In 1650, the Dutch parliament ordered the Dutch West India Company to establish municipal government in New Amsterdam similar to the form of governance in the City of Amsterdam. Elected officers – two burgomasters, five schepens and a schout were to regulate the affairs of New Amsterdam and sit as a court of justice with both civil and criminal jurisdiction. Pending the establishment of the municipal court, the Board of Nine Men were to continue their judicial role.
The Dutch West India Company resisted the parliamentary order on the ground that it infringed its powers under the 1621 Charter but, in 1653, relented and ordered Director-General Stuyvesant to set up a local government in New Amsterdam. Owing to a technical ambiguity in the order, Stuyvesant ignored the requirement for elections and appointed the two burgomasters and the five schepens himself. He also required the New Netherland Fiscael to serve as schout in the municipal court.
On February 7, 1653, the first board of magistrates met at the Fort in New Amsterdam and gave notice that sessions of court would be held for "the hearing and determining of all disputes between parties, as far as practicable in ... the Stadt Huys (City Hall) on every Monday morning, at nine o'clock." The eldest burgomaster acted as president of the court until 1656, when Director-General Stuyvesant ordered the presidency to rotate every three months.
Upon complaint of the plaintiff, an officer of the court known as the court messenger summoned the defendant to attend court on the next court day. If the defendant failed to appear, he incurred the cost of the summons, waived the right to interpose any demurrer to the court's jurisdiction, and a nfew summons was issued. A second default resulted in additional costs, precluded all "dilatory exceptions," and operated as a forfeiture of the other usual privileges of a litigant. If a third default occurred, a final and absolute judgment was rendered unless the defendant's presence was essential, whereupon the court could issue a warrant of arrest. These extreme measures were rarely required, as the original summons was generally obeyed.
Upon appearance of the parties in court, the plaintiff stated his case, and the defendant answered. If an issue of fact material to the merits of the controversy arose, either party might be sworn as a witness. Should the court be not then sufficiently enlightened, other witnesses might be examined, and an adjournment was taken until the following court day. In the meantime the witnesses made written depositions before a notary, or were required to attend personally at court on the adjourned day, to be orally examined under oath.
If the issues raised for adjudication were of an intricate and perplex nature, they were often referred to arbitrators selected by the parties or appointed by the court. It was the arbitrators' duty to effect, if possible, a settlement of the controversy out of court, and in default of such settlement, the matter was regularly tried and disposed of by the magistrates on the bench.
An alternative, more formal procedure was available involving written and notarized testimony, but it was cumbersome and expensive, and was seldom requested.
Papers and documents purporting to be in a party's handwriting were presumed by law so to be, unless denied by the adverse party under oath. Account books, when properly itemized and kept, were admissible in evidence on behalf of the party who offered them. The judges assessed the credibility of witnesses and weight of evidence.
When judgment for a sum of money was rendered against a defendant, he was usually allowed fourteen days within which to pay one-half the sum and one month for the payment of the remainder. Non-compliance with these terms resulted in summary action by the court to enforce collection. Upon application, a schout, or more usually the court messenger, armed with his insignia of office, a bunch of thorns, was sent to the judgment debtor, and upon exhibiting a copy of the sentence, demanded that satisfaction be made in twenty-four hours. Should the debtor further default, this demand was repeated with increased expense, and at the end of the twenty-four hours the debtor's movable property was attached by the messenger in the presence of a schepen, and detained for six days, subject to redemption on payment of judgment and costs. If the goods still remained unredeemed, public notice was given on Sunday, and upon a law-day, that they would be sold at public auction on the next market day.
If it should be found necessary to levy on real estate, or immovable property, greater formality was observed in the method of conducting the sale and an extension of time, within which to redeem, was granted. By a general and unique custom, which at this time prevailed in the colony, the sale was continued at public auction, during the burning of a lighted candle; at the extinction of the candle the property was struck off to whoever had made the highest bid.
The civil business of the court consisted mainly of actions for money due and owing; attachment of absconding debtors' property; actions relating to real estate; actions to recover damages for injuries to land or personal property, and actions in replevin.
A penalty of imprisonment was imposed on the defaulting party in actions for seamen's wages, and for breach of promise of marriage. In cases of separation between man and wife, the children were equally allotted, and after payment of debts, the property equally divided. In bastardy proceedings, security for the child's support was required from the male, and both parties liable to fine or imprisonment. Assault and battery, and defamation, were quasi-criminal in their nature, and subjected the offender to fine and imprisonment, though public recantation of slander before the court generally procured a discharge. Pecuniary damages were not allowed for injuries to person or property.
The enforcement of the law, in criminal cases, was vested in the schout. At his requisition, and upon sufficient evidence adduced to warrant it, the defendant might be summoned or arrested at the discretion of the court. Bail was accepted in all cases except those of murder, treason, arson or rape in the first degree. Two methods of trial prevailed: A public trial, conducted according to the general rules of evidence, which was the ordinary procedure; the other by private examination upon written questions, in the presence of two schouts. Torture, while available as a means of extorting confessions, was but seldom invoked. Such crimes as were committed were not of a serious degree. The penalties were fines, imprisonment, whipping, the pillory, banishment, and death. The last could be inflicted only with the concurrence of the Director-General and his council. The fines collected were distributed among the schout and court, or given to the poor.
The court also had jurisdiction in Admiralty and Probate (proving last wills and testaments, and guardianship and management of the affairs of widows and orphans, through curators appointed for that purpose by the court). The court acted as an Orphans' Court, until an Indian massacre of the white settlers of Manhattan in 1655 left so many widows and orphans, that the burgomasters requested the Director General to created a separate court to be known as the Court of Orphan Masters that exercised many of the duties of the Surrogates' Court of today. It was at first composed of three masters, but this number was later reduced to two.
Minutes of the Court of Burgomasters and Schepens
All Minutes from O'Callaghan, E.B. & Fernow, B. The Records of New Amsterdam from 1653 to 1674 Anno Domini. Volumes I-VII (New York: the Knickerbocker Press, 1897)
Henry Wilson Scott. The Courts of the State of New York: Their History, Development and Jurisdiction (1909)