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Deft. says his beer is ready. Plf. denies, that the beer is ready, and enquires if it be allowable to mix strong with small beer, and says the beer is not fit to be removed. Couwenhoven denies the same, and requests the Court to be pleased to test the same after adjournment of the session and then decide. Parties being heard, Jacob van Couwenhoven was ordered to pay Plf. the residue according to contract and obligation; And the beer having been tested after adjournment of the Court the same was pronounced good. The Plf. was therefore ordered to receive the same.
Would Professor Wigmore call this autoptic profference?
As in the other Dutch settlements the principal prosecuting officer of the district was the schout whose duties combined those of a sheriff and district attorney; he convened the justices' courts and executed the orders of the states-general and officials of the company. Where local courts were established the justices were known as schepen's. Their jurisdiction extended to the rendition of judgment for sums under one hundred guilders. In cases exceeding that amount the party aggrieved was allowed an appeal to the director general and council of the New Netherlands. The schepens also had authority to pronounce sentence in criminal cases subject to appeal.?
In 1656 the Dutch India Company, being deeply in debt and compelled to obtain aid from the city of Amsterdam, transferred to that city a portion of their possessions on the Delaware. This colony was called New Amstel, special inducements were held out to emigrants, and a town government was established consisting of a schout, three burgomasters and five to seven schepens, a formidable body for the government of a village of less than five hundred inhabitants. Thence
1 Records of New Amsterdam Court, Vol. I, 358.
* O'Callahan's History of New Netherlands, Vol. I, 220; VII Pennsylvania Archives (2d Series), 521, 528, 534; Hazard's Annals of Pennsylvania, 221.
forth the jurisdiction on the river was divided between the officials of the company and those of the city's colony."
Laws and ordinances were sent from New Amsterdam to the Delaware and there proclaimed for the general government of that territory. With occasional modifications, they were the same as prevailed in the older settlements on the Hudson, the ordinances of the West India Company, the civil law, the enactments of the states-general, and the customs of Holland.
In the matter of granting divorces the magistrates of the New Netherlands exercised a liberal policy in keeping with the doctrines of the Reformation, a policy that was not destined to survive the English Conquest.? Traces of this jurisdiction are found on the Delaware. Vice Director Beekman, writing to the director general under date of April 28, 1660, mentions a Finnish couple who lived together in constant strife: “The wife receives daily a severe drubbing, and is often expelled from the house as a dog. This treatment she suffered a number of years; not a word is said in blame of the wife, whereas he, on the contrary, is an adulterer; on all of which the priest, the neighbors, the sheriff and the commissaries appealed to me, at the solicitation of man and wife that a divorce might take place and the small property and stock be divided between them.”3
He asks for orders but the reply is not given.
In 1662, the Finnish priest Laers, or Laurentius, Carels, whose wife had eloped with Jacob Jough, married again before he had obtained letters of divorce from the council, performing the ceremony himself. He was condemned by the commissaries to pay a fine of two
1 Hazard's Annals of Pennsylvania, 220; V Pennsylvania Archives (2d Series), 459.
2 Howard's Matrimonial Institutions, Vol. II, 376. 3 VII Pennsylvania Archives (2d Series), 634.
hundred guilders and his new marriage declared illegal, but was advised to apply to the director general for a divorce.
At the last period of the Dutch dominion (1673–4) three judicial districts were recognized, one for the inhabitants of the Whorekill, between Cape Henlopen and "Boomties" (Bombay) Hook, another for New Amstel, from Bombay Hook to Kristina Kill, and a third for Upland from Kristina Kill "unto the head of the river.” Roughly speaking, the first of these districts corresponds to the lower counties of the state of Delaware, the second to New Castle County, in that state, and the third to so much of the southeastern part of Pennsylvania as was then settled, extending to the falls at Trenton.
The humble and widely scattered settlers seldom had time or occasion to indulge in law suits involving questions or amounts beyond the limited jurisdiction of the schepens, but such disputes as did arise were the cause of endless discussion and much heartburning between the officers of the West India Company and those of the city of Amsterdam, whose complaints and recriminations distracted the governor at New Amsterdam. In justifying the action of the council in such a contest Peter Stuyvesant writes to the directors in Holland: "We might here remark upon and continue with the insults and slights, heaped on your Hon ble Worships' servants in their capacity as supreme judges of this province, but will desist for the present to keep ourselves above party spirit and avoid further displeasures.” Appeals heard and decided by the governor
1 Hazard's Annals of Pennsylvania, 330, 333; VII Pennsylvania Archives (2d Series), 670, 672, 680.
2 Hazard's Annals of Pennsylvania, 407; VII Pennsylvania Archives (2d Series), 758; Whorekill is a corruption of Hoorn Kill, Sussex Records (Turner), 2.
and council seem to have been carried to the director's in Holland, and occasionally reversed to the chagrin of Stuyvesant, who thus reproaches his employers in a letter dated July 21, 1661:
"Your Noble Worships say in regard to the third and last point concerning the appeal and the reversing of a sentence pronounced against one Jan Gerritsen van Marcken, that we would have done better not to meddle with this case. Honorable Worships! It surpasses our conception to understand how to avoid such proceedings and the reproaches following them, how to satisfy your Honors and the parties to the suit without exposing ourselves to blame for refusing a hearing and justice, as long as it is your Honble Worships' order, and pleasure, that appeals are to be brought before your Honors' humble servants and we declare with good conscience that in this and the abovementioned case we have not aimed at nor intended anything else, but what we in our humble opinion judged to be just, equitable and our duty: God the Ominiscient is the witness for it: we have no knowledge of it, that the Sheriff van Sweeringen was to be forced here, to ask pardon of God and justice in addition to what his opponent had demanded: we refer to the sentences regarding this point." I
Dutch rule and Dutch laws, however, were not destined to endure on the Delaware. On the twelfth of March, 1664, Charles II of England granted to his brother, the Duke of York (afterwards James II), the territory comprising the New Netherlands.
The charter to James is neither as elaborate nor as carefully drawn as that granted eighteen years later to Penn. The standing committee of the privy council for the foreign plantations had been but recently organized and the Crown lawyers were just beginning to realize that vast problems, legal and social, were connected with the administration of the colonial domain. It has been well said that in the colonial charter will be found the germ of American constitutional
1 VII Pennsylvania Archives (2d Series), 662
law, whether of the trading company or proprietary type, since it contained beside the grant of territory a scheme of political organization. It is a significant fact that the charter of James contains no reference to a legislative assembly; the Duke is given “full and absolute power and authority" to "correct, punish, pardon, govern and rule" the inhabitants of the territories according to such laws, ordinances and directions as he should establish, not contrary to the laws of England, reserving to the Crown the right to hear and determine appeals from judgments or sentences there given.
With the history of the conquest of the New Netherlands we are not directly concerned; suffice it to say that Sir Robert Carr who was charged with the reducing of the Dutch possessions on the Delaware arrived at that river in the latter part of the year 1664, and without much bloodshed obtained the surrender of the colony. Carr established the seat of government at New Amstel, the name of which was now changed to New Castle, and under the terms of his agreement with the inhabitants, continued all the magistrates in their offices upon their taking the oath of allegiance. The wise policy of enlisting the local authorities in support of the new government was continued, and Dutch and Swedish magistrates administered justice to their neighbors until long after the arrival of William Penn.
The period of the Duke of York's rule is of more importance in our judicial history than would at first be supposed. It was a formative period, and the law and practice as then developed had a marked influence upon the early legislation of the province of Pennsylvania.
1 Constitutional law by S. E. Baldwin in Two Centuries Growth of American Law, 11.
2 V Pennsylvania Archives (2d Series), 494. 3 V Pennsylvania Archives (2d Series), 544.