History of Delaware County, Pennsylvania, Part 58

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

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During the whole period covered by the record of Upland Court, there are but two cases in which juries were impaneled to try questions of fact, and that this was so was doubtless owing to the provision in the Duke's laws that where a plaintiff desired the issue tried by a jury he was required to give bonds, when he entered suit, that he would pay "One Day's Cost of a jury."1 The first case wherein a trial by jury is set out on the record was Nov. 12, 1678, and was had in au action brought by William Orian against Joh. D'Haes on a disputed account. The plaintiff had craved a jury, and twelve men were impaneled, who returned a verdict for the plaintiff for an amount somewhat less than his demand. "The court thought fitt to suspend the verdict of the Jury and the deter- minacon of this case till next court day, att wch tyme both plt and deft are to bring their bookes In court." That is the reason given in the record for setting aside the verdict, but it is very likely that this was an easy way the bench took of getting out of acknowledging that they had made a mistake. Per- haps a suggestion was received at side bar that the law explicitly directed that " no jury shall exceed the number of seven, nor be under six, unless in special causes upon Life and death the justices shall thinke fitt to appoint twelve." 2

Two years thereafter, ou Oct. 13, 1680, the next jury trial took place. The jury in this case, as in the former one, consisted of twelve men, and their finding was sustained, for we are informed "the court doe allow of ye jury's verdict & passe judgment accord- ingly." Doubtless the finding was just, yet as the jury numbered twelve, and it being a civil suit, it was a body clearly unknown to the law, and on ap- peal, if pressed, the verdict must have been set aside.

But in those early times, the magistrates being un- learned in legal matters, firmly believed and acted on the doctrine announced in latter years in Phila- delphia by a well-known lay judge, that "natural equity abhors sharp points of law." As we progress in our narrative an instance will be cited in our judicial history sustaining this declaration. It is, however, not uninteresting to note that at the last session of court, before the province passed into the ownership of Penn, a technical point was raised by Jonas Neatson, who had been apprehended on the suit of Andries Peters, Esq. The defendant appeared, alleging that he was not timely "arrested." This was a knotty point the judges desired to think over, for the record informs us that " the Case is referred til next court." The term fixed upon at the adjourn- ment for holding the next session was Sept. 13, 1681, but although a court did convene on that date, it was with new justices and at the ancient town of Upland, where Deputy Governor William Markham had lo- cated the capital of the province of Pennsylvania. The new justices were William Clayton, William Warner, Robert Wade, Otto Earnest Cock, Lassey Cock. All of the foregoing were also members of the Governor's Council, while William Byles, Robert Lucas, Swan Swanson, and Andrew Bankson were not in such intimate relationship with his Excellency. All the bench were new to that office, save two Swedes, who were formerly justices, but the English element now outnumbered the former nationality. The first act of moment at this session was the proclamation by Markham that the duke's laws were abrogated, and all legal proceedings thereafter were ordered to be conducted " according to the good laws of Eng- land." A most admirable change if there had been any one in commission on the bench having any ex- teusive knowledge of these laws, but as there was not, criminal actions were entertained by the court and tried by petit juries without the intervention of a grand inquest.3

Every controversy of fact was now submitted to the conclusion of a petit jury's verdict, hut the old manner of computing values by the Dutch guilders could not be so quickly set aside, for the last verdict at that session was for sixty-two guilders. If the court records are of any value in showing how quickly

1 Duke of York's Book of Laws, p. 67.

: Ib., p. 33.

3 Dr. Smith says (" History of Delaware County," p. 136), " The first Grand Jury that ever sat in Pennsylvania, of which there is record, was summoned to attend at this Court" (that of Sept. 12, 1682, a year subsequent to the time mentioned in the text). " Their names, as given io the minutes of the Court, are William Clayton, Thomas Brassey, John Symcock, Tho. Sary, Robert Wade, Laurence Cock, Joho Hart, Nath'll Allen, William Woodmaoson, Thos. Coebouroe, John Otter, aod Joshua Hastings, beiog one-half the usual number. These jurors were summoned in the case of Lassey alias Laurence Dalboe, and are called his 'Grand Jury.'" It was merely a petit jury, as we now understand the term, the word " grand" doubtless being used by the clerk without comprehending the import of that term, for the record shows that the jury passed npoo the fact of the person's guilt, and did not present him for another jury to finally acquit or convict him of the charge. How- ever, the first grand jury did sit in Chester at the June term, 1683.

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THE COURT, BENCH, AND BAR OF DELAWARE COUNTY.

the new system of computation was adopted, it dem- onstrates that the people of that day more speedily accepted the new order of things than did our Revo- lutionary sires in discarding the pounds, shillings, and pence to substitute in their stead the American standard of money.

On Nov. 30, 1681, the next session of the court began. It was presided over by Markham, and at that term we learn in the olden days, as at the pres- ent, the calendar sometimes melted away, for only four cases were tried, one was withdrawn, and one continued. At the next court, March 14, 1682, Mark- ham also presided, and before the bar Henry Rey- nolds was arraigned for "selling strong drinks by small measure in his house contrary to the Governor's and Council's order." The defendant pled guilty to the charge, but on his submission to this court was discharged. The indiscriminate sale of liquors early demanded the attention of the authorities ; the Dutch records frequently mention the desire of the govern- ment to prevent abuses in that respect, while, under the Duke of York, the sale was hedged about with many restrictions. Not only were these provisions spread on the statute-book, but Governor Androsse, under date of Aug. 14, 1677, in his letter to the mag- istrates respecting the administration of justice, di- rected the special attention of the courts to these enactments. "Pray take care and fitting Orders for Ordinaryes," he says, "that they bee fitt persons duly Lycenced, and well provided according to Lawe, and that none else be admitted to retaile." 1

The clear, good sense which was conspicuously ex- hibited by William Penn on many occasions was per- haps never better illustrated than when in coming to his province in 1682, be determined to continue the courts already established therein, with whose manner of administering justice the people had grown famil- iar. Certain it is that he advocated radical changes in the civil and criminal code, removing much of the severity of the latter, while he enlarged the respon- sibilities of individuals to the community ; but these innovations were made by legislative bodies, drawn from the people, and the means he employed to effect the end in view was conducive to the public weal, the discussion of measures of government resulting in enlarging the intelligence of the masses. The law enacted Dec. 7, 1682, requiring all persons who were not by birth subjects of Great Britain within three months thereafter to make declarations of their inten- tions to become "freemen," resulted in retiring, for the time being, all the Swedish justices. Hence, at the February session, 1682-83, John Simcock, a newly- appointed justice, acted as president of the tribunal, which then consisted only of five magistrates. But Otto Earnest Cock must have declared his intentions soon afterwards, for at the June term, 1683, when Pean personally presided, the familiar figure of Jus- tice Cock once more appeared on the bench.

To this court, held June 27, 1683, the first grand jury of record in Pennsylvania was summoned.2 That grand inquest consisted of seventeen persons,-James Kennerly, James Sandelands, George Foreman, Neal Lawson, John Corncleus, Richard Buffington, Thomas Minshall, John Harding, Mans. Stankitt, Oele Raw- son, George Wood, Albert Hendrickson, Herman Johnson, Nathaniel Evans, Robert Rohinson, Wil- liam Woodmanson, Richard Few. The jury, as the old docket emphatically records the lesser body, was composed of twelve persons, and it seems at that time the traverse jury was sworn at the beginning of the court, to "justly try & deliver in your verdict in all cases depending that shall be brought before you during this session of court." 3

One of these cases was brought by John Day against Henry Reynolds for £4 98. 2d., the balance of an ac- count which the defendant was to discharge by de- livery of a cow and calf at a designated time. This the latter failed to do, hence the litigation. The jury rendered the following curious verdict: "The jury find for ye Plaint'd give him a cow & calf, ye same to be deliv'd with in 7 dayes, or £4, 19s, 2d, at ye choyce of ye Plaint, or ye value thereof in Porke, Beefe or corne in ye 8 mo next, & 40s down. and costs of Suite."

The first clause of the duke's laws imposed a fine of ten pounds on justices and high constables for each and every day's absence from the sessions of the court. Twenty years thereafter, on May 20, 1685, the General Assembly enacted a law making a justice who should not attend court finable in any sum not exceeding thirty shillings. The custom of acknowl- edging deeds openly in court, so that a record might be spread on the minutes, which had prevailed under the duke, continued in practice, as did the registra- tion of the brand-marks of the owners of cattle run- ning at large in the woods.

The court exercised the power of laying ont roads, excepting the King's Highway, which was the duty of Council, of protecting indentured servants from their masters' exactions or abuse, settling disputes as to term of servitude, and compelling the bondsmen to perform their duties by corporal punishment, or when they attempted to escape, adding on their detection,

2 Proud states (" History of Pennsylvania," vol. i. p. 240) that " the first Grand Jury in Pennsylvania was summoned on the 2d of Third month of the year (1683) upon some persons accused of using counterfeit silver money. .. . They convicted a person whose name was Pickering and two others, his accomplices." On the 25th of Eighth month, 1683 (Oc- tober), Council ordered, "That an Indictment be Drawne against Chs. Pickering & Sanıll Buckley, grounded upon evidence taken before that board." In the afternoon, " A Grand Inquest were Impaneled and At- tested whose names are as follows:" (Here is given the names of twenty-four men, and Council adjourned until the next morning, Octo- ber 26th, when the following record was made: " The Grand Jury being called Over went forth to find the Bill against Charles Pickering and returned and found ye Bill as being a Heynous aod Grevions Crime. A Petty Jury were Impannelled and Attested," which consisted of twelve men. (See Colonial Records, vol. i. pp. 86 to 88.)

3 Forms of attestation for juries adopted by Penn. Records at New Castle, quoted in Fnthey and Cope's " History of Chester County," p. 25.

1 Penna, Archives, 2d series, vol. vii. p. 790.

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HISTORY OF DELAWARE COUNTY, PENNSYLVANIA.

as the law directed, additional time to serve, where the latter by their misdeeds occasioned a loss to their owners. Some of the peculiar duties then devolving on the court were contracting for. county building, bridges, levying the taxes and similar matters now discharged by the county commissioners, as also andit- ing the public accounts,-a work now incumbent on the county auditors,- and many other matters became the subject of the court's consideration. It had juris- diction of all breaches of the peace, misdemeanors and other offenses, excepting in cases of heinous or enormous crimes. In this the scope of inquiry had been enlarged after Penn's coming, but burglary and arson, which were punishable with death on a third conviction, under the duke's law, now made the party liable to imprisonment, and in the latter crime, whip- ping. The jurisdiction of the county courts was re- stricted so far as the high grade of crimes were con- cerned, until the Constitution of 1790 gave the judges of the Court of Common Pleas in each county the right to act as justice of oyer and terminer and gen- eral jail delivery for the trial of capital and other of- fenses.

A peculiar adjunct of the county courts provided by the act of March 10, 1683, were the peacemakers, three persons in every precinct chosen yearly,1 to whom the parties litigant could refer their difficulties by agreement in writing, and the decision of these peacemakers was as conclusive as that of the court, and the judgment so rendered was registered as " other judgments are.2 One of the awards made by the peacemakers at Chester, at the court held 3d day 1st week Eighth month, 1687, in a suit for assault and battery brought by Samuel Baker against Samuel Rowland, is worthy of notice. It was that "Samuel Rowland shall pay the lawful charges of this court and give the said Samuel Baker a Hatt, and so Dis- charge each other of all manner of Differences from the Begining of the world to this Present day." Al- though the Assembly on May 11, 1692, declared that the law relative to peacemakers was inoperative, the remnants of that system linger still in our practice, in arbitration, the modern form of the ancient peace- makers.

The provisions for summoning jurors, under the Duke of York's laws, instructed the constables "to warn so many of the overseers to attend as juryman" as the pending causes might seem to require, and in the event of the panel being exhausted, the jury could be supplied "with so many able and discreet men as shall attend the court, .. . or shall happen to be inhabitants of the Towne where the court shall

be held." 3 In cases where the law was obscure, "as the jury cannot be satisfied therein," they could re- turn an alternative verdict, viz., "If the law be so on such a point we find for the plaintiff, but if the law be otherwise we find for the defendant," in which case the court must determine, as a matter of law, in whose behalf the verdict was to be recorded. A ma- jority of the jury could find a verdict. By the law of March 10, 1683, under Penn's government, it was pro- vided that a grand inquest should attend in every county court, and bring in their presentme! ts+ twice a year, when, on that presentment, an indictment was regularly framed and the prisoner admitted to bail to the next court, so as to give him an oppor' inity to make a proper defense. The traverse jury w in the following manner : "The names of the Prawn ir

shall be writ in small pieces of paper and p. $1,

hat and shaken, forty-eight of whom shall 1 dawn by a child, and those so drawn shall stand. for the Sheriff's return. And the first twelve, not reasonably excepted against shall stand and serve for the tryal." >

A remarkable jury was summoned at Chester on the 27th of Sixth month, 1689, which for nearly two hun- dred years was the only instance on record in the United States until 1878, when a similar jury was impaneled at Cheyenne, Wyoming Territory. At the date first given, a servant girl pleaded guilty to the. charge of fornication, and being sentenced to be whipped, she alleged that she was enceinte and could not undergo corporal punishment. The man had also pled guilty to the charge. The record states, " Upon which they were both called to the bar, where they made their appearance, and upon her further confes- sion and submission a jury of women, whose names are underwritten, ordered to inspect the said Mary Taberfield's condition." The jury consisted of Lydia Wade, Sarah Usher, Hester Rawlence, Mary Carter, Jane Hawkes, Mary Hoskins, Elizabeth Musgrove, Mary Bayless, Elizabeth Hastings, Mary Little, Jane Moulder, and Ann Sanderlands. "They make return that they cannot find that she is ' enceinte,' neither be they sure she is not." At the court held 3d day 1st week Eighth month, 1689, the female defendant was called to the bar and further examined, when she de- clared that, notwithstanding her testimony "she doe now freely declare to ye contrary and submitts to ye mercy of ye King and Governor." Whereupon she was sentenced to "receive 10 strips upon her bear backe well laid on at ye Common Whipping Pos" att Chester." John Eldridge was discharged on pay g a fine of three pounds and all the court charges.

This, however, is not the first record of corporal punishment being inflicted, for at the June court, four years previous thereto, Abraham Effingall . as convicted of "abusing and menacing the majestracy of this county," and was sentenced to receive "twenty- one lashes att the Publicke Whipping-Post on his bear

1 Lawrence Lewis, Jr., in his learned sketch of "Courts of Pennsyl- vania in the Seventeenth Century" (Penna. Mag. of Hist., vol. v. p. 153), says, "These peacemakers were not elected by the people, but appointed annually by the county courts," citing as his authority the address of Hon. James T. Mitchell on adjournment of District Court of Philadel- phía, 1875, pp. 4 and 5.

2 Duke of York's Book of Laws, p. 128.

3 Ib., p. 33. 4 Ib., p. 129.

5 Ib., p. 129.

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THE COURT, BENCH, AND BAR OF DELAWARE COUNTY.

Backe, well laid on and 14 dayes Imprisonment at hard labour in ye House of Correction."

By the provisions of the act of March 10, 1683, the justices of each county court were directed to sit twice in every year " to inspect and take care of the estates, usage and employment of orphans, which shall be called the Orphans' Court," which was to be held the first 3d day of the week in the First and Eighth months annually, the reason of the law being stated " that care may be taken of those that are not able to take care of themselves."1 The records of the county of Ches- ter show that the first court, nuder the title " Orphans' Court," was held on the " 3d day in ye 1st week of ye 8th me"th, 1687." Under the act of May 10, 1688, the " "fiction of the court was extended to the con-

an. 'ecedents' estate, with power to order sales of

the herty for the payment of debt, or the mainte- nan'ce wr education of children, the support of the widow, vor the disposition of a part of the land, to raise funds to improve the remainder. These powers, however, were exercisable only " with the approbation of the Governor or Council."2 Although this law dis- tinctly stated it was, to be in force for one year and "no longer," the Orphans' Court had come to stay, and although it subsequently was the object of many statutes defining its powers and proceedings, it be- came so entirely a part of the machinery of govern- ment that it could not be done away with.

Previous to the act of May 10, 1684, there was no high Appellants' Court in the province other than the Governor and Council, but at the time designated a Provincial Court consisting of five judges was created, which was to sit twice a year in Philadelphia, and two members of the court at least, every fall and spring annually, were directed to "goe their circuits into everie respective county in the Province," to hold a court of appeals, as well as to try all criminal causes of a high grade, questions of title to land and other cases3 of which the county courts had no jurisdiction.

The following year the inconvenience of this court only having cognizance of cases involving the title of real estate, was the subject of much complaint, and the Assembly abolished that part of its jurisdiction, while at the same time it defined more explicitly its appellant's powers and the criminal cases, which were to be in the first instance the subject-matter of its inquiry. The number of judges was to be reduced to three, but subsequently they were restored to five.

: Under the colonial government and nnder that of unies commonwealth until a change was made by the Constitution of 1790, all criminal cases punishable with death were tried before the judges of the Pro- vincial or Supreme Court, and for that reason a search Rifuong the old county conrt records to find mention of . criminal cases of a high grade is always attended with little or no success. That much of the records of the

Provincial Court must be lost beyond hope of re- covery is evident from the reply of David Lloyd to Governor Blackwell, for on the 25th of Twelfth montlı, 1688-89, when ordered to produce the records of the courts, he stated that "they were not recorded other- wise than on a quire of paper." 4

A little over a year after Penn first came to his province-no Provincial Court had been then estab- lished-he was called upon to preside in a case of more than ordinary interest, it being nothing less than the trial of an alleged witch. This proceeding was had eight years before the stupid excitement at Salem, Mass., ran its course. At that period, in all the British American colonies the statute of England passed in 1603 was in force, which punished the impossible crime of witchcraft in some of the provinces with death. Indeed, in the commission and instructions to the jus- tices of Chester County from Governor Keith, dated Nov. 24, 1719, they were directed to inquire of all " Witchcrafts, Inchantments, sorceries, Magic Arts, &c." 5 and this absurd law continued in force in Penn- sylvania until the act of Sept. 23, 1794, by which it was repealed.6 The case mentioned was that of Margaret Mattson and Yetho Hendrickson,-the former the wife of Neels Mattson, a Swedish settler who owned and resided on a plantation on the river on the west side of Crum Creek, in Ridley township, while the latter was the spouse of Jacob Hendrickson, who, it is be- lieved, also resided in that neighborhood.

On Feb. 7, 1683/4, they were brought before Penn and the Council at Philadelphia, and "examined and about to be proved witches," when it was ordered that Mattson and Hendrickson should enter bonds in fifty pounds each for the appearance of their wives to an- swer the charge on the 27th of the same month. At the time designated the trial was had, Attorney- General John White being present. Penn charged the grand jury, and that body found a true bill against Margaret Mattson. The defendant being unable to speak English, Lasse Cock was qualified as interpre- ter. The traverse jury was impaneled, on which appeared Robert Wade, John Gibbons, Jeremiah Collet, Walter Martin, and others, from this connty. The first witness produced was Henry Drystreet, who testified that for twenty years he had heard that the prisoner was a witch, and had cast spells on several cows. James Sandelands' mother had told him that Mrs. Mattson had bewitched one of her cows, but that Mrs. Sandelands had afterwards said that she had been mistaken, it was not her cow, but that of another persons which would die. Charles Ashcom testified that the defendant's daughter-in-law, her son An- thony's wife, had told him that she had sold her cows because her mother-in-law had bewitched them, and that afterwards, having taken the spell off of Hendrick-

1 Duke of York's Book of Laws, p. 131.

2 Ib., p. 180.

3 Ib., p. 168.

4 Colonial Records, vol, i. p. 245.

6 Duke of York's Book of Laws, p. 383.

6 Dallas' " Laws of Pennsylvania," vol. iii. p. 119, sect. 4.

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HISTORY OF DELAWARE COUNTY, PENNSYLVANIA.

son's cattle, she had put it on their oxen. He also stated that the defendant's daughter-in-law one night had called him up hastily, and when he came to her she told him that she had seen a great light and that the old woman, with a knife in her hand, stood at the foot of her bed crying out, desiring " John Symcock to take away his calves, or else she would send them to hell." Annakey Coolin stated that her husband took the heart of a calf which had died, as they thought, by witchcraft, and boiled it, whereupon the prisoner came into their house and inquired what they were doing? They answered they were boiling the flesh, when she replied that it would have been better had they "boiled the bones," with several other un- seemly expressions. Margaret Mattson, in her defense, asserted that she did not care anything for the evi- dence given by Drystreet, but had "Sandelands mother come, she would have answered her ;" as for Charles Ashcom's testimony on "her soul" she de- nied it, and demanded where was her daughter? " Let her come and say so."

As to Annakey Coolin's attestation concerning the geese, she denied it. The notes of evidence do not show what this assertion was. She declared she was at the time never out of her canoe, and as respected the calf's heart, she denied ever having said anything concerning it. The prisoner at its conclusion again denied everything, declaring that the witnesses had all spoken "by hearsay." Penn thereupon charged the jury, who retired, and brought in a verdict of "guilty of having the common fame of a witch, but not guilty in manner and form as she stands in- dicted." Neal Mattson and Anthony Neelson gave bonds in fifty pounds each for her good behavior for six months, as did also Jacob Hendrickson for Yethro Henderson, and the prisoners were discharged.1

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History of Delaware County, Pennsylvania, Part 58

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