Chapter I (3)

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

JOHN WHITE, Speaker.”[141]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FOOTNOTES:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[36] Charter and Laws of Pennsylvania, 4.

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

[38] Charter and Laws of Pennsylvania, 4.

[39] Charter and Laws of Pennsylvania, 11.

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

[41] Charter and Laws of Pennsylvania, 60.

[42] Charter and Laws of Pennsylvania, 22.

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

[44] Charter and Laws of Pennsylvania, 33.

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

[46] Charter and Laws of Pennsylvania, 60.

[47] Charter and Laws of Pennsylvania, 69.

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

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

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

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

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

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

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

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

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

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

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

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

[60] Hazard’s Annals of Pennsylvania, 400, quoting Albany Records,
Court of Assizes, Vol. II, 293-300.

[61] V Pennsylvania Archives (2d Series), 627. A second execution
was issued in 1675 by Governor Andros, V Pennsylvania Archives (2d
Series), 666. In Records of Court of New Castle, page 53, is a suit
by the sheriff against the auctioneer for the amount realized at a
sale under this execution.

[62] VII Pennsylvania Archives (2d Series), 799.

[63] Records of the Court at Upland, 189.

[64] Chester County Records quoted in Ashmead’s History of Delaware
County, 280; see, also, Memoirs Long Island Historical Society, Vol.
I, 189.

[65] _Hart_ v. _Hill_, 1 Wharton’s Reports, 124 (1835); _Tinicum
Fishing Co._ v. _Carter_, 61 Pennsylvania Reports, 21 (1869); 77
Pennsylvania Reports, 310 (1875); 90 Pennsylvania Reports, 85 (1879).

[66] Smith’s History of Delaware County, 31.

[67] VII Pennsylvania Archives (2d Series), 797. In the case of
a decedent, Andros seems to have solved the question of title by
directing that the purchaser should have “a new pattent for his
title.”

[68] III Blackstone’s Commentaries, 419.

[69] _Presbyterian Corporation_ v. _Wallace_, 3 Rawle’s Reports, 108
(1831) at page 141.

[70] New York Colonial Documents, Vol. XII, 160.

[71] Records of the Court of New Castle, 355; see, also, _Jegou_ v.
_Wright_, Upland Records, 140.

[72] V Pennsylvania Archives (2d Series), 692; see in the court below
New Castle Records, 88; Upland Records, 74.

[73] V Pennsylvania Archives (2d Series), 721.

[74] V Pennsylvania Archives (2d Series), 722. Abraham Mann not
satisfied with the judgment of the Court of Assizes attempted to post
on the door of the court at New Castle a paper containing his version
of the proceedings, in which the court was charged with partiality.
A warrant was issued for his arrest but he fled up the river. New
Castle Records, 497, 514.

[75] V Pennsylvania Archives (2d Series), 579, 582, 584; VII
Pennsylvania Archives (2d Series), 723, 725.

[76] VII Pennsylvania Archives (2d Series), 728.

[77] VII Pennsylvania Archives (2d Series), 731.

[78] Records of the Court at Upland, 160.

[79] Sussex Records (Turner), 69.

[80] Upland Court Records, 180. In another case of slander the court
fined the defendant and ordered “that y^e defendant openly shall
declare him selfe a Lyar,” page 176. “In the Norman Custumal it
is written that the man who has falsely called another ‘thief’ or
‘manslayer’ must pay damages, and, holding his nose with his fingers,
must publicly confess himself a liar.” Pollock and Maitland History
English Law, II, 537.

[81] Records of the Court at Upland, 156.

[82] Records of the Court at Upland, 111.

[83] Records of the Court of New Castle, 9.

[84] Records of the Court of New Castle, 341.

[85] Sussex Records (Turner), 57.

[86] Smith’s History of Delaware County.

[87] VII Pennsylvania Archives (2d Series), 777.

[88] Charter and Laws of Pennsylvania, 81.

[89] Eberling’s History of Pennsylvania quoted in Janney’s Life of
Penn and 1 Hazard Pa. Reg. 340.

[90] The justices at New Castle in a letter to the deputy governor at
New York dated November 11, 1681, refer to “Pensilvania.”

[91] Hazard’s Annals of Pennsylvania, 525.

[92] Pennsylvania Historical Magazine, Vol. XXX, 6.

[93] 6 Howell’s State Trials, 951 (1670).

[94] Charter and Laws of Pennsylvania, 92.

[95] For form of promulgation, see Minutes of Council, 2, 2 mo. 1686,
I Colonial Records, 122.

[96] The original Frame of Government as drawn up by Penn was amended
at an assembly held at Philadelphia March 1, 1683, Charter and Laws
of Pennsylvania, 93, 123. Penn’s first plan contained the principle
of initiative and referendum.

[97] Charter and Laws of Pennsylvania, 100.

[98] Charter and Laws of Pennsylvania, 117.

[99] Charter and Laws of Pennsylvania, 128.

[100] Charter and Laws of Pennsylvania, 154; Reinch’s Colonial Common
Law, Essays in Anglo-American Legal History, Vol. I, 397.

[101] Hazard’s Annals of Pennsylvania, 606, quoting Records of Court
of New Castle, Recorder’s Office, B. 9, 407.

[102] Hazard’s Annals of Pennsylvania, 596.

[103] Charter and Laws of Pennsylvania, 233, 237; Pennypacker’s
Colonial Cases, 78, 92; Sussex Records (Turner), 55, 83.

[104] Charter and Laws of Pennsylvania, 3, 176; Upland Court Records,
189.

[105] Lands were made liable for debts “except where there was
issue and then one half of the land,” the principle of set-off was
accepted, the recording of deeds regulated and a mild criminal code
adopted. Charter and Laws of Pennsylvania 109, 118.

[106] I Colonial Records, 34, 7, 9 mo., 1683; see, also, Sussex
Records (Turner) 97, 116, for the election of peacemakers.

[107] II Statutes at Large, 242. The Society of Friends had
regulations of their own for submitting all differences between
members to their monthly meetings. See the publications of the
Genealogical Society of Pennsylvania, Vol. IV, 141. In 1707 James
Logan writes to William Penn: “William Rakestraw has had me before
the meeting for not granting him the lot near the bridge, after
Francis Plumstead had applied to thee for it, and, as he pretends
here, got a grant for it; but the six Friends to whom it was
referred, declared it as their sentiments, upon a full hearing, that
William has no manner of claim to it, either in law or equity, but
that he has had full satisfaction, and shall condemn and retract his
abuse against thee especially, of which shall send copies when past
in the meeting.” Memoirs of Historical Society of Pennsylvania, Vol.
X, 258. The Statute of William III would seem to have been first
suggested by John Locke. Board of Trade Journal, December 18, 1696
(Mss. Historical Society of Pennsylvania, Vol. IX, 288).

[108] Charter and Laws of Pennsylvania, 129.

[109] Minutes of Provincial Council, May 24, 1693, 1 Colonial
Records, 379, 380. Penn under date of 25, 7 mo. 1689, instructed
Deputy Governor Blackwell “to collect y^e Laws that are in Being, and
send them over to me in a sticht book, by y^e ffirst opportunity,
which I have so often and so much in vaine desired.” I Pennsylvania
Archives (4th Series), 106; 1 Colonial Records, 276, 2, 11 mo.
1689-90. It would seem that Penn had contemplated periodic revisions
of the whole code, 1 Colonial Records, 42, 24, 1 mo. 1684; 151-2,
1, 2 mo. 1687; letter of Penn to Council, Pennsylvania Magazine of
History, Vol. 33, 308; Chapter 142 of the Acts of 1683, Charter and
Laws of Pennsylvania, 155.

[110] Journal of the Board of Trade (Mss. Historical Society of
Pennsylvania, Vol. VII, 309), August 3, 1694.

In 1694 the speaker informed the house that the laws passed by the
last assembly, and transmitted to the king and council, were lodged
with the king’s attorney, “who expects twenty guineas for perusing
them, so that the same are not disallowed.” I Votes of Assembly, 82,
25, 3 mo. 1694.

[111] Journal of the Board of Trade, December 31, 1697, Vol. X. 386.

[112] I Colonial Records, 18, 23, 3 mo. 1683. The jurisdiction of
the courts prior to 1700 has been admirably described by the late
Lawrence Lewis, Jr., Esq., in a paper read before the Historical
Society of Pennsylvania March 14, 1881, and reprinted in I
Pennsylvania Bar Association Reports, 353.

[113] Chester County Records, 6th, 8 mo. 1685; 5 Hazard’s
Pennsylvania Register, 156. The case of _Cock_ v. _Rambo_,
Pennypacker’s Colonial Cases, 79, is an illustration of the practice
in a criminal case from the binding over to final judgment.

[114] Pennypacker’s Colonial Cases, 99. In the previous year Thomas
Howell was fined one shilling for breach of a rule. “Hee saucilie
ansered Let the Court gett it how they can.”

[115] Sussex County Records (Turner), 109. Watson was expelled from
the provincial council in 1686, I Colonial Records, 129, 10, 3 mo.
1686, but reinstated, I Colonial Records, 177, 10, 3 mo. 1688.

[116] Sussex Records (Turner), 110. He could have cited year-book
precedents in his favor.

[117] Sussex County Records Mss., quoted I Pennsylvania Bar
Association Reports, 361.

[118] Pennypacker’s Colonial Cases, 116 (1686).

[119] See _Reynolds_ v. _Simpson_, Pennypacker’s Colonial Cases, 77
(1685).

[120] In _Proprietor_ v. _Wilkins_, Pennypacker’s Colonial Cases,
89 (1685-6), a criminal case in Philadelphia, after the defendant
had elected to be tried “by the bench of justices without a jury,”
Hersent, the attorney-general, contended that it was contrary to law
to try a prisoner without a petit jury. His contention was overruled,
but the prisoner was convicted and fined.

[121] Sussex County Records Mss., quoted I Pennsylvania Bar
Association Reports, 364.

[122] I Colonial Records, 122, 2, 2 mo. 1686.

[123] I Colonial Records, 157, 158, 11, 3 mo. 1687. In Philadelphia
the practice was for the justices to sign the order for an execution.
Pennypacker’s Colonial Cases, 108; so, also, in the provincial court,
I Colonial Records, 95, 11, 5 mo. 1685.

[124] I Colonial Records, 124, 9, 2 mo. 1686.

[125] I Colonial Records, 125, 9, 2 mo. 1686, also pages 153, 156,
161.

[126] Charter and Laws of Pennsylvania, 100.

[127] I Colonial Records, 199, 21, 12 mo. 1688-9.

[128] I Colonial Records, 531, August 8, 1699. Part of Patrick
Robinson’s house seems to have been used as a prison. Watson’s Annals
of Philadelphia (1850), Vol. I, 356.

[129] Charter and Laws of Pennsylvania, 131.

[130] Charter and Laws of Pennsylvania, 168.

[131] Charter and Laws of Pennsylvania, 178, 184, 225; I Colonial
Records, 205, 26, 12 mo. 1688-9.

[132] I Colonial Records, 68, 12, 7 mo. 1684.

[133] I Colonial Records, 290, 10, 2 mo. 1690.

[134] I Colonial Records, 157, 11, 3 mo. 1687.

[135] I Colonial Records, 304, 21, 9 mo. 1690.

[136] I Colonial Records, 202, 25, 12 mo. 1688-9.

[137] See Votes of the Assembly, Vol. I, 32.

[138] I Colonial Records, 55, 17, 3 mo. 1684.

[139] I Colonial Records, 83, 15, 3 mo. 1685; Votes of the Assembly,
Vol. I, 35; Charter and Laws of Pennsylvania, 499.

[140] Those who have had occasion to read his handwriting will
testify to the truth of this statement.

[141] Janney’s Life of Penn, 278.

[142] I Colonial Records, 4, 15, 1 mo. 1683.

[143] I Colonial Records, 52, 13, 3 mo. 1684.

[144] I Colonial Records, 65, 14, 6 mo. 1684.

[145] I Colonial Records, 20, 20, 4 mo. 1683.

[146] I Colonial Records, 161, 18, 3 mo. 1687, and see pages 172,
193, 210, 215-18.

[147] McCall’s address before the Law Academy (1838); I Pennsylvania
Bar Association Reports, 386.

[148] II Colonial Records, 34, 20, 7 mo. 1701.

[149] II Colonial Records, 38, 29, 7 mo. 1701.

[150] II Colonial Records, 56, 28, 8 mo. 1701.

[151] Pennypacker’s Colonial Cases, 32; I Colonial Records, 29, 24, 8
mo. 1683, and page 32.

[152] Pennypacker’s Colonial Cases, 35; I Colonial Records, 40, 27,
12 mo. 1683.

[153] Hazard’s Pennsylvania Register, Vol. V, 159. In Sussex County
Edward Southrin was accused of having conversed with the devil.
Sussex County Records (Turner), 36.

[154] I Colonial Records, 8, 21, 1 mo. 1683, and pages 35, 69.

[155] Pennypacker’s Colonial Cases, 29; I Colonial Records, 23, 7, 7
mo. 1683.

[156] I Colonial Records, 494, 9 February, 1697-8; Board of Trade
Journals, Mss. Historical Society Pennsylvania, Vol. X, 268, 287, 333.

[157] I Colonial Records, 495, 10 February, 1697-8.

[158] I Colonial Records, 532, August 9, 1699 and see page 549;
Sussex Records (Turner), 42. August 17, 1696, Mr. Randolph
delivered to the Commissioners of Trade a paper relating to the ill
execution of the Acts of Parliament and a list of names of Pirates
and Scotchmen inhabiting and trading in Pennsylvania; Memoirs of
Historical Society of Pennsylvania, Vol. IV, part 2, 260.

[159] I Colonial Records, 535, December 21, 1699, and see page 545.

[160] I Colonial Records, 576, May 14, 1700.

[161] Memoirs Historical Society of Pennsylvania, Vol. IV, part 2,
301.

[162] Watson’s Annals of Philadelphia (1850), Vol. II, 218; III
Colonial Records, 43, August 11, 1718.

[163] Blackbeard’s head was struck off and brought back in triumph
on the end of the bowsprit. Afterwards his skull was made into the
bottom of a very large punch bowl long used at the Raleigh Tavern at
Williamsburg, Va.; Watson’s Annals of Philadelphia (1850), Vol. II,
221.

[164] I Colonial Records, 313, 21, 9 mo. 1690.

[165] II Statutes at Large, 148, § 5.

[166] I Colonial Records, 95, 11, 5 mo. 1685, and see page 98.

[167] Board of Trade Journals, July 13, 1694; Mss. Historical Society
of Pennsylvania, Vol. VII, 300.

[168] Shepherd’s Proprietary Government in Pennsylvania (Columbia
University Studies in History, 1896).

[169] II Colonial Records, 54, 28, 8 mo. 1701; Proceedings of the
Constitutional Conventions of Pennsylvania of 1776 and 1790, 31.

[170] Chester County Records, 6, 5 mo. 1699, reprinted in Hazard’s
Pennsylvania Register, Vol. V, 156.