USA > New York > Historical sketch of the judicial tribunals of New York from 1623 to 1846 > Part 2
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10
1 Brodhead, 514.
2 2 0'Call, 210. Brodhead, 540. 2 Doc. History of N. Y.
3 Brodhead, 525, 532.
4 1 N. Y. Doc. History, 3S7.
·
10
HISTORY OF THE COURT AND OF THE
shown in carrying out the measures of his headstrong and arbitrary superior. By this means, the two offices of city schout and schout fiscal were united in the same person. Stuyvesant even went so far as to refuse to allow the new magistrates to appoint their own clerk, though it had been the usage in Amsterdam from the time that that city had had a burgomaster ; and as a crowning act, he informed the new tribunal, that its establishment or the scope of its authority did not in the slightest degree diminish the power of himself and his council, to pass whatever laws or ordinances they pleased, for the municipal government of the city.1
On the second of February, 1653, he issued a proclamation, appointing as burgo- masters, Arent Van Hatten and Martin Krieger, and as schepens, Paulus L. Van der Grist, Maximillian Van Gheel, Allard Anthony, Peter W. Cowenhoven and William Beekman. Five days afterwards, the newly appointed magistrates assembled; Van Tienhoven, the schout fiscal, attending in his additional capacity of city schout, with Jacob Kip, who had been appointed secretary or town clerk, a station he con- tinued to fill for many years afterwards. No business was transacted, other than to give notice that the court would meet for "the hearing and determining of all disputes between parties, as far as practicable, in the building heretofore called the City Tavern, now the Stadt House, (City Hall,) on every Monday morning, at 9 o'clock." The Stadt House not being ready on the day appointed, the next meeting took place four days afterwards at the Fort, where the court was duly organized for the dispatch of business, and the proceedings opened with prayer; the following eloquent extract from which will show the sense entertained by these new magis- trates of the duties and obligations of the judicial office :
We beseech thee, Oh ! Fountain of all good gifts, qualify us by thy grace, that we may, with fidelity and righteousness, serve in our respective offices. To this end enlighten our darkened understandings, that we may be able to distinguish the right from the wrong, the truth from falsehood, and that we may give pure and uncor- rupted decisions, having an eye upon thy Word, a sure guide, giving to the simple wisdom and knowledge. Let thy law be a lamp unto our feet and a light unto our paths, that we may never turn away from righteousness. Deeply impress on all our minds that we are accountable not to man, but to God, who seeth and heareth all things. Let all respect of persons be far removed from us, that we may award justice unto the rich, and unto the poor, unto friends and enemies; to residents and to strangers, according to the law of truth, and grant that not one of us, in any instance, may swerve therefrom ; and as gifts do blind the eyes of the wise, and destroy the heart, keep, therefore, our hearts in judgment. Grant unto us, also, that we may not rashly prejudge any one, but that we patiently hear all parties, and give them time and opportunity for defending themselves; in all things looking up to Thee and to thy Word for counsel and direction.2
It was the intention that the municipal government conceded to New Amsterdam should conform, as far as practicable, to that of the parent city. How essentially Stuyvesant departed from this in the outset, has been already shown, and his resolving that the burgher government did not diminish the right of himself and his council to regulate municipal affairs, left the precise powers of the new tribunal very indefinite and uncertain. It led, at the commencement, to an organization of the municipal government, in many respects different from that of Amsterdam, and to great unwillingness at first, on the part of the burgomasters and schepens, to
1 N. Y. Rec. of Burgomasters and Schepens, vol. i. Brodhead, 543.
2 N. Y. Rec. of Burg. and Schep. i. 3.
11
JUDICIAL ORGANIZATION OF THE STATE.
interfere at all in municipal matters. In Amsterdam there were four burgomasters, each of whom attended three months of the year, in rotation, at the city hall, for the despatch of public business, and the schepens, who were nine in number, held the regular court of justice, having civil and criminal jurisdiction, which was almost un- limited. The duties of the schepens were especially judicial, while those of the schout and the burgomasters were chiefly executive, and the three bodies, when assembled together, constituted a " college," for the enactment of municipal ordinances and laws, under the title of " the lords of the court of the city of Amsterdam." There was also a permanent council, composed of thirty six members, the nature of which need not be explained.1
Though this division of duties and labors was highly essential in a city of the mag- nitude of the Dutch commercial metropolis, it was not so necessary in a small com- munity, like that of New Amsterdam, which, at the period in question, could not have embraced much over seven hundred inhabitants.2 From this cause, perhaps, as well as from the uncertainty respecting the precise distribution or extent of their duties, occasioned by the notice they had received from Stuyvesant, the newly appointed officers assembled together as one body, and in that united capacity con- tinued thereafter to discharge legislative, judicial and executive functions. In the towns and villages of Holland, the schout was the chief officer of the board. He convoked the court, and presided at the head of it, but without taking any part in its proceedings, other than in collecting the votes. His position was somewhat analogous to that of the speaker or the president of a legislative assembly, except that he had no vote, though he might express his opinion, and he was obliged to quit the bench when he acted as prosecuting officer, the oldest burgomaster then pre- siding in his stead.3 In New Amsterdam, however, Arent Van Hatten, being the first named as burgomaster, assumed the presidency of the court,4 and after he retired from office, the eldest burgomaster continued to act in that capacity until 1656,5 when Stuyvesant ordered that the presidency should be changed every three months, which continued until 1660, in which year the colonists obtained what they had long petitioned for, a separation of the office of city schout from that of the schout fiscal. This separation had in fact been made six years before, and a city schout appointed by the Amsterdam chamber, but this officer, Jochem T. Kuyter, having been killed in a collision with the Indians, before he could enter upon the duties of his office, Stuyvesant retained the schout fiscal, Vau Tienhoven, in the dis- charge of the duties of city schout, and persisted, against the urgent remonstrance of the inhabitants in continuing him and the succeeding schout fiscal, Nicasius de Sille, as city schout, until the Amsterdam chamber finally appointed to the post Peter Tonneman, who had formerly been schout of a district of Dutch towns on Long Island. Tonneman received his appointment in Holland, and when he came out, he insisted upon his right to the presidency of the court. In this he was supported by
1 J. Wagenaar, Amsterdamsche Geschiedenissen, 1740. Meyer's Institutions Judiciarics, tome iii. livre 5, chap. 11, 253. Ordinances of Amsterdam, vol. ii. p. 695. Vander Linden, 379. 2 O'Call. 210.
2 Valentine's History of the City of New York, p. 58. Brodhead, 54S.
$ Van Leuwen, book 1. chap. 1. sec. 21. Meyer's Institutions Judiciaries, tome iii. livre 5, chap. 11, 253. Vander Linden, 377. Brodhead, 674.
4 N. Y. Rec. of Burg. and Schep. i. 4. 5 N. Y. Rec. of Burg. and Schep. ii. 488.
12
HISTORY OF THE COURT AND OF THE
Stuyvesant, who went personally before the burgomasters and schepens, and insisted not only that Tonneman should sit at the head of the court, but that he should have a vote in all matters in which he was not a party, a privilege never granted to the schouts in Holland. The burgomasters and schepens resisted, but after a long and angry discussion, it was finally agreed that Tonneman should have what he claimed, until the question should be determined by the "Lords Majores," in Holland. It does not appear whether any further action was had in the matter, but the name of Tonneman was continued thereafter upon the records as the chief or presiding officer.1 In 1657, that branch of municipal affairs which especially required the discharge of executive duties, had increased so largely, that the burgomasters organized a separate court, which met every Thursday, to dispose of it.2 In view of the serious encroachment made upon their time by the accumulation of duties, or as they expressed it, the impossibility of attending to their private affairs, the burgo- masters petitioned Stuyvesant to be released thereafter from attending the burgher court, but he refused to grant it, and the court continued in the discharge of mixed legis- lative and judicial functions as long as the Dutch held possession of the province.
The proceedings of this tribunal, or, as it was denominated, " the worshipful court of the schout burgomaster and schepens," were all recorded by their clerk or secre- tary; and as every thing that took place before it, the nature of the claim, or of the offence, the statements of the parties, the proof and the decision of the court, with the reasons assigned for it, were carefully noted and written down, these records supply a full account of the whole course of its proceedings, and furnish an interest- ing exposition of the habits and manners of the people. Upon perusing them, it is impossible not to be struck with the comprehensive knowledge they display of the principles of jurisprudence, and with the directness and simplicity with which legal investigations were conducted. In fact, as a means of ascertaining truth, and of doing substantial justice, their mode of proceeding was infinitely superior to the more technical and artificial system introduced by their English successors. None of these magistrates were of the legal profession. They were all engaged in agricultural, trading or other pursuits, and yet they appear to have been well versed in the Dutch law, and to have been thoroughly acquainted with the commercial usages, customs and · municipal regulations of the city of Amsterdam. This is the more remarkable, as a knowledge of the Dutch law at that period was by no means of easy acquisition. Though the principles and practice of the civil law prevailed in Holland, it was greatly modified by ancient usages ; some of them of feudal origin, others the result of free institutions, which had existed from the earliest period ; and it had engrafted upon it a number of public regulations or ordinances, emanating from the different provinces, as distinct and partly independent sovereignties, which had originated either as feudal privileges or sprung up during Spanish domination, or were the result of the long struggle and many political changes which the low countries had passed through before the general establishment of free institutions. In every town and village in Holland, moreover, there existed usages and customs peculiar to the place, which had the force of law, and were not only different in different towns, but frequently directly opposite. The Dutch law, in fact, was then a kind of irregular mosaic, in which might be found all the principles as well as the details of
1 N. Y. Rec. of Burg. and Schep. v. 414, 484.
2 N. Y. Rec. of Burg. and Schep. Ordinances of Burgomasters.
CALIFO
13
JUDICIAL ORGANIZATION OF THE STATE.
a most enlightened system of jurisprudence; but in a form so confused as to make it exceedingly difficult to master it.1 That these magistrates should have had any general or practical acquaintance with such a system at all, was scarcely to have been expected; but that they had, is apparent, not only from the manner in which they disposed of the ordinary controversies that came before them, but in their treat- ment of difficult questions as to the rights of strangers, their familiarity with the complicated laws of inheritance, and the knowledge they displayed of the maritime law while sitting as a court of admiralty. The Amsterdam chamber sent out to them the necessary books to guide them, as to the practices of the courts of Amster- dam, and when the province passed into the hands of the English, there was attached to the court a small but very select library of legal works, mainly in the Dutch language. There were, moreover, men educated to the legal profession, in the colony. Van Dinclage, the vice director, who had acted as schout fiscal for Van Twil- ler, and chief judge of the court established by Stuyvesant, was a doctor of laws, and there is sufficient known respecting him, to warrant the opinion that he was an able and accomplished jurist. Van der Donck was admitted to the same honorable degree in the University of Leyden, and was afterwards an advocate of the supreme court of Holland.2 The schout fiscal, Nicasius de Sille, who acted as city schout for four years, is stated in his commission from the Amsterdam chamber to be " a man well versed in the law."3 In addition to these, there were several notaries. Dirk Van Schellyne, who came out in 1641, had previously practiced at the Hague ; David Provorst discharged the duties of notary for some years before Schellyne's arrival,4 and there was another notary named Matthias de Vos.5 Under the civil law as it prevailed in Holland, a considerable part of the proceedings in a cause, if it was seriously contested, was conducted by the notary, who was required, at least, to be well versed in the manner of carrying on legal controversies; and as he was fre- quently consulted by suitors for advice as to their rights and liabilities, he was gene- rally well informed and capable of giving it.6 Such was the case with Van Schel- lyne, who, from the records he has left, was evidently an experienced and skillful prac- titioner. He was not only connected with the court in the discharge of his duties as notary, but he was appointed by it, in 1665, high constable, (conchergio.)7 All of these men must have had more or less to do with establishing the mode of legal proceeding, and of advising and guiding the magistrates. Van Schellyne and De Sille were in constant official communication with them. Van Dinclage must have brought into use the forms of legal procedure in the court over which he had presided, and Van der Donck was one of the chief getters up of the new tribunal; and though he survived
1 H. Fagel and J. C. Van der Hoop, Dissert. de usu Juris Romani in Hollandia Hag, 1779. F. Van Mieris Groot Charterbock der Graaven Van Holland, Leid, 1753-4. Deelen Cau en Scheltus, PLACAAT BOEK Van de Staaten Generaal Van Holland, en Van Zeelend, 9 Declen, edition of 1658. Actes des Etats Généraux de 1600. Recuielles et mis en ordre, par M. Gachard Bruxelles, 1849. Oeuvres de Raepsait, tome iii. Des Droit des Belgis et Gaulois. Meyer's Institutions Judi- ciaries, tome iii, livre 5, chap. 11.
2 2 0'Call. 550.
3 Brodhead, 561. 5 N. Y. Rec. of Burg. and Schep. 5.
4 8 N. Y. Rec. of Burg. and Schep. 101.
$ 5 N. Y. Rec. of Burg. and Schep. 642.
6 S. Van Leuwen Practyk der Notarissen, Rott. 1742.
7 N. Y. Rec. of Burg. and Schep. ii. 642.
14
HISTORY OF THE COURT AND OF THE
its creation but two years, he was no doubt advised with and consulted in respect to its organization, and as to the mode in which it was conducted. We find him in fact, the very year that it was established, claiming its protection as a " citizen and burgher," against the menaces of Stuyvesant.1 The court was required, in all its determinations, to regard as paramount law, all regulations established by or instruc- tions received from the chamber of Amsterdam or the College of Nineteen, for the government of the colony. Next, all edicts or ordinances duly established by the governor and council; then the usages, customs or laws prevailing in the city of Am- sterdam, and where they furnished no guide, the law of the fatherland, by which was more particularly understood the ordinances of the province of Holland and of the states general, and the civil law as it prevailed in the Netherlands, or, as it is denominated by jurists, the Roman Dutch Law.
The burgomaster and schepens had constantly demanded from Stuyvesant that they should be allowed to nominate a double number of persons, from whom their successors should be chosen, as a partial approximation to the privileges enjoyed in the Netherlands, or, as they expressed it, " in the beloved city of Amsterdam ;"? but he continued the old magistrates, merely supplying vacancies, until 1656, when he consented, with the proviso that the old magistrates should always be considered as re-nominated-which left it in his power to continue them precisely as he had done before. The condition was accepted, and the nominations made; but Stuyvesant, being displeased with some of the new names, continued the old magistrates, merely supplying vacancies, until the time for reappointment came around, in 1658, when he at last gave way, and selected, from a double list of names presented to him, the magistrates who were to serve. The burgomaster and schepens then selected, continued in office until 1660, when a new nomination and appointment was made every year, in the month of February,3 which was con- tinued thereafter, until the English changed the organization of the court. All these magistrates, as far as can be gathered, were men of intelligence, of inde- pendence, and, with one or two exceptions, of high moral character, evincing in the discharge of their duties, and especially in those of a judicial nature, that unswerving adhesion to established rules and customs, that sterling good sense, and strong love of justice, which constitutes so marked a feature in the Dutch national character.
The right which Stuyvesant claimed, of interfering in the administration of city matters, appears to have been confined to what related to the general regulation of the city's affairs, and not to the administration of justice between particular indi- viduals, or as against public offenders. Upon the former matter, he and the burgo- master and schepens came frequently in collision; and he sometimes gave vent to his anger at their insolence and presumption, by a public proclamation, in which they were contemptuously referred to as "the little bench of justice ;"4 but he seems to have abstained from any interference with their judicial powers. At first he was disposed to limit their action in criminal cases ; but finally he suffered them to ex-
1 N. Y. Rec. of Burg. and Schep. i. 321.
2 New Amsterdam Rec. 359, 373, 875.
3 Rec. of N. Y. Burgomasters and Schepens, iv. 299.
4 Documents of Stuyvesant's Council in N. Y. Record of Burgomasters and Schepens, 26th of February, 1654.
15
JUDICIAL ORGANIZATION OF THE STATE.
ercise unlimited criminal and civil jurisdiction, except the infliction of punishment in capital cases. The mode of proceeding in civil cases was simple and summary. The court was held once every fortnight, though frequently once every week, upon a stated day. Attached to the court was an officer, known as the court messenger, who, at the verbal request of the party aggrieved, summoned the adverse party to appear at the next court day. If the defendant failed to appear, he incurred the cost of the summons, lost the right to make any objection to the jurisdiction of the court, and a new citation was issued. If he failed again, he incurred additional costs, lost the right to make all " dilatory exceptions," or to adjourn, or delay the proceeding. He was then cited for the third time, and if he did not then appear, the court proceeded to hear the case and give judgment, and he was cut off from all right of appeal or review. But if, upon hearing the plaintiff's case, the court deem- ed the presence of the defendant essential, they might issue a fourth citation, in the nature of an arrest, and compel his appearance. Parties, however, usually at- tended upon the first citation. The plaintiff stated his case, and the defendant made his answer. If they differed in a fact which the court thought material, either party might be put to an oath ; and, if they were still in conflict, the court might require the examination of witnesses, and the matter was adjourned until the next court day, during which time either party might take the depositions of his wit- nesses, before a notary, or the court might require that the witnesses should be pro- duced, to be examined orally before it, at the adjourned day, under oath. But, most generally, the matter was disposed of upon the first hearing of the parties, without resorting to the oath, or the examination of witnesses. If it was intricate, or it was difficult to get at the truth, it was the constant practice to refer the cause to arbitrators, who were always instructed to bring about a reconciliation between the parties, if they could; and this was not confined merely to cases of disputes about accounts, or to differences growing out of contracts, but it extended to nearly every kind of case that came before the court. The arbitrators were left to the choice of the litigants, or appointed by the court, or one of the schepens was directed to take the matter in hand, and try and reconcile the con- testants. If no reconciliation could be effected, or the parties would not submit to the final determination or conclusion of the arbitrators, the dissatisfied party might again bring the matter before the court, where it was finally disposed of. These references were frequent upon every court day. In fact, the chief business of this tribunal was, in acting as a court of conciliation; and it is worthy of remark, that though the amount involved was frequently considerable, or the matter in dis- pute highly important, that appeals to the court from the decision of the arbitrators were exceedingly rare. Indeed, the first appeal to be found upon the records was brought by a stranger.1
There was a more formal mode of proceeding, if parties preferred it. After the plaintiff had stated his case, the defendant might require him to put it in writing, and a day was given for that purpose. The defendant was then obliged to answer in writing, to which the plaintiff could reply, and the defendant rejoin, and there ended the pleadings. Each party then went before the notary of his choice, and had the depositions of his witnesses reduced to writing, a draft or copy of which was re-
1 N. Y. Rec. of Burgomasters and Schepens, i. 188, 231; ii. 10, 176 ; iii. 188; v. 190; vi. 474 vii. 180.
16
HISTORY OF THE COURT AND OF THE
tained by the notary, in a book kept by him for the purpose ; and where it was ne- cessary, a commission, or, as it was called, a requisitory letter, might be obtained for the examination upon interrogation of witnesses residing beyond the court's jurisdiction, who were examined before the judges of the local court where the witness resided, who sealed up the examination, and transmitted it to the court having jurisdiction of the cause. When the proofs were complete, they were added to the pleadings, the whole constituting what was called the memorial, which was submitted to the court, either party being at liberty to inspect it, and having the right, within a certain time, to have any of the witnesses of his adversary examined upon cross interrogatories, in re- spect to anything contained in their deposition, which was deemed material, or to have additional witnesses examined on his own behalf in reply; the manner of conducting which subsequent examination was arranged by the judge. But this mode of proceeding being dilatory and expensive, was rarely resorted to. The great majority of cases were referred to arbitration, or disposed of upon a summary hearing of the parties before the magistrates ; and it may be important to note, in respect to the rules of evidence, that whenever a paper or document was produced, purporting or avowed to be in the handwriting of a party, it was assumed to be his handwriting, unless he denied the fact under oath ; and that merchants or traders might always exhibit their books in evidence, where it was acknowledged or proved that there had been a dealing be- tween the parties, or that the article had been delivered, provided they were regu- larly kept with the proper distinction of persons, things, year, month and day-a practice which, in the states of New Jersey and New York, survived these Dutch tribunals, and has, at the present day, with certain qualifications or restrictions, ex- tended to nearly every state in the Union. Full credit was given to all such books, especially where they were strengthened by oath, or confirmed by the death of the parties, and also to memorandums, made between parties by sworn brokers. A leading distinction in evidence was also made between what was termed full proof, as where a fact was declared by two credible witnesses, as of their own knowledge, or it was proved by a document or written paper, and half proof as where it rested upon the positive declaration of knowledge by one witness only, under which latter head, as weak but assisting evidence, hearsay was allowed, which, in some instances, as in the case of certain dying declarations, was admitted to the force of full proof; and as the determining of a case upon the evidence of witnesses was left to the judges, very discriminating and nice distinctions were made in adjusting or weighing its relative force or value.1
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.