USA > New York > New York City > History of New York city from the discovery to the present day, V. 2 > Part 28
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 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38
* 1 N. Y. Rec. of Burg. and Schep., i., 3.
t J. Wagenaar-Amsterdamsche Geschiedenissen, 1740. Meyer's Institutions Judiciaires, tome iii., livre 5, chap. ii. 233. Ordinances of Amsterdam, vol. ii., p. 695. Vander Linden, 370. 2 O'C.ill. 210.
45
APPENDIX VII.
much over seven hundred inhabitants .* 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 continued thereafter to discharge legislative, judicial, and executive functions. In the towns and villages of Holland the schout was the first 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 some- what analogous to that of the speaker or the president of a legislative assem- bly, 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 presiding in his stead.+ In New Amsterdam, however, Arent Van Hatten, being the first named as burgomaster, assumed the presidency of the court,# and after he retired from office the eldest burgomaster continued to act in that capacity until 1656, 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 on the duties of his office, Stuyvesant retained the schout fiscal, Van Tienhoven, in the discharge of the duties of city schout, and persisted, against the earnest 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 sup- ported by Stuyvesant, who went personally before the burgomasters and sche- pens, 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, bnt 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.$ In 1657 that branch of municipal affairs which especially required the discharge of execu- tive duties had increased so largely, that the burgomasters organized a sepa- rate court, which met every Thursday, to dispose of it.] In view of the serious encroachment made upon their time by the accumulation of duties, or, as they
* Valentine's History of the City of New York, p. 53. Brodhead, 548.
+ Van Leuwen, book i .. chap. i., sec. 21. Meyer's Institutions Judiciaires, tome iii., livre 5,- . chap. xi., 253. Vander Lin len, 377. Brodhead, 674.
# N. Y. Rec. of Burg. and Schep., i. 4; ii., 488.
$ N. Y. Rec. of Burg, and Schep., v. 414, 484.
, I N. Y. Rec. of Burg. and Schep. Ordinances of Burgomasters. 89
46
APPEN DIX VII.
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 dis charge of mixed legislative and judicial functions as long as the Dutch held possession of the province.
44
The proceedings of this tribunal, or as it was denominated, " The Worship- full Court of the Schout Burgomaster and Schepens," were all recorded by their clerk or secretary ; and as everything that took place before it-the nature of the claim, or of the offense, the statements of the parties, the proof and the decision of the Court, with the reasous 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 interesting exposition of the man- ners and habits 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 investi- gations were conducted. Iu 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 systemu introduced by their English succes sors. 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 en- grafted 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 domi- nation, 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 a most enlightened system of jurisprudence, but in a form so confused as to make it exceedingly difficult to master it .* That these magistrates should have had any general or prac- tical 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 treatment of difficult questions as to the rights of strangers, their
* 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 Can en Seheltus, Placaat Boek Van de Staten Generaal Van Holland, en Van 'Zeelend ; J. Deelen, .edition of 1658. Actes des Etats Généraux de 1600. Recneilles et mis en ordre, par M. Gachard, Bruxelles, 1819. Oeuvres de Raepsait, tome iii. Des Droit des Belgis et Gaulois Meyer's Institutions Judiciaires, tome ill., livre 5, chap. xi.
-
47
APPENDIX VII. .
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 Amsterdam, 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 liad acted as schont fiscal for Van Twiller, and chief judge of the court established by Stuyvesant, was a doctor of laws; and there is suf- ficient 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 afterward an advocate of the Supreme Court of Holland .* The schout fiscal, Nicacius 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."t
In addition to these, there were several notaries. Dirk Van Schellyne, who came out in 1641, had previously practised at the Hague; David Provoost dis- charged the duties of notary for some years before Schellyne's arrival ;# and · there was another notary named Matthias de Vos.§ 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 frequently consulted by suitors for advice as to their rights and lia- bilities, lie was generally well-informed and-capable of giving it.| Such was the case with Van Schellyne, who, from the records he has left, was evidently an experienced and skillful practitioner, 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 (conchiergio)." 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 Schiellyne and De Sille were in constant com- munication 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 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 .** The court was required, in all its determinations, to regard as paramount law all regula- tions established by or instructions 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,
.
* 2 0°Call., 550.
t Brodhead, 561. 5 N. Y. Rec. of Burg. and Schep., 5.
# 3 N. Y. Rec. of Burg. and Schep., 101.
§ 5 N. Y. Rec. of Burg. and Schep., 642.
.) IS. Van Leuwen. Practyk der Notarissen. Rott., 1742.
T N. Y. Rec. of Burg, and Schep., ii. 642.
** N. Y. Rec. of Burg. and Schep., i. 321.
.
48
APPENDIX VII.
customs, or laws prevailing in the city of Amsterdam, 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 magis- trates should always be considered as renominated, 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,t which was continued thereafter, until the · English changed the organization of the court. All these magistrates, as far as can be gathered, were men of intelligence, of independence, 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 establish rules and customs, that sterling good sense, and strong love of justice, which constitute 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 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 burgomaster and the schepens came frequently in collision ; and he sometimes gave vent to his anger at their insolence and presumption, by a public procla- mation, in which they were contemptuously referred to as " the little bench of justice,"; 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 exercise 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 way. 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 jurisdic- tion of the court, and a new citation was issued. If he failed again, he incurred
* New Amsterdam Rec., 359, 373, 375.
t Rec. of N. Y. Burgomasters and Schepens, iv., 299.
# Documents of Stuyvesant's Council in N. Y. Record of Burgomasters and Schepens, 26th of February, 1654.
-
49
APPENDIX VII.
. 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 deemed the presence of the defendant essential, they might issue a fourth citation, in the nature of an arrest, and compel his appear- ance. Parties, however, usually attended upon the first citation. The plain- tiff 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 witnesses before a notary, or the court might require that the witnesses should be produced, 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 intri- cate, 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 recon- ciliation 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 contestants. 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 reconciliation ; and, it is worthy of remark, that, though the amount involved was frequently considerable or the matter in dispute highly important, 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 .* There was a more formal mnode 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 retained by the notary, in a book kept by him for the purpose ; and where it was necessary, 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 plead-
* N. Y. Rec. of Burgomasters and Schepens, i., 189, 231 ii., 10, 176; iii., 188; v., 190; vi., 174; vii., 180.
-
50
APPENDIX VII.
ings, 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 respect to anything contained in cheur deposition, which was material, or to have additional witnesses examined on his own behalf in reply ; the manner of conducting which subsequent examin ation was arranged by the judge. But this mode of proceeding being dilators and expensive was rarely resorted to. The 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 evi dence, 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 between the parties, or that the article had been delivered, provided they were regularly 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, extended 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 distinc- tion 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 .*
When judgment was rendered against a defendant for a sum of money, time was given for payment, usually fourteen days, for the discharge of one half, and the remainder in a month. If, at the expiration of that time, he did not comply, application was made to the court, and the schout, or usually the court messenger, went to the delinquent, and exhibiting a copy of the sentence and his wand of office, which was a bunch of thorns, summoned him to make satisfaction in twenty-four hours. If at the expiration of that time the amount was not paid, the delinquent was again summoned to pay within twenty-four hours, which involved additional expense ; and if, when that time expired, he was still in default, the messenger, in the presence of a schepen, took into custody the debtor's movable goods, which he detained for six days, within which time they might be redeemed on payment of the expenses. If they were not redeemed, notice was then given by publicly announcing upon & Sunday, and upon a law day, that they would be sold, and at the next law or " market day they were disposed of by auction. If it was necessary to levy
. * Rec. of N. Y. Burg. and Schep., vii., viii. Meyer's Institutions Judiciaires, chap. 14, 357. Van Leuwen, book v., chap. xiii. to xx. and xxiii.
1
.
----
51
APPENDIX VII.
.
upon or sell real estate, or what in the civil law is termed immovable property, a longer term was allowed, and greater formalities were required. The manner of selling it was peculiar. The officer lighted a candle, and the bidding went on while it was burning, and he who had offered the most at the extinction of the candle was declared the purchaser, which differed from the ordinary mode in a Dutch auction, where a public offer of the property is made at a price beyond its real value, which is gradually lowered or diminished until one of the company agrees to take it." The civil business of the court was large and varied, such as actions for the recovery of debts, which were generally cases of disputed accounts, or of misunderstanding between the parties, for in truth the probity and punctuality of the Dutch suits by creditors to enforce payments from delinquent debtors formed but a small proportion in the general mass of this business. There were proceedings by attachments against the property of absconding debtors or of non-residents or foreigners, on which security was required of the debtor intending to depart, to release the property from the attachment ; actions to recover the possession of land, or to settle boundaries, a proceeding somewhat similar to the relief afforded by our courts of equity upon a confusion of boundaries ; actions to recover damages for injuries to land or to personal property, or to recover specific personal property as in replevin, or its value as in trover.
Actions for freight, for seamen's wages, for rent, for breach of promise of marriage, where the performance of the contract was enforced by imprison- ment; for separation between man and wife, in which case the children were equally allotted to the parties, and the property divided,t after the payment of debts ; proceedings in bastardy cases, in which the male was required to give security for the support of the child, and in which both delinquents might be punished by fine or imprisonment. Actions for assault and battery, and for defamation, which were quasi-criminal proceedings, punishable by fine and imprisonment, or both, though the defamer was generally discharged upon making a solemn public recantation before the court, sometimes upon his knees, asking pardon of God and of the injured party. Pecuniary compensa- tion for injuries to person or character could not be enforced; though cases occurred in which the defendant was discharged, it appearing that he had made compensation to the other party in money or goods. And, from the frequent application made to the court for redress in cases of defamation, detraction would seem to have been a vice to which the inhabitants were particularly prone.
The court also acted as a court of admiralty, and as a court of probate, in taking proof of last wills and testaments, and in appointing curators to take charge of the estates of widows and orphans. Application was made to Stuy- vesant for liberty to establish an orphan-house, similar to the celebrated insti- tutions which exist throughout Holland. He did not think that such an estab- lishment was necessary, but he afterward assented to the appointment of orphan- masters, and those officers acted in aid of the court. Some of its proceedings in the exercise of this branch of its jurisdiction will serve to illustrate how tenaciously the Dutch clung to old forms or legal ceremonies, as, where a
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.