Hofstra Law Review Volume 38|Issue 1 Article 3 2009 Legal Turmoil in a Factious Colony: New York, 1664-1776 William E. Nelson Follow this and additional works at:http://scholarlycommons.law.hofstra.edu/hlr Part of theLaw Commons Recommended Citation Nelson, William E. (2009) "Legal Turmoil in a Factious Colony: New York, 1664-1776,"Hofstra Law Review: Vol. 38: Iss. 1, Article 3. Available at:http://scholarlycommons.law.hofstra.edu/hlr/vol38/iss1/3 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please [email protected]. Nelson: Legal Turmoil in a Factious Colony: New York, 1664-1776 LEGAL TURMOIL IN A FACTIOUS COLONY: NEW YORK, 1664-1776 William E. Nelson* I. INTRODUCTION When Colonel Richard Nicolls, the first English governor of New York, arrived in the fall of 1664, two quite different legal systems confronted him. On Manhattan Island and along the Hudson River, sophisticated courts modeled on those of the Netherlands were resolving disputes learnedly in accordance with Dutch customary law. On Long Island, Staten Island, and in Westchester, on the other hand, English courts were administering a rude, untechnical variant of the common law carried across the Long Island Sound from Puritan New England and practiced without the intercession of lawyers. The task for Nicolls was to control these Dutch and Puritan legal systems. The main argument of this Articlet is that he did not perform that task well. On the contrary, he set in motion constitutional dynamics that his successors over the next 110 years either could not or would not change. In the end, those dynamics left the British crown impotent in its New York colony. Great Britain's military failures in the American Revolution merely confirmed that longstanding impotence. This is not to claim that Nicolls was an incompetent administrator. The task he confronted was an extraordinarily difficult one, and the tools he had to address it were few and feeble. We need to understand the two * Weinfeld Professor of Law, New York University School of Law. This Article is based on a lecture delivered on November 2, 2009 at Hofstra University School of Law. The author is indebted to Professor Norman 1. Silber for arranging the lecture, to the members of the New York University Legal History Colloquium for their helpful criticisms, comments, and insights, and to the Filomen D'Agostino and Max E. Greenberg Faculty Research Fund of New York University School of Law for research support. t All documents cited in this Article are available on request from the Barbara and Maurice A. Deane Law Library at the Hofstra University School of Law. 69 Published by Scholarly Commons at Hofstra Law, 2009 1 Hofstra Law Review, Vol. 38, Iss. 1 [2009], Art. 3 70 HOFSTRA LAWREVIEW [Vol. 38:69 legal systems that were on the ground in 1664 to appreciate the difficulty of Nicolls's task, and Part I of the Article will turn to them. Part II will then consider how Nicolls and his immediate successors used their limited tools to deal with the difficulties they faced. Finally, Part III will examine how the dynamics Nicolls set in play persisted over the next eleven decades. II. DUTCH AND ENGLISH LAW IN 1664 Dutch and English Puritan law as they existed in New York in 1664 were thoroughly different-a difference that dated back to the founding of the two colonial cultures. When Southampton was settled on the east end of Long Island in 1638, its founders did not imagine that they were establishing an insignificant town or even a summer spa for wealthy residents of New Amsterdam. On the contrary, they thought they were establishing a sovereign polity, comparable to the Plymouth Colony, the New Haven Colony, or even, perhaps, the Massachusetts Bay Colony.' Like those other New England colonies, Southampton was to be governed by a General Court, with plenary power "[t]o make and repeal[] [1]aw[]s" and "[t]o hear[] and determine all causes ... civil[] or criminal."2 The settlers of New Amsterdam, in comparison, had no great illusions. They never dreamed that they were founding what would become the largest city in the world during the mid-twentieth century and what still may be the wealthiest. Theirs was merely a trading outpost of the Dutch West India Company under the company's total control.3 For its first twenty years, New Netherland's legal system boasted a single, highly centralized court, consisting of the Director-General and a council of between one and five men.4 To make sure that New Netherland functioned under Dutch law rather than as an independent sovereign entity, rulers in the Netherlands quickly sent trained professionals, among them at least two men who held the degree of 1. See William S. Pelletreau, Introduction to THE FIRST BOOK OF RECORDS OF THE TOWN OF SOUTHAMPTON WITH OTHER ANCIENT DOCUMENTS OF HISTORIC VALUE, at III-V (Henry P. Hedges et al. eds., Sag Harbor, N.Y., John H. Hunt 1874) [hereinafter I RECORDS OF SOUTHAMPTON]. 2. Act of Jan. 2, 1641, in I RECORDS OF SOUTHAMPTON, supra note 1, at 25-26. 3. RUSSELL SHORTO, THE ISLAND AT THE CENTER OF THE WORLD: THE EPIC STORY OF DUTCH MANHATTAN AND THE FORGOTTEN COLONY THAT SHAPED AMERICA 105 (2004). 4. For a discussion of New Netherland law on which Part I of this Article is based, see William E. Nelson, Dutch Law in New Netherland, in LAW AND JURISPRUDENCE IN DUTCH NEW YORK (Albert M. Rosenblatt & Julia C. Rosenblatt eds. forthcoming 2010) (manuscript at 4, on file with author). Further footnote references will be omitted, except to quoted material. http://scholarlycommons.law.hofstra.edu/hlr/vol38/iss1/3 2 Nelson: Legal Turmoil in a Factious Colony: New York, 1664-1776 2009] LEGAL TURMOIL INA FACTIOUS COLONY 71 doctor of laws from Dutch universities, to assist in governing the colony. Over time, the settlers of New Netherland demanded the establishment of local courts modeled after those at home, and Peter Stuyvesant, then the Director-General, yielded and set up such courts during the 165 Os.6 They were expected to act and did act "according to the law and customs of the fatherland,"7 as mediated by the legal professionals who had settled in the colony. New Netherlanders were willing to accept discretionary judgments by those professionals, as well as continued central control of the judicial system by the company's appointees, which Director-General Stuyvesant carefully preserved by hearing frequent appeals and, on occasion, even presiding in person over the local courts. Like their New England compatriots, the people of Southampton, in contrast, insisted that their magistrates exercise neither discretion nor central control, but that they govern "according to the [laws] now established, and to be established by General[] Courts hereafter."9 Initially, the law to be followed was set down in quasi-statutory form in "An Abstract of the Lawes of Judgement as given Moses ... that is of perpetual[] and uni[v]ersal[] Equity."o After a brief section on trespasses, the Abstract offered a long list of capital offenses, including blasphemy, idolatry, witchcraft, heresy, "scorneful[] neglect or contempt" of the Sabbath, treason, rebellion against the established government, murder, adultery, incest, and defiling an espoused woman." Rebellious children also were to be executed.12 Banishment was the punishment for those who reviled the established church, committed perjury, or behaved irreverently toward 5. Id. at 8. 6. Id. at 5-6. 7. Herpertsz v. de Hulter (Ct. Fort Orange & Beverwyck Feb. 10, 1654), in 1 MINUTES OF THE COURT OF FORT ORANGE AND BEVERWYCK 1652-1656, at 110 (A.J.F. van Laer ed. & trans., 1920) [hereinafter 1 MINUTES OF FORT ORANGE]; see also In re Gemackelyck (Ct. Fort Orange & Beverwyck Feb. 25, 1655), in 1 MINUTES OF FORT ORANGE, supra, at 202-03 (denying a brewer's petition to have confiscated beer barrels returned to him "according to the custom of the fatherland"); Nelson, supra note 4, at 6-8 (stating that the municipal courts of New Amsterdam "routinely applied local Dutch law and custom. ..'according to custom of the fatherland'). 8. See Nelson, supra note 4, at 4, 8-10. 9. Act of Jan. 2, 1641, in I RECORDS OF SOUTHAMPTON, supran ote 1, at 25. 10. 1 RECORDS OF SOUTHAMPTON, supran ote 1, at 18. 11. Id at 18-21. 12. Id. at 20. Published by Scholarly Commons at Hofstra Law, 2009 3 Hofstra Law Review, Vol. 38, Iss. 1 [2009], Art. 3 72 HOFSTRA LAW REVIEW [Vol. 38:69 magistrates.'3 Fines and corporal punishment were appropriate for wounding a freeman, profanity, drunkenness, rape, and fornication, although punishment of the last offense would be suspended if the couple married.14 This religiously driven code was never seriously enforced. Under pressure from more populous Indian tribes and Dutch claims of sovereignty, the tiny settlement of Southampton voted in 1644 to "enter into [c]ombination" with Connecticut,15 and after the merger, Connecticut law rather than the Abstract of Universal Equity may have governed Southampton. We cannot know for sure, for our only evidence lies in the town records, and they never say. But they do make it clear that the Abstract was never in force. With the exception of one prosecution for "carnal fI]ilthiness" between two servants, both of whom received corporal punishment,16 all of the criminal cases of the 1640s involved "unre[v]erent speeches" 7 toward magistrates or other "passionate expressions."'8 Indeed, the town meeting was obsessed with controlling speech. It ordered that no person except a magistrate "shall speak[] in an[y] business . . . [u]nless he be[] [u]nco[v]ered, dur[]ing the t[i]me of his speech" and then only when the matter he was addressing was "in hand" and prior business had been completed.19 The meeting also criminalized "pri[v]ate agitations by any particular persons"-that is, lobbying.20 In the interest of "set[t]ling .. .peace and [u]nity amongst the [i]nhabitants of this towne[,]" subsequent legislation imposed a fine on anyone who "[u]p[]raidingly reproach[ed] another ... or contentiously discourse[d] [about] former differences and griev[]ances tending to the disquiet of the towne,"21 while another law required every resident to act as an 13. Id. at 19-20. 14. Id. at 21-22. 15. Act of Mar. 7, 1644, in I RECORDS OF SOUTHAMPTON, supra note 1, at 31. 16. Town of Southampton v. Wood (Gen. Ct. Southampton Mar. 4, 1644), in 1 RECORDS OF SOUTHAMPTON, supra note 1, at 35. 17. Town of Southampton v. Halsey (Gen. Ct. Southampton Mar. 15, 1643), in I RECORDS OF SOUTHAMPTON, supra note 1, at 27. 18. Town of Southampton v. Cooper (Gen. Ct. Southampton Nov. 18, 1644), in 1 RECORDS OF SOUTHAMPTON, supra note 1, at 34. 19. Act of July 7, 1645, in I RECORDS OF SOUTHAMPTON, supra note 1, at 37. The term "uncovered" means "[n]ot wearing a hat." 18 THE OxFoRD ENGLISH DICTIONARY 932-33 (2d ed. 1989). 20. Act of July 7, 1645, in I RECORDS OF SOUTHAMPTON, supran ote 1, at 37. 21. Act of June 24, 1647, in 1 RECORDS OF SOUTHAMPTON, supra note 1, at 45. http://scholarlycommons.law.hofstra.edu/hlr/vol38/iss1/3 4 Nelson: Legal Turmoil in a Factious Colony: New York, 1664-1776 2009] LEGAL TURMOIL INA FACTIOUS COLONY 73 "assistant [u]nto the [m]arshall & constable."22 Maintaining peace and order amidst fragility appears to have been the main concern of early criminal law on Long Island.23 Dutch magistrates had much broader criminal and regulatory concerns. In addition to hearing the usual sorts of cases, such as assault, theft, and contempt of authority, they were deeply involved in regulating trade with Native Americans and controlling "sin, vice, corruption and misfortunes,"24 proceeding rather harshly against Jews, Baptists, Quakers, and Lutherans. Indeed, the Dutch magistrates took an oath "to maintain here the [r]eformed [r]eligion according to ... the Synod of Dordrecht and not to tolerate publicly any sect."25 Of course, there were also prosecutions of unmarried couples who engaged in "carnal conversation," where magistrates had plenary discretion to impose criminal punishments or require a couple to marry.26 In one case, in which a man admitted to intercourse but denied being the father of the woman's child, the court achieved a practical result, albeit one unwarranted by law, by requiring him to pay the woman a substantial amount of money "on account of a former acknowledgment ... that he did not reward" her "for sleeping with" him.27 22. Act of Mar. 5, 1646, in I RECORDS OF SOUTHAMPTON, supran ote 1, at 39. 23. There were occasional prosecutions for other offenses, such as breaking and entering a dwelling at night, theft, drunkenness, and missing church on Sunday. See, e.g., Town of Southampton v. Shaw (Gen. Ct. Southampton Sept. 1, 1663), in THE SECOND BOOK OF RECORDS OF THE TOWN OF SOUTHAMPTON LONG ISLAND, N.Y., WITH OTHER ANCIENT DOCUMENTS OF HISTORIC VALUE 31 (Henry P. Hedges et al. eds., Sag Harbor, N.Y., John H. Hunt 1877) [hereinafter 2 RECORDS OF SOUTHAMPTON] (drunkenness; fine of twenty shillings); Town of Southampton v. King (Sept. 1, 1663), in 2 RECORDS OF SOUTHAMPTON, supra, at 31 (missing church on Sunday; fine of five shillings per offense); Cooper v. Bennit (Gen. Ct. Southampton June 9, 1663), in 2 RECORDS OF SOUTHAMPTON, supra, at 30 (theft; payment of treble damages to victim); Town of Southampton v. Wood (Gen. Ct. Southampton Mar. 17, 1656), in I RECORDS OF SOUTHAMPTON, supra note 1, at 115 (breaking and entering; fine of five shillings). 24. Act of Feb. 25, 1654, in 5 NEW YORK HISTORICAL MANUSCRIPTS: DUTCH: COUNCIL MINUTES, 1652-1654, at 119 (Charles T. Gehring ed. & trans., 1983) [hereinafter COUNCIL MINUTES, 1652-1654]. 25. Oath of Fidelity (Ct. Fort Orange & Beverwyck Apr. 30, 1654), in 1 MINUTES OF FORT ORANGE, supra note 7, at 139 (case was mistakenly dated as May 30, 1654 in original records). 26. See, e.g., Schaets ex rel Consistory v. Ripsz (Ct. Fort Orange & Beverwyck Dec. 2, 1654), in 1 MINUTES OF FORT ORANGE, supra note 7, at 188; see also Wyngaart v. Verplanck (Ct. Burgomasters & Schepens May 10, 1661), in 3 THE RECORDS OF NEW AMSTERDAM FROM 1653 TO 1674 ANNo DOMINI: MINUTES OF THE COURT OF BURGOMASTERS AND SCHEPENS SEPT. 3, 1658, TO DEC. 30, 1661, INCLUSIVE, at 297 (Berthold Fernow ed., New York, N.Y., Knickerbocker Press 1897) (punishing seduction "with fair words and promises" resulting in plaintiff's pregnancy). 27. See Jacobsen v. Westercamp (Kingston Ordinary Ct. Feb. 6, 1663), microformed on Reel 47, slide 73 (on file with Queens County Library, Jamaica, N.Y.). Published by Scholarly Commons at Hofstra Law, 2009 5 Hofstra Law Review, Vol. 38, Iss. 1 [2009], Art. 3 74 HOFSTRA LAW REVIEW [Vol. 38:69 The frequently discretionary procedures used in criminal cases intruded deeply into subjects' lives. Dutch magistrates practiced torture "by customary methods that are lawful and based on law"28 in order to discover a defendant's "accomplices" as well as "the truth."29 They granted prosecutorial officials broad powers of search-"as often and repeatedly as it ... suit[ed] [the officer's] convenience or [as] circumstances . . .require[d]"00 and permitted them to "put" those accused of petty offenses "in irons."3' And, they passed judgment on various defenses offered to avoid criminal liability and, in the process, unavoidably exercised discretion when deciding whether to believe witnesses. The legal system of New Netherland interfered even more in the day-to-day lives of its residents through intensive economic regulation. Magistrates regulated the price and quality of nearly every commodity, even fixing at 120% the markup that importers could charge over the price at which they had purchased goods in Europe.32 Along with regulation of prices came regulation of wages and occupational performance and the licensing of individuals seeking to practice, often as monopolists, in many key occupations.33 Finally, magistrates regulated laborers and the conditions of labor, often unfavorably to the working classes.34 Regulation of trade was but one part of magistrates' regulatory activity. Another, equally important part was regulation of land use. Some subjects of concern, like fire prevention, were obvious. But land use regulation extended far beyond concerns of safety. New Netherland was eager to develop its cities and towns and did not want "large and 28. In re van Tienhoven (Ct. New Amsterdam Apr. 28 1655), in COUNCIL MINUTES 1655- 1656, at 39 (Charles T. Gehring ed. & trans., 1995) (requesting the use of torture to extract a confession from Hans Breyer, a suspected thief). Breyer ultimately was convicted and sentenced to death. See Schout v. Breyer (Ct. New Amsterdam May 14, 1655), in COUNCIL MINUTES 1655-1656, supra,a t 44-49. 29. In re Examination of Willemsz (Ct. New Amsterdam Aug. 24, 1654), in COUNCIL MINUTES, 1652-1654, supra note 24, at 170; cf In re Interrogation of Bordingh (Ct. New Amsterdam Dec. 9, 1653), in COUNCIL MINUTES, 1652-1654, supra note 24, at 90 (imprisoning defendant until he states from whom he obtained contraband goods). 30. Act of Nov. 25,1653, in I MINUTES OF FORT ORANGE, supran ote 7, at 80-81. 31. Jansz v. Laecken (Ct. New Amsterdam Sept. 14, 1654), in COUNCIL MINUTES, 1652- 1654, supra note 24, at 183 (gambling on Sunday). 32. Order Regulating Imported Goods (Ct. New Amsterdam Nov. 19, 1653), in COUNCIL MINUTES, 1652-1654, supra note 24, at 78-79; see also Nelson, supra note 4, at 46 n.212. 33. Nelson, supra note 4, at 47. 34. Id. at 48-50. http://scholarlycommons.law.hofstra.edu/hlr/vol38/iss1/3 6 Nelson: Legal Turmoil in a Factious Colony: New York, 1664-1776 2009] LEGAL TURMOIL INA FACTIOUS COLONY 75 spacious lots [held] for profit or pleasure" solely.3' Hence it required that "all ... lots ... be as soon as possible built on" and imposed a special tax on those kept vacant.36 At the same time, those planning to build were not free to do whatever they pleased, but were required to act for "the public good, ornament, and welfare of th[e] city."37 Thus, anyone seeking to build a new structure or an extension to an existing one first had to notify the surveyors of the city and obtain approval of his or her plans. In addition to regulating trade and land use, Dutch magistrates tightly controlled family life, especially marriage. The records contain cases, for example, in which a husband sued his wife "demand[ing] to know ... why she [would] not live with him."38 The marriage cases are particularly important because they display the mindset that gave the magistrates of New Netherland extraordinary power. They did not arise, as common-law cases do, because a plaintiff sought some specified form of relief, such as money damages, for which established legal standards had to be met. Instead, they arose because someone had a problem, such as a runaway spouse, for which he or she sought the magistrates' help. Listening to very human stories and uncabined by inflexible rules of procedure or evidence, the magistrates tried to fashion practical, human solutions, not to administer fixed remedies in favor of those who met preexisting, fixed standards. To the extent they succeeded in imposing their solutions, Dutch magistrates exercised a level of power and flexibility that English Puritan judges totally lacked. Indeed, the English judges prior to 1664 seem to have possessed virtually no regulatory jurisdiction whatsoever. Like every other court, that of Southampton administered estateS40 and appointed guardians for 35. Act of Jan. 17, 1658, in 2 THE RECORDS OF NEW AMSTERDAM FROM 1653 TO 1674 ANNo DOMINI: MINUTES OF THE COURT OF BURGOMASTERS AND SCHEPENS 1656 To AUG. 27, 1658, INCLUSIVE, at 302 (Berthold Fernow ed., New York, N.Y., Knickerbocker Press 1897). 36. Id. 37. In re Stevensen (Ct. Burgomasters & Schepens Mar. 15, 1655), in 1 THE RECORDS OF NEW AMSTERDAM FROM 1653 TO 1674 ANNo DOMINI: MINUTES OF THE COURT OF BURGOMASTERS AND SCHEPENS 1653-1655, at 300 (Berthold Femow ed., New York, N.Y., Knickerbocker Press 1897) [hereinafter I THE RECORDS OF NEW AMSTERDAM]; cf New Amsterdam, N.Y., Ordinance Prohibiting Goats from Running Free in New Amsterdam (Oct. 26, 1655), in COUNCIL MINUTES 1655-1656, supra note 28, at 127-28 (regulating where goats may be herded and pastured in order to prevent destruction of land). 38. Claessen v. Dirricksz (Ct. New Amsterdam Sept. 9, 1652), in COUNCIL MINUTES, 1652- 1654, supra note 24, at 35. 39. Id. 40. See, e.g., In re Appointment of Marvins (Gen. Ct. Southampton July 23, 1650), in I RECORDS OF SOUTHAMPTON, supran ote 1, at 64 (granting letters of administration). Published by Scholarly Commons at Hofstra Law, 2009 7 Hofstra Law Review, Vol. 38, Iss. 1 [2009], Art. 3 76 HOFSTRA LAW REVIEW [Vol. 38:69 minors.41 Of course, magistrates prohibited the sale of guns to Native Americans42 and controlled the settlement of newcomers in the town.43 Later, they regulated the price of bread, corn, and cloth sold to Indians," but left merchants free to sell to any Englishman at "such price [as] he[] can afford."45 The only other noteworthy regulations in Southampton occurred when the General Court set the fees of the town miller,46 required parents to whip children who stole fruit,47 and gave a particular individual a monopoly over the sale of liquor, in an effort to keep it out of the hands of Indians and to preserve "the boun[d]s of moderation & sobriety" within the town. Records of three other English courts prior to 1664-Huntington, Newtown, and Westchester-show that they, like their counterpart in Southampton, exercised limited criminal jurisdiction.49 Their main concerns were maintenance of authority, punishment of theft, and preservation of sexual morality. Thus, there were prosecutions for contempt of authority,so theft,"' and receiving stolen goods,52 while a woman was fined for carrying herself lasciviously with a man despite a court order to avoid his company,3 and a different man and his wife were fined and banished because he had exposed himself, revealed his 41. See, e.g., In re Steevens (Gen. Ct. Southampton Mar. 14, 1663), in 2 RECORDS OF SOUTHAMPTON, supra note 23, at 40 (assigning a guardian for a sixteen-year-old orphan). 42. See Act of Apr. 6, 1641, in 1 RECORDS OF SOUTHAMPTON, supra note 1, at 22. 43. See Act of Jan. 25, 1655, in I RECORDS OF SOUTHAMPTON, supra note 1, at 111-12. 44. See Act of Mar. 3, 1651, in I RECORDS OF SOUTHAMPTON, supra note 1, at 77-78. 45. See Act of Apr. 25, 1653, in I RECORDS OF SOUTHAMPTON, supra note 1, at 90. 46. See Act of Mar. 8, 1649, in I RECORDS OF SOUTHAMPTON, supra note 1, at 59. 47. See Act of Aug. 13, 1651, in I RECORDS OF SOUTHAMPTON, supra note 1, at 74. 48. See Act of Jan. 25, 1655, in I RECORDS OF SOUTHAMPTON, supra note 1, at 111. 49. JULIUS GOEBEL, JR. & T. RAYMOND NAUGHTON, LAW ENFORCEMENT IN COLONIAL NEW YORK: A STUDY INC RIMINAL PROCEDURE (1664-1776), at 64, 69 (1944). 50. See Town of Newtown v. Robards (Town Ct. Newtown Dec. 5, 1659), in TRANSCRIPTIONS OF EARLY TOWN RECORDS OF NEW YORK: MINUTES OF THE TOWN COURTS OF NEWTOWN 1656-1690, at 8 (N.Y. City Historical Records Survey Project ed., 1940) [hereinafter MINUTES OF THE TOWN COURTS OF NEWTOWN]; Town of Easttowne v. Benfeild (Westchester Ct. Sess. Feb. 1, 1657), in 1 THE MINUTES OF THE COURT OF SESSIONS (1657-1696) WESTCHESTER COUNTY NEW YORK I (Dixon Ryan Fox ed., 1924) [hereinafter MINUTES OF THE WESTCHESTER COURT OF SESSIONS]. 51. See Town of Newtown v. Forman (Town Ct. Newtown Apr. 5, 1660), in MINUTES OF THE TOWN COURTS OF NEWTOWN, supra note 50, at 16. 52. See Town of Huntington v. Sutten (Town Ct. Huntington Apr. 13, 1660), in I HUNTINGTON TOWN RECORDS, INCLUDING BABYLON, LONG ISLAND, N.Y. 1653-1688, at 24 (Charles R. Street ed., Huntington, N.Y., Babylon, N.Y. 1887) [hereinafter HUNTINGTON TOWN RECORDS]. 53. See Town of Easttowne v. Timer (Westchester Ct. Sess. Jan. 23, 1658), in MINUTES OF THE WESTCHESTER COURT OF SESSIONS, supra note 50, at 8. http://scholarlycommons.law.hofstra.edu/hlr/vol38/iss1/3 8 Nelson: Legal Turmoil in a Factious Colony: New York, 1664-1776 2009] LEGAL TURMOIL INA FACTIOUS COLONY 77 wife's infirmities, and offered money for sex to other men's wives.54 No significant economic regulatory activity whatsoever occurred in the three towns. Prior to 1664, however, whether in New Netherland or in the English towns, the bulk of litigation was not criminal, but civil. Perhaps to distinguish themselves from the Dutch, the people of the English towns turned to the common law to resolve civil disputes. But they applied the common law in a "rude, untechnical" fashion,55 as one would' expect in towns that had no lawyers and in which, the town records suggest, most residents were at best only semi-literate. Accordingly, the records of Southampton are replete with actions of case,56 actions of debt,57 actions of "slander and defamation,"58 actions of trespass,59 and actions of "bloodshed & battery."60 There was also "an action for equity."6 Sometimes the writs were used properly, as in an action of the case for "slanderous words,"62 an action of the case on a book account,63 and an action of trespass against a town official for seizing goods in an effort to collect an allegedly unlawful tax.64 But often they were used incorrectly, as in an action of case "for the 54. See Town of Easttowne v. Wright (Westchester Ct. Sess. May 6, 1657), in MINUTES OF THE WESTCHESTER COURT OF SESSIONS, supra note 50, at 6. 55. Paul Samuel Reinsch, English Common Law in the Early American Colonies, 2 ECON., POL. SCI., & HIST. SERIES 393, 400 (1898), reprinted in BULLETIN OF THE UNIVERSITY OF WISCONSIN No. 31, at 8 (Madison, Univ. of Wisconsin 1899). 1 found Reinsch's characterization inapt for the early Chesapeake and New England colonies, but it is accurate for the early settlements in Long Island, Staten Island, and Westchester. 56. See, e.g., Rainer v. Phillips (Gen. Ct. Southampton Dec. 1, 1663), in 2 RECORDS OF SOUTHAMPTON, supra note 23, at 32. 57. See, e.g., Barnes v. Osbume (Gen. Ct. Southampton Nov. 8, 1650), in I RECORDS OF SOUTHAMPTON, supran ote 1, at 63. 58. See, e.g., Meggs v. Smith (Gen. Ct. Souhampton Dec. 17, 1651), in I RECORDS OF SOUTHAMPTON, supra note 1, at 52. 59. See, e.g., Dayton v. Stanborough (Gen. Ct. Southampton Apr. I1, 1650), in 1 RECORDS OF SOUTHAMPTON, supra note 1, at 61. 60. See, e.g., Till v. Herrick (Gen. Ct. Southampton Sept. 28, 1653), in I RECORDS OF SOUTHAMPTON, supra note 1, at 93. 61. Gosmer v. Cooper (Gen. Ct. Southampton Dec. 2, 1656), in 1 RECORDS OF SOUTHAMPTON, supran ote 1, at 113. 62. Meggs v. Miller (Gen. Ct. Southampton Oct. 5, 1653), in 1 RECORDS OF SOUTHAMPTON, supra note 1, at 108. 63. See, e.g., Mills v. Thorpe (Gen. Ct. Southampton Mar. 3, 1651), in I RECORDS OF SOUTHAMPTON, supra note 1, at 76. 64. See, e.g., Halsey v. Cooper (Gen. Ct. Southampton Mar. 17, 1656), in I RECORDS OF SOUTHAMPTON, supran ote 1, at 113. Published by Scholarly Commons at Hofstra Law, 2009 9