Chapter I (2)

“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.