Robbins: Representatives of the people |

Robbins: Representatives of the people

While it is so familiar to us, we scarcely give it a second thought, it wasn’t always so.

One commits a crime, gets snagged by law enforcement, and, on behalf of We The People, is prosecuted by the district attorney. It is as logical and predictable as seed, rain, sunshine, sprout. But hold on a sec; from whence did this seemingly inherent legal sequence arise? Although it is so familiar to us to almost seem like a law of nature, well … not so fast. It is in fact, at least in a relative sense, something new under the legal sun.

We owe it to the Dutch — a Dutch treat, you might say.

One of the first “district attorneys” in America was Adriaen van der Donck, whose first posting was as “schout” in the colony of Rensselaerswyck. 

OK, a little explainin’ here. 

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Back in the day, in Dutch-speaking areas, a schout was a local official appointed to carry out administrative, law enforcement, and prosecutorial tasks. The colony of Rensselaerswyck, roughly in the area of present-day Albany, New York, was then part of New Netherland, controlled if not exactly owned by the Dutch. The beating heart of New Netherland was New Amsterdam which we now know — after the British succeeded the Dutch to the area — as the Big Apple of Manhattan. 

In case you didn’t know it before, the Dutch, following Henry Hudson waggling up the river in 1609 that now bears his name, and claiming the surrounding area for the Dutch (for whom he was sailing though he, himself, was thoroughly an Englishman) were the original European settlers of Manhattan and environs. The Dutch began to settle what we now know as the Hudson Valley in 1629.

van der Donck, who was a lawyer and a bit of a rebellious fellow, lived from 1618-1655. Life was short and brutish at the time. Mr. van der Donck died at the age of 35 and, it is believed, he was the victim of an Indian attack.

In a 1975 article on the history of the office, Yale law professor A.J. Reiss observed that, “The first appearance of public prosecutors in the United States occurred when the Dutch founded the colony of New Netherland.” By the time the area was taken by the Duke of York in 1664, the Dutch system of public prosecution was firmly in place and, when the Brits took over, it was simply maintained. 

The “schout” was soon established in five of the original 13 colonies that became the United States. Thereafter, like a lot of other good notions, it spread, ultimately becoming known as the district attorney which has become a familiar British colonial establishment. When the colonies turned on Mother England, not everything being jettisoned by revolution, the office of the DA was subsumed within what became common U.S. practice.

When New York became British, the colony, adopting Dutch custom, appointed a law officer whose job was to prosecute cases on behalf of the government. Historically, the English system had no such office. Who or what before then, you may reasonably be asking, prosecuted crimes? Well… um… no one?

Until the British adoption of the “schout” and its transmogrification into the district attorney, “frontier justice” (although it wasn’t called that; what it was called was something more like retribution) was the rule. The victim of the crime, or his or her relative(s), was responsible for seeking justice. While perhaps personally satisfying, such a practice created neither uniformity nor, perhaps, proportionality; did the punishment fit the crime? Was the proper person punished? Did the punishment lead to a war between the Hatfields and McCoys with brutal tit-for-tat?

Underlying any equitable system of law lies the cores of predictability, uniformity, proportionality, and peaceability. If this misdeed happens, then that consequence shall be paid. Absent such a scheme, there only can be chaos.

The Dutch, the great traders of the world at the time, were enlightened in so many ways. Theirs was a tolerant and egalitarian society. If not exactly “equal” in the terms we think of today, the Dutch at least suffered one another — and suffered “others” and outsiders — without gripe or complaint. For the age, theirs was an integrated society that tolerated free thought, free religious practice, free speech, and an enlightened form of governance that, in part, informed our Founding Fathers. Part and parcel of that system was the schout, which we recognize today as our local DAs, the guys and gals who represent us — We The People — in machinery and prosecution within our criminal courts.

You can thank the forward-thinking Dutch for that — a true and lasting Dutch treat.      

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers everywhere; coming soon, “He Said They Came From Mars.” 

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