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"Browne, The Judiciary" | |
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By IRVING BROWNE, Editor of the Albany Law Journal. A sketch of the Judicial History of New York naturally divides itself into the following heads: The Dutch Colony; the English Colony; the Revolutionary Period and the Constitution of 1777; the Constitution of 1823; the Constitution of 1846; the Judiciary Article of 1870. The Dutch Colony of New Netherland was established at New Amsterdam, on Manhattan Island, in 1623. Of the administration of justice under the first Governors, May, Minuit and Van Twiller, no records have been preserved. In 1630 large grants of land were made by the Dutch Government to the Patroons who were invested with the feudal privileges of manorial lords, and authorized to erect courts of justice, with unlimited jurisdiction, both civil and criminal, within their respective territories. The Patroon possessed the power of inflicting capital sentences. In civil cases his judgment, when exceeding fifty guilders, was subject to an appeal to the Director-General and Council of New Amsterdam. This right of appeal was practically defeated by exacting from the tenants in the leases a stipulation to waive it. Kieft, appointed Governor in 1638, carried matters with a high hand, reducing his "Council" to one, and reserving two votes to himself. Under his misrule the colonists unsuccessfully demanded the establishment of courts of justice like those in the mother country. He was recalled and supplanted by Peter Stuyvesant in 1647. Under Stuyvesant, at first the administration of justice was vested in certain of the company's officials, subject to the Governor's opinion in important matters; and afterward, in nine Councillors elected by the Commonalty, with an appeal to the Governor and his Council of State. The Governor and these popular Councillors agreed but illy, and in 1650 the States-General ordered the establishment of a new court, consisting of two burgomasters, five schepens and a schout, according to the home custom, with an appeal to the Supreme Council. These magistrates at home were elected by the commonalty, but Stuyvesant usurped the appointment of them in his Colony. This body exercised not only judicial, but legislative and executive functions, and although appointed by the Governor, seem to have discharged the duties of their office independently and incorruptly. A tolerably complete record of their proceedings is preserved. Judge Charles P. Daly, in his excellent sketch of the Judicial Organization of this State, says of these magistrates: "It is impossible not to be struck with the comprehensive knowledge they display of the principles of jurisprudence, and with the directness and simplicity with which legal investigations were conducted. In fact, as a means of ascertaining truth and of doing substantial justice, their mode of proceeding was infinitely superior to the more technical and artificial system introduced by their English successors." To illustrate the direct and practical way of settling litigations which prevailed under the Dutch administration, Mr. James W. Gerard, in his interesting paper on "The Old Streets of New York under the Dutch," read before the New York Historical Society in 1874, gives an account of the lawsuit of Jan Haeckens v. Jacob Van Cowenhoven. The action was brought to recover pay for beer. The defendant pleaded that the beer was bad. The plaintiff replied, denying this allegation, and asking if people would buy it if it were not good? The defendant requested that after the rising of the court, the magistrates should come over to his place and try the beer, and then decide. The parties having been heard, it was ordered, that "after the meeting breaks up the beer shall be tried, and if good, then Cowenhoven shall make payment according to the obligation; if otherwise, the plaintiff shall make deduction." Mr. Gerard does not give the result of the "view."[1] None of these Dutch magistrates were of the legal profession. They were all engaged in agricultural, trading or other pursuits,[2] and yet they appear to have been well versed in the Dutch law, and to have been thoroughly acquainted with the commercial usages, customs and municipal regulations of the city of Amsterdam. This is the more remarkable, as a knowledge of the Dutch law at that period was by no means of easy acquisition. The vacancies in this court were supplied by Stuyvesant until 1658, when he yielded to the demand of the people, and made a selection from a double list of names submitted to him by them. From 1660 until the English took control an annual nomination and appointment was thus made. Judge Daly says : " All these magistrates, as far as can be gathered, were men of intelligence, of independence, and with one or two exceptions, of high moral character, evincing in the discharge of their duties, and especially in those of a judicial nature, that unswerving adhesion to established rules and customs, that sterling good sense and strong love of justice which constitutes so marked a feature in the Dutch national character." This court regularly sat once a fortnight, and sometimes once a week. At the oral request of the plaintiff the court messenger summoned the defendant to appear at the next court day. If he did not appear, the summons was repeated, twice if necessary, but on the third summons the court pronounced judgment. The parties orally stated their case. They might be sworn, and witnesses might be examined. References by the court to arbitrators were very frequent. Indeed, the court seems to have been largely one of conciliation. Written pleadings could be exacted upon the demand of the defendant. The evidence was taken by deposition, and the court issued commissions. This mode of trial, however, was rare. The summary method, or the resort to arbitration, was the most usual. Shop books were receivable in evidence, and in some instances hearsay evidence was tolerated. The mode of executing the judgment was peculiar. One-half could be paid in fourteen days, the remainder in a month. On default, the messenger exhibited to the defendant a copy of the judgment, together with his official wand—a bunch of thorns[3]—and demanded payment in twenty-four hours. On non-compliance, this formality was repeated. If the defendant still neglected to comply, the messenger took possession of his goods, holding them six days for redemption. At the end of that time, if not redeemed, he sold them at auction, after notice on a Sunday and on a law-day. Greater indulgence was allowed on an execution against real estate. On the sale of real estate, the officer lighted a candle, and the bidding went on "while the lamp held out to burn," and the property was knocked down to the last and highest bidder.[4] The civil business of the court was considerable. Promise of marriage was enforced by imprisonment. In case of separation between husband and wife, the children and property were equally divided between the parties. What was done in case of an odd number of children, unless an execution of Solomon's judgment in the case of the disputed ownership of a child, does not appear. No pecuniary compensation for injuries to person or character was allowed, but they were punished by fine or imprisonment, or by requiring the offender to recant in court, sometimes kneeling and asking pardon of God and the complainant.[5] Complaints of defamation were very numerous, while actions for the recovery of debts were comparatively infrequent—a state of affairs notably the converse of that now prevailing. The court summoned parents or guardians to give assent in proper cases to the marriage of children or wards, and exercised probate and admiralty jurisdiction. In criminal cases the schout acted as public complainant and prosecutor. The offender was arrested or summoned in the discretion of the magistrate, after production of evidence. In extreme cases the schout might cause arrest without this formality; but in such cases he was bound to have the charge investigated within twenty-four hours. Bail was allowed except in murder, rape, arson or treason. The prisoner was usually tried publicly upon evidence. Sometimes the trial was by secret examination before two schepens, on written interrogatories propounded to the prisoner, which he was compelled to answer. The prisoner might be tortured, to extort confession, but the records of the Colony contain only one instance of its being done. [6] Punishment was by fine, imprisonment, whipping, the pillory, banishment, or death. The capital sentence could not be executed without the approval of the Governor and Council. Similar courts were established in several localities on Long Island. In 1652 Stuyvesant established a court at Beverwyck (Albany), independent of the Patroon's court of Raensellervyck. Dr. O Callahan informs us that it was held at the house of the Vice-Director, on the second floor, in a room next to the roof and without any chimney, and accessible only by a trap-door and ladder. These burgomaster and schepen courts, the patroons courts, and the Appellate Court of the Governor and Council at New Amsterdam, constituted the tribunals of justice until the Colony came into possession of the English, in 1664. The student will find great entertainment in Mr. James W. Gerard's paper, entitled "The Old Stadt Huys of New Amsterdam," read before the New York Historical Society in 1875, and published in pamphlet. A glance at these "trivial fond" records will show us our ancestors in a simple and amiable light and the peculiar character of the lawsuits waged by that peaceable and simple-hearted people. The reader will be struck with the informal and patriarchal administration of justice, with the triviality of many of the disputes, and the ease with which the parties were reconciled. The love of fair play was evidenced by the refusal of the authorities to permit Adrian Van der Donck, the first lawyer in the Colony, to plead, on the ground that "as there was no other lawyer in the Colony, there could be no one to oppose him." The early litigants consequently advocated their own causes, or were represented by relatives or friends. The compensation of the arbitrators, under the system in favor, consisted in a "treat," the expense of which was equally shared by the parties, unless otherwise directed in the order of reference or the judgment. There being no State prison, the usual punishments were by fines, banishment, the pillory, flogging, or confinement in a tavern or one's own house, or for a limited period with the town jailer in the city hall. Imprisonment was sometimes accompanied by a diet of bread and water or small beer. Branding on the cheek was occasionally inflicted, and so was sitting on the wooden horse. It was unlawful to go nutting or picking strawberries on Sunday, and one person, caught with an axe on his shoulder on Sunday, escaped with a reprimand only by showing that he had been cutting a bat for his little boy. Sometimes the nature of the offense was indicated by the punishment, as when one who had stolen cabbages was condemned to stand in the pillory with cabbages on his head. One individual was scourged and banished for stealing spoons at a marriage feast to which he was invited. The merciful disposition of our Dutch ancestors is illustrated by their reluctance to inflict capital punishment. On one occasion, nine negroes being convicted of murder, they were ordered to draw lots to determine which one should suffer for the rest ; the lot falling on a prisoner of gigantic frame, he was suspended by two halters, but broke them both, and then he and the spectators begged so hard for mercy, that he was let off. Although thus lenient, the magistrates insisted on being respectfully addressed. Mr. Gerard says: "Ill fared it also with Jan Willemsen Van Iselsteyn, commonly called Jan of Leyden, who, for abusive language and for writing an insolent letter to the magistrates of Bushwyck, was sentenced to be fastened to a stake at the place of public execution, with a bridle in his mouth, rods under his arms, and a paper on his breast with an inscription, 'Lampoon writer, False accuser, and Defamer of Magistrates.' He was afterward to be banished." Among the causes of action we find, throwing a glass of wine at the plaintiff, calling him a "black-pudding," a "muff," or a "Dutch dough-face," tearing a woman's cap off her head, etc. Among the distinguished litigants we note Mrs. Anneke Jans Bogardus, who sued for the rent of the Bouwery. The defendant answered that he was not indebted, because he had bought off the rent for two hogs, and had delivered one of the hogs. The court very properly ordered him to deliver the other. The defendant was afterward sentenced to be flogged and have his right ear cut off, for selling his wife. Jacob Leisler, subsequently dictator of New York, was sued by a servant-girl for a year's wages, he having dismissed her before the expiration of the time. "The defendant answered, that inasmuch as plaintiff had consumed almost a bottle of strawberry preserves, also biscuit of his; moreover, as it came to his ears that she had two fellows climb over the wall to her while he was in church with his wife, and received no service from her, he had nothing to do with her." Plaintiff denied having had the fellows climb over the wall, and claimed that the children ate the preserves. The court finally decreed that the defendant pay plaintiff a quarter's wages. Rose Goele sued Francois Soleil, the gunsmith, for breach of promise, the defendant having refused to marry her, although the bans had been published and cohabitation had ensued. In addition to uncongeniality of temper, the defendant pleaded that the plaintiff had a bad breath. A certain decision respecting the disposition of a stray pig, claimed by two different persons, neither of whom pretended to be the owner, was worthy of Solomon, namely, that "the pig shall be proclaimed by the deacons for eight days, and that they shall take her in default of right." Mr. Gerard warmly defends the Dutch Colony against the representations conveyed in Mr. Irving's caricatures. He refers to the undoubted fact that New Netherlands was the true home of religious and political freedom on this continent. When the Puritans were hanging witches and Quakers, and whipping and banishing Baptists, the unhappy refugees found a safe asylum among our much-ridiculed Dutch ancestors. There was but one trial for witchcraft in New Amsterdam, and that resulted in acquittal. Slavery existed only in the mildest form; we read of a master applying to the court for leave to chastise his negro wench for misconduct. The Jesuit fathers, fleeing from the Indians, were welcomed and protected. "The Indians too were protected from outrage." |
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 The Historical Society of the Courts of the State of New York | |