History of Delaware County, Pennsylvania, Part 57

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

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In pursuance of this ordinance, on Nov. 14, 1676, the first conrt under the new code of laws convened at Upland, when Capt. John Colier and Capt. Edmund Cantwell, specially authorized by Governor Andross, administered the oath of office to the newly-com- missioned justices,-Peter Cock, Peter Rambo, Israel Helme, Lace Andriesen, Woole Sweinsen, and Otto Ernest Cook.2 Ephraim Herman3 was appointed clerk. The first order made by the court was "that Mr. Wil- liam Tom, the former clarke, should deliver unto the present clark, Eph. Herman, the Records and other publicq bookes and wrytings belonging to the court," 4 while the first case called was that of Thomas Spry against the estate of Hendrick Johnson, deceased, and the plaintiff not appearing in person or by attorney, the court ordered a non-suit, with costs.5 Executions were also ordered against all the persons who had re- fused to pay William Tom, the former clerk, the costs of conrt, and the clerk was likewise directed to write to the Governor respecting compensation claimed by Justice Helme for services rendered as interpreter with the Indians. Jan Jansen and Morten Mortensen were appointed guardians for the heirs of Hendrick John- son, deceased, it being represented to the court that the estate of the minors was being wasted. This is the first instance of record in this State of such ap- pointment, and while the guardians were instructed to prepare an inventory of the estate, they do not seem to have been required to give bond for the faithful performance of the trust.

Ephraim Herman appears to have kept a full record

1 Penna. Archives, 2d series, vol. vii. pp. 783, 784.

2 From this date to the second Tuesday of September, 1681, the original records of the Upland court are in possession of the Historical Society of Pennsylvania. In 1860 these valuable documents were published by the society, with copious notes and an introduction by Edward Arm- etrong. The original records were found hy Deborah Logan in an old book-case, which had formerly belonged to her grandfather, Joseph Par- ker, deputy register for Chester County, which had stood for years in the Logan house, in Chester. The existence of the document wae un- known almioet for a century, until accidentally discovered in a secret drawer io this old book-case:

3 Ephraim Hermen resided in New Castle, and held the appointment for the same office in the court at that place.

4 This order was obeyed, for on Aug. 14, 1677, Governor Andross wrote to justices in New Castle: "I have also by Mr. Ephraim Herman returned you the old Records, the Confusedness or ill Order of which I cao no other wayes remedy, butt thatt Mr. Tom, the then Clerke, do forthwith putt ye same in Order, and write or cause them to bee fairly coppyed in a fitt booke, and attested by him and answer for any defects." (Peona. Archives, 2d series, vol. vii. p. 789.) This appears never to have been done, for, under date of Feb. 25, 1677-78, it is rolated that Tom, who had been thrown in prison for debt, had died thereio. (Documents re- lating to the Colonial History of New York, vol. xii.)

5 For the next five years, uotil nearly the end of the year 1681, the references being to "The Records of Uplaod Court," it is unneces- sary to furnish the citation of the authority relied on for statements made in the text.

of all matters coming before the tribunal, for he not only gives a brief statement of the evidence in many of the cases, but he spread in full on the minutes the commissions of the justices and his own, as well as the correspondence he was instructed by the court to have with the Governor. He particularly invites the latter's attention to " how the Charges of this Court when they sitt may bee found, Conciedering that wee all Live att a Great distance from our Court place and the Amercemts (by Reason of the small number of actions) amounting to Little."

The court, when it adjourned until the second Tues- day in March next, was emphatic, for it adds, "and no sooner by Reason of the Ceason, and so it is to Continne and be kept quarterly ;" an order which, so far as it related to the Quarter Sessions, continned in practice for about a quarter of a century.

The next court convened on the 13th of March, 1676/7, when the tendency to the continuance of a cause, when called, exhibited itself as decidedly as it does now, after the lapse of two centuries. In one case where Morton Mortensen, of Ridley, sned Mouns Staecke for the value of an ox, which the defendant and his servant had killed, the plaintiff's witnesses "being supened," but failed to appear, the case was continued, the court stating that if the witnesses did not appear at the next term "they to be fined." At this session we find the first mention in our annals of a deed being acknowledged in open court, a practice which still prevails respecting sheriffs' deeds.

The next Quarter Sessions was held June 13, 1677, and the proceeding shows ns that at that time redemp- tive servitude was a recognized system, for at this court John Test, in the presence of the bench, made acknowledgment that he had sold William Sill, a tailor by trade, to Capt. Edmond Cantwell, for nearly four years, the unexpired term of his servitude. Many suits were pressed to judgment at this session against John Ashman, who, appearing to have pur- chased a number of articles on credit, and then left the province and his creditors, the latter, then as now, scrambled for the insolvent's estates, and no less than five judgments were entered and two attach- ments allowed that day. The court appointed Lace Cock and Mathias Holsteyn to appraise the goods and chattels of John Ashman, and they were sworn to the performance of the trust. It also appeared that there was a dispute respecting "the fly (meadow) of those of Carkoen's Hock"6 and Lace Dalbo; "the court taking into consideration the fact that before the next court "itt will bee too Late to mow the Hay, doe order that hans Peterse and the Reste of Carkoens hoeck doe mow the hay of the sd fly for the present and untill their case bee heard." An interesting fact in this term was that the first rules of court respect-

6 Mr. Armstrong states that this was the point formed by the junction of Cobb's Creek with Darby Creek, aod had for its western boundary Derby, and for its northern Cobb's Creek. (Records of Uplaod Court, p. 58, aote.)

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THE COURT, BENCH, AND BAR OF DELAWARE COUNTY.

ing pleadings and attorneys we have record of were announced. "That all declarations must be Entered at Least the day before the cort at which the clarke is to attend att Upplands," and " That no persons bee admitted to plead for any other person as an attorney In Cort without hee first have his admittance of the Cort or have a warrynt of Attorney for his so doing from his Clyant." It was hardly necessary for the court to have made any rule in relation to attorneys, for on the 19th of May the Governor and Council adopted an ordinance "that pleading attorneys bee no Longer allowed to practize in ye government, but for ye depending cases." At the November session we find record that this ordinance was for the second term "openly Read in full Cort."

The most important case tried at this session was an action for assault and battery committed on Justice Helme by Oele Oelsen. The justice in his evidence stated that the defendant "first with Evil words abused" and afterwards beat him "and his shirt all tarne In peeces by the sd deft.," and as he, the plain- tiff, was one of the members of the court, he desired that " hee may bee so maintained." The defendant testified that he was first struck by the plaintiff, but Sheriff Cantwell " desires that the court will take the Case in Consiederacon and not suffer that a Justice of the Peace shall be so abused." After other wit- nesses had been examined by the court "and heard the debates of both parties," the defendant was fined two hundred and ten guilders, sixty to the poor or church, the remainder to the sheriff, and "doe further order yt the sd Oele Oelsen doe humbly aske forgive- ness of Justice Israell helm and the Cort for his sd offence." The defendant having publicly asked pardon for his act, "The Cort and High Sherife Conciedering that the Sd oele was a poore man with great Charge of Childeren ; uppon his humble sub- mission did Remit and foregive him the one hundred and fifty Gilders fyne."

At the subsequent court, Sept. 11, 1677, the diffi- culty respecting the meadow-land at Calcon's Hook was heard, and it was ordered that the plaintiffs should select " indifferent men," who should view the land and ascertain whether they had not their quantity, after which, if the parties could not agree, the case was referred to the Governor for adjudication. Many applications were presented at the court by parties desiring to have certain lands surveyed and set apart to them, while the clerk was allowed two hundred guilders for his "last year's service, trouble and expenses," to be paid out of the tax to be laid.

In the olden times, as now, litigation arising from absurd disputes was occasionally brought before the court, hence at the November session of 1677, Neeles Laersen, the innkeeper, brought an action against John Test, in which he complained that the defend- ant had " beeu troublesome to his son about a knyf" (knife), and he " desires to know the Reason of the same. The Court haveing heard the debates of both

parties ; and finding the businesse and difference of noe vallue, did order the partees to be friends and forgive one the other, to which the parties agreed Neeles Laersen Ingaging to pay the Clercq and sher- refs fees."

On April 3, 1678, the first meeting of the justices of Upland in private session, as such assemblages afterwards were called, is noted as being held at the house of Justice Peter Cook, "in ye Schuylkill," where the public accounts were audited and approved.

At the court held on the second Tuesday of June, 1678, for the first time is mentioned proceedings for the foreclosure of a mortgage. In that case Christo- pher Barnes had mortgaged his plantation and crops of corn and tobacco for fourteen hundred and ninety- four guilders and six styvers. The court appointed James Sanderlands, Albert Hendricks, and Oele Frans- sen to appraise the farm and crops of wheat and tobacco, and the mortgageor, then in court, " Ingaged to make a good Tytle of ye Land & plantation to ye Plt. if not fully paid otherwise." So also at the same session is presented the first application of an inden- tured servant to be discharged (freed) at the expira- tion of the term of servitude, where the master ille- gally held him beyond the period specified in the agreement. The court ordered Oele Swensen, at the next court, to produce the indenture of Benjamin Goodman, his servant, or bring "witnesses that can Testify about ye business." This Swensen failing to do at the November term, Goodman was discharged. At the same term an application was made to the court hy Jan Conelisson, of Amesland, for the protec- tion and maintenance of his son, Erik, who was "bereft of his natural Sences, and is turned quyt madd," the father pleading that his poverty prevented him supporting his son. The unfortunate maniac must have been dangerous to be at large, for the court ordered "that three or 4 persons be hired to build a little Blockhouse at Amesland for to put in the sd madman, and att the next Court, order will bee taken yt a small Levy bee Laid for to pay for the building of ye house." Dr. Smith believed that this "little blockhouse," built under this order, may properly be regarded as the first lunatic asylum in Pennsylvania.1

To provide for the maintenance of the tribunal, at this term was ordered a "Levy or small Tacx of fyve gilders pr head on every Tydable person for defraying of the Courts setting Charges, as heretofore, the Levy to hee paid by Every prson upon (at) Trimeconck (Tinicum) Island between this & the 6th of October next Ensuing."

There seems to have been corporal punishment in a case at this court, of which no record appears other than that James Sandelands was ordered to be paid one hundred and one guilder "for payment of the

1 Provision was made under the Duks of York's laws (pages 58-64) for the manner in which the charge for the support of "distracted per- Bons" was to be levied.

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HISTORY OF DELAWARE COUNTY, PENNSYLVANIA.

Indians that whip, &c.," which sum Sandelands seems to have advanced out of his private purse ; and at the same session, in a cross-action between William Orian and Jan Jansen, each alleging that the other threat- ened his life, the court ordered both parties to be bound "to their good behavior & order Each to pay halfe Costs."

The most important order made at this court was that which required that " Every person should within the spaces of twoo months, as far as his Land Reaches make good and passable ways, from neighbour to neighbour, with bridges when itt needs, To the Eod that neighbours on occasion may come together. Those neglecting to forfeit 25 gilders." This is the first record of any action respecting highways made by a court acting in the territory now Pennsylvania, although nearly four years previous to this date, at a special court held at New Castle, on the 13th and 14th of May, 1666, Governor Andross presiding, it was "ordered that Highways shall be cleared from place to place within the precincts of this government." 1

At the court held on the 12th of March, 1678-79, James Sandelands, as attorney of Marmaduke Ran- dall, presented a claim against the estate of Walter Wharton, deceased, for eighty guilders, which was for rent due for a house in Upland, and prayed that he might be ordered payment out of the estate, with costs, as also a personal claim of Sandelands against the estate for four hundred and twenty-eight guilders. In both cases judgment was awarded. Wharton was the surveyor for the Delaware River settlement. From a letter from Justice Moll, of New Castle Court, to Secretary Nicolls, of New York, under date of Jan. 20, 1680, we learn that Ralph Hudgjson had buried Wharton, and had charged about twelve hundred (guilders) for the funeral expenses, and that the court had promised to grant an order on Capt. Cantwell at the next session for that sum. The amount was so exorbitant that Justice Moll hesitated, for he says, " Others have been buried as handsome for one-third of ye money. ... The Chancellor of Maryland, I know, allows all administrators alyke for funeral charges. If they will be astravigand they must doo itt upon their owne meanes not upon ye creditor's account." 2

Edmund Draufton brought suit against Dunck Williams, demanding two hundred guilders as com- pensation for services rendered in "teaching the deft. Children to Read one Year." Richard Ducket, a witness for the plaintiff, testified "that hee was pres- ent at ye makeing of ye bargaine, & did hear that ye agreem't was that Edmund draufton should Teach Dunkes Children to Read in ye bybell, & if hee

could doe itt in a yeare or a halfe yeare or a quart then hee was to have 200 gilders." The court awarded "Judgment in favor of the plaintiff for the amount claims and costs of suit." This is the first record iu our annals of children being in anywise educated, other than the clause in the Duke's Book of Laws admonishing the people to care for the instruction of children and servants in matters of religion and the laws of the country, while at the same time parents and masters were strictly enjoined "to bring up their Children and Apprintices in some honest Lawfull Calling, Labor or Employment,"-one of the few regulations of the olden times whicli the present age might readopt with advantage to the State.

At the November court was heard a matter which it seems strange to our modern ideas could have oc- cupied the attention of the most potent, grave, and reverend judges whose duty it was to hold aloft the balance of justice in our early colonial days. The church-wardens of Tinicum and Wicaco Churches brought to the notice of the bench "that the fences about ye Church Yards and other Church buildings. are much out of Repair, and that some of the People members of ye sd churches are neglective to make the same up." The court, after due consideration, determined "to order authorize & Impower the Respective church wardens of ye sd Twoo Churches . . . do order & summons the Repective members of ye sd churches from tyme to tyme and att all tymes when it shall be found necessary, to build make good and Keepe in Repair the sd Churchyard fences as also, the Church and all other the appurtenances thereof and if any of the sd members upon warning doe prove neglective In the doing of their Proportion to the same, They and Each of them to forfeit fifty gilders for Each such neglect to be Levyed out of their goods and Chattles Lands and Tennements."

This intermeddling of the court in purely church matters was in accordance with the spirit of the Duke of York's laws, wherein much attention was devoted to ecclesiastical topics. The church-wardens were, under its provisions, required twice in each year, on the second day of the June and December sessions, in open court, to deliver a written "true presentment" of all misdemeanors, such as swearing, profane Sab- bath-breaking, drunkenness, fornication, and adul- tery, "and all such abominable sinnes," which to their knowledge had been committed and the guilty parties remain unpunished. Their powers were so extended that they could compel the attendance of any person whom they believed had knowledge of such misdemeanors to testify respecting such charges, and if the latter failed to attend they were liable to be fined by the court.

At the same court Francis Steevens sued Claes Jan- sen on balance of an account for goods sold and de- livered. The defendant pleaded in defense that "hee proffered & paid ye Plf. in pompkiens according to agreement." The plaintiff in rebuttal called Thomas

1 Dr. Smith's "History of Delaware County," pp. 101, 102. That au- thor, who had inspected thie record, states that the manner of makiog the roada wes left to the respective inferior courts. That order, of course, was biuding in this jurisdiction.

2 Documente relating to the Colonial History of New York, vol. xii. p. 643.

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THE COURT, BENCH, AND BAR. OF DELAWARE COUNTY.

Stroud, who testified that " hee being sent by frank Stevens to fetch ye pompkiens did demand them, but Claes Jansen did refuse to bring them down to ye water syde." After a summing up of the evidence on both sides the court ordered " that ye deft., Claes Jan- sen, pay unto ye plt. Twenty gilders in wheat and Twenty-six in pumpkiens, after ye rate of sixteen gilders pr. hundred. Together with costs of suite."

Sometimes then, as now, the patience of the court gave way; but in one case the majority of the bench managed to thrust the tedious matter upon one of their fellow-justices. Hans Petersen had sued Henry Col- man for an account of forty-three guilders, and when the case was called the defendant was absent. There- upon the court said "the matter in dispute being so Inconsiderable that itt is not worth ye Longer Con- tinuance. The Court therefore Impowered Justice Otto Earnest Cook to hear & Examine the act. & Case and to make a Final End & determination thereof as he shal find Just and Equitable."

Courts cannot be maintained without expense to the public, particularly to suitors, a view of political econ- omy which soon dawned on the understanding of the justices. Early in the record, Nov. 13, 1677, the court made an order that " the Levy or Pole money for de- fraying the publicq charges" amounted to twenty-six guilders for every taxable person, and that payments would be received in the following species : wheat at five, rye and barley at four, and Indian corn at three guilders per bushel ; tobacco at eight stivers per pound ; pork at eight, and bacon at sixteen stivers per pound. Skins were to be received at current prices, as was also wampum. Sheriff Cantwell was instructed to collect the tax, and if necessary to levy on the delin- quent's goods, which he was to have appraised by two of the neighbors of the party whose articles were seized. For collecting the tax, the sheriff was to re- ceive at the rate of five shillings to the pound.

The litigants soon began to learn that lawsuits were luxuries which must be paid for, for at the March term, 1679-80, the bench took action on the matter of unpaid costs, and entered the following order on the quaint old record :

"Whereas the Law allowes to ye cort for Every Judgment Given by the cort 28. 6d., and the same being hitherto not Collected or paid, and the cort being in great want of some mendes to pay and defray their necessary Charges of meat & drinke, etc. It is therefore this day Re- solved end the nodersherriffe William Warner, is hereby Imponred to Collect & Receive from ye following persons for Each action, that is to say Judgment accord : to ye annexed List the sump of 28. 6d., and that heo bee accountable & give a Just and Exact account of his Receipt tu ye Court att next Court day."

Then followed a list of forty suits, criminal and civil, wherein the costs were still unpaid. Possibly the jus- tices soon learned, as lawyers do, that of all hard col- lections the hardest is to gather in the cost of a law- suit where the party to pay

" Expects a reversioo and gets a reverse."

Hence it occasioned no surprise to find at the next term, on June 8th, the judges striving to meet the

courtal expenses of the tribunal by the following modes :

" Itt was this day by the Cort taken Into Consideracon & ordered that for ye defraying of ye charges of this Cort'e sitting Each person shall pay Yearly one scipple of wheat or 5 gilders according to former order & Practice, and also That all the arrier of ye former Jears bee delivered & brought into Justice Otto Earnest (Cock) att Tinoragceng Island, such as prove neglective to be fetched by ye Constable by way of restraynt."

Even this order did not altogether satisfy the court, "being in want of monneyes for ye defraying of ye publicq Charges of their sitting ;" but just before the adjournment the justices ordered the clerk to pre- pare a list of those persons who were in arrears, and particularly a fine of two hundred guilders, which list was directed should be delivered to " ye high sheriffe, whoe is hereby ordered to collect ye same .. . and to be accompatible att ye next Court, with further power that In case any should refuse ye payment of ye sd Just Cort fees that in such a Case hee should use ye uttmost extreamity by ye Lawe allowed."

On the 8th of June, 1680, the commissions of the new justices appointed by Governor Androsse "was Read publicqly att Upland." The newly-commis- sioned magistrates, however, did not fully compre- hend the responsibilities connected with the office, for the court at the June term, 1680, finding that Upland Creek, where the court hitherto had held its sessions, was at the lower end of the county, for the benefit of the majority of the people "thought fitt for ye future to sitt & meet att ye towne of Kingsesse on ye Schuyl- kill ;" 1 and at the June sessions of 1681, Justices Henry Browne and George Brown failing to be present, they " were boath fyned for not attending ye Court to sup- ply their places Each ten pounds according to ye Law books." These fines, however, were in all probability never collected, for, before the next court assembled, the territory had been transferred by the king's charter to William Penn, and under the new power a thorough reorganization of the provincial authority was made.

It is necessary, however, to retrace our narrative in order of time, so as to notice a few important cases which were tried before that event took place.

At the October sessions, 1680, Claves Craw sued Hans Peters for slander. The defendant had called the plaintiff a thief, and on the trial, the defendant not being able to prove the truth of his assertion, the court ordered that "ye deft openly declared him selfe a Lyar, & that he shall further declare ye Plt to bee an honest man & pay 20 gilders to ye Plt for his Losse of tyme, together with Costs of suite." At the same court a case was continued on the application of the

1 The site of the town of Kingsesse Dr. Smith has fully established was located below the old Philadelphia, Wilmington and Baltimore Rail- road (now Reading Railroad extension to Chester), and east of the Ieland road, in late township of Kingsessing, connty of Philadelphia. (Smith's " History of Delaware County," p. 123, note.) Armstrong, in a nute to " Record of Upland Conrt" (p. 171), had located it in the inmediate vicinity of the Swedish mill erected by Governor Printz near the Bine Bell Tavern on the Darhy road.

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HISTORY OF DELAWARE COUNTY, PENNSYLVANIA.

plaintiff, who alleged that four of the material wit- nesses had been subpoenaed but did not attend. This session was prolific of suits for defamation. Justice Otto Earnest Cock brought an action against Moens Peterson Staecket for having called his honor a hog- thief, and the justice indignantly demanded that the defendant, " if he or any other can, will prove ye same or otherwise that hee may bee punisht according to Lawe." The defendant protested that he had no rec- ollection of ever having made such an assertion, and if he had, " that itt must have been in his drink." The court, however, after the witnesses were examined, that the high character of a judge should not be lightly assailed, ordered the defendant to pay one thousand guilders, and to acknowledge that he had "wrongfully, falsly & malisiously slandered & blamed" the plaintiff. The defendant, in order to escape the dire wrath of the bench, " did willingly in open court declare as above & humbly desires forgiveness & prayes that ye fyne may bee remitted. Upon ye In- tercession of Justice Otto Earnest the cort did remit ye fyne abovesd."

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History of Delaware County, Pennsylvania, Part 57

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