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Customs From the Other Shore

Dutch Civil Courts and Cross (Cultural) Examinations in 18th-Century Sri Lanka
Dries Lyna
p. 49-76

Résumés

Les études sur la culture juridique du début de lépoque moderne se concentrent sur l’agency (limitée) des « usagers » ou des «consommateurs » de la justice, ainsi que sur les stratégies mises en oeuvre par les requérants et les témoins en fonction du cadre. Tout en intégrant lempire colonial néerlandais dans les débats, cet article propose de se détourner des procédures pénales et de mettre en lumière limportance jusquici négligée des interrogatoires et des contre-interrogatoires en matière civile pour qui veut étudier le concept de Justitznutzung. Le Sri Lanka colonial du XVIIIe siècle servit de laboratoire juridique interculturel où les plaideurs mêlaient des textes informels cingalais, tamouls et « mauresques » avec le droit romain et néerlandais. Sappuyant sur des informations provenant de plus de 300 affaires civiles portées devant les tribunaux de la VOC, de quatre manuels influents de droit procédural romano-hollandais et de sept transcriptions dinterrogatoires et de contre-interrogatoires civils, cet article explore comment la traduction du droit codifié romano-hollandais dans le contexte de pluralisme juridique du Sri Lanka littoral a créé une zone grise juridique. Cette dernière a offert des opportunités considérables aux requérants et à leurs représentants juridiques, les interrogatoires et les contre-interrogatoires offrant le cadre idéal pour concevoir une stratégie juridique gagnante.

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Notes de l’auteur

This article is written in the context of the NWO funded project “Colonialism inside out: everyday experience and plural practice in Dutch Institutions in Sri Lanka, 1700-1800”, carried out in cooperation between Leiden University, Radboud University Nijmegen and the Sri Lankan National Archives (SLNA). A first draft of this paper was presented at an online AISLS workshop in February 2021, and the author expresses his gratitude to discussants Aparna Balachandran and John Rogers. The author would like to thank Gerrit Verhoeven, Elwin Hofman and the three anonymous referees for their valuable comments on earlier versions of this paper, and Kristina Hodelin for proofreading the article.

Texte intégral

  • 1 In the limited literature available on the Sri Lankan Chettiyars, they are identified as a group (...)
  • 2 To be precise, the witnesses from South India came from Sadras, Nagapattinam and Thanjavur. SLNA (...)

1August 1778, a Dutch civil court in Colombo, Sri Lanka. For months now Chettiyar1 merchant Wiereragewen has been prosecuting his in-laws over the inheritance of his late wife. Finally he has the chance to cross-examine their six witnesses: all respectable Tamil men with a Hindu background, both from Colombo as well as indigenous chiefs all the way from Southern India, up to 500 kilometers away.2 In the questionnaire he drafted up with his legal representative, Wiereragewen keeps hammering away at two issues: how exactly do these men get their knowledge of Hindu inheritance practices in India, and whether or not these customs from “the other shore” are applicable to the Sri Lankan community of Chettiyars. Throughout his cross-examination Wiereragewen unwittingly addressed three interrelated issues that cross-cultural litigants faced before colonial courts in VOC Asia; how to reconcile the institutions’ European legal framework with their local customs, how to transmit reliable knowledge on those — generally uncodified — practices to the court, and perhaps most importantly: how to exploit this area of tension between different legal systems to their own benefit.

  • 3 Among others Benton, Ross (2013, 4).
  • 4 Benton, Clulow (2015).
  • 5 Benton and Ross did not even refer to the Dutch historiography back in 2013 when they described t (...)
  • 6 The conglomerate of these — often British — histories of empire from the late 1980s and early 199 (...)
  • 7 If histories of Dutch legal culture were written beyond criminal justice, then they were mostly b (...)
  • 8 Dinges (2000, 2004). Dinges’ influence on Dutch historiography can be noticed in for example Schm (...)
  • 9 A fascinating case-study of a failing seventeenth-century intercultural marriage in Batavia featu (...)
  • 10 In that sense this contribution directly follows the ambition to connect Martin Dinges’ concept t (...)

2In the past twenty-five years the study of early modern colonial law gained significant momentum in the field of global history, with Lauren Benton’s influential work on legal pluralism kickstarting the current discussions.3 Simultaneously, the paradigm shifted away from a more normative approach towards colonial law to the study of inherently “foreign” institutions as highly localized arenas of control and resistance. Criminal justice remained the focus of empirical research on colonial legal history, with murder, theft and rape as preferred topics over inheritance or contract issues.4 Compared to other imperial regimes, colonial law in the early modern Dutch empire has been relatively understudied, certainly when it comes to the more recent bottom-up perspective of global histories of law.5 In addition, whereas imperial historiography increasingly propagated the webbed and reciprocal relationship between the metropolis and colonial spaces, the legal histories of the Dutch Republic and of its colonial settlements are still more or less running on different tracks.6 In recent years studies on legal culture in the Dutch Republic are moving away from criminal towards civil justice for cities such as Leiden, Rotterdam and Delft.7 Influential for this novel Dutch strand of socio-legal historical research is the concept of Justitznutzung or “uses of justice”, as launched by German historian Martin Dinges in the early 2000s. His approach puts much more agency with the litigants, and how their choices and strategies in turn influenced legal practices.8 This new dynamic for literature on the early modern Republic makes the historiographical distance with legal practices in the Dutch colonial spaces even more regrettable. Although similar research is being set up for cities such as Batavia, Makassar, Cochin, Colombo and Galle, this field is still in its infancy compared to its counterpart in the Dutch Republic.9 In picking up the gauntlet thrown down by the 2019 volume of Vermeesch, Van der Heijden and Zuijderduijn, a more sustained analysis of litigants’ legal strategies and the social function of early modern colonial courts in VOC territories could allow Dutch imperial historiography to link up more easily to current debates in global (legal) history.10

  • 11 Quote by Diane Roussel in Roussel (2015, 32).
  • 12 For example in the edited volume by Schulze, Fuchs (2002).
  • 13 A recent example is Hofman (2021).

3Dinges argued convincingly that litigating parties in early modern Europe instrumentally used civil judicial infrastructures as part of larger strategies of conflict resolution. By following up their interpersonal quarrels in court, litigants subjected themselves to the institutional codes. But subjection did not automatically mean surrender; most litigants were well-versed in adapting their discourse and actions to the “grammar of the trial”.11 Dinges’ Justitznutzung invites us to study their agency to develop strategies within the legal system to obtain a favorable verdict. In the context of civil procedures, litigants could opt for petitions, depositions (written witness statements) and interrogations as crucial elements in those strategies. Certainly interrogations have always appealed to the imagination of legal historians as potential windows to study the social world and mentalities of early modern Europeans.12 In recent years historians have moved beyond this “window”-approach, and interpreted interrogations as the written report of a complex negotiation process between prosecutor and suspect/witness. Understanding the overarching institutional codes, rituals and procedures of these interrogatory cultures allows the study of legal spaces and how litigants could exercise (limited) agency within these.13 But following earlier trends in European legal history, up until now this research was almost exclusively focused on their role in criminal suits. Interrogations and cross-examinations however also regularly featured in civil procedures, with more legal options for litigants to influence court proceedings; both parties and their witnesses were not only subjected to questioning, but litigants — and their legal representatives — also drafted up the questionnaires presented to both their own witnesses as well as those of the other party. Therefore — and perhaps even more so than in criminal cases — interrogations and cross-examinations in civil suits offer us a unique perspective on the negotiation process between two disputing parties and their legal strategies.

  • 14 From the ninth century onwards Sri Lanka had been trading with the Arab peninsula, and (descendan (...)
  • 15 While foregrounding the agency of non-European litigants in a Roman-Dutch legal institution, the (...)

4This article connects the idea of Justitznutzung to interrogation cultures, and applies that blend to civil suits in early modern Dutch Asia. Particular cross-cultural characteristics of colonial litigation could further complicate civil procedures for the parties involved, but at the same time make visible the specific agency of claimants and defendants. If localised petitioners in the plural legal systems of the Dutch VOC territories opted to solve their dispute in judicio, they often needed to reconcile the European legal framework of the institution with uncodified local customs and practices, and devise a suitable strategy in that legal tangle. Eighteenth-century Dutch colonial courts in coastal Sri Lanka offer an interesting cross-cultural legal laboratory where European law and Sinhalese, Tamil and “Moorish”14 value systems came together.15

Figure 1. Map of Sri Lanka, 1766-1796, by © Thijs Hermsen (Humanities Lab, Faculty of Arts, Radboud University).

Figure 1. Map of Sri Lanka, 1766-1796, by © Thijs Hermsen (Humanities Lab, Faculty of Arts, Radboud University).
  • 16 To be precise, I will rely on the numbers in chapter 3 of Rupesinghe (2016).

5First this article will provide the reader with a short historical overview of Dutch civil justice in Sri Lanka and a rough profile of the litigants that brought their interpersonal issues before these Dutch courts throughout the eighteenth century. How was the hierarchy between Dutch civil courts established, how embedded were these courts in the local setting and to what extent did localized litigants participate? For the latter question we rely on a substantial database of 201 civil cases brought before the Colombo “supreme” court and 80 before the Galle district court, between 1732 and 1795. To cover all hierarchic levels of the Dutch judicial system, the above diachronic perspective is complemented by a substantial “snapshot” of 89 civil cases dealt with in a rural court in Galle (so-called Landraad) in the years 1778 and 1779.16

  • 17 In 1740 the president of the Batavian Council of Justice — the highest civil court in Dutch Asia  (...)
  • 18 To be precise, cases from 1743 (Colombo, Moors), 1756 (Colombo, diverse), 1776 (Jaffna), 1785 (Co (...)

6Secondly, the colonial civil procedure under Roman-Dutch law will be mapped out, with the specific role of interrogations and cross-examinations in that legal framework. How were these examinations part of civil procedures, and how did the litigants and their representatives use these interrogations in constructing a legal strategy? To uncover the legal norm that steered the Dutch courts in Sri Lanka four influential manuals of Roman-Dutch procedural law will be studied; Paulus Merula’s Manier van procederen (1592), de Papegay (1644) by Willem van Alphen, Pieter Vromans’ Tractaet de foro competenti (1661), and Manier van procederen (1666) by Simon van Leeuwen.17 Transcripts of six civil interrogations and cross-examinations between 1743 and 1795 will paint the initial Wiereragewen suit on a somewhat broader canvas, with Sinhalese, Tamils or Moorish litigants and witnesses from Jaffna, Galle and Colombo involved in these cases.18

7Besides adding to our understanding of everyday legal practices in Dutch Asia, in the end this article wishes to explore how the translation of a European legal system into the plural legal context of littoral Sri Lanka influenced litigants’ agency. The general hypothesis is that it was precisely that legal grey area between European norms and the colonial practice which offered opportunities for litigants and their legal representatives, with interrogations and cross-examinations the perfect playground in which to devise a winning legal strategy.

Dutch civil courts in coastal sri lanka

  • 19 For an (somewhat outdated) overview of the development of the legal system in Sri Lanka since the (...)
  • 20 In eighteenth-century Dutch cities the financial threshold for petty civil cases in general was 1 (...)
  • 21 In 1770 it was decreed that from then on all civil cases beyond the suburbs of Colombo first had (...)
  • 22 Alicia Schrikker (Leiden) is currently preparing an article on petty cases directly tried by the (...)

8From 1658 onwards, when the Dutch East India Company (VOC) in alliance with the kingdom of Kandy forcefully removed Portuguese traders as the European presence in the island’s coastal territories, they installed a civil and religious administration mirroring institutions in the Dutch Republic. Under the supervision of a governor and his Political Council, among others Orphan Chambers, Church boards and courts of law came into being.19 In criminal and civil cases Roman-Dutch law became the steering principle, with petty civil suits of urban dwellers brought before town councils (Civiele Raad) in Jaffna, Galle and Colombo. Criminal justice as well as civil cases involving sums above 120 rijksdaalders were dealt with by the Councils of Justice (Raad van Justitie) in the same three cities, with Colombo acting as appeal court for the two others.20 Challenging judgments of the Colombo Council of Justice had to be done in Batavia, the Dutch seat of power in Asia. In the early 1740s an extra layer of rural courts (Landraad) was added to the bottom of this pyramidal judicial hierarchy in Dutch Sri Lanka (Figure 2); these lower land courts mainly dealt with civil suits related to land possession further inland.21 Petty disputes outside of the urban centres among non-Europeans were tried by a European governor or dessave in each of the three provinces of Galle, Colombo and Jaffna.22

Figure 2. Hierarchy of Courts for Civil Matters in the Coastal Territories of Sri Lanka under Dutch rule, 1658-1796.

Figure 2. Hierarchy of Courts for Civil Matters in the Coastal Territories of Sri Lanka under Dutch rule, 1658-1796.
  • 23 Although in the Landraden the dessave was advised by native headmen, the final decision was never (...)
  • 24 Rupesinghe (2016, 55).
  • 25 Wagenaar (1994, 147).
  • 26 In 1764 an updated compilation was made, known as the “New Statutes of Batavia”, which was used t (...)
  • 27 This situation is reminiscent of the Spanish colonial law, the so-called derecho indiano, used in (...)
  • 28 Sirks, Hallebeek (2010, 394). There were other seventeenth-century manuals on procedural law used (...)

9The colonial courts were chaired by European VOC officials such as the governor, the commanders of Jaffna and Galle, the senior merchant (opperkoopman) or the dessave.23 Even in the rural judicial Dutch forums (Landraad) presidents, vice-presidents and secretaries were all Europeans.24 High-ranking company officials chaired the legal councils, indicating the strong interrelationship between the company and the legal world in Dutch Sri Lanka.25 To support their verdicts, these court officers were instructed by the so-called Statutes of Batavia from 1642, a compilation of ordinances and orders issued in the heart of the Dutch Asian empire, which functioned as the legal code of all VOC outposts and factories in Dutch Asia.26 When this Batavian code was not clear, the common law of the province of Holland was applied.27 Nevertheless, the administration of justice depended very much on local conditions and the expertise of individual members of the court. In 1740 the president of the Batavian Council of Justice therefore recommended four manuals on procedural law (by Merula, Van Alphen, Vromans and Van Leeuwen) as mandatory reading for the various local courts in the factories and settlements of Dutch Asia.28

10For centuries Sri Lanka had a pivotal position at the heart of the trade routes of the Indian Ocean, between East Africa, the Middle East and Southeast Asia. The learnings of Buddhism, Hinduism and Islam had influenced the daily lives of people and propagated particular cultures and customs; in the sixteenth century the Portuguese had brought Roman Catholicism along, and later the Dutch installed their Reformed Church on the island. By the mid-eighteenth century (descendants of) Arab traders, Chinese immigrants and Malay soldiers populated urban peripheries and rural villages, besides the two dominant social groups of Sinhalese in the southwestern and Tamil in the northern part of the island.

  • 29 Schrikker, Lyna (2019, 45).
  • 30 Schrikker, Ekama (2017, 189).

11In this plural setting, cultural lawmaking and legal practice in Sri Lanka — and Dutch Asia in general — was hardly a mere top-down process, as lawmakers issued specific local ordinances as well, and indigenous customary law was often integrated in these outposts.29 The VOC courts in Sri Lanka did certainly not operate in legal vacuums, and had to function within a larger legal pluralistic setting.30

  • 31 The full quote reads “Dutch strategies in their South Asian enclaves were similar [as the British (...)
  • 32 A detailed analysis of the changing population of litigants before Dutch colonial courts in Sri L (...)

12As the jurisdiction of these Dutch courts gradually encroached from the forts over the suburbs to the hinterland from the early eighteenth century onwards, litigant profiles evermore reflected the social and religious diversity of the island’s littoral regions. Although these courts originally started off as civil courts meant for European sailors and VOC-personnel in the middle of the seventeenth century, these groups never amounted to more than half of the litigants in the 1700s, both in the Colombo and Galle province (see Table I). These preliminary numbers therefore challenge Benton’s assertion that the Dutch in their South Asian territories had “legal authority over mainly VOC employees”, which at best was a reality in the seventeenth century.31 From the lower rural courts through the urban council to the highest appellate court, the number of Sinhalese, Chettiyar and Moorish litigants settling their interpersonal disputes in the Dutch judicial system was considerable in the eighteenth century.32 Dutch courts in Sri Lanka can thus safely be considered legal laboratories for reconciling different value systems from litigants across the socio-cultural spectrum.

  • 33 The category “European/European” in this table refers to a European surname of the litigant, indi (...)

Table I. Litigants before Dutch civil courts in the Colombo and Galle province during the eighteenth century33

  • 34 These numbers are based on the surviving case files. SLNA 1/4194-4324.
  • 35 The numbers of the Raad van Justititie in Galle for both 1759 and 1792/93 are only of the claiman (...)
  • 36 These numbers are drawn from Rupesinghe (2016, 86), and are based on the minutes of the Landraad. (...)
  • 37 These unknown litigants were mostly Sinhalese, and probably a handful of Chettiyars and Moors.

Raad v. Justitie Colombo 1732/179534

%

Raad v. Justitie

Galle 175935

%

Landraad

Galle 1778/177936

%

Raad v. Justitie

Galle 1792/1793

%

European/

Eurasian

235

47

13

46

14

6

13

34

Burgher

25

5

0

0

0

0

0

0

Sinhalese

29

6

10

36

191

79

16

42

Chettiyar

62

12

0

0

1

0

2

5

Moor

20

4

5

18

19

8

7

18

Unknown

13337

26

0

0

18

7

0

0

Total

505

28

243

38

Sources: SLNA 1/4194-4324, 1/6410, 1/6413, 1/6429, 1/6438, 1/6446 and Rupesinghe (2016, 34).

A breakdown of civil procedures in dutch sri lanka

  • 38 For a detailed overview of civil procedures in the Dutch Republic, see for example Lijten (1988) (...)
  • 39 For Visser’s trajectory, see Rupesinghe (2016, 34-35).
  • 40 More on pro deo in Dutch civil procedures in Vermeesch (2014).

13Whether Sinhalese, Moorish or European, any plaintiff had to start up his civil suit with either a written or oral claim presented to the Landraad, Civiele Raad or Raad van Justitie at one of their (bi-)weekly meetings.38 In the Dutch Republic litigants were expected to have a legal representative; their counterparts in Sri Lanka were free to choose whether or not to hire a so-called procureur or procurer. But as most litigants needed assistance in drawing up legal documents further in the procedures, they often consulted one. Not a lot is known about these procurers and their exact relationship to the Company, but in general this relatively small group of European lineage seems to have had legal training; however, in the Galle Landraad of the 1770s self-made procurer Visser was active, who started out as a sailor, worked his way up to bookkeeper and eventually became procurer.39 If the legal costs proved to be an issue, litigants could always ask the court for pro deo representation as well.40

  • 41 More than once defendants were called to the court several weeks in a row before they actually pr (...)
  • 42 Another option in theory was that the defendant formulated a counterclaim against the instigator (...)
  • 43 More on the thombos in Kok (2020).
  • 44 Van Meeteren (2006, 278); Hempenius Van Dijk (2004).

14In the written claim the plaintiff and/or his representative gave a short explanation of the dispute arisen with the other party, referred to the legal grounds of the claim and ended the document with a conclusion (schriftueren van eysch). Once this claim was presented to the civil court, the accused was then summoned and expected to react with a substantive defense or a challenge of the claim on formal grounds, and that within eight days after the session.41 After the court received the defendant’s reaction, the claimant drafted up a written reply (repliek), which in turn was followed by a rejoinder from the defendant (dupliek).42 Then both parties had to present the court with the necessary evidence to substantiate their claims, which in Sri Lankan cases was everything from written testimonies drafted up before a notary or clerk (depositie) through translated palm leaf documents (ola) to abstracts from Dutch church or land registrations (so-called head-, land- or schoolthombos43). These supporting documents were then followed by a statement to counter the opponent’s arguments (reproches and salvatien). Eventually both parties asked the court for a verdict, closing off the ante-interlocutory phase (Figure 3).44

  • 45 Van Meeteren (2006, 279).
  • 46 Merula (1701, 113); Van Leeuwen (1711, 55).

15At this point in the civil procedure the Dutch court could decide to pass an interlocutory injunction. If however they were not satisfied with the evidence or needed more information, the court could start up the post-interlocutory phase. Both parties were then generally asked to bring forward more material evidence (e.g. further notarial attestations45), or — as in most cases — to call upon witnesses. The plaintiff and defendant then had two to three weeks to have their witnesses interrogated by the court.46 After the witnesses were heard by the court (interrogatorien), plaintiff and defendant each had a chance to cross-examine the witnesses brought forward by the opposing party (contra-interrogatorien). Again, both parties could react (probatie and reprobatie), which could be followed by another series of reproches. Only then would the court pass the final verdict on the civil case, started months (or even years) earlier with the plaintiff’s claim.

Figure 3. Procedural steps in civil cases before colonial courts in Dutch Sri Lanka.

Figure 3. Procedural steps in civil cases before colonial courts in Dutch Sri Lanka.

Interrogations and cross-examinations

  • 47 The Portuguese-sounding name of Donna Cecilia probably refers to an ancestor who was baptized a R (...)
  • 48 SLNA 1/4217-18: Donna Cecilia vs. the Chittys and Parruas “boedelmeesteren” of Colombo, dictum va (...)

16Whereas a fiscaal (similar to a public prosecutor) steered criminal inquiries undertaken by the Councils of Justice, in civil suits the litigants and their legal representatives themselves were largely responsible for the results of investigative actions in the post-interlocutory phase. Both parties first had to find witnesses willing to testify on their behalf, which was not always self-evident for litigants. This is what we can learn incidentally from an affair that took place before the Colombo Council of Justice in 1743. The widow Donna47 Cecilia had entered a suit against her stepchildren, to get a share of the inheritance of her late husband Pedro. When the court ordered both parties to present their witnesses, Donna struggled for weeks to name three reliable witnesses, while the stepchildren immediately found no less then twelve. On top of that, Donna’s witnesses ignored the court’s bidding week after week, amongst others due to supposed sickness. And when they were finally examined after five (!) months, all three claimed ignorance, and did nothing further to support Donna’s case.48

  • 49 Merula (1701, 114).
  • 50 Merula (1701, 572).

17Besides finding witnesses, litigants were also responsible for preparing the initial examinations (interrogatorien), by drawing up the sets of questions (articulen) presented to their own witnesses. The timing of the examination had to be announced to the court’s commissioners no later than 24 hours in advance, at which moment the written questionnaire had to be presented as well.49 These questions were kept secret and even the witnesses’ names were not communicated to the opposing party because otherwise “he would have the opportunity to prepare these [witnesses] beforehand or induce them to commit perjury”, as Merula’s manual stipulated.50

  • 51 Vromans (1722, 336).
  • 52 Merula (1701, 584); Vromans (1722, 336). In the end, sworn interpreters had to sign the transcrip (...)

18Although in theory only judges or commissioners could hold the examinations, in Dutch Sri Lanka these were performed more than once by the secretary of the court.51 These secretaries strictly followed the questionnaire they were presented with, and it seems that their role in the examination room was limited and merely executive, nothing compared to the inquisitorial character of the fiscaal in criminal cases. Whereas the prepared questions featured in nice handwriting on the right half of the transcripts, sworn clerks wrote down the answers to the litigant’s questions on the spot in the left margins. Two members of the court attended the examination as observers as well to uphold the legal veracity of the secret procedure.52

  • 53 SLNA 1/4498: Magiddere Gammegei Mathheis de Sielva vs. Matthees, Dictum voor repliek, 28/6/1788.

19Given the cross-cultural nature of the localised civil procedures, interpreters were frequently needed to help out with these examinations. The court employed their own sworn interpreters, whose role was significant, although they often operated in the relative shadows, leaving nothing more than their name and signature on the translated documents. These men needed to render one question after the other from Dutch to Sinhala, Tamil or Arab, and afterwards make sure that the clerk wrote down an exact Dutch translation of the witnesses’ answers. It was not uncommon for litigants to ascribe contradictions and other aberrations in their witness’ testimonies to bad translations. That becomes apparent from a case that had been appealed twice, from the Galle Landraad over the Galle Raad van Justitie to the Colombo Raad van Justitie. The object of the suit was a piece of land and accompanying service to the VOC, that was disputed between the two halfbrothers Matheis de Sielva and Matthees; the issue was that Matthees had to prove who his legitimate father was. When in 1788 Matthees wanted to explain strange answers of his witness during the examination, he stated that “if this answer by the ment[ioned] witness was formulated as such, that would certainly have been caused by a misunderstanding in the translation of the questions”.53

  • 54 Witnesses brought before the Galle Landraad travelled up to 18 kilometers. Rupesinghe (2016, 92). (...)
  • 55 The specific cross-cultural setting of Sri Lanka, with a strong Buddhist presence next to Hindu a (...)
  • 56 SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, 22/6/1778: “Na absolveeringe van het (...)
  • 57 SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, session dd 25/8/1778: “Den prokureur (...)
  • 58 Which of course makes sense, as knowing the identity of the opponent’s witnesses before the recol (...)

20Replying to the questions asked, signing the transcript and promising secrecy was not the final act of a witness in a civil suit. Weeks or often months after their examination they had to come back to the court to personally confirm their statements, travelling up to 10 kilometers and more from their village to the court.54 When the witnesses had taken an oath and confirmed their statements from the initial interrogation (recollement onder eede),55 the opposing party was granted the opportunity to test these witnesses in a cross-examination (contrainterrogatorien). Both the manuals on procedural law as well as the court documents do not offer information on the precise procedure here, besides the fact that the legal representative of the opponent had to leave the room during the actual cross-examination.56 A comparison with the carefully drafted lists of questions of the initial examination seems to imply that the counter-interrogations were more ad hoc practices: although in some cases written questions seem to have been handed in beforehand,57 most cross-examinations had a less rigid structure and sequence of questions than the initial questionnaires.58

Structure of the examination

21The examination transcripts (interrogatorien) reveal a remarkably uniform pattern of questioning, very close to what the Dutch manuals on procedural law suggested as the ideal. In his late-sixteenth century Manier van procederen Paulus Merula had already laid out a basic sequence of introductory questions to start up the examination in Roman-Dutch civil procedures:

II. And first of all everything that in fact concerns their persona.

First their name, epithet, age, place of birth, conduct, quality, etc.

If they know the litigating parties and how, if they are related to one of the parties, and how close

If they have any interest of harm in this case, either directly or indirectly

  • 59 Merula (1701, 576-577).

Everything in the language the deponents know59

  • 60 In the British colonies in the Americas laws governing Indian testimonies varied in time and plac (...)
  • 61 SLNA 1/6466, Beantwoorde interrogatie-boeken or Record of cross-examinations (1721-1796), 1721.
  • 62 SLNA 1/4292: Anna Pieris vs. Maria van Es, Contra-interrogatie sd. (1755), Question 5.
  • 63 The key role of religious affiliation flowed over into the usual follow-up question, which asked (...)

22Besides taking note of their name and age, categorizing witnesses according to religion was seemingly crucial for commissioners in Dutch Sri Lanka to establish their persona. While Roman-Dutch law in principle would not accept testimonies by heathens, in practice witnesses from other religious background were permitted in the court of law.60 A 1721 cross-examination before the Council of Justice in Galle concluded the first question with the basic choice between “Christian or heathen”.61 In later transcripts this particular subquestion was rephrased into an open one on religion, leaving room for differentiation between among others Dutch Reformed, Roman Catholic, Christian (being either one of the previous two), Malabar (probably Hindu), Mahomedan (Moor) or “heathen” (often Buddhists). More than once name, age and religion were the only variables important to the Dutch commissioners, and litigants were well aware of that. The cross-examinations in a 1755 case of the feuding widows Anna Pieris and Maria van Es illustrates the crucial role of religion — and to a lesser extent age — in the truth-searching process before Dutch colonial courts. The Burgher widow Maria van Es claimed that Anna’s late husband Joan Fernando had outstanding debts with her. When several witnesses had brought in depositions to support Anna and clear her of these allegations, Maria van Es drafted up a counter-interrogation. In one of the questions, seemingly in an effort to further discredit the credibility of the witnesses, Maria asked: “why did the witnesses failed to mention their religion and age in the deposition?”62 This again underpins the perceived lesser legal importance of place of birth, residence and profession in the Sri Lankan context, in favor of age and religious affiliation to establish trustworthiness.63

  • 64 After determining the witness’ identity, his religious affiliation and his confirmation to answer (...)

23The structure of the examinations mostly followed an inverted pyramid, from the general to the very specific, with an increasing level of detail asked.64 Merula already suggested centuries earlier that civil examinations should try to bring forth as much detailed information as possible on the place of the dispute, other people involved and especially chronological details:

  • 65 Merula (1741, 577).

III. After that, the Commissioner or interrogator should question the witnesses not only on the principle of the whole case; and in general (if he deems this good and useful) what they know of the entire case between the parties; asking the last question first; or the first last, in case he picks up suspicious signals. But on all circumstances and situations; Time, that is year, month, day and hour; Place, where the subject of the dispute occurred; in whose presence that happened.65

  • 66 In seventeenth- and eighteenth-century Western Europe time awareness was more precise, with witne (...)
  • 67 Similar to answers regarding age in the first question of the examination, witnesses often added (...)

24Based on the examinations however time awareness of the witnesses in eighteenth-century Sri Lanka seemed rather superficial, and not nearly as precise as in concurrent testimonies in the Low Countries.66 Witnesses were hardly ever able to situate events in time, and at best they offered an indication of the year. Barely a handful of examples deviate from that general rule of imprecise time awareness, with an occasional reference to a month or part of the day.67 This lack of time awareness must have posed problems for the VOC officials. Their manuals on procedural law clearly stipulated the importance of chronological details in the assessment of the veracity of witness testimonies, and the overall falsifiability of the examinations’ results in relationship to other statements. Not only Merula made explicit mention of this (see above), but Vromans wrote in his Tractaat de foro competenti:

  • 68 Vromans (1722, 337-338).

And then especially so, when the opposite party could be disadvantaged by articulating time, because in that case time deals with the essence of the act and time is the foundation of someone’s intent. Thus the witness has to be very precise about time, when something happened, or his testimony has no credibility.68

  • 69 Merula (1701, 573).

25This limited time awareness did certainly not contribute to the already skewed perception of Dutch officials towards the credibility of statements by witnesses from another faith, being Sinhalese, Moors or Chettiyars. But for litigants and their representatives this was no gift either for setting up questionnaires, as they needed to turn to other convincing elements in their witnesses’ stories to win over the court. The remainder of the interrogations was therefore devoted to reconstruct the interaction or conversation in question with as much detail as possible; if chronology did not prove to be an auxiliary science, then the litigant asked questions such as: Where did it happen? Who else was there? What words were used exactly in the discussion? This set of details for each witness allowed the litigant and thus the court to falsify the statements from the examinations, as credible building blocks towards a favorable verdict.69

Truth-searching in examinations

  • 70 Merula (1701, 576).
  • 71 SLNA 1/4302: Tiharie Castoerieratne Tinnekoonge Appoerale vs. Abesinghe Jajekoddige Don Louis, Co (...)
  • 72 Answers 2 and 12 also deviated from other formulaic answers, suggesting that these witnesses answ (...)

26In theory the examinations were supposed to happen behind closed doors and with one witness at a time, while the other ones temporarily left the room.70 The idea of questioning multiple witnesses one after the other was to find the truth by comparing answers to similar questions, and hence uncover inconsistencies and lies. Some opening statements of eighteenth-century Dutch examinations in Sri Lanka explicitly refer to this practice, using different variations of the Latin “separatim”; e.g. “in order to question and examine [the witnesses] separately”.71 But there are transcripts that clearly signal that in practice witnesses were occasionally questioned simultaneously. When in August 1743 the two Sinhalese men Don Louis and Sokoe Appoe testified before the Council of Justice in Colombo on behalf of their Moorish friend Sela Modli, the clerk penned down the answer to question 11 as such: “Sokoe Appoe aligns himself with the confession of the first witness [Don Louis]”, which could of course only be true if Sokoe Appoe knew exactly what Don Louis had answered to that same question, probably because they were in the same room during the examination.72

  • 73 If witnesses passed away before the recollement or cross-examination, their initial statement cou (...)
  • 74 SLNA 1/4495: Petronella van Dort vs. inlandsche boedelmeesteren van den abintestato overleden sit (...)

27But the opposite situation was problematic as well. A further scrutiny reveals that witnesses in a same case (and presented with identical questions) were sometimes heard with days or even weeks in-between. And even more dramatic, some witnesses even passed away in the meantime.73 This posed practical problems and a delayed procedure, and the practice of not hearing witnesses on the same day was harmful for the truth-searching process as well. In 1787, a civil case regarding a debt was brought before the Council of Justice of Colombo by widow Petronella van Dort, who claimed that the late Matthijs Gomes owed her husband. After the initial examinations it proved difficult to bring the claimant’s five witnesses back to court to confirm their statements (recollement onder eede): according to van Dort because one of them had left town, and another was caught up by work in the Seminary of Colombo. Only two of them showed up, and Van Dort suggested that the defendant would start the counterinterrogation with these two witnesses. However, the procurer of the defendant refused explicitly because there was a “danger that the witnesses that do show up would pass along the questions of the re-examination that that they answered to the absent ones”.74

  • 75 Because the heirs’ question 40 was “If confessing no, the question will be asked in what year tha (...)

28Because the majority of the examination transcripts were not redacted as such, these records allow us to compare the a priori construction of the quest for truth by one of the litigants, and the ad hoc nature of the answers of the witnesses. Often the initial questionnaires had a certain sequence in mind, whereby one question automatically lead to the next. When the late widow Schrader passed away, the executors of the will started a civil suit in 1776 before the Jaffna Council of Justice. The defendant was Don Philip Rasanajaga, who allegedly still owed widow Schrader and therefore the heirs about 500 rixdaalders. The executors called upon the former clerk of the widow to reconstruct specific conversations between Don Philip and widow Schrader, of which the clerk had been a spectator. Nearing the end of the examination the executors had apparently hoped that the clerk would have answered “no” to a question if the widow had started up a suit against Don Philip. But the clerk answered “yes”, and the secretary had to write as the witness’ answer to the following question “lapsed”.75 These sorts of things happened on a regular basis, whereby prefab questionnaires functioned as a potential shot in the dark, with only one possible answer; the litigant that drafted them up beforehand had to guess or hope what the expected answer was going to be, and build up his or her list of questions towards that final goal of establishing the “truth”. More than once questions were lapsed as a result, weakening or annulling the strategy of the litigant.

  • 76 SLNA 1/4429: Case of the estate of Anna Catharina Cuyk van Mierop, widow of Hendrik Schrader, Int (...)
  • 77 Ibidem, question 42.

29Another result of this a priori construction was that witnesses sometimes offered answers which already revealed details that would be only asked in a later question. In a series of questions the same executors of the Schrader estate tried to zoom in on the actual phrasing of one conversation between Don Philip and the widow, if that talk had been in public or in secret, if there had been other witnesses and finally what the answer of the widow had been.76 But because the witness had already given an elaborate answer to the first of these questions, the answers to the following questions were “lapsed” and “answers with the response to question 32 already replied”. The one-way format of the examinations was not only potentially frustrating for the litigants in their quest for the truth, but it could also be annoying for the witnesses themselves. When the questionnaire came back to the point if and when Don Philip had asked for a receipt of the partial debt he supposedly settled, the clerk of the late widow Schrader answered seemingly slightly frustrated “that the requirer [Don Philip] on several occasions, which has been said before, has asked for a slip, but that he never received one”.77

Counter-interrogations and examination strategies

  • 78 SLNA 1/4292: Anna Pieris vs. Maria van Es, Contra-interrogatie sd. (1755).

30In this rather fixed format of questionnaires going back to Merula and other sixteenth- and seventeenth-century Dutch manuals of procedural law, drawn up at least 24 hours before the examination and without opportunity to adapt in situ to the witnesses’ answers, it was quite difficult to develop procedural strategies. However, the counter-interrogations had a looser format; witnesses had already been identified and sworn in, and litigants and legal representatives could immediately come to the point. While studying these counter-interrogations the difference between litigants with and without legal representatives becomes apparent. When in 1755 the aforementioned widow Maria van Es counter-interrogated the witnesses of claimant Anna Pieris, one cannot help but notice the less formal phrasing and the somewhat erratic sequence of her questions: “If the interrogated had been clearly told what the true content had been of the statement before they signed it? If yes, who then might have been the secretary of that request, to name here without covering up? If the interrogated stated the actual truth? If so, ask everybody if the interrogated could easily swear that the maid of the interrogant had always come exactly at the end of the month to the house of the interrogated to claim the rent?”78 The series of unusual adjectives and direct phrasing (clearly told, true content, who then might have been, covering up, actual truth, easily swear) as well as the confusing sequence make this particular counter-interrogation — probably a series of questions fired away by the widow herself on the spot — stand out from other more formally phrased ones, generally written by procurers.

  • 79 Another strange question was who died first: the widow’s husband or Nonis’ mother-in-law? One wit (...)

31Practical experience — and for some procurers legal training — was crucial, as certain procurers stick out in developing clever sets of questions, asking the right questions and cornering the witnesses. In October 1782 procurer Hendrik Joan Ide represented defendant Rijkloff Nonis against the widow Katharina de Zilva before the Town Council of Colombo. The poor Nonis had lived in a property of the widow for many years. De Zilva claimed that the debt-ridden Rijkloff had then manipulated her into letting him use her house as collateral in a loan under the promise of a quick repay, which he eventually never did. Years later the widow herself had fallen into poverty, and sued Nonis over the initial pledge. When procurer Ide re-examined the claimant’s four witnesses, he asked very specific and seemingly superfluous questions, such as: In what language was the last will of De Zilva’s husband drafted? How close are the witnesses’ wives to the widow? Isn’t one witness the wife of another one? His strategy paid off, as he managed to make these four witnesses clearly refute one another: one said the will was written in Tamil (Malabar), the other said Sinhalese; and apparently two witnesses were related, and claimant De Zilva was the godmother to both a witness’ wife and one witness’ daughter.79 Not only did these and other contradictions make the statements in the initial examination less trustworthy, with the demonstrated family connections between the witnesses and the widow (and in-between the witnesses) parts of their statement were disqualified as evidence.

  • 80 SLNA 1/4545: Johannes Jakobus Loos vs. Jean Henry Requille, Contrainterogatorien dd 20/3/1795.

32Despite carefully drafted up examinations, not all procurers obtained their intended result. In 1795 the accountant Loos accused the French merchant Recuil of selling him an enslaved boy from Cochin (India), under the pretense that the boy had already had the chicken pox, which turned out was not the case. When Loos’ witnesses were subjected to a counter-interrogation the legal representative of Recuil wanted to exonerate his client with two targeted sets of questions. Firstly he wanted to discredit the reliability of the witnesses by stating that there had not been any direct communication between Recuil and the Portuguese-speaking witnesses, as Recuil did not speak that language. Secondly, he wanted a physician to cast reasonable doubt over the fact that chicken pox could not resurface after a first infection. Unfortunately for Recuil and his representative, the witnesses did not respond according to plan. First the witnesses said that Recuil had spoken Portuguese to them on multiple occasions, and the physician refuted the hypothesis of a re-infection as “the chicken pox substance takes full effect in the human body the first time”.80

Targeting weak spots: perjury and false testimonies

  • 81 Oldham (1994).

33Beyond the role of the procurer’s experience in drafting clever questions, is it possible to distinguish underlying patterns of Sri Lankan litigants and their representatives in the rather fixed format of questionnaires of the interrogations and the more open structure of the re-examinations? Discrediting each others’ witnesses and casting doubt over the reliability of their testimonies were of course hardly strategies that can be related to the colonial context as such, as civil courts in eighteenth-century Western Europe faced similar issues.81 However, more than in the Dutch Republic cross-cultural litigants in Sri Lanka targeted a soft spot in Dutch colonial legal culture there: the structural mistrust of legal officers towards indigenous perjury. This distrust of the Dutch government dates back to the early days of their legal framework in Sri Lanka. In 1679 Jaffna commander and later governor Laurens Pijl wrote to his successor:

  • 82 Quoted in Rupesinghe (2016, 106).

Great care must be exercised in the administration of justice, because the people are a troublesome and dishonest race. They do not scruple to take a false oath to gain any profit, and the rich are able to get as many of the common people as they desire to give evidence in their behalf for their profit.82

  • 83 At least 8% of the witnesses before the Galle Landraad testified more than once in the period 177 (...)
  • 84 Kotelawele (1990, 113).
  • 85 Rogers (1987, 244).
  • 86 Quoted in Schneider (2015, 115).
  • 87 Comaroff (2001, 311); Metcalf (1994, 41).

34Despite a severe punishment of six years in chains, there are indications that a century later Pijl’s prophecy of “professional” witnesses endured on the island.83 This phenomenon can also be partially explained by the high degree of litigiousness of the Sinhalese and Tamil, often commented upon by Dutch governors and other officials. In 1697 commander Zwaardecroon of Jaffna wrote that there were still cases that dragged on from the Portuguese rule, over two generations ago.84 But the (perceived) problem of perjury continued as well under British rule; in his study on nineteenth-century criminal cases, Rogers stated that “Sri Lankans treated the colonial courts as morally neutral, and manipulated them to their own advantage. They regarded testimony not as true or false, but as effective or ineffective.”85 Similar analyses were made for courtrooms in eighteenth- and nineteenth-century British India; in 1797 a judge in Bengal wrote “[perjury] is prevalent to a most gross and notorious degree in this district. Hardly a trial occurred before me, in which I did not find reason to impeach the veracity of the witnesses on one side or the other.”86 Historians Metcalf and later Comaroff even framed it bigger as a colonial anxiety of the British, who according to the former “saw deception and deceit everywhere in India”.87

35It lies outside the scope of this article to substantiate these stereotypical claims of litigious Sinhalese or rampant perjury in Dutch civil courts in Sri Lanka, but the strategies deduced from the transcripts of the examinations at least feed that reigning perception. In their 1773 examination of the Sinhalese witness Arroenaselam Sinetambie the aforementioned executors of the estate of the late widow Schrader directly targeted the witness’ credibility before the Jaffna Council of Justice:

28. Was asked, how it could be that the interrogated [Arroenaselam] with the help of his — let us say — extraordinary good memory is able to let the aforementioned answers pass as true on something that happened four or five years ago, like a recited lesson, yes, on top of that it is even more r[em]arkable that he can tell us that it were 91 r[ix]d[aalder]s — a fraction of hundred — that the requirer has have paid to the defendant Schrader besides 4 or 5 hundred r[ixd[aalder]s, as said before, without however being able to tell if it that sum was 400 or 500, which should be easier to memorize than a fraction of that?

  • 88 SLNA 1/4429: Case of the estate of Anna Catharina Cuyk van Mierop, widow of Hendrik Schrader, Int (...)

29. And s[in]ce the interrogated [Arroenaselam] shows doubts here, he is asked if the entire sum he mentioned is in fact not a fabrication of him?88

  • 89 SLNA 1/4199: Anna Fernando vs. Wissiwenaden, session dd 3/8/1740.
  • 90 4289: Anthonij Fernando et. al. vs. Bastiana Fernando, session dd 3/9/1755.
  • 91 More on Anthonij Fernando and the dispute with his stepmother in Lyna (2018).
  • 92 Rupesinghe (2016, 119) came to a similar conclusion for the Galle Landraad.
  • 93 Benton (2002, 167-209).

36Besides this explicit reference to perceived perjury to discredit the witness’ reputation, similar but more implicit strategies were frequently employed by litigants and their legal representatives. Just think of how the procurers of Nonis and Recuil used their counter-interrogations to cast doubt over the precise relationship between the indigenous witnesses and the opposing party, of course tacitly suggesting that these witnesses committed perjury to help out their friends and family members. These loyalties sometimes followed demarcation lines of social groups, but they were not absolute. When in 1740 the Chettiyar Wissenewaden tried to recuse the witness of his female opponent, he argued that the Chettiyar man supposedly worked for her and ate there on a daily basis.89 In a civil case before the Colombo Council of Justice in 1755 claimant Anthony Fernando tried to hold back the testimony of Manuel Fonceka on behalf of his stepmother, accusing him of “falsely testifying in bad faith in support of his sister-in-law”, and that he was “crowing like a weathercock”.90 What makes this smearing even more interesting, is the fact that both Manuel Fonceka and Anthonij Fernando were Sinhalese employees of the Dutch colonial apparatus, and members of the Dutch Reformed Church. Fonceka worked as the clerk of the native Orphan Chamber of the washermen (Hena caste), while Anthonij Fernando at that time was native Reformed catechist, and probably active as a teacher in the Seminary of Colombo.91 Anthonij Fernando consciously played the Dutch fear for unchristian Christians here, of Sinhalese converted in name, who did not have scruples about taking false oaths or give incorrect testimonies.92 Cross-cultural litigants did not hold back to get a favorable verdict in the Sri Lankan Dutch courts, going beyond religious and social bounds that tied them to each other and their witnesses. Accusing the opponents’ witnesses of perjury is in itself not a surprising strategy, but these last suits showcase the potential inflammatory combination of discrediting witnesses in relationship to their religious backgrounds. More research is needed on this topic, but discrediting witnesses with Buddhist, Hindu, Muslim and even converted Christian signature of perjury in eighteenth-century colonial courts in Sri Lanka fed into an existing tradition of Dutch bureaucratic distrust surrounding indigenous litigiousness and perjury, that existed since at least the late seventeenth century. Moreover, scattered research from other Dutch settlements — such as Benton’s chapter on Khoi as legal subjects taking oaths at the Cape93 — seems to indicate that distrust and perjury were powerful forces in colonial court rooms along the Indian Ocean world.

Targeting weak spots: uncodified local customs

  • 94 SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, contrainterrogatorien dd 25/8/1778.
  • 95 Schrikker (2015). Similar processes of codification can be found in eighteenth-century EIC settle (...)
  • 96 For examples on rulings in marital affairs, see Bulten et al. (2018) and Rupesinghe (2018).
  • 97 Schrikker, Lyna (2019, 47).

37Cross-cultural litigants and their representatives also displayed a remarkable sensitivity towards an apparent second weak spot of the colonial legal culture in Sri Lanka, namely the Dutch uncertainty of how to integrate unwritten Sinhalese, Tamil and Moorish customary law into their Roman-Dutch framework.94 Since the mid-seventeenth century the legal backbone of Dutch Asia had been the Batavian code; the increased confrontation with customary laws would find its way into the updated version of the 1760s (New Statutes of Batavia), wherein limited fragments of codified Hindu, Muslim and Chinese civil law were integrated.95 But there were also simultaneous bottom-up processes stemming from the outposts and settlements. In 1706 for example Dutch officials in Sri Lanka codified Hindu law (Thesewalamai) of the Tamil Vellalar caste, that mainly lived in Jaffna and the surrounding region. These early efforts to codify indigenous laws however were less about ethnographic interest or power display, but more about acknowledging the importance of understanding the other party to set up successful negotiation, the only way to reach satisfactory verdicts for all parties involved.96 Preliminary research on eighteenth-century Batavia casts doubts over the actual influence of these local codifications or the New Statutes of Batavia on legal practices.97

38The civil suit from the introduction can help us to further explore the influence of customary law on Dutch legal practice in general and on witness examinations in particular, and the ensuing tension field in truth-finding between unwritten oral tradition and codified law. In 1778 Wiereragewen sued his in-laws before the Council of Justice in Colombo over the inheritance of his wife’s sister. As she had passed away childless and without a last will, Wiereragewen was convinced his daughter was entitled to a part of her aunt’s inheritance. After all Roman-Dutch inheritance law ensured that both sons as well as daughters got equal shares, or in these cases: nephews and nieces. But Wiereragewen and his in-laws were Hindu and part of the merchant Chettiyar community with origins in Southern India, and Hindu family law supposedly only allowed male-line inheritance. The Dutch commissioners involved knew from the start they were venturing into strange waters to reconcile Roman-Dutch family law and Hindu inheritance practices before they would be able to reach an acceptable verdict.

  • 98 SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, dictum Van Dort dd 7/6/1777.
  • 99 Idem, dictum Van Dort dd 15/4/1778. It is worthwhile noting that while the written defense origin (...)

39Both Wiereragewen from Colombo and his brother-in-law Aroenaselen from Galle got representation. The latter’s procurer Leonard Van Dort wasted no time after the indictment and tackled this cross-cultural issue head-on in his written defense. Wiereragewen would never be able to prove that his daughter had any right to her aunt’s inheritance, as it was “common knowledge that according to old practices and customs among heathens women are not entitled to ab intestato successions”.98 And in this case the Dutch officers had to follow these heathen practices, said Van Dort, as the Batavian code explicitly stated that until further notice these types of cases had to stick to the (uncodified) customs and practices. In addition, Van Dort pushed Wiereragewen in the role of a debt-ridden man involved in other court cases as well, who knew how to work the system, and now he wanted to “carelessly help himself with the Dutch inheritance laws”.99

  • 100 Idem, dictum Van Cuijlenburg dd 29/4/1778.
  • 101 Idem, repliek Van Cuijlenburg dd 9/7/1777: Artikels 27 en 28.

40Procurer Van Cuijlenburg stepped into the arena to protect the rights of the “simple and inept Malabar” Wiereragewen.100 In his reply to Van Dort he ignored the substantive claim on heathen practices, just mentioning in the last paragraph that he “respectfully” left the discussion on the relevance of the Batavian code in this suit to the judge.101 The rest of the ante-locutory phase revolved around jurisdictional discussions, and the question whether or not Wiereragewen should find a guarantor in the event that he would lose the suit, and had to pay for all the legal costs.

  • 102 The Chettiyar community in eighteenth-century Sri Lanka was composed of at least three distinct g (...)
  • 103 SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, contrainterrogatorien dd  25/8/1778.

41However, after the interim judgment the suit soon reverted back to the central issue: were Hindu rituals and inheritance practices from “the Coromandel coast and further on the other shore” relevant to the Chettiyar community in Sri Lanka, and if so, how should the Dutch court integrate them in their legal framework? As experienced men of law the two procurers were very much aware of the fact that the Dutch commissioners would struggle to pass a verdict based on nothing but unwritten customary law. Van Cuijlenburg’s goal therefore was to accentuate the diffuse nature and insecure transmission of Hindu inheritance practices from Southern India to Sri Lanka, while Van Dort aimed at exactly the opposite by proving the validity of these customs and stress possible codifications. Interestingly enough, the Thesewalamai from 1706 was not referred to once in this suit, despite the fact that it was Sri Lankan-based codified Hindu law. As it had been known for almost 70 years by the time of the Wiereragewen suit, the Thesewalamai of the Hindu Tamils of Jaffna was probably considered not relevant enough for the Hindu Chettiyars who lived on the western and southern shores of the island.102 Given this lack of available and applicable codifications, both procurers in the case had to present the court with enough respectable witnesses of Hindu signature to corroborate their narratives. And they spared no effort in doing so, even bringing over Brahmins and Hindu chiefs from the Indian province of Tamil Nadu, some 400 kilometers from Colombo. Van Cuijlenburg put his faith among others in two Brahmins from “the other shore”, a well-respected interpreter of the chief VOC-administrator in Colombo and a handful of heathen Chettiyars from across the island, while Van Dort brought along the headman of heathen Chettiyars in Colombo, a Brahmin from the coast of Sri Lanka, and three indigenous Hindu chiefs from Southern India.103

  • 104 SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, contrainterrogatorien Van Cuijlenbur (...)
  • 105 SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, Advertissement van regten, s.d.

42After the initial witness depositions both Van Dort and Cuijlenburg seized the opportunity of their cross-examinations to get the upper hand in the discussion on the applicability of Hindu inheritance practices from India in Sri Lanka. First, Van Cuijlenburg started off with seemingly irrelevant questions: if the opponent’s witnesses knew about Hindu rituals from India whereby men were not buried but burnt, that their widows were not allowed to remarry, and in some cases were even burnt alive alongside their husbands? And if they were aware of such practices being copied in Sri Lanka? The witnesses could only acknowledge that this indeed was the case in some parts of Tamil Nadu, but that these rituals were not practiced on the island. And with these answers, Van Cuijlenburg had guided the narrative to his first key point: if these other Hindu rituals from India were not applicable to Sri Lanka, why should we follow their inheritance practices “from the other shore”? After that, the procurer built towards a second argument, and asked the witnesses how they knew about these Hindu customs from India: “did they read it somewhere, and if so where, or how was that scripture called among their own?”. None of the witnesses had ever read such a thing, but one of the brahmins answered that these scriptures were called “Sewerpenajekar Kattele” and that he “heard that these were to found in Kanchipuram”, a temple city in Tamil Nadu. Wiereragewen’s procurer went further and asked these witnesses how they could be so sure about explaining these customs if they had not read these scriptures themselves, and what legal grounds they would then have? Nearly all of the witnesses testified that these practices had been passed down by their parents and grandparents and taught to the witnesses “following the custom among heathens”.104 And here Van Cuijlenburg had them where he wanted: knowing that the Dutch commissioners were uncertain about integrating uncodified customary law, he tried to convince them that a bunch of hearsay was hardly enough to prove the relevance of Hindu practices in this particular suit. Later on in the suit Van Cuijlenburg would come back to this last point, and stated that according to the “written laws” (probably the Batavian code) the defense should have at least brought forward not this one but ten undeniable testimonies. To close the deal, he ended by stating that the saying goes that “from hearsay one lies often”.105

43As the verdict unfortunately not survived the hands of time, it is unclear if Van Cuijlenburg and Wiereragewen actually won their suit. But their legal strategy was clear from the start: to exploit the available wiggle room in-between the Roman-Dutch legal framework and customary Hindu laws to their advantage, and to force Hindu family members to follow European inheritance law and claim a share of Aroenaselen’s possessions for Wiereragewen’s daughter. The lack of available and relevant codified Hindu law in Sri Lanka and the oral transmission from Indian practices worked out in their advantage and at least allowed them to stay in the legal race and question the added value of the testimonies of the defendant’s witnesses in the cross-examination.

Conclusions

44In the end Wiereragewen brings us back to the often chaotic area of tension in which Dutch civil courts in Sri Lanka had to operate in, as a pars pro toto for other colonial courts in Dutch Asia. The growing participance of localized cross-cultural litigants in the eighteenth century confronted them with the limitations of the original Roman-Dutch framework of the Batavian Code, and even the 1760s update with inclusion of particular Muslim, Hindu and Chinese laws was seemingly not sufficient to find ready-made answers in complex civil matters. In an effort to stay a relevant institution in cross-cultural conflict resolution Dutch courts in Sri Lanka incorporated local customs. Given the uncodified nature of such orally transmitted practices on the one hand and the Dutch bureaucratic fetish for paper proof on the other, every cross-cultural suit was a potential truth-searching minefield.

45Only a thorough analysis of legal practices lets us analyze the social function of colonial courts in the plural legal systems of eighteenth-century Sri Lanka. Dinges’ Justitznutzung invites us to shift attention even more to the litigants and their strategies to obtain favorable verdicts. This article tried to showcase the relevance of specifically civil suits for nuanced understandings of the “uses of justice”. Contrary to criminal matters, the interpersonal nature of civil litigation created more legal spaces for litigants and their legal representatives to develop winning strategies, with a central role for interrogations and especially cross-examinations. The freedom of Sri Lankans to forego the hiring of legal representation perhaps lowered the (financial) threshold for litigants compared to the Dutch Republic, but at least in the post-interlocutory phase legal representation was crucial for constructing clever questionnaires and cornering cross-cultural witnesses. Cross-examinations in suits from litigants such as Wiereragewen, Anthony Fernando, the widows Schrader or Anna Pieris each in their way showcase their awareness of Dutch sensitivities on how to deal with witnesses adhering to another faith and local practices in family law outside of the traditional Roman-Dutch framework.

  • 106 Rupesinghe (2016, 51).
  • 107 But like the Dutch apparently did in the eighteenth century, the British soon discovered that Rom (...)

46Justitznutzung also invites us to question if and how litigants’ choices and strategies in turn influenced legal practices. In the short term the effects of local litigants and their procurers targeting Dutch legal insecurities about indigenous perjury and customary law were clear. By damaging the reputation of “false” witnesses they raised doubt among the councilors about the veracity of the testimonies, thus increasing their chance to get a favorable verdict.106 And by questioning local customary laws before a court that had showed willingness to rule pragmatically, they could bend Roman-Dutch law in their favor. But what were the long-term effects of the paradoxical situations whereby indigenous litigants questioned influential members of their own community before a Dutch court and by casting doubts on the applicability of local uncodified practices there? Feeding into the Dutch fear of indigenous perjury and creating black holes of customary law might have been legal strategies that paid off in the short term. But this likely stood in the way of a more durable integration of their own Sinhalese, Tamil and Moorish laws in Sri Lanka’s colonial legal system, certainly knowing that the British recognized Roman-Dutch law as common law when they took over power as colonial rulers, and that in doing so, Roman-Dutch law remains influential in the island’s legal system up until today.107

47Although a fascinating cross-cultural legal laboratory, eighteenth-century Sri Lanka was not an exception to the rule. Company-led bottom-up and top-down codification initiatives of law outside of the Roman-Dutch framework were simultaneously happening all over VOC Asia. In the light of this article’s results, that knowledge begs for comparative research on “uses of justice” between Sri Lanka and other larger Dutch settlements across the Indian Ocean world such as the Cape Colony and Batavia. But it would be equally fascinating to question if and how territorial sovereignty impacted the social function of VOC courts and integration of local customs into the Roman-Dutch framework, by drawing in Asian localities where the Dutch legal influence did not encroach much further than the forts and suburbs (e.g. Cochin or Makassar). And when constantly foregrounding litigants’ agency, adopting a broader geographical scope would allow to potentially discover legal strategies of diasporic communities such as Chettiyars in South Asia, or the Wajorese and Chinese in South-East Asia, as they took their civil matters to VOC courts in different localities. Only by striving for such an integrated approach Dutch imperial historiography will be able to catch up with debates in global (legal) history.

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Bibliographie

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Notes

1 In the limited literature available on the Sri Lankan Chettiyars, they are identified as a group of Tamil-speaking merchants, bankers and creditors, originally from South-India and with extensive trade networks in India and the Indian Ocean world. Raben (1996, 237, 248-251); Wickramasinghe (2014, 139, 173-174).

2 To be precise, the witnesses from South India came from Sadras, Nagapattinam and Thanjavur. SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, contrainterrogatorien Van Cuijlenburg, dd 22/6/1778.

3 Among others Benton, Ross (2013, 4).

4 Benton, Clulow (2015).

5 Benton and Ross did not even refer to the Dutch historiography back in 2013 when they described the “rich new currents of research” on legal history and empires (Benton, Ross, 2013, 2). More details on Dutch historiography on colonial law in Schrikker, Lyna (2019), with noteworthy additions on the modern Dutch empire of the nineteenth and twentieth centuries from Ravensbergen (2018) and Yahaya (2020).

6 The conglomerate of these — often British — histories of empire from the late 1980s and early 1990s onwards are labelled as New Imperial History. On the discussion if and how historiography on Dutch colonialism should link up to these discussions, see Raben (2013).

7 If histories of Dutch legal culture were written beyond criminal justice, then they were mostly based on socially-biased civil cases from the highest appellate courts. Haks was one of the first historians to use civil records from lower courts in his study of seventeenth- and eighteenth-century Dutch marriage practices, in Haks (1985). For an overview of this historiography, see Vermeesch, Van Meeteren (2019).

8 Dinges (2000, 2004). Dinges’ influence on Dutch historiography can be noticed in for example Schmidt (2014), and most recently in Vermeesch et al. (2019).

9 A fascinating case-study of a failing seventeenth-century intercultural marriage in Batavia featured in Blussé (2002). Sutherland (2009), Wellen (2009) and Singh (2010) also used civil legal bureaucracy to study life in Makassar and Fort Cochin respectively. A more generalistic archival approach towards Dutch Asia in general is Van Wamelen (2014). In the context of the NWO project Resilient Diversity Heijmans and Rose (both Leiden University) are working among others on civil suits in the Dutch East and West Indies. For Dutch Sri Lanka, see Rupesinghe (2016); Schrikker, Ekama (2017); Bulten et al. (2018); Rupesinghe (2018); Wickramasinghe, Schrikker (2019); Rupesinghe (2019); Schrikker, Lyna (2019). An inspiring call to arms for similar alternative readings of colonial archives in Dutch Asia was Raben (2019).

10 In that sense this contribution directly follows the ambition to connect Martin Dinges’ concept to global history, formulated in the recent volume by Vermeesch et al. (2019).

11 Quote by Diane Roussel in Roussel (2015, 32).

12 For example in the edited volume by Schulze, Fuchs (2002).

13 A recent example is Hofman (2021).

14 From the ninth century onwards Sri Lanka had been trading with the Arab peninsula, and (descendants of) these Muslims intermarried with local women and settled along the coast. Although little is known about this group and the term is historically complicated, the “Moors” that lived in eighteenth-century Sri Lanka and were referred to (or self-identified) in Dutch paper reality were likely descendants from these traders, followers of Islam and most of them spoke Tamil.

15 While foregrounding the agency of non-European litigants in a Roman-Dutch legal institution, the author does of course recognize the structural power inequalities in colonial settings that heavily influenced legal procedures as well. The Dutch considered themselves sovereign rulers over the coastal territories of Sri Lanka, and therefore imposed their legal system and hierarchy of law on existing formal and informal procedures of conflict resolution.

16 To be precise, I will rely on the numbers in chapter 3 of Rupesinghe (2016).

17 In 1740 the president of the Batavian Council of Justice — the highest civil court in Dutch Asia — recommended specifically these four manuals on procedural law as mandatory reading for the various local courts in Dutch Asia (Sirks, Hallebeek, 2010, 394). The reference library of the Galle Council of Justice in 1766 explicitly mentions the works of Merula, Van Alphen and Van Leeuwen (Wagenaar, 1994, 140). The longer titles can be found in the reference section.

18 To be precise, cases from 1743 (Colombo, Moors), 1756 (Colombo, diverse), 1776 (Jaffna), 1785 (Colombo), 1794 (Colombo) and 1795 (Colombo, Tamil).

19 For an (somewhat outdated) overview of the development of the legal system in Sri Lanka since the seventeenth century, see Nadaraja (1972).

20 In eighteenth-century Dutch cities the financial threshold for petty civil cases in general was 100 to 120 guilders. Van Meeteren (2006, 236-240).

21 In 1770 it was decreed that from then on all civil cases beyond the suburbs of Colombo first had to be brought before the Colombo Landraad; only in case of appeal the suit was brought before the Raad van Justitie. Hovy (1991).

22 Alicia Schrikker (Leiden) is currently preparing an article on petty cases directly tried by the dessave of Jaffna in the late eighteenth century.

23 Although in the Landraden the dessave was advised by native headmen, the final decision was nevertheless always his. For a significant section of the population these headmen were crucial in extrajudicial dispute resolution. Rupesinghe (2016, 26-27).

24 Rupesinghe (2016, 55).

25 Wagenaar (1994, 147).

26 In 1764 an updated compilation was made, known as the “New Statutes of Batavia”, which was used throughout Dutch Asia from 1770 couards (Jurriaanse, 1943).

27 This situation is reminiscent of the Spanish colonial law, the so-called derecho indiano, used in Asian, American and Oceanic territories under Spanish rule. Whenever this derecho indiano proved insufficient, Castilian law was called upon. Pihlajamäki (2017, 89-90).

28 Sirks, Hallebeek (2010, 394). There were other seventeenth-century manuals on procedural law used in the Netherlands, written by prominent Dutch jurists such as Hogerbeets en Ockers (Le Bailly, Verhas, 2006, 85). The four manuals mentioned above were not only abstract reading, but frequently used in the proceedings: for example, in the Wiereragewen case mentioned above procurer Van Dort referred to specific paragraphs in Merula and Vromans when he wanted to safeguard the reasonable response time for his client and claim that plaintiff Wiereragewen had to follow jurisdiction of the defendant Aroenasalen in Galle. SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, dictum van Dort, dd 7/6/1777. The reference library of the Galle Council of Justice in 1766 held the works of Merula, Van Alphen and Van Leeuwen, next to other seminal works from the seventeenth century by Hugo de Groot or Bernard van Zutphen and even the sixteenth-century manual by Joos de Damhouder. Wagenaar (1994, 140).

29 Schrikker, Lyna (2019, 45).

30 Schrikker, Ekama (2017, 189).

31 The full quote reads “Dutch strategies in their South Asian enclaves were similar [as the British and Portuguese policies] and recognized VOC legal authority over mainly VOC employees, while local rulers continued to preside over their own legal forums”, in Benton (2002, 131).

32 A detailed analysis of the changing population of litigants before Dutch colonial courts in Sri Lanka over the course of the eighteenth century would take us too far here, but will the focal point of an upcoming article.

33 The category “European/European” in this table refers to a European surname of the litigant, indicating a “foreign” lineage of some sort. After generations of intermarriages between European men and Asian women this category became ever more homogenous in the eighteenth century. The other categories were drawn directly from the sources, by litigants who were identified (or self-identified) when appearing before the court. For a thorough discussion of evolving social categorisations and reflections on bureaucratic (self-)identification in Dutch Sri Lanka, see Lyna, Bulten (2021).

34 These numbers are based on the surviving case files. SLNA 1/4194-4324.

35 The numbers of the Raad van Justititie in Galle for both 1759 and 1792/93 are only of the claimants, not the defendants. They are deduced from the minutes. I would like to thank Wouter Raaijmakers for providing me with these numbers.

36 These numbers are drawn from Rupesinghe (2016, 86), and are based on the minutes of the Landraad. SLNA 1/6511, 1/6512, 1/6520 and 1/6521.

37 These unknown litigants were mostly Sinhalese, and probably a handful of Chettiyars and Moors.

38 For a detailed overview of civil procedures in the Dutch Republic, see for example Lijten (1988) or Hempenius Van Dijck (2004).

39 For Visser’s trajectory, see Rupesinghe (2016, 34-35).

40 More on pro deo in Dutch civil procedures in Vermeesch (2014).

41 More than once defendants were called to the court several weeks in a row before they actually presented themselves (and had to pay a fine for every absence), with a maximum of three times before they lost their vindication right. In the Leiden Peacemaker Court 74% of the defendants did not attend after the first summon, but afterwards 60% of them did show up (Van Meeteren, 2006, 281).

42 Another option in theory was that the defendant formulated a counterclaim against the instigator (reconventie), expecting a formal answer from the original claimant. However, this legal route was seldom practices (Van Meeteren, 2006, 278).

43 More on the thombos in Kok (2020).

44 Van Meeteren (2006, 278); Hempenius Van Dijk (2004).

45 Van Meeteren (2006, 279).

46 Merula (1701, 113); Van Leeuwen (1711, 55).

47 The Portuguese-sounding name of Donna Cecilia probably refers to an ancestor who was baptized a Roman Catholic during the Portuguese period of coastal Sri Lanka, rather than an actual Portuguese lineage. Whether or not “Donna” has to be considered a prefix referring to a (self-fashioned) title as in the Portuguese noble “dona” is unclear from the sources, but is highly unlikely, given the prevalence of this name in eighteenth-century thombo and other Dutch population registers.

48 SLNA 1/4217-18: Donna Cecilia vs. the Chittys and Parruas “boedelmeesteren” of Colombo, dictum van Donna Cecilia, dd 9/7/1743 & Interrogatorien, dd 18/12/1743.

49 Merula (1701, 114).

50 Merula (1701, 572).

51 Vromans (1722, 336).

52 Merula (1701, 584); Vromans (1722, 336). In the end, sworn interpreters had to sign the transcript to confirm the veracity of the document, just like the secretary, clerk, the two observing commissioners and of course the witness(es) themselves, the latter being asked in the end to keep their answers secret.

53 SLNA 1/4498: Magiddere Gammegei Mathheis de Sielva vs. Matthees, Dictum voor repliek, 28/6/1788.

54 Witnesses brought before the Galle Landraad travelled up to 18 kilometers. Rupesinghe (2016, 92). Normally litigants had to pay their witnesses a certain fee for their service, as well as travel costs, but there is no evidence of this practice in the scrutinized courts records of Dutch Sri Lanka. Merula (1701, 585); Van Leeuwen (1711, 61). In a case before the Colombo Council of Justice the cross-examination took place no less than eight months after the initial interrogation (February 5 and October 7 1782 respectively). SLNA 1/4482: Rijklof Nonis vs. Katherina de Zilva, Inventory dd. 2/2/1785.

55 The specific cross-cultural setting of Sri Lanka, with a strong Buddhist presence next to Hindu and Muslim customs, forced the VOC to rethink the Roman-Dutch oath swearing early on. Dutch court officers were convinced that using the Dutch oath was an ineffective tool, as swearing in the Christian manner meant too little for indigenous litigants and witnesses. More on that in Rupesinghe (2019).

56 SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, 22/6/1778: “Na absolveeringe van het een en ander, den prokureur van Dort, die geduurende den ondervraging der gereq [uireerden]s op de overgelegde contravraegen, om de vrijheid te geeven buijten gestaen hadde, weder binnengescheld weesende”.

57 SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, session dd 25/8/1778: “Den prokureur Vandort voor den geinthimeerde produceert eenige kontravraegen in scriptie”.

58 Which of course makes sense, as knowing the identity of the opponent’s witnesses before the recollement could potentially allow the opposing party to influence these witnesses. On the other hand, some of the counter-interrogations were more elaborate than others, perhaps too elaborate to be created on the spot.

59 Merula (1701, 576-577).

60 In the British colonies in the Americas laws governing Indian testimonies varied in time and place, whereby restrictions to certain classes of Indians, case types (only involving other Natives) or religious affiliation (only Christianized Indians) could apply. Ross, Owensby (2019, 16).

61 SLNA 1/6466, Beantwoorde interrogatie-boeken or Record of cross-examinations (1721-1796), 1721.

62 SLNA 1/4292: Anna Pieris vs. Maria van Es, Contra-interrogatie sd. (1755), Question 5.

63 The key role of religious affiliation flowed over into the usual follow-up question, which asked the interrogated to confirm that they would answer the questions truthfully with God as their witness. This evolved from a longer formal phrasing to a looser interpretation, but both with the same message. SLNA 1/4303: Joan Perera vs. Alexander Alvis et.al., Interrogatorien dd 21/9/1756, question 1 and SLNA 1/4545: Johannes Jakobus Loos vs. Jean Henry Requille, Interrogatorien dd 3/3/1795, question 2. Both examples were drawn from the Council of Justice in Colombo, and involved witnesses claiming to be Dutch Reformed or Roman Catholic. In 1776 an examination before the Jaffna Council of Justice deviated from this pattern, replacing this singular query with a more elaborate series of questions scanning the witnesses’ understanding of Christianity and the Dutch oath. SLNA 1/4429: Case of the estate of Anna Catharina Cuyk van Mierop, widow of Hendrik Schrader, Interrogatorien dd 14/3/1773.

64 After determining the witness’ identity, his religious affiliation and his confirmation to answer truthfully before God, the examinator sometimes wanted to establish the precise relationship of the witness to the party involved, if this was not yet clear. This was usually done in a yes/no question (“was he not a clerk of x”/“is he not a servant of the requirer”) and always the answer was “yes”. But this request was hardly always on the questionnaire. SLNA 1/4429: Case of the estate of Anna Catharina Cuyk van Mierop, widow of Hendrik Schrader, Interrogatorien van Arroenaselam Sinetambie question 11 and Interrogatorien van Siendamanien Aroemogetaan Madap[allie] van a-Aralie, question 11.

65 Merula (1741, 577).

66 In seventeenth- and eighteenth-century Western Europe time awareness was more precise, with witnesses referring to half and quarter hours in their testimonies (Blondé, Verhoeven, 2013).

67 Similar to answers regarding age in the first question of the examination, witnesses often added the reservation “after his best recollection” or “after consideration” to their time indications, suggesting guesswork to some extent. For example “after his recollection 3 or 4 years ago”, “after his recollection 7 or 8 years ago”, “now 2 or three years ago”. SLNA 1/4302: Tiharie Castoerieratne Tinnekoonge Appoerale vs. Abesinghe Jajekoddige Don Louis, Contrainterrogatorien van Eloewanege Bandoloehamij, dd 28/7/1757, answer to question 21 and SLNA 1/4434: Executors of the last will of Moettoe Sideappa vs. Margaritha Thijsz, 1777, Interrogatorien van Litsemenaijer.

68 Vromans (1722, 337-338).

69 Merula (1701, 573).

70 Merula (1701, 576).

71 SLNA 1/4302: Tiharie Castoerieratne Tinnekoonge Appoerale vs. Abesinghe Jajekoddige Don Louis, Contrainterrogatorien dd 28/7/1757; SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, contrainterrogatorien dd 25/8/1778; SLNA 1/4482: Rijklof Nonis vs. Katherina de Zilva, Contrainterrogatorien dd 7/10/1782; SLNA 1/4545: Johannes Jakobus Loos vs. Jean Henry Requille, Contrainterogatorien dd 20/3/1795. While most initial examinations did not mention this explicitly in the opening statement, the examinations of the witnesses of the opposing party (contra-interrogatorien) did, and it is yet unclear why.

72 Answers 2 and 12 also deviated from other formulaic answers, suggesting that these witnesses answered the questions simultaneously SLNA 1/4213: Sela Modli vs. Caddisa Naatja, answers 2, 11 and 12.

73 If witnesses passed away before the recollement or cross-examination, their initial statement could be withheld if their legality and credibility could be ascertained based on other testimonies. Merula (1701, 574).

74 SLNA 1/4495: Petronella van Dort vs. inlandsche boedelmeesteren van den abintestato overleden sittij Mattijs Gomes, session dd 10/12/1787.

75 Because the heirs’ question 40 was “If confessing no, the question will be asked in what year that has occurred, and what else happened on that occasion”. SLNA 1/4429: Case of the estate of Anna Catharina Cuyk van Mierop, widow of Hendrik Schrader, Interrogatorien dd 14/3/1773, question 40.

76 SLNA 1/4429: Case of the estate of Anna Catharina Cuyk van Mierop, widow of Hendrik Schrader, Interrogatorien dd 14/3/1773, questions 32 to 35.

77 Ibidem, question 42.

78 SLNA 1/4292: Anna Pieris vs. Maria van Es, Contra-interrogatie sd. (1755).

79 Another strange question was who died first: the widow’s husband or Nonis’ mother-in-law? One witness stated the husband died first, the other said the mother-in-law, again contradicting one another. SLNA 1/4482: Rijklof Nonis vs. Katherina de Zilva, Contrainterrogatorien dd 7/10/1782.

80 SLNA 1/4545: Johannes Jakobus Loos vs. Jean Henry Requille, Contrainterogatorien dd 20/3/1795.

81 Oldham (1994).

82 Quoted in Rupesinghe (2016, 106).

83 At least 8% of the witnesses before the Galle Landraad testified more than once in the period 1778-1781. Rupesinghe (2016, 81). Either these were witnesses with an incredible social network, or perhaps they were guns for hire who (falsely) testified on someone’s behalf.

84 Kotelawele (1990, 113).

85 Rogers (1987, 244).

86 Quoted in Schneider (2015, 115).

87 Comaroff (2001, 311); Metcalf (1994, 41).

88 SLNA 1/4429: Case of the estate of Anna Catharina Cuyk van Mierop, widow of Hendrik Schrader, Interrogatorien, 14/3/1773.

89 SLNA 1/4199: Anna Fernando vs. Wissiwenaden, session dd 3/8/1740.

90 4289: Anthonij Fernando et. al. vs. Bastiana Fernando, session dd 3/9/1755.

91 More on Anthonij Fernando and the dispute with his stepmother in Lyna (2018).

92 Rupesinghe (2016, 119) came to a similar conclusion for the Galle Landraad.

93 Benton (2002, 167-209).

94 SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, contrainterrogatorien dd 25/8/1778.

95 Schrikker (2015). Similar processes of codification can be found in eighteenth-century EIC settlements in Calcutta and Madras, with EIC administrators wanting to establish written accounts of Hindu and Muslim law. Ross, Owensby (2019, 17).

96 For examples on rulings in marital affairs, see Bulten et al. (2018) and Rupesinghe (2018).

97 Schrikker, Lyna (2019, 47).

98 SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, dictum Van Dort dd 7/6/1777.

99 Idem, dictum Van Dort dd 15/4/1778. It is worthwhile noting that while the written defense originally said “carelessly help himself with the inheritance law”, the procurer or the legal clerk later added the adjective “Hollands” or Dutch.

100 Idem, dictum Van Cuijlenburg dd 29/4/1778.

101 Idem, repliek Van Cuijlenburg dd 9/7/1777: Artikels 27 en 28.

102 The Chettiyar community in eighteenth-century Sri Lanka was composed of at least three distinct groups: firstly Christian Chettiyars who had lived on the island for generations and thought of themselves as “true Chettiyars”, secondly recent Hindu (or “heathen”) migrants from Southern India and thirdly, another group of South Indians mostly composed of people recently freed from enslavement. Wiereragewen and his in-laws were very likely members of the second group (Lyna, Bulten, 2021).

103 SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, contrainterrogatorien dd  25/8/1778.

104 SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, contrainterrogatorien Van Cuijlenburg dd 22/6/1778.

105 SLNA 1/4458: Wiereragewen Modliaar vs. Aroenaselen Modliaar, Advertissement van regten, s.d.

106 Rupesinghe (2016, 51).

107 But like the Dutch apparently did in the eighteenth century, the British soon discovered that Roman-Dutch law was but one of the relevant normative regimes in Sri Lanka. Professor Stefan Vogenauer of the Max Planck Institute for Legal History and Legal Theory in Frankfurt currently directs the highly relevant research project “Roman-Dutch law and the Common Law World” on contract law of Guyana and Sri Lanka in nineteenth and twentieth centuries.

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Table des illustrations

Titre Figure 1. Map of Sri Lanka, 1766-1796, by © Thijs Hermsen (Humanities Lab, Faculty of Arts, Radboud University).
URL http://journals.openedition.org/chs/docannexe/image/3215/img-1.jpg
Fichier image/jpeg, 249k
Titre Figure 2. Hierarchy of Courts for Civil Matters in the Coastal Territories of Sri Lanka under Dutch rule, 1658-1796.
URL http://journals.openedition.org/chs/docannexe/image/3215/img-2.jpg
Fichier image/jpeg, 127k
Titre Figure 3. Procedural steps in civil cases before colonial courts in Dutch Sri Lanka.
URL http://journals.openedition.org/chs/docannexe/image/3215/img-3.jpg
Fichier image/jpeg, 68k
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Pour citer cet article

Référence papier

Dries Lyna, « Customs From the Other Shore »Crime, Histoire & Sociétés / Crime, History & Societies, vol. 26, n°1 | 2022, 49-76.

Référence électronique

Dries Lyna, « Customs From the Other Shore »Crime, Histoire & Sociétés / Crime, History & Societies [En ligne], vol. 26, n°1 | 2022, mis en ligne le 11 octobre 2024, consulté le 28 mars 2025. URL : http://journals.openedition.org/chs/3215 ; DOI : https://doi.org/10.4000/chs.3215

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Auteur

Dries Lyna

Radboud University Nijmegen, The Netherlands
dries.lyna[at]ru.nl

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