DUTCH INFLUENCES ON LAW AND GOVERNANCE IN NEW YORK. (2024)

When we talk about Dutch influences on New York we might begin witha threshold question: What brought the Dutch here and how did thosebeginnings transform a wilderness into the greatest commercial center inthe world? It began with spices and beaver skins. This is not about whatkind of seasoning goes into a great soup, or about European wearingapparel. But spices and beaver hats are a good starting point when weconsider how and why settlers came to New York--or more accurately--NewNetherland and New Amsterdam. (1) They came, about four hundred yearsago, and it was the Dutch who brought European culture here. (2) I wouldlike to spend some time on these origins and their influence upon us inlaw and culture.

In the 17th century, several European powers, among them England,Spain, and the Netherlands, were competing for commercial markets,including the far-east. (3) From New York's perspective, thepivotal event was Henry Hudson's voyage, when he sailed fromHolland on the Halve Maen, and eventually encountered the river that nowbears his name. (4)

Hudson did not plan to come here. (5) He was hired by the DutchEast India Company to outpace the competition and find a shortcut fromEurope to the far-east. (6) This would enable the company'sinvestors to tap into the lucrative treasures of the orient, includingexotic condiments like pepper, clove, nutmeg, and cinnamon. (7)

On September 2, 1609, he sailed into what would be New York harborand proceeded up what is now called the Hudson River, believing it ledto Asia. (8) Instead, he got as far as Albany and turned back. (9)Although he is sometimes referred to, inaptly, as Hendrick Hudson, hewas not Dutch: he was English. (10) No one, however can be sure what helooked like. One of his principal biographers, Thomas Janvier, tells usthat "[n]o portrait of Hudson is known to be in existence. What haspassed with the uncritical for his portrait--a dapper-looking manwearing a ruffed collar--frequently has been, and continues to be,reproduced. Who that man was is unknown. That he was not Hudson iscertain." (11)

After what we call the voyage of 1609, Hudson made anothervoyage--his fourth and final--sailing off on April 17, 1610, again insearch of a short route to Asia. (12) Did he ever find it? The shortanswer is no. The slightly longer answer is fascinating.

After a winter of severe privation in a region known today asHudson Bay/James Bay, Canada, his crew mutinied. (13) According to thetestimony of an eye witness, crew members abandoned Hudson on June 22,1611, setting him adrift in a small shallop with minimal provisions,along with his young son, John, and several others who were either loyalto Hudson or too sick to be of any use to the mutineers. (14) Whatbecame of the conspirators? Eight returned to England and were broughtbefore the Trinity House Masters, who promptly concluded that theyshould be hanged. (15) But they remained at large for several yearsafter six of them were indicted, not for mutiny, but for leaving Hudsonand the others to die. (16)

Historians did not know what became of the mutineers until ThomasL. Powys, in the 1927 preface to his biography of Hudson, (17) told ofhow he had acquired additional records, including the "lostverdict" of 1618, in which the Admiralty Court had fully acquittedall of the mutineers. (18) Why did the government permit the mutineersto remain at large for several years and ultimately spare them?Researchers have suggested that, in the eyes of the English authorities,the survivors, "because of their knowledge of navigation in HudsonStrait," "were apparently worth more alive than dead."(19) "There were trading routes and riches [yet] to be found."(20) As another researcher put it, "[t]he guilt or innocence of themen seemed less important than the claim that they [had] discovered theNorthwest Passage" to the far-east. (21)

So, it was still all about spices....

As far as the spice trade was concerned, Hudson's 1609 voyagewas a failure, and that would be the end of the story. But the Dutchsoon capitalized on an existing trading network along the Hudson andMohawk rivers, particularly the beaver skin trade with the NativeAmericans. (22)

"By the second decade of the [17th] century, Europe[an] demandfor animal skins and furs was insatiable." (23) In that trade, andin other forms of commerce, the Dutch settled what is now New York. (24)

And so, in our infancy, we were Dutch until 1664, when the Englishtook over, later ratifying their de facto assumption of sovereignty inthe Treaty of Westminster in 1674. (25)

About a century later our nation was born, so to speak, on July 4,1776. (26) As New Yorkers and as Americans, we tend to think ofourselves as cultural and political descendants of the English. (27)After all, we were an English colony for more than a century: we sawEngland as the "mother country" and speak English as our"mother tongue." (28) More to the point, within a year afterthe American Revolution, New York produced its first Constitution, inwhich we declared ourselves generally to be adherents of the Englishcommon law (subject to future revision and rejecting English religiousestablishment). (29)

It takes nothing away from our colony's English roots toremember that while we were subjects of the English crown for over ahundred years, we had an earlier identity, in which for almost half acentury the colony was New Netherland, Manhattan was New Amsterdam,Albany was Beverwijk (or beaver district), and just up the road, theDutch in 1624 built Fort Orange. (30) Brooklyn is a Dutch word, as isGravesend, Flushing, Red Hook, the Bowery, Staten Island, Coney Island,and Harlem. (31) Not to mention cookies, coleslaw, and waffles, all ofwhich, for many New Yorkers are just hunky-dory--another Dutch-originterm. (32)

Psychologists tell us that infancies are formative, (33) and wemight say the same for political development. New Netherland'sneighbors to the north, in Massachusetts, and to the south, in Virginia,were English. (34) The three sibling colonies grew up side by side, butNew Netherlanders were different from the English colonists inMassachusetts and Virginia. (35) Settlers came to Massachusettsprincipally for religious freedom, as Puritans set up what might fairlybe called a theocracy. (36) In Virginia, settlers arrived and plantedtobacco for export. (37)

New Netherland was unique. Most settlers arrived not primarily forreligious reasons, or to grow crops, although some did. (38) Most cameunder the aegis of a Dutch trading company. (39) From our first breathswe were members of a commercial enterprise that shaped our earliest lawsand our civilization. (40) Petrus Stuyvesant, New Netherland's bestknown Governor/Director was essentially an employee of the Dutch WestIndia Company, a for-profit enterprise. (41) It is no coincidence thatthis small outpost in the middle Atlantic, sandwiched between NewEngland and the South, and designed to do business in the New World,grew to become the greatest commercial center on earth.

Today we see the Netherlands as a quaint country, known to manyAmericans as a charming place to tour during tulip season; a good spotto snap pictures of windmills and canals and bicycles. In the late 16thcentury, however, the Netherlands was emerging a military and worldpower, vying with England for colonial and international commercialpower. (42)

I. THE INFLUENCE OF THE DUTCH REPUBLIC: THE UNION OF UTRECHT, 1579

A mere forty years before Henry Hudson arrived here, the Dutch hadbeen ruled by King Philip II of Spain. (43) The provinces of theNetherlands passed into the possession of the Hapsburg monarchy in 1477as part of the Holy Roman Empire. (44) That is a long way from thefounding of New Netherland. (45) Seven Northern provinces of theNetherlands, including Holland, revolted against Spanish rule and formedthe Union of Utrecht in 1579 as the founding document of the DutchRepublic. (46) This remarkable document is an ancestor of our own ideasof political governance. (47) As one scholar pointed out, the foundingdocument of the Dutch Republic "divided policymaking authoritybetween a representative assembly and an independent executive."(48) This, more than a century and a half before Montesquieu wrote aboutseparation of power. (49) Under the Treaty of Utrecht (1579), "newtaxes and declarations of war and peace would require the unanimousconsent of the [Dutch] provinces." (50)

Consider the words of John Adams, writing from Holland on April 19,1781, describing America's debt to the Netherlands and thesimilarity of the American Republic to the earlier Dutch model:

The first planters of the four northern States found in [theNetherlands] an asylum from persecution... a grateful remembrance ofthat protection and... religious liberty they found [in theNetherlands], having sought them in vain in England.The first inhabitants of two other States, New York and New Jersey,were immediate emigrants from [the Netherlands], and have transmittedtheir religion, language, customs, manners, and character... [and]whose history, and the great characters it exhibits... have beenparticularly studied, admired, and imitated in every State.[T]here are no two nations, whose worship, doctrine, and discipline aremore alike, than those of the [United States and the Netherlands].In... the freedom of inquiry, the right of private judgment, and theliberty of conscience... the two nations resemble each other more thanany others.The originals of the two republics are so much alike, that the historyof one seems but a transcript from that of the other. (51)

Another scholar, James R. Tanis, considers the Union of Utrecht"a symbol to many Americans, first of unity, and then of unity andliberty." (52)

II. THE INFLUENCE OF DUTCH FREEDOM OF RELIGION

Article 13 of the Netherlands' Union of Utrecht provides that"each person shall remain free [especially] in his religion andthat no one shall be investigated or persecuted because of hisreligion." (53) This language applied only to private beliefs andnot public worship, and so it did not approach our own interpretation ofreligious freedom. (54) It is, however, a milestone for the Dutch over200 years before we promulgated our religious freedom guarantees in theBill of Rights of 1791. (55) Indeed, when the religious minorities inNew Netherland sought religious tolerance, they appealed to the Dutchunder their Constitution, invoking the language that prohibitedreligious persecution. (56)

Therefore, when we speak of our Dutch legacy, it is right to bearin mind that we were settled by people who had concepts of religioustolerance that were, to say the least, advanced. (57) James Madisonrecognized these early Dutch expressions of religious tolerance, notingthat:

Until Holland ventured on the experiment of combining a liberaltoleration with the establishment of a particular creed, it was takenfor granted, that an exclusive [and] intolerant establishment wasessential, and notwithstanding the light thrown on the subject by thatexperiment, the prevailing opinion in Europe, England not excepted, hasbeen that Religion could not be preserved without the support ofGov[ernment] nor Gov[ernment] be supported with an established religionthat there must be at least an alliance of some sort between them. (58)

This "Dutch Experiment" was a step along the path towardthe Constitution's First Amendment--the freedom of religion. (59)In 1822, in arguing against religious establishment and in favor ofreligious toleration, Madison emphasized the Dutch connection:

It was the belief of all sects at one time that the establishment ofReligion by law, was right [and] necessary; that the true religionought to be established in exclusion of every other; And that the onlyquestion to be decided was which was the true religion. The example ofHolland proved that a toleration of sects, dissenting from theestablished sect, was safe & even useful. (60)

Although the Netherlands had a tradition of religious freedom,there was friction in the colony of New Netherland; particularly betweenPetrus Stuyvesant and certain religious groups, most notably Quakers,Lutherans, and Jews. (61) There were few Catholics in New Netherland,(62) and ironically, after the English takeover, the English crownexpanded religious liberty to all but Catholics. (63) On January 31,1689 the Crown instructed Governor Sloughter: "And you are topermit a liberty of Conscience to all Persons (except Papists) so theybe contented with a quiet and Peaceable enjoyment of it, not givingoffence or scandal to the Government." (64)

III. THE DECLARATIONS OF INDEPENENCE: THE NETHERLANDS (1581) ANDTHE UNITED STATES (1776)

In 1581, two years after they created their republic, the Dutchprovinces proclaimed independence from Spain, in an Act of Abjuration,or Plakkaat van Verlatinge. (65) It is also known as the DutchDeclaration of the Rights of Man: "a pioneer utterance [that] setthe model for [later] declarations" of independence including ourown. (66) Reading the Dutch Declaration of Independence we find languageso similar to ours that we would not be out of line in imagining thatThomas Jefferson had a copy of the Plakkaat at his elbow. (67) Onecommentator has examined the two documents, concluding that thestructure and argument of the two state papers are almost identical.(68)

Both contain a long list of grievances about the monarch oftyranny. (69) Both describe the repeated, unsuccessful attempts by themonarch's subjects to gain redress by peaceable, civil means. (70)Most importantly, both see the only recourse as revolution andindependence. (71)

The Dutch opening statement reads: "[W]hereas God did notcreate the people slaves to their prince, to obey his commands, whetherright or wrong, but rather the prince for the sake of the subjects(without which he could be no prince).... And when he does not behavethus, but, on the contrary, oppresses them, seeking opportunities toinfringe their ancient opportunities and privileges,... [T]hen he is nolonger a prince, but a tyrant." (72) And further on, in justifyingrevolt, "this is what the law of nature dictates for the defense ofliberty, which we ought to transmit to posterity, even at the hazard ofour lives." (73)

Compare that with Jefferson's phrasing, when he writes of ourentitlements under the "law of nature," (74) and that to gainliberty we pledge "our Lives, our Fortunes, and our sacredHonor." (75)

The Dutch, in their pioneering document, provided a political modelfrom which we took a major step forward. Jefferson abandoned the Dutchnotion of a contract between the monarch and the representatives of thepeople, replacing it with the concept of full autonomy of the people.(76)

A. After Henry Hudson

Following Hudson's explorations along the River region, thencalled the Mauritius River, others, including Adriaen Block, came toexplore trading possibilities. (77) In 1614, Hendrick Christiaensenbuilt Fort Nassau, a trading house with military defense, on CastleIsland below Albany. (78) That year, the Dutch government passed anordinance authorizing further "discovery" of the region (79)and named the middle Atlantic region "New Netherland." (80)The English were displeased and in 1620 challenged the Dutch forsponsoring settlements that the English claimed were within thejurisdiction of English patents. (81) After the explorers came thesettlers, arriving under the wing of the Dutch West India Company, towhich the Dutch States General in 1621 had granted a monopoly thatincluded all the coasts of America. (82) The charter allowed the WIC toappoint officials and, in effect, set up a government in New Netherland.(83) An early group of settlers arrived on Governor's Island in1624, in the service of the WIC, carrying with them a set ofinstructions: (84) the founding documents of our forebears here. Thewriting helped shape the character of New York.

It begins with introductory language reminding the settlers thatthey are in the service of the WIC, and that they may:

[P]ractice no other form of divine worship than that of the Reformedreligion as [presently here] in this country and thus by theirChristian life and conduct seek to draw the Indians and other blindpeople to the knowledge of God and His Word, without howeverpersecuting any one on account of his faith, but leaving to every onethe freedom of his conscience. (85)

Blasphemy, however was not to be tolerated. (86)

For its time, this was a remarkable edict, considering thatelsewhere the norm was forced beliefs, murderous persecution, orexpulsion. (87) From Patria, the orders were to practice the faith astaught, but not to impose it on anyone else. It is fine to gainreligious followers, but only by example, not by force. (88)

As historian James Truslow Adams wrote: "[a]t that time,Holland was, in... all respects, far ahead of England intellectually. Inthe matter of religious toleration she was immeasurably in advance ofthe rest of Europe" (89)--and Massachusetts. Indeed, in 1659-1661,four Quakers, including Mary Dyer, were hanged in Massachusetts fortheir religious beliefs. (90) As advanced as it was, it would be amistake to believe that the WIC instructions approached today'sunderstanding of religious freedom, or that it was transported easily toNew Netherland. As one writer points out, the "call for toleration[came from the WIC] officials in Amsterdam" but "[t]he historyof religion in New Netherland is one of constant conflict between"them and the local leadership in New Netherland. (91) "[W]ith a fewexceptions, the leadership on the scene in New Amsterdam resisted andignored their superiors in Amsterdam." (92) Lutherans, Jews, andQuakers experienced particular difficulties. (93) Stuyvesant referred toQuakers as a "new unheard of abominable heresy," as to whichPatria told Stuyvesant to shut his eyes. (94) His actions in dealingwith Quakers led to the Flushing Remonstrance. (95)

Patria also recognized that the settlers would be entering theworld of Native Americans, with whom they would do commerce, and musttherefore "take []special care, whether in trading or in othermatters... to fulfill their promises to the Indians or other neighborsand not to give them any offense without cause as regards their persons,wives... on pain of being rigorously punished therefor." (96)

As if to emphasize the point, the WIC ordered Willem Verhulst, thedirector in charge of the settlers, to:

[S]ee that no one do the Indians any harm or violence, deceive, mock,or contemn them in any way, but that in addition to good treatment theybe shown honesty, faithfulness, and sincerity in all contracts,dealings, and intercourse, without being deceived by shortage ofmeasure, weight, or number, and that throughout friendly relations withthem be maintained. (97)

In 1626, Peter Minuit replaced Verhulst as Director of NewNetherland. (98) That year "the Dutch bought the island ofManhattan from the Indians for the sum of sixty guilders, presumably inthe form of some trading commodities." (99) There is a debate overwho on behalf of the Dutch made the purchase. (100)

Did the Dutch pull one over on the Indians--as junior high schooltexts might suggest? Historian Paul Otto maintains that the seeminglyone-sided nature of the transaction between the Munsee Indians and theDutch has been grossly exaggerated and misunderstood. (101) To beginwith, there is no true deed, no date of transfer, and no specificationas to the exact identity of the parties to the exchange. (102) Moreimportantly, however, Otto asserts that the Munsees did not recognizethe concept of land ownership or permanent alienation of parcels. (103)When Indians "sold" land, they were contemplating jointoccupancy and peaceable relations. (104)

This is borne out by cotemporary writings. Adriaen van der Donck,based on his interactions with the Native Americans in New Netherlandwrote: "wind, stream, bush, field, sea, beach, and riverside areopen and free to everyone of every nation with which the Indians are notembroiled in open conflict." (105)

1. Slavery

The 1620's brought us more than Manhattan Island. Almost fromthe inception, America has been beleaguered by the institution ofslavery. (106) Given the three-fifths compromise, the abolitionistmovement, and the Civil War, Americans tend to associate slaveryexclusively with the South. The first slaves arrived in Virginia in theearly 1620's. (107)

In a draft of the Declaration of Independence, Jefferson wrote thatEngland's King George III has: "waged cruel war against humannature itself, violating its most sacred rights to life and liberty inthe persons of a distant people who never offended him, captivating andcarrying them into slavery in another hemisphere, or to incur miserabledeath in their transportation thither." (108)

But it would be wrong to ignore the role of New Netherlands. Slavesarrived there in the mid-1620's. (109) We have no census figures,so we do not know for certain how many people of African origin made upNew Netherland. Most writers report that the first slaves, eleven men,arrived in 1625 or 1626, with three women arriving in 1628. (110)

In 1628 New Amsterdam's first minister, Jonas Michaelius,spoke derisively of local slave women. (111)

In Article XXX of the WIC Charter of Freedoms and Exemptions of1629, officials of the Company were charged with supplying the colonists"as many Blacks as they conveniently can, on the conditionshereafter to be made, in such manner, however, that they shall not bebound to do it for a longer time than they shall think proper,"(112) thus documenting the time frame, if not the specific dates for theorigins of the colony's slavery.

According to Graham Russell Hodges, in 1630, there were 300Europeans and a few blacks, the latter being the "corelaborers." (113) Hodges reports that in 1635, five black men wentto the Netherlands to petition for pay equal to that of whites for thebuilding of Fort Amsterdam. (114) In 1639, the WIC paid them. (115)

Authors vary as to how much slave labor went into building NewAmsterdam. (116) Russell Shorto states that during the early NewNetherland period there were only about a dozen slaves and he disputesthe account that slaves were instrumental in building the infrastructureof New Amsterdam. (117)

At first, slaves came from the Caribbean: imported from Brazil,sold by pirates, or from captured Spanish or Portuguese ships. (118) OnJanuary 20, 1648, after Brazil fell to the Portuguese, the NewNetherland Director and Council passed a resolution opening trade toBrazil and Angola and authorizing the importation of slaves into NewNetherland. (119)

In April of that year, the Directors at Amsterdam agreed that whenships have completed their trade in Angola, they "may carry Negroesto your place to be employed in the cultivation of the soil." (120)The West India Company began to import slaves directly from Africa asauthorized by an August 6, 1655 ordinance. (121)

The first shipment of approximately 300 arrived that year on theWitte Paert, and by around 1660, New Amsterdam had become a major portfor the slave trade (122) in contrast to the presence of slaves there.(123)

By 1700, New York City had the largest African-American populationof any North American City and a ratio similar to that of Maryland andVirginia. (124)

2. Women

Hugo Grotius (1583-1645), a Dutch jurist, whose name is associatedwith lofty concepts of natural law, and whose texts were relied on byNew Netherland magistrates, asserted that: "the power of husbandsover their wives, which is almost peculiar to Holland," (125) andthat husbands exercise a very great control over his wife'sproperty. (126) Most historians agree, however, that women in NewNetherland had greater political and economic rights than in the Englishera that followed. (127)

In contrast to English primogeniture, for example, Dutch legalcustoms relating to inheritance prohibited parents, in the absence ofgood cause, from favoring one child over another regardless of gender.(128) Also, in cases of intestacy, widows received at least half of themarital estate, irrespective of her initial contribution. (129)

Records also show that testators in the Netherlands and NewNetherland left most of the marital estate to the surviving spouse,based on the Dutch custom of boedelhouderschap by which the survivorretains the estate. (130) Contrastingly, in the English period,testator-husbands generally reduced the widow's share. (131)

Moreover, married couples in New Netherland typically executedjoint wills; a practice rejected under English common law. (132) Therewere also fewer instances in which husbands named their wives as soleexecutors. (133) Also in contrast to English practice, the Dutch, and inturn, New Netherland couples, shared equally in each other'sprofits and losses, contemplating a "community of goods"(gemeeenschap van goederen). (134)

Further, women played a prominent role in the Leisler Rebellion of1689. (135) Documents paint a picture of New Netherland women differentfrom the portrayal of the Dutch housewife, spending her life cleaningand polishing while wearing a "wing-tipped lace cap and woodenshoes." (136)

Records show women to be undocile and conspicuous in a NewNetherland society governed by Dutch Roman Law that: "representedthem as individuals, granting women the same rights and privileges astheir male counterparts." (137) New Netherland women were at thecenter of the family's religious and spiritual lives, and even inthe financial support of the church. (138)

A wife had a vested interested in the proper handling of herhusband's business, being made a joint contributor in the marriage,and thus equally responsible for its debts. (139) Biemer reports thatunlike the 17th century English woman, the 17th century Dutch woman hada legal history rooted in Roman law, and that under the Roman-Dutch law,women in both the Netherlands and New Netherland were permitted to keep"her own surname when married, own real and personal property, ownand operate her own business without her husband's permission orco-signature, engage in trade on her own, and sue and be sued incourt." (140)

Although it would be wrong to deny that Holland was patriarchal,visitors there were shocked to see women unescorted, running businesses,expressing opinions, selecting mates, and retaining their maiden namesupon marriage. (141)

While a New England man would seek a wife of "incomparablemeekness of spirit," a New Netherland man sought a "housefriend." (142) As the Dutch song goes, Het Klein HollandsGoud-Vinkje,

A house-guardian and his house friendMay be likenedUnto a King and QueenFor their home is like a kingdomAnd the children their happy subjects (143)

It would, however, be an exaggeration to say that by today'smeasure, women's rights flourished in New Netherland, and suddenlyreversed course when the English took over in 1664. (144) When theEnglish assumed control they were, by and large, politically astuteenough to refrain from imposing provocative and abrupt changes.

The laws and legal culture, however gradually changed under Englishrule, "result[ing] in a loss of economic energy in New Yorkwomen." (145) After the English assumed sovereignty of New York, awoman could no longer institute legal action, but instead needed a maleguardian. (146)

After twenty years of English rule in New York, and by an act ofthe Assembly of 1684, a woman could not buy land or conduct business inher own name. (147)

We are left with the impression that while the written law wassomewhat better for women in New Netherland as compared with New York;(148) it was the mores of a frontier society and its shared tasks thatproduced an appreciably more equitable partnership in New Netherlandthan elsewhere.

3. Governance

New Netherland's jurisprudence was based on the law of theDutch Republic. Under Article 20 of the April 22, 1625, instructionsfrom the Directors of the Amsterdam Chamber of the WIC mandate that,"[i]n the administration of justice, in matters concerningmarriages, the settlement of estates, and contracts, the ordinances andcustoms of Holland and Zeeland and the common written law qualifyingthem shall be observed and obeyed in the first place." (149)

"In addition... administration of parts of [the] criminal lawalso fell under the [jurisdiction] of [the] director and council,"with more severe punishment (e.g. capital crimes and corporal punishmentsubject, during the earliest period and until 1629) to Patria'sapproval. (150)

In 1652 the Amsterdam Directors in the Netherlands established a"bench[es] of justice" in New Amsterdam, to be formed as muchas possible after the laws of Amsterdam, Holland. (151) The judiciarywas to consist of two Burgermeesteren, five Schepenen, and one Schout.(152)

The Schout in New Netherland undertook the duties of what todaywould be District Attorney, Sheriff, and Attorney General, and wouldsometimes preside at the meetings of the Burgermeesteren and Schepenen.(153)

By ordinance passed April 9, 1660 the Directors of the Chamber atAmsterdam, defined the powers and duties of the Schout as the:"[d]irector General and Council's guardian of the law in thedistrict of the city of New Amsterdam." (154) He was to"protect and maintain... the preeminences and immunities of theprivileged West India Company... without any dissimulation, or regardfor any private favor or displeasure." (155) He had the power toprosecute, to make arrests under certain circ*mstances, and to carry outthe judgments of the Burgermeesteren and Schepenen, "according tothe style and custom of [the] Fatherland, and especially the city ofAmsterdam." (156) Pursuant to that ordinance, the Schout also hadthe power to issue something resembling what we today call an order ofprotection. (157)

Upon learning that any persons "have injured each other orquarreled" the Schout could command them "to observe thepeace, and to forbid them [from] committing any assault, on pain ofarbitrary correction at the discretion of the [Bergermeesteren] andSchepenen[]." (158) The Schout was expressly forbidden to acceptgifts. (159) His income, however, came from a percentage of fines, halfin civil cases and a third in criminal offenses. (160)

Scholars have noted the Dutch role in introducing the concept ofpublic prosecution to America; noting that the Schout functioned notonly in New York, but in other Dutch settlements in Pennsylvania, NewJersey, and Delaware. (161) By way of contrast, the English-from whom weadopted the common law; did not have a tradition of public prosecutors.(162)

One commentator has pointed out that the English, after taking overthe colony in 1664, continued the adjudicative system in New Amsterdamin much the same way as the Dutch; changing the name of the court fromSchout, Burgermeesteren, and Schepenen to the Court of Mayor andAldermen, with the Sheriff acting as prosecutor. (163) When the Dutchre-took the colony in 1673, they restored the name of the court, untilthe English regained the colony by the Treaty of Westminster in 1674,and once again established the Mayor's Court, with the Sheriffacting as prosecutor. (164)

The English Governor's Council decreed:

Upon some misunderstanding of the place and power of the Sheriffe atthe Esopus, Ordered, That Capt. Chambers and Mr. Hall have notice, thatthe Sheriff is the person, who is to see the Law putt in Execucon andto apprehend & prosecute any Transgressors, as hee shall see cause,though not to bee judge in the Case. (August 4, 1676.). (165)

In 1796, the New York legislature created the office of AssistantAttorney General to prosecute "crimes and offences," (166) andin 1801 provided for the appointment of district attorneys. (167) Thetitle has stuck, but those who carry it perform many of the samefunctions as their grandparent, the Schout.

(*) Albert Rosenblatt

(*) Hon. Albert Rosenblatt, former Judge of the New York Court ofAppeals, is currently teaching at NYU School of Law.

(1) See COREY SANDLER, HENKY HUDSON: DREAMS AND OBSESSION 18-19(2007); ADRIAEN VAN DER DONCK, A DESCRIPTION OF NEW NETHERLAND 140(Charles T. Gehring & William A, Starna eds., Diederick WillemGoedhuys trans., 2008) (1655); Oliver A. Rink, Seafarers andBusinessmen: The Growth of Dutch Commerce in the Lower Hudson RiverValley, in DUTCH NEW YORK: THE ROOTS OF HUDSON VALLEY CULTURE 7, 8, 10(Roger Panetta ed., 2009).

(2) See Russell Shorto, Forward to DUTCH NEW YORK, supra note 1, atvii, ix.

(3) See SANDLER, supra note 1, at 15, 18, 140; George Miller,Introduction to To THE SPICE ISLANDS AND BEYOND, at xi, xv (GeorgeMiller ed., 1996) [hereinafter Miller, SPICE ISLANDS].

(4) See JAAP JACOBS, NEW NETHERLAND: A DUTCH COLONY INSEVENTEENTH-CENTURY AMERICA 30-31 (2005).

(5) SANDLER, supra note 1, at 148.

(6) See id. at 144, 146.

(7) See Miller, SPICE ISLANDS, supra note 3, at xiv; Khoo Joo Ee,The Life of Spice, UNESCO COURIER, June 1984, at 20, 20-21.

(8) See SANDLER, supra note 1, at 158.

(9) See JACOBS, supra note 4, at 31.

(10) See SANDLER, supra note 1, at 144, 146.

(11) THOMAS A. JANVIER, HENRY HUDSON: A BRIEF STATEMENT OF HIS AIMSAND HIS ACHIEVEMENTS, at xi (1909).

(12) See SANDLER, supra note 1, at 255-57.

(13) See JANVIER, supra note 11, at 140; SANDLER, supra note 1, at273-74.

(14) See JANVIER, supra note 11, at 139-40; SANDLER, supra note 1,at 281.

(15) See JANVIER, supra note 11, at 128.

(16) See Lawrence Millman, Looking for Henry Hudson, SMITHSONIAN,Oct. 1999, at 100; LLEWELYN POWYS, HENRY HUDSON 186 (1928). In New York,that could today amount to depraved indifference murder. See People v.Mills, 804 N.E.2d 392, 395 (N.Y. 2003) (quoting N.Y. PENAL LAW [section]125.25(2) (McKinney 2018)); People v. Kibbe, 321 N.E.2d 773. 774 (N.Y.1974) (quoting N.Y. PENAL LAW [section] 125.25).

(17) See POWYS, supra note 16, at viii, ix; Lawrence J. Burpee, TheFate of Henry Hudson, 21 CAN. HIST. REV. 401, 401 (1940).

(18) See POWYS, supra note 16, at viii, 186.

(19) SANDLER, supra note 1, at 297.

(20) Id. at 299. No one can say for certain what became of HenryHudson. There are myths, including one that Hudson survived and joined aNative American community, where he produced red-headed or pale-facedIndian offspring-even though we do not know his hair color. Seegenerally G.M. ASHER, HENRY HUDSON: THE NAVIGATOR 176 (1860) (concludingthat no human is able to convey Hudson's ultimate fate); JANVIER,supra note 11, at 145 (establishing that no one knows what ultimatelyhappened to Hudson); PETER C. MANCALL, FATAL JOURNEY: THE FINALEXPEDITION OF HENRY HUDSON--A TALE OF MUTINY AND MURDER IN THE ARCTIC170 (2009) (describing an unsuccessful search for Hudson); RICHARDWOODMAN, A BRIEF HISTORY OF MUTINY 41 (2005) ("Hudson and his partywere never seen or heard of again."); Burpee, supra note 17, at 406(theorizing that Hudson spent his last days on the eastern side ofCharlton Island); Carl Carmer, The Man-Hudson's Triumph andTragedy, N.Y. TIMES, June 7, 1959, at 69 (questioning what, if any,conclusions can be drawn regarding Hudson's later life); Millman,supra note 16 (suggesting Hudson lived for years after the mutiny andfathered light-skinned natives); Ian Chadwick, Henry Hudson: TheAftermath of Hudson's Voyages and Related Notes, 1611 -- On, lANCHADWICK, http://www.ianchadwick.com/hudson/hudson_05.htm# (last visitedOct. 28, 2018) (providing legends and oral history regarding whathappened to Hudson).

(21) DONALD S. JOHNSON, CHARTING THE SEA OF DARKNESS: THE FOURVOYAGES OF HENRY HUDSON 200 (1993).

(22) See William T. Reynolds, Henry Hudson: New World, New WorldView, in EXPLORERS FORTUNES & LOVE LETTERS: A WINDOW ON NEWNETHERLAND 10, 10, 11 (Martha Dickinson Shattuck ed., 2009); Oliver A.Rink, Seafarers and Businessmen: The Growth of Dutch Commerce in theLower Hudson River Valley, in DUTCH NEW YORK: THE ROOTS OF HUDSON VALLEYCULTURE 7, 8 (Roger Panetta ed., 2009).

(23) Rink, supra note 22. at 7.

(24) See id. at 12-13; New Netherland Research Ctr., What Was NewNetherland?, N.Y. ST. LIBR.,http://www.nysl.nysed.gov/newnetherland/what.htm (last visited Oct. 28,2018).

(25) See JACOBS, supra note 4, at 178, 186.

(26) Jeremy M. Miller. A Swinging Pendulum or Damocles' Sword:A Dramatic Perspective on Constitutional Liberties in the 1990's,21 W. ST. U. L. REV. 165, 178 (1993).

(27) See PETER HAYS GRIES, THE POLITICS OF AMERICAN FOREIGN POLICY:How IDEOLOGY DIVIDES LIBERALS AND CONSERVATIVES OVER FOREIGN AFFAIRS 172(2014); Randolph S. Bourne, Trans-National America, 118 ATLANTIC MONTHLY86, 87, 88 (1916).

(28) See Paul K. Longmore, "Good English Without Idiom orTone": The Colonial Origins of American Speech, 37 J. INTERDISC.HIST. 513, 513 (2007) ("North American British colonials possesseda national language well before they became Americans.'").

(28) N.Y. CONST, of 1777, amend. XXXV.

(30) See JACOBS, supra note 4, xii (map of colonial New Netherland,consisting of present day New York); Charles Z. Lincoln, The Governorsof New York, 9 PROC OF THE N.Y. ST. HIST. ASS'N 33, 36 (1910)[hereinafter Lincoln, Governors].

(31) See JACOBS, supra note 4, at 152, 237; NICOLINE VAN DER SIJS,COOKIES, COLESLAW, AND STOOPS: THE INFLUENCE OF DUTCH ON NORTH AMERICANLANGUAGES 51, 228 (2009); LEONARD BERNARDO AND JENNIFER WEISS, BROOKLYNBY NAME: HOW THE NEIGHBORHOODS, STREETS, PARKS, BRIDGES, AND MORE GOTTHEIR NAMES 57 (2006).

(32) See VAN DER SIJS, supra note 31, at 124, 127, 143, 272.

(33) Health Topics: Early Child Development, WORLD HEALTH ORG.,http://www.who.int/topics/early-child-development/en/ (Lastvisited Oct.28, 2018).

(34) See JACOBS, supra note 4, at 2.

(35) Id.

(36) See William E. Nelson, The Utopian Legal Order of theMassachusetts Bay Colony, 1630-1686, 47 AM. J. LEGAL HIST. 183, 188-89(2005); Avihu Zakai, Orthodoxy in England and New England: Puritans andthe Issue of Religious Toleration, 1640-1650, 135 PROC. AM. PHIL.SOC'Y 401, 401, 405(1991).

(37) See James West Davidson and Mark Hamilton Lytle, Serving Timein Virginia, in AFTER THE FACT: THE ART OF HISTORICAL DETECTION 3(Alfred A. Knopf ed., 2d ed. 1982); l WILLIAM NELSON, THE COMMON LAW INCOLONIAL AMERICA 23 (2008); Nelson, supra note 36, at 186.

(38) See generally JACOBS, supra note 4, at 2 ("Although NewNetherland started as a trading post, it gradually developed into asettlement colony, which made it unique.... ").

(39) See Roger Congleton, America's Neglected Debt to theDutch, an Institutional Perspective, 19 CONST. POL. ECON. 35, 50 (2008).

(40) See id. at 50, 53.

(41) See Peter Stuyvesant [1610-1672] Early Founder/HistoricLeader, NEW NETHERLAND INST.,https://www.newnetherlandinstitute.org/history-and-heritage/dutch_americans/peter-stuyvesant/ (last visited Oct. 28, 2018).

(42) See Congleton, supra note 39, at 35, 41.

(43) See id. at 35; see also Dutch Revolt (1568-1648),ENCYCLOPEDIA.COM, https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/dutch-revolt-1568-1648 (last visited Oct. 9,2018) (explaining the fight for Dutch autonomy in the "EightyYears'War").

(44) See Congleton, supra note 39, at 4; Hermann Wiesflecker &Danielle Mead Skjelver, Maximilian I Holy Roman Emperor, ENCYCLOPEDIABRITANNICA, https://www.britannica.com/biography/Maximilian-I-Holy-Roman-emperor (last visited Oct. 28, 2018) ("Maximilian was the eldestson of the emperor Frederick III and Eleanor of Protegual. By hismarriage in 1477 to Mary, daughter of Charles the Bold, duke ofBurgundy, Maximilian acquired the vast Burgundian possessions of theNetherlands and along the eastern frontier of France.").

(45) See Congleton. supra note 39, at 50.

(46) See EVAN HAEFELI, NEW NETHERLAND AND THE DUTCH ORIGINS OFAMERICAN RELIGIOUS LIBERTY 20 (2012); Dutch Revolt, supra note 43.

(47) See Congleton, supra note 39, at 38.

(48) See id.

(49) See id.; BARON CHARLES DE MONTESQUIEU, THE SPIRIT OF THE LAWS151-52 (Thomas Nugent, L.L.D. trans., 1748).

(50) See Congleton, supra note 39, at 38.

(51) Memorial to Their High Mightinesses, The States-General of TheUnited Provinces of the Low Countries in 7 THE WORKS OF JOHN ADAMS:SECOND PRESIDENT OF THE UNITED STATES, 396, 399, 400 (Charles FrancisAdams ed. 1852).

(52) See James R. Tanis, The Dutch-American Connection: The Impactof "The Dutch Example" on American Constitutional Beginnings,in NEW YORK AND THE UNION 23 (Stephen L. Schechter & Richard B.Bernstein eds., 1990).

(53) THE UNION OF UTRECHT [CONSTITUTION] Jan. 23, 1579, art. 13(Neth.).

(54) See HAEFELI. supra note 46, at 22.

(55) See U.S. CONST, amends. I-X; Steven G. Calabresi, et al.,State Bill of Rights in 1787 and 1791: What Individual Rights Are ReallyDeeply Rooted in American History and Tradition?, 85 S. CAL. L. REV.1451, 1455 (2012).

(56) See HAEFEL1, supra note 46, at 141, 146; David W. Voorhees,The 1657 Flushing Remonstrance in Historical Perspective, 81 DE HALVEMAEN 11, 11 (2008).

(57) See Voorhees, supra note 56, at 11 ("Although [religiousfreedom] applied only to private beliefs and not public worship, itsembodiment in the sixteenth-century Dutch constitution as a cornerstonein the foundation of their state makes the Dutch truly unique. It isimportant to understand, then, that it is to the Dutch constitution NewNetherland's religious minorities... appealed when requestingtoleration.").

(58) See JAMES MADISON, THE WRITINGS OF JAMES MADISON 485 (GaillardHunt ed., 1910); see generally John Witte, Jr., The Essential Rights andLiberties of Religion in the American Constitutional Experiment, 71Notre Dame L. Rev. 372, 389-90 (1996) (discussing James Madison'sand other individuals' views of religious liberty in the earlyrepublic).

(59) See U.S. CONST. amend. I.

(60) See MADISON, supra note 58, at 102.

(61) See HAEFELI, supra note 46, at 138, 140, 141; Paul Finkelman,Religious Liberty and the Quincentenary: Old World Intolerance, NewWorld Realities, and Modern Implications, 7 J. CIV. RTS. & ECON.DEV. 523. 544-45 (1992).

(62) See Finkelman, supra note 61, at 545.

(63) See HAEFELI, supra note 46, at 254-55; The Act of Settlement,U.K. PARLIAMENT, https://www.parliament.uk/about/living-heritage/evolutionofparliament/parliamentaryauthority/revolution/overview/aetofsettlement/ (last visited Oct. 29, 2018).

(64) THE NEW YORK IRISH 50 (Ronald H. Bayor & Timothy J.Meagher eds., 1996); JOHN ROMEYN BRODHEAD, DOCUMENTS RELATIVE TO THECOLONIAL HISTORY OF THE STATE OF NEW-YORK 689 (E.B. O'Callaghaned., 1853) [hereinafter BRODHEAD, DRCHSNY].

(65) See The Act of Abjuration and the Declaration of Independence,NEW NETHERLAND INST.,https://www.newnetherlandinstitute.org/history-and-heritage/additional-resources/dutch-treats/the-act-of-abjuration/ (last visited Oct. 29,2018).

(66) See ROBERT ERGANG, EUROPE FROM THE RENAISSANCE TO WATERLOO 296(1939).

(67) See Congleton, supra note 39, at 40 tbl.1 (comparing thelanguage in the Act of Abjuration with that in the American Declarationof Independence).

(68) Stephen E. Lucas, The Rhetorical Ancestry of the Declarationof Independence, in 1 RHETORIC & PUB. AFF. 162 (1998). For an actualchart comparing the language of the Dutch Plakkatt with the AmericanDeclaration of Independence, see Congleton, supra note 39, at 7.

(69) See Congleton, supra note 39, at 40 tbl.1.

(70) See id.

(71) See id.

(72) Id.

(73) PLAKKAAT VAN VERLATINGHE [Dutch Act of Abjuration] July 26,1581 (Neth.).

(74) THE DECLARATION OF INDEPENDENCE para, 1 (U.S. 1776).

(75) Id. at final para.

(76) See Wijnand W. Mijnhardt, The Declaration of Independence andthe Dutch Legacy, in OPENING STATEMENTS: LAW, JURISPRUDENCE, AND THELEGACY OF DUTCH NEW YORK 62 (Albert M. Rosenblatt & Julia C.Rosenblatt, eds. 2013).

(77) See JOHN ROMEYN BRODHEAD, HISTORY OF THE STATE OF NEW YORK45-46 (1853) [hereinafter BRODHEAD, HISTORY]; MARTINE GOSSELINK, NEWYORK NEW AMSTERDAM: THE DUTCH ORIGINS OF MANHATTAN 42 (2009).

(78) See BRODHEAD, HISTORY, supra note 77, at 55.

(79) See CHARLES Z. LINCOLN. THE CONSTITUTIONAL HISTORY OF NEW YORK411 (1906) [hereinafter LINCOLN, CONSTITUTIONAL HISTORY]; BRODHEAD,DRCHSNY supra note 64, at 5.

(80) See BRODHEAD, DRCHSNY, supra note 64, at 10; BRODHEAD,HISTORY, supra note 77, at 63.

(81) See LINCOLN, CONSTITUTIONAL HISTORY, supra note 79, at 412;BRODHEAD, HISTORY, supra note 77, at 138. As we have seen, the Englishturned from the pen to the sword, when 40 years later, in 1664 they tookover New Netherland and named it New York.

(82) See A.J.F. van Laer, The Documents and Their Historical Value,in DOCUMENTS RELATING TO NEW NETHERLAND, 1624-1626 xi (A.J.F. van Laer,ed. and trans., 1924) [hereinafter A.J.F. Van Laer, Documents].

(83) See id.

(84) See id. at xx-xxi.

(85) A.J.F. van Laer, Provisional Regulations for the Colonists, inDOCUMENTS RELATING TO NEW NETHERLAND, at 2-5 (A.J.F. van Laer, ed. andtrans., 1924) (emphasis added) [hereinafter A.J.F. Van Laer, ProvisionalRegulations].

(86) See id.

(87) See Paul Finkelman, supra note 61, at 525-27 ("Virtuallyall political leaders of the sixteenth and seventeenth centuriesaccepted the idea that religious diversity undermined the stability ofany government. Most people believed that in any kingdom a ruler and hisor her subjects should have the same religion.... The MassachusettsPuritans sought religious liberty for themselves, but had littlepatience for those who did not agree with their theology... Nineteenconvicted witches were hanged in Salem in 1692... four Quakers [werehanged] between 1659 and 1661.... In the French colonies Catholicism wasnot only established, but, after King Louis XIV revoked the Edict ofNantes in October 1685, Protestants were barred from Old and New Francealike.").

(88) See A.J.F. Van Laer, Provisional Regulations, supra note 85,at 2-5.

(89) JAMES TRUSLOW ADAMS, THE FOUNDING OF NEW ENGLAND 89 (1921).

(90) See Michael W. McConnell, The Origins and HistoricalUnderstanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1423(1990); Mary Dyer, QUAKERS IN THE WORLD,http://www.quakersintheworld.org/quakers-in-action/15/Mary-Dyer (lastvisited Oct. 29, 2018).

(91) See Finkelman, supra note 61, at 537.

(92) Id.

(93) SEE, E.G., FREDERICK J. ZWIERLEIN, RELIGION IN NEW NETHERLAND:A HISTORY OF THE DEVELOPMENT OF THE RELIGIOUS CONDITIONS IN THE PROVINCEOF NEW NETHERLAND 188 (1910) (explaining the movement by Lutherans to"organize a separate congregation" in New Netherland which wasresisted by Stuyvesant and other officials); id. at 213 ("DirectorGeneral and Council regarded [Quakers] as anarchists. whose doingstended not only to the subversion of the Protestant Religion, but alsothe abolition of law and order and to the contempt of civilauthority."); id. at 247 (explaining the religious and economicreasons for the persecution of Jews by the Protestants of NewNetherland).

As crucial as were the tests provided by Lutherans and Jews for theReformed ideal of society's organic unity, the most significant test ofall was that presented by the Quakers.... These people were... viewedby civil magistrates on both sides of the Atlantic as seditiousanarchists, and by ecclesiastical authorities as "machinations ofSatan."

GEORGE L. PROCTER-SMITH, RELIGION AND TRADE IN NEW NETHERLAND:DUTCH ORIGINS AND AMERICAN DEVELOPMENT 220 (1973).

(94) See PROCTER-SMITH, supra note 93, at 220, 245 ("When thedirectors rebuked Stuyvesant for his strong ordinance againstconventicles in 1656, they urged him that the best policy toward dissentwould be to 'sweetly let it pass.'")

(95) See Charles Gehring, Prosecution or Persecution?, in OPENINGSTATEMENTS: LAW, JURISPRUDENCE, AND THE LEGACY OF DUTCH NEW YORK 117(Albert M. Rosenblatt & Julia C. Rosenblatt eds., 2013).

(96) A.J.F. Van Laer, Provisional Regulations, supra note 85, at17.

(97) Id. at 39.

(98) See id. at 176.

(99) JACOBS, supra note 4, at 43.

(100) See Charles Ghering, Peter Minuit's Purchase ofManhattan Island--New Evidence, 55 DE HALVE MAEN 6, 7 (1980); C. A.Weslager, Did Minuit Buy Manhattan Island from the Indians?, 43 DE HALVEMAEN 5 (1968).

(101) See Paul Otto, Real Estate or Political Sovereignty?: TheDutch, Munsees, and the Purchase of Manhattan Island, in OPENINGSTATEMENTS: LAW, JURISPRUDENCE, AND THE LEGACY OF DUTCH NEW YORK 74(Albert M. Rosenblatt & Julia C. Rosenblatt eds., 2013) (statingthat through the sale of Manhattan, the natives did benefit). Thenatives used the sixty guilders to buy European goods which the nativesviewed as superior to their own. Id. Also, this transaction created atrade relationship between the natives and the Dutch. Id. The Dutchwould ask the Natives to acquire furs in exchange for more goods whichthe natives deemed valuable. Id.

(102) See id. at 67.

(103) See id. at 76.

(104) See id. at 75.

(105) ADRIAEN VAN DER DONCK, supra note 1, at 103. In seeking toadvance popular governance in New Netherland, van der Donck confrontedPetrus Stuyvesant and was a central figure ("The People'sChampion") in Russell Shorto's book The Island at the Centerof the World, New York. Doubleday, 2004. See RUSSELL SHORTO, THE ISLANDAT THE CENTER OF THE WORLD: THE EPIC STORY OF DUTCH MANHATTAN AND THEFORGOTTEN COLONY THAT SHAPED AMERICA 13 (2004).

(106) See BETTY WOOD, SLAVERY IN COLONIAL AMERICA, 1619-1776 9(2005) (describing that in the 1620s, the first elements of slavery wereborn in Virginia).

(107) See id.; see also William M. Wiecek, The Origins of the Lawof Slavery in British North America, 17 CARDOZO L. REV. 1711, 1751(1996) (concluding that the legal status of slaves had been"ambiguous"); but see Jonathan L. Alpert, The Origin ofSlavery in the United States - The Maryland Precedent, 14 AM. J. LEGALHIST. 189, 190 (1970) ("Early legislation implicitly recognized theexistence of slavery. An Act for the liberties of the people' in1639. provided that all Christian inhabitants, 'Slavesexcepted' should have the rights of Englishmen.").

(108) LIBRARY OF CONGRESS, THE THOMAS JEFFERSON PAPERS AT THELIBRARY OF CONGRESS: HISTORY,https://www.loc.gov/teachers/classroommaterials/connections/thomas-jefferson/history3.html (last visited Oct. 27, 2018).

(109) See Robert J. Swan, First Africans into New Netherland, 1625or 1626?, 66 DE HALVE MAEN 75, 75 (1993).

(110) Id. at 75, 81. In an attempt to track down these assertionsRobert Swan failed to find any original documents describing thesepersons. Id. at 80. He concluded this was a matter of secondarysources' citing each other. Id. at 76. Poring over documents, henoted that detailed descriptions of laborers, noting their origins,documents as late as September 1626, failed to mention anyone of blackor African origin. Id. at 81.

(111) See Jonas Michaelius, Letter of Reverend Jonas Michaelius toReverend Adrianus Smoutius, in NARRATIVES OF NEW NETHERLAND 1609-1664122, 129 (J. Franklin Jameson ed., 1909); see also Dan Graves,Michaelius, America's 1st Dutch Reformed Pastor, CHRIST1ANITY.COM(June 2007), https://www.christianity.com/church/church-history/timeline/1601-1700/michaelius-americas-lst-dutch-reformed-pastor-11630080.html("On this day, January 24, 1628, Jonas sailed for the NewNetherlands.... Jonas was the first Dutch Reform "Domine" inthe American colony. He immediately organized a church in New Amsterdamand began holding services above a grist mill for the approximately 270European inhabitants.").

(112) LAWS AND ORDINANCES OF NEW NETHERLAND, 1638-1674, at 10 (E.B.O'Callaghan trans., 1868) [hereinafter LAWS AND ORDINANCES].

(113) See Graham Russell Hodges, ROOT AND BRANCH: AFRICAN AMERICANSIN NEW YORK AND EAST JERSEY 1613-1863 9 (1999).

(114) See id. at 10.

(115) See id.

(116) See Russell Shorto, Our Captive Past, N.Y. TIMES (Mar. 19,2006), https://www.nytimes.com/2006/03/19/books/review/our-captive-past.html (reviewing SLAVERY IN NEW YORK: AFRICAN AMERICANS IN NEW YORK CITY,1626-1863 (Ira Berlin & Leslie M. Harris eds., 2005)).

(117) See id.

(118) See LESLIE M. HARRIS, IN THE SHADOW OF SLAVERY: AFRICANAMERICANS IN NEW YORK CITY, 1626-1863 15 (2003) [hereinafter HARRIS,SHADOW].

(119) LAWS AND ORDINANCES, supra note 112, at 81.

(120) Id. at 81-82.

(121) Id. at 191.

(122) See HARRIS, SHADOW, supra note 118, at 15.

(123) Joyce Goodfriend states that by the time of the Englishtake-over in 1664 there were about 300 slaves in New Netherland. JOYCED. GOODFRIEND, BEFORE THE MELTING POT: SOCIETY AND CULTURE IN COLONIALNEW YORK CITY, 1664-1730 13 (1992) [hereinafter GOODFRIEND, MELTINGPOT]; Joyce D. Goodfriend, The Souls of New Amsterdam's AfricanAmerican Children, in OPENING STATEMENTS, L. & JURIS. IN DUTCH N.Y27-35 (Albert Rosenblatt & Julia Rosenblatt, eds., 2007). NewYork's gradual abolition began in 1799 with an act (L.1799, ch. 62)that provided that a child born to a slave after July 4, 1799 would beconsidered free. See Act of Mar. 29, 1799, ch. 62, 1799 N.Y. Laws 388.The children would, however, continue to serve the mother's owneruntil age twenty-eight for a male or twenty-five for a female. See id.The legislature also passed other statutes allowing for voluntarymanumission. See, e.g., Act of Mar. 31, 1817, ch. 137, 1817 N.Y. Laws136. In 1817, the legislature (ch. 137) provided that everyone bornbefore July 4, 1799 would become free by July 4, 1827. See Arents v.Long Island R.R. Co., 50 N.E. 422, 423 (N.Y. 1898).

(124) HARRIS, SHADOW, supra note 118, at 12; Leslie M. Harris,Slavery, Emancipation, and Class Formation in Colonial and EarlyNational New York City, 30 J. URB. HIST. 339, 339 (2004) [hereinafterHarris, Slavery]; see generally, Ira Berlin, From Creole to African:Atlantic Creoles and the Origins of African-American Society in MainlandNorth America, 53 WM. & MARY Q. 251, 272 (1996) ("Although theproportion of the black population enjoying freedom shrank steadilyunder English rule, the small free black settlement held itsown."); Joyce D. Goodfriend, Burghers and Blacks: The Evolution ofa Slave Society at New Amsterdam, 59 N.Y. HIST. 125, 126 (1978)[hereinafter Goodfriend, Evolution] ("[T]he Dutch variant ofslavery left a deeper imprint on the local societies of what became NewYork than previously believed.").

(125) HUGO GROTIUS, THE INTRODUCTION TO DUTCH JURISPRUDENCE OF HUGOGROTIUS 4 (A.F.S. Maasdorp trans., 1903); Yasuaki Onuma, Hugo Grotius,BRITANNICA (last updated Aug. 24, 2018),https://www.britannica.com/biography/Hugo-Grotius.

(126) See HUGO GROTIUS, THE INTRODUCTION TO DUTCH JURISPRUDENCE OFHUGO GROTIUS 27 (Charles Herbert trans., 1845).

(127) See Women of New Amsterdam and New Netherland, WOMEN HIST.BLOG (Mar. 2008), http://womenhistoryblog.com/2008/03/dutch-womens-rights.html.

(128) See Susan Shaw, New Light on Old Sources: Finding Women inNew Netherland's Courtrooms, 74 DE HALVE MAEN 9, 10 (2001).

(129) See id.

(130) DAVID E. NARRETT, INHERITANCE AND FAMILY LIFE IN COLONIAL NEWYORK CITY 17, 53, 55-56 (1992).

(131) Id. at 17.

(132) Id. at 17, 53.

(133) Id. at 107.

(134) See J.W. WESSELS, HISTORY OF THE ROMAN-DUTCH LAW 453 (1908);NETH. COMPARATIVE LAW ASS'N, INTRODUCTION TO DUTCH LAW FOR FOREIGNLAWYERS 46 (J.M.J. Chorus et al. eds., 2d ed. 1993).

(135) See David William Voorhees, "How Ther Poor Wives Do, andAre Delt With": Women in Leisler's Rebellion, 70 DE HALVE MAEN41, 41 (1997) [hereinafter Voorhees, Leisler's Rebellion].

(136) See id. at 41 n.7.

(137) See id. at 42.

(138) See Joyce D. Goodfriend, Recovering the Religious History ofDutch Reformed Women in Colonial New York, 64 DE HALVE MAEN, 53, 59(1991).

(139) See NETH. COMPARATIVE LAW ASS'N, supra note 134, at 46;SIMON SCHAMA, THE EMBARRASSMENT OF RICHES: AN INTERPRETATION OF DUTCHCULTURE IN THE GOLD AGE 400, 403 (1987); Voorhees, Leisler'sRebellion, supra note 135, at 47.

(140) LINDA BRIGGS BIEMER, WOMEN AND PROPERTY IN COLONIAL NEW YORK:THE TRANSITION FROM DUTCH TO ENGLISH LAW, 1643-1727 x (1979); see JEANZIMMERMAN, THE WOMEN OF THE HOUSE: How A COLONIAL SHE-MERCHANT BUILT AMANSION, A FORTUNE, AND A DYNASTY 7-9 (2006).

(141) See SCHAMA, supra note 139, at 404.

(142) See id. at 421, 422; Thomas Shepard, A Character of MistressJoanna Shepard, in A LIBRARY OF AMERICAN LITERATURE 220 (Edmund ClarenceStedman & Ellen Mackay Hutchinson eds., 1892) (detailing an accountof an English settler describing the loss of his wife, Mistress JoannaShepard).

(143) SCHAMA, supra note 139, at 422.

(144) See id. at 190.

(145) See BIEMER, supra note 140, at xiii.

(146) See id. at x; see also LINCOLN, CONSTITUTIONAL HISTORY, supranote 79, at 104. Art. 23 of the Charter of Liberties and Privileges(1683) made a woman a "feme covert" while Art. 25 restrictedher property ownership by limiting the period a widow "may tarry inthe Cheife house of her husband forty dayes." See LINCOLN,CONSTITUTIONAL HISTORY, supra note 79, at 104.

(147) See LINCOLN, CONSTITUTIONAL HISTORY, supra note 79, at 104.

(148) See BIEMER, supra note 140, at xiii.

(149) See A.J.F van Laer, Further Instructions for Willem Verhulstand the Council of New Netherland, in DOCUMENTS RELATING TO NEWNETHERLAND: 1624-1626, at 84, 113-14 (A.J.F. van Lear, ed. & trans.,1924) [hereinafter A.J.F. van Laer, Instructions].

(150) See JACOBS, supra note 4, at 103.

(151) See id. at 151.

(152) Id.

(153) See BRODHEAD, HISTORY, supra note 77, at 453-54; Albert E.McKinley, The English and Dutch Towns of New Netherland, 6 AM. HIST.REV. 1, 7 (1900); see also, Roeloff Swartout 1634-1715, JDWHITLOCK.NET(Dec. 5, 2004), https://web.archive.org/web/20040211110956/http;//jdwhitlock.net:80/gene/swartout.htm (describing the life and duties of aSchout).

(151) LAWS AND ORDINANCES, supra note 112, at 374.

(155) Id.

(156) Id. at 376.

(157) Compare N.Y. CRIM. PROC. LAW [section] 530.13 (NewYork's modern order of protection), with LAWS AND ORDINANCES, supranote 112, at 375 (outlining the historical New Netherland'sequivalent).

(158) LAWS AND ORDINANCES, supra note 112, at 375.

(159) See JACOBS, supra note 4, at 160; LAWS AND ORDINANCES, supranote 112, at 374.

(160) See JACOBS, supra note 4, at 160; see also JULIUS GOEBEL JR.& T. RAYMOND NAUGHTON, LAW ENFORCEMENT IN COLONIAL NEW YORK: A STUDYIN CRIMINAL PROCEDURE (1664-1776) 329 (1970) (describing the role andresponsibilities of the Schout).

(161) See BRUCE L. BENSON, TO SERVE AND PROTECT: PRIVATIZATION ANDCOMMUNITY IN CRIMINAL JUSTICE 96 (1998); Abraham S. Goldstein, Historyof the Public Prosecutor, in 3 ENCYCLOPEDIA OF CRIME AND JUSTICE 1287(Sanford H. Kadished., 1983); THOMAS A. JANVIER, THE DUTCH FOUNDING OFNEW YORK 140 (1903); Josephine Gittler, Expanding the Role of the Victimin a Criminal Action: An Overview of Issues and Problems, 11 PEPP. L.REV. 117, 128 (1984); Anthony C. Thompson, It Takes a Community toProsecute, 77 NOTRE DAME L. REV. 321, 351 (2002).

(162) See PATRICK DEVLIN, THE CRIMINAL PROSECUTION IN ENGLAND 25(1958); Joan E. Jacoby, The American Prosecutor in Historical Context,39 PROSECUTOR 34, 37 (2005); Michael E. O'Neill, Private Vengeanceand the Public Good, 12 U. PA. J. CONST. L. 659, 673-74 (2010); see alsoJohn H. Langbein, The Origins of Public Prosecution at Common Law, 17AMER. J. LEGAL HIST. 313, 318-19 (1973) (describing the role of justicesof the peace in criminal prosecutions).

(163) See W. Scott Jr. Van Alstyne, The District Attorney - AHistorical Puzzle, 1952 WIS. L. REV. 125, 132(1952).

(164) See id. at 132-33.

(165) 13 DOCUMENTS RELATING TO THE COLONIAL HISTORY OF THE STATE OFNEW YORK 498 (Berthold Fernow ed. & trans., 1881).

(166) See Act of Feb. 1796, ch. 8, 1796 N.Y. Laws 643-44.

(167) See Act of Apr. 4, 1801, ch. 146, 1801 N.Y. Laws 362.