Arbitration in New Netherland

In the 17th-century Dutch colony New Netherland, arbitration was used as a form of non-court dispute resolution. Unlike contemporary arbitration, which arises out of an agreement between the parties, parties would frequently be referred to arbitration by the courts of New Netherland.(1) It is not a mere coincidence that arbitration was used in New Netherland. Arbitration came with several advantages, some of which arose out of the specific nature of New Netherland and its Dutch traditions.

Roots in Roman-Dutch law

The use of arbitration in New Netherland can in part be explained by the traditions of the Netherlands and its Roman-Dutch law. There are two basic sources of arbitration in Roman-Dutch law: Roman law and the customary law of the area that became the Netherlands.(2)

In Roman law, which was received into the Netherlands in the 16th century,(3) arbitration had a fundamental position.(4) In classical Roman law, the consent of the parties was necessary for all jurisdiction.(5) Cases were dealt with by a party-appointed arbitrator, called the iudex, a private citizen.(6) This later evolved into a two-stage system where a magistrate formulated the issues and sent them for trial before a iudex agreed upon by the parties.(7) The origins of the customary law of the Netherlands also show signs of arbitration. There appears to be evidence that Germanic folkmoots, popular assemblies where justice was administered by law-worthy men of the community, encouraged reconciliation and arbitration in disputes.(8)

Due to the influence of both Roman law and customary law, arbitration was an inherent part of the legal system of the Netherlands. When the Dutch founded New Netherland in the early 17th century, they brought their legal system with them. The practice of using arbitration as dispute resolution was therefore also carried overseas.(9)

Arbitration and the institutions of New Netherland

Board of Nine Men

At first, the task of adjudicating disputes and dispensing justice was centralized in the hands of the colony’s director general.(10) Public dissatisfaction with the way multiple director generals dealt with this task eventually led to the creation of the Board of Nine Men in 1647 by director general Peter Stuyvesant.(11) The colonists were allowed to nominate eighteen men, nine of which would be chosen by Stuyvesant to form the Board of Nine Men.(12) The Board of Nine Men had some legislative powers, but its main purpose was to resolve disputes.(13) Due to an increase in lawsuits and disputes in the territory, the Board of Nine Men, sitting in New Amsterdam, was called upon to resolve disputes through arbitration.(14) Three members of the Board of Nine Men would form an arbitration panel in these civil cases.(15) This marked the beginning of an extensive use of arbitration in the colony. The Board of Nine Men continued to arbitrate disputes for seven years, until a burgomaster system was established, which resulted in New Amsterdam getting its first court.(16)

Court of Schout, Burgomasters and Schepens

In 1653, the Court of Schout, Burgomasters and Schepens was founded. Its composition was consistent with Dutch custom, with one schout, two burgomasters and five schepens.(17) Although it was customary that these officers were to be elected by the community, Stuyvesant decided to appoint them himself.(18)

In civil cases, the Court of Schout, Burgomasters and Schepens often referred parties to arbitration.(19) This two-stage process, the first stage being the presentation of the claim to the court and the second stage being the actual arbitration, is quite similar to the judicial process in Roman law where a magistrate referred the parties to a iudex. Usually, the court would appoint the arbitrators, but sometimes the parties selected them or a member of the court would attempt a settlement.(20) It was mostly the complex cases that were referred to arbitration, but smaller disputes were not exempted from arbitration.(21) There appears to be no set rule with regard to which cases could be referred to arbitration. The court relied on arbitrators to resolve disputes of varying size, type and complexity.(22)

Local courts

Outside of New Amsterdam, there were many towns with their own courts. It seems probable that the procedures of these courts were similar to those of the Court of Schout, Burgomasters and Schepens, including the practice of referring parties to arbitration.(23) Outside of the jurisdiction of New Netherland, in the patroonship of Rensselaerswyck, the Court of Rensselaerswyck referred parties to “good men,” who would attempt to reconcile the parties.(24)

Advantages

Carrying capacity

In New Netherland, the courts could easily get overburdened because of the low population density and the small economic surplus. Referring parties to arbitration increased the carrying capacity of the courts, as they would not have to deal with the case themselves. By using arbitration, the burden of adjudicating disputes could be spread to areas which were too thinly populated to have a court of their own.(25)

Fact-finding

In line with Dutch custom, juries were not used in New Netherland. Without a jury to rely on, the courts of New Netherland turned to arbitrators when they saw a need for fact-finding by others than the court.(26) By referring complex cases to arbitration, the courts spared themselves the burden of doing the laborious fact-finding on their own. Furthermore, cases which required specialized knowledge were referred to arbitrators who were experts in that field.(27)

Reconciliation

The purpose of the arbitrators was not, however, limited to fact-finding. The courts of New Netherland always instructed them to bring about a reconciliation between the parties, wherever possible.(28) Only when the arbitrators did not manage to let the parties reach a friendly settlement, would they actually give their decision. In the relatively small communities within New Netherland, resolving conflicts without friction was of considerable importance. Arbitration was therefore a very deformalized process, with arbitrators fulfilling many roles. They were mediators, fact-finders and of course, but only when no friendly settlement could be reached, decision-makers.

Notes

1 : McKenzie, T. A., & Freeman, W. C. (2013). New Netherland and the New York Tradition of Arbitration. In A. M. Rosenblatt & J. C. Rosenblatt (Eds.), Opening Statements: Law, Jurisprudence and the Legacy of Dutch New York (p. 42). Albany, NY: State University of New York Press.

2 , 3 : Aiken, J. R. (1974, September). New Netherlands Arbitration in the 17th Century. The Arbitration Journal, 29(3), (p. 146). Retrieved November 26, 2016.

4 , 5 , 6 , 7 : Aiken (1974) p. 147.

8 : Aiken (1974) p. 148.

9 : Aiken (1974) p. 149.

10 , 13 , 14 , 16 : McKenzie & Freeman (2013) p. 41.

11 : Jacobs, J. (2005). New Netherland: A Dutch Colony in Seventeenth-Century America (p. 142-143). Ithaca, NY: Cornell University Press.

12 , 15 : Jacobs (2005) p. 144.

17 , 18 : Daly, C. P. (1855). Historical sketch of the judicial tribunals of New York from 1623 to 1846 (p. 9). Retrieved November 26, 2016.

19 : Daly (1855) p. 16.

20 : Moglen, E. (1994). Settling the law: Legal development in provincial New York (p. 202-203). Retrieved November 26, 2016.

21 , 22 , 26 : McKenzie & Freeman (2013) p. 42.

23 : Jones, W. C. (1956). Three Centuries of Commercial Arbitration in New York: A Brief Survey. Washington University Law Review, 1956(3), (p. 196). Retrieved November 26, 2016.

24 , 25 : Moglen (1994) p. 202.

27 : Aiken (1974) p. 155.

28 : Daly (1855) p. 15.