USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 7
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The English parliamentary system vested supreme power in the legis- lative majority. The Virginia system placed the Legislature under the con- trol of a Royal master. The New England system (except in the Ply- mouth Colony) rendered the Church supreme. . The Dutch made the judiciary supreme, and denied all arbitrary power, either in people or parlia- ments, in civil rulers or religious teachers, and sought to fortify the people against its exercise. Thus the feudal shell of Dutch government inclosed the seed of liberty, ready in fullness of time to germinate in most perfect form .- Werner, in "Civil List and Constitutional History of the Colony and State of New York, 1888, pp. 22-26.
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vested with all legislative, executive and judicial powers, sub- ject to the supervision and appellate jurisdiction of the Chamber at Amsterdam."6 This council had jurisdiction in all criminal cases to the extent of fine, but each capital offender "must be sent, with his sentence to Holland."7 Next in authority to the Director-General and Council was the koopman, the keeper of the accounts of the trading company. In office, he was to all intents the secretary of the province, and "appears to have been the person best educated for the proper performance of his particular functions." He was to all intents the commercial expert, the skilled executive, of the province, giving the Governor and Council the benefit of his advice in the functioning of the executive departments much as another important official, the schout-fiscal,8 the oracle of all legal processes, did in matters of law. The schout-fiscal comprised in himself very many offices; he had the responsi- bilities of an attorney-general, a prosecuting attorney, an advocate or counsellor, a constable or sheriff, an excise offi- cer, a clerk of the courts, and was also almost a stevedore.9
6. The director-general and his council were invested with all powers, judicial, legislative and executive, subject, some supposed, to appeal to Holland; but the will of the company, expressed in their instructions. or declared in their marine or military ordinances, was to be the law of New Netherland, excepting in cases not especially provided for when the Roman Law, the imperial statutes of Charles V, the edicts, resolutions and customs of Fatherland, were to be received as the paramount rule of action .- O'Callaghan's "History of New Netherland," vol. I, p. 90.
7. The Council there administered Justice in criminal matters, as far as imposing fines (boet-straffe), but not as far as capital punishment. Should it happen that any one deserve that, he must be sent to Holland with his sentence .- Wassenaer, in "The Documentary History of the State of New York," Edition of 1850, vol. ii, p. 43; also Chester's "Legal and Judicial History of New York."
8. In every tribunal there is a schout or sheriff, who convenes the judges and demands from them justice for the litigating parties; for the word "schout" is derived from schuld, debt, and he is so denominated be- cause he is the person who recovers or demands common debts, according to Grotius. The right of the sovereign in criminal cases is sustained before the court by the advocate fiscal or attorney-general .- Van Leeuwen's "Com- mentaries on Roman Law."
9. He is charged specially with enforcing and maintaining the placards, ordinances, resolutions and military regulations, of the High Mightinesses
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He was the encyclopedia of jurisprudence, was privileged to sit in the Council and, when asked, give his opinion on mat- ters of finance, justice, or police, although he had no voting power in that body. His responsibilities were so many and so vital that his person was hedged around almost like that of a judge; as the Guardian of the Law, special care was taken that nothing should hinder the impartiality of the schout-fiscal's recommendations and acts.10 At least such was the letter of the law, the spirit of the regulations ordered by the States General and the West India Company for the governance of the colony. In actual practice, however, the schout-fiscal does not seem to have had so much legal dignity. Under Van Twiller, the schout who had been so unfortunate
the States General, and protecting the rights domains and jurisdiction of the company, and executing their orders as well in as out of court, without favor or respect to individuals; he was bound to superintend all prosecutions and suits, but could not undertake any action on behalf of the company, except by order of the council; nor arraign or arrest any person upon a criminal charge, unless upon information previously received or unless he caught him in flagrante delicto. In taking information he was bound to note as well those points which made for the person, as those which supported the charge against him, and after trial he was to see to the proper and faithful execution of the sentence, pronounced by the judges, who, in indictments carrying with them loss of life and property, were not to be less than five in number. He was moreover specially obliged to attend to the commissions arriving from the company's outposts, and to vessels arriving from, or leaving for, Holland, to inspect their papers, and superintending the loading and discharging of their cargoes, so that smuggling might be prevented; and all goods introduced, except in accordance with the company's regula- tions, were at once to be confiscated. He was to transmit to the directors in Holland copies of all informations taken by him, as well as of all sen- tences pronounced by the court, and no person was to be kept long in prison at the expense of the company, without special cause, but all were to be prosecuted as expeditiously as possible before the Director and council .- O'Callaghan's "History of New Netherland."
10. He was strictly forbidden to accept presents or gifts from any person whatsoever, and had to content himself with the civil fines and penalties adjudged to him, and such part of the criminal fines and confis- cated wages of the company's servants as the director and council, after prosecution, might allow. He was not to have any part, however, of captured prizes or confiscated goods .- Daly, in "State of Jurisprudence During the Dutch Period," 1623-1674; "History of Bench and Bar of New York."
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as to oppose his regular conduct was condemned by Van Twiller "to lose his wages, then three years in arrears." Under Van Stuyvesant, the schout-fiscal was little more than a scrivener, employed by the Director-General to copy legal papers, which the Governor himself usually drafted. On another occasion Schout Van Dyck was "charged to look after the pigs, and keep them out of the fort, a duty which a negro could very well perform." If he presumed to disobey, the Director-General "put him in confinement, or bastinadoed him with his rattan," states an entry in "Pennsylvania Archives," Second Series, Vol. II, p. 181. Still, the first schouts-fiscal of New Netherland were perhaps accorded a status more in keeping with their legitimate office. The first schout-fiscal was Jan Lampo, who was succeeded in 1631 by Coenraed Notelman. Isaac de Rasieres was the first koop- man; his successor was Jan van Remund.
For more than a decade this system of government was in effect in New Netherland. Minuit was Director-General for six years, losing office, it is said, because of certain objection- able features of his association with the patroons. But dur- ing his administration there was noticeable expansion of the commercial affairs of the colony. The members of his Council were Peter Bylvelt, Jacobs Elbertsen Wissinck, Jan Janzzen Brouwer, Simon Dircksen Pos and Reynert Har- menssen; and one of his first acts was to open negotiations with the Indians for the purchase of the Indian right to Man- hattan Island. He extinguished the Indian title to about 22,000 acres of land, confirming it to the West India Com- pany, for the sum of about twenty-four dollars. The new fortifications begun by Engineer Frederic at the "Battery" were christened Fort Manhattan, and the village became New Amsterdam.
While the relations with the Indians, with one or two regrettable exceptions, were uniformly amicable and trading -
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was good, the colonization did not expand under Minuit as rapidly as had been hoped by the Company. Minuit had en- deavored to cultivate friendly relations with the Pilgrims at New Plymouth ; in the spring of 1627 his secretary, Isaac de Rasieres, had written to Governor Bradford, "officially in- forming him of the founding of a settlement and province on the Mauritius or Hudson's River, and assuring him that the Hollanders wished to cultivate friendly and commercial rela- tions with the Pilgrims." In reply Bradford had professed a desire that friendly intercourse should be established, but warned the Dutch to keep within the fortieth degree of lati- tude, though, in the face of Minuit's retort that the Dutch had a right to trade with the Narragansetts and would do so, Bradford felt himself powerless to enforce his demand. "For strength of men and fortification," he wrote to the Council of New England, "they far excel us and all in this land." Minuit, of course, was aware of this. Nevertheless, he wished to cultivate neighborly feelings between the two Euro- pean colonies. He even offered, in fact urged, the Pilgrims to leave their "sterile soil" and settle in the "beautiful and fer- tile country on the banks of the Fresh-Water (Connecticut) River," under the jurisdiction of New Netherland. Such a status, of course, the Englishmen would not suffer, although they profited by Minuit's advice and later ousted the Dutch from the Connecticut valley altogether.
During Minuit's administration, however, the Dutch were supreme, or predominant. But the colonial expansion was not rapid enough to satisfy the homeland. 'And soon the Board of Nineteen of the Dutch West India Company devised another means of encouraging emigration. This was given authority in the Charter of Freedoms and Exemptions granted on June 7, 1629. It introduced the patroons, with the manorial system of local government, a feudal system which developed, in at least one important instance almost indepen-
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dent sovereignty, the quasi-independent colony of Rensselaers- wyck indeed coming into actual armed conflict with the forces of the Director-General. To what extent this landed aris- tocracy interfered with the authority of the first three direc- tors-general, Minuit, Krol and Van Twiller (1626-37), is not positively known, the records of the West India Company having been lost.11 Neither is it possible to state, confidently, how judicial proceedings were conducted under Minuit, Krol or Van Twiller, but it would seem that with the coming of the patroons the judicial labors of Governor and Council were lessened. Obviously, the authority of the Governor was af- fected by the fact that several of the patroons were directors of the Council of Amsterdam, e. g., were his overlords.12 Still, it was perhaps well to curb pretensions of arbitrary power by the governor, for out of such "uncongenial beginnings a degree of popular government was evolved,"13 eventually.
II. Mr. Brodhead, who went to Holland in 1841, to gather data re New York colonial history, found that the archives of the Dutch West India Company had been sold but a few years before his arrival, for waste paper. "He was able to rescue some fragments, but the amount obtained was very trifling."-Chief Justice Daly, in "State of Jurisprudence During the Dutch Period," 1623-1674.
12. In 1629 the Board of Nineteen adopted a charter of privileges for intending settlers, which was fatal to the interests of the company, for on its adoption there was a general scramble for the best lands in the province, in which the directors and members of the corporation took part as in- dividuals and not as members of the body. Immense tracts of land were acquired by different parties. . . . The internal administration of the New Netherland colony was exceedingly bad. In 1632, to heal the breaches which internecine dissension had caused, Minuit was deposed .- "Encyclo- pedia Britannica," on The United States.
13. The director, as the governor was styled, seemed in practice as absolute and uncontroled in his jurisdiction as was Warren Hastings in the succeeding century in India; the one had for his subjects colonists from Holland, the other ruled numerous tribes of an alien race. The Dutch director extinguished Indian titles or sanctioned their purchase. His rati- fication was essential to the validity of every contract; he created the courts, appointed nearly all public officials; enacted laws and ordinances as a Roman emperor, issued edicts, incorporated towns, imposed taxes, levied fines, and inflicted penalties. He possessed a power almost as extensive over the currency of the colony as did Philip the Fair over that of France. He determined the value of the wampum, the chief money of the time. No jury aided him in the decision of criminal or civil causes ; he deter-
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mined these himself. While his commission usually required him to recog- nize the cognate jurisdiction of what was termed the Council, he habitually ignored this body as a restraint upon his plenary authority. Yet, in spite of these uncongenial beginnings, a degree of popular government was evolved. . Men nurtured in the independent air of Holland could not be expected long to brook tyrannical government. Their situation in a new country, surrounded by wild tribes of the forest, amidst novel experi- ences and sudden dangers which compelled the director frequently to consult with the chiefs of the people, was especially conducive to the development of independence .- Dougherty, in "Legal and Judicial History of New York" (Chester, 19II).
CHAPTER VIII. THE PATROONS AND THEIR COURTS .*
Holland had been struggling for fifty years under a repub- lican skeleton of government in which the democratic prin- ciple was occasionally manifested-faintly, perhaps, but still with sufficient strength to slowly undermine or change the feudal system. As the decades of that half-century had passed, the levelling of the classes had slowly proceeded. There was a vital reason for this, one that had nothing to do with platitudes or theories of brotherly love. In the com- mon danger of invasion of their hollow land by the sea, all classes had necessarily to be of one purpose; in the struggle for existence, there was no option; all must work or drown. So, "the nobles who composed the landlord class gradually came down from the stilts of exclusiveness, and in habits and even costume imitated the working people."1 The feudal system of manorial lord and armed retainers had, in Holland, become more that of working estate-owner and willing la- borers, all classes combining in constructive work. It was this spirit of cooperation, perhaps, which the States General
*AUTHORITIES-O'Callaghan's "History of New Netherland"; Scott's "Courts of the State of New York"; Southey's "History of Brazil"; the Van Rensselaer "Bowier Manuscripts"; "Documents Relative to the Colonial History of the State of New York"; Lord's "American Founders, in Beacon Lights of History"; Ridpath's "History of the World"; Taylor's "Origin and Growth of the English Constitution"; Chester's "Legal and Judicial History of New York"; "Documentary History of the State of New York," ed 1850; "Civil List and Constitutional History of the Colony and State of New York," ed. 1888; Lossing's "Our Country"; Lincoln's "Constitu- tional History of New York"; Van Laer's translation of the "Minutes of the Court of Rensselaerswyck," 1648-1652.
I. When industry was made honorable in Holland the feudal system began to decay. It was a system embracing large landowners, whose tenants were military men who controlled all labor and bore allegiance to the lordly proprietor. In the new era which had gradually dawned in Holland, the owner of the soil was no longer the head of a band of armed depredators who were his dependents, but the careful proprietor of broad
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and the West India Company thought might be introduced in the colonies with advantage. They needed settlers in New Netherland. But emigrants drawn from the peasant class were too poor, and might, in the difficulties of the new land, become dependent upon the Company. For successful colonization, capital was necessary, as well as labor. And, in the Charter of "Privileges, Freedoms and Exemptions to all patrons, masters or individuals who should plant any colonies and cattle in New Netherland," which the West India Com- pany published in 1629, the Company perhaps saw the solu- tion of their problem, enabling them to develop their colony at the expense of others. The West India Company was, nevertheless, exceedingly prosperous just then. In 1628, its ships captured the Spanish silver fleet, with profit to the Company of $15,000,000. In 1629, about $8,000,000 in prizes were added to the Company's wealth by privateers. Still, it was quite willing to let others handle the more prosaic enter- prise of developing New Netherland. Hence the patroonship plan.
A somewhat similar system had been successful in Spanish and Portuguese possessions.2 Hereditary captaincies, grant- ing court favorites privileges somewhat like those of the proposed Dutch patroonships, had succeeded in Madeira and the Azores, and possibly South America. In one part of
acres, and devoted to industry and thrift. The nobles who composed the landlord class gradually came down from the stilts of exclusiveness, and in habits and even costume imitated the working people. The latter became elevated in the social scale. Their rights were respected and their value in the state was duly estimated. Ceaseless toil in Holland was necessary to preserve the hollow land from the invasion of the sea, and the common needs assimilated all classed in a country where all must work or drown .- Lossing's "Our Country," Vol I, 267.
2. It had then become of sufficient importance to obtain some considera- tion at court, and in order to forward its colonization, the same plan was adopted which had succeeded so well in Madeira and the Azores, that of dividing it into hereditary captaincies, and granting them to such persons as were willing to embark adequate means in the adventure, with powers of jurisdiction, both civil and criminal, so extensive as to be in fact unlim- ited .- "History of Brazil," by Robert Southey, Vol. I, 41.
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South America the Dutch perhaps had had to feel the force of a manorial system which could readily be converted into a military system; the West India Company had attempted to gain a foothold in Brazil five or six years earlier, at the ex- pense of the Portuguese, but had failed, being expelled from Bahia in 1625. However, another Brazilian campaign was being planned at the time the West India Company devised the new system of patroonships for New Netherland. In 1629, they attacked and took Pernambuco. In 1630 Count Maurice of Nassau, there set up "a regular government" by means of which the Dutch gained possession of all Brazil north of Pernambuco, except Para, holding the region for thirty years.
So, maybe, the measure passed by the Dutch West India Company, with the approbation of the States General, in 1629, in offering the Privileges, Freedoms and Exemptions which would establish a new system of local government and minor courts under patroons in New Netherland was not de- vised to meet the needs of only this colony. The name, how- ever, is expressly stated in the charter, and it was in New Netherland that the directors of the West India Company who became patroons centred their efforts.3 Just as in the Portu- guese system of captaincies to court favorites, so in the Dutch system of patroonships the offer was addressed only to a favored circle, to "members of the company." The proposals were well received; in fact, even before the charter was pub- lished, certain directors bestirred themselves to grasp the
3. But as the land in many places being full of weeds and wild produc- tions, could not be properly cultivated in consequence of the scantiness of the population, the said Lords Directors of the West India Company, the better to people their lands and to bring the country to produce more abundantly, resolved to grant divers Privileges, Freedoms and Exemp- tions to all Patrons, Masters or Individuals who should plant any Colonies and cattle in New Netherland, and they accordingly have constituted and published in print these following exemptions, to afford better encourage- ment and infuse greater zeal into whomsoever should be inclined to reside and plant his Colonie in New Netherland.
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opportunity.4 While only wealthy persons could handle such enterprises, the privileges of the charter were, of course, open to all persons, peasants or nobles, who could meet the con- ditions.5 The Company reserved the lands "on and around the island of Manhattan," as the "commercial emporium" of the province, to which emporium "all products for exportation should first be brought," but all other land they were disposed to grant to whosoever could bring it into successful cultiva- tion. But recognizing that the measure would not appeal to the poor tenantry of Holland, they addressed the wealthier class already interested, as members of the trading company. To such members as should "undertake to plant a Colonie there of fifty souls, upwards of fifteen years old," within four years, the Company offered the feudal status of Patroon within the area each would succeed in colonizing. The extent of a colony of fifty souls was limited to sixteen miles on one bank of a waterway, or eight miles on both shores of a navigable stream; but the colony might extend indefinitely into the interior. In ratio to the increase of colonists over
4. While this charter was under consideration in the meetings of the Company at Amsterdam, two of the directors (Samuel Godyn and Samuel Bloemmaert ) purchased of the Indians a tract of land on Delaware Bay, extending from Cape Henlopen (the southern boundary of New Nether- land) northward, full thirty miles, and two miles in the interior. This purchase was ratified by the Company when the charter was issued. Very soon afterward Killian Van Rensselaer purchased a large tract of the natives on the upper navigable waters of the Hudson River; and Michael Pauw, another director, secured by the same means a large tract in New Jersey at the mouth of the river opposite Manhattan, and all of Staten Island. This adroit management of wide-awake directors, in securing the best lands in the province, as to situation-who "helped themselves by the cunning trick of merchants"-provoked jealousy and ill will among their fellow directors, which was finally allayed by admitting others into part- nership with them .- Lossing.
5. Such members of the said company shall be acknowledged Patroons of New Netherland, who shall, within the space of four years next after they have given notice to any of the Chambers of the Company here, or to the Commander or Council there, undertake to plant a Colonie there of fifty souls, upwards of fifteen years old.
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the stipulated fifty, the limits of the colony along a waterway might be expanded.
The Patroon was to be the Lord of the Manor, with ab- solute authority. He could hold inferior courts, and in any cities developed in the colony was to have power to appoint magistrates and municipal officers.6 Settlers were to be exempted from provincial taxation for ten years; and for that period every man, woman and child "was bound not to leave the service of the Patroon without his written consent." The Company undertook to furnish the colonies with as many African slaves "as they conveniently could," also to protect them against foes; and the Patroons undertook to extinguish Indian land titles by purchase, and support a minister of the Gospel and a schoolmaster. All colonists, under pain of banishment, were forbidden to manufacture cloth of any kind, that being a staple industry of the Netherlands.
The Patroon was to be vested with almost unlimited power; through the Patroon Courts, he, as presiding officer of that court, had the power even of life and death over the people of his colony.7 There was a restriction, but ways of
6. Article VI reads :
"They shall forever possess ... as also the chief command and lower jurisdictions. . . . And in case anyone should in time prosper so much as to found one or more cities, he shall have power and authority to establish officers and magistrates there, and to make use of the title of his Colonie, according to his pleasure."
Article IX of the charter provided :
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