Dear Leslie, Thank you for all your hard work! I have learned to read your stuff when fully alert (as opposed to falling asleep at night) as it is always so interesting and informative. You certainly know a lot about property law! Barbara Barbara L. de Mare, Esq. ----- Original Message ---- From: Leslie B. Potter <lbpotter@comcast.net> To: dutch-colonies@rootsweb.com Sent: Saturday, May 12, 2007 1:05:33 PM Subject: Re: [DUTCH-COLONIES] Purchase vs Patent grant Dear Steve, Howard, Pete, and List, I apologize for taking so long. However, I was finally able to access a copy of "Commentaries on the Roman-Dutch Law" by Simon Van Leeuwen, LL.D. by going to the library of The Pennsylvania State University. Simon van Leeuwen published "Commentaries on the Roman-Dutch Law" in 1744. It was translated into English in 1820. I found Van Leeuwen's book to be much more succinct and instructive than either R. W. Lee's "An Introduction to Roman-Dutch Law" or Van Der Linden's "Institutes of the Laws of Holland". Steve raised the question of why did Adam Brouwer have both a deed (dated 1645) and a patent (dated 1647) for that portion of the subdivision of Hendrick Jansz's land, which he had purchased from Jansz. On the subject of alienation or transfer of property, Van Leeuwen states: "Feudal property is not divisible and ought only to be inherited by and to remain in one person; unless it be allowed and permitted by grand and consent from the lord, upon the application of the vassal." (See , in section 6 of Chapter 14 - entitled, 'Of Feudal Tenure' at page 167) Also in Chapter 15 - entitled, 'In what Manner Feudal Tenure is acquired', Van Leeuwen writes in sec. 2 (1) "[t]he fee is not divisible, (unless by consent, as we have already shewn), but devolves only upon one person to the exclusion of all others." (See page 172) Simple translation - Jansz had no right to subdivide his property and sell a portion thereof to Brouwer without getting authorization for the subdivision from his over lord. So without the patent, Brouwer's deed would not have been worth the paper upon which it was written. Although, I assume that Brouwer could have sued to get his money back under the Roman-Dutch version of the theory that says 'impossibility' makes the contract null and void. Van Leeuwen goes into much greater detail about Servitudes than either Lee or Van Der Linden. On the subject of "Drop-right" Van Leeuwen writes at page 196, "Sec. 8 Drop-right is the right of making the rain-water of my roof fall upon another's ground, which otherwise no person need suffer, as every one is bound to carry away or conduct the water of his own house upon or though his house. Whoever is obligated to receive upon his ground the water of another, is bound to leave for that purpose a certain vacant place not built upon, of the breath of about half a foot; but in some cities there are statutes which enact that every person, for his own convenience, and between houses and ground receiving water, may build and inclose it; provided he received the said water with a leaden gutter under the roof, and by that means carries off the water, and likewise all open watercourses may commonly be lead away under the earth. Sec. 9 The receiving of drops is the right of catching the rainwater running from another's roof or premises, for one's own benefit; for other wise, the water falling upon my roof or premises belongs to me." I have also been reading "History of the Roman-Dutch Law" by Johannes Willelmus Wessels, on-line. Like the other three authors, Wessels comments on law in the Netherlands and South Africa. Colonial New Amsterdam does not seem to have made an impression on Roman-Dutch legal scholars or had any effect on Roman-Dutch legal conventions. Therefore it is not mentioned. Yesterday, I started out to read the documents pertaining to the Dutch West India Company in "Documents Relating to the Colonial History of New York" by Callahan. Unfortunately, my asthma triggered and that finished me for the day. I assume that the Dutch West India Company had the legal status of "over lord" to all patent holders in the colony, who were mere vassals, but I just wanted to make sure. I have been reading Gerard on "New York Real Property" and the "Laws of the Duke of York", in order to better understand what effect the English take over had on the Roman-Dutch legal conventions as practiced by the ethnic Dutch. Although I know that the English confirmed the Dutch patents, I still have no feel for how the transition from Roman-Dutch law to English law was accomplished. I assume that the residents of the colony would have been able to subdivide their property under English law, but I have not yet found any specific evidence to support that assumption. I shall will report back when I have that area of the law sorted out. Sincerely, Leslie ------------------------------- To unsubscribe from the list, please send an email to DUTCH-COLONIES-request@rootsweb.com with the word 'unsubscribe' without the quotes in the subject and the body of the message