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



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1 Dr. Benjamin Salzer was a New York neurosurgeon and antiquarian book collector. In a hand-written

note dated 18 February 1935, which still accompanies the collection, he reported buying the records from a city dealer at the turn of the century. Four years before the bequest Morris published a second edition of his co-edited, with Evarts B. Greene, A Guide to the Principal Sources for Early American History (1600-1800) in the City of New York (1929; reprinted, Columbia University Press, 1953) in which he discussed the chaotic condition of New York’s legal records, 208-210. For Morris’s participation in debates concerning public archives and his work with the Mayor’s Court material see, Philip Ranlet, Richard B. Morris and American History in the Twentieth Century (Lanham, Md., 2004), 22-26.



2


 Comparing the holdings for different years one finds where one collection is strong the other is correspondingly weak. Thus there are only two cases for 1728 in the Salzer Papers, but material relating to 117 cases in the downtown, public archive. In some cases the excision of the public archive may be related to historical controversy: the county court collection only has a handful of documents concerning cases brought in the five years following Jacob Leisler’s administration, but Columbia has papers relating to sixty-three suits in the same period. The collection also includes 268 bail agreements, ninety-three writs of inquiry, mostly from the early 1750s and early 1770s, and lesser numbers of depositions, defence pleas, confessions, lists of judgements, jury rosters, and schedules of weights and measures and the legal fees chargeable in court. The Columbia collection is indexed by name and year; the downtown collection has a partial card index produced under the auspices of a project at Queen’s College, Brooklyn, where the records were held from the 1960s until their move to the county court archive in the 1980s. My research ends in 1776, but there are additional cases in both collections for later years. For example, the Columbia University collection includes 84 cases for 1783-1784, 41 cases for 1785, 41 cases for 1786-87, 59 cases for 1788-89, 78 cases for 1789-1798, 45 cases for 1799-1800, and 30 cases for 1801-1820.


3 Darby Bryant v Bernardus Hardenbrooke,. MCP. For Bernadus see NYGBR, April 1939, 128-136, and October 1939, 373-74. For Bartholomew Feurt, Carl Boyer, Ship Passenger Lists: New York and New Jersey 1600-1825 (Heritage Books, 2007), 149. The originating complaint was only reproduced in the court’s minute book in cases that went to trial. Deborah A. Rosen has shown that the number of such cases fell from one in five in the 1690s to less than one in twenty by the mid eighteenth century, see her “Courts and Commerce: The Formative Period of Legal Practice in New York, 1690-1760,” (Ph.D Diss., Columbia University, 1990), 121-123, 170-180.



4 Of course, although rich in detail of cases brought before the city’s busiest civil tribunal, the complaints

provide a partial view giving no data on outcomes or related action in other courts such as the Supreme Court. For additional information I have relied on the work of Deborah Rosen’s dissertation and related studies, including her “The Supreme Court of Judicature of Colonial New York: Civil Practice in Transition, 1691-1760," Law and History Review 5, no. 1 (1987), 213-247 and Courts and Commerce: Gender, Law, and the Market Economy in Colonial New York (Columbus, OH, 1997).





5 Julius Goebel Jr., “The Courts and the Law in Colonial New York,” in Alexander C. Flick, ed., History of the State of New York, volume three (New York, 1933) reprinted in David Flaherty ed., Essays in the History of Early American Law (Chapel Hill, 1969), argues that little changed between conquest and 1688 and detects a determined effort to anglicize judicial practice after Leisler’s Rebellion, 259, 261. Michael Kammen agrees this post-rebellion change and adds that “there was nothing gradual or evolutionary about the appearance of English law” which represented a “remarkable transformation in a relatively brief period of time,” in Colonial New York, 128-29. However, others locate anglicization earlier, for example in the composition of juries after 1674, and consider anglicization as a more or less consistent theme from soon after the conquest. The connection between law and anglicization was first described in John M. Murrin’s influential dissertation, “Anglicizing an American Colony: The Transformation of Provincial Massachusetts” (Ph.D. diss., Yale University, 1966), and then adapted and extended to post-conquest New York in his “English Rights as Ethnic Aggression: The English Conquest, the Charter of Liberties of 1683, and Leisler’s Rebellion in New York” in William Pencak and Conrad Edick Wright eds., Authority and Resistance in Early New York (New York?), 1988), 56-94. James Henretta rejects the anglicization thesis in other colonial contexts, but admits its continued salience in late seventeenth-century New York, “Magistrates, Common Law Lawyers, Legislators, 575-580. For the establishment of the common law, see Richard Morris, Select Cases of the Mayor’s Court of New York City, 1674-1784 (New York, 1935), 40-48 and Herbert Johnson, “The Advent of the Common Law,” in his Essays in New York Colonial Legal History (Westport, Conn., 1981), 74-91.


6 In the form of assumpsit the action rested on two legal fictions which inferred, firstly, a defendant’s obligation to the plaintiff under an agreement and, secondly, their attempted and deceitful evasion of this obligation through non-payment. For the background to trespass on the case and assumpsit, see . A. W. B. Simpson, History of the Common Law: The Rise of Assumpsit (Oxford, 1975), 125-270; Ibbetson, A Historical Iintroduction to the Law of Obligations (Oxford, 1999).


7 For pluralism and a recent review of recent legal historiography see Richard Ross, “Legal

Communications and Imperial Governance: British North America and Spanish America Compared,” and David Thomas Konig, “Regionalism in Early American Law,” both in Christopher L. Tomlins and Michael Grossberg, The Cambridge History of Law in America (Cambridge, 2008), chapters four and five. For the agency and mediating effect of law in colonizing process, particularly relating to labour, see Christopher L. Tomlins, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580-1865 (New York, 2010). James A. Henretta summarizes the historiography in “Magistrates, Common Law Lawyers, Legislators: The Three Legal Systems of British America," in Christopher Tomlins and Michael Grossberg, eds., The Cambridge History of Law in America: Early America, 1580-1815 (New York, 2008), 555-92.




8 Footnote studies for other colonies, and for New York Rosen and Hulsebosch. Also diminishing participation of female litigants.


9 For the beginnings of the Court of Burgomasters and Schepens see Jaap Jacobs, New Netherland. A Dutch Colony in Seventeenth Century America (Leiden, 2005), chapter three. The formality of civil law and efficacy of provincial courts in the resolution of community disputes are discussed in Shattuck, "A Civil Society," 116-139, 293-95; Maika, “Commerce and Community,” 239-241; Janny Venema, Beverwijck. A Dutch Village on the American Frontier, 1652-1664 (Hilversum, 2003), 117-126. Also, Linda Beimer, "Criminal Law and Women in New Amsterdam and Early New York," in Nancy Anne McClure Zeller, ed., A Beautiful and Fruitful Place: Selected Rennsselaerswijck Seminar Papers (Albany, N.Y., 1991), 73. For magistrates' judgements that refer to the "by-laws and customs of Old Amsterdam" see, RNA 1: 101-102, 273.


10 Bench comprised Nicasius de Sille, Paule Leendersen van der Grift, Olof Stevesen Cortlant, Joannes de Peister, Cornelis Steenwyck, Isaack de Foreest


11 At a loss to resolve the dispute, the court ordered witnesses to appear at the following meeting, after

which the disagreement seems to have fizzled out. RNA 3: 4, 6-7. On trade regulation see Middleton, “ ‘How it came the Bakers Baked No Bread’: A Struggle for Trade Privileges in New Amsterdam,” WMQ, (2001), 347-372.




12 For example Govert Loockermans who arrived in 1633 as sixteen year old company employee and represented the Verbrugge family, Rink, 177-180; Maika, 40. Oloff Stevenson van Cortlandt who arrived as a simple soldier but rose through the ranks of the company, Isaac Allerton original settler in Plymouth and long-term trader and property owner in Manhattan, Thomas Willet, Thomas Hall, New Netherland, Jacob van Couwenhoven, Augustine Heremans



13 Oliver Rink, Holland on the Hudson, ??; Maika, “Manhattan Merchants”, chapter two.


14 Virginia for 1655-56 in RNA, 2: 64-65, 68, 71, 73, 78-79, 89, 101, 110, 112, 117, 133, 178, 241, 257. (sailors and wages; exchanges/payment made in Virginia for disputes in New Amsterdam). Also, Calendar of Historical Manuscripts, Dutch: 17, 21, 24, 51, 59, 68, 73 (return of fugitive prisoner from Maryland), 79 (permission to leave for Virginia, 81-82 (promissory note and agreement to serve), 97, 105. New England and other examples to add. Others to add. Also see William E. Nelson, “Legal Chaos in a Factious Colony: New York, 1626-1776,” New York Legal History Colloquium, 2 September 2009, 39-44.


15 A few weeks later a “committee from the tapsters” challenged the level of the duty “since only three guilders are paid in Patria, RNA 2: 237-40, 266.


16 Karen Ordahl Kupperman, Indians and English : Facing Off in Early America (Ithaca, 2000), ??; Alison

Games, “Beyond the Atlantic: English Globetrotters and Transoceanic Connections,” The William and Mary Quarterly 63, no. 4 (2006), 675-692; Cynthia Jean Van Zandt, Brothers among Nations : The Pursuit of Intercultural Alliances in Early America, 1580-1660 (Oxford, 2008), ??; Noah Gelfand, “A People within and Without: International Jewish Commerce and Community in the Seventeenth and Eighteenth Centuries Dutch Atlantic World” (Ph.D. Diss, NYU, 2008). Pierre Gervais, “Neither Imperial, nor Atlantic: A Merchant Perspective on International Trade in the Eighteenth Century,” History of European Ideas 34, no. 4 (2008), 455-473; David Hancock, “Self-Organized Complexity and the Emergence of an Atlantic Market Economy, 1651-1815,” in Peter A. Coclanis, The Atlantic Economy During the Seventeenth and Eighteenth Centuries:



Organization, Operation, Practice, and Personnel (Columbia, 2005), 30-72, also his Oceans of Wine: Madeira

and the Emergence of American Trade and Taste (New Haven, 2009).

17


 See, for example, Willem Blaeu, Nova Belgica et Anglia Nova, 1635, and comments in Benjamin Schmidt, “Mapping an empire: cartographic and colonial rivalry in seventeenth-century Dutch and English North America,” WMQ, 54, (July, 1997), 549-578; Cynthia Jean Van Zandt, "Mapping and the European Search for intercultural Alliances in the Colonial World," Early American Studies, 1, no. 2 (2003), 72-101.



18 Claudia Schnurmann, “Dutch and New Netherland merchants in the seventeenth-century English

Chesapeake” in Peter A. Coclanis, ed., The Atlantic Economy During the Seventeenth and Eighteenth Centuries: Organization, Operation, Practice, and Personnel (Columbia, 2005), 186-192; April Lee Hatfield, Atlantic Virginia : Intercolonial Relations in the Seventeenth Century (Philadelphia, 2004); Christian J. Koot, “The Merchant, the Map, and Empire,” The William and Mary Quarterly, 67, no. 4, 603-644, and his Empire at the Periphery: British Colonists, Anglo-Dutch Trade, and the Development of the British Atlantic, 1621-1713 (New York, forthcoming 2011).




19 As early as 1642 Willem Kieft had an inn constructed in New Amsterdam “to accommodate the English who daily passed with their vessels from New England to Virginia,” in Narratives of New Netherland, 212. Two years later the colony was effectively mortgaged to pay for English assistance in Kieft’s War leading to the levying on unpopular local excises which provoked settler protests against the Company and on behalf of local rights and interests and which featured Dutch and English settlers, and others, on both sides. See DRCNY, 1: 188-89. Ronald D. Cohen suggested that it was New England’s particularism which was responsible for keeping those colonies from “making common cause against the Dutch,” in “the New England Colonies and the Dutch recapture of New York, 1673-1674,” New-York Historical Society Quarterly (January 1972), 54-78; also see Simon Middleton, “Order and Authority in New Netherland: The 1653 Remonstrance and Early Settlement Politics,” William & Mary Quarterly, 67, no. 1 (2010), 31-68.


20 The formation of this influential elite is clear in analysis of office holding beginning in the 1640s and

through analysis of office holding and wealth distribution thereafter, see Jacobs, New Netherland, 484-494; Robert C. Ritchie, The Duke's Province : A Study of New York Politics and Society, 1664-1691 (Chapel Hill, 1977), ??; Bruce M. Wilkenfield, Social and Economic Structure of Colonial New York, 1695--1796 (New York, 1978); Nan A. Rothschild, New York City Neighborhoods : The 18th Century (San Diego, 1990), ??;

Joyce D. Goodfriend, Before the Melting Pot : Society and Culture in Colonial New York City, 1664-1730

(Princeton, 1991), ??.





21 “Private Instructions to Coll. R. Nicolls,” DRCNY, 3: 57-61. For contemporary accounts of the conquest, see “Rev. Samuel Drisius to the Classis of Amsterdam, 15 September 1664” and Peter Stuyvesant’s “Report on the Surrender of New Netherland” and “Extract from the Register of the Principal Events. . . and Reduction of New Netherland,” DRCNY, 2: 364-70, 411-13; RNA, 5: 105-107, 115-116; Jameson, Narratives, 414-17, 458-66. Nicolls announced his terms in handbill copies of a proclamation he had made on board his ship, the Guinea, prior to the invasion. Brodhead, History of New York, 2: 24. Negotiation described in Merwick, Possessing Albany, 140-145.

22


 Of ten seats on Nicolls’s council eight were occupied by merchants or officeholder-merchants (Ritchie, 44) Only two were Dutch, but others long resident and friends to the city, for example John Lawrence and Thomas Willet, leader in Plymouth and long-time friend of the city. Lovelace invited Dutch back into council, Steenwick and Van Ruyven. Ritchie found that although key positions such as mayor and sheriff were dominated by English appointments, in the first eight years after the conquest of 47 aldermanic appointments 17 were English and 22 were Dutch and/or non-English, Duke’s Province, 45. Also, DHSNY, 1: 602-4; RNA, 5: 248-52; Maika, “Commerce and Community,” 340-67; Kammen, Colonial New York, 74.

23


 Maika, “Commerce and Community,” 138-42, 144-46, 229; Cathy Matson, “Commerce after the Conquest: Dutch Traders and Goods in New York City, 1664-1764,” De Halve Maen 59, no 1. (1987): 8-12; Ritchie, Duke’s Province, 57-58; Victor H. Paltsits, ed., Minutes of the Executive Council of the Province of New York: Administration of Francis Lovelace, 1668-1673 (hereafter Executive Council Minutes) (Albany, N.Y., 1910), 2: 522-23. For petition of Frederick Philipse, 9 March 1668, requesting that Albany's trade be restricted, see RNA, 6:138-41; General Entries, 357. For example, Jan Krupp found that city merchants were delighted with easier access to Dutch goods shipped via Curaçao in “Aspect of the New-York Dutch Trade Under the English, 1670-1674,” New-York Historical Society Quarterly (April, 1974), 139-146. On liberalization see, Morris, Government and Labor; Nelson, Legal Chaos, 27. For doubling of merchant fortunes see tax data for 1664 and 1676 compared in Ritchie, 127-33.

24


 RNA 6: 210, 263.

25


 Hendrick Obe versus Fredrick Philipse, 6 June 1666, Philipse also lost the second hearing and was ordered to pay 36 beavers “or the value thereof in zewant,” RNA, 6: 12, 15, 16.


26 For cases involving Virginia, for example, see Jane Philips, Widow, v the Ketch Hoopwell property of William Vascum, deceased, July 1669, attachment of ketch for a debt 2,578 pounds of tobacco “payable in Virginia as by account signed by sd Vascum”. Judgement for Philips “provided that there be deducted soo much out of The Same as the Tobacco payable in Virginia shal be judged of lesser Vallue as Tobacco here.” Also John Cox and Companie vs Ketch Hoopwell property of William Vascum, deceased, for 4,121 lbs tobacco and 89 guilders wampum wages and money disbursed which “according to the Custome of the Sea and Lawes Oulleroon” should be paid ahead of other creditors RNA, 6: 186-87. RNA, 6: 196, 198 for suit for debt owed for wine and beer duty, decided by city for deft and appealed to the court of assizes. Similarly, when Frederick Philipse, underpaid Neeltje Onckelbach for stringing the shell currency sewan, having originally promised to pay her “as much as she gets from others”, the court ordered him to make up the difference “according to the custom heretofore” in Middleton, From Privileges to Rights, 61.


27 In Andros’s seven years forty-five positions available in city and provincial government were occupied by 23 men, twelve Englishmen and eleven Dutch, all were drawn from the merchant and office holding oligarchy, Ritchie, 99, 112-14


28 Robert Ritchie first argued that cases involving two Dutch litigants became less common and ordinary Dutch settlers withdrew from the anglicized court, citing the names of jurors identified in the mayor’s court minute books for 1680-81, Duke’s Province, 143; Eben Moglen propose a similar trend based on relying on the published minutes in Kenneth Scott ed., Minutes of the Mayors Court of New York, 1674-1675 (Baltimore, 1983) and his assessment of Dutch participation in juries in 1674-75, see his “Settling the Law: Legal Development in New York, 1664-1776,” (Ph.D. diss., Yale University, 1993), 39. Drawing on these studies, William Offut Jr. traces a decline from the mid-1670s to the end of the seventeenth century in “The Limits of Authority: Courts, Ethnicity, and Gender in the Middle Colonies,” in Christopher L. Tomlins and Bruce H. Mann, eds., The Many Legalities of Early America (Chapel Hill, N.C., 2001), 371-374.


29 Maika, 350-51, 440-43. Finds that number of cases settled by a jury: 17 November 1674 to 8 March 1675 146 cases of which 2% went to jury and 3 April 1683 to 18 December 1683 298 cases and 6%, went to jury; cases decided by arbitration remained steady at 3%.


30 Mayor’s Court Minutes, 9 November 1675 – 6 November 1677, 108-112. It may be speculation, but the absence of manuscript examples of written complaints before 1681, given the richness of the collection thereafter, might also indicate that plaintiffs were not yet routinely setting down their disputes in writing.


31 For examples of Dutch litigants see cases involving Nicholas Bayard, Conrad van Brazer Wouter, David Schuyler, Darby Bryant, Stephen Crego, John and Sarah Deforest, and Thomas Weyman in Engrossed Mayor’s Court Minutes, 24 October 1682 – 9 April 1695, in the Division of Old Records, Chambers Street, New York City. For debt and damages left blank, see Frederick Philipse v Theodore Whitehead, MCM, Nov 9th 1675


32 Thomas Tiddeman vs Mettie Wessels 28 August 1666, ended in default RNA 6: 34, 40. Also RNA, 6: 131, Patrick Hayes and William Merrit vs Charles Hadsal, for a”new & authentique Obligation” for 14lbs sterling assigned to plts by William Smith, and RNA, 6: 302, Colonel Lewis Morris, by “his Atturny Richard Moriss” vs Henry Lyon, 6 June 1671, represented by John Lawrence and exchange of complaints and pleadings, also RNA, 6: 309, Thomas de Lavall, Esqr v Pieter Groenendyck, plt by his attorney John Rider “Delivered in Court his declaration” agst ye dft; also RNA, 6: 312 Jacob Lucena vs Thomas Davis, 16 July 1671, over payment for one dozen stockings but judgment given by court which “did decree and Ordr” the deft to pay the plt and each to pay their own charges, also RNA, 6: 330, James Mills v Cornelius Steenwyck, 3 October, 1671, plt declares that in 1662 he then in Virginia received a letter from Steenwyck asking him to bring his ship the Nathaniel to this port and to take in freight for Holland at 18 or 20 guliders per head, for nonperformance of which plt brings suit calculates at least 12 hundred gildrs. Steenwyck denies any promise but only that he wrote with Nicolas Varlet, Jacob Backer, and Johannes Vermeulen a “letter of advice concerning freight” jury found for defts. 1674 the erstwhile commander, Captain John Manning, sued Dirck Van Cleyfe for return of “a certain house and ground he bought of one Martine Hoffman” and “y rents and proffits thereof”.Captain John Manning v Dirck Van Cleyfe, 22 December 1674, Mayor’s Court Minutes, 13 November, 1674 – 21 September 1675. Jan 10 1675, John Schackerly v Thomas Williams plea of t on the c by John West his attorney indebted 16 pounds, VOL NOv 9 1675 - Nov 6 1677.


33 Capt John Manning V Dirck Van Cleyfe


34 For example John Tudor’s protest at improper questioning of witnesses and failure to provide a jury trial in MCM (July 24 1677- Sept 5 1682), 183-187, and his defence of Stephen Crego in Jacob Melyns v. Stephen Cregoe, shipmaster, 7 August 1683, MCM (1682-95), 65. For example of leaving of damages blank see Darby Bryant v Bernardus Hardenbrooke, ?? and, later, Jacb Mayle v Gersie Van Der Cliffe 1698.


35 Steve Pincus, 1688 : The First Modern Revolution (New Haven, 2009), chapter twelve; William A. Pettigrew, “Free to Enslave: Politics and the Escalation of Britain's Transatlantic Slave Trade, 1688-1714,” William and Mary Quarterly, 3rd Series, vol. 64, no. 1, (2007) 17, 20, 32. At a time when Andros regarded a New York merchant with a £500 estate as a “substantial man,” English newcomers such as George Heathcote, John Robinson, and Edward Griffeth boasted fortunes of £2000 and impeccable family and metropolitan connections. George Heathcote was probable brother to Gilbert Heathcote, leading figure in the Whig merchant attack on the Tory clique headed by Sir Josiah Child who managed the East India Company monopoly.
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