For more than two hundred years the courts of province and state have administered justice to the inhabitants of Pennsylvania. Created under the peculiar conditions surrounding the foundation of the colony, subjected to numerous legislative experiments, their organization and practice present many peculiarities that can only be understood by a reference to their history. This history has been sadly neglected owing partly to the paucity of material, and partly to lack of interest. The founders were more bent on developing the resources and organizing the administration of the great territory that had come under their control, than on preserving the records of their proceedings for the benefit of posterity, while their immediate descendants, living in an uncritical age and possessed with a passion for rhetoric to the exclusion of history, carelessly permitted the records of the preceding generation to be scattered or ruthlessly destroyed. Documents that would now be regarded as precious memorials of the past, and that would throw valuable light on our early institutions, were used to feed the fires in the old courthouse.[1] Fortunately, sufficient fragments have escaped and found their way into the collections of individuals and societies to enable us, with the aid of the state archives, to present, if not a picture, at least a sketch of the judicial organization and procedure in a period which the rapidity of our national development has made more remote in thought than in time.

As the first organized settlements in the territory now included in the state of Pennsylvania were those of the Swedes and the Dutch, so the first courts of justice were established under their auspices. To give a complete account of their administration would involve a tedious narrative of the political vicissitudes of these unsuccessful colonies, which never developed to the point of establishing lasting institutions. In fact, throughout their stormy history the judicial and executive functions of the various governors and local officials are scarcely distinguishable.

The first Swedish settlement was hardly more than a trading post, and, if a court in the proper sense of that word existed, it must have been established by the governor, John Printz, who arrived at the colony on the Delaware in 1643 with instructions to “decide all controversies according to the laws, customs and usages of Sweden” and in all other things to “adopt and follow all the laudable manners, customs and usages of the kingdom of Sweden,” the crown of which was then worn by Christina, the daughter of the great Gustavus Adolphus.

Printz established the seat of government on the island of Tinicum, but he must have found his duties onerous, for he wrote several times to obtain the services of a learned and able man to administer justice and attend to the law business.[2] The territory, however, passed into the possession of the Dutch West India Company, and Swedish law ceased to be a factor in the development of Pennsylvania, although the Swedes were permitted to retain their own magistrates, under the supervision of the officials of their conquerors.[3]

In 1655, a vice directorship of the “South River” was created, and Jean Paul Jacquet, a former agent of the company in Brazil, was appointed to the office.[4] Andries Hudde, who had for some years managed the earlier Dutch settlement on the Delaware, was named as secretary, a commissary was appointed, and these, with two others, formed a council for general administration, as well as a court for the trial of civil and criminal cases, with right of appeal in all important matters to the director and council in New Amsterdam. The minutes of this court from December, 1655, to March, 1657, have been preserved, and afford some interesting information upon the methods and procedure of the Dutch justices, as well as the social condition of the colonists.[5] Actions for the recovery of small debts are most frequent on the civil side, while on the criminal side, complaints for minor breaches of the peace are the principal matters disposed of. The striking features of these trials are the mild and paternal attitude of the court, the efforts made to obtain amicable adjustments of disputes, the merciful treatment of offenders, and the leniency to unfortunate debtors.

* * * * *

The following case, taken from the minutes of the court, July 7, 1656, is interesting as an early attempt to apply the principles of set-off:--

"Jan Flaman appears before the council against the wife of Tobias Willeborgh, and demands payment for a shirt lost by her, the defendant, and for passage from the manhattans hither, viz.

for the shirt 14 for her passage & freight 16 -- 30

The defendant says, that she lost on the voyage, being wrecked with the bark, a chest containing four shirts, one coat of red duffel, one underwaist coat, and a powder horn with copper mountings, valued by her, the defendant at fl 28.

Paid to plaintiff in money fl 4 From above fl 28 -- 32

The defendant is told that the freight shall be set off against her lost goods; in regard to the shirt, she is ordered to pay plaintiff four guilders 15 stivers.”[6]

A case heard on August 2, 1656, gives new and interesting grounds for a continuance:--

“Before the council appeared Jacob Crabbe against Robert Martyn and complained that he Robert Martyn had shot and killed his, the plaintiff’s pig. Defendant answers that fourteen days ago he entreated the plaintiff to pen up his hogs as the same did great damage to his corn. Plaintiff upon being asked what he wanted, answers, ‘Payment for his pig.’ It was proposed to the parties, that plaintiff shall take the pig, as it is still living, but that if it should die, each one shall keep his action in the law unprejudiced.”[7]

Perhaps it may not be considered out of place to refer to a case tried September 13, 1655, in New Amsterdam as illustrating the pleasant side of judicial office in Knickerbocker days:--

“Jan Hackius Plf. v/s Jacob van Couwenhoven Deft. The Plf. demands paymands of 1150 fl. on account of a promissory note, dated July 1, 1655, payable in beer and distilled liquors. Deft. says his beer is ready. Plf. denies, that the beer is ready, and enquires if it be allowable to mix strong with small beer, and says the beer is not fit to be removed. Couwenhoven denies the same, and requests the Court to be pleased to test the same after adjournment of the session and then decide. Parties being heard, Jacob van Couwenhoven was ordered to pay Plf. the residue according to contract and obligation; And the beer having been tested after adjournment of the Court the same was pronounced good. The Plf. was therefore ordered to receive the same.”[8]

Would Professor Wigmore call this autoptic profference?

As in the other Dutch settlements the principal prosecuting officer of the district was the schout whose duties combined those of a sheriff and district attorney; he convened the justices’ courts and executed the orders of the states-general and officials of the company. Where local courts were established the justices were known as schepens. Their jurisdiction extended to the rendition of judgment for sums under one hundred guilders. In cases exceeding that amount the party aggrieved was allowed an appeal to the director general and council of the New Netherlands. The schepens also had authority to pronounce sentence in criminal cases subject to appeal.[9]

In 1656 the Dutch India Company, being deeply in debt and compelled to obtain aid from the city of Amsterdam, transferred to that city a portion of their possessions on the Delaware. This colony was called New Amstel, special inducements were held out to emigrants, and a town government was established consisting of a schout, three burgomasters and five to seven schepens, a formidable body for the government of a village of less than five hundred inhabitants. Thenceforth the jurisdiction on the river was divided between the officials of the company and those of the city’s colony.[10]

Laws and ordinances were sent from New Amsterdam to the Delaware and there proclaimed for the general government of that territory. With occasional modifications, they were the same as prevailed in the older settlements on the Hudson, the ordinances of the West India Company, the civil law, the enactments of the states-general, and the customs of Holland.

In the matter of granting divorces the magistrates of the New Netherlands exercised a liberal policy in keeping with the doctrines of the Reformation, a policy that was not destined to survive the English Conquest.[11] Traces of this jurisdiction are found on the Delaware. Vice Director Beekman, writing to the director general under date of April 28, 1660, mentions a Finnish couple who lived together in constant strife: “The wife receives daily a severe drubbing, and is often expelled from the house as a dog. This treatment she suffered a number of years; not a word is said in blame of the wife, whereas he, on the contrary, is an adulterer; on all of which the priest, the neighbors, the sheriff and the commissaries appealed to me, at the solicitation of man and wife that a divorce might take place and the small property and stock be divided between them.”[12] He asks for orders but the reply is not given.

In 1662, the Finnish priest Laers, or Laurentius, Carels, whose wife had eloped with Jacob Jough, married again before he had obtained letters of divorce from the council, performing the ceremony himself. He was condemned by the commissaries to pay a fine of two hundred guilders and his new marriage declared illegal, but was advised to apply to the director general for a divorce.[13]

At the last period of the Dutch dominion (1673-4) three judicial districts were recognized, one for the inhabitants of the Whorekill, between Cape Henlopen and “Boomties” (Bombay) Hook, another for New Amstel, from Bombay Hook to Kristina Kill, and a third for Upland from Kristina Kill “unto the head of the river.”[14] Roughly speaking, the first of these districts corresponds to the lower counties of the state of Delaware, the second to New Castle County, in that state, and the third to so much of the southeastern part of Pennsylvania as was then settled, extending to the falls at Trenton.

The humble and widely scattered settlers seldom had time or occasion to indulge in law suits involving questions or amounts beyond the limited jurisdiction of the schepens, but such disputes as did arise were the cause of endless discussion and much heartburning between the officers of the West India Company and those of the city of Amsterdam, whose complaints and recriminations distracted the governor at New Amsterdam. In justifying the action of the council in such a contest Peter Stuyvesant writes to the directors in Holland: “We might here remark upon and continue with the insults and slights, heaped on your Hon^{ble} Worships’ servants in their capacity as supreme judges of this province, but will desist for the present to keep ourselves above party spirit and avoid further displeasures.” Appeals heard and decided by the governor and council seem to have been carried to the directors in Holland, and occasionally reversed to the chagrin of Stuyvesant, who thus reproaches his employers in a letter dated July 21, 1661:--

“Your Noble Worships say in regard to the third and last point concerning the appeal and the reversing of a sentence pronounced against one Jan Gerritsen van Marcken, that we would have done better not to meddle with this case. Honorable Worships! It surpasses our conception to understand how to avoid such proceedings and the reproaches following them, how to satisfy your Honors and the parties to the suit without exposing ourselves to blame for refusing a hearing and justice, as long as it is your Hon^{ble} Worships’ order, and pleasure, that appeals are to be brought before your Honors’ humble servants and we declare with good conscience that in this and the abovementioned case we have not aimed at nor intended anything else, but what we in our humble opinion judged to be just, equitable and our duty: God the Ominiscient is the witness for it: we have no knowledge of it, that the Sheriff van Sweeringen was to be forced here, to ask pardon of God and justice in addition to what his opponent had demanded: we refer to the sentences regarding this point.”[15]

Dutch rule and Dutch laws, however, were not destined to endure on the Delaware. On the twelfth of March, 1664, Charles II of England granted to his brother, the Duke of York (afterwards James II), the territory comprising the New Netherlands.

The charter to James is neither as elaborate nor as carefully drawn as that granted eighteen years later to Penn. The standing committee of the privy council for the foreign plantations had been but recently organized and the Crown lawyers were just beginning to realize that vast problems, legal and social, were connected with the administration of the colonial domain. It has been well said that in the colonial charter will be found the germ of American constitutional law, whether of the trading company or proprietary type, since it contained beside the grant of territory a scheme of political organization.[16] It is a significant fact that the charter of James contains no reference to a legislative assembly; the Duke is given “full and absolute power and authority” to “correct, punish, pardon, govern and rule” the inhabitants of the territories according to such laws, ordinances and directions as he should establish, not contrary to the laws of England, reserving to the Crown the right to hear and determine appeals from judgments or sentences there given.[17]

With the history of the conquest of the New Netherlands we are not directly concerned; suffice it to say that Sir Robert Carr who was charged with the reducing of the Dutch possessions on the Delaware arrived at that river in the latter part of the year 1664, and without much bloodshed obtained the surrender of the colony. Carr established the seat of government at New Amstel, the name of which was now changed to New Castle, and under the terms of his agreement with the inhabitants, continued all the magistrates in their offices upon their taking the oath of allegiance.[18] The wise policy of enlisting the local authorities in support of the new government was continued, and Dutch and Swedish magistrates administered justice to their neighbors until long after the arrival of William Penn.

The period of the Duke of York’s rule is of more importance in our judicial history than would at first be supposed. It was a formative period, and the law and practice as then developed had a marked influence upon the early legislation of the province of Pennsylvania. The establishment of English jurisprudence in the colonies on the Delaware was not the work of a day, but a gradual process, involving compromises with the established customs and practices of the inhabitants, the gradual transformation of the Dutch schouts and schepens into their English equivalents, the education of the magistracy in the rudiments of English court practice and the actual modification of many of the rules of the common law, both as to property and practice, to meet the necessities of the primitive social conditions in the New World.

The legal conceptions of the new rulers found expression in a brief code promulgated at Hempstead, Long Island, in 1664, which, quaint and unsystematic as it may seem to us now, contained several notable departures from the common law well worth careful study by those interested in legal history.

The principle seems to have been generally accepted in the American colonies that the elements of public and private law should be stated in a concise and permanent form. Whether originating with the people, as in the case of the “Body of Liberties” in Massachusetts, or with the proprietors, as in the case of the “Fundamental Constitutions” of the Carolinas, the tendency of early colonial law was toward codification.[19] And what could be more natural than that both adventurers and proprietors should dream of creating little Utopias by force of the statute book? New conditions, too, required new measures, the laymen who administered justice required brief and simple handbooks for their guidance, and the mixed population a homogeneous system in the place of their various ancestral customs. Such a code was the Duke of York’s Laws which is stated to have been “Collected out of the Severall Laws now in force in his Majesties American Colonyes and Plantations.” Prior to the conquest of the New Netherlands, Colonel Nicolls, the newly appointed governor, and Sir Robert Carr had been appointed members of a commission for the visitation of the New England colonies, a part of whose duties it was with diligence and care “to peruse the collection of the lawes published in those colonies during the late usurping Government, or at any tyme before or since; to the end that upon examination thereof you may discerne both the indecent expressions and material and important points and determinations in them, which are contrary to our dignity and to the lawes and customes of this realme and to the justice thereof; all which they have obliged themselves to cancele and repeale; and if the same bee not already done, you are in the first place to cause it to be done.”[20]

The commissioners were also empowered to hear all complaints and appeals in matters military, criminal and civil, but it was left to their discretion whether they would first visit New England or reduce the Dutch to submission. Having carried out the latter project it became necessary at once to organize the captured territory. The greater part of Long Island was already occupied by settlers from New England and, having obtained copies of the laws of Massachusetts and New Haven, Nicolls[21] with the assistance of the secretary and some of the magistrates prepared a code which, as a comparison will show, drew much of its material from these sources with, in the governor’s words, “a relaxation of their severity in matters of conscience and religion.” The cruel laws against heretics and against “a pernicious sect commonly called Quakers”[22] were omitted, as well as many other provisions relating to the Puritan discipline. The “capital lawes” were transcribed from the Massachusetts code, which was avowedly based on the Old Testament, but the offense of witchcraft was omitted and while the clause making it a capital offense for children above sixteen years old to curse or smite their parents was retained, the succeeding clause, enabling a man having a stubborn or rebellious son to bring him to the magistrates to be put to death in accordance with Deuteronomy, xxi, 18, was rejected.

As in its prototypes, the code is divided into titles arranged in alphabetical order but the classification is neither logical nor consistent, a failing noticeable in more modern and more pretentious legal productions. Much, however, that was adopted was both valuable and practical and, with additions from English and Dutch sources, was moulded into a form that perhaps met best the needs of civil administration in a newly organized proprietary province. Indeed we may recognize in this as well as other provincial codes a kindred spirit, which without attempting to exploit many theoretical views on jurisprudence, drew upon a common source for so much of English law and custom as could reasonably be applied to the social and economic conditions of frontier life.

It is most difficult to determine how far the common law was viewed as a subsidiary system when not replaced by colonial statutes. The accepted theory that the colonists brought with them and adopted so much of the common law as was applicable to their condition[23] is not wholly borne out by the facts. As the colonies increased in wealth and population, as their commercial relations with the mother country became more complex, the doctrines of the common law were necessarily drawn upon to fill up the gaps in the early legislation, and, as friction with the home government increased, the popular party appealed more and more to the common law, particularly to Magna Charta, as the muniment of political liberty and birthright of Englishmen, an appeal which writers such as Blackstone sought to evade by applying to America the status of conquered territory.[24]

Even more obscure is the question of the applicability of English statutes, but the principle was generally accepted that acts of parliament passed after the settlement of a colony were not in force there unless the words of the act expressly included the territory so occupied,[25] although in some instances local usage would seem to have given the force of law to a statute not so extended. The subject is difficult and intricate.[26] But at the early period now under discussion the tendency was to regard the elementary codes as approximately complete statements of the law. For matters not covered New England referred to the “Word of God” as contained in the Scriptures, while in the south the inclination was to claim a share in the laws of England, but in either case the application of these vague principles left in the local magistrates a very wide discretion which in the absence of professional criticism was checked and restrained only by legislative action or the influence of the governor and council.[27] In the Duke of York’s Laws the difficulty is met by the following clause:--

“In regard it is almost impossible to provide sufficient Lawes in all Cases, or proper Punishments for all Crimes. The Court of Sessions shall not take further Cognizance of any Case or Crimes, whereof there is not provition made in some Lawes but to remit the Case or Crime, with the due Examination and proof to the Next Court of Assizes where matters of Equity shall be decided, or Punishment awarded according to the discretion of the Bench and not contrary to the known Laws of England.”[28]

An analysis of the substantive provisions of this code, however interesting, is outside of the scope of this discussion. It is sufficient to note that New York, in passing from the status of a proprietary to that of a royal province, came more directly under home influences and, as in the case of Virginia, the more radical and experimental features of the early laws disappeared in the face of the constantly increasing influence of the common law, or what the colonial administrator understood as common law.

As to remedial law it was, in the first place, provided that all actions of debt or trespass under the value of five pounds between neighbors should be put to the arbitration of two indifferent persons of the neighborhood to be nominated by the constable, or if either of the parties refused their arbitration, the justices of the peace should choose three other persons who were to meet at the cost of him who dissented from the first method, and their award should be conclusive.[29] The practice of referring complicated cases to arbitration prevailed in the New Netherlands and this provision has been regarded as a survival of the Dutch custom.[30] Voluntary submissions were well known at the common law, but the principle of compulsory reference was then and still is to a certain extent, looked upon askance as an attempt to take away the palladium of liberty--the right to a jury trial.[31] Arbitration, as we shall see, occupied a prominent place in Penn’s system of justice, was by far the most popular method of determining minor civil cases during the early period in Pennsylvania, and, though less used now, is still a part of the law. In 1677, the court at New Castle referred a dispute concerning the estate of a decedent to two arbitrators who were to examine the accounts and if possible decide the difference, otherwise to choose an umpire and report at the next court day.[32] In 1678 Hendrick Vanden Burgh petitioned the court complaining that he had bought a house and lot from one Vidette who had purchased from William Tom, deceased; that the lot was six feet less in breadth than the deed called for and praying that this be added from Tom’s adjoining lot which was about to be sold:--

“The court answer that whereas this business in the Lyfetyme of Jan Vidette & M^r Tom was in question, and then decyded by M^r Moll, M^r Hans Blocq & Capt^n Cregier as umpier and the Peticon^r now haueing in possession soe mutch ground as then the arbitrato^{rs} allowed, must therefore Rest himself Contented w^{th} y^e same.”[33]

The courts were organized on a basis not dissimilar from that which already prevailed under the Dutch rule, with modifications suggested by the practice in the older English colonies. The principal court was the general court of assizes, held once a year in the autumn, presided over by the governor, and attended by the council, the mayor and aldermen of New York, and the justices of the various courts of sessions.[34] No express provision for its creation is to be found in the laws although it is there incidentally mentioned, and, while the subject is obscure, the court was in fact the successor of that held by the director and council of the New Netherlands. The limits of its jurisdiction were undefined, and it seems to have combined both legislative and judicial functions; indeed it was the closest approximation to a legislature that New York was destined to enjoy for some time. The court heard appeals from the sessions and complaints against local officials, tried the more important civil cases and all capital cases, except where a special commission of oyer and terminer was issued to the justices of a distant community in order to obtain a more speedy trial.

The procedure on appeal was taken almost literally from the laws of Massachusetts relating to appeals to the court of assistants.[35] The appellant was required to give security for prosecuting an appeal and payment of damages. The grounds and reasons for appeal were to be filed with the clerk of the court. No justice that had sat or voted in the inferior court was permitted to vote in the court appealed to. Where the law and facts were found to agree with the former judgment it was not to be revoked, but the damages could be abated or increased as should be judged right.

Courts of sessions were established in districts roughly corresponding to counties (in the neighborhood of New York called Ridings in imitation of the division of the English County of Yorkshire). These courts were held three times in the year, and were attended by the justices of the peace. The governor, if present, presided, or in his absence a member of the council or the senior justice. All actions involving from five to twenty pounds were triable at this court, from which there was no appeal “unless the debt appear to be above that summe of twenty pounds or where there is a dubiousness in the expression of the law.”[36] In addition the court was charged with the granting of letters of administration, the preservation of the peace, the trial of petty offenders, and the usual duties associated with the quarter sessions including the granting of liquor licenses, a duty still imposed on our quarter sessions to the discomfort of the judges. In this connection the law provided:--

“Every person Licenced to keep an Ordinary shall always be provided of strong and wholesome Beer, of four bushels of malt, at the least to a Hoggshead which he shall not Sell at above two pence the quart under the penalty of twenty shillings, for the first Offence, forty shillings for the Second, and loss of his Licence. It is permitted to any to sell Beer out of the Doores at a peny the Ale quart or under.

“No Licenced Person shall suffer any to Drink excessively or at unseasonable hours after Nine of the Clock at night in or about any their houses upon penalty of two shillings six pence for every Offence if Complaint and proofe be made thereof.

“No Licenced Person shall unreasonably exact upon his Guest for any sort of entertainment, and no man shall be compelled to pay above eight pence a Meale, with small beer only, unless the Guest shall make other agreement with the person so lycenced.

“No Licence shall be granted by any two Justices in Sessions for above the terme of one year, but every person so Licenced before the expiration of the said Terme shall and are hereby enjoyned to repair to the Sessions of that Jurisdiction for renewing their several Licences for which they shall pay to the Clark of the Sessions two Shillings Six pence, or else they shall forfeit five pounds as unlicenced persons.”[37]

Pure food agitation and rate regulation are thus foreshadowed, but not prohibition.

In all actions the plaintiff was required to file his declaration eight days before hearing.[38] The defendant was permitted to take a copy thereof and file an answer. If judgment was entered for plaintiff it was endorsed on the declaration, if for the defendant on the answer. As in Massachusetts, no proceedings are to be reversed because of errors or mistakes “if the person and cause be rightly understood and intended by the court.”[39] Imprisonment in civil cases was restricted. No man was to be kept in prison for a debt or fine longer than the second day of the sessions after the arrest unless it was made to appear that he had some estate which he would not produce; if the debtor had no estate he could be required to satisfy the debt by service.

In deference to the wishes of the New Englanders settled on Long Island provision was made for a town court consisting of the constable and overseers. The number of the latter was first fixed at eight but was subsequently reduced to four.[40] Their duties were chiefly administrative, but, in cases where the parties refused arbitration, the town court was to decide the case if less than five pounds was involved.[41] The town system, however, was not destined to thrive in the middle colonies, and penetrated to the Delaware only in an attenuated form.

Last in the official scale was the constable, then, as now, the local peace officer. His badge of office was a staff six feet long with the king’s arms thereon, which was to be provided at the cost of the town,[42] but on the Delaware came out of the slender purse of the local Dogberry.[43] Among his other onerous duties he was required to whip or punish any one so ordered by authority, “unless they can get another person to do it.”

A singular feature of the code was the section relating to jurors. It was provided that--

“No jury shall exceed the number of seaven nor be under six unless in Special Causes upon Life and Death, the Justices shall thinke fitt to Appoint twelve.”

“A verdict shall be so esteemed, when the major part of the Jury is agreed, and the Minor shall be concluded by the Major without allowance of any protest by any of them to the Contrary; Except in case of Life and Death where the whole Jury is to be unanimos in their Virdict.”[44]

The source of this enactment, although not disclosed, will probably be found in a modified form in the Connecticut code of 1650[45] which left it to the magistrates--

“To impannell a jury of sixe or twelve, as they shall judge the nature of the case shall require--and if foure of sixe, or eight of twelve agree, the verdict shall be deemed to all intents and purposes, sufficient and full.”

In confirmation of this view the similar provision of 1665 in regard to the town courts may be recalled, where--

“The constable and overseers are to give their judgment by the Major vote, where six with the constable, or seaven in his absence, are competent and equivolent to a jury, and the constable upon equall Division, is to have a casting voyce.”[46]

In 1666, it was directed that in jury trials at the court of assizes the number of jurors should be twelve, but that at the courts of sessions the number set forth in the law should be sufficient.[47]

This remarkable deviation from the English jury system was not destined to survive. In the records of the court at Upland, to which reference will be made hereafter, there is a case concerning title to real estate which was tried in 1681 before a jury of seven,[48] but in other cases in the same court juries of twelve were drawn, as was the practice also of the court at New Castle.[49]

Penn in his laws agreed upon in England provided that all trials should be by twelve men, and this was made a fundamental law of the province.[50] At the first court held at Lewes for the county of Sussex by commission of William Penn the legality of a prior verdict by a jury of seven was questioned. The suit was by Hermanns Wiltbank against Cornelius Johnson and is stated to be “by way of scarifacous”[51] to show cause why the defendant should not give the plaintiff possession of certain land.

“According to An order of Court & verdict of a jurey of Seaven men obtaind in this Court the 8th day of the 1 Mo. 1681. The said Cornelis Johnson showeth cause by his plea delivered into the Court in writing that he had obtained in this court a verdict of a Jurey of twelve men for the said Land and premisses According to the Laws of England; and that the verdict of seaven men was and is Contrary to the knownen Laws of England.”[52]

It was further alleged that Wiltbank had appealed from the former verdict against him and had failed to prosecute his appeal. The court with the consent of both parties referred the matter to the proprietor. At a subsequent court the plaintiff again brought up the matter, stating that the governor had confirmed his right to the land but had recommended that it should be left to the peacemakers to determine whether anything was due the defendant for his improvements. Failing to prove his declaration he was nonsuited but afterwards on the advice of the court the whole dispute was referred to arbitration.[53]

The Duke of York’s Laws were not put into execution in the territories on the Delaware immediately upon their adoption. As already stated, the Dutch and Swedish magistrates were retained in office, but it was wisely resolved to carry the necessary changes into effect gradually. In 1668 Governor Lovelace issued directions to Deputy Governor John Carre to associate the schout and certain magistrates with himself as a council, and that--

“The Lawes of the Governmt Establisht by his Royall Highness be shewed & frequently Communicated to the said Councellors & all oth^{rs}. To the end that being therw^{th} acquainted the practice of them may also in convenient tyme be established w^{ch} conduceth to the Public Welfare & Common Justice.”[54]

Under this plan the government was steadily brought into harmony with English ideas, the temporary check received in 1673, when the Dutch for a few brief months repossessed themselves of the New Netherlands, scarcely interrupting this process. At a council held at New York, May 17, 1672, it was ordered:--

“That for y^e better Governm^t of ye Towne of New Castle for the future, the said Towne shall be erected into a Corporacon by the name of a Balywick, That is to say, it shall be Governed by a Bailey & six Assistants, to bee at first nominated by the Governor and at y^e expiracon of a yeare foure of the six to go out & foure others to be chosen in their places, the Bailey to continue for a yeare, & then two to be named to succeed, out of whom ye Governo^r will elect one; Hee is to preside in all y^e co^{rts} of the Towne & have a double vote. A constable is likewise annually to be chosen by y^e Bench.

“The Towne Court shall have power to try all causes of debt or damage to the value of ten pounds without appeal.

“That y^e English Lawes according to the desire of the inhabitants, bee establish^t both in ye Towne & all plantations upon Delaware River.

“That the office of Schout be converted into a Sheriffalty & y^e High Sheriffs power extend both in the corporacon & river & that he be annually chosen by two being presented to the Govern^r, of whom he will nominate & confirm one.”[55]

Finally, on September 26, 1676, an ordinance was passed by Governor Andros and the council formally introducing the Duke of York’s Laws and establishing courts on the Delaware, the material portion of which is as follows:--

“Whereas upon a peticon of the Magistrates and officers of New Castle and Delaware River, Goveno^r Lovelace did resolve & in part settle the Establish Lawes of this Government and appoint some magistrates under an English Denominacon accordingly, In the which their having been an obstruction for reason of the late warres & Change of Government; And findeing now an absolute necessity for y^e well being of the Inhabitants, to make a speedy settlement, to be a generall knowne rule unto them for the future, Vpon mature deliberation and advise of my Councell, I have resolved, and by vertue of the Authority derived unto mee, doe hereby in his Ma^{ties} Name Order as followeth.

“1. That the booke of Lawes Establisht by his Royal Highnesse & practiced in New Yorke, Long Island, and Dependencies bee likewise in force, and practiced in this River and Precincts, Except the Constables Courts, Country Rates & some-other things peculiar to Long Island, and the Militia as now ordered to remaine in y^e King, but that a constable in each place bee yearely chosen for the Preservacon of his Ma^{ties} Peace with all other Power as directed by y^e law.

“2. That there bee three Courts held in y^e several (parts of the river) & bay as formerly. To witt one in the Townes (New Castle one above at) Uplands another below at the Whorekil.

“3. That the said Courts consist of Justices of the Peace whereof three to make a Coram, & to have the Power of a Court of Sessions & decide all matters under twenty pounds without Appeale, in which Court the oldest Justice to preside, unless otherwise agreed amongst themselves above twenty pounds & for crime Extending to life Limbo or Banishment, to admit appeal to the Court of Assizes.

“4. That all small matters under the value of five pounds may be determined by the Court without a jury unless desired by the Partyes as also matters of Equity.

“5. That the Court for New Castle bee held once a month, to begin the first Tuesday in each Month And the Court for Uplands & the Whorekill, Quarterly & to begin the Second Tuesday of the Month.

“6. That all necessary By lawes or orders (not repugnant to the Lawes of the Government) made by the said Courts, bee of force & binding, for the space of one whole yeare, in the severall places where made They giveing an Account thereof to the Governo^r by the first Convenience, And that noe fines be made or imposed but by order of Court.

“7. That the severall Courts have power to regulate the Court and Offic^{rs} Fees, not to exceed the Rates in the book of Lawes, nor to bee under halfe the Value therein exprest.

“8. That there bee a high Sheriffe for the Towne of New Castle, the River and Bay: And that the said high Sheriffe have power to make an Under Sheriffe or Marshall being a fitt person, and for whom hee will bee responsable, to be approved by the Court, But the Sheriffe, to act as in England & according to the now practice on Long Island, to act as a principall officer in the Execution of the Lawe, but not as a Justice of the Peace or Magistrate.

“9. That there bee fitting books provided for the Records in which all Judiciall Proceedings to be duely and fairely Entered, as also all Publick Orders from the Governo^r And the names of the Magistrates & Officers Authorized, with the time of their Admission: the said Records to bee kept in English, To which all persons concerned may have free Recourse at due or seasonable times.

“10. That a fitt person for Clarke when Vacant, be recommended by each Court to the Governo^r for his Approbacon in whose hands the said Reccords to be kept.

“11. That all writts, Warrants & Proceedings at Law shall be in his Ma^{ties} Name. It having been practiced in y^e Government ever since the first writing of the Law booke, And being his Royall Highness Speciall pleasure & Order.”[56]

The promulgation of the laws and the more definite instructions for the administration of justice must have given general satisfaction, for in their communications with the governor the justices seem to have been in doubt on many points, and a delay in forwarding copies of the laws seems to have given them considerable anxiety. In a letter of June 8, 1677, the magistrates of New Castle write: “We likewise humbly desier that the sending of the Law booke may not be forgot, there being great occasions for the same.”[57]

It may be interesting at this point to give a brief account of the most important civil suit fought out in the territory on the Delaware at this early date, involving the title to Tinicum Island. It was here, as we have seen, that the Swedish governor, John Printz, established the seat of government, building a block-house, church and private residence called Printzhof, the island having been granted to him in 1643 by Queen Christina “for a bouwery” as a reward for his services.[58] After the Dutch conquest his daughter, Jeuffro Armgart, wife of John Pappegoya, the successor of Printz as governor, was on her petition, permitted in 1656 “to take possession and cultivate the lands of her lord and father.”[59] Jeuffro Armgart as agent for her father sold the property on May 29, 1662, to Joost De LaGrange who paid one half of the purchase money and entered into possession. Trouble occurred at once over payment of the balance. In the latter part of 1662 a bill of exchange given by LaGrange was protested, Jeuffro Armgart recovered judgment and an appeal was taken. Printz died in 1663 and Jeuffro’s power to act for her sisters was disputed. In the meantime the English conquered the New Netherlands, LaGrange died and his widow married Andrew Carr who obtained a patent for the island from Governor Lovelace in 1669. While the Carrs were abroad, looking after an estate they had inherited, Jeuffro Armgart returned with powers of attorney from her sisters and brought suit for the balance of the purchase money at the court of New Castle. The case was adjourned or appealed to the court of assizes at New York, where it was tried on October twelfth, 1672.[60] Some of the papers were in “high” and some in “low” Dutch and the services of an interpreter were required. The defendants’ attorney, Mr. Ryder, protested that Captain John Carr’s letter of attorney from Andrew Carr was not sufficient to authorize him to defend the suit and moved for a continuance, which was refused. The case was sent to the jury, who brought in a verdict for the plaintiff for the full amount of her claim upon which judgment was entered. In the month of January following the governor and council issued an execution directed to Captain Edmund Cantwell, high sheriff at New Castle, who was directed to seize the land and goods of the Carrs, particularly Tinicum.[61] The latter island was to be appraised and if found of less value than the debt, the plaintiff was to be given possession and a further levy made on other property of the defendants. Jeuffro Armgart was accordingly restored to possession of the island which she sold to Justice Otto Ernest Cock. The new owner was, however, not to rest in quiet possession. Arnoldus De LaGrange, son of Joost, when of age returned to America and settled at New Castle where he subsequently became a justice of the peace. Shortly after his return he presented to Governor Andros a petition for equitable relief against the judgment of the court of assizes, setting forth his infancy at the time of the trial and other defects in the proceedings.[62] No answer to the petition is recorded but at the last session of the Upland court before the transfer of the territory to Penn held June 14, 1681, suit was brought by LaGrange against Cock which was postponed to the next court “by reason that there’s noe court w^{th}out Justice Otto whoe is a party.”[63] The case was finally tried at a court held at Chester 22, 6 mo. 1683, where LaGrange was represented by Abraham Mann and Cock by John White as attorneys in the suit. The plaintiff declared as heir at law and the defense was that part of the purchase money had never been paid. The verdict of the jury as entered on the record is:--

“The jury finde for ye Plaint and alsoe give him his costs of suite and fforty shillings damage; the Plaint paying to ye Deft Thirty & seaven pounds & Tenne Shillings, according to an agreement between ye Plaint and Deft produced & read in this court & alsoe delivering ye Block House & pticuters in ye same agreemt mentioned. Judgmt is thereupon awarded.”[64]

Here we have an early, if not the first, example of a conditional verdict so popular afterwards in Pennsylvania when an equitable defense was raised in an action of ejectment. Execution issued on this judgment and LaGrange was put in possession. Less than a year afterward he sold the island to Christopher Taylor, the first register general, one of whose descendants left a will that gave rise, in the nineteenth century, to litigation as long and stubborn as that we have recounted.[65] The Printz mansion was destroyed by fire in 1822 but it is said that on the site ancient bricks of a foreign make and pale yellow color have been found which were once a part of this venerable structure.[66]

It would seem from the above proceedings and from an order of Governor Andros of July 17, 1678,[67] that lands were regarded as liable for debts, contrary to the common law where the creditor’s only remedy was by writ of elegit under which one half of the rents could be taken.[68] Penn’s first legislation subjected lands to execution to a limited extent, but not until 1700 was the whole land made liable where no personal property could be found.[69]

That land was subject to seizure for debts under the Dutch rule is indicated by the following extract from the minutes of Jacquet’s court, February 14, 1657:--

“Isack Allerton has had seized by the Court Messenger subject to the decision of the Hon^{ble} Council, the immovable property belonging to Peter Hermausen here on the river.”[70]

From such records as have escaped destruction we are enabled to present a fair outline of the actual practice in these primitive tribunals, presided over by laymen and unembarrassed by the conflicting arguments of professional lawyers. An adequate notion of the crudity of the proceedings can be conveyed only by examples from the records which were kept in the most informal fashion. Sometimes the entries are limited to the names of the parties and the judgment, while in other instances there is a summary of pleadings and evidence. While the names of common law actions, such as debt, case and replevin, are used there is little to indicate that judges or parties had more than a very vague conception of their scope and distinctions. Thus, there is an entry of “an action of the Case for twoo peeces of marrish & y^e hay thereon mowed.”[71] Appeals to New York were frequent and were sometimes specially allowed by the governor, as would appear from the following example:--

“By the Governor

“Upon the request of Hans Pieterson, concerning several Judgm^{ts} of the Courts of New Castle & Upland in Delaware in a case between the sd Pieterson & D^o Lawrentius Carolus, concerning a certain Mare, The Jureys tho’ composed in part of the same Persons, yet brought in several Verdicts, the Courts having given different Judgm^{ts} accordingly, & it not appearing by any Testimonies what Mare was in Difference; I do therefore hereby Order, that the Execucons in s^d Matter be Suspended, & a full Acco^t of all s^d Proceeding in both Co^{ts} be forthwith sent me.

“Actum in New York this 28th day of July, 1677.

“E. ANDROS.

“To the Courts of New Castle and Upland & all Officers in Delaware whom it may concern.”[72]

Such appeals were heard at the general court of assizes in the city of New York, the minutes of which present a spirited picture of assembled worthies. One appeal from a judgment of the court at the Whorekill concerning the title to a tract of land was tried in 1680 before the following distinguished company: the governor, Sir Edmund Andros, five members of the council, the mayor and five aldermen of New York, the chief justice of Nantucket, the two commissaries of Albany, three justices from New Jersey, two from “Peniquid and parts eastward,” and a dozen more from Long Island and New York. The judgment of the lower court was affirmed at the cost of the appellant.[73] On another occasion (in 1681) a case was tried in which the defendant, one of the justices of the court at New Castle, was accused of misconduct in his office.

“M^r John Moll Justice of the Peace and President of the Court at Newcastle being called to Answer to an Indictment Exhibitted against him by one Abram Mann for severall Words and Expressions by him said to be uttered and spoken in Court and at other Times, To which the said John Moll pleaded not Guilty, and a jury being Impanelled and Sworne with several Evidences they brought in their Verdict and found him guilty of Speaking the Words mentioned in the first and second Articles and of Denying Execution when demanded, menconed in the fourth Article, and for the rest not Guilty, the which the Court taking into Consideration Do adjudge the said Indictment to be illegal and vexatious and that the said John Moll by what found against him is not Guilty of any Crime or Breach of any known Law Therefore do Acquitt the said John Moll from the same and Order the said Abram Mann to Pay the Costs of Court. The said Mann moved for an Appeale for England which is granted he giving sufficient Security to the value of One Thousand Pounds to Prosecute the same and pay damage to the Party if lost.”[74]

It is interesting to note that the parties to this suit were afterwards prominent in Penn’s government. Justice Moll became a member of the first provincial council and was one of the committee that drew up the amended frame of government, or charter of 1683, while Abram Mann was a member of the assembly from New Castle in the sessions of 1684-5.

It would not do to omit mention of the first state trial, if it may be so called, that was held on the Delaware. Near the close of 1669 a disturbance was created by one Marcus Jacobson, alias John Binckson, but better known as “Long Finne,” who pretended to be a son of Conningsmark, a Swedish general. Whether this so-called insurrection was a serious attempt to overthrow the government, or a mere riotous or seditious disturbance, it was treated with the utmost seriousness by Deputy Governor Carr as well as Governor Lovelace. An order for the Finne’s arrest was issued, and he was put in irons, while the other persons implicated were bound over for court. At a meeting of the council in New York on October 18, 1669, it was resolved:--

“Vpon serious & due Consideracon had of the Insurrection begann by ye Long Finne at Delaware, who gave himself out to bee son of Coningsmarke a Swedish Generall & y^e dangerous consequences thereof, It is adjudged that y^e said Long Finne deserves to dye for the same. Yet in regard that many others being concerned w^{th} him in that Insurrection might be involved in the Premunire if the rigour of the Law should be extended & amongst them divers simple and ignorant People: It is thought fitt and Ordered, that the said Long Finne shall be publickly & severely whipt & stigmatiz’d or branded in the fface with the Letter (R) with an Inscription written in great Letters & putt upon his Breast, That he received that Punishment for Attempting Rebellion, after wh^{ch} that hee bee secured untill hee can bee sent & sold to the Barbadoes or some other of those remote Plantations.”[75]

But after deciding upon his fate, it was determined to try him according to the forms of law and a special commission was issued to Mathias Nicolls and others to try him, whose instructions were to hold the court according to a prescribed form, which presents an excellent picture of the practice then followed in a criminal trial.

“The forme of holding the Co^{rt} at the Fort in Newcastle upon Delaware River for the Tryall of the Long Finne &c. about the late Insurrection, Decem. y^e 6th 1669.

“Vpon the meeting of the Court let a proclamation bee made by saying, O yes, O yes, O yes, Silence is commanded in the Co^{rt} whilst his Ma^{ties} Commissioners are sitting Vpon paine of imprisonment.

“Lett the Commission be read & the Commission^{rs} called vpon afterwards, if any shall bee absent Let their names bee recorded.

“Then let the proclamacon bee made again by O yes, as before, after which say: All manner of persons that have anything to doe at this speciall Co^{rt} held by Commission from the Right Ho^{ble} Francis Lovelace Esq. Governo^r Genr^l vnder his Royal Highness the Duke of York of all his Territories in America draw neare to give yo^r attendance, and if any one have any plaint to enter or suite to prosecute let them come forth & they shall bee heard.

“After this let a jury of twelve good men bee empannelled.

“Then let the Long Finne prisoner in the Fort bee called for & brought to the Barr.

“Vpon which the jury is to be called over & numbered one, two &c. & if the prisoner have no exception against either of them let them bee sworne as directed in the Booke of Laws for Tryall of Criminals, and bid to look vpon the prisoner at the Barre.

“The forme of the oath is as followeth: You do swear by the Everliving God that you will conscientiously try and deliver your verdict between o^r Sovaraigne Lord the King, & the prisoner at the Barre according to evidence & the lawes of the Country, so helpe you God & the contents of this booke.

“Then let the prisoner bee again called vpon and bid to hold up his right hand:

“Viz. John Binckson alias Marcus Coningsmark alias Coningsmarcus alias Mathew Hincks....

“Then proceed with the indictment as follows:

“John Binckson, Thou standest here indicted by the name of John Binckson alias Coningsmark alias Coningsmarcus alias Mathews Hinks, alias, etc. for that having not the feare of God before thine eyes but being instigated by the devill vpon or about the 28th day of August in y^e 21st year of the Raigne of o^r Soveraigne Lord Charles the 2d by the Grace of God of England Scotland, France and Ireland, King, Defender of the Faith &c. Annoque Domini 1669, at Christina & at severall other times & places before, thou didst most wickedly, traitorously, feloniously & maliciously conspire and attempt to invade by force of armes this Government setled vnder the allegiance and protection of his Ma^{ties} & also didst most traitorously solicit & entice divers & threaten others of his Ma^{ties} good subjects to betray their allegiance to his Ma^{ties} the King of England persuading them to revolt & adhere to a forraign prince, that is to say, to the King of Sweden In prosecution whereof thou didst appoint and cause to bee held Riotous, Routous & Vnlawfull Assemblyes, breaking the Peace of o^r Sovereign Lord the King and the laws of this Government in such cases provided John Binckson &c what hast thou to say for thyself, Art thou guilty of the felony & treason layd to thy charge or not guilty. If hee says not guilty, then ask him By whom wilt thou be tryed. If hee say be God & his countrey, say, God send the a good deliverance.

“Then call the witnesses and let them bee sworne either to their testimony already given, in or to what they will then declare upon their oaths.

“Vpon which the jury is to have their charge giving them directing them to find the matter of Fact according to the Evidence and then let them bee called over as they go out to consult upon their verdict in which they must all agree.

“When the jury returns to deliver in their verdict to the Co^{rt} let them bee called over againe & then ask^t: Gent^s, are you agreed upon your verdict in this case in difference between o^r soveraign Lord the King & the prisoner at the Barr. Upon their saying yes aske who shall speak for you. Then the ... bring in their verdict & the ... then read the verdict and say: Gentlemen, this is y^r verdict upon which you are all agreed; upon their saying yes, call that the prisoner bee taken from the barre & secured.”[76]

As a matter of course the Finn was convicted and sentenced. The last we hear of him is in this minute of the council, January 25, 1669-70:--

“This day ye Long ffinne called Marcus Jacobsen was by warrt put on board Mr. Cosseans Ship called y^e Fort Albany to be Transported & sould at y^e Barbadoes according to y^e sentence of Court at Delaware for his attempting rebellion. He had beene a prisoner in y^e State house ever since y^e 20th day of Decemb^r last.”[77]

We are fortunate in possessing portions of the records of the county courts during this period. That of Upland is particularly interesting as presenting a complete record of the first county court on Pennsylvania soil from the year 1676 to the announcement, in June, 1681, of the transfer of the government to William Penn. In the commissions issued by the governor six justices of the peace are named, any three or more of whom may hold court, the commissions to be in force for one year or until further order. It would be tedious to recite the manifold duties performed by the justices, whose functions included those now delegated to the county commissioners, directors of the poor and auditors as well as those pertaining strictly to their judicial office. They granted applications for taking up land, took acknowledgments of deeds, and exercised a general supervision over the churches, the repair of the highways, the maintenance of fences, the sale of the time of bound servants, and even recorded the earmarks of cattle.

The expenses connected with the sittings of the courts were supposed to be met by the fees and fines imposed, but these were not always easily collected and the Upland justices record in one place that they are “in great want of some meanes to pay and defray their necessary charges of meat and drinke.”[78] The court at the Whorekill, the name of which had been changed to Deal, made this clever bargain:--

“It is agreed and Concluded upon by the Court and Alexander Moulston as followeth; that from the first day of this moneth the said Alexander Moulston shall have to his owne proper use all the Amacements that doe from that day becom due to the court for one whole yeare; and that the said Alix Moulston doe Ingage to find and allow the Justices of this Court for the time being and there friends and strangers with house roome and diett And one gallon of Rum and wine for every Court during the said year.”[79]

Actions for the recovery of debts, for assault and battery and slander predominate. It would seem that the judges sometimes found it necessary to appeal to their own tribunal, as the following case shows:--

“Justice Otto Ernest Coch Plt. { In an action of slaunder “Moens Petersen Staecket Deft. { & defamat.

“The p^{lt} Complaines that this deft. maliciously has defamed and most highly slaundered him in his Honor & reputation by terming him a hogh theef, desires that this deft (if hee or any others can) will prove ye same, or otherwayes that hee may bee punisht according to Lawe.

“The deft sayes and protests, that hee never Knew heard or sawe, that this Plt was guilty of any such fact, and that hee to his knowledge never sayed any such thing, but if that he hath sayed itt (as the witness doe afirme:) that itt must haue been in his drink, hee humbly desires forgivenesse, sence hee finds himselfe in a great fault;

“Hans Jurian, william orian & andries homman sworne in Co^{rt} declare that they haue heard moens Peterss Staecket say in full tearmes & substance, Mr. Otto is a hogh theef of ye one & andries Boen of ye other syde & further say nott;

“The Court haueing heard ye Case doe order that ye deft: shall publicqly in open Court declare that hee has wrongfully falsly & malisiously slaundered & blamed this p^{lt} and doe further fyne him for an Example to others to pay the sume of one thousand gilders w^{th} the Costs;

“The deft. did willingly in open Court, declare as above & humbly desires forgivenesse & prayes that ye fyne may bee remitted, Upon ye Intercession of Justice Otto Ernest, the Co^{rt} did remit ye fyne above^d.”[80]

Judgments are entered sometimes in guilders and stivers and sometimes in pounds of tobacco, wheat or other products. In one case at Upland the court ordered the defendant to pay the plaintiff “twenty gilders in wheat and twenty six in pompkiens.”[81]

A case, showing the primitive practice, from the commencement to the termination of a suit, is that of--

“James Sanderlins plt ags^t

“John Edmunds of maryland Def^t

“The plt demands by bill from this deft. ye sume of 1200 lb of good & merchandable Tobbacco & Caske to bee paid in Great Chaptank River in maryland on all demands after ye 10th of october 1675; as by the said bill under ye hand and seale of the def^t bearing date ye 9th of June 1675; & produced in Court did more att Large appeare, the plt further declaring & prooveing in Court that hee hath made severall Legall demands of the s^d debt, and y^e the same was not paid to this day, desiering that this Co^{rt} would be^e pleased to grant him Judgem^t ag^{st} ye de^{ft} and to allow of his attachment Laid upon a certaine great Boate or shiallop & appurtenances now att upland--That the same might bee publicqly sould and the p^{lt} payed his Just due w^{th} ye Costs;

“m^r walter wharton one of the witnesses to ye sd bill being sworne in Court declared that hee was p^{rsent} and did see John Edmundsen signe seale and deliver, the abovesaid bill of 1200 lb of Tobacco, to James Sanderlins;

“The Court haueing Examined into ye businesse, and finding the Case to bee Just, did order that Judgment bee Entered against the deft: John Edmunds, for the paym^t of ye sd. 1200 lb of Tobacco, or the True vallue thereof, and alloweing of ye Plts attachm^t doe hereby order the vendu master, to sell the boate & appurtenances, this Courtday to the most bidders, out of which hee to pay James Sanderlins his debt w^{th} ye Costs, and the overplus to bee returned to John Edmunds or his order;

“According to the aboves^d order of Co^{rt} was this day being ye 12th of Novembr, by publicq outcry sould unto m^r John Test, as ye highest bidder the boate & appurtenances for ye sume of six hundred and twenty fyve gilders; to bee paid in New Castle with merchandable Tobbacco & Caske dutch w^{th} & tarr att 8 styvers pr lb or w^{th} merchandable wheat at 5 gilders pr schipple att or before ye Laest of march next Ensuing, as by the Conditions of sale upon ye fyle att Large doth & may appeare;

“James Sanderlins bound himselfe as security for ye true payment of ye aboves 625 gilders according to the conditions.”[82]

As these proceedings occurred all on one day, the parties could not complain of the delays of the law. What would appear to be the first recorded action for negligence is entered as follows on the New Castle records:--

“Mounes Powell plt

“Hans Pietersen Deft

“The p^{lt} declares that this de^{ft} about one Jeare sence was the occascon that he the plt lost the use of his boddy so that he was & is not able to worke for his wife and family and therefore humbly craves that the de^{ft} may be ordered to hire a servant for him until he bee restored to health:--The court having heard the answer of the deft and finding by the evidence sworne in court, as also by the p^{lt} owne confession that itt was an accidental mischange, doe order that the deft shall pay the curing to the doctors bill this date and moreover Pay unto the p^{lt} in regard of his smart and Payne w^{ch} the p^{lt} hath suffered the sume of one hundred and fifty gilders and pay cost of sute.”[83]

In another case in 1679 a mortgage is foreclosed:--

“John Moll P^{lt}

“Robberd Hutchinson Def^t

“The P^{lt} declares that one Daniel Linsy being his debtor the sume of 847 lb of Tobacco & Caske did on y^e day of 167; mortgage Trasport & make over unto this P^{lt} a Certain peece of Land Lying in Appoquenemen Creeke, above y^e old Landing w^{ch} s^d mortgage and Transp^{rt} was to bee void upon y^e payment of y^e s^d 847 lb of tobbatt y^e time in y^e s^d deed Exprest, as by the s^d mortgage bearing date as above more att Largedid appeare and that this deft Robberd hutchinson, haueing sence bougt the s^d Land from y^e s^d Linsey did promise to pay y^e P^{lt} his s^d debt w^{ch} being nott performed, The P^{lt} is now forced to Commence his action in Lawe, and humbly Craues this Co^{rts} order so that hee may haue y^e forfeiture and benefitt of his afores^d mortgage and that hee may bee put in peaceable Possession of the s^d Land according to s^d deed. The Co^{rt} haueing Examined the premises doe Judge that according to Lawe and the s^d deed the Land aboves^d is forfeited and belonging to y^e P^{lt} and therefore do order that the P^{lt} bee put in Lawfull Possession thereof.”[84]

A case that perplexed the justices at Deal involved a gambling contract.

“Henry Bowman P^{lt}, James Welles and John Newall defts. The P^{lt} declare that the defts did contract & agree w^{th} him to Run A horse Race for three thousand pounds of Tobacco; and that he the said P^{lt} ded wine; the deft pleaded that the Contract was not confirmed, the cause being debated on both sides and severall witnesses Examined the Cause was Referred to a Jurey; w^{ch} went out and brought in there verdict; that they finde for the p^{lt} with Cost of suit and one shill Damages; and the defts arest the Judgmt of the Court & craved an Appeale to have the Cause to be Tryd at the next Gennarall Court of Assisses at New York befor the Honorable Governor and Councell; the vallow being under twenty pounds the Court Could not agree weather it was appealeable or not; and soe refered the same untill the next Court; there being sume thing dubous in the Testament of the Wittnesses.”[85]

A competent authority has remarked, “the whole method of practice was rather a dispensation of justice, as the idea of it existed in the heads and was tempered by the hearts of the judges, than the administration of any law written or unwritten.”[86] And yet when we remember that these men were all laymen, pioneers on the border of the wilderness, whose true business was to clear the forests and till the soil, and whose judicial office was a burdensome duty, performed at a considerable sacrifice of time and money in the interest of their little communities, that they were without books or forms and sometimes without blank books in which to write their records, we may wonder that they did so well.[87] The justices of these courts as members of the provincial council, as assemblymen, and as judges, played their part in the “Holy Experiment” heralded in the last entry in the Upland records. This entry, the last official act under the Duke of York’s administration, is a notice to the magistrates of the cession of the territory to William Penn and a direction that they should yield due obedience to the new proprietor. Here then it is that the histories of the commonwealths of Pennsylvania and Delaware begin, if commonwealths may be said to have a beginning.

On March 4, 1681, the province of Pennsylvania was granted by King Charles II to William Penn, son of Vice Admiral Penn, to whom a considerable debt was then owing by the Crown.[88] It would be tempting at this point to turn aside and discuss the character and career of the remarkable man who founded the commonwealth of Pennsylvania. Much has been written about him and yet it is doubtful if he has received his real due from history. William Penn was an idealist, perhaps in some respects a visionary man, and yet many of his views were eminently sensible and fundamentally sound. The leader of an exclusive religious sect, the welcome guest at court, the friend alike of James II, of Algernon Sydney and of John Locke, a man of brilliant parts and attractive personality, yet modest, generous, tolerant and forgiving, the nobility of his character as revealed in his writings and conduct is worthy of our highest admiration, little as it was appreciated by those who, like Franklin, owed much of their prosperity to his “Holy Experiment,” but could not understand his motives. To his enlightened benevolence and faith in mankind, civilized and savage, was due the early prosperity and progress of the commonwealth. As a German writer has well observed, “Of all the colonies that ever existed none was ever founded on so philanthropic a plan, none was so deeply impressed with the character of its founder, none practised in a greater degree the principles of toleration, liberty and peace, and none rose and flourished more rapidly than Pennsylvania. She was the youngest of the British colonies established before the eighteenth century, but it was not long before she surpassed most of her elder sisters in population, agriculture and general prosperity.”[89]

An analysis of the charter granted to Penn belongs rather to constitutional history than to our subject. The English government was daily becoming more impressed with the importance of the colonies in America, and in consequence the document was drawn with more care for the royal prerogative than the earlier charters. One of the most important of its provisions was that requiring a transcript of all laws made and published in the province to be transmitted within five years to the privy council, and if within six months such laws should be declared inconsistent with the king’s prerogative or sovereignty, the same should be declared void, otherwise to remain in full force. Penn was given full power to make laws, with the advice and consent of the freemen of the country or their deputies in assembly, to appoint judges, justices and other judicial officers, to pardon crimes, treason and willful and malicious murder excepted, and to “do all and every other thing and things which unto the complete establishment of justice, unto courts and tribunals, forms of judicature and manner of proceedings do belong,” and by judges appointed, to award process, hold pleas and determine all actions, suits and causes whatsoever, as well criminal as civil, personal, real and mixed. By three deeds the Duke of York conveyed to Penn the territory covered by the charter and the three lower counties.

On April 10, 1681, Penn commissioned his cousin, William Markham, to be deputy governor, who arrived on the Delaware about the first of July following. His first act was to call a council and on November 30th we find him holding court at Upland. Prior to this we have the first entry in the records of the Upland Court as part of the province of Pennsylvania.[90] Nine justices are recorded as present. The first cases tried were two cross actions of assault and battery in which all parties were convicted and fined.[91]

Before sailing for America Penn drew up his famous “Frame of Government,” the original manuscript of which, with interlineations and notes in the handwriting of his friends, is preserved in the archives of the Historical Society of Pennsylvania.[92] Penn was a close student of political institutions and lived at a time when, in his own words, there was “nothing the wits of men are more busy and divided upon.” He like many of his coreligionists had suffered imprisonment for conscience sake. The account of his trial is a fair picture of the administration of justice in the principal criminal court of London during the Stuart period.[93] When we read those stirring pages we can understand the suspicion with which the courts were regarded by the colonists and their exaggerated faith in trial by jury. Fear of judicial oppression, in fact, had a marked influence on the development of our courts, was instrumental in checking the growth of chancery jurisdiction for several generations and was the primary cause of that jealousy of the judiciary which was long a feature of local politics.

Penn, although he had grown up in a period of political unrest, was eminently practical in his ideas of government. He was a believer in men rather than in methods. In the preface to the Frame of Government he says:--

“But lastly when all is said, there is hardly one frame of government in the world so ill designed by its first founders, that in good hands would not do well enough; and story tells us, the best in ill ones can do nothing that is great or good; witness the Jewish and Roman states. Governments, like clocks, go from the motion men give them, and as governments are made and moved by men, so by them they are ruined too. Wherefore governments rather depend upon men, than men upon governments. Let men be good, and the government cannot be bad; if it be ill, they will cure it. But if men be bad, let the government be never so good, they will endeavor to warp and spoil to their turn.”[94]

Under the system of government first established by Penn the executive powers were vested in the governor and provincial council, while the legislative powers were vested in the governor, provincial council and general assembly of the representatives of the freemen of the province. The provincial council was an elective body not only associated with the governor in the ordinary executive duties but also charged with the preparation of all new laws, which after publication,[95] were to be submitted to the general assembly for approval. Both council and assembly were designed on generous proportions but at the request of the colonists the membership in both bodies was greatly reduced.[96] The courts were to be erected by the governor and council, the latter body nominating a double number of candidates from whom the governor was to select a proper number for each office. This last provision did not work well in practice, as it was difficult to get enough men of the right sort to fill the commission of the peace, as the minutes of the council clearly show.

It will be seen that the courts, as such, played but a subordinate part in the constitutional system. Indeed the conception of the judiciary as a coördinate branch of the government was as yet unrealized; balanced constitutions were the final products of the eighteenth century, the seventeenth was concerned with the fundamental rights, liberties and privileges of the subject. These rights, as applied in the administration of justice, were embodied in the “Laws agreed upon in England,” and published with the Frame of Government. It is therein declared--

“That in all courts all persons of all persuasions may freely appear in their own way, and according to their own manner, and there personally plead their own cause themselves, or if unable, by their friends. And the first process shall be the exhibition of the complaint in court, fourteen days before the trial; and that the party complained against may be fitted for the same, he or she shall be summoned no less than ten days before, and a copy of the complaint delivered him or her, at his or her dwelling house. But before the complaint of any person be received, he shall solemnly declare in court, that he believes in his conscience his cause is just.

“That all pleadings, processes, and records in courts, shall be short, and in English, and in an ordinary and plain character, that they may be understood, and justice speedily administered.

“That all trials shall be by twelve men, and as near as may be peers, or equals, and of the neighborhood, and men without just exception. In cases of life, there shall be first twenty four returned by the sheriff for a grand inquest, of whom twelve at least shall find the complaint to be true; and then the twelve men or peers, to be likewise returned by the sheriff shall have the final judgment. But reasonable challenges shall be always admitted against the said twelve men or any of them.

“That all fees in all cases shall be moderate, and settled by the Provincial Council and General Assembly, and be hung up in a table in every respective court; and whosoever shall be convicted of taking more, shall pay two-fold, and be dismissed his employment, one moiety of which shall go to the party wronged.”[97]

These provisions were enacted into law at assemblies held December 10, 1682,[98] and March 1, 1683.[99] Indeed the first and third paragraphs were at the latter session, included among the “fundamental laws” not to be altered without the consent of the governor and six-sevenths of the freemen of the province.[100] This early attempt to discriminate between the general body of law and certain laws which were regarded as “more essentially requisite” to the well being of the state is of interest to the student of constitutional law. It shows that at this early period the feeling was present that some laws, not necessarily political, ought to be marked out for a special sort of permanence; a feeling that has led to the development of the modern state constitution, absurdly complex and overloaded with non-political details.

Notable, also, are the provisions for the commencement of actions by an informal complaint and for brevity and simplicity in the pleadings and court records, which although in keeping with the primitive local custom were as code provisions a radical departure from the common law, too radical, in fact, to withstand the growth of professional feeling in the eighteenth century. Penn’s more liberal contemporaries would not have thought of imposing upon a raw community the artificial system of England in its entirety, but few would have committed themselves to so radical a stand for permanent reform. As it happened lawyers soon emigrated to the province, bringing with them their cherished technicalities, and the old forms slowly but surely crept into use. Penn, indeed, was too much of a utilitarian to fully realize how deeply even the more cumbersome and fantastic features of the common law were rooted in the habits and customs of the people. We are reminded of his famous colloquy with Mr. Recorder Howell at his trial:--

Penn. “I desire you would let me know by what law it is you prosecute me and upon what you ground your indictment.”

Recorder. “Upon the common law.”

Penn. “Where is that common law?”

Recorder. “You must not think that I am able to run up so many years and over so many adjudged cases which we call common law to answer your curiosity.”

Penn. “This answer I am sure is very short of my question for if it be common, it should not be so hard to produce.”

Penn, like Bentham, would seem to have the best of the argument, but a century and a half passed before New York broke the chains of tradition in the code of 1848.

After a “prosperous passage of about two months,” Penn arrived before New Castle on the twenty-seventh of October, 1682, and demanded livery of seisin from the commissioners appointed by the Duke of York. The ceremony took place on October twenty-eighth and is thus reported by John Moll:--

“Whereupon by virtue of the power given unto us by the abovementioned letters of attorney, we did give and surrender in the name of his royal highness, unto him the said William Penn, Esq., actual and peaceable possession of the fort of New Castle, by giving him the key thereof, to lock upon himself alone the door, which being opened by him again, we did deliver also unto him one turf, with a twig upon it, a porringer with river water and soil, in part of all what was specified in the said indenture or deed of enfeoffment from his royal highness, and according to the true intent and meaning thereof.”[101]

One of his first acts, after taking possession, was to commission six justices of the peace for New Castle and to send out notices for the holding of a court.[102] At this court, which was attended by several of the council, as well as the justices, Penn delivered an address stating his purpose to call an assembly and recommending the magistrates, in the interim, to follow the laws of the Duke of York. Before the end of the year the province of Pennsylvania was divided into three counties, Philadelphia, Bucks, and Chester (which replaced Upland), and the lower territories into three also, New Castle, as before, while of the two counties into which the Whorekills had been divided, Deal became Sussex, and St. Jones, Kent. The county courts continued as already constituted, and for some time the boards of justices, therein assembled, exercised most of the functions of local government, such as the assessment of taxes, the erection of jails, the allotment of land to settlers and the abatement of public nuisances.[103] The number of justices in any county varied from time to time with the pressure of business, the willingness or ability of those chosen to perform their duties or the favor of the council. Sometimes a man of importance was commissioned as justice for the whole province.

Under the Duke of York’s laws the attendance of the justices was enforced by a fine of ten pounds for every day’s absence, and there are entries of such fines in the records of the courts.[104] Under the Act of May 10, 1685, (ch. 176) the same policy was continued, but the fine reduced to thirty shillings. When possible the justices were assisted by the presence of the governor, members of the council or judges of the provincial court, after its establishment, all of whom were _ex officio_ of the commission of the peace. In the minutes of the court of Bucks County it is noted that on the 4th and 11th day, 1 mo., 1683, the governor, William Penn, was present and held an orphans’ court. The county courts with their vague and indefinite jurisdiction in civil and criminal causes and county affairs would seem to have been regarded with favor by Penn, who was averse to complicated procedure; hence at the first assembly held at Chester, December 7, 1682, there is little said of the courts, although in the “Great Body of Laws” then adopted will be found most important modifications of the common law both as to persons and property.[105]

At the session, in March, 1683, it was enacted that in every precinct three persons should yearly be chosen as common peacemakers, to whom differences might be submitted for arbitration and whose findings should be as conclusive as those of the county court. In the minutes of the provincial council, 7th, 9 mo., 1683, will be found a case “referred to the peacemakers and in case of refusal to the County Court.”[106] Voluntary arbitration was then an accepted method of settling disputes in England, particularly in cases involving merchants’ accounts, enforced by bond conditioned to submit to the award, and arbitration, by rule of court, was adopted by Statute 9 and 10 William III, ch. 15. We have also seen that from the earliest period the practice prevailed in New York and its dependencies. The office of peacemaker, however, seems to have survived only until 1692 when the assembly decided that the law was not in practice. Arbitration was long a popular method of trying cases and beginning with the Act of January 12, 1705,[107] a law for reference by rule of court in the spirit of the statute of William III, there is a long series of acts perfecting this method of disposing of litigation. The early dockets of the supreme and common pleas courts are full of rules for references and voluntary submissions.

At the session of 1683 it was enacted that the first process in every suit should be the exhibition of a complaint _fourteen_ days before trial, that the defendant should be summoned _ten_ days before trial and furnished with a copy of the complaint, which was required to be delivered to him at his dwelling house. The jurisdiction of the county courts was also more clearly defined.

“That all actions of debt, Accompt, or Slander, and all actions of Trespass, shall be henceforth first tryed by there respective County Court, where the Cause of action did arise.

“And if any person shall think himself aggrieved with the Judgement of the County Court, That then, such person may Appeal to have the same tryed before the Governour and Council; Provided always that the same be above twelve lbs. And that the person appealing, do put in good, and sufficient Security, to pay all Costs and Damages, if hee shall be cast, as also to pay the Cost and Charges of the first Suit.”[108]

The legislative activity of Penn and the assembly during the early days of the colonization of Pennsylvania was such as to render it difficult to follow all the changes in procedure. No colony started with a more complete and original code, but much was necessarily experimental and was gradually modified under the influence of practical experience. The change in the dynasty and the political vicissitudes of the proprietor were also disturbing elements and an atmosphere of uncertainty surrounds much of the legislation prior to Penn’s second visit to America. In 1693, when Penn’s government was suspended and Governor Fletcher of New York in charge, an investigation showed the rolls of the laws in confusion and not passed under the great seal. There was no certain evidence either that they had been transmitted to the privy council for approval, although David Lloyd and John White stated that they knew that Penn had delivered some at least of the laws to the king in council.[109] In 1694 some of the laws were sent over, for on August first of that year Penn appeared before the committee on trade and plantations and objected to the act about recording deeds. On the third of August following the attorney-general gave his opinion on the acts and the committee agreed to approve of nineteen, to repeal two and to hold five until the general assembly had given them further consideration. From the titles, which alone are given in the journal of the board of trade, the acts referred to are apparently those passed in 1693 under Governor Fletcher and include one “about appeals to the Supream Court.”[110] On December 31, 1697, Penn laid some more laws before the commissioners of trade[111] but the minutes do not state what they were or what action was taken on them. However, this much is certain, that in their more general provisions these laws were recognized and to some extent observed, but the unsettled political conditions, brought about partly by the absence of the proprietor after 1684 and the English revolution of 1688, led to confirmations, reënactments and repetitions of statutes in varying phraseology, which must have caused confusion, particularly as the laws were not at this time allowed to be printed, manuscript copies being filed in the county courts with the president or clerk.[112] Hence, the text of acts passed before 1700 must be accepted with considerable reserve and it is difficult to determine just how far the more experimental features were enforced.

The county courts were vested with criminal jurisdiction in all except such important crimes as treason, murder and manslaughter and, after 1693, burglary, rape and arson. At times, however, a special commission of oyer and terminer was issued to some of the justices to try a special offender or to clear the jail. The offenses for which indictments were most frequently found and trials had were for drunkenness, larceny, profanity, assault and battery and breach of the peace, offenses against morality, “selling rum to the Indians,” speaking disrespectfully of the magistrates and breaking the Sabbath. In the lower counties there are occasional arrests on suspicion of piracy and smuggling. The following entry in the Chester County court records carries a faint echo from Monmouth’s Rebellion:--

“Ordered that the sheriff take into his custody the body of David Lewis upon suspicion of treason, as also the body of Robert Cloud for concealing the same; for that he the said Robert Cloud being attested before this court, declared that upon the 3d day of the weeke before Christmas last at the house of George Foreham, the said David Lewis did declare in his hearing that he was accused for being concerned with the Duke of Monmouth in the West Country.”[113]

On the civil side the practice at this period did not differ materially from that under the Duke of York, although there is a gradual improvement in the forms and methods of procedure and in the use of legal terms, as the courts acquired experience or became better informed as to their duties through the importation of law books into the province. Although without legal training, the justices lived in a time when a knowledge of the rudiments of the law and the ordinary forms of conveyancing were essential to a gentleman, or merchant of importance, and a copy of Dalton’s Justices with the acts of assembly would meet most of the requirements of a rustic community. Some at least of the justices were drawn from the same class as supplied the quarter sessions in the rural districts of England.

A difficulty seems to have confronted them in properly upholding the dignity of the courts. A rule of the Philadelphia County court for 1686, after reciting that many disorders had been committed in the courts of this county, partly through ignorance and partly through negligence of otherwise well-meaning persons, goes on to order--

“That plfs, dfts, and all other psons speake directly to the point in question, & yt they put in their pleas in writing (this being a Court of record) & that they forbeare reflections & recriminations either on the Court, Juries or on one another; under penalty of a fine.”[114]

Nor were the judges always free from fault themselves. Justice Luke Watson of Sussex County was in 1684 twice fined by his colleagues for “smoakin tobacco in the Court house,”[115] the first time fifty and the second time one hundred pounds of tobacco, an instance where the punishment certainly fitted the crime. Another justice was fined five shillings for swearing.[116] In the same county in 1687 one Thomas Jones refused to attend court when summoned and a constable and two justices were sent to fetch him, whom he roundly cursed. The record adds:--

“The said Jones being brought to the Court, the Court told him of his misdemeanor, and told him he should suffer for it; he told the Court he questioned their power, soe the Court ordered the Sheriff and Constable to secure him and they carryed & dragged him to ye smith shop where they put irons upon him, but he quickly got the Irons off and escaped, he having before wounded several persons’ legs with his spurs that strived with him, and when they was goeing to put him in the Stocks, before that they put him in Irons, he kicked the Sheriff on the mouth and was very unruly and abusive, and soone got out of the Stocks.”[117]

The grand jury of Philadelphia County in 1686 presented Justice James Claypoole “for endeavoring by an indirect way to preposess Judge Moore in a case yt was to be tryed before him in the provinciall court, being by us lookt upon to be of a dangerous Consequence,” and “for menacing and abusing ye jurors in ye triall of John Moon which was an infringement of ye rights and properties of ye people.”[118]

In the trial of cases the procedure was characteristically simple. If the plaintiff failed to serve his process he was nonsuited; if the defendant failed to appear judgment was entered against him. If both parties were present the defendant was called on for his answer, which could set up any defense legal or equitable or claim a set-off.[119] The law required the pleadings to be short and in English. The parties would sometimes leave the case to the bench without a jury,[120] particularly in the lower counties, but if a jury was called, it consisted invariably of twelve men. After verdict judgment was entered and the practice survived for some time of entering judgments in kind--perhaps reaching a climax in an entry of judgment for “one thousand of six-penny nails, and three bottles of rum.”[121]

As to process of execution, we know little except that the proceedings would seem rather summary. An order of council was made in 1686 “yt there should be tenn days Respite between judgm^t given in ye County Courts within this Province and Territoryes in all Civill Causes, and signing the execution thereoff, and that in the Prov^{ll} Court no Execution shall be served until eight days after judgm^t given.”[122] To this the assembly in 1687 made strenuous objection and urged that the order be revoked, whereupon the council decided to leave the matter to the discretion of the courts.[123] There are recorded several petitions to the council for relief against executions on judgments entered by default, and others for relief against vexatious and oppressive executions. In one of these a widow complains that judgment having been obtained against the estate of her deceased husband, the sheriff had levied on the plantation where she and her children dwelt, although there was sufficient property elsewhere to satisfy the debt. The council sent for the sheriff and told him that if there were other effects of the decedent he ought not to levy on the plantation where the widow and children lived.[124] In other cases relief seems to have been given on account of the poverty of the defendant, a practice that would pave the way for the debtor’s exemption law.[125]

In criminal cases the sentences were usually limited to fines, whippings or the stocks. Sentences to terms of imprisonment were rare; the colony could ill afford to spare the labors of any individual, however depraved, and still less was it inclined to support him in idleness. Penn’s incarceration in Newgate had familiarized him with the evils of prison life and he expressly ordained that prisons should be workhouses.[126] Such prisons as were built at this time were neither particularly commodious nor strong. In 1688 the council found it necessary to reprimand the sheriff of Sussex for permitting a dangerous prisoner to be at large. The prisoner magnanimously sent word to the council that he would yield himself up rather than “ye sheriff should suffer.”[127] A similar reprimand was administered to the sheriff of Philadelphia for permitting two prisoners suspected of piracy to go at large, to which the sheriff replied, that they never went without his leave and a keeper, “w^{ch} hee thought might have been allowed in hott weather.”[128]

By the Act of March 1, 1683,[129] the justices of the county courts were required to sit twice a year as an orphans’ court. The name as well as the original purpose of this court was derived from the court maintained by the corporation of London, which, by immemorial custom, had charge of the estates of orphans of freemen of the city. The practice and jurisdiction of the court, which will be discussed later, differed from that of its prototype but was not distinctly settled at this time, and we find the provincial council taking cognizance of matters that subsequently were assigned to this tribunal or to the register’s court, such as the appointment of administrators, and sale of land for debts.

Prior to 1684 there existed in the province no tribunal having cognizance of appeals other than the provincial council, which, in some degree, supplied the place of the general court of assizes under the Duke of York’s Laws. As the colony grew, the ever increasing number of appeals took up more and more of the council’s time and made this duty exceedingly burdensome, not to speak of the inconvenience to the suitors in traveling to Philadelphia with their witnesses for a hearing _de novo_. To remedy this inconvenience the Act of May 3, 1684[130], was passed, which provided that there should be five provincial judges, appointed by the governor, any three of whom should form the provincial court and sit twice a year in Philadelphia, while two of them should every spring and fall go on circuit into every county and there hold court. The court was to hear and determine all appeals from inferior courts and all causes, criminal and civil both in law and equity not determinable in the county courts. In 1685 the number of judges was reduced to three, but the original number was restored by the Acts of 1690 and 1693.[131] A commission was accordingly issued by Penn to five judges, of whom Nicholas Moore was named first, the commission to be in force for two years.[132] The law did not fix any definite period for service and the commissions were drawn for various periods. In one instance it is noted in the minutes of the council that the commission is to continue “only for this present court.”[133] Jealousies quickly arose as to the geographical apportionment of the judges and in 1687 the assembly requested that at least one of the judges be named from the lower counties.[134] In 1690 the appointment of the judges caused a split in the council, the members from the lower counties objecting to the naming of but one judge from the territories and also demanding that, according to what they stated was the proprietor’s example, two commissions issue, one for the province and one for the counties, so that each would have a chief justice from its own district. Unable to prevail on their colleagues, the members from the lower counties held a separate meeting and drew up commissions to suit themselves.[135] The keeper of the great seal, however, refused to seal these commissions and at a regular meeting of the council, subsequently held, the action of these members was denounced as irregular and annulled. This was the first open manifestation of the dissatisfaction of the territories with the union with Pennsylvania, which continually increased until a separate government was obtained.

The provincial court did not at once command or obtain the respect and influence due to the chief judicial tribunal of the colony. It was founded in the most trying times, when political dissensions among the leading colonists and war and revolution in England distracted the province. The terms of office were irregular, the compensation wholly inadequate and the journeys on circuit tedious and even dangerous. It is not to be wondered at that it was difficult to induce properly qualified men to accept a place on the bench and that nominees for that honor sought excuses to decline the office. No traces of the records and opinions of the court at this time have come down to us and they cannot have been bulky, for, when the council in 1688 sent for the records, they were informed by the clerk that “they were not recorded otherwise than in a quire of paper.”[136] The duties of the judges did not at first compel them to grapple with legal problems with a view to the value of their decisions as precedents. The correction of errors arising on issues of fact and the trial of the more serious crimes probably made up the bulk of the business. As time went on the court strengthened its position, and appeals to the council became less and less frequent, until in the early eighteenth century the two bodies, executive and judicial, assumed their normal functions.

It is sad to relate that Nicholas Moore, the first chief justice of the provincial court, was impeached by the assembly within a year after the creation of the court. Moore was a physician as well as president of the Society of Free Traders and a large purchaser of land from Penn. Although not a Friend he immediately obtained a position of influence, was elected to the assembly and was speaker in 1684. While capable and energetic he lacked tact and discretion and assumed an arrogant tone which offended his fellow members of the assembly and gave still greater offense after his elevation to the bench. In the minutes of the assembly there are numerous instances of his interruptions and protests during the consideration of bills.[137] It was reported to the council, during the session of 1684, that the speaker had said: “The proposed laws were cursed laws” and “hang it Damn them all.”[138] The principal complaints against his conduct on the bench seem to have come from the lower counties. Ten formidable articles of impeachment were presented, among which were the following:--

“The said Nich. Moore, Judge, having that high Trust Lodged in him for the Equall Distribution of justice, without respect of Persons, the said Judge Sitting in Judgemt at New Castle, hath presumed to cast out a person from being of a Jury, after ye said Person was Lawfully attested to ye True Tryall of ye Cause, thereby rending an Innocent & Lawful Person Infamous in the face of the County, by rejecting his attestation after Lawfully Taken, and Depriving the plantif of his just Right.

“The said Nich. Moore, Sitting in judgmt, did in ye towne of New Castle, refuse a verdict brought in by a Lawfull Jury, and by Divers threats & Menaces, and Threatening ye jury with ye same of Perjury and crim of their Estates, forced ye said Jury to goe out so often--until they had brought a Direct Contrary verdict to the first, There, by preventing justice, and wounding the Libertyes of ye free people of this Province and Territories in the Tenderest point of their Privelege, and violently Usurping over ye Consciences of the Jury.

“The said Nich. Moore assuming to himselfe an Unlimited and unlawful Power, did, Sitting in Judgmt at ye aforesaid Towne of New Castle, wherin two persons stood Charged in a Civil action, it being in its own Nature only Trover & Convertion, and ye pretended Indictmt raised it no higher, notwithstanding the said Moore did give the judgmt of fellony, Comending the Defendant to be Publickly Whipt, & Each to be fined to pay three fould, thereby Tyranizeing over the persons, Estates and reputations of the people of this Province and Territories, Contrary to Law and Reason.

“The said Nich. Moore, Sitting in judgmt at Chester, did in a most Ambitious, Insulting, & Arbitrary way, reverse and Impeach the judgmt of ye Justices of ye said County Court, and Publickly affronting the members thereof, although the matter came not regularly before the said Circular Court, thereby drawing the Magistrates into the Contempt of ye people, and Weakening their hands in the administration of justice.”[139]

A committee of five was appointed to manage the impeachment, one of whom was Abraham Mann, whom we have previously seen engaged in the prosecution of Justice Moll before the court of assizes in New York. The council showed little disposition to further this impeachment but treated the accusers with due civility and fixed a time for the hearing. Moore, however, was by no means inclined to submit tamely to the proceedings, and in the house, of which he was still a member, accused Abraham Mann of being “a person of seditious spirit,” in which he was probably right. The house, however, expelled Moore and proceeded to collect evidence for the prosecution. They met with a decided obstacle in the conduct of Patrick Robinson, clerk of the court, who declined to produce the records of the court, declaring that they were “written in Latin where one word stood for a sentence, and in unintelligible characters which no person could read but himself, no, not an angel from Heaven.”[140] But this did not end his offenses; he declared the articles of impeachment were drawn “hob nob at a venture” and threatened to “have at” the speaker when he was “out of the chair.” The house issued a warrant for Robinson’s arrest and requested the council to remove him from office. From the hearing on the impeachment Moore contemptuously absented himself, but the evidence was thought sufficiently grave by the council to suspend the judge from his official functions until the matter was finally decided. The council showed every disposition to treat Moore with leniency, although it had been testified that he had called the members thereof “fooles and Logerheads, and said it were well if all the Laws had drapt and that it would never be good Times as Long as ye Quakers had the administration.” Knowing the proprietor’s predilection for Moore the house addressed a letter to Penn on the subject, a quotation from the last paragraph of which shows that in spite of their quarrels and jealousies they still regarded him with affection.

“Dear and honored Sir, the honor of God, the love of your person, and the preservation of the peace and welfare of the government, were, we hope, the only centre to which all our actions did tend, and although the wisdom of the assembly thought fit to humble that aspiring and corrupt minister of state, Nicholas Moore, yet to you, dear sir, and to the happy success of your affairs our hearts are open, and our hands ready at all times to subscribe ourselves, in the name of ourselves and all the freemen we represent, Your obedient and faithful freemen.

JOHN WHITE, Speaker.”[141]

By one excuse after another the council prevented further proceedings in the impeachment until the matter was lost sight of in the discussion of more important and perplexing affairs of state which soon required attention.

The provincial council, although not strictly a court, for a long time exercised judicial functions and, through the fortunate preservation of its minutes, is by far the best known of the early tribunals. The exercise of judicial functions by the governor and council was strictly in accordance with the custom in other proprietary and royal provinces, and that judicial and executive functions were found incompatible in Pennsylvania so early in its history is a clear indication of the rapid growth of a democratic and progressive spirit in that province.

The extraordinary growth of the colony, the long absences of the proprietor in England and the large measure of self-government which the citizens enjoyed, threw upon the council an amount of executive business which made judicial duties particularly onerous, and numbers of petitions and appeals were referred back to the courts. Aside from their judicial duties the governor and council, as an executive body, appointed the judges and magistrates, regulated commerce, conducted negotiations with the Indians and the other colonies, subdivided counties, laid out towns, established fairs and markets, ordained the principal highways, bridges and ferries, and exercised a general supervision over local administration. As a legislative body, they drew up all the laws, prior to 1693, when that right was assumed by the assembly, being finally transferred to that body by the Frame of Government of 1701. By that instrument also, the council, no doubt to its great relief, was expressly deprived of judicial functions.

During the first twenty years of its existence the amount of judicial business transacted in the council was large; prior to the establishment of the provincial court it was the only general tribunal and was not only a court for hearing appeals but also a court of first instance for such suitors as could obtain a hearing before it. This, of course, was natural at the first settlement, as a matter of practical necessity. We therefore find in the early part of the minutes, trials for petty offenses and the collection of small debts. They seem to have been obliged even to discipline their own members, for at the fifth meeting of the council one of its members was fined five shillings “for being disordered in Drink.”[142] The council seems to have exercised its good offices in composing differences. In 1684 there is the following entry:--

“Andrew Johnson Pl. Hance Peterson Deft. There being a difference depending between them, the Govr. & Council advised them to shake hands and to forgive One another. And Ordered that they should Enter in bonds for fifty pounds apiece, for their good abearance; which accordingly they did. It was also Ordered that the Records of Court concerning that Business should be burnt.”[143]

There are other cases where the council would seem to have acted more as a final board of arbitration than as judges in the strict sense.[144]

Prior to the establishment of the provincial court in 1684, the council heard all appeals, and although after that time such appeals were discouraged, they nevertheless continued to be brought before the council for some years. Besides regular appeals, there were numerous petitions for executive clemency, complaints against severe sentences in criminal cases and, in civil cases, petitions for relief against judgments entered by default and against executions which bore too severely on the debtor. In one early case, on appeal from the county court of Philadelphia, it was shown to the council that the case concerned the title to land in Bucks County, when the law required cases to be tried where the cause of action arose. The council remitted the case to the court of Bucks County and fined the Philadelphia court “forty pounds for giving judgment against law.”[145]

As an illustration of the practice on appeal to the council the case of _Grantham_ v. _Wollaston_[146] may be cited:--

One Wollaston purchased a negro from Grantham and gave a bond for £26, 15 s. in payment. Judgment was entered on this bond by the New Castle County court, execution issued and a portion of the defendant’s land sold by the sheriff to Grantham for £30, 10 s. and the latter was put in possession. Wollaston on the 18th, 3 mo., 1687, petitioned to the council at Philadelphia averring that the county court had denied him an appeal to have his case heard in equity. After reading a copy of the proceedings the council directed the secretary to take security for the prosecution of the appeal at the next provincial court and ordered the county court to stop all proceedings. The provincial court on the 10th, 2 mo., 1688, made an order restoring Wollaston to possession, which, it was explained later by one of the judges, was not intended to be executed “until the debt and damages were satisfied.” On the 7th, 12 mo., 1688-9, Wollaston again petitioned the council, complaining of a forcible entry and detainder, whereupon it was resolved that a warrant be drawn, directed to the justices of the peace dwelling “nearest to ye place where ye fforce is alleaged,” to make a view and, if they found no force, to require the sheriff to summon a jury to inquire into the facts and thereupon to imprison the offender and restore quiet possession to the petitioner. On March 4, 1688-9, the clerk of the county court returned to the council the finding of the jury, which was in effect that Grantham had been the victim of the forcible entry. “This was judged by ye board to be a great affront and contempt of their authority.” Grantham’s wife then petitioned the council setting forth her husband’s side of the case, and the assembly also remonstrated against the action of the provincial court and requested the council to rehear the whole matter “as the supreame judges of this government.” Governor Blackwell and the council, accordingly, proceeded to New Castle where, on March 13 and 14, 1689, the facts were again reviewed. Both parties were called in and “endeavors used with both of them to agree the matter between themselves,” but in vain. Wollaston declared he had better be without the land than pay £30, 10 s. for it, and on the other hand Grantham refused to take back the negro, contending justly that the defendant had had several years’ use of his purchase while the plaintiff had been out his money. The council thereupon resolved and ordered that the sheriff’s sale to Grantham should be confirmed and that he should be restored to possession, that this should be in full of all demands against Wollaston, debt, damages and charges, and “that this be the finall conclusion & judgement of this board in that case.”

It has been observed that the judicial powers exercised by the council resembled those wielded by the court of star chamber in its purest and best days,[147] but however beneficial such control was in correcting the errors of an amateur judiciary, it was contrary to the constitutional principles then uppermost in English minds after a century-long struggle with absolutism. Accordingly, when the revision of the Frame of Government was under consideration in 1701, the assembly petitioned that no person should be answerable before the governor and council or in any place but an ordinary court of justice.[148] Penn replied that he knew of no person obliged so to answer,[149] but he inserted the following clause in the new charter:--

“That no person or persons shall or may, at any time hereafter, be obliged to answer any complaint, matter or thing whatsoever Relateing to Property before the Govern^r and Council, or in any other place but in the ordinary Courts of Justice, Unless appeals thereunto shall be hereafter by Law appointed.”[150]

The council was also the only court for the trial of serious crimes until 1685, when that jurisdiction was conferred on the provincial court. Important cases of this kind were those of the Proprietor against Pickering for counterfeiting[151] and against Margaret Mattson[152] for witchcraft. The latter case is peculiarly interesting as illustrating the superstition of the times and in its outcome was most creditable to the common sense of Penn and the jury. The accusation against the woman was that she had bewitched the witness’s cattle, but the evidence was mostly hearsay, as the defendant herself cleverly pointed out. The verdict of the jury was: “Guilty of haveing the Comon fame of a Witch, but not Guilty in manner and forme as Shee Stands Indicted.” The defendant was permitted to go, on entering bond for good behavior. The fear of witchcraft did not disappear for some time in Pennsylvania. In 1695, the grand jury of Chester County presented “Robert Roman of Chichester for practising Geomacy according to Hidon and Divining by a Stick.” The accused submitted to the court, was fined five pounds and ordered “never to practice the arts” but behave himself well, which he promised. His books, “Hidon’s Temple of Wisdom,” “Scot’s Discovery of Witchcraft,” and “Cornelius Agrippa’s Necromancy,” were ordered to be brought into court.[153] Another accusation of witchcraft was brought to the attention of the council in 1701 but dismissed as trifling.

The jurisdiction of the council in admiralty matters was a source of much trouble to them.[154] There are numerous cases in the minutes relating to seamen’s wages, pilots’ fees, violations of the navigation laws and complaints against masters for ill treatment of passengers. An example of the last is the case of _March_ v. _Kilner_[155] where the master of the ship was charged with beating the passengers and permitting the crew to drink their beer. Kilner denied everything, “only ye kicking of the maid.” He was reprimanded and advised to “make up the business w^{ch} accordingly he did.” The proprietor was, by his charter, personally charged with the duty of seeing to the enforcement of the English navigation acts and that fines and duties were imposed and collected according to that complicated and, as the colonists thought, burdensome system. The responsibility for the execution of these laws rested upon the council and many were the complaints to the home government of their indifference and laxity in these matters. Indeed Penn was obliged to write to them in 1697 urging the enforcement of the laws and stating that it had been reported to him “that you doe not onlie wink att but Imbrace pirats, shipps and men.”[156] The council indignantly denied this accusation and reported:--

“Wee know of none that has been entertained here, unless Chinton & Lassell, with some others of Avery’s Crew, that happened for a smal time to sojourn in this place, as they did in some of the neighboring governments; but as soon as the magistrats in Philadelphia had received but a Copie of the Lords Justice’s proclamation, gott all that were here apprehended, & would have taken the Care & Charge of securing y^m, untill a Legall Court had been erected for their trial, or an opportunity had presented to send y^m to England; but before that Could be effected, they broke goale & made their escape to New York, where Hues & Crys wer sent after y^m.”[157]

Nevertheless the records of the time are full of references to piracy, and Pennsylvania was reported to have “become ye greatest refuge & Shelter for pirats & Rogues in America.” Undoubtedly the “pirats and rogues” took advantage of the mild temper and humanity of the Quaker justices. In 1698 the town of Lewes was plundered, a woeful account of which is contained in a letter from the local justices to Lieutenant-Governor Markham, and in 1700 it was reported to Penn that the great Captain Kidd was lying off Cape Henlopen and trading with some of the inhabitants.[158]

To deal with such matters, a court of vice admiralty was established, by the Crown, for Pennsylvania and the territories in 1697, of which Colonel Robert Quarry was appointed judge. Quarry was a former governor of South Carolina, a vain and quarrelsome person who disliked the Friends and was bitterly opposed to the proprietary system of government. Almost immediately after his appointment his court came into conflict with the county court of Philadelphia. Certain goods having been seized by the collector of customs under a warrant issued by Colonel Quarry, a judge of the county court at the instance of David Lloyd, a lawyer and member of the council, granted a writ of replevin under which they were taken from the collector. Quarry was exceedingly indignant at this and complained both to the home government and to the governor and council, who made such apologies as they could, handed over the replevin bond to him, and reprimanded the judge, who tendered his resignation.[159] David Lloyd, however, was as obstinate and hot-headed as Quarry himself. At the succeeding county court he brought an action against the marshal for the detaining of the goods. In the words of Quarry--

“Ye marshall being called to defend the sute, hee produced in his owne Justificaon His maties Lres pats, undr ye broad seal of ye High Court of Admiraltie, with the Judges warrt for ye seizure aforesaid, which sd patent having in the frontis piece his most sacred maties effigies stampt, with the sd seal adpendant, the sd David Lloyd, in a most insolent & disloyal manner, taking the sd Commission in his hand & exposing it to ye people, did utter & publish these scurilous & reflecting words following, viz:--what is this? do you think to scare us wt a great box (meaning ye seal in a tin box) and a little Babie; (meaning ye picture or effigies aforesaid); ’tis true, said hee, fine pictures please children; but wee are not to be frightened att such a rate; & many more gross & reflecting expressions on his matie to ye like effect.”[160]

For this and other insults to the court of admiralty, Penn, by order of the board of trade, suspended Lloyd from the council and dismissed him from all public employment and he from that time became a bitter opponent of the proprietor.[161] Nevertheless in spite of stringent laws and a more systematic patrol of the coast by cruisers it was long before pirates ceased to be a menace to commerce. In 1712 Logan wrote, “We have been extremely pestered with pirates who now swarm in America and increase their numbers with every vessel they take.”[162] In 1718 Governor Keith in calling the council’s attention to the losses sustained by the colony through piracy, said that he was informed that Teach had been lurking for some days in and about Philadelphia and that he suspected that many of the pirates who had surrendered under an offer of pardon still kept up a correspondence with their companions abroad. The Teach referred to was the notorious pirate “Blackbeard” who was shortly after killed in an encounter with a vessel fitted out by Virginia for his capture.[163]

It must not be supposed that either the provincial court or the council, in its judicial capacity, was a court of last resort. Under the charter the right was reserved to the king to hear and determine appeals from all judgments given in the province, and until the Revolution there was no court of last resort in Pennsylvania. A reference to this subject is contained in the commission of William and Mary to Governor Fletcher wherein it is provided that if either party to a civil cause is dissatisfied with the judgment of the superior court of the province “they may then appeale unto us in Our privy Council, provided the matter in difference exceed the real value and Sum of three hundred pounds Sterling.”[164] The Act of October 28, 1701,[165] contained provisions for appeals to England but no limit of money value was fixed. While the right to such appeals to England was, in this colony, unquestioned, the difficulty and expense of prosecuting them was such as to render them infrequent. In 1685 an appeal to England was allowed by the provincial court upon entry of security, but from the discussion in the council it would seem that the appellant failed to enter security as required.[166]

In December, 1699, Penn returned to America and began the work of reconstructing the government of the province, which had been restored to him on the express condition that he would put an end to the existing state of confusion.[167] The political and constitutional history of provincial Pennsylvania has been ably and thoroughly treated elsewhere[168] and it is not our purpose to refer to it except as it affected the courts. Suffice it to say that the period of utopian and paternal experiments had closed and that thereafter the proprietor and his successors were engaged in a struggle to maintain a difficult position between two fires; on the one side a democracy, selfish, narrow and individualistic, and on the other a home government, critical and contemptuous, that regarded the colony as little more than a nest of republicans and smugglers. Penn found the assembly determined to strengthen its position and after much fruitless discussion, granted a charter conferring very extended powers on the legislative body and containing little else of constitutional importance.[169] Nothing was said of the judges. The provincial court was then an insignificant factor in the political life of the province and the organization of the courts was left to be regulated by an act of assembly, which will be referred to presently.

With the adoption of the charter of privileges of 1701, the government of the province assumed a form that it was to retain until the Revolution. The power of proposing and enacting laws passed to the assembly and the council ceased to exercise judicial powers. More important still, the council ceased to be an elected body and was thereafter appointed by the proprietor or in his absence by his lieutenant-governor. The effect of this was to throw into the assembly the abler spirits of the opposition and greatly strengthen that body, while the council, chosen from among the friends of the governor or proprietor, was thereafter regarded as representing the proprietary interests rather than those of the populace.

One humble court has not been referred to, that of the coroner. The following is a specimen of a verdict taken in 1699 in Chester County:--

“We whose names are underwritten, summoned and attested by the Coroner to view the body of Sarah Baker, haveing made strict enquiry, and alsoe had what evidence could be found, attested to what they know, and wee can find noe other but that it pleased Almighty God to visit her with death by the force of Thunder; and to this we all unanimously agree.”[170]

Who will say that this is not quite equal in intelligence to the verdict of the average coroner’s jury at the present time?

FOOTNOTES:

[1] _Cromwell_ v. _The Bank_, 2 Wallace, Jr. Reports, 569 (1853), at page 589.

[2] “I have several times solicited to obtain a learned and able man to administer justice and attend to the law business.” Report dated February 20, 1647, to the West India Company. Records of Court at Upland, Introduction, p. 29; V Pennsylvania Archives (2d Series), 766.

[3] VII Pennsylvania Archives (2d Series), 511, 531. This policy seems to have alarmed the home authorities. VII Pennsylvania Archives (2d Series), 555.

[4] Hazard’s Annals of Pennsylvania, 205.

[5] New York Colonial Documents, Vol. XII, 133.

[6] New York Colonial Documents, Vol. XII, 149.

[7] New York Colonial Documents, Vol. XII, 150.

[8] Records of New Amsterdam Court, Vol. I, 358.

[9] O’Callahan’s History of New Netherlands, Vol. I, 220; VII Pennsylvania Archives (2d Series), 521, 528, 534; Hazard’s Annals of Pennsylvania, 221.

[10] Hazard’s Annals of Pennsylvania, 220; V Pennsylvania Archives (2d Series), 459.

[11] Howard’s Matrimonial Institutions, Vol. II, 376.

[12] VII Pennsylvania Archives (2d Series), 634.

[13] Hazard’s Annals of Pennsylvania, 330, 333; VII Pennsylvania Archives (2d Series), 670, 672, 680.

[14] Hazard’s Annals of Pennsylvania, 407; VII Pennsylvania Archives (2d Series), 758; Whorekill is a corruption of Hoorn Kill, Sussex Records (Turner), 2.

[15] VII Pennsylvania Archives (2d Series), 662.

[16] Constitutional law by S. E. Baldwin in Two Centuries Growth of American Law, 11.

[17] V Pennsylvania Archives (2d Series), 494.

[18] V Pennsylvania Archives (2d Series), 544.

[19] Reinch’s Colonial Common Law, reprinted in Select Essays in Anglo-American Legal History, Vol. 1, 367.

[20] V Pennsylvania Archives (2d Series), 501, 507.

[21] Broadhead’s History of New York, Vol. II, 66. Governor Nicolls writes to Clarendon April 7, 1666: “My Lord, I have remitted for confirmation to his Royal Highness the present Lawes of this Colony collected out of the Lawes of the other Colonyes, onely with such alterations as may revive the memory of old England amongst us, ffor Democracy hath taken so deepe a roote in these parts, that ye very name of a Justice of the Peace is an abomination.” New York Historical Society Collections, 1869, p. 75.

[22] Laws of Massachusetts Colony (1672), 61. The Act of 1661 provided that “Vagabond Quakers” should “be stripped naked from the middle upwards, and tyed to a Carts tail, and whipped through the Town, and from thence immediately conveyed to the constable of the next Town towards the borders of our jurisdiction, as their warrant shall direct, and so from constable to constable till they be conveyed through any the outward-most Towns of our jurisdiction.” If the Quaker returned he was to be branded and whipped as before and if he returned again suffer death. The Act of 1662 reduced the whippings to three towns.

[23] Story, J., in _Van Ness_ v. _Packard_, 2 Peter’s Reports (U. S.), 144 (1829); _Commonwealth_ v. _Knowlton_, 2 Massachusetts Reports, 530 (1807); _Bogardus_ v. _Trinity Church_, 4 Paige’s Reports (N. Y.), 197 (1833).

[24] Blackstone’s Commentaries Introduction, page 107, and Notes of American Editors, particularly Hammond; _Johnson_ v. _McIntosh_, 8 Wheaton’s Reports (U. S.), 582 (1827).

[25] _Anonymous_, 2 Peere Williams’s Reports, 74 (1722); _Blankard_ v. _Galdy_, 2 Salkeld’s Reports, 411 (1694); _Anonymous_, 1 Dallas’s Reports, 1 (1754).

[26] Chalmer’s Opinions, 208; Report of the Judges, 3 Binney’s Reports, 595 (1808); Pepper & Lewis’s Digest of Pennsylvania Decisions, Vol. XX, col. 35347; _Commonwealth_ v. _Burrell_, 7 Pennsylvania Reports, 34 (1847).

[27] Sioussat’s English Statutes, reprinted in Select Essays in Anglo-American History, Vol. I, 416.

[28] Charter and Laws of Pennsylvania, 35. Upon such complaints of inconveniences and omissions the laws were several times amended. Charter and Laws of Pennsylvania, 58, 60, 68.

[29] Charter and Laws of Pennsylvania, 3; see also page 51.

[30] Records of Court of New Amsterdam, Vol. I, 226, 230, 237, 268, 299.

[31] Steven’s Essay on Arbitration, 105. The principle of compulsory arbitration in partnership disputes was recognized in France by an edict of Francis II (1560) and an ordinance of Louis XIV (1673), incorporated in the Code Napoleon, L. 1, tit. 3, 2.

[32] Records of the Court of New Castle, 94.

[33] Records of the Court of New Castle, 292.

[34] Charter and Laws of Pennsylvania, 11. The Court of Assizes was abolished in 1684 by Act of Assembly. Scott’s History of Courts of New York, 104.

[35] Laws of Massachusetts Colony (1672), 3; compare Charter and Laws of Pennsylvania, 7.

[36] Charter and Laws of Pennsylvania, 4.

[37] The law was soon amended “that Inn keepers or Ordinary keepers shall not bee obliged to put any perticuler quantity of Mault into their Beere.” Charter and Laws of Pennsylvania, 64. For a petition for a license to keep an ordinary see Records of Court of New Castle, 312.

[38] Charter and Laws of Pennsylvania, 4.

[39] Charter and Laws of Pennsylvania, 11.

[40] Charter and Laws of Pennsylvania, 44, 69.

[41] Charter and Laws of Pennsylvania, 60.

[42] Charter and Laws of Pennsylvania, 22.

[43] “The w^{ch} they will bee at y^e charge of themselves.” VII Pennsylvania Archives (2d Series), 737.

[44] Charter and Laws of Pennsylvania, 33.

[45] The Connecticut Laws of 1650 (Hartford, 1833), 60.

[46] Charter and Laws of Pennsylvania, 60.

[47] Charter and Laws of Pennsylvania, 69.

[48] Records of the Court at Upland, 190; see pages 107 and 181.

[49] Records of the Court of New Castle, 12, 49, 53, 81, 133, 168, 174, 212, 217, 358, 436, 455.

[50] Charter and Laws of Pennsylvania, 100, 117, 154.

[51] Elsewhere in the record “searifacous” (_scire facias_, mistaken for _habere facias possessionem_).

[52] Sussex Records (Turner), 86, 91.

[53] Sussex Records (Turner) 102. In the earlier records there are cases tried before juries of both seven and twelve men.

[54] VII Pennsylvania Archives (2d Series), 722.

[55] VII Pennsylvania Archives (2d Series) 748. The commission of Peter Alricks as “Bayliff” of the corporation of New Castle dated August 24, 1672, will be found in V Pennsylvania Archives (2d Series), 619.

[56] VII Pennsylvania Archives (2d Series), 783.

[57] VII Pennsylvania Archives (2d Series), 787, also 777, 794, 797.

[58] VII Pennsylvania Archives (2d Series), 494; Hazard’s Annals of Pennsylvania, 70.

[59] Hazard’s Annals of Pennsylvania, 219, quoting Albany Records,