Laws and ordinances of New Netherland, 1638-1674/Preface
The States General of the United Netherlands incorporated, in the year 1621, a company, called the West India Company, to which it granted, among other powers, the right to establish Colonies in such parts of America as were not already occupied by other European nations. This Company consisted originally of five branches or Chambers, the principal of which was located in Amsterdam. In virtue of their Charter, the West India Company planted a Colony in the country lying between the Connecticut river and the present State of Maryland, which territory was named, after the parent State, New Netherland. The exclusive superintendence of this country was immediately transferred to the Amsterdam Chamber, which exercised supreme government over it until the latter part of the year 1664. It then passed into the possession of the English, by whom it was governed until 1673, when the Province was again, recovered by the Dutch, and the government was administered in the name of the States General and the Prince of Orange until the 31st October, 1674. The country was finally surrendered to the English, in accordance with the provisions of the sixth article of the Treaty of Westminster.
The Executive government of New Netherland was, after the first few years, administered, until September, 1664, by a Director General and Council, who exercised the powers of local legislation, subject to the approval or revision of the Amsterdam Chamber of the West India Company. But the laws thus enacted were not to be contrary to, but as far as possible in conformity with, the Laws of Fatherland. And here, at the threshold of this review, it becomes our duty to define what then were these Laws of Fatherland.
The Roman, commonly called the Civil Law, or Code of Justinian, was, originally, the basis of all law in Holland, so modified, however, as to be distinguished in time as the Roman-Dutch Law, according to which all constitutions, ordinances, placards, statutes and customs were to be explained. For it was decreed, that all tribunals in the Province of Holland and Westfriesland, should do justice according to the laws and ordinances of the land, and also according to the privileges and old established customs and usages, and in failure of these, according to the Written Law, by which was always understood the Roman Law.
The Feudal law was introduced into the Low Countries as early as the twelfth century, and thence transferred to New Netherland, where divers Colonies or Manors were granted to certain persons called Patroons. But the rights and territories belonging to them were, subsequently, purchased and re-integrated into the public domain, except those of Rensselaerswyck, and Colendonk (now Yonkers), and New Amstel, on the Delaware river. This last Colonie was conceded to the City of Amsterdam in 1656.
As by this tenure the Lord held his fief or estate from the Supreme Government, so the Vassal held the usufruct of his property from the Lord, under reciprocal obligation of protection and homage subject to certain jurisdiction, personal service, tithes, taxes, quarter sales and seignorial rents; which rents were payable in produce, poultry, &c. In addition to these, the Lord possessed what the French call the Droit de retrait, that is, the right to take the immovable property when sold by the tenant at the price stipulated in the sale. This right was conferred in order to protect the proprietor of the Manor against being wronged, by collusive operations, out of his just "Quarter sales." Those Fiefs were hereditary and indivisible, but Patroons in New Netherland had the right to dispose thereof by will. They claimed also High as well as Low Jurisdiction, and in the earlier years the Colonie of Rensselaerswyck had its own executioner, but the right of the Patroon to exercise High Jurisdiction was subsequently denied and rejected. The Colonie of New Amstel, however, did possess and exercise the right to inflict Capital punishment.
The Canon Law was introduced into Holland, contemporaneously with the Roman Law, and governed in ecclesiastical matters and persons, until the time of the Reformation, when it was rejected, except in Testamentary affairs, Matrimonial cases, administration of Oaths and the like. Ecclesiastics were thus deprived of all peculiar authority and ecclesiastical jurisprudence, and ecclesiastical matters were treated according to the law of the church, promulgated in 1591, and subsequently renewed in 1612, and at other times; that is, first before the Consistory, next before the Assembly and lastly before the Synod. But as in New Netherland there was no Synod, the supervision of the church in this country was entrusted to the Assembly, or Classis of Amsterdam, by whom the Dutch Clergymen were approved and ordained, at the request, or with the consent, of the Chamber of the West India Company at Amsterdam. Thus, that Classis may be considered as having been the Supreme Head of the Dutch Church in New Netherland.
The Reformed Religion, according to the doctrine promulgated by the Synod of Dort, was the established religion of New Netherland, and the magistrates were bound to maintain it against all sectaries. Although English settlers, either of the Presbyterian or Congregational Order, were granted freedom of conscience, and had their churches, yet the right of public worship was denied to all other denominations, if we except Lutherans, who after some struggle were allowed a Minister. Catholics, Baptists, Quakers and Jews were alike ostracised, for none other than those of the Reformed religion, or persons at least well affected toward it, were admissible to office. By the laws of Holland, marriages between Protestants and Catholics, or between Christians and Jews, were subject to grievous penalties, Jews having no privileges except those of Burgherright and Trade. In New Netherland they were even denied that of defending the country in case of danger, owing to the "disgust and dislike of the mass of the Citizens to them as fellow soldiers."
The right of Citizenship was restricted, as a general principle, to native born subjects, but by special charters the English settlers on Long Island and, in 1673, in what is now New Jersey, were granted "all and singular the immunities and privileges granted to the Inhabitants of the Province, as if they were natives of the United Belgic Provinces." These included the Dutch Law of Inheritance, in cases of Intestacy.
Such, then, with the custom authorizing a community of goods between married persons, where no antenuptial contract existed, were the fundamental Laws of New Netherland, and the several Courts in that country were specially enjoined to "be particularly careful to observe and cause to be observed the Laws and Statutes of Fatherland," and to govern the Inhabitants conformably thereto.
The Municipal law of the City of Amsterdam was also transferred to this country, the Courts of which were constituted, as much as possible, and the circumstances of the Province allowed, "according to the laudable custom of the City of Amsterdam, in Holland."
It has, indeed, been claimed that the law governing towns or municipalities in New Netherland, was mainly derived from New England, but this claim is entirely opposed by the Laws themselves. The only Law ever derived from New England, was that against "Fugitives from Service," which was engrafted, in the year 1650, on the Laws of New Netherland, by the Treaty of Hartford, whereby it was stipulated that the Eighth Article of the Confederation of the United Colonies should be observed also by the Dutch. This Article was as follows:
- "It is also agreed, that if any servant run away from his master into any other of these Confederated Jurisdictions, that in such case, upon the certificate of one magistrate in the jurisdiction out of which the said servant fled, or upon other due proof, the said servant shall be delivered either to his master, or any other that pursues and brings such certificate or proof. And that upon the escape of any prisoner whatsoever, or fugitive for any criminal cause, whether breaking prison, or getting from the officer, or otherwise escaping, upon the certificate of two magistrates of the jurisdiction out of which the escape is made, that he was a prisoner, or such an offender at the time of the escape, the magistrates or some of them of that jurisdiction, where for the present, the said prisoner or fugitive abideth, shall forthwith grant such a warrant as the case will bear for the apprehending of any such person, and the delivery of him unto the hands of the officer, or other person who pursues him. And if there be help required for the safe returning of any such offender, then it shall be granted to him that craves the same, he paying the charges thereof."
For many years the only Courts in the Province of New Netherland, of which we have any record, were the Patroon’s Court of Rensselaerswyck, and that of the Director General and Council on Manhattan island, the latter of which took cognizance of actions of debt, whether for small or large amounts, and of criminal cases, from simple assaults to those of murder. It also acted as a Prerogatives or Surrogate Court, and as a Court of Admiralty. In fine, there was nothing too minute and nothing too important for its jurisdiction, and from its decisions there was no appeal.
The first Town Court established was that of Hempstead in 1644; that of Gravesend followed in 1645, and that of Breuckelen in 1646. The only Court on Manhattan island up to this time was, as already stated, that of the Director General and Council. But it was found that "in consequence of the increase of population, lawsuits became multiplied, and questions and quarrels of trifling moment occurred, which might be determined and disposed of by arbitrators, but frequently remained undecided, to the prejudice and injury of the people, and to the great expense, loss of time and vexation of contending parties, because the attention of the Council was engrossed by matters of greater importance." A court of Arbitrators, composed of Nine Men, was therefore established in 1647. Three of these sat in rotation and decided such cases as were referred to them by the Court of the Director and Council, subject, however, to the right of appeal to that court. This board continued until 1653, when New Amsterdam was incorporated and a Court of Schout, Burgomasters and Schepens was erected in that city. These Burgomasters acted as Orphan Masters, or Surrogates, until 1655, when a distinct Orphan Court was erected.
The town of Flushing was planted in 1645, and the inhabitants were authorized to elect a Schout; a court of justice was not, however, erected therein until 1648. In 1652, Beverwyck (now Albany), was severed from the Colonie of Rensselaerswyck, and a separate court was erected at Fort Orange, with jurisdiction over the first named settlement. This was the only Court on the Hudson river north of Manhattan island, before 1661. In the same year (1652) a bench of justice was granted to Middleburgh (now Newtown, L. I.), and in 1654 the towns of Amesfoort (Flatlands), and Midwout (Flatbush), were allowed a joint Court, which sat at the latter place three-quarters, and in the former town one-quarter of the year, until March, 1661, when each town obtained a separate Bench. In March, 1656, Westchester and Jamaica, then called Rustdorp, were each permitted to elect Magistrates "on the same footing and with the same privileges as Middleburgh, Breuckelen, Midwout and Amesfoort." A Town Court was granted to Haerlem in 1660; to Bushwyck, Wiltwyck (now Kingston), Bergen and New Utrecht in 1661, and to Staten Island in 1664.
On the conquest of the country in 1664, English laws were introduced and another Judicial system was established. The Town Courts were composed of a Constable and Overseers; a Court of Sessions was established, to be held by the justices of each of the ridings of Yorkshire, which comprised Long Island, Staten Island and part of Westchester county; and a Court of Assize, composed of the Governor and Council and justices of the peace. A Court of Oyer and Terminer also sat occasionally.
On the reduction of New Netherland in 1673, the old system was restored, and an additional Inferior Court was established in what was called the Out district, which was situate on that part of Manhattan Island between the Freshwater, or Collect, and Haerlem. Appeals from this Court lay to the Court of Burgomasters and Schepens of New Orange. Schenectady, also, had a local tribunal, from which appeals lay to the Court of Willemstadt, or Albany.
By the charter granted to Patroons in 1629, section twenty, the Inferior Courts in New Netherland had final jurisdiction in civil cases amounting to Fifty guilders ($20) inclusive. In cases beyond that sum, an appeal lay to the Director General and Council. This rule applied to, and limited, the civil jurisdiction of all Town Courts established prior to 1665, except that of New Amstel on the Delaware river, which at first had final jurisdiction, to the amount of One hundred guilders. In 1661 this amount was increased to Six hundred guilders ($240). In 1673, Town Courts were allowed to decide, finally, suits as high as sixty florins ($24); that of the Out district on Manhattan Island, however, had jurisdiction over suits for One hundred florins ($40). An entirely new Court, which may be called a District Court, was now added, having, however, appellate jurisdiction only. It was composed of the Sheriff, and of one Councillor or Magistrate annually appointed from each Town in the district. This Court took cognizance of appeals from the Town Courts in actions to the amount of Two hundred and forty florins ($96). In cases exceeding that sum, parties were entitled to an appeal to the Governor and Council.
For the purposes above set forth, the towns in what is now Kings county formed one district; and those of Queens county, Esopus, Achter Col (or East New Jersey), and the South, or Delaware river constituted each another district. But the Assembly, held at Elizabethtown in November, 1673, invested the District Court of Achter Col with final original jurisdiction over "all actions of debt and damage, as also criminal cases to the value of Twenty pounds." The Elizabethtown Code, which is published, it is believed, now for the first time, was, however, never ratified. The towns in the present county of Suffolk were formed into a separate district, but as the majority of them refused to submit to the Dutch, a District Court was, therefore, never organized in that county.
In criminal cases, the Charter of 1629, section six, granted to Patroons "the chief command and lower jurisdictions" within their respective Colonies. It was claimed, as already observed, that this conferred High jurisdiction, or the right to take cognizance of capital crimes and of offenses subject to corporal punishment. And indeed such right was distinctly conferred on the Town of Hempstead in 1644, for the Court there was empowered to pass sentence "for the deprivation of life, limb, stigmatizing, or burn marking," reserving, however, to the accused, the right of appeal to the Supreme Court. But it was subsequently denied that Colonies were invested with such High jurisdiction. No criminal jurisdiction seems to have been conferred on the town of Gravesend or Flushing, the Schout, or sheriff having only the power to suppress disorders, apprehend criminals, and to prosecute the latter before the Director and Council. In 1656, the jurisdiction of the Court of New Amsterdam was so far enlarged as to authorize it to pass sentence of branding and whipping, with power to execute the same if confirmed after appeal. But as a general rule, the jurisdiction of each Inferior Court was confined, in criminal matters, to "Acts, Threats, Fighting or Wounding, Brawls, Slanders, Scolding, Simple drawing of a Knife or Sword," with the right of appeal reserved, in most cases, to the accused. Cases of crime of a higher degree were always referred for trial to the Director and Council.
On the reduction of the country, in 1673, by the Dutch, Town Courts continued to be restricted, in criminal matters, to the cases above set forth, but the Courts of Willemstadt (Albany) and New Orange (New York) had power to pronounce sentence, "even unto death inclusive;" but still no sentence of corporal punishment could be executed unless approved by the Governor and Council.
The regulation of the internal affairs of the Towns was conferred on the Court of each locality. The magistrates of Hempstead and Gravesend could, with the consent of the free inhabitants, "make and establish such civil Ordinances amongst themselves," as the major part of the said inhabitants should think fitting, for the preservation of the public quiet and peace of these places. The other Towns were authorized to enact laws for the fencing of lands, laying out highways and promotion of agriculture, building churches and school houses, observance of the Sabbath, and preventing petty offenses, subject in most instances, however, to the approval of the Governor and Council, which had to be obtained previous to their being enforced. But, as already remarked, such Ordinances were not to be contrary to, but as far as possible conformable with, the laws of Fatherland and the Statutes of the Province. In 1663, Town Courts were, in addition, empowered to enact laws against the sale of liquor to Indians, within their respective jurisdictions. The local government of Flushing was similar to that of other villages, until 1658. About that time some Quakers had been harbored and allowed to exercise public worship there. This was declared an infraction of the laws of the Province, for which the town richly deserved to be punished. Accordingly, all future town meetings, unless sanctioned by the Governor and Council, the Sheriff or one of the Magistrates, were prohibited, "as they were seldom productive of good." Instead of such Town meetings, seven persons called Tribunes or Town’s men were "once and for all" to be elected, who, with the Sheriff and Magistrates were empowered to make laws for the affairs of the Town, such as for fences, highways and bridges, schools, churches and other public buildings. This law continued in force until the close of 1663.
The Laws enacted by the Director and Council were binding throughout all New Netherland, except such of them as applied exclusively to localities named in the Act. The right of the Director and Council to exercise jurisdiction within the Colonies of Patroons was, however, called in question in Pavonia as early as 1638, and denied in Rensselaerswyck in 1648. In this latter instance, the Director General and Council having issued a Proclamation for a general Fast, and the performance of public worship in the several churches throughout the Province, it was transmitted to Rensselaerswyck. This was considered an invasion of the rights of the Patroon, the local authorities maintaining that such orders were of no authority unless indorsed by them and executed by their officers, and they protested accordingly against its publication within their limits. The opposition was renewed in 1652, when an Ordinance was sent prescribing the bounds of Fort Orange, publication of which in the Colonie was also refused; and when, in 1654, another Edict was issued to collect an Excise on liquors within one thousand rods of Fort Orange, the authorities of Renselaerswyck gave orders not to pay the impost. An Ordinance was next issued in 1656, directing all Towns and Colonies to pay the Tenths of their crops, a copy of which was likewise sent to the authorities of Renselaerswyck, but they refused to publish it, and this difficulty was not settled until 1658, when the Colonie compounded for the Tenths. The authority of the government of the Company was, however, finally acknowledged, and the Ordinances drawn up in the Colonie were submitted, like all other municipal or local Ordinances of importance, for the approval and ratification of the Director General and Council, which had to be obtained before they could be enforced. But it was a fixed rule, that no Law or Ordinance was binding upon the Inhabitants of any place, until promulgated where publication was usually made in such place, and afterward posted or placarded.
The Chamber at Amsterdam possessed, as already stated, and, as will be seen by the Notes appended to some of the Ordinances now published, exercised an absolute Veto on the legislation of this country. Not only that, but the Chamber, in many instances, originated and transmitted hither Laws prepared and printed in Amsterdam, and in other cases altered and amended the Ordinances enacted by the Director General and Council, and then returned them so enacted or amended to be put in force here.
Unfortunately none of those Printed Laws are among the Archives of the State. References have been found to other Ordinances and Grants, copies of which, however, are not among the Dutch Records. In order to render this volume as complete as possible, the titles of such Grants and Ordinances are given, accompanied by Notes, in type smaller than that of the Text, explanatory of the nature of the Document and of the circumstances which called it forth. Care has also been taken to translate and append such remarks as the Laws now published elicited from the authorities in Amsterdam.
A full Index is added to this work, which it is hoped will now supply, what has hitherto been a great desideratum, reliable information respecting the Constitution and Laws of this State during the first half century of its existence.