and Dutch," wrote Commissioner Samuel Maverick in 1669, "and to keep it the closer sixteen (ten Dutch and six Englishmen) have had a constant meeting at each other's houses in turns, twice every week in winter, and in summer once. They meet at six at night and part at about eight or nine."
14. The new Governor, in 1669, directed the Court of Sessions to pro- vide the means necessary to repair the palisades at New York. The towns refused to pay the taxes levied, because they were denied the privileges con- ceded in New England, the liberties due all Englishmen, the right that under the British Constitution no taxes could be levied except by their own rep- resentatives. The Court, sitting at Gravesend, characterized the resolves of the several towns as "false, scandalous, illegal and seditious"; the Gov- ernor and Council expressed similar sentiments and ordered the papers. to be burned and the principal promoter prosecuted. The Great Charter forced from King John by the barons had provided that, with the excep- tion of the customary feudal aids, "no scutage or aid shall be imposed in our realm save by the Common Council of the realm." Even these grants:
347
NICOLLS-LOVELACE ADMINISTRATIONS
to the increasing activity of the French, although, as Gov- ernor Lovelace said, to reassure the people of Albany, "it was very improbable that when there was no war in Europe, Cour- celles would begin one in America."
However, they had not long to wait, although when war did come, in 1672, France, by one of the tortuous undercurrents of international politics which are only chartable along the ever-shifting river bed of self-interest, was found to be at the side of England, her adversary of 1666-67. England, for self interest, was allied to the great Catholic power, France, against a nation of her own faith, Holland ; all of which is not surprising, like associations having functioned earlier, just as in later centuries Christian nations have allied with Mo- hammedan, to fight other Christian peoples. And Governor Lovelace was destined to find eventually that individuals could be just as inconsistent as nations. In the heat of the moment, when checked in his governmental measures by a demand for greater liberty for the people, who wanted to be represented in deliberations that affected their own purses, Governor Lovelace is said to have instructed his Council to "lay such taxes as may give them liberty for no thought but how to discharge them." It would, therefore, not be beyond
made in the Great Council were binding only on the barons and prelates who made them; and before the aid of the boroughs, the church or the shire could reach the royal treasury, a seperate negotiation had to be con- ducted with the reeves of each town, the archdeacons of each diocese, and the sheriff and shire court of each county. Lovelace undertook to force the collection of taxes through this latter channel. It was with reluctance that the people of England abandoned the system under Edward, and ac- cepted representation in Parliament instead. But Englishmen had grown wiser since, and no freeman would now relinquish the right. Hence the irrepressible conflict proceeded. The feeling in New York was intensified by the granting of a General Assembly to New Jersey, with the right of freedom of taxation except by its consent. The first assembly met in 1668 .- Werner, in "New York Civil List," 1889 edition, pp. 47 and 48.
In all probability the Long Island voters were strengthened in their re- sistance by the happenings of that year in New Jersey, where the settlers positively refused to pay or recognize quit-rents. They claimed the Indian title as paramount.
348
COURTS AND LAWYERS
credence to suppose that the Englishman who told the Dutch commanders in 1673 (when cruising northward from Virginia and in dire need of wood and water) "that New York was incapable of defence" was one of the disgruntled Long Islanders who could not be brought to cooperate with a governor who had refused to cooperate with them. And the Dutch commander thinking in terms of selfishness, can hardly be blamed for giving more credence to the state- ment of another English prisoner, who declared that "there were a hundred and fifty guns mounted at the fort, and that five thousand men could be mustered in three hours."
Quite possibly several thousand men might have been mustered in the English province had they been well gov- erned and consequently satisfied with the existing order. But arbitrary rule engendered only apathetic interest in the gov- erned for the governors. Hence it happened that when on August 7, 1673, twenty-three Dutch ships of war anchored in the outer bay of New York, just below Staten Island, "rather afraid of receiving some disturbance from New Yorke than giving any to it,"15 but so badly in need of water that the Dutch commander had decided to risk such disturbance, there were townsmen sufficiently dissatisfied with English rule to gladly go out of their normal way to acquaint the Dutch com- mander with the true state of the New York defences, stating that the fort was garrisoned by only seventy or eighty men ; that the guns were either dismounted or their carriages rot- ten ; that the governor was absent and no efficient commander was in his place; and that, most vital of all, the people gen- erally were discontented with English rule. While it is true that the English inhabitants did not actually rally to the side of the Dutch, it is equally true that by their inactivity and apathy they made the capture of the fort by the Dutch cap- tains easy. Had the promise made by Governor Nicolls in
15. Letter of Richard Wharton, in "Hist. Mag.," 2nd series, Vol I, p. 297.
349
NICOLLS-LOVELACE ADMINISTRATIONS
J664 been met, had the English people been given proper rep- resentative government they would have met the tax demands to put the New York defences in proper state of repair. Had they been part of the government, they would have consti- tuted in themselves strong and loyal militia units, strongly patriotic and ready at call to uphold their king and defend their province. But when Manning (who had hastened back to Fort James, to take command and endeavor to hold the Dutch in check while the militia captains of the towns has- tened with their companies to New York) sent his drummers through New York calling for volunteers, he had regretfully to recognize that "the drums stirred no martial ardor in the breasts of the citizens,"16 also that no militia units came from the towns. As a matter of fact, very few of the militia cap- tains responded to the summons from Manning, and they had no commands, for the militiamen refused to rally. So the first period of English rule in New York may be deemed to have ended through failure of the proprietary government to
16. Manning, meanwhile, was not idle. Messengers were hurried off to recall Lovelace; orders were issued to the military captains of the towns to hasten to New York with their companies; the drums were beaten through the streets for volunteers; the smith was set to work to repair the arms; the commissary was sent out to gather provisions to victual the fort in case of siege; and, to gain time, a deputation was despatched to the fleet, to demand the meaning of the approach of this hostile force. Manning . . was not a coward, and no doubt he did all that any man could do under the circumstances in discharge of his duty. But his efforts were in vain; there was not time for the Governor to get back from Connecticut ; the militia of the country towns refused to rally, even where-as was the case in only two or three instances-their captains responded to the sum- mons from Manning, the drums stirred no martial ardor in the breasts of the citizens; the labors of a single smith on firelocks could avail but little in a fort where nobody would come to use them, where six only of the large guns were on platforms, and to the whole there were but four sponges and four ladles. Even his attempt to save time by sending a flag to the fleet probably only betrayed weakness and fear to the enemy. The next day their guns were frowning upon Fort James from as many ships as the stream in front could conveniently float.
To the repeated demand for surrender Manning could only ask a little more time. The Dutch commanders would give at least but thirty minutes, and turned over an hour-glass to mark the time. As the last sand ran out they opened fire, and some in the fort were killed and some wounded. Any
350
COURTS AND LAWYERS
give the people the rights to which they, as free-born Eng- lishmen, were entitled.
Thus ignominiously ended the Lovelace administration. But he suffered even greater indignity than to be thus sum- marily dispossessed of his high office. Somewhat indiscreetly he ventured back to New York City a few days after the entry of the Dutch. The military commanders had attached his and Manning's residences and visible estates deeming them to be public property. But they did not make the ex- governor a prisoner when he returned; they treated him kindly. Which is more than can be recorded of the civil au- thorities, for within three days of his return, he was arrested for debt. Thereafter, until the departure of the Dutch naval commanders, Lovelace was virtually under arrest; and one of the last acts of the Dutch naval council was to confiscate all the public property they had formerly attached. Thus the former governor was stripped of his last guilder ; and he found his lot harder to bear when quietly told that if he would now pay what he owed, he would in six weeks be permitted freely to leave the country. Fortunately he was not detained long. He returned to England a disappointed man, perhaps con- sidering himself as one whose career had been wrecked by a mere chance turn of the wheel of fortune. Had the Dutch commanders not needed water, Lovelace may have solilo- quized, he would still have been governor. It may not have occurred to him that had his administration been congenial to the taxpayers of the province they could have stopped the Dutch from unseating him. However, in this failure to pro-
defence. of course, was utterly hopeless, though the fire seems to have been returned; but at the same time a force of six hundred Dutch landed on the banks of the Hudson in the rear of Trinity Church in Broadway and moved to the assault. There was nothing left but immediate capitulation. Just as the sun went down the Dutch troops marched into the fort out which Stuyvesant had stumped nine years before at the head of his men. How happy would he have been could he have lived to see that sight !- Bryant's "History of the United States," Vol. II, 348.
35I
NICOLLS-LOVELACE ADMINISTRATIONS
vide good government, his royal master was more to blame than he, for while he, as deputy governor, had authority, with his Council, to frame laws for the government of the province, such laws had to conform with the general scheme of proprietary government; and this scheme did not provide or propose any genuine form of popular government. As a matter of fact, Governor Lovelace had less scope than his predecessor, Colonel Nicolls, for the plan of government had already been so completely laid that when he was sent to relieve Nicolls in 1668 he was given a confirmation by the Duke of York of the code of laws promulgated at Hempstead, and subsequently amended by the Court of Assizes created by Nicolls, but was expressly admonished "to make no altera- tions in the laws of the governor settled before his arrival." So, one might argue that Lovelace was the victim of unfor- tunate but unavoidable circumstances. Nevertheless, a man of more initiative and stronger character would have found a way to repair the dilapidated defences; a man of greater fore- sight and keener judgment would not have characterized as merely "one of Manning's larrums," his lieutenant's urgent appeal to him to hasten back to New York because of the rumor that had just reached the city that a Dutch fleet was on its way northward from the West Indies. Generally, the men who succeed do so by anticipating and guarding against the misfortunes other men of hazier vision would fail to see in time.
Of the public acts of the five years of governorship by Colonel Lovelace there is little of importance to record. In 1670 he extinguished fully the Indian title to Staten Island. This, and the post road from New York to New Haarlem, were the only outstanding events, though it must be admitted that the province progressed steadily during his period as governor, for he did not, in general, commit any flagrant acts of oppression that would retard its normal progress. Gov- ernor Lovelace had a few able councillors. In the first years
352
COURTS AND LAWYERS
his Council consisted of four members, including Matthias Nicolls, the provincial secretary, Cornelis Steenwyck, mayor of New York City, and Thomas Willetts, former mayor. Others who were members of Governor Lovelace's Council at some time during the five years were Thomas Delavell, Ralph Whitfield, Isaac Bedloe, Francis Boone, Cornelis van Ruyven, Captain John Manning, Dudley Lovelace and Thomas Lovelace. The two last named were younger broth- ers of the governor.
The courts functioned, no doubt, much as they had during the Nicolls régime. Once each year, in all probability, the Court of Assizes held a session, attended by justices of the peace as well as by the members of the Provincial Council, this court thus seeming to have in it an element of popular government, though in fact it had no authority independent of the governor, at least not in legislative matters.17 And the county courts, the Courts of Sessions functioned in the ridings of Yorkshire, at regular intervals, minor cases coming, as planned by the Duke's laws, into the town courts, or the Mayor's Court of New York.
Briefly reviewing the legal history of the first English period in New York, it appears that the first session of the Court of Assizes was presided over by Governor Nicolls, a jury of seven trying the first case, John Richbell vs. the Town of Huntington, on September 28, 1665. John Rider was at- torney for the plaintiff and "Mr. Leveredge" for the defen- dants. In this the first case the jury found for the defen- dants ; but the "Court having heard the case debated at large" demurred, and, after examining "further into the equity of the cause and upon mature and serious consideration, do find"
17. The governor and his council remained the real lawmakers as well as the interpreters of the laws they made. . . . the court of assize was the most convenient place for the publication of any new laws . . . (but) in establishing that court the Duke's deputy did not concede any political ad- vantages to the people. All its officers were his own subordinates; none of them his colleagues .- Brodhead's "History of the State of New York.
353
NICOLLS-LOVELACE ADMINISTRATIONS
the plaintiff to be the rightful owner of the parcel of land in dispute. "And all persons are hereby required to forbear giving the said pl't or his assigns any molestation in the peaceable and quiet enjoyment of the premises."
Another interesting case heard at the first session of the Court of Assizes was a charge of witchcraft against Ralph Hall and his wife, Mary Hall, of Seatallcott, Long Island.18 The jury found "nothing considerable" to charge the man with, but they had "some suspitions" of the wife, though not sufficient "to take away her life."19 The court thereupon bound the accused to be of good behaviour as long as they remained in the province, and to appear at every session of the court. Just before leaving for England in 1668, Governor Nicolls released these suspects from their recognizance.20 It should be pointed out that in this trial the accused were not arraigned for witchcraft, but for murder. As a matter of
18. "by some detestable and wicked acts commonly called witchcraft and sorcery did (as is suspected) maliciously practice and exercise at the said town of Seatallcott (Brookhaven) &c. on the person of George Wood, late of that place, by which wicked and detestable arts, the said George Wood (as is suspected) most dangerously and mortally sickened and lan- guished and not long after, by the aforesaid wicked and detestable arts, the said George Wood (as is likewise suspected) died."
19. The case was tried before a jury composed of Thomas Baker, of East Hampton, foreman ; Captain John Symonds, of Hempstead; Mr. Hal- lett and Anthony Waters, of Jamaica; Mr. Nicolls, of Stamford; Bal- thazar de Haart, John Garland, Jacob Leisler, Antonio de Mill, Alexander munro and Thomas Searle, of New York. They found as follows :
"Wee have seriously considered the Case committed to our Charge against ye Prisoners at the Barr, and having well weighed ye Evidence wee finde that there are some suspitions, by the Evidence, of what the woman is Charged with, but nothing considerable of value, to take away her life. But in reference to the man wee find nothing considerable to charge him with."
20. These are to certify to all whom it may concern that Ralph Hall and Mary, his wife, (at present living upon Miniford's Island) are hereby released and acquitted from any and all recognizances, bonds of appear- ance, or other obligations entered into by them or either of them, for the peace of good behaviour, upon account of any accusation or indictment of withcraft, brought into the Court of Assizes against them in the year 1665; there having been no direct proofs nor further prosecution of them since .- O'Callaghan's "Documentary History of the State of New York," Vol. IV, 85, 86.
C.&L .- 23
354
COURTS AND LAWYERS
fact, witchcraft was not among the capital offences of the Duke of York's code; and both Nicolls and Lovelace dealt tolerantly with such cases. The case of one Katherine Har- rison, widow, of Westchester, "reputed to be a person lyeing under ye Supposicon of witchcraft," coming before the court in 1670, because she had not heeded an earlier order to re- move from the town, brought her a release from such order. The court found nothing against her "deserving the continu- ance of that obligacon" and therefore gave her "Liberty to remaine in the Towne of Westchester where shee now re- sides or any where else in the Governmt during her pleasure." The province of New York was evidently not so intolerant as other English colonies in matters of religion, Possibly the inhabitants were not, in general, as sternly religious as the average New Englander. There is good evidence that they were not. Certainly, the New York judiciary of the first years of the English period were not so benightedly superstitious as the Salem Witchcraft trials of a generation later showed a Massachusetts judiciary to be.21
One New York historian infers that the Court of Assizes, if erected, had little power, stating that the "governor would pronounce his verdict," in the manner of edicts to "be executed by the sheriffs whom he had appointed for that purpose."22
21. This was twenty-three years before the witchcraft superstition became deadly in Massachusetts ; it did not become epidemic in Salem village until 1691-92, when a special court to try the witches was created, whose sanguinary proceedings have left a lasting stain upon the Puritan judiciary of Massachusetts. That an accusation of witchcraft should have been made in New York in 1665 does not excite special wonder, for a belief in its pos- sibility was universal at that period, and, being as was supposed founded on Scripture, was likely to be fostered by the clergy. We do not know the contents of the depositions on which Hall and his wife were indicted and tried, but it is evident that the trial was conducted with a decent regard for truth, and with a judicial sobriety which contrasts forcibly with the blood- thirsty and law-defying proceedings of the Massachusetts judiciary, in whom reason and every humane feeling seem to have been completely over- whelmed in that brief period of nervous exaltation .- Redfield, in "History of the Bench and Bar of New York," Vol. I, 54.
22. Relative to the Court of Assize, William Smith, the historian, claims in his "History of New York" that Nicolls, the first governor of the prov-
355
NICOLLS-LOVELACE ADMINISTRATIONS
But there can be no doubt that the Bench of the Court of Assizes, at its annual sessions actually did hold judicial au- thority, independent of the governor. Its regular session lasted for some days, perhaps a week, and while Governor Nicolls presided on the first day of the first term, it is also recorded that the first case was tried "before a full bench." There were times during the year when the governor would be called upon "to hear motions in causes of one kind or another not admitting of delay"; and this might have led to the belief that a properly constituted supreme court did not exist under the first English governors. As a matter of fact, Nicolls in- terfered with the courts less than Lovelace. An order issued by the latter in 1669 may be instanced. It appears that Captain John Carr (the governor's deputy on the Delaware) had laid an attachment upon some debts there due to John Garland, of New York, by Isaack Bedlow, which the latter had paid over to Carr. The governor's order, which is ad- dressed to "William Torn, as Attorney to Mr. John Garland," authorizes the former to "forewarn him the said Captain Carr from intermeddling any more in that matter." The governor also gave John Garland liberty to recover "all those debts in
ince, erected no courts of justice, but took upon himself the sole decision of any disputes. Complaints were brought before him on petition by the parties, to whom one day's time was given in which to prepare for hearing. After a summary hearing of the facts involved, the governor would pro- nounce his verdict.
His decisions were designated "edicts," and in them was a direction that they be executed by the sheriffs whom he had appointed for that purpose.
We are informed by the same authority that during the governorship of Lovelace, he did not wholly follow his predecessor's example, but called to his assistance several of the justices of the peace, to aid him in admin- istering justice, and the entire tribunal was known as the Court of Assize.
Judge Charles P. Daly, in his "History of the Court of Common Pleas," takes issue with Smith on this point, and claims that there is no authentic foundation for such a statement, except that appeals from the Court of Assize came directly before the governor in the form of petitions.
Judge Daly assures us that the records of the Court of Assize, still extant, show that the court was convened at New York by Nicolls on Sep- tember 26, 1665; it is therein stated that the first cause tried before it was a trial by jury .- Scott's "Courts of the State of New York," p. 88.
356
COURTS AND LAWYERS
the same specie agreed on."23 Another instance shows the summary manner in which Governor Lovelace vacated an attachment.24
Associated with the functioning of the superior courts of the Nicolls-Lovelace period, and in fact next in prominence to the governors, was Mathias Nicolls. He was, it would seem, in all executive, legislative and judicial matters the mainstay of Governor Nicolls. In his capacity as secretary of the province, he was also ex officio clerk of the Court of As- sizes, as well as a member of the Council. The earlier court records are in his "clerkly handwriting." "By virtue of his office, he was entitled to sit in Courts of Sessions in the sev- eral ridings, and frequently did so in Queens County, where he was a large land owner." He was mayor of New York in 1672, was Speaker of Dongan's Assembly of 1683, and was on a commission of Oyer and Terminer the same year. "He was a barrister of Lincoln's Inn, a man of character and ca- pacity and was highly esteemed." In view of his professional standing in England, of his admittance to practice by Lin-
23. "And the said John Garland hath hereby liberty by himself or his attorney to ask, demand, sue for, recover and receive all those debts in the same specie agreed on and according to the contract made with the respec- tive debtors. And if it shall appear that the said Carr hath received any part of the same in any other pay, he is to make it good to Mr. Garland or the debtors are to make payment of it against the said John Garland or his order having paid the former in their own wrong. Given, etc., 5th day of August, 1669."
24. One Arthur Strangeways was a carpenter engaged in building a house at Newtown for one Ralph Hunt, but the Governor required him to work upon a ship he himself was building; whereupon he left Mr. Hunt's employment. Hunt at once got out an attachment against the carpenter for breach of covenant and levied upon certain moneys owing to him by Arthur Hotchman and one John Smith; which, coming to the knowledge of the Governor, brought an order from the latter, on August 6, 1669, addressed to the Justice of the Peace, Constable and Overseers at Newtown, com- manding them (inasmuch as Carpenter Strangeways had been hindered in his contract to build Hunt's house "upon the account of working as a carpen- ter at my ship, which is a public employment, tending to the good of the country in general") "to cause the said attachment to be taken off from both the said sums, the said Arthur Strangeways being free from any other private engagement of work as long as he is employed by me."
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.