Chapter I (1)

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.