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Tuesday, September 2, 2014

ROBERT JACKSON and THE DUKE'S LAWS -- INSIGHT INTO THE DAILY LIVES OF 17TH CENTURY COLONISTS


On Sept. 8. 1664, 350 years ago this week, the British took the colony of New Amsterdam from the Dutch and created New York.  Colonel Richard Nicolls, with three ships and several hundred soldiers, anchored off the coast of Coney Island on Aug. 18, 1664, taking the Dutch by surprise.

Nicolls was acting on the orders of James, Duke of York (later to become King James II), who had received a grant of land which included the Dutch Colony from his brother King Charles II.  After his victory, Col. Nicolls became Gov. Nicolls, and the new Colony was christened New York in honor of the Duke.


Shortly after assuming control of the Colony, Gov. Nicolls wisely acted to create a new code of laws that would be acceptable to and accepted by the multilingual, multinational, highly diverse citizens and communities under his jurisdiction.  To this purpose, he asked each township to send delegates to a convention to be held in the Town of Hempstead on Long Island.  The Convention completed its work, and the Code which came to be known as the Duke's Laws (or formally as the Duke of York's Laws) were promulgated at Hempstead on March 1, 1665.



Duke of York
My 8th great grandfather, Robert Jackson was among the Colonists chosen to write the first Code of Laws for the English Colony of New York.  Along with John Hicks, he represented the host town of Hempstead.  I initially read the Duke’s Laws in hopes of gaining insight into the mind of Robert Jackson.  I am not sure I gained a better understanding of my ancestor, but I certainly gained amazing insight into his daily life.  Sharing these insights is the purpose of this blog.


Careful reading of the Duke’s Laws (available at http://www.nycourts.gov/history/legal-history-new-york/documents/charters-duke-transcript.pdf) offers amazing insight into the daily life in the latter part of the 17th Century.  It is organized alphabetically according to the topic addressed within each section.  Just perusing  the Topics reveals the concerns and preoccupations of the average 17th Century New Yorker.  For this reason, I have included an annotated copy of the Index  in this report.

The Code is extremely pragmatic, and the emphasis placed on a topic clearly reveals its import in the daily lives of the people.  For example, one of the longest most detailed sections is entitled “Cattle Corn Field Fences.”  Another detailed section is entitled “Wolves.”  I was puzzled, and spent some time researching the section entitled “Pipe Staves” which spells out each jurisdiction’s responsibilities for inspecting and regulating pipe staves.  As I was able to piece together, pipe staves are similar to barrel staves, and were used to create pipes for transport of water, sewage, etc.  It is easy to understand that communities would be concerned with the integrity and operational maintenance of pipes created from wooden staves, and therefore rules for inspection, and maintenance are laid out in their laws.

One lengthy section made me quite sad.  It dealt with how marriage to a long-absent spouse could be terminated in order to allow legal remarriage.  Between the lines, it was easy to read the pain and anguish that women must have suffered in an era of great dangers and poor communications.  While a wait of 5 years was required, the lengthy discussion of how the return of a “presumed dead spouse” should be handled indicated that men sometimes came home after many years absence.

My favorite section illustrates further the vast differences in communication then and now.  It is titled "Lying and False News" and specifies penalties to be levied against anyone guilty of publishing false news (faking a letter or relaying gossip) out of any part of Europe.  First offense was a stiff 10 shillings which doubled for each subsequence offense, leading to stripes and the Stocks.  I kept wondering if Fox News or MSNBC could be charged under these statutes?

The length of the section devoted to the Church is exceeded only by the section devoted to Military Affaires.  The dangers and daily vulnerability of the settlements comes into sharp focus when military obligations and required attendance at weekly drills are detailed.  While much space is devoted to taxes and assessments and their payment, I found the section on “Impresses” especially interesting.  Impresses were the “taxes” citizens paid by their labor.  Every citizen could be called upon to perform specific labors for the good of the community. 

It is easy to see that the framers of these laws were deeply concerned with “regularity” and “order” and the “keeping of records.”  Records related to birth, death, marriage, and all forms of property ownership and transfer are a recurring theme in the Code.  Carefully prescribed fees are paid to those who recorded and maintained the records (Hey, an education paid off then too.)

One of the problems with the careful regulation appears to have been excessive litigation, and even litigation for the purpose of harassment or profit.  I even learned a new word Babratby which means exactly that, litigation for harassment or profit (I think this is a word we should bring back).  Babratby is the title of the 14th topic in the Code, which states: "If any man shall be indicted proved and Judged a Common Barrator; vexing others with unjust frequent and endless Suites it shall be in the power of the Court both to reject his Cause; and punish him for his Barratry by fine or Imprisonment." 

Nine of the Sections deal with FEES to be paid to officers of the court, and members of the local government.   These include Fees for the Justices of the Peace, the petty Constables, the High Constables and the Under Sheriffes, the High Sheriffe, the Clarkes of Court, of Writts, and Assizes, for the Court, for the Cryer of the Court and for the Marshall.  I suspect that most of the representatives to the Conference were office holders of one sort or another, and were making sure their fees were clearly established in law.  Hmmm, it seems that politicians have not changed over the centuries. 

Licenses and Regulation of Professions or Endeavors  Several sections dealt with either the licensure or regulation of  trades or professions.  The desire to regulate "Chirurgions (Surgeons), Midwives, and Physicians" is not surprising, although little by way or training or education is spelled out and a license was not required.  The regulation and examination of credentials for Ministers is far more rigid and detailed than for medical practitioners.  Inkeepers and Ordinaryes were also highly regulated and required licenses. Among those most closely regulated were Brewers, who were warned to have sufficient training and to exercise care, and who could be sued if their product was unwholesome or poor in quality.  Two sections deal with Attorneys (one labeled Attorney and a second labeled Councell), but neither deals with qualifications, licenses, responsibilities, or penalties.  The first prevents officers of the court from acting as Attorney in cases in which they are involved.  The second guarantees certain privileges to those admitted to the "Bar Councell." 

An interesting group, Packers, Caske and Cooper Gagers were highly regulated.  The reason for paying special attention to these craftsmen became clear as I read.  These workers were charged with the construction and packing of the barrels in which food stuffs were stored and transported.  These included wine, liquors, fish, beef, pork, and all other commodities.   If these workers failed to carry out their crafts with care, the result would be spoiled, poisonous, contaminated, or lost food stuffs.  The life of the Colony rested on the careful performance of their duties.

I was at first puzzled by a group singled out for special regulation -- Saylers.  At first I interpreted this as "sellers," but eventually realized that these laws were designed specifically for "sailors." The code had the effect of indemnifying Ship owners and masters against debts run up by their sailors while in port.

Protection of minorities and those lacking power -- As previously reported, clauses within the Code offered some legal protection to Indians.  Another section titled Orphants (Orphans) offered protection for minors whose inheritances are being held for them.  The regulations on the management of an orphan's estate are protective.  However, it is clear that this protection was related to the property rights of the parent.  Orphans who were not heirs of well-endowed parents were not mentioned for any form of care or protection.  

Similarly, one might expect that a section on Children and Servants would be written to protect these vulnerable populations.   Instead it holds Parents and Masters responsible for teaching and disciplining their children and servants, and warns against failing in these responsibilities. Further it allows for Constables, Overseers, or Justices of the Peace to perform punishment (not to exceed 10 stripes) on children or servants over the age 0f 16 at the request of the parents or masters.  

The section on Bond Slavery begins with a bang, by declaring strongly "No Christian shall be kept in Bondslavery, villenage, or Captivity."  But this brave beginning is followed by an EXCEPT clause so broad as to endorse the very practices outlawed by the preface.  Further, the section on Fugitives places severe penalties on servants or apprentices who attempt to flee their masters, and on anyone who might assist them.  Wives are clearly the property of their husbands, and punishments and fines are spelled out for anyone assisting or sheltering a run-away wife.  However, if a wife can prove she has been abused unfairly (as opposed to punished for an infraction), she can seek temporary shelter with an official such as a constable or overseer (provided he is willing to assist her).  If a wife was successful in  separating herself from her husband, he was authorized by the section on Dowryes (Dowries) to seize her dowry (meaning anything of value she might have some claim to).

There are a couple of provisions designed to protect vulnerable populations, including wives, servants, and children from murder.  One of these is a prohibition against private burials (especially of servants).  The requirements for witnesses who can attest to the state of the deceased, and any potential for foul play, are not CSI, but they are carefully spelled out.

            Summaries and Reviews of the Code – I found most of the reviews and summaries of the Duke’s Laws to be superficial and often misleading.  Either reviewers laude the Code as progressive in allowing more freedom of religion, or they emphasize repressive statutes, including the 12 Capitol crimes (requiring the death penalty).   The section dealing with the “Indians” is a prime example of poor interpretation by reviewers.  By far the majority of the Indian Section is devoted to defining what Christians may not do in interactions or trade with Indians.  Further, the code enumerates punishments for settlers who commit crimes against Indians or against the property of Indians.  It also details the rights of Indians charged with crimes against Christians. However reviewers invariably focus on the final two lines of the section, charging the framers with attempting to control Indian Religious expression.   These sentences read, “No Indian whatsoever shall at any time be Suffered to Powaw or performe outward worship to the Devil in any Towne within this Government.”  The final phrase, “in any Towne within this Government,” is routinely overlooked by critics.  The Code did not attempt to prevent Indian religious practices, but to exclude these from English towns. 

            A Dozen Capitol Offenses:  Three of the 12 capitol offenses (#2, #3,#4) deal directly with murder, including premeditated murder, killing an unarmed person, and murder by ambush, poisoning or conspiracy.  A fourth  (#8) deals with murder through bearing false witness, while #7 mandates death for kidnapping.  Two (#9 and #10) deal with traitors and conspiracy against the King or the government.  Thus 7 of the 12 are crimes still considered death penalty cases in some jurisdictions.  

            The remaining 5 are no long considered crimes, much less Capitol Offenses.  Of these, two (#5, #6) deal with sexual practices: bestiality and sodomy.  Interestingly, the involved “Beast” is sentenced to be burned; while a boy, under age 14 or subject to coercion, is spared. 

Offense #12, which was apparently adopted after the publication of the original Code, declares that Adultery, if committed by two married individuals shall warrant a death sentence. Conversely, the statue holds that if a single person commits “carnall copulations with a marryed man or woman” then both participants shall receive fines or punishments “not exceeding Life or Member.”   
  
Each of the remaining two is culturally revealing.  Offense #11 decrees death to any child or children above 16 years of age, and of “sufficient understanding” who strikes his/her natural Father or Mother.  The offense has two mitigating factors: 1) the blow is not punishable by death if the child acts in self-defense; and 2) The parent must bring the complaint and be a witness.  I think that this is an offense that was seldom brought to court, but was often invoked as a parental threat.  I also find the limitation to “natural” parents interesting.  Apparently striking a step or adopted parent would be a lessor offense.

The First Listed Offense (#1) is often cited by critics as declaring atheism a capitol offense; but this is not a valid interpretation.  The code does not demand death for denial of the “True God and his Attributes” EXCEPT on the part of “any person within this Government.”  That is, anyone appointed or elected to public office can face death for openly denying the existence of God. One of the most interesting aspects of this offense is that the office holder does not have to believe in God, he merely cannot openly deny such a belief.  It is all about appearances.

There is no mention of Rape or sexual assault within the Duke's Code.  There is a chance if could be covered within the capitol crime of kidnapping, which includes reference to "forcible Stealeth or carrieth away." Rape is not considered within the adultery statutes, nor under Assaults.  There is a statute on Fornication, which states,  "If any Person commit Fornication with any Single-woman they shall both be punished by enjoining Marriage, fine or Corporal punishment, or any of these According to the discretion of the Court. With respect to rape, the Duke's Code offers far less understanding and compassion for sexual assault than the Bible, which at least considers whether the woman struggles or screams. 



INDEX
Alphabetical Listing of Topics Included In the Duke's Laws


ABSENCE. (Constables, Justices)
ACTIONS (Court/Legal)
ADMINISTRATION (Estates)
AMERCIAMENTS (Financial penalty in English Law – Fine)
APPEARANCES (Court)
APPEAL (Jurisdiction)
APPRISEMENT OF GOODS (Rules for settlement of disagreements)
ARREST (Rules Governing)
ASSESSMENTS (Taxes, levying and collecting)
ASSAULTS
ATTACHMENT AND SUMMONS.
ATTORNEY (Who can’t act as an attorney)
ASSIZES. (Sets schedule and regulations for Court Sessions)
BAYLE (Bail regulations)
BABRATBY (Litigation for the purpose of harassment or profit)
BALLAST  (Regulations regarding taking by ships)
BILLS (of Debt)
BOND SLAVERY.
BOUNDS (Town Borders)
BREWERS.
BIRTHS, MARRIAGES AND BURIALS TO BE REGISTERED
BURIALS (Regulations against “Private” burials)
CAPITALL LAWES (Offenses that carry the death penalty – 12 are given)
CATTLE CORN FIELDS FENCES (one of the longest sections)
CAUSES (Legal Causes of Actions)
CHURCH (Regulations regarding places of worship, Ministers)
CHURCH WARDENS (Duties)
CHARGES PUBLICKE (Pay for Civil and Military Officers)
CHILDREN AND SERVANTS. (Legal Responsibilities of Parents & Masters)
CHIRURGIONS, MIDWIVES, PHYSICIANS. (Surgeons etc. – Regulations on Practice)
COURT OF SESSIONS (Procedures and Powers in detail)
CONSTABLES (Duties and Fees)
CONVEYANCES DEEDS AND WRITINGS. (Regulations)
COUNCELL. (Refers to the Bar Councell, Attorneys or Lawyers)
CONDEMNED (Regulating Executions and Burials of Executed)
DEFAMATION (Limits)
DOWRYES (How Husband can legally Assume)
FASTING DATES AND DATES OF THANKSGIVEING TO BE OBSERVED (Holidays)
FEES OF JUSTICES OF PEACE.
FEES OE PETTY CONSTABLES.
FEES FOR THE HIGH CONSTABLE AND UNDER SHERIFFE.
FEES OF SHERIFFE.
FOB FEES OF YE CLARKE OF THE COURT OF SESSIONS WHO IS ALSO CLARKE OF THE WRITTS.
THE FEES OF THE CLARKE OF ASSIZES.
FEES FOR THE COURT.
FEES FOR THE CRYER OF THE COURT.
FEES OF THE MARSHALL. (Jailor)
FORNICATION
FORGERY
FIRE OR BURNINGS.
FUGITIVES.
HORSES AND MARES. (Lengthy and Detailed regulations)
IMPRESSES (Regulations for requiring Labor on Public Projects)
INNKEEPER & ORDINARYES. (Licenses and Regulations)
INDIANS (Mostly regulating trade with Indians, and offering legal protection to Indians against harm to them or their property, but also outlawed “Devil Worship” by Indians.)
JURORS AND JURYES. (who could serve and how they would be paid)
JUSTICE OF PEACE. (Duties, Responsibilities, Qualifications)
LANDS. (Rights against seizure and Responsibilities related to Purchase)
LAWES. (Provides for Offenses not specified in the Code)
LYING AND FALSE NEWES. (Stiff Penalties against)
MARRIAGES (Regulations regarding announcing and conducting marriages, and penalties for anyone other than an Overseer or Constable who harbors a woman fleeing from her husband)
IN WHAT CASES IT SHALL NOT BEE PUNISHABLE TO RE MARRY. (Deals with several possibilities, but especially spouses who are long absent without communication)
MASTERS SERVANTS AND LABOURER. (Lengthy, detailed account of rights and obligations, and penalties for anyone assisting a runaway)
MILITARY AFFAIRES. (Lengthy and detailed on the responsibilities for keeping an active militia, and each man’s duties)
OFFICERS AND OFFICES (Establishes “term limits” and Cause for removal of Officers)
OVERSEERS (Chosen by vote, sets requirements)
ORPHANTS (Orphans Defined and protected)
PAYMENTS
PIPE STAVES (Staves were used not only for barrels, but for water and sewer pipes, hence their importance for public utilities and commerce.)
POSSESSION (Rights Of)
PUBLIQUE AFFAIRES (Actually regulations on Official Mail)
PACKERS, CASKE AND COOPER GAGER. (Commerce & Public Health)
POUNDS, PRISONS & STOCKS.
PUBLICKE CHARGES. (Taxes, levying and collecting)
RECORDS (Where and how they will be kept)
SAYLERS (Regulations on sellers of wine, beer, liquor, and food)
SHERIFFE (Powers and Requirements)
TOWNSHIPS (Powers and limitations on creating local laws)
VOTES (Elections determined by Inhabitants)
WEIGHTS AND MEASURES. (Lengthy detail of what the Constable shall provide as standards)
WITNESSES (Minimum Requirements, Serving, Oaths, and paying)(
WOLVES (Bounties for)
WRECKS OF THE SEA. (Lengthy Details relating to Salvage procedures)
WARRANTS, SPECIALL WARRANTS AND SPECIALL LICENCES.
OATHES. (Specific Wording for the Oaths to be taken by all Public Servants and Officers)
PRECEDENTS AND FORMES. (These even include the form of the Brand for Cattle to be uses in each Towne)

The Document terminates with a series of Recommendations for improving the system, evidently added by the Governor’s Counsel or advisors.





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