USA > Pennsylvania > Annals of Pennsylvania, from the discovery of the Delaware > Part 45
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Three persons were appointed as commissioners, by Byllinge August 28. Commission- ers ap- pointed in and his trustees, and Eldridge and Warner, with authority to act, under instructions, for their constituents, to endeavour to remove the difficulties with Fenwick, and have the lands di- New Jersey. vided as intended by agreement between Fenwick and Byl-
1 Upland Records, p. 72.
2 N. Y. Records, in Breviat, p. 44. Watson, vol. i. p. 439.
3 N. Y. Records, in Breviat, p. 45.
4 Mickle, p. 30. Mulford, pp. 170-171.
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1676.
linge, if not to let it be known that Fenwick had not power of the persons or estates of any, nor authority to act without consent of Eldridge and Warner. The commissioners were authorized to purchase and take up ninety parts for use of Penn, Lawrie, and Lucas, and ten for Eldridge and Warner. Fenwick continued to assert his rights as proprietor, in re- gard to property and government, the commissioners there- fore published the facts, but their authority was soon super- seded by the proprietary government.1
The governor and council of New York, on petitions of August 5. Laurence Caroli, of Delaware, concerning a mare, and another Appeal from for selling strong liquors to Indians, in which Carolus was New Castle to New cast at the court of New Castle, and appealed to New York York. for relief, order that the petitions, proceedings, judgment of court, and attestations delivered in at New York, be sent to the court at New Castle, who are to return them back, with their answer, to the governor, and in the mean time, execu- tion be stopped.
On a complaint of Peter Gronendyke, of Whorekill, of Another wrong done him by the court there, in a suit for some tobacco, where complainant was cast, and the president of the court, and six of seven of the jury acknowledged their proceedings erroneous, and desired their verdict might be annulled, and yet the president gave out afterwards execution against com- plainant ; it is ordered, on complainant's giving security, that the president of the court, some of the jury, and the prose- cutor, appear at next general court of assize at New York.
Captain Cantwell is ordered to endeavour to make up a August 7. contest between Maryland and the Susquehanna Indians, and acquaint the governor of Maryland thereof.2
The governor grants a pass at New York to a Frenchman, by name John Turcoat, and four or five of his countrymen, August 20. to proceed " to Delaware River or Bay, and the south parts Pass to a thereabouts, being intended to hunt that way and return again."3
Captain Cantwell to be " checked" for raising so rash an August 21. alarm at Delaware, but nevertheless to inquire the meaning of the Susquehannas coming in.4
John Collier is commissioned by Governor Andross " to be commander in Delaware Bay and River ; you are therefore to Sept. 23.
1 Mickle, p. 30. Mulford, pp. 170-171.
2 N. Y. Records, in Breviat, p. 45. 54
3 Ibid. 4 Ibid.
2 N 2
from Whore. kill; jury and court convinced of error.
War between Marylandand Susquehan- na Indians.
Frenchman.
Susquehan- na Indians create alarm.
DEPUTY GOVERNOR EDMUND ANDROSS.
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426
CHARLES II .- JAMES, DUKE OF YORK.
1676.
Commission to John Col- lier, as com- mander and receiver of quit-rents and of cus- toms.
take care that the militia in the several places be well armed, duly exercised, and kept in good order and discipline, and the officers and soldiers thereof are required to obey you as their commander, and yourself to observe such orders and directions as you shall from time to time receive from me or other your superior officers, according to the rules and dis- cipline of war, and the trust reposed in you."1
Captain Collier is also appointed sub-collector of customs at New Castle, and receiver of the quit-rents or other re- venues there, and on the river and bay.
Oct. 3.
Justices of Delaware Ri- ver and Bay.
Peter Cock, Peter Rambo, Israel Helm, Laes Andriesson, Wolle Swain, and Otto Earnest Cock, are appointed justices of the peace in the jurisdiction of Delaware River and de- pendencies ; any three or more to be a court of judicature for one year.
Justices of New Castle.
John Moll, Henry Ward, William Tom, Foppe Outhout, John Paul Jaquet, and Garrel Otto, justices of the peace for New Castle and dependencies ; any three or more to be a court of judicature.
Clerk of court. Oath admi- nistered.
Ephraim Herman, clerk of the courts of New Castle and Upland; and on 10th October, the oath of office being ad- ministered, by dedimus, by Captains Cantwell and Collier, to the justices of New Castle, they are established in their places.2
Collier to go to Mary- land. Indians. Instructions.
Governor Andross directs Captain John Collier " to go to Maryland, either from Whorekill or Delaware, about making up a difference which Maryland had with the Susquehanna Indians ; then return to New Castle." He is to prevent all interlopers or irregular traders, contrary to law and the pri- vileges and inhabitants of New York and New Castle ; keep due accounts of customs and all other public revenues ; ren- der accounts every three months.3
Governor Andross, by letter, advises governor of Maryland " to a friendship with the Susquehanna Indians."
Sept. 25.
Captain Cantwell is fined 200 guilders, to use of the king, on complaint of Captain Hans Juriansen, for abusing and striking him in his own house, and " both parties to lay by all animosities for the future."
The following instructions were given by Governor Andross, respecting courts and other matters on Delaware :
1 New Castle Records, p. 5. Reg. Penns. vol. iv. p. 56.
2 Ibid.
3 Ibid.
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DEPUTY GOVERNOR EDMUND ANDROSS.
" Whereas the last year, at my being at Delaware, upon application of the inhabitants, representing that my prede- cessor, Governor Lovelace, had begun to make a regulation for the due administration of justice according to the laws of Sept. 25. this government, pursuant to which I did appoint some ma- Governor gistrates, and make some rules for their proceedings, the year ensuing, or till further order, in which having maturely de- liberated, by the advice of my council, made some alterations in form following :
427
1676.
Andross makes some alterations respecting courts, &c.
New York laws to be in force here, with certain exceptions.
" 2d. That there be three courts held in the several parts Three courts of the river and bay, as formerly, viz. one in New Castle, one on the above at Upland, another below at Whorekill. river.
"3d. That the courts consist of justices of the peace, Courts to whereof three to make a 'coram,' and to have power of a court of sessions, and decide all matters under £20, without appeal, in which court the eldest justice to preside, unless otherwise agreed amongst themselves. Above £20, and for crime, extending to life, limb, and banishment, to admit of appeal to the court of assizes.
consist of justices. Quorum. Powers. Under £20 no appeal.
" 4th. That all small matters under the value of £5, may No jury be determined by the court without a jury, unless desired by under £5. the parties, as also matters of equity.
" 5th. That the court for New Castle be held once a month, Time of to begin the first Tuesday in each month; and the court for holding courts.
Upland and the Whorekill quarterly, and begin the second Tuesday of the month, or oftener if occasion.
"6th. That all necessary by-laws or orders (not repugnant Orders of to the laws of the governor) made by said courts, be of force and binding for the space of one whole year, in the several places where made, they giving an account thereof to the governor by the first opportunity, and that no fines be made or imposed but by order of court.
"7th. That the several courts have power to regulate the
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"1st. That the books of laws established by his royal highness, and practised in New York and Long Island, be likewise in force and practice in this river and precincts, ex- cept the constable's courts, county rates, and some other things peculiar to Long Island and the militia, as now ordered to remain in the king, but that a constable be yearly, in each Constables. place, chosen for the preservation of his majesty's peace, with all other powers as directed by law.
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CHARLES II .- JAMES, DUKE OF YORK.
1676.
court and officers' fees, not to exceed the rates in the book of laws, nor to be under half the value therein expressed.
High sheriff and two un- der sheriffs.
"8th. That there be a high sheriff for the town of New Castle, river and bay, and that the said high sheriff have power to make an under-sheriff or marshal, being a fit person, and for whom he will be responsible, to be approved by thee court ; but the sheriff, as in England, and according to that now practised on Long Island, to act as a principal officer for the execution of the laws, but not as a justice of peace or magistrate.
Books for record.
" 9th. That there be fitting books provided for the records, in which all judicial proceedings to be duly and fairly en -. tered, as also publicly orders from the governor, and the names of the magistrates and officers authorized, with the time of their admission ; the said records to be kept in Eng- lish, to which all persons concerned may have recourse at due and seasonable times.
Clerk.
" 10th. That a fit person for clark, when vacant, be recom- mended by each court to the governor for his approbation, in whose hands the said records are to be kept.
be in name of his ma- jesty.
"11th. That all writs, warrants, and proceedings at law Writs, &c. to shall be in his majesty's name, it having been practised in the government ever since the first writing of the law book, and it being his royal highness's special pleasure and order.
No rates or levies with- out gover- nor's appro- bation.
" 12th. That no rates be imposed, or levies of money made within the town of New Castle, river or bay, by any, under what denomination soever, without the approbation of the governor, unless upon extraordinary occasions, in case of ne- cessity, of which the governor to have present notice and account sent him. That upon the levy of any rates, there be a fair account kept both of the receipts and disbursements, which account to be given in to the courts, there to be passed, and then sent to the governor, for his allowance, until which not to be a sufficient discharge.
Arbitrations recommend- ed in small matters.
" Whereas, by this regulation, there are no overseers ap- pointed, no constables' courts, but all matters to be deter- mined by the justices, I do therefore recommend the compo- sure, or referring to arbitration, of as many matters, particularly under the value of £5, as may properly be de- termined that way, provided it may be by consent of parties.
" That any person desiring land make application to the court in whose bounds it is, who are required to sit once a
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DEPUTY GOVERNOR EDMUND ANDROSS.
1676. month, or oftener, if there be occasion, to give order therein, certify to the governor for any land not taken up and im- proved, fit proportions, not exceeding 50 acres per head, unless upon extraordinary occasions, where they see good Course to be cause for it, which certificate to be a sufficient authority or pursued when lands are wanted. warrant for the surveyor to survey the same, and with the surveyor's return to be sent to New York for the governor's approbation. That in the certificates be specified how much upland and meadow, with due regard that each may have a proportionable share, according to the place they are in, landward. Given, &c., September 25, 1676, at New York. " E. ANDROSS."1
A special court does not consider a verbal commitment by Sept. 26. Captain Billop lawful, he having no commission.
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About this time, it would thus appear, that the courts were more completely organized, although, as has before been stated, courts of some kind had been held as early as 1675, probably earlier, as it is said above, that " Lovelace had be- gun to make regulations for the due administration of justice." It is to be regretted that their early minutes are not at pre- sent to be found. The only records that we have seen are those of New Castle, commencing October 10, 1676, and of Upland, November 14, 1676. As allusions are made in the " Breviat" to those of Kent and Sussex, they were no doubt in existence in 1735, at the trial between Penn and Lord Baltimore. As the courts took cognisance of all matters re- lating as well to church as state, they furnish many facts which would otherwise have been lost, and of which, for a few years, we shall avail ourselves. It appears they exercised jurisdiction over both sides of the river ; from them appeals were made to the courts at New York, and occasionally from these to those on the Delaware.
A special warrant against Major Fenwick is directed, by Sept. 25. the governor, to Edmund Cantwell, sheriff, reciting that Major Complaints Fenwick " pretends to be proprietor of the east side of Del- aware, and has acted accordingly, granting lands, dispossess- To be sum- ing persons, selling their lands, arrogating power of judicature, New York. moned to and giving out licenses for distilling, contrary to the order settled in the river, whereby he has wronged some persons from other parts, and distracts the minds of the inhabitants
' Upland Court Records ; held by authority of Charles II., commencing Nov. 14, 1676, (in possession of Albanus Logan, Esq.)
against Ma- jor Fenwick.
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CHARLES II .- JAMES, DUKE OF YORK.
1676. throughout the whole river and bay, not having any lawful power and authority." Sheriff is to repair to the other side, inquire into the truth, and forewarn the people of their dan- ger ; if Fenwick has thus acted, summon him, in his majesty's name, to appear and answer before the governor and council at New York, at his utmost peril. In case of opposition, all his majesty's subjects are to aid.
October 26.
Helmanus Wiltbank, Edward Southerne, Alexander Moles- tyn, John King, and Paul Mush, are commissioned as justices of the peace, at Whorekill and dependencies, (three to be a court,) for one year or further order. John Avery is ap- pointed captain of a foot company, and John Roach, ensign.1
Nov. 8.
Petition of the magis- trates of New Castle to governor, relating to several mat- ters. Vessels going up and down, &c.
The justices of New Castle refer various matters to the governor's consideration, and petition for a remedy. They ask him to remove from the law book all that does not relate to this river ; they think it will be burdensome to the militia to watch ; they ask for a lesser seal for their offices, as it is inconvenient to send papers and instruments to neighbouring colonies ; want a prison for debtors, fugitives and malefactors, who often escape; propose 40 guilders for wolf scalps. Lastly, they " are constrained to ask, that in case of sloops and vessels be henceforth permitted to go up and down the river, trading with the people, and getting all the ready and best pay, (as they now do2) that this place will in a short time be deserted, and come to nothing, which then will make this river as bad as Maryland, for the merchants and traders here duly supply the people their wants in the summer, trusting to be paid out of the crop they are putting by. The said sloops and vessels little regarding the 3 per cent. customs, inconsi- derable, as now the ketch and sloop are both gone up, (taking the opportunity of Captain Collier, going to him and C. Clark, whom he had deputed in his absence;) went up the river without clearing or paying any custom at Whorekill, which quite disheartens the people and new-comers here ; wherefore we, in all humility, entreat your honour, (consider- ing necessity first,) to prohibit the going of vessels whatsoever up the river, up and down the river and bay, on said account, as it was in the time of your honour's predecessors, and that likewise this town, as being the only medium and best place, may be the only place of loading and unloading, and keeping of stores for all merchandise; and that your honour will please
1 New Castle Records and Breviat.
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ness for the courts.
DEPUTY GOVERNOR EDMUND ANDROSS.
to order a public weigh-house and storehouse to be erected, 1676. which will very much encourage tradesmen and merchants to -
resort hither ; this place will not only be populated, but also the whole river will thrive by it."1
The justices ask the governor to confirm the order of the Nov. 14. last court about wolf scalps, and inquire how the court charges Little busi- are to be made when the parties are not to be found; " con- sidering that we live at great distances from said court place, and the amercements, (by reason of the small number of ac- tions,) amounting to little, and that your honour will empower us, so that the old debts of the court, together with the debts 1 since your government, may be satisfied."
Israel Helm, who has often been employed by Captain Cantwell as interpreter with the Indians, applies for recom- pense. Also, Neills Laerson, " for expenses of keeping court, and justices' diet."
" Several letters being read concerning Major John Fen- Nov. 30. wick's actings in New Jersey, on east side of Delaware, by Major Fen- his granting patents, refusing to obey the governor's special wick to be seized. warrants, &c., resolved, it importing the king's service, and good and quiet of these parts and inhabitants, that he be sent for with the first convenience, and if there be occasion, that the commander and magistrates at Delaware do use force for seizing and sending him hither."
" Upon complaint of John Paul Jacquet, that he is dis- possessed by Major Fenwick, ordered, that said John Paul Jacquet be repossessed of what land he was in possession of on the east side of Delaware River."
" The court to take order about it, and if occasion, the commander to assist them."
"There being no lawful authority for Major John Fen- wick's giving them patents, it is not thought fit to return them, but the persons to have their remedy at law."2
The governor writes to the commander and court at Dela- Dec. 3. ware, in answer to theirs of the 8th, as follows :
" I have received your letters of the 8th November, by the Major Fon- express sent hither, with several other papers and writings wick to ho taken by relating unto Major John Fenwick's actings on the east side forme, and of Delaware River, by his granting patents for land, and re- fusing to obey my special warrant, &c. ; as also touching your more particular affairs ; whereupon, having taken advice
1 New Castle Records. 2 Albany Records; Minutes of Council, vol. i.
sent to New York. Has no right to issue patents for land.
432
CHARLES II .- JAMES, DUKE OF YORK.
1676. of my council, I have thought fit, (it importing his majesty's service, and the good and quiet of those parts and inhabit- ants,) that Major John Fenwick be sent hither with the first convenience, and if there be occasion, that the commander, and you, the magistrates, do use force for seizing upon and sending him; and there being no lawful authority for his giving forth patents for land, those sent hither are not to be returned back for the present, but the persons who have paid their moneys for them may have their remedy at law against the person that gave them, before he depart out of custody.
Jean Paul Jaquet to be repossess- ed of lands.
" As for Jean Paul Jaquet, who hath been dispossessed of some land on the east side of Delaware River, of which he was in possession at the last coming in of the English go- vernment, he is to be repossessed, and you are to take order about it, and if occasion, the commander is to assist therein.
Watch at New Castle.
"The inhabitants of the town of New Castle, (and within a mile thereof,) are to keep watch, but none to be obliged to come to it further ; as to the proposals about soldiers to be sent for it, the same shall be taken into consideration.
Seal. Ma- gistrates to use their own.
" A public seal shall be provided against next year ; in the mean time, magistrates to use their own seals, 'as is usual for justices of the peace everywhere.'
" You may cause a prison to be built in the fort, and the sheriff is to be responsible for prisoners.
Wolf scalps. " Order for killing wolves is confirmed.
"Fines for the current year, and for two years last past, (since the English government,) are to go to be applied to public uses, sheriff to receive five shillings in the pound for collecting and levying ; extraordinary charges to be allowed by court. A levy authorized of 1d. per & on every man's estate, towards paying public expenses. Care to be taken that no vessels go above New Castle to trade. A weigh- house allowed at New Castle, and an officer to be appointed and sworn. The Susquehannas to be treated in a friendly way, if they apply."1
Dec. 18. Proceedings against Fenwick.
"At a meeting of the commander and justices, held for town of New Castle, Friday, 8th December, 1676, present, John Collier, commander, John Moll, William Tom, Foppe Outhout, and John Paul Jaquet, justices-Captain John Col- lier, by his speech, declared to the court, that in pursuance of his honour the governor's orders to him, he had, on the 1 New Castle Records.
433
1676.
Dec. 18. Proceedings against Fenwick, continued.
DEPUTY GOVERNOR EDMUND ANDROSS.
4th past, sent a friendly and civil letter, with the under- sheriff, to Major John Fenwick, showing that he had received orders from his said honour, and desired him to come to New Castle, upon which the said Fenwick sent a letter in answer, refusing to come, &c., as by the said letter, produced in court, more plainly did appear ; further declaring that he, the said Captain Collier, had been, in his own person, on the 7th past, with the said Fenwick at his house, where coming, none of his company were suffered to come in the house but himself, when he delivered to the said Fenwick in substance as fol- loweth :
" That he the said Collier had not questioned, but accord- ing to his letter sent the 4th past, but that he would have come over with the under-sheriff, or at leastwise have sent a more satisfactory answer, but since he the said Fenwick still stood out, by which he had given him the trouble to come over in person, did therefore give him to understand that it was his honour the governor's order to have him the said Fenwick to come and appear before him and council at New York, which long before he had understood by his said ho- nour's special warrant sent to him, and therefore desired him now, in all civility, without further trouble, to obey the said orders, there being now a fit opportunity for his going.
" Upon which Major Fenwick replied, that he did not know that the governor of New York had any thing to do with him, and that he would obey nothing but what should come from his majesty the king, or his highness the Duke of York, and was resolved not to leave his house without he was car- ried away, either dead or alive, and if any one durst come to take him, it was at their peril, and he would do their busi- ness ; and after the said Captain Collier went out, suffered him not to come in again, but keeping his door double-bolted, spoke to him out of a small scuttle-hole at the end of the house.
" Captain Collier declaring further to the court that he, seeing that the said Major Fenwick was, and continued so refractory, and stood upon his defence, and further consider- ing that the magistrates, by his honour's order, were equally in the business concerned with him, thought best to take their advice before he would proceed to rigour, which was now the occasion of calling this court, &c.
" The court having considered and maturely deliberated
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CHARLES II .- JAMES, DUKE OF YORK.
Proceedings against Fenwick, continued.
1676. upon the orders from his honour the governor to them, and also the orders from his honour the governor to Captain John Collier in particular, do judge it necessary, since the said Fenwick, in contempt of his honour's orders, stands out upon his peril, that force be used, and he the said Fenwick taken and sent to York to his honour, with the first sloop; for the doing whereof they are willing to give forth their war- rants, &c."
" The warrant given forth by the commander and justices for the apprehending of Major Fenwick :
"By the commander and court at New Castle, in Dela- Dec. 18. Warrant for his forcible arrest, and guaranty to the men in case of his ware-These are, in his majesty's name, to empower and appoint you, Lieutenant Johannes De Haes, Mr. Michael Baron, and Mr. George More, under-sheriff of this place, to levy twelve soldiers out of any of the militia of this river, and with them to repair to the house of Major John Fenwick, being killed. and him the said Fenwick to bring by force before us, to this town of New Castle, upon Delaware, giving and hereby granting unto you, and every of you, full power and authority to pull down, break, burn, or destroy the said house, for the apprehending of him the said Fenwick, and further to act and use all or any forcible act or acts, as the expediency of the time shall offer to your judgments, withal giving and hereby granting to you, and every of you, and every re- spective soldier under you, full power, in case of resistance, or presenting of any gun or guns to your detriment, to fire upon him the said Fenwick, or any others so presenting, or intending to shoot; and if, in case he the said Fenwick, or any others resisting, shall happen to be killed, you and every of you shall be hereby absolutely and freely discharged, and held innocent, as being done in pursuance of the duke's lieu- tenant's order, and of his by his honour's order recommended. Given under our hands, at New Castle, in Delaware, this 8th day of December, 1676. Signed,
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