Opinion of Paulus Leendersen in regard to the offenses of Jochim Pietersen
Jochim Pietersen shall be sent to the fatherland to defend his conduct and shall not be at liberty to come within the limits of New Netherland before and until he shall have done so, and in addition forfeit 300 guilders; and in case he return here, he shall be obliged to bring a valid certificate from the full board of the honorable directors and the gentlemen before whom the case may be tried. He shall also beg pardon of God and the court and, if he refuses, he shall be fined as punishment therefor 100 guilders and forthwith be sent on board ship, without being at liberty to return here on shore. This 18th of July anno 1647, in Fort Amsterdam in New Netherland.
The opinion of Jan Claesen Bol, master of the ship De Prlncesse.
Whereas I have well examined and considered the case of Cornelis Melyn and Jochim Pietersen, I find that it is a matter of very evil consequence which ought not to go unpunished, but on the contrary ought to be punished as an example to others.
Cornelis Melyn
Therefore, Cornelis Melyn ought in my opinion to be perpetually banished from New Netherland as a false liar and seditious person and in addition be fined 500 Carolus guilders.
Jochim Pietersz Kuyter
The person of Jochim Pietersz Kuyter ought to be banished from New Netherland until he shall have proved before the directors the lies and statements which he has falsely made against the honorable General Kieft and be fined 200 guilders. This 18th of July anno 1647.
The opinion delivered by the honorable Director General Petrus Stuyvesandt in the case of Fiscal van Dyck against Jochom Pietersen and Melyn.
1. Both complaints of the fiscal are dubious, unfounded and not consistent with the forms of law, inasmuch as no laws or legal authorities are cited therein by which it is proved or conclusively shown that defendants can be punished by death, or with banishment, or by fine, which are three distinctive punishments, it not being enough to demand a man's life, money or banishment, unless it be shown upon what law such demand is based.
2. The charges on which the demand is founded are not sufficiently proved by the fiscal, especially as regards the person of Jochim Pi[ etersen ], whose offenses have no connection with those of Melyn. Therefore, in my humble opinion they cannot be included in one and the same complaint, much less punished in the same manner.
3. The modification of the demand tends to show that it is not well founded, nor consistent with legal form; the more so, as he communicated with the parties, as the fiscal declared of his own accord in full council. I cannot, therefore, come to any conclusion on the joint complaint, but only on the offenses and accusation as far as they are proved against each of the defendants separately.
First, against the defendant, Cornelis Melyn, of whom it is said and proved by three creditable witnesses:
1. That he threatened the late director, Willem Kieft, his chief and commander, with the gallows and wheel.
2. That he opposed the exercise of justice.
3. That he defied the law.
4. That he sought to stir up mutiny and sedition. Proved by two witnesses.
5. That his servants endeavored to steal maize belonging to the Indians, which he declared occurred without his knowledge end against his wishes. The claim, however, is unfounded, as he made no complaint or accusation in the matter.
6. That he took by force a portion of the game of the Indians. Proved by one witness and more clearly indicated by the circumstances.
7. That he concocted or helped to concoct a false and slanderous letter against the honorable General Kieft, which is here refuted, disproved and shown to be quite contrary to the facts.
On the first four counts he could according to divine and human law be charged with having committed crimen laesae majestatis and thus be held to have forfeited his life and property. "Thou shalt not revile the gods, nor curse the ruler of thy people." Exod. 22:28. "Curse not the king, no not even in thy thought." Eccl. 10:20. "Be subject unto the higher powers." Rom. 13:1.
To speak evil of one's superiors is one of the greatest offenses one can commit against one's government, says Bernardinus Muscatellus in Praxis Criminalibus. Whoever censures the government of his supreme authorities ought not to remain unpunished, since in fact, he commits crimen laesae majestatis, says plainly Lodovic[ us ] in Tractatus de Injuriis.
Injuries committed by deed or in writing against any officer, any of the magistrates, or any member of the council are more heinous and may be brought to the attention of the court by any one, for it is a capital offense which according to law deserves capital punishment. Damhouder, in Criminalibus. To utter words tending to mutiny and rebellion demands capital punishment, according to the sworn Articles of War.
The fifth and sixth charges are not sustained by sufficient evidence, otherwise he would be punishable as one who usurped one of the functions of sovereignty, or who had committed theft, force, extortion and violence. On this point, Damhouder, in Criminalibus, fol. 22, says: "Whoever imposes needless tolls, tributes, imposts, excise taxes, or other contributions, however they may be called, without authority of the Prince, and exacts and levies these by force, constraining the people thereto, commits public violence and is to be punished capitally. If he does it without force or any one's objection, it is private violence and punishable by a fine of 50 pounds of gold, or otherwise at the discretion of the judge. In like manner are to be punished such person's agents, factors or servants, in so far as they carry out their master's crimes and misdeeds, in which case the matter ought to be further investigated and his servants rigidly examined regarding it.
As to the seventh charge, he is convicted of having committed falsety, defamation and slander in writing against his lawful superior, for which he is equally punishable with his accomplice, Jochim Pietersz Kuyter, who purges himself of the other above mentioned crimes, so that they can not be included in the same accusation and condemnation. Therefore, it is my opinion that by virtue of the laws aforesaid Cornelis Melyn ought to be punished with death and confiscation of all his property. This 18th of July anno 1647. Was signed: P. Stuyvesandt.
Opinion delivered by the honorable General P. Stuyvesandt in the case of Fiscal van Dyck against Jochem Pietersen
In regard to the accusation and charges brought against Jochim Pietersz Kuyter, he purges himself. In my opinion the charges are also not clearly proven or of little consequence.
The first, alleged by one witness, is doubtful, without proof that by Saul he meant the director.
There is no categorical declaration as to his proposition at Bronck's house, either that he uttered the words, or that he spoke them with the meaning attached to them. Furthermore, the matter has had no effect. He, himself, declares that the words were spoken conditionally, to wit, that if we should treat the Indians as they would treat us under similar circumstances, we could throw the sachems into the cellar and massacre the rest, without he or anyone else proposing that such should be done; a poss ad esse nulla datur consequentia. The most that can be deducted from this would be that he admitted the justice and lawfulness of the war, which he and his accomplice now deny and of which they now accuse the director of having been the causa movens. It is said that he originally treated the Indians ill but this is not sufficiently proved. He acknowledges that he has treated them according to their deeds and no one proves the contrary.
2. As to the charge that he endeavored to induce the director to mortgage New Netherland, he says that this was done with good intention and as a member of the council, agreeable to the best of his judgment, and that he left it to the director's discretion as the result proves, and is therefore excusable.
That he insulted the director in the presence of the Eight Men and threatened him with the finger is a matter of more serious consequence than all the foregoing, being an offense against his person and dignity and in his person against the supreme sovereign authorities. The Articles of War say and declare on this point: "Whoever shall say anything to spite or ridicule his superiors shall be punished by loss of limb or life." This is military law and customary in that service. It is also reasonable, for he who does not hesitate to give utterance to the evil thoughts in his mind against his lawful superiors, what mischief would he not be capable of committing if he had the power and the opportunity? Herewith agrees what Johannes Bernardinus Muscatellus says in Praxis Criminalibus: "To speak evil of one superiors is one of the greatest offenses one can commit against one's government. Whoever slanders God, his authorities, or his parents shall be stoned to death according to divine law."
But on this point also a distinction is made by many imperial statutes and jurisconsults, as Macrobius relates of Emperor Augustus, that he stood more abusive language from others than he applied to others. And Albricus says : "If any one speaks ill of his rulers, as far as their person is concerned, he should not be punished therefor, that is to say, with loss of life, but should he speak disparagingly of their administration, he must not go unpunished, because he thereby in fact commits crimen laesae majestatis." So that according to this rule it should first be investigated and determined to what end and purpose these slanderous words were spoken. The defendant does not absolutely deny them, but says that as one of the Eight Chosen Men, assembled in council, he had, in connection with some debatable question, said to the director that people would be able to bring many charges against him, the director, as soon as he had laid down the cloak with which the honorable directors had invested him, which, in our opinion, applies only to the director's person, and not to his office. The witness, Mr. Allerton, also simply declares that he merely heard such or similar words; nevertheless, in so far as he committed offenses against his general and superior, the defendant is liable to punishment therefor, as Damhouder says in regard to injuries by word or threat: "He commits an injury who threatens another by gesture — as was done in this instance by the finger and words — and the injury is the greater or the more serious when committed against a member of the council, an officer, or an ecclesiastical person and in a public place, as the honorable director was then at the meeting of the Eight Men, which time and place aggravate the offense, so that in my opinion he ought to be punished by a fine of 300 guilders and reparation of the injury, that is, to acknowledge before God and the court that he spoke evil. Was signed: P. Stuyvesandt.
