USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 14
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ination of witnesses residing beyond the court's jurisdiction, who were ex- amined before the judges of the local court where the witnesses resided, who sealed up the examination, and transmitted it to the court having jurisdiction in the cause. When the proofs were complete, they were added to the pleadings, the whole constituting what was called the Memorial, which was submitted to the court, either party being at liberty to inspect it, and having the right, within a certain time, to have any of the witnesses of his adver- sary examined upon cross interrogatories, in respect to anything contained in their deposition, which was deemed material, or to have additional wit- nesses examined on his own behalf in reply ; the manner of conducting which subsequent examination was arranged by the judge. But this mode of pro- ceeding being dilatory and expensive was rarely resorted to. The great majority of cases were referred to arbitration, or disposed of upon a summary hearing of the parties before the magistrates; and it may be im- portant to note, in respect to the rules of evidence, that whenever a paper or document was produced, purporting or avowed to be in the handwriting of a party, it was assumed to be his handwriting, unless he denied the fact under oath; and that merchants or traders might always exhibit their books in evidence, where it was acknowledged or proved that there had been a dealing between the parties, or that the article had been delivered, provided they were regularly kept with the proper distinction of persons, things, year, month and day-a practice which in the States of New Jersey and New York, survived these Dutch tribunals and had, at the present day, with certain qualifications or restrictions, extended to nearly every State in the Union. Full credit was given to all such books, especially where they were
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titles. When he addressed them merely as "Schout, Burgo- masters and Schepens" it would be to convey some reproof.13 And when, after years of agitation by the burgomasters, Stuyvesant consented to separate the office of schout-fiscal from that of city-schout, or sheriff, he probably enjoyed the transmittal of official instructions which made clear to the burgomasters that the schout, in court, was the highest dig- nitary, the presiding officer.14
However, reviewing the period in which New Amsterdam was administered by this inferior court, it is seen that much credit is due to burgomasters and schepens. They were the first judges in the province who were in any way independent of the Company or the patroons; and their administration of justice was, on the whole, commendable and beneficial. The standard of morality improved considerably during the latter part of the Dutch régime. The records of New Amsterdam show much religious intolerance, but in this respect the local
strengthened by oath, or confirmed by the death of the parties, and also to memoranda made between parties and sworn brokers. A leading distinction in evidence was also made between what was termed full proof, as where a fact was declared by two credible witnesses as of their own knowledge, or it was proved by a document or written paper, and half proof, as where it rested upon the positive declaration of knowledge of one witness only, under which latter head, as weak but assisting evidence, hearsay was al- lowed, which, in some instances, as in the case of certain dying declarations, was admitted to the force of full proof; and as the determining of a case upon the evidence of witnesses was left to the judges, very discriminating and nice distinctions were made in adjusting or weighing its relative force or value. (b).
When judgment was rendered against a defendant for a sum of money, time was given for payment, usually fourteen days for the discharge of one-half, and the remainder in a month. If at the expiration of that time he did not comply, application was made to the court and the schout, or usually the court messenger, went to the delinquent, and, exhibiting a copy of the sentence and his wand of office, which was a bunch of thorns, sum- moned him to make satisfaction within twenty-four hours. If at the expiration of that time the amount was not paid, the delinquent was again summoned to pay within twenty-four hours, which involved additional expense; and if, when that time expired, he was still in default, the mes- senger, in the presence of a schepen, took into custody the debtor's movable goods, which he detained for six days, within which time they might be redeemed on payment of the expenses. If they were
not re-
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magistrates do not seem to have been the enforcing authority. Stuyvesant and the clergy had combined to exclude all other sects but Calvinists. The measures were at first aimed only at the Dutch Non-Conformists, the Lutherans, who were for- bidden to have a meeting house in New Amsterdam. When they proved intractable, Stuyvesant punished them by fines and imprisonment. A Lutheran minister who came from Hol- land to serve them was promptly banished; and when the Amsterdam Chamber of the West India Company rebuked the Governor "for his want of charity as well as for his want of judgment," and pointed out that there was "a needless preciseness" as to the formulary of baptism, which was the essential difference between the Calvinists and Lutherans, Stuyvesant centred his efforts on the suppression of other sects. He banished some Anabaptists of Flushing in 1656, and during succeeding years so persecuted Quakers, who hap-
deemed, notice was then given by publicly announcing upon a Sunday, and upon a law day, that they would be sold, and that the next law or market day they were disposed of by auction. If it was necessary to levy upon or sell real estate, or what in the civil law is termed immovable property, a longer term was allowed, and greater formalities were required. The manner of selling it was peculiar. The officer lighted a candle, and the bidding went on while it was burning; and he who had offered the most at the extinction of the candle was declared the purchaser, which differed from the ordinary mode in a Dutch auction, where the public offer of the property is made at a price beyond its real value, which is gradually lowered until one of the company agrees to take it. (c).
The civil business of the court was large and varied; such as actions for the recovery of debts, which were generally cases of disputed accounts, or of misunderstandings between the parties, for in proof the probity and punctuality of the Dutch suits by creditors to enforce payments from de- linquent debtors ; formed but a small proportion in the general mass of this business. There were proceedings by attachments against the property of absconding debtors, or of non-residents or foreigners, on which security was required of the debtor intending to depart, or release the property from the attachment; actions to recover the possession of land, or to settle bound- aries, a proceeding somewhat similar to the relief afforded by our courts of equity upon a confusion of boundaries ; actions to recover damages for in- juries to land or to personal property, or to recover specific personal prop- erty as in replevin, or its value as in trover.
Actions for freight, for seamen's wages, for rent, for breach of prom- ise of marriage, where the performance of the contract was enforced by imprisonment; for separation between man and wife, in which case the
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pened to touch at New Amsterdam on their way to Rhode Island, that the record would shamefully blot the pages of the journals of the Court of the Schout, Burgomasters and Schepens of New Amsterdam, if it could be shown that that municipal body abetted the Director-General in these fanatical excesses of authority.15 It seems that the Director would deal with such grave cases himself, through his higher court, his Council.
There were many schepens courts in the province, and although, in general, in their being inferior courts, they fol- lowed the procedure of that at New Amsterdam, they do not seem to have had as wide jurisdiction as their High Mighti- nesses, the Schout, Burgomasters, and Schepens of New Am- sterdam. The courts of the smaller towns could not provide schepens so well informed, or a schout so learned in the law, as those of the capital. Stuyvesant also had to be always mindful of the political situation, which was far different
children were equally allotted to the parties, and the property divided, after the payment of debts (d) proceedings in bastardy cases, in which the male was required to give security for the support of the child, and in which both delinquents might be punished by fine or imprisonment. Actions for assault and battery, and for defamation, which were quasi criminal pro- ceedings, punishable by fine, imprisonment or both, though the defamer was generally discharged upon making a solemn public recantation before the court, sometimes upon his knees, asking pardon of God and of the injured party. Pecuniary compensation, for injuries to person or character, could not be enforced; though cases occurred in which the defendant was dis- charged, it appearing that he had made compensation to the other party in money or goods. And, from the frequent application made to the courts for redress in cases of defamation, detraction would seem to have been a vice to which the inhabitants were particularly prone.
The court also acted as a Court of Admiralty, and as a Court of Probate, in taking proofs of last wills and testaments, and in appointing curators to take charge of the estates of widows and orphans. Application was made to Stuyvesant for liberty to establish an orphan house, similar to the celebrated institutions which exist throughout Holland. He did not think that such an establishment was necessary, but he afterwards assented to the appointment of orphan masters, and those officers acted in aid of the court. Some of its proceedings in the exercise of this branch of its jurisdiction will serve to illustrate how tenaciously the Dutch cling to old forms or legal ceremonies, as where a widow, to relieve herself from certain obligations, desired to renounce her husband's estate; it is in all such cases
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among the inhabitants of Long Island than in New Amster- dam. The English settlers on Long Island were intriguing with the New England colonies, with a view of freeing them- selves from Dutch authority; therefore, much caution was necessary in giving them even municipal jurisdiction. It must be confessed also that Stuyvesant's soul was grievously troubled at even the thought of the establishment of popular government. Therefore, whenever concessions in that direc- tion were made by the Provincial Government, they were invariably by the pressure of persistent agitation. When the outside towns were given a degree of local government, they had little authority. The Schepens Courts of New Netherland outside New Amsterdam had, at the outset, only minor juris- diction ; they could try only petty criminal cases, and decide only civil suits that did not exceed fifty guilders. And Stuyve- sant devised a controlling system which divided the province into judicial districts. He created a superior district court,
recorded that the intestate's estate "has been kicked away by his wife with the foot," and that she has duly "laid the key on the coffin." (e). The court also exercised a peculiar jurisdiction, that of summoning parents or guardians before them who, without cause, withheld their assent to the marriage of their children or wards, and of compelling them to give it. (f). It also granted passports to strangers, or conferred on them the burgher right, a distinction which now, that it has ceased to be attended with any practical advantage, is still kept up in the custom of tendering or present- ing the freedom of the city to strangers as a mark of respect.
It may not be uninteresting, moreover, to state that the origin of a fee bill, for regulating by a fixed and positive provision of law, the costs of attorneys and other public officers, is to be traced to Stuyvesant. On the 25th of January, 1658, he put forth what is known in Holland as a placard, that is, a proclamation or ordinance, emanating from some legis- lative or executive authority, having the force of law, by which he estab- lished a regular tariff of fees. In England the fees of attorneys and other officers of the court have generally been regulated by the court, and not by any public act. In New York, however, the fees of public officers has been a matter of public regulation from a very early period. T'en or twelve years after the restoration of the province to the English, they were reg- ulated by an ordinance of the governor, and afterwards by acts of the General Assembly; and there is every reason to believe that the practice, especially as respects the fees of attorneys and officers of the court, was derived from the Dutch. (g) .. A copy of Stuyvesant's ordinance remains in the Records of the Burgomaster and Schepens; and, as the preamble
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to which, up to a certain limit, appeal lay from the findings of the schepens' courts. The District Court was composed of magisterial delegates from each municipality in the district, a schout, who also acted as clerk, being assigned to each appellate court. The District Court was also to some extent a Court of Records. And an important power vested in it was the control of municipal expenditures, it having superintend- ence of all such municipal affairs as "the laying out of roads, the observance of the Sabbath, and the erection of churches and other public buildings" within the district.16 In course of time, as the towns grew in population and power of agitation, full municipal rights were extorted from Stuyvesant; but these privileges were conferred reluctantly and through the force of circumstances which left the Director no alternative course that was practicable.
to the document is of interest as a legal curiosity, we take the liberty to insert it :
"Whereas, the Director-General and Council of New Netherland have sufficient evidence from their own experience in certain bills of costs which have been exhibited to them, as well as by the remonstrances and com- plaints which have been presented to them by others, of the exactions of scriveners, notaries, clerks, and other licensed persons, in demanding and collecting from contending persons excessively large fees, and money, for writing for almost all sorts of instruments, to the manifest, yea, insuf- ferable expense of judgments and judicial costs; some of whom are led by their covetousness and avarice so far as to be ashamed to make a bill or specify the fees they demand, but ask or extort a sum in gross. Therefore, to provide for the better and more easy administration of justice, the Director-General and Council do enact," and so forth ;
after which follows provisions requiring the licensing of the officer en- titled to take the fees, the keeping of a record of all fees charged by them, and prohibiting champetry and other abuses. It is then provided that the officers enumerated shall serve the poor gratis, for God's sake, but may ask from the wealthy the fees specified. Each particular service is then enumerated in the manner of our former fee bills, with the number of stivers allowed for each. Among the provisions is the following entry :
"No drinking, treats, presents, gifts, or doucers shall be inserted in any bill or demanded."
and the ordinance concludes by directing that it shall be read once every year in the court, upon a day specified, to the officers enumerated, who were thereupon to be sworn faithfully to observe it; any officer being subject, for the violation of its provisions, to a fine of fifty guilders, or the loss of his office. (j).
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In criminal cases the Schout prosecuted as plaintiff on behalf of the community. At his requisition, and upon the inspection by a magistrate of evidence sufficient to warrant a belief that an offence had been committed, the offender might be arrested or summoned, according to the discretion of the magistrate; though, where the culprit was detected in the actual perpe- tration of the deed, or where, in the judgment of the Schout, there was strong ground for suspicion against him, and, in his opinion, the public interest demanded it, he might direct his immediate arrest; but in all such cases the Schout was obliged to give notice of the arrest to the magis- trate within twenty-four hours, who was thereupon bound to investigate the matter-a provision that practically dispensed with the necessity of the writ of habeas corpus, so familiar in the history of the English law. (k). Bail was allowed, except in cases of murder, rape, arson or treason. There were two modes of trying the prisoner; either publicly upon general evi- dence, which was the ordinary mode, or by examining him secretly in the presence of two schepens, in which written interrogatories were propounded to the prisoner, to which he was obliged to return categorical answers. The Dutch law then adhering to the general policy of the civil law, in respect to extorting confessions from offenders, and making use of the torture and of all those inquisitorial aids and appliances which have cast such a blemish upon the criminal jurisprudence of Europe. (m). The torture, however, was not used, except where the presumptive proof amounted almost to a certainty ; and I have found but one case upon the records in which this cruel and unnecessary test was resorted to. Criminal prosecutions were not frequent, nor were the offenses generally of a grave character. The pun- ishments were by fines, which were distributed in three equal parts : to the schout, to the poor, and to the court; by imprisonment, whipping, the pillory, banishment from the city or province, or death, which, however, could not be inflicted without the concurrence of the governor and his council. (n) .- Justice Daly, in "State of Jurisprudence During the Dutch Period," "His- tory of the Bench and Bar of New York" (1897), from study in the follow- ing sources.
(a) "N. Y. Rec. of Burgomasters and Schepens," I, 188, 231; II, 104, 176; III, 188; V, 190; VI, 474; VII, 180.
(b) Ibid, VII, VIII; Meyers' "Institutions Judiciaries," Chap. 14, 387 ; Van Leeuwen's "Roman Dutch Law," Book V, Chap. XIII to XX and XXIII.
(c) "Rec. N. Y. Burg. and Schep., I, 204, 250; V, 207, 576; Van Leeuwen, Book V, Chap. XXV.
(d) "Rec. N. Y. Burg. and Schep., IV, 1659. Rec. Mayor's Court, I, 533.
(e) "Rec. N. Y. Burg. and Schep., II, 32.
(f) "Ibidus," Vols. I to 6.
(g) Ordinance and Table of Fees in first ed. of "Colonial Laws," by Bradford, 1694; "Charter Book and Acts of Assembly of 1683," in office of Secretary of State; "Laws of 1709," ordinance regulating fees.
(j) Placards of Stuyvesant in "Rec. N. Y. Burg. and Schep."
(k) "Ordinances of Amsterdam," p. 46 and seq. Ed. of 1644.
(m) "Practique et encheridon des causes Criminills Louvain," 1555; Van Leeuwen, Book V, Chap. 27, 28.
C.&L .- 10
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(n) "Records N. Y. Burg. and Schep., IV, 141.
6. If to-day an action is brought before our judiciary, it is fought as it were inch by inch by the opposing counsel. The judgment when obtained is enforced to the uttermost farthing. The cause may go to a referee, but his duties are simply those as it were of an umpire. Nor does our law make any account of the defendant, unless the defendant looks out for himself. It was different in old New Amsterdam; the Court was of so Ar- cadian a character, so utterly pledged to the eccentric notion that all men are somehow brothers, or if not that they ought to be, that it was loath to exercise its judicial authority ; to enforce the execution of justice. It was a Court of conciliation, a begetter of harmony, which from its very pom- posity and ceremonialism was all the more potent as authority to compel the resumption of friendly relations. If a case were brought before it, each party stated his case to the best of his ability and then the judges rendered their decision on the facts, or appointed arbitrators to bring the opponents together. These arbitrators were appointed to review the matter thoroughly and agree upon some basis of compromise, which was usually accepted by both parties .- James Walton Brooks, in the "History of the Court of Com- mon Pleas" (1896).
7. Documents of Stuyvesant's Council, in "N. Y. Record of Burgomas- ters and Schepens," Feb. 26, 1654.
8. Resolved, ratified and concluded in Court, that the previously en- acted Ordinance of Schout, Burgomasters and Schepens on the subject of appearance at and absence from the ordinary, extraordinary and other meetings shall be strictly obeyed and observed conformably to its tenor; to wit: Whoever comes half an hour too late shall pay a fine of ten stivers (12 cents). Whoever comes one hour late twenty stiv .: Whoever is absent altogether forty stiv .- "Records of New Amsterdam," III, 162.
9. A salary of three hundred and fifty guilders ($140) was fixed for each burgomaster, and two hundred and fifty guilders ($100) for each schepen .- Chester's "Legal and Judicial History of New York," Vol. I, 64.
IO. Ibid. Vol. I, 65.
II. In the beginning of the year 1657 an attempt was made to introduce one of those caste distinctions of the Netherlands, which gave to the Dutch Republic marked peculiarities, as contrasted with the English common- wealth. The "burgher right" was then tendered to New Amsterdam. This right conferred important legal, commercial and political privileges. Dis- tinctions were introduced among the burghers of Amsterdam, the parent city, in 1652, by dividing them into two classes, the Great and Small. The lesser citizenship only conveyed freedom of trade, and the privilege of being received into the respective guilds. The great burghers, who only could hold office, became such by official distinction, inheritance and purchase. This odious legalized system of an aristocratic official caste was formally intro- duced into New Amsterdam February Ist, 1657. To the honor of the Dutch founders of this imperial commonwealth be it said, the attempt to sell the Great Burgher right failed. One year later, Feb. 1, 1658, when the burghers were first permitted to make double nominations for magistrates, Stuyvesant was compelled to invest some of the more prominent citizens with the right, in order to fill the offices. He, however, obtained thereby the power to exclude from the privilege of holding office whoever he saw fit, unless they paid for it .- Werner, in "New York Civil List," 1888.
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12. Whereas, Walewyn van der Veen insulted the subaltern bench of justice of this City and spoke calumniously of the same, touching which the officer making this demand and Burgomasters and Schepens having heard the demand and proof of the Schout adjudge that Walewyn van der Veen for his committed insult shall here beg forgiveness, with uncovered head, of God, Justice and the Court, and moreover pay as a fine the sum of one hundred and ninety guilders to be duly applied, with costs, and in case of refusal he shall go immediately into confinement .- Chester's "Legal and Judicial History of New York," Vol. I, 78.
13. The Director-General and Council, appreciating their office authority and commission better than others, hereby notify the Burgomasters and Schepens that the establishing of an Inferior Court of Justice under the name and title of Schout, Bourgomasters and Schepens, or Commissionaries, does in no wise infringe on or diminish the power and authority of the interdicts, especially those which tend to the glory of God, the best interests of the inhabitants or will prevent more sins, scandals, debaucheries and crimes, and properly correct, fine and punish obstinate transactions. What is solely the qualification of Schout, Burgomasters and Schepens, and for what purpose they are appointed, appear sufficiently from the Instruction given to them, by which they have to abide and conform themselves, with- out henceforth troubling or tormenting the Director-General individually about any enacted ordinance, law, or order, penalty or punishment issued or executed against and concerning the contraveners thereof by previous resolution of the Director-General and Council-(This was prompted by dismissal of prisoners brought before Schepens Court in 1654, charged with hilarious conduct, despite order of Director) .- See "Records of New Am- sterdam," I, 172.
14. The instructions read as follows :
I. In the first place, the Sheriff shall, as the Director-General anl Coun- cil's guardian of the law in the district of the City of New Amsterdam, preserve, protect and maintain, to the best of his knowledge and ability, the preëminences and immunities of the privileged West India Company, in as far as these have been delegated by previous Instruction to the Board of Burgomasters and Schepens; without any dissimulation, or regard for any private favor or displeasure.
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