USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 34
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coln's Inn as a barrister, it would not be surprising if the statement that he was the real author of the Duke of York's Laws were true. Surely no other practicing New York law- year of that time had such high credentials as Secretary Nicolls; and in the fact that he comes prominently into the governments of the first four English governors of New York -Nicolls, Lovelace, Andros and Dongan-it would seem that his place in the legal structure was generally recognized. He lived in the province until death, his end coming in 1690 it is believed.
Among the other early lawyers of the English period was one whose surname is a familiar one in legal records of early republican times in New York City. John Rider, who was the prosecuting attorney in the first cause tried by jury before the Court of Assizes in 1665, became the first clerk of courts of Westchester in 1684, under the Dongan system. Other at- torneys who come into the records of the Court of Assizes in- clude John Sharpe, Thomas Owen, Mr. Leveridge, Nicholas Bayard and Mr. Bogardus. There were many other attorneys who practiced in the inferior courts-not all of them learned in the law, it would seem. There were no particular re- quirements for admittance to practice, save that the petition- ing attorney should take oath not to exact fees "above what shall be allowed by the Governor and Court," and also prom- ise not to take fees from both the plaintiff and the defendant of the same action. There was one other requirement, in 1667- that the sworn attorney pay the court crier therefor. Thus, many who came into the records as attorneys were in reality men of business affairs who entered the courts to plead per- haps only one case-that of a neighbor, or one of which the pleader had especial knowledge.25 In 1677, the Governor and
25. Other names appear in the records of the Mayor's Court. It does not follow that any of these were bred to the law, or made its practice an exclusive employment. They were traders, factors for foreign merchants, land speculators, or, it may be, mechanics who, possessing a recognized
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Council, in New York, resolved that "pleading attorneys bee no longer allowed to practice in the government (province) but for the depending causes." Nevertheless, the status of an attorney in New York at that time was probably higher than that of their professional brethren in Massachusetts. In the earliest courts of Massachusetts, the professional lawyer was unknown; the accused had to defend himself, unless a magistrate felt disposed to take up his cause without re- muneration. The earliest lawyers could do no more than argue the case before the court and jury under the Massa- chusetts system; cross-examination was not permitted, and long arguments were frowned upon; indeed, in 1656 a law was passed "fining a lawyer twenty shillings an hour for such time beyond one hour that he might take in his plea." The profession was in such disfavor in 1663 that the General Court of Massachusetts then ordered "that no usual and common at- torney in any Inferior Court should be admitted to sit as Deputy in this Court."26 Hence, though the lot of the early lawyer was somewhat hard in New York, that of his confrere in Massachusetts was harder. The common feeling in both provinces seemed to be that lawyers as a class were to be shunned; that the professional lawyer was just as likely to attach the purses of his clients as to win their cases. With this in mind, perhaps, the Nicolls' Code "provided for the pun- ishment of common barrators" by fine or imprisonment, if proved to be "vexing others with unjust, frequent and endless lawsuits." Probably the real meaning of the word barrator was intended, though possibly the provision was designed to
talent for managing affairs, or for penmanship, or an easy volubility, were likely to be called on by their neighbors to act as conveyancers, attorneys, or advocates, as the matter in hand might require.
There does not appear, however, to have been in New York such a popular prejudice against lawyers, as a class, as was notoriously the case in some of the other colonies, particularly in Massachusetts Bay .- "History of the Bench and Bar of New York," I, 54.
26. "Courts and Lawyers of Worcester County, Mass.," Vol. I, 344, "History of Worcester County, Mass.," 1924.
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include barristers, for it seems quite possible that the legal profession in New York at that time was graded somewhat after the Massachusetts plan, which accorded the more digni- fied title of barrister to the professional lawyers who practiced in the higher courts, and restricted mere attorneys in their practice to the inferior courts.
The Court of Assizes and the Courts of Sessions of the ridings were probably the fields in which the professional lawyers fought most of their fights. While the justices of the Courts of Sessions did not go from the court of one riding to that of another, the lawyers may have been expected to "ride the circuit" with the high sheriff, for the Duke's laws, in providing for a Court of Sessions in each of the three ridings, took care that the three courts should not sit on the same dates. At first there were to be three sessions in a year,26a and as the sessions "were not to exceed three days in duration" and came in the first, second and third weeks of March, June and December, the lawyers could practice in the three courts without difficulty, as well as in the annual Court of Assizes in October.
Probably, also, the leading lawyers practiced to some ex- tent in the New York City Mayor's Court, which was quite important, with many cases to try at its weekly sessions. Thomas Willett, as Mayor of New York, was at the head of
26a. The following clause relating to the establishment of higher courts is found in the "Lawes." "That the names of the several courts to be held in each riding three times a year shall be called the Court of Sessions." In continuation the same article goes on to speak of the respect due to "courts which so nearly represent his Majestie's sacred person, and that such order, gravity and decorum which doth manifest the authority of the courts may be sustained."
The sessions were to begin the first Tuesday in June, in the East Riding, the second Tuesday in June, in the North Riding, and the third Tues- day in June in the West Riding. The second court of sessions was to be held the first, second and third Wednesdays of December, and the third sessions on the first, second and third Wednesdays in March, in the East, North and West Ridings respectively. The sessions were not to exceed three days in duration .- Scott's "Courts of the State of New York," p. 73.
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this court for two of its early years, 1665 and 1667, Thomas DeLavall (1666) and Cornelis Steenwyck (1668) succeeding to the chief magistracy by direct appointment by the gov- ernor. In 1669, Governor Lovelace consented to the revival of the Dutch custom of nominating a double set of magis- trates, the governor choosing the magistrates for the next two years from those nominated by the freemen. In 1671 the term of office was reduced to one year.26b Cornelius Steen- wyck was mayor from 1668 to 1671, De Lavall succeeding him in 1671 and giving way to Matthias Nicolls in 1672. Thomas Lawrence was mayor in 1673, and had to give way in August to the three burgomasters, Van Brugh, Luyck and De Peyster, chosen by the Dutch Council of War, to revive the Schepens Court.
The outstanding personality of the Mayor's Court of New York of the first English period was Thomas Willett. He was born in England, about 1611, the son of Rev. Andrew Willett, D. D., and grandson of Rev. Thomas Willett, prebend of Ely Cathedral. He was of the Separatist colony of Ley- den, Holland, whence came the Pilgrims to Plymouth colony in 1620. Willett arrived in the Plymouth colony in 1629, it is recorded, with the remnant of John Robinson's church. He became a freeman at Plymouth in 1633, and made Plymouth his home until about 1660, although as a fur trader and ship owner he was constantly travelling along the New England coast. He established trading posts from Kennebec to the Delaware, and was known even in Albany before Stuyvesant came. He was highly esteemed in the Plymouth colony, and in 1648 was chosen to command the military company. From 1651 to 1665 he was elected "an assistant to the Governor
26b. In the year 1669, as a signal mark of sanction and respect, the Duke of York presented the mayor of the city with a silver mace, as an insignia of office, and to each alderman he presented a gown.
In 1671, the English custom of publicly proclaiming bans of marriage was instituted here, and a record of marriages ordered to be kept by the clerk of the Mayor's Court .- Ibid, p. 92.
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annually." He was of such worthy repute among the Dutch of New Netherland that Governor Stuyvesant was willing, in 1650, that Captain Willett, of Plymouth, and another Eng- lishman, George Baxter, should decide the long-standing boundary dispute between Connecticut and New Netherland. The Hartford Boundary Treaty of 1650 was the result. In 1657, he was called upon to act as arbitrator between Ply- mouth Colony and Rhode Island, in regard to the ownership of Hog Island, in Narragansett Bay. When, in 1654, war against New Netherland had been decided upon by some of the colonies of New England, Captain Willett's influence with the Indian tribes of the Hudson was such that he was asked to accompany the New England commissioners "unto the Manhatoes and to be assistant unto them in advice and coun- cil." However, the expedition was abandoned when it was seen that united action by the English colonies was not pos- sible. In 1660 Captain Willett settled in Wanamoisett, Re- hoboth, Massachusetts. In July, 1664, he was in New Am- sterdam, upon a trading voyage probably, when rumor of the coming of an English fleet reached the Dutch city. Willett, it seems, was the first to hear it, "and hastened to inform Stuyvesant, who proposed at once the most energetic meas- ures for defence." Shortly afterwards news came from Hol- land that the English fleet known to be on the way to America was, in fact, "to reduce the New England colonies to obedience and uniformity in state and church," and that there- fore "New Netherland had nothing to fear." However, when Nicolls and the English fleet did appear before New Amster- dam and demand its surrender, Captain Willett, who knew how futile a defiant attitude would be, aided Colonel Nicolls in presenting terms to Governor Stuyvesant. Willett accom- panied the English troops to Albany, in the capacity of in- terpreter, after New Amsterdam had surrendered. He proved to be of such assistance to the English governor that early in 1665 Colonel Nicolls "requested Gov. Prence of Plymouth to
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release Captain Willett, in order that he might have his help in reducing the affairs in New York 'into good English.'" So, it came about that Thomas Willett, who did not belong to the province, but who "was greatly esteemed among the Dutch, whom more than once he had served in important trusts," was the choice of Governor Nicolls for the office of mayor, when the Mayor's Court of New York was created in 1665. Captain Willett owned some realty, however, in New York Colony, which investment, no doubt, he regretted hav- ing made when, with the coming of the Dutch again in 1673, his estate was confiscated. However, he was not then in the colony, having returned to Plymouth. He died in Seekonk, or in that section of Massachusetts, about 1674.
Thomas Willett had considerable part in the development of that part of Massachusetts. He was very successful in his dealings with the Indians. In 1661, the northwest corner of the Plymouth Patent was still in Indian ownership, but Cap- tain Willett extinguished the Indian title in that year by treaty with Wamsutta, son of Massasoit. This became part of Taunton and Rehoboth purchases. The original Taunton purchase was made in 1637, from Massasoit, for an insig- nificant consideration, and the second purchase cleared an immense tract. Captain Willett was given considerable lib- erty of action, the only proviso being "That he do not too much straiten the Indians." His was an active, useful life, which took him into all the New England colonies, and made him of prominent record in each. He had many children, his wife, Mary Brown, of Plymouth, bearing to him eight sons and five daughters. One daughter married a son of the famous Thomas Hooker, of Hartford. One of his sons, Thomas Willett, became a councillor under Governors Andros and Sloughter. Thomas (2) Willett was high sheriff of York- shire 1676-78, and first sheriff of Queens County, 1683-89. Another Thomas Willett, probably grandson of the first, was member of the Eighth General Assembly, and was expelled
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September 22, 1701, for having presented a paper "writ in barbarous English," representing that the organization of the House was illegal, one Abraham Gouverneur, an alien, having control, as Speaker. In the next year the same Thomas Willett became a judge of Queens County Court. William Willett was county judge of Westchester, 1721-35. And the descendants of Thomas (1) Willett, first mayor of New York, are innumerable.
Thomas Delavall, second mayor and again appointed in 1671, was a captain under Governor Nicolls, with whom he came out from England, and of whose first provincial council he was a member. The other mayors, Cornelis Steenwyck, Matthias Nicolls, and John Lawrence, have already been bio- graphically sketched herein.
During the first English period there was no other munic- ipal court quite like that of New York City. The Bailiwick Court of New Castle was, perhaps, the nearest to it in status ; but there was considerable delay in establishing that court. The other country towns were served by Constable's Courts, at least in towns where the Schepens Courts did not still exist. That there were any Dutch courts functioning five years after the Duke's laws were introduced is surprising, but the records of at least one judicial district-the Delaware- indicate that the Dutch courts and Dutch legal system lin- gered long in some parts of the former New Netherland province.
It seems that, on the Delaware, Governor Nicolls was loth to disturb the judicial system of the former New Amstel colony. When Sir Robert Carre came to take possession of that region in the name of the Duke of York and Albany and the British crown, New Amstel became New Castle, but the schepens court was permitted to continue "for six months, or until His Majesty's pleasure be further known."27 The
27. After the reduction of the Dutch upon the Delaware, Sir Robert Carre . . . took command of the territories on that river, with the seat of
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King's or the Duke's pleasure was not known during Colonel Nicolls' term as governor, and the schepens court was still functioning in New Castle in 1668, when Lovelace succeeded to the governorship. And evidently, no definite plans had even then been formulated in respect to the Delaware, for in April, of that year, in ordering changes in New Castle which would make the schout and schepens councillors to Captain John Carre (the governor's deputy at Newcastle) Governor Lovelace ordained "That the laws of the government estab- lished by his Royal Highness be showed and frequently com- municated to the said Councillors and all others, to the end that being therewith acquainted, the practice of them may also in convenient time be established, which conduceth to the public welfare and common justice."28 So that evidently
the government at New Amstel, or New Castle, as it was now called, and immediately entered into an agreement "on behalf of themselves and all the Dutch and Swedes inhabitants on the Delaware Bay and Delaware River" for the government of the country. . By the terms of agreement, it was provided inter alia, "that the present magistrates shall be continued in their offices and jurisdictions to exercise their civil power as formerly," and "that the schout, the burgo- master, sheriff and other inferior magistrates shall use and exercise their customary power in administration of justice within their precincts for six months, or until his Majesty's pleasure is further known."-Eastman's "Courts and Lawyers of Pennsylvania.
28. Ordinance of April 21, 1668, promulgated by Governor Lovelace, as to government of settlements on the Delaware, reads in part :
"That to prevent all abuses or oppositions in Civil magistrates, so often as complaint is made, the commissioned officer, Captain Carre shall call the Schout, with Hans Bloch, Israel Helme, Peter Rambo, Peter Cock, Peter Alrichs or any two of them as Councillors, to advise, hear and determine by the major vote, what is just, equitable and necessary in the case or cases in question.
"That the Commissioned officer, Captain Carre, in the determination of the Chief Civil affairs, whereunto the temporary forementioned Councillors are ordained, shall have a casting voice where votes are equal.
"That the fines for Præmunires and light offences be executed with moderation ; though it is also necessary that all men be punished in exem- plary manner.
"That the laws of the government established by his Royal Highness be showed and frequently communicated to the said Councillors and all others, to the end that being therewith acquainted, the practice of them may also in convenient time be established, which conduceth to the public welfare and common justice."
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Dutch law still prevailed on the Delaware. However, an ordinance for the government of the Delaware, under date of June 14, 1671, seemed to aim at preparing the way for a change, by providing that constables might be appointed "as in the rest of his Royal Highness' dominions."29 An or- dinance of the following year erected the town of New Castle "into a corporation by the name of a bailawick" and provided "that the office of Schout be converted into a sheriffalty." Peter Alrichs became bailiff general of New Castle and the Delaware, but it is doubtful whether the Duke's Code was even then used. In the next year the Dutch came again into power, and Peter Alrichs became commandant of the South River under that brief régime, which established three judicial districts for that region, with one court at New Amstel, one at Upland, and the third at the Whorekill. In 1674, when the English again came into control, the Delaware courts were reorganized. Andros continued all the former officers and magistrates in office, excepting Alrichs. But, apparently, the Duke's Code was still an unknown legal system to the Dela- ware magistrates, and evidently was not used, for in Septem- ber, 1676, Governor Andros found it necessary to imperatively order "that the books of Laws established by his Royall High- ness and practiced in New York, Long Island and dependen- cies, be likewise in force and practice on this river."30 Prompt
29. "That constables may be appointed to keep the King's peace, who shall have staves with the King's Arms upon them as practiced in the rest of his Royal Highness' dominions," and "that they may have the King's Arms to be set up in their Courts of Judicature, as well as on the staves, the which they will be at the charge of themselves.
30. Ordinance dated September 25, 1676:
"Edmond Andross, Esqr., and Seigneur of Sausmarez, Lieutenant and Governor General under his Royal Highness, James, Duke of York and Albany, etc., of all the territories of America :
"Whereas, The last year at my being at Delaware upon application of the inhabitants representing that my predecessor, Governor Lovelace had begun to make a regulation for the due administration of justice according to the laws of this Government, pursuant to which I did appoint some magis- trate and make some rules for their proceeding the year ensuing or until further order ; in which having upon mature deliberation, by the advice of
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action was not even then taken, the record showing that on June 8, 1677, the Court of New Castle wrote to Governor Andros : "Wee lykewise humbly desier that the sending of the Lawe Booke may not bee forgott; there being great occasion for the same." On July 17, 1678, they wrote, requesting "the new corrected Law-booke and seal for ye office as heretofore promised."31
Bearing in mind that life was very uncertain in those days of wars, pestilences and legal codes which provided capital punishment for innumerable minor offenses, the number of capital cases tried in the New York courts were few. In the records of New York City, one capital case was that of in- fanticide, the accused being a Dutch woman, Engeltie Hen- dricks. On September 13, 1666, she was sentenced to death, but also to receive twenty-four slashes with rods twenty-four hours before being "brought to the 'Townes Gate.'"32 How- ever, she escaped from the jail and was not apprehended until 1669, when she was hanged. In the "Records of New Amster- dam," Vol. I, 188, is a report, under date of July 26, 1669, of an "Examination of William fisher whether he had any con-
my Council, made some alteration, they are to remain and be in force in form following :
I. "That the books of Laws established by his Royal Highness and practiced in New York, Long Island and dependencies be likewise in force and practice in this river, and precincts, except the Constable's Courts . . . "
There were twelve sections to this ordinance, and a clause providing for the determination of all matters by the justices of the sessions courts, seeing that "by this regulation there are no overseers appointed nor con- stables' courts."
31. "Records of the Court at New Castle."
32. "for which abominable act (of infanticide) the sd Engel Hendrick merited to be punished others to an Exampel. Noo Soo it is that We the Ald'men of New York by vertue of a Commission doeing Justice in the name of his Magesty, the King of England, Schotland, france and Ireland & his Royall Highness, the Duke of York &ca. - their Governr, the Right Honnble Colonel Richard Nicolls doe Condemne the sd Engel Hendricx as we doe by these Presents, that she shal be brought from this Place to the Whipping Post and then & there to Receive twentie Slashes with Rods and then to Remaine in Prison the time of 24 houres and to be brought out the Townes Gate."-"Records of New Amsterdam," Vol. I, 34.
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versation with Engel Hendrix, who is lately put to death for murdering her Child." The sentence upon a negro who was involved in this woman's escape was "that he serve as public executioner for a period of five years or pay a fine." Appar- ently he did the latter, although it does not seem that the city was able to recruit its hangmen from a reputable class. A letter written by Jo. Clarke, "Ffrom ye Secretary's Office in ffort James the 28th day of January in the evening, 1672-3," and addressed to "Captn. Silvester Salisbury, Governor at Fort Albany," explains to the Albany commandant that "our Hangman, Ben Johnson," having been "taken in divers Thefts and Robberyes" and found guilty "scapd his neck through want of another Hangman to truss him up." Still, he did not altogether escape punishment, being given "only thirty-nine stripes at the Whipping-Post, loss of an ear and banish- ment."33 Allard Anthony, who had been burgomaster of New Amsterdam for several years under Stuyvesant, and was a member of the first Mayor's Court of New York, also sheriff, 1665-67 and 1671-73, gained the nickname of "The Hangman," whether from actually officiating as such, or from the respon- sibility that devolved upon him, as sheriff, of finding an executioner when there was need of one. Those were stern days.
33. "The Historical Magazine," Ist series, Feb., 1860, Vol. IV, 50.
CHAPTER XX. THE BRIEF COLVE PERIOD .*
The fortunate circumstances by which the Dutch regained their former North American province without more than the firing of a few shots have been referred to in Chapter XIX. Once again the province was New Netherland. But the fort which had proved useless on the only two vital occasions- 1664 and 1673-on which the people looked to its fortifications and artillery for protection was not renamed Manhattan; this time it was designated Fort William Hendrick, in honor of the Prince of Orange. This association probably suggested a new name for the capital. At all events, the passing of New York did not bring New Amsterdam into its own, for the cap- ital now took the name of New Orange. Albany soon became Willemstadt, and Fort Albany was christened Fort Nassau.
The administration at the outset was by a Council of War, consisting of the two admirals, Evertsen and Binckes, and three captains, Anthony Colve, Nicholaes Boes and A. F. Van Zeyll. With the characteristic alacrity of men of war, the Council at once proceeded to take all possible advantage of their fortunate position, so easily gained. It may have seemed to them well-nigh incredible that their victory had been so bloodless. But the very ease with which the supremacy had been gained may well have suggested to the more cautious of the commanders that a reversion might come just as easily.
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