USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 36
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of the two great naval battles of 1672 and 1673. He confessed that the former, against the English fleet under the Duke of York-the engagement in which ex-Governor Nicolls was killed-was the most terrible of the thirty-two naval battles in which he had had a part. The other battle, that of August II, 1673, at the mouth of the Texel, against the English under Prince Rupert, had been so sanguinary and indecisive that "each of the crippled armaments withdrew, dragging their bloody length across the sea." Moreover, the fortunes of the Dutch on land in 1673 became so desperate that William of Orange had had to open the dykes, giving up much of their precious territory to the sea, in order to keep the French out of Amsterdam. In this serious state of affairs in the home- land, it would not be surprising if the appeal from Colve for reinforcements fell upon deaf ears. As a matter of fact, the eyes of the Dutch were turned to the East, not the West. In
preside over the Court in the name and on behalf of the Hr. Governour), and so forth to the remaining Schout, Burgomasters and Schepens.
6. All motions shall be put by the first Burgomaster, whose proposi- tion being made and submitted for consideration, the Commissioner there presiding in the name of the Hr. Governour, shall first vote there, and so afterwards the remaining Magistrates, each according to his rank; and the votes being collected, it shall then be concluded according to plurality ; but if it happen that the votes are equal, the President shall then have power to decide by his vote, in which case those of the contrary opinion, as well as those of the minority may Register their opinions on the Minutes, but not publish the same in any manner out of the Court on pain of arbi- trary Correction.
7. The Burgomasters shall change Rank every year, wherein the eldest shall first occupy the place of President, and the next shall follow him; but during this current Year the change shall take place every four months, since three Burgomasters are appointed for this year.
8. The Schout, Burgomaster and Schepens shall hold their Session and Court Meetings as often as the same shall be necessary, on condition of previously appointing regular days therefor.
9. The Schcut, Burgomasters and Schepens shall have power to enact, and with the approbation of the Hr. Governour to publish and affix some Statutes, Ordinances and Placards for the Peace, Quiet and Advan- tage of this City and the inhabitants thereof within their district, pro- vided that the same do not in any wise conflict but agree as much as pos- sible, with the Laws and Statutes of our Fatherland.
10. Said Schout, Burgomasters and Schepens shall be bound rigidly to observe and cause to be observed the Placards and Ordinances of the
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that grave period of national misfortune, the Dutch felt that their future lay in the East, not the West. They had reached such a pass in the United Provinces, their homeland, that the Prince of Orange, whose courage always rose when danger was greatest, had tried to transmit to them some of his own optimism-in the face of the desperate emergency of flooding their land as their only hope of saving the Fatherland-by pointing out that all was not lost, even though the dykes were opened ; that if their natal soil should be buried under the sea, Hollanders might still have a bright future; might survive even Holland. They had lands beyond the seas, and ships to carry them thither. "Liberty and pure religion," he said, "might take refuge in the farthest isles of Asia." The ship- ping in the ports of the republic "would suffice to carry 200,000 emigrants to the Indian Archipelago," where the Dutch com- monwealth "might commence a new and more glorious exist- ence, and might rear, under the Southern Cross, amidst the
Chief Magistracy, and not to suffer anything to be done contrary thereto, but proceed against the Contraveners according to the tenor thereof; and further promptly execute such orders as the Herr Governour General shall send them from time to time.
II. The Schout, Burgomasters & Schepens shall be also bound to acknowledge their High Mightinesses the Lords, States General of the United Netherlands and His Serene Highness, the Lord Prince of Orange as their Sovereign Rulers and to maintain their High Jurisdiction, Right and Domain in this Country.
12. The election of all inferior officers and servants in the employ of said Schout, Burgomasters and Schepens shall, with the sole exception of the Secretary, be made and confirmed by themselves.
13. The Schout shall execute all judgments of the Burgomasters and Schepens without relaxing any, unless with the advice of the Court, also take care that the jurisdiction under his authority shall be cleansed of all Vagabonds, Whorehouses, Gambling houses and such impurities.
14. The Schout shall receive all fines imposed during his time, provid- ing they do not exceed yearly the sum of Twelve Hundred Guilders Sea- want value, which having received he shall enjoy the just half of all the other fines, on condition that he presume neither directly or indirectly to compound with any criminals, but leave them to the judgment of the Magistrates.
15. The Schout, Burgomasters and Schepens aforesaid shall convoke an assembly on the IIth day of the month of August, being eight days before the election of new Magistrates, and in the presence of the Com-
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sugar canes and nutmeg trees the Exchange of a wealthier Amsterdam, and the schools of a more learned Leyden."15
So it happened that when, by the fortunate pressure of English Protestants, the King of England early in 1674 re- solved to sign a separate treaty of peace with the United Prov- inces, he found that the Dutch were not averse to sacrificing New Netherland. Hence, by the Treaty of Westminster, signed on March 6, 1674, New Netherland passed finally to the English, and Dutch rule ended in North America. Rumor of this outcome of the war reached Connecticut in May. They found a way of getting the rumor spread in New Orange, where it stirred the angry Dutch inhabitants into rashly vow- ing that no authority, whether of the "States or Prince," would be recognized that called for the surrender of their province. Fortunately saner minds prevailed, and on July II there was little excitement when Governor Colve gave official notice at the Stadt Huys that peace had been made between England and Holland, and that by the treaty New Netherland had passed to the British.
Soon after the signing of the Treaty of Westminster, in March, 1674, King Charles II of England appointed Major Edmund Andros, "an officer of distinction," to receive the surrender of New Orange and New Netherland under the treaty. In June a patent was issued to the Duke of York, and the latter appointed Major Andros as his deputy governor. In October a Dutch frigate reached New Orange, and its com-
missioners to be qualified for that purpose by the Honble. Governr General, nominate a double number of the best qualified honorable and wealthy persons and only such as are of the Reformed Christian Religion, or at least well affected toward it, as Schout, Burgomasters and Schepens afore- said, which nomination shall be handed and presented folded & sealed, on the same day, to his Honor; from which nomination the Election shall then be made by his Honor on the 7th day of the Month of August, with continuation of some of the old Magistrates, in case his Honor shall deam the same necessary."
15 Macaulay's "History of England," I, 170-171.
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mander bore to Colve formal instructions from the Dutch Gov- ernment, in regard to the surrender ; and on November 1, 1674, the British frigates "Diamond" and "Castle" anchored off Staten Island. On November 9 Governor Colve, having com- pleted his arrangements for the transfer, absolved the city officials from the oaths of allegiance to Holland ; and on Satur- day, the 10th, "New Netherland and its dependencies" were formally given into the charge of the English deputy, "Gov- ernor Major Edmund Andros on behalf of His Britannic Majesty."
The passing of Dutch rule from New Netherland is thus recorded in the court records of New Amsterdam :
"On the iO/i November AO 1674, the Province of N. Netherland is surrendered by Governor Colve to Governor Edmund Andros in behalf of his Majesty of Great Britain."
CHAPTER XXI. FIRST ANDROS ADMINISTRATION .*
English names were restored and English laws reëstab- lished almost as quickly, after Andros came, as the Dutch had abolished them under the brief Colve regime. The alac- rity with which the Dutch of New York had cooperated with Colve in his governmental plans was equalled in the rallying of the English colonists to the standard of Andros, who found he could move quickly, being unhampered by considerations such as Nicolls had had to always keep in mind. The status of the English in the former Dutch province was clearer now. Nicolls had had to temper authority with tolerance; for while the British were in possession, their right to New Netherland was challenged, whereas now the English were in undisputed and rightful supremacy. Andros, therefore, could proceed at once with the plan of Anglicizing the province, and go much farther than Nicolls had deemed it politic to go.
The new patent issued to the Duke of York and Albany was in almost identic terms to that of 1664, excepting that the Duke by the second patent was given authority over not only British subjects within the territory, but also "any other per- son or persons."1 One would naturally suppose that a gov- ernment in possession would have absolute authority over all
*AUTHORITIES-"Journal of the New York Assembly, 1673," P. 92; O'Callaghan's "Documents Relative to the Colonial History of New York"; Werner's "Civil List and Constitutional History of the Colony and State of New York," 1888; Chester's "Legal and Judicial History of New York"; Eastman's "Courts and Lawyers of Pennsylvania"; "Records of the Mayor's Court of New York"; Brodhead's "History of the State of New York."
I. The confirmation of this second grant is recorded in Vol. I, p. i., of Deeds in the office of the Secretary of State of New York in Albany. It has been reproduced in the Report of the Regents of the University on the Boundaries of the State of New York, 1873, p. 21. See also the "Jour- nal of the New York Assembly," March 8, 1673, p. 92.
C.&L .- 25
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within the government. Evidently it was not so under the first patent, this perhaps to some extent explaining Nicolls' tolerance of Dutch courts.
Andros was given more specific instructions as to the gen- eral affairs of the province-matters of trade, land-owning, quit-rents, imports and tariffs, freedom of conscience, and so on. He was directed to satisfy the inhabitants by judicious government "for their protection and benefit, for the encour- agement of planters and plantations, and the improvement of trade and commerce, and for the preservation of religion, justice and equity among them." As to the "formes of Jus- tice," his instructions were "to put in execution such lawes and ordrs" as he would find had "been established by Coll. Nicolls and Coll. Lovelace and not to vary from them, but upon emergent necessities."2 On August 6 the Duke of York had given to Andros a copy of the Duke's Laws, or Nicolls Code, but evidently the new governor was not to alter the code without his permission.3 So, on November 9, 1674, the
2. "As to ye course of Justice, you are to take care yt 't be admin- istered wth all possible equality wthout regard to Dutch or English in their private concerns, 't being my desire as much as may be, that such as live under your governmt may have as much satisfaction in their condicon as is possible, and yt without ye least appearance of partiality, they may see their just rights preserved to ym inviolably-
And as to ye formes of Justice, I thinke it best for you to put in execution such lawes, rules and ordrs as you find have been established by Coll. Nicholls and Coll. Lovelace, and not to vary from them but upon emer- gent necessities, and ye advice of yor Councell and the gravest and ex- perienced people there; and if any such alteracon be made, that it be only temporary for a yeare, and if it be not confirmed by me within that time, then to be utterly voyd at ye end of that yeare and of no force at all, as if such alteracon or new law never had been prmitted. I therefore recomend to you to continue ye Courts of Justice, as they have been es- tablished and used hitherto. And as to ye choice of Magistrates and Offi- cers of Justice, I must referr yt to yor prudence, wch when you shal be upon ye place, will best direct you to those persons wch have most repu- tacon both for their abilities and integrity, and for those reasons most acceptable to ye Inhabitants. But you are not to make any officer for above one yeare or otherwise yn during pleasure."-See Vol. III, 218, of O'Callaghan's "Documents Relative to the Colonial History of the State of New York."
3. "To put in execucon ye said laws except such as shall have apparent
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day on which the outgoing Dutch governor, Colve, absolved the magistrates of New Orange from their oaths of allegiance and their administration of law by the Dutch codes, the incoming English governor, Andros, issued a proclamation announcing "the will of James regarding the rights and prop- erties of the ceded province" and reestablishing the "Duke's Laws." He declared "that the known Book of Laws for- merly establisht and in force under his Royall highnesse gov- ernment is now again confirmed by his Royall Highnesse the which are to be observed."4
So the town courts and courts of Sessions of the Lovelace administration were reëstablished, and, where possible, the officers who had held appointment in these courts under Love- Jace were reinstated. "The two courts of sessions on Long Island and one for the towns of Esopus were revived." Syl- vester Salisbury was appointed High Sheriff of Yorkshire on December 9, Michael Siston is recorded as appointed sheriff at Albany on November 4, Thomas Gibbs became sheriff at New York on November 10,5 George Hall was given that responsibility at Esopus,6 and Captain Edmund Cantwell took
inconveniences in them; and after your settlemt at New York wth ye advice and helpe of your Councell carefully to peruse and consider ye same, and if you finde it necessary for ye ease and benefitt of ye people and ye good of my service to make any alteracons, addicons and amendments in ye said laws, you are wth ye first opportunity to represent ye same unto me, to ye end you may receave from me such ordrs and direccons as shall be necessary for authorizing you to put ye same in execucon."-Ibid., III, 226.
4. "I have thought fitt to publish and declare. That all former grants, privileges or concessions heretofore granted and all estates legally possessed by any such under his Royall Highnesse before the late Dutch Government, As also all legall, judicial proceedings during that government to my arrivall in these parts are hereby confirmed; And the possessors by virtue thereof to remain in quiet possession of their rights. It is hereby further declared that the known Book of Laws formerly establisht and in force under his Royall Highnesse government is now again confirmed by his Royall Highnesse, the which are to be observed and practiced together with the manner and times of holding Courts therein menconed as hereto- fore. And all Magistrates and Civill Officers belonging thereunto to be chosen and establisht accordingly."-Ibid., III, 227.
5. "Civil List of New York," 1888 edition.
6. Chester's "Legal and Judicial History of New York," I, 198.
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the sheriffalty of the Delaware on November 2,7 1674. Every- where within the Duke's territory English laws were to be enforced, and in most districts they began to function forth- with. Two months after the issuance of the proclamation, the first session of the reestablished Court of Assizes was held in New York on the day designated in the Duke's Laws, and was held regularly thereafter."8
The Mayor's Court at New York was one of the first of the inferior courts to again convene, its first session after the proc- lamation being on November 13, three days after Andros had ordered the changing of the name of the city from New Orange to New York, and that of the fort from Fort Willem Hendrick to Fort James. On the same day, November 10, 1674, Gov- ernor Andros had appointed Matthias Nicolls to the mayoralty in the city, with John Lawrence as deputy mayor and William Dervall, Frederick Phillipse, Gabriel Minvielle and John Win- der as aldermen.
It was ordered that the court records thereafter be copied in English ; consequently, at the first session of the Mayor's Court, "every paper offered was preserved in that language, except in the case of those Dutch or other foreign individuals who were too poor to pay for translation."
These measures, it would seem, would effectively establish English law and procedure, and obliterate Dutch processes. But, as has been instanced in an earlier chapter (XIX), Dutch codes were in use in some courts even in 1678. In New York City the inclination, for a decade, was toward the Dutch modes of practice, for with two exceptions "the twelve im- mediate successors of Nicolls in the mayoralty were either of Dutch origin or had been residents of New Amsterdam under the Dutch."9
7. Eastman's "Courts and Lawyers of Pennsylvania," I, 21.
8. Chester's "Legal and Judicial History of New York," I, 198.
9. Ibid, I, 199.
9. The provision that all paper should be in the English language
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Mayor Nicolls, and those appointed with him to the Mayor's Court, continued in office until October, 1675, when Andros granted a "commission or charter under which the corporate government as it had before existed was reinstated." Under the new charter, the number of aldermen became six, and upon the corporation was conferred "full power and au- thority to treat courts, administer justice, and rule and govern the inhabitants according to the laws of the province and the privileges and practices of the State."10 Under the new com- mission, the Mayor of New York and four aldermen were authorized to sit in the Court of Sessions.11
In 1678, Governor Andros was able to assure the Lords of Trade that the judicial system as planned was in full opera- tion, and that the "law booke in force" was that "made by the Governor & Assembly att Hempsted in 1665 and since con- firmed by his Royall Highnesse."12 But the influence of Dutch methods was long felt. It seems, indeed, that although the Nicolls Code particularly provided for trial by jury, the "custom was not strictly adhered to." The Dutch citizens
introduced the English forms, but still to a very considerable extent the Dutch modes of practice prevailed. This condition of things continued for nearly a decade .- Ibid, I, 199.
IO. "Records of the Mayor's Court," Vol. II.
II. For a court of sessions in New York, the mayor, with any four aldermen, was authorized to sit. As before, the civil municipal business and any criminal business which might come before the mayor's court, were discharged at the regular sittings, no arrangement being made for the sep- aration of the civil from the criminal functions of the magistrates. Reg- ular sittings of the court were fixed for every three weeks. Following the practice instituted by Nicolls, an order was made that all cases should be tried before a jury, but, as before, this custom was not strictly adhered to. The influence of the Dutch methods was still felt, and the Dutch practice of referring cases to arbitration was continued and practiced very generally for many years.
12. "I. The Governr is to have a Councell not exceeding tenn, with whose advice to act for the safty & good of the country & in every towne, Village or parish a Petty Court, & Court of Sessions in the several pre- cincts, being three on Long Island, & Townes of New Yorke, Albany & Esopus, & some smale or poore Islands & out places; And the General Court of Assizes composed of the Governor and Councell & all the Jus- tices & Magistrates att New Yorke once a yeare, the Petty Courts Judge
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and many of the English clung to the practice of referring cases to arbitration. Two English lawyers arrived in the province in 1682, and they were soon followed by others, most of them practicing the system of special pleading then in vogue in England. In this way, English forms of procedure gradually made headway against the Dutch, but the former "did not entirely supercede those of Dutch origin until well into the first and second decades of the eighteenth century."13
Possibly, it had not been the original intention of the Duke of York, or Governor Nicolls, to make the Court of Assizes the legislative body of the province. It became such in actual practice, however. And under Andros the court assumed the proportions of a General Assembly. All those who attended were, it is true, of magisterial or executive status, and did not look upon themselves as assemblymen; but in their function- ing, as members of the Court of Assizes, the Duke of York seemed to look upon them as such, for he asserted that the Court of Assize was, in actual practice, a Provincial Assembly. It certainly was a bench of extraordinary size, if that recorded for the session of October, 1680, was normal, thirty-one being seated.14 It certainly also was representative of all districts
of fiue pounds, & then may appeale to Sessions, they to twenty pounds & then may appeale to Assizes to ye King, all sd courts as by Law.
2. The Court of Admiralty hath been by speciall Comission or by the Court of Mayor & Aldermen att New Yorke.
3. The chiefe Legislatiue power thereis in the Governr with advice of the Councell the executive power Judgemts giuen by ye Courts is in the sheriffs & other civill officers.
4. The law booke in force was made by the Governor & Assembly att Hempsted in 1665 and since confirmed by his Royall Highnesse."-O'Callag- han's "Documents Relative to the Colonial History of the State of New York," III, 260.
13. Chester's "Legal and Judicial History of New York," I, 201.
13. Finally however, arbitration, the particularly Dutch custom, ceased to be resorted to except in the case of disputed actions, which were referred generally to three persons, who were first called arbitrators and then referees. This custom of reference continued in its original form until 1772, when its was finally regulated by statute enactment .- Ibid, I, 201.
14. Governor Edmund Andros, Secretary Matthias Nicolls, Counselors William Dyer, Frederick Phillipse, Thomas Dervall and Stephen van
SIR EDMUND ANDROS
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of the province. Therefore, the Duke of York had some jus- tification for pointing out this institution, in refusing to grant the colonists permission to organize a separate legislative as- sembly.15 Still, the Duke could not bring the colonists to see as he did; and the agitation went on. Possibly Andros was, even in his first years, manifesting the arbitrary leaning which made his second administration so intolerable ;16 but, whether good or bad, no administration that taxed the people without giving them any voice at all in the assessment could hope to be popular. It seems that Andros was not in favor of the es- tablishment of a General Assembly, also that considerable correspondence passed between His Royal Highness and him- self on the subject, the Duke of York in a letter of January 28, 1676, referring to letters he had "formerly writt" "touching
Cortlandt; Mayor, Francis Rombout; Aldermen, William Beeckman, Jo- hannes van Brugh, Lewis, Marius, Verplanck and Wilson; Richard Betts, High Sheriff of Yorkshire; Justices, Topping Arnold, Woodhull and Wood, of the East Riding; Willett, of the North Riding, and Hubbard, Elbertsen and Palmer, of the West Riding; Teller and Van Dyck, of Albany ; DeLavall, of Esopus; Spaswill, Browne and Parker, of New Jersey; Gar- diner, of Nantucket; and Knapton and West, of Pemaquid .- Brodhead's "History of the State of New York," II, 336.
15. Letter of April 6, 1675, from the Duke to the Governor reads, in part : "First yn touching Generall Assemblyes which ye people there seem desirous of intimacon of their neighbor Colonies, I think you have done well to discourage any mocon of yt kind, both as being not at all compre- hended in yor Instructions nor indeed consistent wth ye forme of govern- ment already established nor necessary for ye ease or redresse of any griev- ance yt may happen, since yt may be as easily obtained by any peticon or other addressed to you at their Generall Assizes (wch is once a yeare) where the same persons (as Justices) are usually present, who in all prob- ability would be theire Representatives if another constitucon were al- lowed."-O'Callaghan's "Documents Relative to the Colonial History of New York," Vol. III, 230.
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