Legal change, economic culture, and imperial authority in colonial New York City



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In the late 1670s and early 1680s the city’s Dutch merchants integrated newly arrived English merchants into established city dynasties and trade alliances and collaborated in a renewed struggle on behalf of local rights. The English merchants who arrived in the wake of the 1674 Treaty of Westminster arrived left an emerging conflict between the crown and its Whig challengers in London: the monarchy favouring the acquisition of territory and regulation of trade through monopolies, the Whigs claiming a natural right to the pursuit of self-interest and freedom of trade and championing the expansion of overseas trade as the surest foundation of prosperity and good government. The men who came to New York boasted large fortunes and, in some cases, close ties to the leaders of the Whig opposition. In a challenge seemingly inspired by metropolitan arguments, they protested Andros’s monopolies and favouring the Dutch, also citing breaches of the Navigation Acts and judicial abuses that they argued denied them their rights as Englishmen.35 When Andros returned to London to defend his administration, the merchants launched a tax strike and called for the establishment of a local assembly and “charter of libertyes”. The Duke of York, in virtual exile following the Popish Plot, agreed in return for a promise of a regular revenue – echoing the hopes of the West India Company when they first agreed to the establishment of a municipal government some thirty years earlier. James dispatched Colonel Thomas Dongan to administer the colony and to call the assembly which met first on 17 October 1683. Eighteen months later, following his accession, James suspended New York’s assembly as part of a wider attack on metropolitan and colonial charters culminating, in the colonies, with the establishment of the ill-fated Dominion of New England.

The assembly’s short-lived existence and the loss of key papers relating to its membership and proceedings have left much open to interpretation. Older views credited the majority Dutch population with a libertarian victory against absolutism in 1683 which burst forth again in Leisler’s Rebellion in 1689; others pointed to the influence of ambitious merchants shut out from power and prestige by an established elite. The best and still authoritative account, John Murrin’s, revised earlier assessments by demonstrating that supporters of the 1683 assembly were mostly opponents of the later rebellion.36 Murrin’s interpretation endures because of his diligent tracking of individual participants and their likely allegiances. However, his determination to attribute contemporary divisions to ethnic antagonism requires anachronistic labels, describing Dutch “anglicizers” and “batavianized Englishmen.” Dutch-English tensions and occasional violent flare-ups notwithstanding, it is difficult to square the interpretation of the campaign on behalf of English rights as “ethnic aggression” given the cultural pluralism evident in the assembly membership and, even more so, in the later rebellion. Equally troubling, given the spontaneity of the rebellion following events in England and the failure of a consistent Leislerian or “Dutch” lobby to appear in 1690s, describing individuals as anglicizers and Leislerians/Anti-Leslerians at various points between 1683 to 1702 gives a false sense of ideological coherence and continuity to lobbies that others have found difficult to encompass in such clear and dichotomous categories. Studies of Leisler’s Rebellion published since Murrin’s article attribute city divisions and the rebellion to a combination of Calvinist zealotry and family feuding, most notably in the figure of Jacob Leisler, and middling sort fears for cherished local rights and privileges and, by implication, their liberty.37

The assembly and the campaign for a new city charter which it also underwrote fit well within the tradition of merchant campaigns on behalf of local and civic rights. The assembly comprising eighteen delegates chosen from around the province declared its intention to legislate “according to the usage Custome and practice of the Realme of England.” But there was nothing anathema to Dutch city residents in the charter and early legislations which focused on guaranl99 tees for property and judicial rights and religious toleration, and which included a provision for the naturalization of all foreign born residents who professed the Christian faith. Thereafter the overarching tone of the assembly’s minutes was of local administrative rights, a venerable cause in New Amsterdam and early New York and presumably the reason for James’ suspension of the charter following his accession. If the assembly did not endure, the collaboration between English and Dutch merchants and their ambitions for urban trade were clearest in the successful petition for a charter of incorporation for the city. First requested in November 1683 but not ratified until three years later, the petition for the “Dongan charter” acknowledged the city’s Dutch roots and requested confirmation of “seuerall antient Customes priuiledges & Immunityes” confirmed by Richard Nicolls for the inhabitants of “ye Island of manhatan whereon this Citty standeth as one body pollitique and Corporate.” The charter transformed the municipal landscape with new wards, city officers and taxes, and ambitious plans to continue upgrading urban infrastructure.38 The charter also introduced a formal distinction between the municipal government’s administrative role, carried out by the common councilmen, and its judicial authority wielded by the henceforth institutionally separate Mayor’s Court, effectively ending the unified corporate authority of the Court of Burgomasters and Schepens and the era of Anglo-Dutch legal hybridity.39 It was also during the late 1670s and 1680s, and contrary to endogamous preference displayed by the community at large, that several Dutch and merchant families integrated marriageable Englishmen. Others, for reasons of religious or other dispute, who were often part of the same ramified kin networks shied away from such unions, setting up the foundations for lengthy and bitter intrafamilial inheritance struggles.40

It was during the same period as this developing collaboration of the Anglo-Dutch merchant elite legal practice underwent further reform and pleading in trespass became the norm. For 1681-1690 we have 51 extant complaints 45 of which relate to commercial disputes, and of these 33 are presented in one or another form of trespass. The pleading preference may have indicated a compromise between litigants seeking speedy legal remedies and court officials, under pressure from a handful of merchants who provided technical legal advice, insisting on stricter adherence to common law forms.41 Plaintiff’s might have also begun to see possibilities for damages claims, in some cases claiming compensation in actions that were not presented in trespass. Thus in 1686 the merchant and occasional attorney, Samuel Winder, sued the mariner Hendrick TenEyck for a debt of four pounds and four shillings owing on his “certayne bill obligatory... sealed with the seale of the sayd Hendrick... here in court doth bring” and for which he also claimed damages of one pound. It is difficult to grasp the thinking behind the calculation of damages.42 But what is clear is that pleading in trespass was increasingly chosen as the preferred form of action whether for disputes ranging from a few pounds owed for three years’ “diet and drink” to complex merchant dealings such as Stephen Crego’s suit against Wouter Breasted for twenty pounds, with forty pounds damages, concerning a conditional bond and shares in a voyage from Pemaquid to the Bahamas. Running down the litigants’ names it is tempting to see an English majority in these complaints, but such judgements are fraught with uncertainty. For example, one might count George Elsworth – who sued the Dutch farmer Wolfert Webbers for theft of a mare and a colt on a plea of trespass in 1689 – as an Englishman. But Elsworth was born in New Netherland (to an English father and Dutch mother who had settled in New Amsterdam before the conquest) and was baptized in the Dutch Church and married a Dutch woman. Others are easier to identify, such as the Albany alderman David Pieterse Schuyler who came to the New York court to secure the ejection of Hendrick Lansingh from a tract of land upriver at “Kattskiee.” And the chirurgeon and long-standing New Amsterdam resident, Harman Wessells sued the ships master Robert Darkins for moneys owed by James Mathews, most likely a member of Darkins’s crew.43

If post-conquest New York was the setting for expressions of “ethnic aggression,” then it was aggression that waxed and waned in deference to commercial, familial, and class loyalties and interests. Ethnic prejudices and occasional confrontations notwithstanding, the Dutch merchant and administrative elite who came together in the twenty years before the conquest demonstrated their most consistent commitment to city rights and their own interests, accommodating royalist governors and their Whig merchant critics when required.

Those who could work with the newcomers were rewarded with influence and opportunities for gain, and in some cases the award of estates intended to bolster monarchical rule through the creation of landed colonial gentry. In 1689, and in the wake of James II’s flight to France, anxiety and discord concerning the transformation of the city since the end of the Third Anglo-Dutch War burst forth in New York’s most significant popular disturbance prior to the American Revolution: Leisler’s Rebellion – named for the German merchant, zealous Calvinist, and militia captain later branded its leader – clearly demonstrated that the most telling social divisions in the late seventeenth-century city not lay between the Dutch and English, or even rich and poor, but a minority of religious radicals backed by a legalistic and aggrieved urban majority who suspected what they considered a tyrannical oligarchy of undermining cherished civic rights and privileges and, in extremis, of engaging in crypto-catholic plot to deliver the city to the French. Beyond the inner circle of key officers and supporters, Anglo-Dutch city merchants and associates lined up to oppose the rebellion, petitioning William and Mary in May 1690 for relief from “the burthen of Slavery and arbitrary power executed over us by the inraged fury of some ill men... assisted by... a Rable, those who formerly were scarce thought fit to bear the meanest offices among us.”44
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Within eighteen months Leisler’s Rebellion had run its course and the returning royal authorities placed particular emphasis on settling the law according to English practice. On 6 May 1691 an Act for the Establishing Courts of Judicature confirmed the arrangements agreed under the 1686 charter confirming the Mayor’s Court role as a court of common pleas for the hearing of disputes valued at forty shillings and above rising to hundreds pounds; it also established a right of appeal for cases over twenty pounds to a newly-created Supreme Court, and from to the governor and council for cases over one hundred pounds.45 The Act also standardized the procedure for commencing civil suits requiring plaintiffs to first inform the magistrates, who dispatched the sheriff with a summons, and then draw up the complaint and post security for the costs. If the defendant failed to enter a plea within three court days, effectively committing three defaults, the court entered a judgement. In cases where the sum was uncertain or might bear damages, the court issued a writ of inquiry to convene a jury. If the defendant chose to contest the action they filed a plea in defence, selecting from a set of prescribed options and narrowing the case down to a legal point of issue for a jury, if necessary, to decide. More plaintiffs sought legal representation and the consistency of the handwriting in the complaints indicates that either the clerk of to the court or the plaintiffs attorney drew up the complaint.46 The regularizing of legal process inspired refinements in the language of the complaint: the venue of a dispute which established the court’s jurisdiction, previously given as “att New York”, was identified more precisely as “withn the Dockward of this city.” Complaints framed in assumpsit assumed a standardized and more condemnatory, even those charged with minor infractions being grandly accused of “fraudulently intending... Craftily and subtily to deceive and defraud.” Over time the dedication to form ensured that there was little variation – other than names and disputed details and, here and there, occasional corrections and marginalia – in hundreds of complaints presenting all manner of disputes.47 By the 1720s the papers include examples of pre-written complaints and bond agreements and by the 1750s these had become printed forms.48

In the 1690s a three-fold increase in extant complaints indicate the by-now manifest preference for pleading in trespass and assumpsit, but now the writ was used in new ways that emphasized the passing of the earlier corporate civic order.49 For example, municipal officials claiming fees proper to their office no longer appealed to the common councilmen for public redress but instead launched a private suit at common law. Thus in the spring of 1691 the vendue master, Mathias Nicolls, presented his claim against the blacksmith, John Cooley, for £9:14s vendue fees (and £12 damages) owing from the sale of a house at auction as an action of trespass on the case, accusing Cooley of “breach of promise to the city.”50 Plaintiffs, and their attornies, also adopted the English practice of routinely describing the disputed exchange twice, once claiming the money value to which the plaintiff believed they were entitled and a second time asserting that the defendant had promised to pay whatever the goods and services were reasonably worth, or quantum valebant and quantum meriut.51 This double assertion had not featured in earlier complaints, but became increasingly common in the 1690s and thereafter. In this form assumpsit provided a form of action within which residents could invoke community-sanctioned standards, privileges and prices, adapting what was formerly decided at the discretion of local magistrates to the demands and routines of the English common law. But in addition requiring access to the court and potentially a jury, in this more formal process plaintiffs accused defendants of committing legal wrongs against their person or interests rather than the breach of community norms and expectations with a consequent reduction in the purchase of the latter on public attention.52

Beyond the courtroom the regularization of legal practice facilitated the expansion of the provincial economy and rise of the city as a leading entrepôt in the Atlantic trade giving New York its distinctive demographic profile. The routinization of the law inspired investor confidence especially when dealing with distant trading partners, and commercial expansion followed. In New York the Anglo-Dutch merchant elite of the late seventeenth century formed the kernel of an emerging gentry class of 20-30 families who, like their peers in the ranks of merchants of Massachusetts and Pennsylvania and the planters in the Chesapeake and Caribbean, relied upon metropolitan financiers, burgeoning commercial networks, and their own local political influence to transform colonial commercial fortunes. These elite merchants provided credit for a larger and more fluid middling population, headed early on in the century by about ninety or so households, whose ranks grew and contracted according to the fortunes of city commerce. The remainder and majority of the city’s population, which swelled from just under five thousand at the turn of the eighteenth century to more than 20,000 by the eve of the Revolution, comprised impecunious men and women, sometimes petty traders and sometimes members of the labouring poor whose earnings rarely got above a couple of shillings a day; their ranks were also filled with less successful mariners, servants, apprentices, and slaves who like most of the city’s residents possessed little or no personal wealth, never qualified for taxation, and given the forty shilling minimum and legal costs rarely, if ever, filed a complaint in the city’s Mayor’s Court.

Across the colonies the expansion in scale and scope of commerce underpinned a third phase of colonial legal development. Commercial expansion increased the per capita litigation rate across the colonies, in New York it doubled between 1700-1750. The expanded trade partly based on more and novel connections between communities and regions also preference for formal agreements and paper instruments such as bills, bonds, and promissory notes. Debt cases became more and more technical, encouraging the rise of professional lawyers and formation of a colonial bar. With little of substance to decide earlier paternalistic magistracies and custom conscious juries yielded to legal experts who litigated on points of law rather than the facts of the case.53 Plaintiffs and their commercial strategy favoured the straightforward and reliable writ of debt over pleading in trespass and the assumpsit with claims of quantum valebant and quantum meriut. In the Delaware Valley, for example, William Offut has traced the general pattern of legal development and reversal of two thirds to one third from pleading in trespass to a preference for actions in debt between 1680-1720. In Connecticut there is no record of pleading in trespass or assumpsit, but Bruce Mann traces an equivalent shift towards the use of written instruments such as conditional bonds, bills obligatory and promissory notes and a concomitant rise of technical pleading and professional lawyers and decline of juries. In these and other contexts historians trace a drift away from book debt and exchanges on account and toward more restrictive and, it is implied, reliable financial instruments fostering the associated routinization of the law which permitted diverse individuals and communities to participate in the market and access the benefits of commercial expansion within a common legal framework.54

Developments in New York matched those elsewhere, for example the rise of a professional bar and precipitous decline of jury trial, except in one respect – a continued preference for pleading in assumpsit which provides us with insight into an urban economy that remained reliant on book debt and trading on account. A sample of 2078 complaints concerning private credit agreements filed between the passage of the 1691 Act of Judicature and the beginning of the American Revolution indicates that four out of five disputes concerned exchanges on account, and that this proportion remained more or less stable on a decade-by-decade basis up to the Revolution.55 To add: a summary discussion of evidence of complaints regarding importance of book debt and urban economic culture which draws on another article in progress. In this fashion the local market functioned not only a structure through which people exchange goods, but also as a forum for the communication of the trust and neighborliness that bound part of the city together.56

One can only speculate why New York preserve book debt practices which diminished to the point of disuse elsewhere. Perhaps because credit was particularly tight and alternatives available elsewhere were not available. Virginia and other plantation colonies relied on plentiful tobacco as commodity money or to back notes and promises to pay. In New York the seventeenth-century shell currency, wampum, was demonetarized in 1702 and although people regularly paid grain and alcohol, there was no single recognized commodity money like in the plantation south. This left New York City peculiarly dependent on trade and credit. The authorities did what they could to make-up for the shortage of specie, emitting bills of credit drawable on the at regular intervals after 1709 – most often to cover the expenses of military expeditions against the French. Also, for reasons that are not entirely clear, New York was reticent about joining the movement to establish land banks pioneered by New England colonies such as Massachusetts and Rhode Island and the plantation colonies of North and South Carolina and Maryland. Possibly because so much of the colony was granted away by Benjamin Fletcher in the form of vast upriver estates to supporters (and erstwhile anti-Leislerians) in 1690s, land ownership was concentrated in a few hands who did not favour inflationary currency issues that advantaged city merchants.57 Thus public credit was never sufficient to provide for commercial needs leaving private means including various kinds of financial instruments and seemingly book debt.58

In conclusion the complaints chart the increasing adherence to form and process that lies at the heart of the establishment of the common law beginning with the transition to English rule in the late seventeenth century. If one is struck by the rich and occasional comic narratives of early Dutch court records, with their stories of overseas trading ventures and misidentified hogs, the English records make for more sparse and unrewarding reading. It is this adherence to form that requires the examination of great quantities of material for any substantive insight and which has led even the most committed of legal historians to lament their sources as “low-yield ore” or lacking “in intellectual sex appeal.59 Historians of the law in early New York have interpreted this dedication to form in a variety of ways. For some it signalled an early and noteworthy commitment to English practice, what others later termed a process of anglicization.60 For others the introduction of new, repetitive, and technically abstruse procedures offers the purest expression of colonialism as a process of disavowal in which the chaos and dislocation experienced by the city’s Dutch residents is denied, elided, and considered incidental by bureaucracy and regimented processes designed and justified in the interests of preserve a sense of order and rightful authority.61 In the eighteenth century, and in another vein, this same quality has been stressed by historians of market development, who see in capacity of uniform legal texts to transcend transitory social and local processes inspired investor confidence and commercial expansion that provided for the rise of the port of New York. Most recently, the city and colony’s legal practice has been described as an important element that provided for province's haphazard, autonomous development that gave rise to a class of “creole improvers” who saw no "no contradiction between provincial and imperial loyalty" until forced to that view by bureaucrats who saw them as impediments to imperial reform.62

Clearly, the relationship between law and empire is very much in the eye of the beholder. But alternative to emphasis on monotony is to think of repetition more productively as part of textualization of social life that complaints represent. Key point is that law "is constructed not only as rules and policies but as stories, explanations, performances linguistic exchanges -- as narrative and rhetoric. It is this quality of legal records that has allowed historians to glean insights from even limited texts and described their role in forming, shaping, and moulding of social narratives.63 In this vein, earlier settlement communities, of which New Amsterdam one example, refused to posit a moral sphere isolated from corporate identity and equally unwilling to allow free reign to either conscience or the pursuit of individual interests. The law played an important part, allowing powerless to vent publicly and also by checking the ambitions and interests of the powerful in the community interest. Common law nurtured a drift away from this earlier principles/premise in which the drawing up of complaints critical first step: introduced fictive notions, of privacy of contractual agreements and universal legal equality, and individualized disputes – detaching parties to exchange from community consideration. It was thus in repetition, that the complaints disclosed their force as texts which did more than simply record information or enforce English legal traditions, but by allocating subject positions in accordance with strictures set down by the common law also re-ordered the litigants’ relationship. In the early years this re-ordering worked better for merchants and those experience of trade prepared them for flexibility and accommodation. Over the longer term refinement in complaints and familiarity of once new rules enabled broad middling sort to use the court. In the complaints and the rise of the writ of assumpsit we can discern an accommodation in which the ambitions and desires of the colonizers and colonized were reconciled and the legal hegemony that provided for the English administration of New York City in the half century or so after Leisler’s Rebellion was achieved.

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