USA > New York > Historical sketch of the judicial tribunals of New York from 1623 to 1846 > Part 4
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The judicial organization, established by the Duke's Laws, was as follows: Jus- tices of the peace were commissioned for the various towns, who were clothed with all the powers exercised by such officers in England, and were allowed £20 a year for their services, which was afterwards limited to the payment of a specific sum for their attendance. A local court was created in each town for the trial of actions of debt or trespass, under five pounds. It was held once in every two, three or four weeks, as was found most convenient by the constable and overseers of the town, who were elected yearly by the freeholders. Six overseers, with the constable, or seven without him, constituted a quorum for the transaction of business ; and when the court was assembled, all matters were determined by the vote of the majority. If the court were equally divided, the constable had the casting vote. In 1666, the number of overseers were reduced to four, and any two of them, with the constable, held the court. To this court a clerk was attached, known as the town clerk, and there was an appeal from its decisions to the court of sessions.
The province was divided into three ridings, known as the east, west and north riding, and in each a court of sessions was established, which was held twice a year, that is, on the first, second and third Wednesdays in March, and on the corresponding Wednesdays in June. The court of sessions was held by all the justices living within the riding. In the absence of a superior officer, such as a member of the provincial council, the members of which were all commissioned for the peace, the oldest justice presided as the chief officer, whose duty it was to instruct the jury as to the law, and to pronounce the " decree" or " sentence" of the court. All actions at law and all criminal cases, were tried before a jury. The jury were composed of the overseers of the different towns within the riding. Every town elected eight overseers, and an equal proportion from each town was returned by the sheriff to serve as jurors at the sessions. Seven jurors were empanneled for the trial of a cause, and the verdict of a majority was sufficient, except in capital cases, when the court might empannel twelve, which was uniformly done, and the twelve were re- quired to be unanimous. This court had both civil and criminal jurisdiction. It had cognizance of all civil actions above five pounds; and there was no appeal from its judgment, except in cases of over twenty pounds. It was a court of probate, and
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HISTORY OF THE COURT AND OF THE
exercised the jurisdiction now entrusted to surrogates. It had, also, the power of granting a rehearing in any case, or, as it was called, a "review," and upon such review might, in its discretion, admit new evidence. From its judgments an appeal lay to the court of assize; and in cases not provided for by law, or to which no pun- ishment was attached, it was required to remit the case to the court of assize, where judgment might be rendered and punishment inflicted according to the discretion of the court, provided it was not repugnant to the laws of England.
The principal or highest tribunal in the province was the court of assize, or, as it was sometimes called, the general assizes. It was held once a year in the city of New York, by the governor and his council, and such of the justices of the peace through- out the province as saw fit to attend it. It had original jurisdiction-civil, criminal and equitable-having cognizance of civil and equitable actions where the amount exceeded twenty pounds-and was the appellate court from all inferior jurisdiction. As in the court of sessions, causes were tried by a jury, which originally consisted of six, but was afterwards increased to twelve, and the trial by jury was not limited to cases originally brought into the court, but was extended to cases on appeal.
The annual setting of the court of assize was on the last Wednesday in October ; but for the hearing of cases that required speedy despatch, a session of the court might be called at any time by a special warrant from the governor. The governor and council were also empowered to issue a commission for a court of oyer and ter- miner, where it was certified to them from the court of sessions that a capital offence had been committed, and that more than two months would elapse before the sitting of the court of assize. But courts of oyer and terminer would seem to have been unfrequent, but two instances of the setting of such a court having been found upon the records.1 When called, the judges who were to hold it, were named in the commission.2
It was the design of Clarendon that the court of assize should be nothing more than a judicial tribunal, but it became in time a kind of colonial legislature. When the convention was called at Hempstead, it was generally expected, especially among the English residents of Long Island, that a representative assembly would be convened similar to those which existed in New England, and that it would be con- tinued annually thereafter. But there was no provision for a provincial assembly
1 Rec. of Wills, N. Y. Surrogate's Office, vol. i. 1 Smith, 41.
2 In Smith's History, it is stated that Nicolls erected no court of justice, but took upon him - self the sole decision of all controversies; that complaints came before him upon petition, upon which he gave a day to the parties, and after a summary hearing, pronounced judgment ; that his determinations were called edicts, and were executed by the sheriffs he had appointed. He further says, when speaking of the administration of Nicolls' successor, Governor Lovelace, that Lovelace, " instead of taking upon himself the sole determination of judicial controversies, after the example of his predecessor, called to his assistance a few justices of the peace, and this, which was called the court of assize, was the principal law judicatory in these times." For this statement, there is not the slightest foundation, further than that appeals to the court of assize came up in the form of a petition to the governor and council; and that in one instance Nicolls issued a special commission for the investigation of the causes of the riots at Esopus, (Kingston,) and of the trial of the rioters by the commissions in conformity to instructions which he framed and transmitted. On the contrary, it appears by the records of the court of assize, which are still extant, from the year 1665 to 1672, that the court was duly convened by Nicolls, at New York, upon the day appointed for its first sitting by the Duke's Laws, Sept. 28, 1665, and that the first cause before it was tried by a jury. 3 Doc. rel. to N. Y. Col. History, 149. Rec. of Court of As- size, 14.
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JUDICIAL ORGANIZATION OF THE STATE.
in the duke's laws; nor was it the intention of James that any such privilege should be granted.1 When the delegates met at Hempstead they were, no doubt, apprised of what was expected from them, and after fixing the boundaries of the towns, and formally ratifying the duke's laws, they took no further action, but wound up their labors with an address filled with expressions of unbounded loyalty to James, and of cheerful submission to all such laws as he had enacted, or might thereafter enact.2 The whole conduct of the convention, and the servile character of this address, gave rise to loud complaints. The inhabitants, particularly those of English origin, re- garded the result of the convention as equivaleut to the surrender of their right to a legislative assembly; and finding that such a distinction was to be made between them and their New England brethren, their censure of the delegates was open and general. In fact, it was so freely indulged in, and so long continued, that the : court of assize, some eighteen months after, passed a resolution, threatening with a public prosecution any one who should speak against the signers of the address. When it became apparent, therefore, that all hope of a representative assembly was cut off, the desire for popular representation began to show itself in the court of assize. It had something of a popular element in the numerous justices of the peace who were privileged to attend it. As early as 1666, petitions came before it for the redress of grievances, and the enactment of necessary laws; and Nicolls, who was a man of moderation, and disposed to adapt the government to the wishes and wants of the people, made no opposition to the members of the court" deliberating upon matters affecting the general welfare of the province. Under Lovelace, this assump- tion of legislative powers became more decided, and justices of the peace attended its sittings even from so remote a part of the province as Delaware.3
It was determined that each member of the court was entitled to vote ; that the voice of the majority should control; and at each annual sitting, measures of a strictly legislative character were adopted, which were not formally enacted as laws, but put forth for the government of the province, in the shape of general orders. This exercise of legislative powers did not interfere with its judicial functions. It still continued to be the highest judicial tribunal, but this branch of its business was mainly limited to cases upon appeal.
After the passage of the duke's laws, no action was taken respecting the city of New York, until the 12th of June, 1665. During the ten months that had inter- vened since the capitulation, the court of burgomaster and schepens had continued in the exercise of its municipal and judicial functions ; but on that day, Nicolls pub- lished a proclamation, abolishing the form of government established by the Dutch, and declaring that, "For the future government of the city, persons should be commis- sioned to put the laws iu execution, in whose prudence ability and good affection to the government of England, he might have reason to put confidence ;" which persons, he declared, " should be known thereafter as the mayor, aldermen and sheriff, ac- cording to the custom of the corporations in England." Upon the same day, a joint commission was granted, appointing Thomas Willett, mayor; Thomas Delavall, Oloff Stuyvesant, John Bruggs, Cornelius Van Ruyven and John Lawrence, aldermen ; and Allard Anthony, the existing schout, sheriff;4 and these officers were declared to be
1 3 Doc. rel. to N. Y. Col. Hist. 230.
2 See 1 Thompson's Long Island, 133, in which this address is printed at length.
3 Rec. of Court of Assize. 4 Doc. Hist. of N. Y. 389.
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HISTORY OF THE COURT AND OF THE
a body politic and corporate thereafter, with power to govern the city according to the laws then existing, or which might thereafter be enacted. These magistrates assembled on the 15th of June following. They reappointed the former clerk of the court of burgomaster and schepens; changed the name of the court to the mayor's court-a title by which it was known for one hundred and fifty-six years after- wards-and, after making a few minor appointments, and transacting some further business, adjourned. They met again on the 27th of June, for the hearing and trial of causes. The records were directed to be kept in English and Dutch, and a jury of twelve were empanneled for the trial of a civil cause ;1 but, with this excep- tion, the business was conducted precisely as before. The change was, in fact, more formal than real. It was merely altering the burgomaster into a mayor, the schepen into an alderman, and the schout into a sheriff. In bringing about the change, Nicolls evinced his usual good sense and judgment. Willett, who was sent for from Plymouth, for the purpose of making him mayor, was an Englishman, but thorough- ly conversant with the Dutch language. He had been employed by Stuyvesant in important negotiations ; had been engaged in trade with New Amsterdam as early as 1645 ; and was well acquainted with the people, and with their usages and cus- toms. The majority of the aldermen, moreover, were selected from the Dutch in- habitants, and the two of English birth, Delavall and Lawrence, had long been resi- dents of New Amsterdam, and spoke the language. By this selection, and by ap- pointing the former schout to the office of sheriff, there was little in the new organi- zation to make the inhabitants feel that any sensible change had taken place. It was ordered that jury trials should be held on the first Tuesday of every month ; but the institution found little favor with the Dutch-the great majority of suitors preferring to have their cases summarily disposed of by the judges, in the manner to which they had been accustomed-and trials by jury did not come into general use in the court until many years afterwards.
Willett bore a high character for firmness and integrity, and was an able and efficient magistrate. With the exception of introducing the trial by jury, he ad- hered to the practice and form of procedure that had been established by his Dutch predecessors ; and, though the duke's laws were as binding upon the mayor's court as upon any other court in the province, no attention appears to have been paid to them. During the whole period of Nicolls' and Lovelace's government, justice was administered according to the Dutch law; and for half a century after- wards, many of the principles and forms of procedure peculiar to that law, continued to be recognized and followed in the court.2
In 1665, the court of burgomaster and schepens, at Harlæm, was abolished, and a town court, under the duke's laws, substituted in its stead ; and, in the same year, Nicolls entered an order in council, not then designed to be made public, by which the property of the Dutch inhabitants, who had not then taken the oath of allegiance, was declared to be forfeited to the crown.3 Willett continued as mayor for three years. His two successors, Delavall and Steenwyck, were appointed by the governor ; but, in 1669, the old Dutch form of nominating a double set of magistrates was re- sumed. The magistrates then in office nominated to the governor two persons for
1 1 Rec. of Mayor's Court, 1, 9, 26.
2 Records of Mayor's Court, vols. i. ii.
3 1 Rec. of Wills, N. Y. Surrogate's office, in which this decree will be found at length.
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each office, from whom Lovelace selected those who were to serve for the next two years. In 1670, the period of service was reduced to one year ; after which, the magistrates who were to serve for the coming year were nominated and selected by the governor; and this mode of appointing them annually continued until Dongan's charter was granted, fifteen years afterwards. In 1669, James presented the mayor with a silver mace, and each of the aldermen with gowns; and, in 1671, the English practice of requiring a proclamation of the bans of marriage having been adopted, a formal registry of them was kept in the mayor's court.
There was no court of chancery, but matters in equity were heard in any of the courts organized in conformity to the duke's laws. The equitable jurisdiction of the town court was limited to five pounds, but in the court of sessions there was no limitation. Proceedings in equity were conducted by bill and answer ; witnesses were examined in the same manner as was customary at the period in the court of chancery in England, and all suits in equity were determined by the court, without the intervention of a jury. This mode of administering legal and equitable relief in one and the same tribunal, continued for many years, even after the establishment of a court of chancery, in 1683, and it is curious to note that we have returned to it again, after the existence of a distinct court of equity in the state for nearly a century and a half. It is also worthy of notice, that the right of a court of equity to dissolve the marriage contract upon the ground of adultery, a jurisdiction not assumed by the court of chancery in England,1 was recognized in this state, at this early period. In 1671, a suit was brought for divorce, for the adultery of the wife, but the court held that it had no power to grant one. An application was then made to Governor Lovelace, and he decreed in council that it was conformable to the laws of the colony, to the civil law, and not inconsistent with the laws of Eng- land, that the marriage should be dissolved upon proof of the wife's adultery, and he sent the case back to the court to take proof of the adultery.2 Chancellor Kent says, that no divorce took place in the colony of New York for more than one hundred years before the revolution; and that after it became a state, there was no lawful mode of dissolving a marriage in the lifetime of the parties, but by a special act of the legislature, until by the act of 1787, the power was conferred upon the court of chancery, to grant divorces a vinculo in cases of adultery.3 The Dutch law allowed a divorce for adultery,4 and such divorces had been granted by the court of burgo- masters and schepens. Of this, doubtless, Lovelace was advised, when he declared it to be the law of the colony, but it would seem that after the court of chancery was created, and the English system was fully established, that divorces for this cause was no longer granted in the colony.
On the 9th of August, 1673, the city was retaken by the Dutch, after it had been in the possession of the English for nine years. Anthony Colve was appointed governor, the old name of the province was restored, and the name of the city was changed to New Orange. At a council of war, held by the commanders of the Dutch expedition, the former municipal government of schout, burgomaster and schepens was re-established, the burgomasters being increased to three, and the schepens to six, and
1 Dow's Rep. 117. Bisbop on Marriage and Divorce, § 278.
2 1 Dunlap, App. cxviii.
3 2 Kent's Com. 97.
4 Vander Linden's Institutes of Holland, 88. Van Leuwen, 484.
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HISTORY OF THE COURT AND OF THE
Colve made some alterations in the organization of the court, none of them, however, of sufficient importance to be enumerated.1 But this change lasted but little over a year. By the treaty signed at London, the states general relinquished the pro- vince of New Netherland to the English, and on the 31st of October, 1674, it was formally surrendered by Colve to Sir Edmund Andros, as the representative of James, Duke of York.2
In the instructions given by James, upon the departure of Andros, he was directed to see that justice was administered with all possible equality, without regarding as to their private concerns, whether the parties were Dutch or English. "It being my desire," said James, " that such as live under your government may have as much satisfaction as possible, and that without the least appearance of partiality, they may see their just rights preserved to them inviolably." Andros was instructed to put into execution the laws, rules and ordinances which had been established by Nicolls and Lovelace, and not to vary from them except upon " emergent necessity," nor then, unless upon the advice of his council and of the "gravest and most ex- perienced persons" in the colony. The choice of magistrates and officers of justice was left to his discretion, except that he was required to select those of "the most reputation for ability and integrity, who, for those reasons, might be most acceptable to the inhabitants."" Upon taking possession, Andros changed the name of the city and the province again to New York, and ordered that the English form of government, as it had previously existed under the title of mayor, aldermen and sheriff, should be restored, and that all magistrates who were in office when the Dutch took possession, should resume their duties, and continue in office for six months thereafter.4 The mayor's court was accordingly convened on the 13th of November following. Col. Matthias Nicolls, who had formerly been mayor, resuming the duties of that office, with four aldermen, John Lawrence, William Duvall, Gabriel Minviele, Frederick Philippse, two of whom had formerly served in that capacity. An order was made, that the records should thereafter be kept in English, and that all papers submitted to the court should be in that language, except in the case of poor people, who could not pay for a translation.5
On the 6th of August, 1674, James transmitted to Andros a copy of the laws in force under Nicolls and Lovelace, digested in one volume, accompanied by an order requiring him to put them in execution, except "such as might be found inconve- nient," with power to make alterations and amendments, subject to James' approval.6 Upon receiving this order, Andros published a proclamation, declaring that the " Book of Laws" should be in force thereafter; that the courts created by these laws should be held at the times and in the manner pointed out by them, and that all civil magistrates should be chosen thereafter in conformity with them. By this proclamation all the former courts were revived. The towns courts were re-es- tablished, and the courts of sessions, of which there were three, two upon Long Island, and one at Esopus, (Kingston.) A court of sessions was established at
1 1 Doc. History of N. Y. 390 to 395, where these alterations will be found.
2 1 Dunlap, 129. N. Y. Rec. of Burg. and Schepens, vol. vi.
$ 3 Col. Doc. 217.
4 Mayor's Court Rec. vol. iii. 1 Smith, 180.
5 2 Mayor's Court Rec.
· 3 Col. Doc. 226.
.
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JUDICIAL ORGANIZATION OF THE STATE.
Albany, under Nicolls, in 1666; this also appears to have been revived by Andros, and afterwards took the name of the mayor's court. Within two months after Andros put forth his proclamation, the court of assize was held in the city of New York, upon the regular day fixed by the duke's laws, and from entries of appeals, made to it from inferior courts, it would seem to have been held regularly every year, for ten years thereafter, with but one or two exceptions, though no regular records of the court could be found, after a diligent search in the public offices at New York and Albany. In addition to the members who formerly composed it, the mayor, recorder and aldermen of New York sat, by virtue of their authority, as justices of the peace ; and at the session held at New York in October, 1680, twenty-nine members were present, and took part in its proceedings. Andros, who was a good lawyer, was, no doubt, the most active and efficient judicial member of the court.1. It continued, as before, to exercise legislative functions. Indeed, the right of its members to act as legislators was recognized by James, for when advised by Andros, shortly after his arrival, of the general wish for a provincial assembly, he replied, that the redress of any grievance might easily be obtained by a petition to the general assizes, "where," said he, "the same persons (as justices) are usually present, who, in all probability, would be their representatives, if a different constitution were allowed."2 He could see no use, he said in another letter, in such assemblies;3 but at the same time, he was watchful to see that justice was carefully and humanely administered. " It is not unseasonable," wrote Sir John Werdon to Andros, " though it may be unnecessary, to put you in mind that it is his royal highness' intention to have all persons treated with all humanity and gentleness that can consist with the honor and safety of your government, to the end, that where the laws do inflict a punishment, it may seem rather for example to deter others from the like crimes, than to afflict the party punished, except where his malice appears plainly to aggravate his offence."4
The establishment of the code, as the general law of the province, produced no material change in the mayor's court, though some approximation was made to the English mode of proceeding. Nicolls, like the former mayor, Willett, had been long a resident in New Amsterdam, and the twelve mayors that succeeded him, with two exceptions, were of Dutch origin, or had been residents of New Amsterdam, under the Dutch. The provision requiring all papers before the court to be in the English language, introduced something of the English form of pleading, but it was so blended with the Dutch mode as to be scarcely distinguishable ; and it was not until after the arrival of one or two English lawyers, about 1682, that special pleading came at all into use. In fact, the English forms of procedure and mode of practice were not brought into general use in the colony until the time of Chief Justice Mompesson, that is, between 1704 and 1718.5 Nicolls, and the aldermen associated with him, continued in office until October, 1675, when Andros granted a commission, or rather charter, formally reinstating the corporate government of the city, increasing the number of aldermen to six, and conferring upon the corporation "full power and
1 1 Chambers' Introduction to Revolt of North American Colonies, 144. 3 Col. Doc. 231, 297, 288. 2 Bancroft, 428.
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