History of Delaware County, Pennsylvania, Part 56

Author: Ashmead, Henry Graham, 1838-1920
Publication date: 1884
Publisher: Philadelphia, Pa. : L.H. Everts
Number of Pages: 1150

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Beyond the foregoing brief mention of the admin- istration of justice on the Delaware under Swedish rule, I have been unable to find any further reference thereto. Truly is it, as a recent accomplished writer remarks, " A mere trace, fitful at best, and rendered more faint by the shadows of time."7 The Dutch records, unfortunately, are hardly more explicit than the Swedish on the subject of legal tribunals among the early settlers on the Delaware before the conquest of the territory hy the English. Jean Paul Jacquet, who was appointed vice-director Nov. 29, 1655, was instructed to "administer law and justice to citizens as well as soldiers," while Andrew Hudde, the sec-

2 Penna. Archives, 2d series, vol. v. p. 773.

3 Record of Upland Court, p. 30.

+ Penna, Mag. of Hist., vol. vii. p. 273.

6 Ib., p. 278.

6 Instructions to Governor Printz, Penna. Archives, 2d series, vol. v.

p. 773.

7 Dake's Book of Laws, Historical Notes of Benjamin M. Nead, p. 427.

1 History of Delaware County, p. 359.

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HISTORY OF DELAWARE COUNTY, PENNSYLVANIA.

retary, was "to book all matters . . . complaints, defaults, arrests, with the reasons thereof, also all judgments, sentences, and decisions," while the vice- director was enjoined to "strictly observe and have observed the placards and ordinances made and pub- lished heretofore against the sale of brandy or strong drinks to the savages, regarding the robbing of gar- dens or plantations, the running about the country, drinking on the Sabbath, and profanation of the same." The court where breaches of these ordinances were to be tried was a meeting of Council, which was to be called only by the order of the vice-director, and all matters pending before that body were to be decided by " a majority of votes," and in case of a tie the vice-director was "to have a double vote." In cases of military or concerning the company's prop- erty, the vice-director, beside the members of Coun- cil, was instructed to add two sergeants, who were to sit as part of the court; but where the matter was purely a civil one, " between freemen and servants of the company, two suitable freemen were to be substi- tuted instead of the sergeants.">

This tribunal seems to have exercised legislative as well as judicial powers, for it is recorded that on Feb. 13, 1656, all persons at New Castle were required to inclose their lots before the 15th of March following, and, failing to do so, were punishable by a fine of six guilders. The owners of goats were also instructed to provide keepers for these animals. On May 22d Council directed that the swine at that place should be yoked within twenty-four hours, under the penalty of having the creatures killed by the soldiers.2 At the February court, before mentioned, Thomas Broen, who was charged with having beaten a servant so that he was rendered unable to labor, was ordered to pro- vide for the latter until he was restored to health. The defendant, for having spoken disrespectfully of Vice-Director Jacquet, possibly because of the sen- tence, was placed under arrest. In July a Swede and Finn, charged with violating the law respecting the sale of liquor to Indians, in extenuation of their act pleaded ignorance of the law, which seems to have been regarded as a valid excuse, for they were dis- charged.

Early in 1657, Jacob Alrichs was appointed vice- director of the city's colony on the Delaware (part of the Delaware territory, for Christiana River to Bom- bay Hook had been transferred to the city of Amster- dam by the Dutch West India Company for moneys advanced), and in the latter part of April he arrived at New Castle. That there then was a court held on the river is established from the prayer of the Swedish inhabitants that a court-messenger and provost might be appointed for them. Sheriff Van Dyck proposed "one Jurgen, the Fin on the Crooked Kil," for the office, which suggestion received, June 12, 1657, the

approval of Governor Stuyvesant. From this, how- ever, the inference naturally is that the court was held at New Castle or Christiana, and was lacking in every essential the received ideas of a judicial tri- bunal, inasmuch that Alrichs, on March 30, 1658, in a letter to Stuyvesant, says, "I found the government here to consist and be attended to by the Vice-Director or Commander, sitting over military delinquents with military persons, and over citizens with citizens, as ordered by your Honor, to whom I, upon my arrival, represented and showed the charges which were to be taken in consideration afterwards."3 From the fore- going remark, Mr. Nead maintains that a regular set of laws or ordinances had been promulgated for the general government of the Delaware River set- tlement shortly after the conquest by the Dutch, and that Alrichs' instructions clearly contemplated the

continuance and enforcement of these ordinances,4 a conclusion which is doubtless correct. Certain it is that an attorney practiced before the court, for March 30, 1658, Alrichs writes, "I have also to pay the at- torney, Schelluyn, for salary earned by him in the suit against Dirck Cornelissen Heunich, skipper of the ship ' Prins Maurits,' but it seems that the ex- penses ought to be paid out of the deposited sum, the proceeds of the sale of the goods, unless your Honor understood that we should not consider this."5 This is the first recorded appearance of an attorney in our annals. On Oct. 10, 1658, Alrichs informed the au- thorities at Amsterdam that he had "received the police and law books which were sent out, consisting of 2 parts and a duplicate of each, and we shall make use of them ; but (not) the by-laws of the city, at the end of which the customs of Antwerp are annexed and printed," whereof mention is frequently made in the dispatch.6

On May 8, 1658, the Swedish magistrates at Tinicum presented a petition to Governor Stuyvesant, who was then visiting the settlements on the Delaware, re- questing that they might be properly instructed re- specting the discharge of their duties, and that a court messenger or officer should be appointed to serve summons, make arrests, and enforce the sen- tences of the courts." The meagre information we have seems to indicate that the Holland conquerors deemed it wise policy to continue the old Swedish magistrates in office, the latter nationality being largely that of the majority of the inhabitants; obe- dience would be more easily rendered to their former rulers than to new men, with whose language and person the people were generally unacquainted. The sitting of the court was at Fort Altena, for the com- pany's colony, which included all this locality, and they were held " three or four times during the year

1 Penua. Archives, 2d series, vol. vii. pp. 490-491.

2 Acrelius, " New Sweden," p. 92.

3 Penna, Archives. 2d series, vol. vii. p. 526.

4 Duke's Book of Laws, p. 435.

5 Penna. Archives, 2d series, vol. vii. p. 528.

6 Ib., vol. v. p. 304.

7 Ih., vol. vii. p. 531.

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THE COURT, BENCH, AND BAR OF DELAWARE COUNTY.

according to demand or circumstances." The letter wherein the foregoing facts appear was written by William Beekman, vice-director, to Stuyvesant, April 28, 1660,1 and is particularly interesting to the annal- ist, for it furnishes a more comprehensive insight as to the manner in which judicial affairs were con- ducted, together with the scope of inquiry and the jurisdiction of the courts under the Dutch ascending on the Delaware, than any other paper of that time. From it we learn that Peter Rambo, a Swede, and one of the commissioners, had already grown weary of public cares and desired to resign the office; that at the court held the 19th of August in the preceding year twelve or fifteen of the " Swedish or Finnish Na- tion," who had been summoned to appear by Jager, the court messenger, failed to attend the session, and that thereupon Beekman made a rule that hereafter for any similar default " committed wantonly and in- tentionally, without the hindrance of sickness or God's weather and wind," the party so offending should be fined ten guilders, the reason for the rule being "that no one should be delayed in his claim" because of the voluntary absence of those persons who should be in attendance. It was difficult, however, to compel the rude settlers to recognize the law's power to correct wrong or the province of the court to med- dle in personal affairs. In the same letter Beekman relates that Mr. Learsen, the Swedish priest at Up- land, having been violently assaulted and " fearfully beaten" by Peter Mayer, complained to him, and that he had ordered both parties to the quarrel to be sum- moned, but before the day fixed for the hearing "the affair was settled between them, thus asserting that the judge had nothing to say about it." Peter Mayer, who it seemed was inclined to indulge in assaults and batteries, paid his fine for non-attendance. The judges, then as now, did not always agree in their conclusion as to the law or the jurisdiction of the court. Beekman complained that Oele Stille, one of the Swedish magistrates, had " made stroug opposition to him" at the last court-day, because the former had suspected Stille of permitting the Swedish priest to perform a marriage in his presence without proclama- tion having been first made in church, and against the will of the parents of the contracting parties. Beekman, as president judge, imposed on the clergy- man a fine of fifty guilders, to which decision Stille dissented, stating that the court had no jurisdiction to correct such affairs ; that it was a matter for the Consistory of Sweden alone to inquire into. The priest seemed to be governed by the dissenting opin- ion, for when summoned to appear he informed the officer that he had nothing to do with the court of Christiana, and did not attend. Proceedings in di- vorce, it would appear, were not within the province of the tribunal, for the letter states that there was then " among the Fins at Opland" a married couple

" who live very wretchedly together, and the wife is often fearfully beaten, and daily driven out of the house like a dog," which condition of matrimonial infelicity had continued for several years. The trouble was so generally known that at length a Swedish priest at Upland, the neighbors, the sheriff, and the commissioners, at the request of the man and wife, applied to Vice-Director Beekman, desiring that they might be divorced, and the few animals and personal property they owned be divided between them. The whole matter was referred to Stuyvesant, but whether the divorce was ever granted does not appear in any record now published. Dr. Smith was of the opinion that the parties to this unhappy marriage resided near Marcus Hook, the territory in that neighborhood then being known as Finland.

The matters thus set forth from Beekman's letters peculiarly relate to our history, and are exceedingly interesting, since all the persons mentioned resided within the limits of the present county of Delaware, and because it is conclusive of the fact that at that time no court existed within the territory belonging to the present State of Pennsylvania.

Notwithstanding the differences in opinion between Vice-Director Beekman and Stille, the latter still continued as one of the magistrates, for on the trial of Evert Hendrickson for a dastardly assault on Joran Kyn, at Upland, on the 6th and 16th of April, 1663, the court at Fort Altena, where the case was heard, consisted of Vice-Director Beekman, Oele Stille, Mats Hanson, and Peter Cock, commissioners.

The plaintiff in this proceeding had been worried by the defendant's hog running on his land, and he had pointed his gun at the animal, when the defend- ant assaulted him with a stick, endeavoring to break his head. The plaintiff in warding off the blows re- ceived a stroke on the elbow which disabled his arm for a month. Hendrickson not satisfied with this, went home and brought his gun, saying at the same time to Kyn, "I would like right well to shoot you down uow, you scoundrel." The evidence established that the preceding autumn the defendant had threat- ened the life of the plaintiff, at which time he put a knife to the plaintiff's throat, stating he had a mind to cut his head off. The first assault had been over- looked by Kyn, on condition that he would give him no further trouble. The witnesses united in the opinion that Hendrickson was a desperado "who troubled the place at Upland's Kil."? The defend- ant was banished for his ill doings, and removed to the neighborhood of New Castle.

In the early fall of the following year Sir Robert Carr, in command of the English forces, subjugated the Dutch provinces on the Delaware, but in the articles of capitulation, dated Oct. 1, 1664, it was stipulated that "the Scout, the Burgomaster, Sheriffe,

1 Penna. Archives, 2d series, vol. vii. p. 635.

2 Documents Relating to the Colonial History of New York, vol. xii. pp. 424-26.

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HISTORY OF DELAWARE COUNTY, PENNSYLVANIA.

and other inferior magistrates shall use and exercise their customary Power in Admins'on of Justice with- in their precincts, for six months or until his Ma'ties pleasure is further known." 1

Under the terms of this agreement the Dutch magis- trates continued in office until April 21, 1668, when Governor Lovelace commissioned Sir Robert Carre, scout, and Hans Block, Israel Helme, Peter Rambo, Peter Cock, Peter Alricks, or any two of them, as councilors, "to advise, hear, and determine by the major vote what is just, equitable, and necessary in the case or cases in question."? Steadily but slowly Governor Lovelace from that time began bringing the judicial system of England into use, retiring that of the Dutch, which had prevailed, as speedily as circum- stances permitted, but so gradually that the radical change would be made, and at the same time do no violence to the colony by unsettling at one swoop the whole body of ordinances, manners, and customs with which the people had grown familiar by long usage. The attempted rebellion of the Long Finn, in the summer of 1669, afforded the Governor an opportu- nity to make some sweeping innovations in the crimi- nal procedure, and that case will ever be memorable in our annals, inasmuch that for the first time we have undoubted record of a trial on the Delaware, wherein the defendant was formally indicted and a jury of twelve men impaneled, who were subject to challenge on the part of the prisoner, and charged, after the testimony was concluded, by the commis- sioners to find "the matter of fact according to the evidence." 3

Governor Lovelace, knowing well the power which appearances lend in controlling the ignorant classes, early in our history, under English rule, hedged the bench about with all the pomp and circumstance necessary to impress the citizens of that day with the importance and dignity of the judicial office. In 1671, Governor Lovelace instructed Capt. Carr, on the Delaware, to set up the king's arms in the court- house, and to have the same insignia of majesty borne on the staff's carried hy the officers in attendance.4

At that date in all probability there were inferior courts held on the Delaware at several designated places by the justices to determine controversies in trifling cases and petty infractions of criminal law, although the records do not absolutely establish the fact other than that on May 17, 1672, a town court was directed to be held at New Castle, to be presided over by the bailiff and six assistants, with jurisdiction to try all cases of debt or damage to the value of ten pounds, from whose decision there was no appeal; it inferentially appears that about that date a court was already established at Upland. On Aug. 8, 1672, on petition of Jan Cornelis, Mattys Mattyson, and Mar-

tin Martinson, of Calconne Hooke, in the present township of Darby, which set forth that Iszael Holmes had obtained a patent to land " upon the island" (sub- sequently known as Smith's Island) "over against Calcoone Hooke," without ever having had posses- sion or pretence thereunto before," Governor Love- lace, on the date given, made an order " to Authorize & Empower the Court at Upland with the Assistance of one or two of the High Court to examine unto the matter and make report of the Truth thereof," that he might make " some Order thereupon according to Equity and Good Conscience."5 Certain it is that when, on July 30, 1673, the English standard was supplanted by that of their High Mightinesses the Lord States-General, and the flag of the Netherlands again floated over this territory, the Dutch Council at New York, Sept. 12, 1673, established "one court of Justice for the inhabitents of Upland, to which provisionally shall resort the inhabitents both on the east and west banks of Kristina Kill and upwards unto the head of the river." At the same time Council instructed the inhabitants of the Delaware River territory, " for the maintenance of good order, police, and so forth," to nominate eight persons in each of the judicial districts as magistrates, and from the names thus submitted Council would select and appoint those officers.6 These courts were of very limited jurisdiction, for on the 26th of the same month Council issued instructions for the government of the Delaware River settlement, in which it was distinctly announced that all criminal offenders should be referred to the Governor-General and Council; the sheriff in those cases was directed to arrest, detain, and forward the prisoner, "under proper safeguard, to the Chief Magistrate, together with good and correct information for or against the offenders. . . . Smaller offences, such as quarrels, abusive words, threats, fisticuffs, and such like, are left to the jurisdiction of the magistrates of each par- ticular village." In civil cases where the amount in dispute was sixty florins (Beaver)7 or under, the de- cisions of the magistrates were final; and where the sum was over sixty, and amounting to two hundred and forty florins, the party aggrieved could appeal to the sheriff and councilors,-one person to fill the latter office being annually appointed from each judicial dis- trict,-whose decisions should be final. The courts also possessed restricted legislative powers, such as en- acting laws providing for the laying out of highways, erecting churches, school-houses, or similar public works, observances of the Sabbath, and the manner of "setting off lands and gardens," and other matters ap- pertaining to agriculture. They could also make or- dinances against fighting, wrestling, and " such petty offenses," provided such regulatious were as far as pos- sible conformable to the laws of the " Fatherland and

1 Penna. Archives, 2d seriea, vol. v. p. 545.

. 2 Ib., vol. vii. p. 722.

3 Ib., p. 728.

4 Ib., p. 757.

6 Ib., vol. v. p. 621; Hazard'e Annale, p. 398.

6 Penna. Archives, 2d series, vol. v. p. 631.

7 Then the standard of value.

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THE COURT, BENCH, AND BAR OF DELAWARE COUNTY.

the statutes of that (this) Province," but all such en- actments " of any importance" were required to be pre- sented to the Governor for his approval before being promulgated. In the same document will be found instructions as to the manner of electing persons to fill the higher offices, a system which was adopted by the English authorities when the territory again passed into their possession, and maintained in a measure for many years after the State of Pennsylva- nia had in turn cast off the British yoke. It was that "towards the time of election the Sheriff and Schepens (magistrates) shall nominate as Schepens a double number of the best qualified, the honestest, most intelligent and wealthiest inhabitants ... to be presented to the Governor, who shall make his selection therefrom." His Excellency, however, re- served the right to reappoint any of the old justices he might desire to continue in office.1 There was no stated time for holding these courts, but they were called in session as occasion required.

The Dutch authority, however, by the terms of the treaty between Great Britain and Holland, ceased on Feb. 9, 1674; but as Major Edmund Andross, the representative of the Duke of York, to whom the king had reconfirmed the province after it became an Eng- lish dependency, did not take formal possession until the 31st of October following, it is to be presumed that judicial matters up to that date were conducted according to the Dutch form of procedure. Two days thereafter the Governor ordered that the old magis- trates on the Delaware, excepting Peter Alricks, who were in office when the Dutch captured the province in July, 1673, should be " established for the space of six months or further orders."2 On November 4th Capt. Edward Cantwell, who had been the former sheriff under the English rule, was reappointed to the same office. The magistrates thus reappointed were Peter Cock, Peter Rambo, Israel Helme, Lars Adrecksen, Woolle Swain ; and William Tom was ap- pointed clerk.

The jurisdiction of the courts on the Delaware River seems not to have been extended so as to give them cognizance of high grades of criminal offenses. Hence we find that on Feb. 21, 1675, Governor Andross issued a commission for holding a Court of Oyer and Terminer at New Castle, for the trial of several pris- oners charged with rape, which commission was ad- dressed to five justices of New Castle Court, and Jus- tices Cock, Rambo, Holme, Andriesen, and Swain, of Upland Court, requiring any seven or more of them, as soon as conveniently may be, " to sitt one or more Times during the space of one whole week, if Occa- sions require, for the hearing, trying, giving Jugde- ment, & causing the same to be put in Execution, ac- cording to Law."3

Early in the same year it was generally reported

1 Penna. Archives, 2d series, vol. v. pp. 637, 638. .

2 Ib., p. 649.

8 Ib., p. 667.

that James Sandelands, of Upland, in ejecting a drunken Indian from his house, had so roughly treated the latter that he had died from the injuries received. On April 23d of that year Governor Androsse wrote to Capt. Cantwell, that " as to James Sandyland (if you are not sure of him being criminally guilty) you ought to have had a court, that he might have a Legall Tryall and so either be justly detained, punished, or releast."4 In pursuance of these instructions, a special court was held at New Castle on May 13, 1675, Governor Sir Edmund Andross presiding in person, assisted by three commissioners, one from New Castle, from Upland, and Whore Kill. "The bench," old documents tell us, was "called over and placed on the Governor's left hand. Governor Philip Carteret of New Jersey, on the right with Mr. Samuel Edsall, Mr. Thomas Wandall, Mr. Joseph Smith, Mr. John Jackson, Mr. William Osburne." The jury, as pro- vided by the Duke of York's laws, which, however, had not been extended to the Delaware River settle- ments, consisted of seven freemen. The court being in session, James Sandelands was " brought to answer a presentment by the Sheriff for suspicion of being the cause of the death of an Indyan." The presentment was read, and the defendant " pleads to it not guilty." Sandelands thereupon related "the whole story of the Indyan being at his house and him putting him out of doors." The aboriginal witnesses did not relate a consistent story ; one stated the deceased had died in five days after his fall, while others made the interval of life after being ejected from the tavern six and eight weeks. It should, however, be remembered that while the Indians were giving their testimony, Sandelands, by leave of the court, went to them "and had a talk with them." The jury, after being charged, withdrew to deliberate, and finally rendered a verdict : "They find the prisoner not to be Guilty, Hee is ordered to be cleared by Proclamacon."

On Sept. 22, 1676, Governor Andross promulgated an ordinance introducing the Duke of York's laws, and establishing courts of justice on the Delaware in conformity therewith. One of the tribunals was lo- cated at Upland, and was to consist of justices of the peace, three of whom would constitute a quorum, the oldest justice presiding, having the powers of a Court of Sessions, with jurisdiction over all matters under twenty pounds in civil causes and in criminal cases, excepting those where the punishment extended to life imprisonment or banishment, when appeals were to be allowed to the Court of Assizes. In pro- ceedings in equity and suits where the claims were less than five pounds, judgment could be given by the court without a jury, unless the latter was claimed by the parties litigant. The sessions were to be held quarterly, beginning on the second Tuesday of the month, and rules governing practice, unless repug- nant to the laws of the government, could be made

+ Ib., vol. vii. p. 737.

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HISTORY OF DELAWARE COUNTY, PENNSYLVANIA.

by the court, and were to continue for one year. A

record of all proceedings was to be kept in the Eng- lish language, to which every person should have free access "at due or seasonable times," and for that purpose a clerk was to be appointed by the Governor, on the recommendation of the court.1

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History of Delaware County, Pennsylvania, Part 56

Author: Ashmead, Henry Graham, 1838-1920 Publication date: 1884 Publisher: Philadelphia, Pa. : L.H. Everts Number of Pages: 1150

Author: Ashmead, Henry Graham, 1838-1920
Publication date: 1884
Publisher: Philadelphia, Pa. : L.H. Everts
Number of Pages: 1150