USA > New York > Historical sketch of the judicial tribunals of New York from 1623 to 1846 > Part 3
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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 re- mainder in a month. If, at the expiration of that time, he did not comply, applica- tion 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, summoned him to make satisfaction in 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 messenger, in the presence of a schepen, took into custody the debtor's movable goods, which he detained for six
1 Rec. of N. Y. Burg. and Schep. vii. viii. Myers' Institutions Judiciaries, chap. 14, 387. Van Leuwen, book v. chap. xiii. toxx. and xxiii.
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days, within which time they might be redeemed on payment of the expenses. If they were not redeemed, notice was then given by publicly announcing upon a Sun- day, and upon a law day, that they would be sold, and at 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 burn- ing, 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 a public offer of the property is made at a price beyond its real value, which is gradually lowered or diminished until one of the company agrees to take it.1
The civil business of the court was large and varied ; such as actions for the re- covery of debts, which were generally cases of disputed accounts, or of misunder- standing between the parties, for in proof the probity and punctuality of the Dutch suits by creditors to enforce payments from delinquent debtors, formed but a small proportion in the general mass of this business. There were proceedings by attach- ments against the property of absconding debtors, or of non residents or foreigners, on which security was required of the debtor intending to depart, to release the pro- perty from the attachment; actions to recover the possession of land, or to settle boundaries, a proceeding somewhat similar to the relief afforded by our courts of equity upon a confusion of boundaries ; actions to recover damages for injuries to land or to personal property, or to recover specific personal property as in replevin, or its value as in trover.
Actions for freight, for seamen's wages, for rent, for breach of promise of mar- riage, where the performance of the contract was enforced by imprisonment ; for separation between man and wife, in which case the children were equally allotted to the parties, and the property divided,2 after the payment of debts ; 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 imprison- ment. Actions for assault and battery, and for defamation, which were quasi criminal® proceedings, punishable by fine, imprisonment, or both, though the defamer was generally discharged upon making a solemn public recantation before the court, some- times 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 discharged, it appearing that he had made compensation to the other party in money or goods. And, from the frequent appli- cation made to the court 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 through- out Holland. He did not think that such an establishment was necessary, but he after- wards 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 juris-
1 Rec. of N. Y. Burg, and Schep. i. 204, 250; v. 207, 576. Van Leuwen, book 5, chap. 25.
2 Rec. of N. Y. Burg. & Schep. iv. 1659. Rec. of Mayor's Court, i. 533.
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diction, will serve to illustrate how tenaciously the Dutch clung 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, 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."1 The court also exercised a peculiar jurisdiction, that of sum- moning parents or guardians before them, who, without sufficient cause, withheld their assent to the marriage of their children or wards, and of compelling them to give it.ª It also granted passports to strangers, or conferred on them the burgher right, a dis- tinction, which now, that it has ceased to be attended with any practical advantage, is still kept up in the custom of tendering or presenting 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 legislative or executive authority, having the force of law, by which he established a regular tariff of fees. In Eng- land, the fees of attorneys and other officers of the court has always 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 statute regulation from a very early period. Ten or twelve years after the restoration of the province to the English, they were regu- lated by an ordinance of the governor, and afterwards by acts of the general assem- bly ; 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.3 A copy of Stuyvesant's ordinance remains in the records of the burgomaster and schepens, and as the preamble to the document is of interest as a legal curiosity, we shall 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 complaints 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, insufferable 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," &c .; after which follows provisions requiring the licensing of the officer entitled 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 take from the wealthy the fees specified. Each particular service is then enu- merated 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,
1 Rec. of N. Y. Burg. & Schep. ii., 323.
2 Rec. of N. Y. Burg. and Schep. vols. 1, 2, 3, 4, 5, 6.
3 Ordinance and Table of Fees in first edition of the Colonial Laws, by Bradford, 1694 ; Charter Book and Acts of Assembly of 1683, in office of Secretary of State ; Laws of 1709, ordinance regu- lating fees.
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presents, gifts or doucers shall be inserted in any bill, or demanded ;" and the ordi- nance 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 faith- fully to observe it; any officer being subject, for a violation of its provisions, to a fine of fifty guilders, or the loss of his office.1
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 ar- rested or summoned according to the discretion of the magistrate; though where the culprit was detected in the actual perpetration of the deed, or where, in the judgment of the schout, there was strong ground of 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 magistrate 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 .? Bail was allowed, except in cases of murder, rape, arson or treason. There were two modes of trying the prisoner ; either publicly upon general evidence, which was the ordinary mode, or by examin- ing 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.3 The torture, however, was not used, except where the presumptive proof amounted almost to a certainty ; and but one case has been found upon the records in which this cruel and unnecessary test was resorted to. Criminal prosecutions were not frequent, nor were the offences generally of a grave character. The punishments were by fine, which were distributed in three equal parts, to the schout, to the court and to the poor; by imprisonment, whipping, the pillory, banishment from the city or the province, or death, which, however, could not be inflicted without the concurrence of the governor and his council.4
Courts of the same popular character were established upon Long Island," shortly after the erection of the one at New Amsterdam. A court with two schepens existed at Breuklin (Brooklyn) before 1654, which in that year was increased to four schepens. There was one at Midwout, (Flatbush,) with three schepens, and another at Amersfoort, (Flatlands.) David Provoost, who had been a notary at New Amsterdam, was made schout of Breuklin, and a district court was established, composed of the schout of Breuklin, and of delegates from these three tribunals, which was continued until 1661. In that year, similar courts were established at Boswyck, (Bushwick,) and at New Utrecht, and the whole were formed into a district known as " the five Dutch towns," to which there was attached one schout, residing at Breuklin, each town having its
1 Placards of Stuyvesant, in Rec. of N. Y. Birg. & Schep.
2 Ordinances of Amsterdam, p. 46, and seq. Ed. of 1644.
3 La Practique et encheridon des causes Criminills, Louvain, 1555. Van Leuwen, book 5, chaps. 27, 28.
4 Rec. of N. Y. Burg. and Schep. iv. 141.
5 2 Thompson's History of Long Island, 96. 2 O'Call. 813, 323.
C
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HISTORY OF THE COURT AND OF THE
. separate courts.1 Courts were also established by virtue of a grant from Stuyvesant, among the English settlers at Canorasset, (Jamaica,) in 1656,2 and at Middleburgh, (Newtown,) in 1659.3 In 1652, Stuyvesant, by the simple exercise of his prerogative, established a court at Beverwyck, (Albany,) independent of the patroon's court of Raensellerryck.4 It was held at the house of the vice director, upon the second floor, in a room directly under the roof, without a chimney, and to which access was had by a straight ladder, through a trap door.5 The courts thus enumerated, including the patroon courts, already referred to, and the supreme or appellate court at New Amsterdam, composed of the governor and council, constituted the judicial tribunals of New Netherland, until the colony passed into the hands of the English.
That event took place on the 6th September, 1664.6 By the terms of capitulation entered into between Col. Richard Nicolls and Stuyvesant, it was agreed that such of the inhabitants as desired might return to Holland, and that those who remained should continue to enjoy their own customs concerning their inheritances ; that public records, except such as concerned the states general, should be carefully kept ; that all contracts made before the signing of the articles should be determined according to the manner of the Dutch ; that no judgment that had passed any judicature in the colony should thereafter be called in question, and that all inferior civil officers and magistrates should continue as they were until the customary time of new elections, when they should then have the choice of their successors, the new magistrates so chosen taking the oath of allegiance to the king of Great Britain." Immediately upon assuming the government, as the representative of James, Duke of York, to whom the territory had been ceded by virtue of a grant or patent from Charles II., Nicolls changed its name, as well as that of the city, to New York, but abstained from any interference with the municipal government of the city, or with the ad- ministration of justice, until a later period.
He carried out the terms of capitulation that had been agreed upon, and adapted bis measures so judiciously, that the municipal government of the burgomasters and schepens was resumed within a week, and the administration of justice was proceeded with as before. Upon resuming their duties, the burgomasters and schepens ad- dressed a long letter to the directors of the West India Company, announcing the capitulation, and setting forth the reasons why they had deemed it best to continue under the rule of their conquerors. It was an affectionate and earnest epistle, ad- dressed to the directors by " their honors' loyal, sorrowful and desolate subjects," concluding in these words: "Meanwhile, since we have no longer to depend upon your honors' power and protection, we, with all the poor sorrowing and abandoned commonalty here, must fly for refuge to the Almighty God, not doubting but that He will stand by us in this sorely afflicting conjunction. We remain your sorrowful and abandoned subjects. Done at Jorck, ( York,) heretofore named Amsterdam, in New Netherland, 16th of Sept., 1664."78 When the time arrived, in the February
1 Brodhead, 580.
2 Thompson's History of Long Island, 96.
9 Riker's Annals of Newtown.
4 Albany Rec. 183. Records of Mortgages, Albany, bock A. 2 O'Call. 183.
$ 2 0'Call. 811.
6 Brodhead, 762.
7 2 Rev. Laws, Appendix, No. 1.
8 5 Rec. of N. Y. Burg. and Schepens.
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following, for choosing new magistrates, great reluctance was shown to take the oath of allegiance. Peter Tonneman, the schout, positively refused, and departed for Holland. Allard Anthony was chosen in his place, and he, with the other new magistrates, took the oath, though but one hundred and fifty of the inhabitants could be prevailed upon to do so.
James was no sooner apprised of the success of his expedition, than he applied to his father-in-law, Clarendon, then Lord Chancellor and first lord of the committee on foreign plantations, to draw up a body of laws for the government of his new territory. Clarendon accordingly prepared a code;1 and this code or digest was transmitted to Nicolls, who immediately called a convention, formally to ratify and adopt it. This convention was held at Hempstead, Long Island, on the last day of February, 1665, or about five months after the capitulation of the province. It was composed of two delegates from each of the towns of Long Island, and from West- chester,2 in all, thirty four members. The English had settled in parts of Westchester and Long Island, adopting, in many of their settlements, their own usages and cus- toms. In the towns on Long Island associated with New England, the common law was in use, while in those near New York, the Dutch law prevailed." It would seem, from the proclamation of Nicolls, as well as from the fact that no delegates were elected for or sent to represent the city of New York, that he intended ! that this code should merely go into operation in Long Island and Westchester, and should have no effect in New York and the Dutch settlements along the Hudson and at Albany. It was framed for the government of the whole province, but Nicolls, who was a judicious and sensible man, doubtless perceived how impossible it would be to bring it into operation among a people more than three fourths of whom were unable to speak the language of their rulers,4 and who had lived for nearly half a century under municipal and judicial institutions derived from their mother country, with such changes and modifications as were adapted to their peculiar condition. The delegates met, aud, after settling the boundaries of the several towns, the code, which was thereafter known as "the Duke's Laws," was publicly promulgated or ratified, and written copies of it distributed for the use of the towns. The conven- tion merely adopted the code in the form in which they received it, for very soon, after, Nicolls issued an order, wherein, after declaring that he had received informa- tion, that at the sitting of the convention divers inconveniences were found in par-
1 The writer is indebted to Dr. O'Callaghan for the first intimation of the fact that Clarendon was the author of this code. Many circumstances might be adduced, the result of a very full investigation of the subject, to show that he was author, but it is thought that it will be sufficient t > insert the following note, received from Dr. O'Callaghan, with reference to certain documents : Albany, 21st Oct., 1854.
MY DEAR SIR,-Your favor of the 18th reached me yesterday, and I seize the earliest moment, to state, in reply to your inquiry, that in the course of my researches, preparatory to the publication of my 2d volume of the History of New Netherland, I came across the fact in some old record. It, made a strong impression on my mind at the time, though I neglected to make a note of it, as it was posterior to the period to which my researches were limited. Should I again come across the old paper, I shall have much pleasure in informing you of the circumstance.
Believe me, &c., &c., E. B. O'CALLAGHAN.
And see 3 Colonial Doc. relative to History of N. Y. 92, 104, 106, 114, 116.
2 1 Thompson's History of Long Island, 131.
3 1 Thompson's Long Island, 130.
4 3 Doc. relating to N. Y. Col. Hist. 114.
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HISTORY OF THE COURT AND OF THE
ticular laws embodied in the digest, and that other things needful to be inserted had been omitted, he had thought fit to make amendments and additions; and at the first setting of the court of assize, on the 28th of October following, nearly one hundred additional amendments were made, which were confirmed by James,1 and material alterations were afterwards added in the years 1662, 1672, 1675. This code, as appears from entries upon copies now remaining, as well as from a statement of James,2 was compiled from the laws then existing in the other colonies. It was based entirely upon the English constitution, with little or no reference to the mode of procedure, or of the laws which had been so long in use among the Dutch, an omission the more remarkable, as Clarendon had resided with Charles during his exile at the Hague, and could not have been insensible to many advantages in the Dutch judicial system. The only indication that he thought of it at all, was a pro- vision that all small causes should be referred to arbitration, but it was so imper- fectly framed, that it never had any practical effect. As a consequence of this neglect to adopt his code to the major part of the people it was intended to govern, it was many years before it came into full operation in the city of New York, or in the other parts of the province where the Dutch had colonized and settled.
As the judicial organization established by it is the important part of our inquiry, a very brief notice of its provisions, in other respects, is all that will be necessary.3 It prohibited slavery, and established something like religious toleration, by enacting that no person who professed Christianity should be molested, fined or imprisoned, for differing in judgment in matters of religion; but decreed, that any one who should deny the true God or his attributes, should be put to death. No Indian was "to pow-wow or perform outward worship to the devil, within the government." No lands were to be purchased from Indians without the governor's leave. The sale of fire arms or strong liquor, to them, was prohibited, under heavy penalties. No one · was authorized to trade with them without a license; and in the administration of justice, they were to have all the privileges enjoyed by the whites. It pre- scribed the mode for the government of townships, for collecting the revenue, for ad- justing the boundaries of towns, and authorized the granting of new patents to all owners of land, and abolished many feudal incidents and tenures. It provided for the administration of the estates of intestates, and for an equitable division of the property among heirs. All conveyances, records of bargain and sale, and wills, and other instruments connected with the administration of estates, where the estate ex- ceeded £100, were to be registered in the office of records, which was established in the city of New York. Special provisions were inserted for the regulation of innkeepers, even to the price of a meal, and for the regulation of attorneys, phy- sicians, surgeons, midwives, and other pursuits, and for the care of cattle, and the adjustment of weights and measures. Any person bringing a vexatious suit, was to be amerced in treble damages. Ample provision was made for the general observ- ance of religion, for the support of ministers, and the building of churches. Justices of the peace were allowed to marry, and a record was directed to be kept of births, marriages, deaths and burials. Some of the provisions in respect to the domestic · relations were peculiar. A married person, absent in foreign parts over four years,
1 1 Coll. of N. Y. Historical Society, 305. 3 Doc. relating to Col. Hist. of N. Y. 104.
2 8 Doc. rel. to N. Y. Col. Hist. 226.
3 1 Col. of N. Y. Historical Society, 805.
CALIF
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was presumed to be dead, and the other party might marry again; but if the ab- sentee returned after five years, and could show that he had endeavored, by writing or by messages, to communicate that he was still living, or was "in imprisonment or bond slavery, with Turks or other heathen," he could, notwithstanding the second marriage, obtain an order for recohabitation ; or if the parties to the original mar- riage consented to release each other, the second marriage remained valid, the husband by the first marriage having imposed upon him the charge of supporting the children by that marriage. The respect due to parents by children was enforced with a severity savoring of Chinese rigor. Any child, over sixteen years of age, of sufficient understand- ing, that should "smite" its father or mother, unless forced thereto iu self preservation, was, upon the complaint of the father or mother, but not otherwise, to suffer death. The part of the code which related to the public defence, and the military organization of the colony, was the most minute in its provisions, and was evidently framed by an experienced military officer. In this the hand of James was apparent ; for whatever may have been the faults of this prince, his admirable management of the English navy and dock yards, and his thorough supervision of the affairs of the colony of New York, prove him to have been a man of more than ordinary administrative capacity.
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