USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 6
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little heed of the English king's intimation to them, "that Dutchmen were unlawfully seated upon the domain of a char- tered English company," as the English king had taken of expostulations by his own Parliament and remonstrances by the French ambassador. The Dutch Government perhaps felt that, as the truce with Spain was at an end and the Thirty Years' War was well under way, the time had come for action not compromise. Their title to New Netherland was clear in one respect; they were actually in possession of the region to which they meant to hold tenaciously ; and they con- tended that this priority of occupation did not conflict with the Plymouth Company's occupation of land further north and that it constituted a weightier title than that which rested on discovery. So, at the suggestion of the States-General pos- sibly, the Dutch Company went ahead, sending agents early in 1622 to New Netherland, with instructions to its officers at Manhattan and on the North River (by which name the Hud- son was known, the Delaware River being called the South River) to go through the procedure of formally taking pos- session of the country. They were instructed to complete the fortifications and give other visible evidences that the Dutch were actually in possession.
To make surer their title to the region, the Dutch Company thought of extinguishing the Indian title by purchase. They also recognized that they could give their occupation of New Netherland a more legitimate or permanent aspect by encour- aging settlement therein of agriculturists.
So it was that the Dutch West India Company so early in its existence was called upon to add permanent colonization to its trading plans. At this psychological moment, the execu- tives of the company, the Board of Nineteen, received word from the States-General of the endeavor of some Walloons to emigrate to Virginia. The Dutch West India Company gladly approached the Walloons and soon agreed upon terms to set-
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tlement in New Netherland.4 Accordingly, several families of Walloons made preparations to sail in the spring of 1623.5 In this way the company was early enabled to conform with one of the conditions of its charter, that which required them to "advance the peopling of those fruitful and unsettled parts."
By the month of May, 1623, the West India Company had completed its internal organization; and the articles of inter- nal regulation were approved by the States-General on June 21, 1623. The subscription books were then closed, and the permanent organization began to function. Of the five direct- ing chambers, the Amsterdam Chamber was the strongest, having subscribed about one-half of the capital stock; there- fore, to it was given, by the Board of Nineteen, the exclusive
4. It appears that the Walloon refugees in Leyden and Amsterdam had much to do with the organization of the West India Company. The "History of Long Island" (1925) gives the following on the subject: .
"Among them was a leader equal to the opportunity. William Usselinx was a traveler and a man of parts. He had visited the Azores, recently colonized by the Netherlanders, and become familiar with the 'mystery' of Spanish success in colonization. The Azores were the clearing house for ships bound for America. A straight line was drawn across the map, as with a rule, from the Azores to Sandy Hook. He returned to the Netherlands and began to talk about promoting Dutch trade with America. Following his intense activity by speech, by pamphlets and by publicity of all kinds, the Dutch West India Company was formed in 1621. .
. The Walloon refugees were alert to the opportunity thus offered. They furnished a large part of the capital, as did the Flemish refugees in Holland. They furnished many leaders of renown. In the history of New Netherland the Belgians are confounded with the Dutch, for they lived in Holland at the time of their embarcation. Names like Hoboken and Hellgate are taken from places near Antwerp. Isaac de Rasieres, the first secretary of the colony, was a Belgian, and so was Jean Mousnier de la Montagne, son-in-law of Jesse de Forest."-"History of Long Island" (1925), pp. 46-47.
5. About the time the Company received its charter, Jesse de Forest, a native of Avesnes in the province of Hainault, was a refugee at Leyden. He assembled a company of French-speaking Walloons, mostly emigres from his native town and province, and asked the British Government for land "in Virginia" for fifty-six Walloon families. King James I, in 1621, refused to grant it. Another petition of August 22, 1622, was allowed by the States-General. De Forest embarked the first colonists aboard the ship "New Netherland" and set sail in March, 1623. He was the ancestor of the De Forests in America, and of the noted lawyer and philanthropist, Robert W. de Forest of New York .- Ibid, p. 47.
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management of the affairs of the province of New Netherland, subject of course to the constitutional restrictions. Brodhead names, among the prominent members of the Amsterdam Chamber: Jonas Witsen, Hendrick Hamel, Samuel Godyn, John de Laet, Killian van Rensselaer, Michael Pauw, and Peter Evertsen Hulft. These are names that come promi- nently into the early records of European occupation of New York, New Jersey, Delaware, Pennsylvania, and Connecticut.
CHAPTER VI. THE COMING OF THE WALLOONS .*
During the winter of 1622-23 the Walloons prepared for their great adventure across the seas. And the managers of the West India Company busied themselves with plans to transport them thither. A vessel of two hundred and sixty tons burthen was fitted out; it was christened "New Nether - land"; and command of it was given to Cornelis Jacobsen May, of Hoorn, who had had long experience as a navigator in American waters. Captain May was also to remain in New Netherland, as the first director, or governor, of the colony.
Upon the good ship "New Netherland," therefore, early in March, 1623, thirty families, comprising one hundred and ten men, women and children, embarked. Into the ship had also been put "agricultural implements, cows, horses, sheep and swine, and a sufficient quantity of household furniture," so that the colonists might begin their experiment with some degree of comfort, and a chance to succeed. The ship sailed from Texel early in the month, and the course was set by the longer but safer southern route, by way of the Canaries and the West Indies ; hence it was not until the month of May that the "New Netherland" sailed into New York waters.
Their coming was opportunely timed, for at that moment the Dutch traders on Manhattan Island were considering what measures would be necessary to rid themselves of an- other vessel that rode at anchor in the Bay, and kept con- stantly before them the French claim to the territory. But
*AUTHORITIES-Green's "A Short History of the English People"; Lossing's "Our Country"; "Encyclopedia Britannica"; O'Callaghan's "Doc- umentary History of the State of New York"; "Civil List, State of New York," 1888; Daly in "State of Jurisprudence During the Dutch Period," 1623-74; "History of the Bench and Bar of New York" (1897) ; Chester, in his articles Albany County, Vol. III, "Legal and Judicial History of New York" (1911) ; O'Callaghan's "History of New Netherland."
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the problem was not now difficult. Two pieces of cannon taken from the fort at Manhattan and mounted by the Dutch on the yacht "Mackerel," together with the presence of Cap- tain May's vessel, with its one hundred and ten colonists, were sufficient indications to the French commander that he could not enforce his claim; and he discreetly permitted the yacht "Mackerel" to escort his vessel out of New York waters. Thus ended all serious attempts of the French to assert jurisdiction below the forty-fifth parallel, at least on the Atlantic seacoast. After making a final protest to the Dutch traders on the Delaware, the Frenchman sailed for home.
"On a beautiful morning in May, the Walloons landed from the 'New Netherland,' in small boats, upon the rocky shore where Castle Garden now is," wrote Lossing, in 1877. "They made a picturesque appearance as they ascended the bank in their quaint costume, every man carrying some article of domestic use, and many women, each carrying a babe or small child in her arms. They were cordially welcomed by the resident traders and friendly Indians, and were feasted under a tent of sails stretched between several trees. Under that tent a Christian teacher, who accompanied the settlers, offered up fervent thanksgivings to Almighty God for his preserving care during the long voyage, and implored His blessing upon the great undertaking before them. May then read his commission, which made him first director of New Netherland, and formally assumed the governorship of the colony and country."
Following the definite basic purpose of the Dutch West India Company in encouraging colonization, Director May distributed the settlers over as much territory as possible, so that Holland might thus the better answer, by actual oc- cupation, the claim of King James for the Plymouth Com- pany, which claim was also based on occupancy. Some of the Walloons settled on Manhattan; some settled on Long
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Island, where the city of Brooklyn eventually grew; some went up the Fresh River, later known as the Connecticut River, and built the Fort Good Hope near the site of the present city of Hartford; some established themselves in what became Ulster County, of New York; one group went up the North River and, in 1624, erected Fort Orange "on the shore of the river, near the site of the present steamboat landing" at Albany. Others, it is said, went to the Delaware, "and began a settlement at the mouth of Timber Creek, on the east side of the river, a few miles below the site of Phila- delphia, and built a small fortification which they named Fort Nassau,1 the first settlement in New Jersey."
Thus established by permanent settlements, the Trading Company was able to reach out for trade in all directions con- tiguous or near thereto. "They even went as far as Narra- gansett and Cape Cod bays in search of the beaver and otter." Wherever the Dutch West India Company settled Walloons their agents formally took possession of the land in the name of the Company, and of the States General of the United Netherlands. This formal possession was deemed to embrace all the lands drained by the rivers on which they were settled, which waterways were, of course, their trade routes. Captain May was only Director of New Neth- erland for one year, and his lieutenant, Adriaen Joris, returned to Amsterdam in the ship in which the Walloons had come. But the report Joris made, that the settlers were "getting bravely along," and the evidence he brought, in his $10,000 cargo of peltries, that the future of the Company and of the Dutch in the American enterprise was bright, so raised the hopes of the Company that they soon made plans to ship more emigrants, and also live stock, implements, and seed for the expansion of the agricultural phase of their activities.
I. The settlers engaged in this enterprise, it is said, were four young couples who were married on shipboard, and eight seamen who managed a little yacht that conveyed them to the South River, as the Delaware was called .- Lossing's "Our Country," vol. I-22I.
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Director May was succeeded, as such, by William Verhulst in 1624; but it is doubtful whether either exercised any degree of magisterial control over the colonists during the short period (1623-25) in which they were in charge of the affairs of the Company in the settlements. They probably were not expected to do more than see that the trading interests of the Company were properly safeguarded, and take such measures as were necessary for business expansion. To them, perhaps, colonization meant only "overhead expense," and as such could expect but little executive provision in the initial stages. For that matter the colonists were in such small groups that the paternal authority of heads of fam- ilies was perhaps considered all that was called for. But the colony grew during the first years; and the political situation for the Dutch in the homeland changed very considerably during the period; so much so, indeed, that the States Gen- eral and the commercial corporation were able to grasp the opportunity that presented itself of more thoroughly estab- lishing Dutch claims to the American domain.
CHAPTER VII. THE DUTCH LEGAL SYSTEM .*
By the supreme efforts, the heroic struggles, and the genius of William the Silent, Holland, i. e., the United Prov- inces of the Netherlands, had risen to be a great Protestant power. Maurice of Nassau had further strengthened Hol- land. Although despotic and willing to use the Protestant power to meet his own political ends, Maurice was a skillful soldier, and he had fought the Spaniards to a standstill, in the defence of Holland. During the twelve years' truce, Maurice had not had harmonious relations with the States General ; he had headed the Anti-Remonstrants and driven the Remon- strants out of the Netherlands into Denmark, had defeated the popular will, and had established a government which while not monarchical, yet recognized no people.1 But,
*AUTHORITIES-Ex-Chief Justice Daly, on the "State of Jurisprudence During the Dutch Period," 1623-74; "History of the Bench and Bar of New York"; O'Callaghan's "History of New Netherland"; Brodhead's "History of New York;" Van Leeuwen's "Commentaries on Roman Law"; Wassenaer, in "The Documentary History of the State of New York," Edi- tion of 1850; O'Callaghan's "Documentary History of the State of New York"; Dougherty's "Constitutional History of New York State"; Ches- ter's "Legal and Judicial History of New York; Green's "Short History of the English People"; Scott's "Courts of the State of New York"; "Ency- clopedia Britannica"; Sir William Temple's "Observations Upon the United Provinces of the Netherlands"; Lossing's "Our Country"; Werner's "Civil List and Constitutional History of the Colony and State of New York," 1888; Pennsylvania Archives, Second Series.
I. The Charter of the West India Company was issued in 1621. The Thirty Years' War had commenced. . . Barneveldt was dead; Grotius was hiding away from the despotism of Maurice. There was not a coun- try in which popular rights were respected, and popular power could be expressed and enforced in orderly methods. Just then the western gate was opened .- Werner in the "New York Civil List" (1888), p. 20.
I. For nearly forty years Catholic and Protestant had been imbruing their hands in each other's blood. Now the Protestants turned upon each other. The Calvinists and the Arminians succeeded in dividing the people of Holland into two parties, between which the strife raged with the same ferocity which had rent the country for nearly a half century. Prince Maurice himself appeared as a fomenter of this discord; for he hoped
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when the truce was ended in 1621 and Holland was again at war with Spain, Maurice was the great commander, and for long foiled the attempts of Spain to penetrate far into the Netherlands. Maurice of Nassau was one of the defenders of Protestantism, though he may not have been himself staunch in the faith. On the other hand, James the First of England, although he headed a nation that was stalwartly Protestant, sought to ally himself with the great Catholic power, Spain, at the outbreaking of the Thirty Years' War, In 1621, the year in which the armistice between Spain and the Netherlands ended, James had dissolved his Parliament, tearing out of the House Journals the pages that recorded Parliament's action in presuming, indeed asserting its right, to instruct the King on matters of foreign policy ;2 he had per-
thereby to rise to the absolute sovereignty of the Netherlands. He took his stand at the head of the Calvinist party and was opposed by the two dis- tinguished patriots, Olden Barneveldt and Hugo Grotius. Never did two leaders deserve better of the people whom they sought to serve. Those whom they led were known by the name of Remonstrants, while the fol- lowers of Maurice were known as the Anti-Remonstrants-two names which are still used the party jargon of Holland. At length the Remon- strants were put down. The venerable Barneveldt, then seventy-one years
of age, was . executed on the 13th of May, 1619. Grotius was con- demned to imprisonment for life. Ridpath's "History of the World." (Grotius had dared to advance "the monstrous doctrine that the high seas were not the property of any king, but free to the ships of all nations." He escaped to France in 1621, and later wrote his celebrated De Bello et Pace, "Treatise on War and Peace," a work so thoroughly profound and ex- haustive as to become, and ever remain, the foundation of the Law of Nations).
2. In their petition the Houses coupled with their demands for war the demand of a Protestant marriage for their future King. Experience proved in later years how perilous it was for English freedom that the heir to the Crown should be brought up under a Catholic mother; but James was beside himself at their presumption in dealing with mysteries of state. "Bring stools for the Ambassadors," he cried in bitter irony as their committee appeared before him. He refused the petition, forbade any further discussion of state policy, and threatened the speakers with the Tower. "Let us resort to our prayers," a member said calmly as the King's letter was read, "and then consider of this great business." . It re- solved : "That the liberties, franchises, privileges, and jurisdictions of Parliament are the ancient and undoubted birthright and inheritance of the subjects of England; and that the arduous and urgent affairs concerning the King, state and defence of the realm, and of the Church of England, and the
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mitted the Catholic League forces to overrun the Palatinate, and drive the Elector to Holland, notwithstanding that his own daughter, Elizabeth, was wife of the Elector, and despite the warlike attitude of his own Parliament, which, by a unanimous vote, "lifting their hats as high as they could hold them," had declared that "for the recovery of the Palatinate they would adventure their fortunes, their estates, and their lives."3 King James had gone further in reaching out for a Catholic alliance ; he had sent his own son, Charles, to Spain to espouse the Infanta. As to James the First's direct op- position to Holland, his hostility was evident when he char- tered the Dutch West India Company's rival, the Plymouth Company, and warned the Dutch off the American domain of England. Altogether, the political situation for the United Provinces of the Netherlands was ominous at the time the West India Company began to operate.
A few years of that chaotic period, however, materially changed the complexion of affairs. King James had even been forced into alliance with the Netherlands. His son, Charles, had left the Spanish Court without the Infanta, much to the joy of the people of England ; and Charles had forced his father to call a Parliament, and leave state affairs largely in the hands of the Duke of Buckingham and himself. In
making and maintenance of laws. and redress of grievances, which daily happen within this realm, are proper subjects and matter of council and debate in Parliament. And that in the handling and proceeding of those businesses every member of the House hath, and of right ought to have, freedom of speech to propound, treat, reason and bring to conclusion the same."
The King answered the Protestation by a characteristic outrage. He sent for the Journals of the House, and with his own hand tore out the pages which contained it. "I will govern," he said, "according to the com- mon weal, but not according to the common will." A few days later he dissolved the Parliament. "It is the best thing that has happened in the interests of Spain and of the Catholic religion since Luther began preach- ing," wrote the Count of Gondomar .- Green's "History of the English People," vol ii-179.
3. Ibid, vol ii, 178.
C.&L .- 5
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the next Parliament, Sir Edward Coke,4 who had been impris- oned by King James-as one of the chief instigators of the entry in the House Journals of the resolutions, in 1621, which had so incensed the king-was again outspoken in opposition of the king's will. From the Speaker's chair, he fearlessly opposed the authority of the Plymouth Company in America, arguing, as he had in the previous Parliament, that as the charter was granted without regard to preexisting rights, it was necessarily void. To Gorges he said: "Your patent contains many particulars contrary to the laws and privileges of the subject ; it is a monopoly, and the ends of private gain are concealed under color of planting a colony."
So the Dutch situation, as to the New Netherlands prov- ince, was strengthening. And, with the ascension of Charles to the throne of England in 1625, the chances became even better. Charles, with his eyes on the more vital European problem, seemed disposed to let the Dutch roam where they would in America. In fact, King Charles, promised non-inter- ference in New Netherland. With this brightening prospect, the States General had been gradually devising methods of more regular governmental administration of the new land.
Through its agent, the Dutch West India Company, the States General began measures to introduce the principles of the Dutch legal and civil systems of government in the colony.5 The office of Director-General was constituted, and
4. He was one of the most prominent of the constitutional party. It was he who proposed a remonstrance against the growth of Popery, and the marriage of Prince Charles to the Infanta of Spain, and who led the Com- mons in the decisive step of entering on the journal of the House the famous petition of December 18th, 1621, insisting on the freedom of par- liamentary discussion, and the liberty of speech of every individual mem- ber .- "Encyclopedia Britannica."
5. The Dutch, while not giving to the people the exclusive choice of their rulers, kept the feudal system within its legitimate sphere, and limited it to the ideal. The feudal ideal, politically was the law of service, written in Roman jurisprudence and realized in the Christian life. Its fatal weak- ness was that it was powerless to protect the people against despotic kings, princes and judges. .
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New Netherland became a county of Holland, in due course receiving the armorial distinction of a count. Peter Minuit was commissioned as first Director-General, and sailed from Amsterdam on December 19, 1625, in the vessel "Het Meetje." In the ship also, it is said, were more emigrants. Upon ar- rival at Manhattan in May, 1626, Director-General Minuit set the new plan of government in operation. He was to be advised by a Council of five, "who, with himself, were in-
By its terms (the charter of the Dutch West India Company) the will of the company was supreme, and all power was vested in the Director- General and Council, who were to be governed by the Dutch Roman law, the imperial statutes of Charles V., and the edicts, resolutions, and cus- toms of the United Netherlands. ... This shows the genesis of Dutch government. The basis of it all was the customs of the fathers. The superstructure was a union of the Roman, German, and Dutch municipal systems. The Dutch were governed by a league of commercial guilds, represented in the States-General in order that they might protect the or- ganized interests of each class of people; not that they might invade the rights of others. This principle of conserving the ancient and vested rights of all the people as against any portion thereof, even a majority, and as against government itself, was the foundation principle of the prov- ince as of the mother country, and distinguished it in the beginning from either of the English colonies.
In the last analysis, the English system gave the government absolute power over all subjects. Whoever controlled the government worked their sovereign pleasure with all people, whether such control was held by Crown or Parliament. . . . The Dutch system, while holding the elements of feudal liability to tyranny, held them in strict subservience to Law, and guarded against abuses by conferring no power without accompanying it with an adequate safeguard against its arbitrary exercise. In England it was either the Crown or Parliament making laws at their own pleasure; in the Netherlands, government was a commercial agent, while the laws and customs of the fathers were administered and justice secured by magis- trates nominated by the people. While the Dutch form was feudal, its spirit was municipal. . . The Dutch gave the New Netherland in feudal shell, a paternal guardianship of liberty regulated by law. .
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