Legal change, economic culture, and imperial authority in colonial New York City.
In the Division of Old Records, on the seventh floor of the New York County Court building in lower Manhattan, there is a large, partially catalogued collection of colonial legal documents relating to some two thousand civil cases: the New York City Mayor’s Court Papers. Uptown, in the Rare Books and Manuscripts section of Columbia University’s Butler Library, there is a second tranche of records, the Salzer Mayor’s Court Papers, named for the benefactor who bequested the collection to the care of Richard B. Morris in 1957. It is clear that the Columbia papers once formed part of the county court archive from which they became separated, probably in the late nineteenth century.1 The combined collection offers documents relating to 3,631 civil cases with by far the largest single class comprising the 2,771 complaints filed to commence a suit in the court beginning in 1681 and ending in the spring of 1776.2 Some of the complaints run to as many as seventeen pages, but most are cast in formulaic terms over two or three manuscript sheets. They range from disputes concerning small, local exchanges to far-flung and high-value ventures connected to the emerging Atlantic trade. Thus in the spring of 1686 the tailor Darby Bryant sued the “cordwinder,” or shoemaker, Bernardus Hardenbrooke for two pounds and fifteen shillings worth of broadcloth owing from the previous year. While in 1701 the Huguenot merchant Claude Boudewin complained against his co-religionists, the merchant and mariner Paul Droilett and Bartholomew Feurt, regarding a six hundred pound bond the three had agreed to fund a Caribbean voyage.3 The complaints are particularly valuable for the details they provide regarding individual disagreements at the moment they enter the legal record. Whereas the minute books recorded litigants’ surnames, the value and outcome of a case – frequently in the technical, latinate language of the law – the complaints provided detail on the initial dispute whether the plantiff presented their own case or engaged a representative and what form of action they chose to pursue. Thereby affording insights into the commerce and legal choices of otherwise anonymous city tailors and shoemakers, and possible ethno-religious solidarities in the financing of turn-of-the-century merchant trade.4
The earliest complaints offer some insight into the establishment of the common law during the late seventeenth-century transition to English rule. Previous studies have tended to focus on the period after the 1664 and to describe the imposition of an alien legal code that drove Dutch litigants from the court. There is also broad agreement that the common law served as an anglicizing influence, breaking with previous practice and hastening the demise of what were once presumed to have been weakly-rooted Dutch institutions. All accept that the transition to English rule was a long and drawn out process. But opinions differ concerning key processes and turning points. For some the change is evident from soon after the Third Anglo-Dutch War 1672-74, and the decline of Dutch participation in the court as litigants and jurors. For others significant reform only came later and abruptly, following the 1691 Supreme Act of Judicature.5 Before the formalization of 1691, the city’s legal practice has usually been characterized, and sometimes disparaged, as a hybrid of English and Dutch practice, often with little attention paid to the latter. The complaints offer a new perspective on this hybrid practice, highlighting the change in approach to the presentation of disputes in writing form and, in particular, in the form of common law action of trespass upon the case or simply “case,” later refined to include various forms of pleading in assumpsit. Case had risen to prominence in England in the century or so preceding the introduction of the common law in New York. Its popularity derived from its ability to provide a legal remedy for informal or incompleted agreements and breach of promise which did not qualify under the more restrictive common law writs of debt and covenant.6 In the colony it provided the flexibility to litigate local disputes in an acceptable form, but one which differed in important ways from earlier Dutch practice. By the early eighteenth century the ubiquity of pleading in case differentiated New York City’s legal practice from its neighbours and figured in the operation of a distinctive urban commercial culture.
The emergence and subsequent predominance of actions on the case indicates that the establishment of the common law in early New York was less a summary and ethnic imposition and more an incremental process developing in response to local needs. There were clearly public officials and doubtless some longstanding residents used to work within the who , Dutch and English, who were bemused by legal changes and who looked to privately-brokered arbitration to resolve their differences in a manner common in the pre-conquest city. But the court minutes and earliest extant complaints also indicate the influence of an ambitious merchant and magistrate elite with long experience of Atlantic and international trade and a history of struggle on behalf of local rights and privileges. English authority was fragile and during a time of local uncertainties and crisis in English monarchical authority these merchants comprised the local civic leadership. In this role they accommodated royal governors and, later, newly arrived English and Scottish merchants, establishing elite families who predominated in later, eighteenth-century provincial political and economic affairs. In the seventeenth century the coming together of this merchant elite generated anxieties concerning established community rights and privileges and particularistic provisions widely considered essential for the common good. When James II’s 1688 flight from the throne galvanized these anxieties and dissatisfactions it prompted a rebellion that laid bare the greatest source of conflict in post-conquest New York: conflict not between the “Dutch” and the “English,” but between those who asserted royal and imperial prerogatives and the defenders of long-established local rights and privileges, and an emerging Anglo-Dutch merchant elite whose commercial interests and ambitions bound them wholly to neither side.
Rather than the straightforward and self-assured assertion of ethnic priorities, administrative reform and late seventeenth-century legal change was reconciled imperial and class interests. New York’s experience was clearly distinctive, but it sounded with the broader contemporary colonial experience of legal change. Recent, studies have stressed the plural character of early settlement law, which reflected not only the designs of projectors but also migrants’ diverse origins and legal inheritances and which they adapted to local conditions. These scholars trace the trajectory from plural beginnings through a period of reform (1680-1720) leading to standardization of common law practice under the influence of imperial officials and early lawyers.7 Thereafter the uniformity of colonial legal practice indicated by the widespread rise of technical pleading and decline of jury trials figured in several areas of convergence: growth of commercial confidence and expansion of domestic and foreign trade, the emergence of an influential colonial gentry in political and economic affairs, and an increasing sense of colonial rights and administrative autonomy.8 All these developments were also evident in New York and followed a transition, to English rule, and common law establishment which demonstrated the same direction of travel. What was distinctive, at least from the perspective of the complaints filed in the two generations preceding the American Revolution, was the continuing reliance on assumpsit within the city’s lively if sometimes precarious trade. An urban commerce built around networks of credit and exchange dominated by leading key players and a broader middling class of wholesalers, traders who used the court and the law for increasingly efficient cash collection.
The West India Company established the Court of Burgomasters and Schepens, the
forerunner of New York City’s Mayor’s Court, as the foundation of New Amsterdam’s first municipal authority in February 1653.9 The Company’s decision followed a dogged campaign by leading settlers on behalf of community rights and privileges to which the shareholders in Amsterdam assented, during a period of domestic and international turmoil, in the hope of a more effective local administration. Convening weekly in a room on the second-floor of the former tavern that served as New Amsterdam’s Stadt Huys or city hall, the court considered disputes and complaints presented by men and women, prominent traders and ordinary artisans and farmers, and Indians and even slaves. The men who sat as magistrates were leading citizens, literate but not necessarily trained in the law, who relied upon law books and knowledge and experience gained in commerce and administrative positions. Adhering to the Roman Dutch law and the civic practice of Amsterdam, the court combined judicial, administrative, and executive capacities, quickly becoming the key institution of local and imperial authority. There was almost no area of public or private life into which the magistrates did not intrude. They heard disputes relating to commercial and family affairs, offering swift and inexpensive legal remedies for individual and combined disputes one minute and defending the inhabitants’ civic and economic rights and privileges the next. On any given day the magistrates ruled on local or transatlantic exchanges, inheritance disputes or the abuse of a public official, and enforced municipal and Company ordinances ranging from residents’ obligation to clean the street outside their home to exchange rates for seawan or wampum (Indian shell currency), beavers and Dutch guilders.
A single session – Tuesday 3 September, 1658 – provides a sense of the court’s remit and the blurring of private and public spheres. That day the bench, comprising the schout and five burgomasters, first heard from the merchant Timotheus de Gabry who successfully attached, or secured in payment for a debt, a barrel of brandy owned by Cornelis Harpertzen of “the South River” (the Delaware River) currently held in the public store.10 During the course of the day they heard a further 22 presentations relating to commercial exchanges, land leases, and artisanal services and ranging in value from the cost of a couple of window sashes and pane of glass removed by Samuel Etsal from a house he had let to Jacob Vuges to a debt in goods to the value of 4, 914 florins. A diverse cross section of the community attended court that day: traders and merchants, of course, but also tobacco planters, brewers, ships captains, and farmers’ wives. Two of the cases were presented by plaintiffs who also sat as magistrates, and litigants attending for one suit were asked to offer opinions on claims and details offered in another. Formal processes, such as the review of account books and notarial agreements, did not preclude oral presentations and participants clearly expected their particular stories to be heard: accused of nonpayment of rent for a piece of land, Hermen Barensen did not deny the debt but argued he had agreed the lease “when the grain was standing” and only realized later that the ground “was nothing else than rocks and stone”. In addition, he gave fifteen days work to the plaintiff who had also re-leased the same piece of land to Lauweren Grootaschoe. Towards the end of the session, and in an exchange that defies easy comprehension, the magistrates heard Barent Gerrisen declare that his relative, Gerrit Gerrisen, “has a knowledge of the hog which his wife bought from Jacob Wolferson’s wife.” To which Gerrit countered, that the “hog Hans Dreper detains is the hog which Barent Gerrisen’s wife bought of Jacob Wolferson’s wife.” To which, undeterred, Barent maintained that Wolfert Gerrisen will swear that the “abovementioned hog is the hog sold by his son’s wife to Barent Gerrisen’s wife” and that “there is another who will declare it, but he is at Fort Orange”.11 Unable, unsurprisingly, to reach a judgement, the magistrates ordered the Gerrisens to assemble their witnesses and return to court. The session concluded with the drawing up of notices publicizing the “farming,” or putting out to tender, of the enforcement and collection of the municipal excise on slaughtered cattle.
The court’s deliberations concerning the city’s merchant trade frequently required the magistrates to contemplate local and distant expectations and practices and to harmonize individual strategies and interests with the public good. Beginning in the 1640s the city’s merchant trade was a source of civic and occasionally national pride, attracting capital and goods from Amsterdam and giving several local merchants their start acting as agents and supercargoes for metropolitan investors.12 Over the next twenty years these and other traders, including Englishmen drawn from neighbouring New England, managed the expansion of the city’s trade with England, France, Spain, New England, the Chesapeake, the Caribbean, and as far south Recife in Brazil.13 Disputes brought before the court in New Amsterdam included claims and justifications drawn from diverse contexts, requiring the magistrates to adjudicate disputes relating to New Amsterdammers’ dealings in Virginia and with puritans at Plymouth and Boston and in Connecticut and Rhode Island in cognisance of claims concerning merchant and maritime customs and exchanges reckoned in English currency and weights, and laws.14 The magistrates also mediated the relationship between international merchant trade and the community. Thus in November 1656, following complaints by the “farmer” or officer in charge of the burgher excise of tax avoidance, and after “mature deliberation and examination of the laws and customs of the Fatherland,” the court levied duties on wine and beer brewed and consumed in the city and imported from Holland. For those who were unable to reach agreement with the farmer of the excise the magistrates promised that the court would set the appropriate levy “according to each one’s condition and circumstances.”15
The minutes offer one perspective on New Amsterdam’s place in a what recent studies have demonstrated was an emerging Atlantic and global trade based on far-reaching and fluid commercial networks. Although it is common to emphasize colonization by emerging imperial states in early American historiogaphy, in the first half of the seventeenth century trade rather than land acquisition and settlement predominated. Imperial claims provided loose structures within which traders extended established distribution channels, where necessary building new and strong bonds with key players in desirable markets. Colonial commerce depended on not only the movement of goods and services, but also personal relationships with advantageous local contacts, knowledge of local languages and navigational idiosyncrasies such as tides, winds, and seasonal weather conditions. If Europeans and indigenous peoples suspected mutual ambitions to dominate, the fragility, expense, and opportunities posed by New World encounters also motivated formal and informal intercultural alliances. The newcomers adopted various strategies, from kidnapping infant linguists to marrying into indigenous and other settler groups, to diminish their vulnerability and enhance their prospects. Colonial traders worked within networks bound together by confessional and family loyalties, rather than abstract notions of nation and law. They learned to be flexible even protean operators, working with whoever and whatever was available in an opportunistic and porous “supranational Atlantic trade”. Thus Jewish merchants and the Puritans, Quakers, Moravians and Lutherans who migrated as part of the broader protestant diaspora relied on their cultural and commercial connections to establish an Atlantic commerce largely free of national identifications and stretching from Africa and the Caribbean to North and South America. This was particularly the case in the emerging English and Dutch empires which relied on joint stock companies and private enterprise rather than far-reaching and centrally directed bureaucracy. These seventeenth-century networks provided a template for “congeries of local decisions” which created and then supplied demand for new and often luxury commodities transforming, for example, Madeira wine from quaffable plonk to the highest status drink in the empire.16
Established on the basis of a 1621 charter granted by the States General, New Netherland named the territory claimed, but scarcely controlled, by the West Indian Company. Mid-century maps give a good indication of the Company’s exaggerated sense of its regional predominance and the reality of its insecure tenure in relation to grudgingly- acknowledged but already populous English colonies at Virginia and Massachusetts.17 The Dutch were widely envied for the empire they constructed out of commercial networks, and following the 1639 suspension of the Company’s trading monopoly and the introduction of new incentives, Dutch and English traders and settlers -- and Swedes, Finns, French, Germans, and others – came to New Netherland. Thereafter the colony’s merchants took advantage of the distraction of England’s Civil Wars to build up a lively trade with tobacco plantations in the Chesapeake. In Virginia the Dutch bought land, applied for naturalization -- while retaining active trading links to New Netherland and the Republic – and became virtually indistinguishable from English colonists in the documentary record.18 Relations between, and sometimes within, various settler groups were frequently poor and often hostile. But different communities also found reasons for alliance and cooperation. New Englanders seeking to break away from the authority of the Massachusetts Bay Company moved south to Connecticut and Long Island and placed themselves under the protection of the United Provinces and the West India Company. The authorities in Boston viewed New Netherland as a buffer against the expansion of separatist settlement and further drain on their own population. In New Amsterdam Peter Stuyvesant, the West India Company’s Director General of New Netherland, routinely acknowledged the need for amicable relations with his more populous English neighbours. Thus periods of tension in New Netherland were mitigated by collaborative interludes, not least during the recurrent threat of Indian wars and protests against the West India Company on behalf of local rights and privileges.19 The enmity between English and Dutch distant European powers, for example during the First Anglo-Dutch War (1652-54), provoked colonial ethnic tensions and even schemes for English conquest. But the fickle character European diplomacy ensured that local rapprochements and trade agreements gave greater definition to colonial relations over time. The conquest of New Netherland, when it finally came, was masterminded in England by the circle, including a handful of key colonial players, gathered around the Duke of York. The colonists in New England and Virginia, for the most part, remained noteworthy by their absence. Perhaps rightly suspecting that the subordination of the Dutch in New Netherland was but a first step in the reining in of pretentions to colonial autonomy elsewhere.
Beginning in the 1640s and 1650s a merchant and administrative elite with ties to European investment houses and the West India Company emerged as the key commercial and community leaders tied to each other and the locality by marital kinship. Positions within influential networks and connections to overseas capital, combined with shrewd local unions, gave these men advantages in trade and prominence in the assertion of local rights and privileges.20 These same considerations motivated their capitulation to the 1664 English conquest. Poorly armed and fortified and facing a superior force, Stuyvesant and the leading burghers bickered over who should pay the costs of defence before negotiating the transfer of civic allegiance from the Company to the Duke. The English commander, Colonel Richard Nicolls, promised the inhabitants they would “peaceably enjoy whatsoever God's blessing and their own honest industry have furnished” and introduced few formal changes in the city’s administration.21 Handpicked and well-known Englishmen got senior positions, but Dutch and other non-English figures remained a significant presence on the governor’s council and in the municipal government.22 There was more change in provincial trade arrangements, giving the English arrival as much the character of a leveraged buyout as military conquest. The new governors became partners in local merchant ventures and liberalized city trade – cutting duties on imports, enforcing the monopoly on the upriver trade to Albany, and turning a blind-eye to goods imported, illegally from Amsterdam. Granting city merchants denizen status, Nicolls and his successors opened up new opportunities for those with overseas connections, doubling the taxable personal fortunes of leading merchants in the next ten years.23 The loudest protests following the conquest came from outlying towns, who resented the prioritizing of city interests, and from the English towns on Long Island, who were furious at the new government’s failure to recognize their local rights following the revisions to provincial government under the “Duke’s Laws”.
In the renamed Mayor’s Court English legal procedure supplemented rather than supplanted existing Dutch practice. Magistrates were required to offer litigants the option of a jury trial, but they continued to hear all manner of civil, criminal, and maritime suits and to keep their records in Dutch – calling for translations when necessary and presumably managing communication at other times.24 The court also continued to issue judgements, allowing for compurgation (settlement by swearing an oath), appointing arbitrators to reach a compromise between disputants, attaching goods for debt, and hearing oral presentations concerning convoluted disagreements. Some Dutch merchants appeared especially sanguine about the limited procedural changes. In the summer of 1666, for example, Hendrick Obe sued Fredrick Philipse for moneys owing for “16 half aems of wine.” The magistrates offered a jury trial, but both parties declined and requested that “the W[orshipful] Court itself would please give their judgement.” When the decision went against him, however, Philipse immediately called for a second hearing and a jury trial at the next court day.25 The magistrates continued to hear cases concerning small local disputes and higher value cases involving regional trading partners; they also continued to oversee the regulation of the community at large, appointing officers, regulating city carters and the repair of roads and fences, umpiring in cases of marital discord, hearing testimony concerning local standards and expectations in the settlement of civil suits, and enforcing the privileges of the burgher right or freemanship as it now became.26
Following the Third Anglo-Dutch War (1672-74), during which the city was held for fourteen months by a Dutch naval squadron, Edmund Andros took over as governor and implemented a more determined program of reform. When Andros demanded new oaths of allegiance, eight prominent citizens insisted that he first guarantee the privileges agreed with Nicolls in 1664. Andros refused and convicted the eight recusants of rebellion, confiscating one third of their estates even after they agreed to the oath. This incident has sometimes been considered a turning point in the transition to English rule: a nadir of Dutch merchant influence, after which the process of anglicization gathered pace. The drama and singularity of this incident diminishes, however, when one remembers that such clashes between merchants and civic leaders and the provincial executive had been a feature of local politics for more than thirty years: in the 1640s and protests against the West India Company, in the 1650s and the sometimes testy relationship between the municipal government and Peter Stuyvesant, following the conquest, of course, but even in 1672-74 between the residents and the Dutch occupiers and, to some, liberators. Moreover the New York merchants’ punishment was only temporary: Andros needed the revenue their management of local trade provided and within a year or so familiar Dutch faces were once again at the municipal helm: they were charged with oversight of an ambitious program of public works, including the upgrade of the city docks, and recruiting new municipal inspectors to inspect wheat as it came through the city, separating out the best for grinding and granting the city a monopoly of bolting, packing, and exporting of flour.27 By the late 1670s the Dutch merchants were sufficiently ensconced in the governor’s favour to be targeted by newly-arrived English competitors protested Andros’s favouritism and secured his recall to London.
A similar balance between the imposition of imperial reform and Dutch adaptation and accommodation was evident in legal practice and the Mayor’s Court. As part of his tightening up on imperial governance, Edmund Andros introduced new court fees and insisted on the use of English in formal pleading and record keeping. These changes coincided with a drop in the number of cases naming Dutch litigants and a clear disinclination of Dutch residents to serve as jurors indicating, it has been claimed, their withdrawal from the court.28 There were doubtless some who turned to church members and unofficial arbitrators to reach out-of-court settlements, particularly in the lower-end artisanal trades where established Dutch families predominated. But there were other reasons than the law for disaffection with the regime, including Andros’s controversial intervention in the appointment of a minister in the Reformed Church and the unpopularity of the municipal government’s public works project. Moreover, while it is true that juries were predominantly staffed by Englishmen, who remained a minority of the population until the early eighteenth century, they heard a fraction of the cases. The most common outcome in court remained decision by judgement; arbitration also continued and included Dutch traders as court-appointed mediators.29 The magistrates also continued to oversee civic matters, such as regulation of city carters, and to hear claims that included substantive appeals to local norms and practices: when John Sharpe finally got Ralph Hutchinson to court in 1675 to settle their accounts and Hutchinson demanded exorbitant freight charges for bringing 5000 bricks from Oysterbay, the magistrates heard an indignant Sharpe justify his claim by arguing that “ye world cannot but cry out shame” at the charge which was more than it would have cost to bring the bricks from Albany – twice the distance.30 The litigation rate remained steady at approximately ten cases per bi-weekly session, indicating the court’s continuing effectiveness as a source of legal remedies. And when Dutch residents and traders did come to court, they appeared before a bench populated by familiar figures: William Beekman, Peter Jacobsen, Fredrick Philipse, Cornelius van Ruyven all served in some capacity, as provincial counsellors, city officials, or magistrates, and Cornelius Steenwyck, Nicholaes DeMeyer, Stephanus van Cortlandt, Francis Rombouts, and Nicholas Bayard, similarly prominent and longstanding Dutch residents, all served at least one term as Mayor in the decade or so after Andros arrived.
What we can trace of court procedures and pleading also suggests continuity and incremental change, rather than a summary imposition and break, abrupt or otherwise, with the past practice. After 1674 there was increasing evidence of English legal terms, but this did not compromise the court’s usefulness for the merchant community whose needs remained the same. Thus the minutes make mention of attachment and arrest of foreign goods, the use of account books under oath, written agreements as evidence of debt, and recognition of the customary practices of “international merchants” common to Dutch and English practice. In some cases plaintiffs filed complaints with amounts and damages left blank, perhaps a tantalizing indication of pre-court stage when accounts were reckoned or defendants prompted to pay by the threat of a suit.31 Beginning in the late 1660s and 1670s suits began to be presented in the form of trespass upon the case and assumpsit which would emerge as the most common form of action by the end of the seventeenth century.32 In the 1660s and 1670s, however, complaints presented as an “action on the case” featured erratically in the minutes and the associated pleadings and judgments were inconsistent with contemporary English and later colonial practice, again giving the impression of partial enforcement, adaptation, and compromise. The language of the pleading was inconsistent. Nor did plaintiffs routinely claim damages, as they later would, except in cases involving destruction of property, slander, or some other substantive transgression. Contested suits which should have gone to jury trial were decided by the magistrates and, in one case, composure.33 Perhaps unsurprisingly, it was in this context that the earliest English legal representatives challenged these irregularities, exploiting technicalities in an effort to secure advantages and judgments for themselves and their clients.34