USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 30
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popular bodies, whereas under the Duke's code the inhab- itants were powerless.17
Next in rank to the Court of Assizes was the Court of Sessions. Yorkshire was divided into three judicial districts, or ridings, and by the Nicolls' code each was to be served by a Court of Sessions, consisting of justices of the peace, who were appointed by the governor and Council. "The Laws do not prescribe the number of these justices. Sessions were held regularly three times in a year in each Riding, but after- wards, by an amendment to the Laws, twice in a year." These courts had civil jurisdiction in all cases wherein five or more pounds were involved, with right of appeal to the Court of Assizes in cases involving more than twenty pounds. "All cases involving more than twenty pounds might, however, be originally tried at the Court of Assizes by the governor's special warrant." The Court of Sessions also had criminal
17. The Governor and his Council remained the real lawmakers as well as the interpreters of the laws they made. Before long, it is true, the court of assize deliberated with closed doors upon the general concerns of the province and made such changes in the laws as were thought proper. But the Duke of York who, by his patent, had "full and absolute power" disapproved of legislative assemblies as inconsistent with the form of gov- ernment he had established in his province. Yet he supposed no harm and much good might result from the justices being allowed once a year to meet with the Governor and his Council and make desirable changes in the laws which, after all, were subject to his own approval. These justices he com- placently assumed would be chosen by the people themselves as their rep- resentatives, if another constitution were allowed. Moreover, the Court of Assize was the most convenient place for the publication of any new laws, or of any business of general concern. In establishing that court the Duke's deputy did not concede any political privileges to the people. All its officers were his own subordinates; none of them his colleagues. Nicolls was and continued to be, a provincial autocrat who exercised, indeed, his delegated powers with the prudence and moderation which belonged to his character, but who, in adroitly allowing his official dependents apparently to have with himself the responsibility of legislation did not in the least curtail his own vast authority .- Brodhead's "History of the State of New York," Vol. II, 63-64.
This high court (of Assize) had original jurisdiction of all criminal prosecutions, and of civil actions for the recovery of more than £20, and was the final court of appeal, except as it permitted a further appeal to the Crown. It was also made a vehicle, a veritable lit de justice-for pro- mulgating and recording the ordinances of the Duke and his Council in
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jurisdiction in all but capital cases. They functioned also as an Orphans' Court, and performed many duties of execu- tive character. No appeal lay from their findings in civil cases involving less than twenty pounds, except "where there is a dubiousness in the expression of the Law."18
"All original process was required to set out the name in which the party sued, whether in his own name or as an executor or administrator, etc. The justices or the high sheriff issued all writs or warrants, except in the case of special warrants from the governor. The eldest justice of the peace, in the absence of the governor, deputy governor, or some one of the Council, pronounced the decrees, or sentences of the court.19 The clerk of the sessions certified to the sheriff, before the sitting of the court, what and how many cases were entered for trial thereat; whereupon the sheriff issued warrants to the constables of the several towns of the jurisdiction for jurymen, Proportionable to the causes with regard to the equality of the number from each town and ac- cording to the warrants. The constable then notified as many of the overseers of the several towns as might be required
England, and those of his Deputy and Council here. Its territorial jurisdic- tion was as extensive as the Duke's possessions, and therefore included the Pemaquid country (between the Saint Croix and Kennebec, in Maine), Martha's Vineyard, Nantucket, Fisher's, now Newcastle, in Delaware, and, for a portion of its history, New Jersey, besides, of course, New York proper, as far north and west as Schenectady-"History of the Bench and Bar of New York, English Colonial Polity and Judicial Administration, 1664-1776," by Redfield.
18. In all cases the plaintiff was required to file his declaration eight days before the day of hearing, and to enter into a recognizance to pay the cost of a jury for one day. Where the defendant lived at a distance from the court, he was to be served with the heads of the plaintiff's declaration as well as the summons at the place of his abode. The defendant was required to file an answer. If the judgment was for the plaintiff, it was re- quired to be endorsed on the declaration; if for the defendant, on the answer. -Eastman's "Courts and Lawyers of Pennsylvania," Vol. I, 38.
19. Except in case of Natural Imperfections, or agreement among the Justices themselves, it be otherwise determined to any other Person of them, In either of which cases the Justices shall refuse to do His Office, or enter his dissent to the prejudice of the Court.
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to attend as jurymen. Talesmen might be selected by the court from persons attending the court, or inhabitants of the town where the session was held."
The constitution of the jury caused much dissatisfaction, and this, perhaps, was in time instanced as one of the points at which the Duke of York's Laws were out of harmony with the constitutional rights of Englishmen.20 On the other
20. While general legislative power for England was never claimed by any of her sovereigns, it was never doubted that the Crown possessed this high prerogative power over the colonies, and that this power was com- municable to a subject In New York, the Duke of York's deputy-governor might, as he did, declare that "no jury shall exceed the number of seven, nor be under six, unless in special causes upon Life and Death, the justices shall think fit to appoint twelve,"-the verdict, in civil cases, to be by a majority vote and perjury to be a capital felony in certain cases. But in England, we are told, "the most violent and imperious Plantagenet never fancied himself competent to enact, without the consent of his Great Council, that a jury should consist of ten persons, instead of twelve, that a widow's dower should be a fourth instead of a third, that perjury should be a felony, or that the custom of gavelkind should be introduced into Yorkshire."- Macaulay's "History of England," I, 35.
20. No jury was to exceed the number of seven, nor be under six, "unless in special cases upon life and death, the Justices shall thinke fitt to appoint twelve." All juries were required to be sworn truly to try between party and party, and to find all matters of fact, with the damages and costs, according to the evidence, the justices directing the jury in points of law.
"And if there bee matter of apparent equity upon the forfeiture of an Obligation, breach of Covenant without damage or the like, the Bench shall determine such matters of equity.
"In all cases wherein the Law is obscure, so as the Jury cannot be Sattisfied therein, they have Liberty to present a special verdict (viz.) If the law be so in such a point, We find for the plaintiffs, but if the Law be otherwise, We find for the Defendant, in which case the determination doth properly belong to the Court, And all Juryes shall have liberty in matter of fact, if they cannot finds the maine Issue, yet to find and present in their verdict so much as they Can."
Another curious provision reads :
"Whensoever any Jury or Jurores are not Clear in their Judgements concerning any Case, they shall have liberty in open Court (but not other- wise), to advise with any particular man upon the Bench, or any other whom they shall think fitt to Resolve and direct them before they give in their Verdict."
Except in cases of life and death, a majority of the jury might bring in a verdict, the minority being concluded by the majority without allow- ance of any protest by any of them to the contrary. Challenges were allowed to jurors on the ground of relationship, and the court is to judge of any other just exceptions against jurors besides kindred. Any one revealing
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hand, fees were not excessive,21 and, if pompous ceremony meant anything to the ordinary layman, the proceedings of the Court of Sessions probably impressed the average in- habitant.22 The proceedings in at least one case in the Court of Oyer and Terminer show that sentence was actually pro- nounced upon the criminal before he had been tried, the sen- tence, indeed, being arrived at by the Governor and Council before the commission was issued for trial by jury. And the
the dissenting votes of a jury or arbitration forfeited ten shillings for the first offense, and for further offenses of this nature such greater fine as the court should impose. Jurymen were allowed three shillings and sixpence per diem,-Eastman's "Courts and Lawyers of Pennsylvania."
21. In all civil cases there was a docket fee ranging from two shillings and sixpence, in cases under five pounds, to twenty shillings, in cases in- volving from twenty to forty pounds, and two shillings and sixpence for every ten pounds above forty, such fees to be devoted to the defraying of court charges. All causes were to be tried in the order in which they were entered.
No one was to be put to death without the testimony of two or more witnesses, the confession of the party, or other equivalent circumstances. Every witness in a civil action might require from the party at whose suit he appeared two shillings per diem, whether he gave his evidence voluntarily or was served with a subpoena, but unless served with a subpoena it was in his option whether he should appear or not.
In all actions, whether civil or criminal, the party losing the suit was required to pay all costs. The justices composing the courts received certain fees for the issue of process. Originally, they received no compensation for their services upon the bench, but by an amendment to the Laws they were each allowed twenty pounds per annum, payable out of the public rates, for their services.
22. And whereas there is great Respect due, and by all persons ought to be given to Courts which so nearly represent his Majesties sacred Person, and that such order, gravity and decorum, which doth manifest the Author- ity of a Court, may be maintained. These rules and formes following are to be observed for beginning, Continuing and proceeding in the said Court.
The Stile of the Court to be entered thus :
At a Court of Sessions held at the - day of by his Majesties Authority in the Seventeenth year of the Raigne of our Sov- ereigne Lord, Charles the Second, by the grace of God of Great Brittaine, France and Ireland King; Defender of the Faith, etc .: And in the year of our Lord 1664 present.
Insert the name of the Governoure. Silence Commanded Then let the Cryer or under Sheriff make proclamation and Say, O yes, O yes, O yes.
Silence is commanded in the Court whilest his Majesties Governoure, Counsell and Justices are Sitting upon pain of Imprisonment.
After Silence is Commanded Lett the Cryer make Proclamation Say-
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instructions to the latter were so explicit that no other finding than Guilty seemed to be a possibility.23
The general affairs of the English towns, under the Duke of York's Code, were within the jurisdiction of the Con- stable's, or Town Court, this taking the place, in Yorkshire, of the Schepens Courts of the Dutch system. The executive power in Yorkshire was in the hands of a high sheriff, ap- pointed annually by the governor, the three ridings of York- shire in turn furnishing the candidate. Each town had a board of at first eight but later four overseers, elected by the freemen, who also chose one of the eight to act as constable. They were the town officers for all purposes, executive and magisterial.24 Assessments were to be made for church pur- poses, and a church with capacity for two hundred persons was to be erected in every town that had no meeting house.
ing : All manner of Persons that have any thing to do at this Court, draw near and give Attendance; and if any one have any Plaint to Enter, or Suit to procecute, Lett them come forth and they shall be heard.
When Silence is thus commanded and Proclamation made upon Calling the Dockett, the Cryer shall Call for the Plaintiffe.
Calling for the Plaintiffe.
A. B., come forth and prosecute the Action against C. D., or else thou wilt be non Suited. And the Plaintiffe putting in his Declaration, the Cryer shall Call for the Defendant.
Calling for the Defendant.
C. D., come forth and save thee and thy Bayle, or else thou wilt forfet thy Recognizance.
For proceeding in the said Court.
Warrants to be issued by the Clerk.
Whosoever shall speak in Derogation of the Sentence or Judgment of any Court shall be fined at the Discretion of the next Court of Sessions or Assizes.
23. An attempt by one Marcus Jacobson, known by other names, but best as The Long Finne, attempted to rouse the Swedes of the Delaware region to rebellion, in 1669, during the administration of Governor Lovelace. . The movement was nipped in the bud, and Jacobson was arrested. The case was considered important, a matter which the Governor and his Council should handle with directness, vigor, and alacrity, yet of such magnitude that the Governor hesitated to act on his own responsibility. While awaiting advice from the English Government, he urged the official in charge on the Delaware, Captain John Carre, to keep vigilant watch, to prevent a spread- ing of the revolt. On September 15th he wrote to Capt. Carre, stating that
C.&L .- 21
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Action in this respect was, however, dilatory. Slavery was recognized as legal, as there were many negro slaves already in the province ; but unkind treatment of them, or of servants, was punishable. Trading between Indians and whites was restricted; there were very many ordinances providing for minor matters of discipline, for licenses, trading and so forth ; no Christian was to be molested for minor difference of doc- trine, but no Indian was to be permitted "to powwow, or per- form outward worship to the devil." The militia law in- cluded all persons over sixteen years old, with the militia expense equitably shared by all the towns.
The high sheriff was, it seems, a most important public functionary of the Court of Sessions. In minor criminal cases the prosecuting witness usually was plaintiff, but in the more serious cases the high sheriff prosecuted in the name of the King, sometimes in the name of the Duke. Attorneys were early admitted to plead, and while, in 1677, the governor
all business is waiting "upon that breath that must animate this little body politique of ours, so that what I do recommend unto you now must rather respect the stopping of the spreading of the contagion, that it grow not further, than by any way of amputating or cutting of any member to make the cure more perfect."
But a month later, the case of the "Long Finne" could be dealt with by the Governor and his Council, advice having, it would seem, been received from England. On October 18th, at a meeting of the Council, "upon serious and due consideration had of the insurrection . . . it is adjudged that the Long Finne deserves to die for the same, yet in regard that many others being concerned with him, in that insurrection, might be involved in the same Premunire if the rigour of the law should be extended, and among them divers simple and ignorant people, it is thought fit and ordered that the said Long Finne shall be publicly and severely whipped and stigmatized or branded in the face with the letter R, with an inscription written in great letters and put upon his breast, that he received that punishment for attempted rebellion, after which he be secured until he can be sent and sold to the Barbadoes or some other of these remoter plantations."
Although prejudged, the Governor gave semblance of regularity to the case by commissioning Matthias Nicolls and certain other persons, on No- vember 22nd, to go to the Delaware for the trial of the Long Finne and other rebels. The court procedure, in the matter of the Long Finne, fol- lowed the pre-arranged form, at the trial before the commissioners. It opened at Newcastle on December 6th, and took the following order :
Upon the metting of the Court, let a proclamation be made by saying, O
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and Council issued an order that "pleading attorneys be no longer allowed to practice in the government but for the de- pending causes," the order must have been rescinded or disre- garded, for attorneys are named through all the records of the courts. It was early ordered that "no person be admitted to plead for any other person as an attorney in court without he first have his admittance of the court, or have a warrant of attorney for his so doing from his client." An order of the court in 1667 reads: "The cryer of the court is to have for every attorney that shall be admitted and sworn in court twelve gilders or half a beaver." Attorneys, upon admission to practice, had to take oath not to exact excessive fees, nor take fees in the same action from both parties.25 The Duke's laws provided that the high sheriff could be assigned by the court to act as attorney for "any poore person not able to plead his own case."26 Presumably he did so gratis. The sheriff, like the schout, was the public prosecutor. He drew
yes, O yes, Silence is commanded in the Court whilst his Majesty's Com- mission are sitting upon pain of punishment.
Let the Commission be read and the Commission called upon afterwards, if any shall be absent let their names be recorded.
Then let the proclamation be made again by O yes, as before, after which say : All manner of persons that have anything to doe at this special Court, held by Commission from the Right Honorable Francis Lovelace, Esq., Governor Generall under his Royal Highness, the Duke of York, of all his Territories in America, draw near to give your attendance, and if any one have any plaint to enter or suite to prosecute let them come forth and they shall be heard.
After this let a jury of twelve good men be empannelled.
Then let the Long Finne prisoner in the Fort be called for and brought to the Bar.
Upon which the jury is to be called over and numbered one, two, etc., and if the prisoner have no exception against either of them let them be sworne as directed in the Book of Laws for Trial of criminals and bid to look upon the prisoner at the Bar.
The form of oath is as followeth : You do swear by the Everliving God that you will conscientiously try and deliver your verdict between our Sov- ereign Lord and King, and the prisoner at the Bar, according to evidence and the laws of the country so help you God, and the contents of this book. Then let the prisoner be again called upon and bid to hold up his right hand : viz., John Binckson, alias Marcus Coningsmarke, alias Coningsmarcus, alias Matthew Hincks. . Then proceed with the indictment as follows : John
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up the so-called indictments, which were in fact informations, the Duke's laws having made no provision for grand juries; one such information is quoted below.27
The first high sheriff appointed for the three ridings of Yorkshire was William Wells, of Southold. He was assisted by three deputies, one deputy sheriff in each riding. In 1666 the office of deputy sheriff was abolished, but that of high sheriff was continued until 1683; and in place of deputy sheriffs high constables were appointed. The first for the North Riding of Yorkshire was John Underhill. These offi- cers were appointed for one year, but the justices of the peace "continued in office at the pleasure of the governor." Daniel Denton, of Jamaica ; John Hicks, of Hempstead ; Jonas Wood, of Huntington, and James Hubbard, of Gravesend, were among the early justices of the peace in Yorkshire. John Manning was sheriff of Albany in 1665, being appointed in
Binckson, Thou standest here indicted by the name of John Bincksen, alias Coningsmarke . . . for that having not the fear of God before thine eyes but being instigated by the devil upon or about the 28th day of August, in the 2Ist year of the Reign of our Sovereign Lord, Charles the 2nd, by the Grace of God of England, Scotland, France and Ireland, King; Defender of the Faith, etc., Annoque Domini 1669, at Christina and at several other times and places before thou didst most wickedly, traitorously, feloniously and maliciously conspire and attempt to invade by force of arms this Government settled under the allegiance and protection of his Majesty and also didst most traitorously solicit and entice divers and threaten others of his Majesty's good subjects to betray their allegiance to his Majesty the King of England, persuading them to revolt and adhere to a foreign prince, that is to say, to the King of Sweden. In prosecution whereof thou didst appoint and cause to be held Riotous, Routous and unlawful Assemblages, breaking the peace of our Sovereign Lord, the King, and the laws of the Government in such cases provided. John Binckson, etc., what has thou to say for thyself, Art thou guilty of the felony and treason laid to thy charge, or not guilty? If he says not guilty, then ask him, By whom wilt thou be tried? If he say by God and his country, say, God send thee a good deliverance.
Then call the witnesses and let them be sworn either to their testimony already given in, or to what they will then declare upon their oaths.
Upon which the Jury is to have their charge giving them directing them to find the matter of Fact according to the Evidence, and then let them be called over as they go out to consult upon their verdict in which they must all agree.
When the jury returns to deliver in their verdict to the Court let them be called over again and then asked : Gents, Are you agreed upon your ver-
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April. Allard Anthony was appointed sheriff of New York in June of same year. In July, 1667, Manning succeeded Anthony at New York, and held the office until 1671, four years being the maximum term any person could successively hold the office. The sheriff was barred from holding any other public office during his incumbency.
Jurisprudence in New York under the first English ad- ministration was undoubtedly complicated by the observance of the terms of surrender of New Amsterdam, in 1664. It developed the anomaly of a government functioning under two legal systems which could not be merged without conflict in some of the vital principles.28 However, the Dutch code became to all intents inoperative after 1674, and the Duke of York's Code of Lawes29 gave way to a better English code in 1683. It is, however, difficult to change the customs of a people by statute or ordinance; ordinances are more likely, in fact, to reflect and be influenced by the prevailing customs. Dutch influence undoubtedly helped to mould laws of succeed- ing English systems in New York State.
dict in this case, in difference between your Sovereign Lord, the King, and the prisoner at the Bar? Upon their saying yes, ask who shall speak for you. Then the . . bring in their verdict and the . . . Then read the verdict and say: Gentlemen, this is your verdict upon which you are all agreed : upon their saying yes, call that the prisoner be taken from the bar and secured. Through all the instruments of this case ran clearly the im- pression that sentence had already been pronounced, that the prisoner was guilty. What would have happened had the jury found the prisoner not guilty one can only conjecture. The Governor and Council, by their in- structions to the Commission, evidently had no doubt as to the verdict, or were confident that the jurymen would be carefully empanelled.
The outcome of the trial was that Long Finne soon afterwards was placed on the ship "Fort Albany" and transported to Barbadoes, there to be sold into slavery .- See the "Duke of Yorks' Book of Laws," Common- wealth of Pennsylvania, 1879.
24. Particular provision was made for town governments. The sev- eral towns were authorized annually on the first or second day of April to elect a constable, and at first sight, and afterward, by a subsequent amend- ment, four overseers. These overseers were the assessors of the town and with the constable were empowered to make regulations respecting matters which concerned the police and good government of the town. The con- stable and overseers were required annually to appoint two of the overseers
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