History of Montgomery County, Pennsylvania, Part 27

Author: Bean, Theodore Weber, 1833-1891, [from old catalog] ed; Buck, William J. (William Joseph), 1825-1901
Publication date: 1884
Publisher: Philadelphia, Everts & Peck
Number of Pages: 1534

USA > Pennsylvania > Montgomery County > History of Montgomery County, Pennsylvania > Part 27

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"Twenty-first. That all defacers or corrupters of cbarters, gifts, grants, bonds, bills, wills, contracts, and conveyances, or thint sball deface or falsify any enrolment, registry, or record within this province, shall make double satisfaction for the same; half whereof shall go the party wronged, and they shall be dismissed of all places of trust, and be pub- lickly disgraced as false meu.

"Twenty-second. That there shall be a register for births, mar- riages, burials, wills, and letters of administration, distinct from the other registry.

"Twenty-third. That there shall be a register for all servants, where their names, time, wages, and days of payment shall be registered.

"Twenty-fourth. That all lands and goods of felone shall be liable to make satisfaction to the party wronged twice the valne ; and for want of land or goods, the felons shall be bondmen, to work in the common prison or workhouse, or otherwise, till the party injured be satisfied.

"Twenty-fifth. That the estates of capital offenders, as traitors and murderers, shall go one-third to the next of kin to the sufferer, and the remainder to the next of kin to the criminal.

"Twenty-sixth. That all witnessee, coming or called to testify their knowledge in or to any matter or thing in any court, or before any lawful authority within the said province, shall there give or deliver in their evidence or testimony, by solemnly promising to speak the truth, the whole truth, and nothing but the truth. to the matter or thing in question. And in case any person so called to evidence shall be convicted of wilful falsehood, such person shall suffer and undergo such damage or penalty as the person or persone against whom he or she hore false witness did or should undergo; and shall also minke sat- isfaction to the party wronged, and be publickly exposedl as a false-wit- ness, never to be credited in any court or before any magistrate in the said province.

"Twenty-seventh. And to the end that all officers chosen to serve within this province may with more care and diligence answer the trust reposed in them, it is agreed that no such person shall enjoy more than one publick office at one time.

" Twenty-eighth. That all children within this province of the age of twelve years shall be taught some useful trade or skill, to the end none may be idle, but the poor may work to live, and the rich, if they become poor, may not want.

"Twenty-nintb. That servants be not kept longer than their time, and such as are careful be both justly and kindly used in their ser- vice, and put in fitting equipage at the expiration thereof, according to custom).

" Thirtiethi. That all scandalons and malicious reporters, backbiters, defamers, and spreaders of false news, whether against magistrates or private persons, shall be accordingly severely punished as enemies to the peace and concord of this province.

" Thirty-first. That for the encouragement of the planters and traders in this province, who are incorporated into a society, the patent granted to them by William Penn, Governor of the said province, is hereby ratified and confirmed.

" Thirty-second. * * * * * * " Thirty-third. That all factors or correspondents in the said prov- ince wronging their employers, shall make satisfaction, and one third over to their said employers : and in case of the death of any such fac- tor or correspondent, the committee of trade shall take care to secure 80 much of the deceased party's estate, as belongs to his said respective employers.

"Thirty-fourth. That all treasurers, judges, masters of the rolls, sheriffs, justices of the peace, and other officers and persons whatsoever, relating to courts or trials of causes, or any other service in the govern- ment ; and all members elected to serve in provincial Council and Gen- eral Assembly, and all that have right to elect such members, shall be such as profess faith in Jesus Christ, and that are not convicted of ill fame, or unsober and dishonest conversation, and that are of one and twenty years of age at least and that all such 80 qualified, shall be capable of the said several employments and privileges as aforesaid.

" Thirty-fifth. That all persons living in this province, who confess and acknowledge the one almighty and eternal God, to be the creator, npholder and ruler of the world, and that hold themselves obliged in conscience to live peaceably and justly in civil society, shall in no ways bo molested or prejudiced for their religious persuasion or practice in matters of faith and worship, nor shall they be compelled at any time to frequent or maintain any religious worship, place or ministry whatever.

" Thirty-sixth. That according to the good example of the primitive christians, and for the ease of the creation, every first day of the week, called the Lord's day, people shall abstain from their common daily labour, that they may the better dispose themselves to worship God according to their understandings.

"Thirty-seventh. That as careless and corrupt administration of jns- tice draws the wrath of God upon magistrates, so the wildness and loose- ness of the people provoke the indignation of God against a country: therefore, that all such offences against God, as swearing, cursing, lying, prophiane talking, drunkenness, drinking of healths, obscene words, incest, sodomy, rapes, whoredom, fornication, and other uncleanliness

PENN'S COLONY FOUNDED ON THE DELAWARE.

(not to be repeated). All treasons, misprisious, murders, duels, felonies, eeditions, maims, forcible entries, and other violences, to the persons and estates of the inhabitants within this province : all prizes, stage plays, cards, dice, may-games, masques, revels, bull-baitings, cock-figlitings, henr-baitings, and the like, which incite the people to rudeness, cruelty, looseness, and irreligion, shall be respectively discouraged, and severely punished, according to the appointment of the governor and freemen in Provincial Council end General Assembly, as also all proceedings con- trory to these laws, that are not here made expressly penal.

"Thirty-eighth. That a copy of these laws shall be hung upin the Provincial Council, and in publick courts of justice, and that they shall be read yearly, at the opening of every Provincial Council and General Assembly, and courts of justice, and their assent shall be testified by their standing up, after the reading thereof.

" Thirty-ninth. That there shall be at no time any alteration of any of these laws, without the consent of the governor, his heirs or assigns, and eix parts of seven of the freemen, met in Provincial Conucil and General Assembly.

" Fortieth. That all other matters and things not herein provided for, which shall and may concern the publick justice, peace or safety of the said province; and tho raising and imposing taxes, customs, duties, or other charges whatsoever, shall be, and are hereby referred to the order, prudence and determination of the governor and freemen io Provincial Council and General Assembly, to be held from time to time in the said province.

"Signed and sealed hy the Governor and freemen aforesaid, the fifth day of the Third month, called May, one thousand six hundred and eighty-two."

This code was a practical outline of the "Holy Experiment." It could he agreed upon in England, but must come with devoted colonists to the virgin soil of Pennsylvania for trial. These laws, so free from all repressive measures in relation to religious tolerance, were far in advance of all ecclesiastical or legislative thought in Europe, and, with but one nota- ble exception1 among the provinces fringing the At- lantic coast in this country, were alike new and start- ling. The manner of perpetuating evidences of purchase and titles to landed estates, their liability for debt, the establishment of courts of justice, the

1 But we must except the Catholic colony in Maryland, founded by Sir George Calvert, whose charter of 1632 and the act of toleration passed by the Assembly of Maryland in 1649, puder the inspiration of Sir George's son, Cæcilius, must be placed alongside of Penn's work. Two brighter lights in an age of darkness bever shone. Celvert's charter was written during the heat of the Thirty Years' religions war, Penn's Con- stitution at the moment when all Disssenters were persecuted in England and when Louis XIV. was about to revoke the Edict of Nantes. The Virginians were expelling the Quakere and other sectaries. In New England the Puritan Separatists, themselves refugees for opinion's sake, martyrs to the cause of religious freedom, were making laws which were the embodiment of doubly distilled intolerance and persecution. Roger Williame was banished in 1635, in 1650 the Baptists were sent to the whipping-post, in 1634 there was a law passed for the expulsion of Ana- baptists, in 1647 for the expulsion of Jesuits, and if they returned they were to he put to death. In 1656 it was decreed against " the cursed sect of heretice lately risen up in the world, which are commonly called Quakere," that captains of ships bringing them in were to be fined or im- prisoned, Quaker booke, or " writings containing their devilieli opinions," were not to be imported, Quakers themselves were to be sent to the house of correction, kept at work, made to remain silent, and severely whippedl. Thie was what the contemporaries of Calvert and Penn did. We have Been Penn'e law of liberty of conscience. Calvert's was equally liberal. The charter of Calvert was not to be interpreted so as to work any dim- inution of God'e sacred Christian religion, open to all sects, Protestant and Catholic, and the act of toleration and all preceding legislation, offi- cial oaths, etc., breathed the same spirit of toleration and determination, in the worde of the oath of 1637, that done in the colony, by himself or other, directly or indirectly, will " trouble, molest, or discountenauce any person professing to believe in Jesus Christ for or on account of hie religion."

manner of distributing decedents' property, and the practical sundering of church and state all marked an era of progressive legislation.

"There are few more striking differences between the mother-country and her colonies, from the first settlement of the latter down to the present day, than the system of registration of deeds, or, as it is gener- ally called here, their recording. It was a favorite object of the old common law-I mean long before the Conquest-that possession of land and its transfer should be open and notorious, and the livery of seisin (the mode of transfer long before the introduction of deeds) was made in the presence of others. And when later, though still in Saxon times, deeds came into use, it was the custom to transact all conveyances at the County Court, and enter a memorial of them in the ledger hook of some adjacent monastery, and these gradually hecame the depositaries of the char- ters or title deeds of the great landed proprietaries. All such deeds as could be found were destroyed by William the Conqueror, as part of his policy that all titles should commence from himself, and thenceforth we lose, for several hundred years, all trace of any such thing as registration. Not only this, but with the introduction of Uses lands came to be secretly held and secretly conveyed, so that 'scantly any per- son could be certainly assured of any lands by thiem purchased, nor know surely against whom they should use their actions or executions for their rights, titles, and duties,'-so ran the preamble to the Statute of Uses,-' to the utter subversion of the ancient common laws of this realm.' In the same year of Henry VIII.'s reign there was passed both the Statute of Uses and the first of the present register acts still in force, viz., 'The Statute for inrollment of bargains and sales.' But this, as also a subsequent local statute of Elizabeth, proved inoperative, first, by reason of being limited to deeds of estates of inheritance of freehold, and the device was soon introduced of a bargain and sale for a term of years followed by a release of the re- version, which effectually evaded the statute, and, secondly, because neither was there a place assigned for keeping the records, nor was the registrar made responsible for his duty. During the time of the Commonwealth the subject was more than once pre- sented to Parliament, and unsuccessfully, and it was not until the reign of Anne that there was passed the first of the statutes now in force, providing with some care for the registration of all deeds in the West Riding of Yorkshire, and this was followed by similar local statutes in the same reign, and in those of William and Mary and George II. Their sum may he stated in that they applied to all the Ridings of York, the town and county of Kingston-upon-Hull, the county of Middlesex, and the Bedford Level Tract; and in the preambles to those statutes you will find how earnestly are set forth the evils sought to be cured by registration. But such has been the settled dislike of the people, or at least that land-

HISTORY OF MONTGOMERY COUNTY.

holding portion of it which make the laws, that no- toriety or even possibility of knowledge outside of those concerned should attend the transfer of land that there has never been in England even an approach to the system which we have. Not that the subject has not been mootcd. During the eighteenth century six registration bills were presented which never even

went to a second reading. In the present century, in 1815, a statute for a general registration was presented by Romilly, which shared the same fate. In 1829 there was appointed the well-known commission, with Lord Campbell at its head, 'to inquire into the state of real property in England.' Prominent in the inquiry was registration, and you will find in the folio volumes of their report hundreds of pages of evidence of the ablest lawyers of the kingdom,- evidence as to the register counties, evidence as to the English colonies, evidence as to some of the United States, evidence as to Continental States,-the great weight of which the commission thought was de- cisive upon the question. Accordingly they reported a bill, which was introduced in an able speech by Campbell, and opposed by Sugden and others, but it only passed a first reading. You will find the subject again brought up in 1831, in 1832, in 1833, and finally in 1834, after an elaborate debate, in which the opponents of the measure had really little more to urge than that there was a prejudice against it, the bill was lost on second reading by a vote of nearly three to one, and Campbell tells us in his auto- biography just published, with perhaps just a little malice, that it was owing to the country members being persuaded by their attorneys to vote against it.

"In 1854 another royal commission was issued, which, after investigation, rejected the scheme for the registration of deeds, and recommended the registra- tion of titles, and such a bill was, in 1859, brought in by Sir Hugh Cairns. It was dropped, however, and then, in 1862, was passed Lord Westbury's act for the registration of indefeasible titles. These were very like the snakes in Iceland,-there were none, or at least very few, and the act practically came to nothing. Then came the Land Transfer Act of 1875, which was not compulsory, and came practically to nothing. Then, in 1878, was appointed a select com- mittee to report what steps should be taken to facili- tate the transfer of land, and a mass of important and interesting testimony was taken under it, including that of Lord Cairns, then Chancellor, who thoughit that one of the great objections to registration was that 'in the English mind there was, at the bottom, a most profound respect for title deeds, and that when the supreme moment comes at which a man is told that he must part with all his title deeds, and receive in lieu a little piece of paper, which is to be the evi- dence of his title to the land, the sacrifice is too great for human nature to make, and he declines to make it.' The committee reported a bill in the session of 1880, which went further than any of the previous

ones, and it might have passed, but there were several other land bills of confessedly greater importance, such, Mr. Gladstone said, as the one as to 'ground game,' and accordingly, as we all remember, the House talked about ' the Hares and Rabbits Bill' till late into a late session. Finally there was passed the 'Conveyancing and Law of Property Act,' which re- ceived the royal assent, but which omits any provi- sions as to general compulsory registration.

" It is somewhat curious that it seems to be almost taken for granted in England that no system of regis- tration can be effectual which does not depend upon the good-will of the land-dealing community,-in other words, that there can be no such thing practi- cally as compulsory registration ; but it would seem that nothing can be simpler than to provide for the postponement of the unregistercd deed to the regis- tered one, and this provision secures the practical, successful working of the system throughout the breadth of this country.

" In contrast with the English system, how striking is the fact that from the earliest settlement of our colonies the benefits of registration were seen. In Pennsylvania, some years before the charter to Penn, it had been provided in the early provincial laws that every clerk of every Court of Sessions should enter all grants, bargains, sales, and mortgages of land, ' together with the estates of the grantor and grantee, things and estates granted, together with the date thereof.' Then, in the 'Laws agreed upon in Eng- land,' shortly after the grant to Penn, provision was made for the registration of all charters, gifts, and conveyances of land, except leases for a year and under, 'in the public enrollment office of the prov- ince.' This was accordingly approved and enacted in the 'Great Law,' passed at Chester in 1682, and the next year it was declared that the laws as to registry should, like others deemed of great importance, such as those concerning liberty of conscience, liberty of property, liberty of person, open courts, speedy jus- tice, the laws to be in English, etc., be reputed and held for fundamental in the government of the prov- ince.

" There is much curious learning about the various recording acts which were passed after this, in 1693, 1700, 1705, 1710, and 1715, all of them except the last repealed by the Queen in Council, and much that is interesting and not generally known as to the re- peal of these laws and their re-enactment here at the singular intervals of five years. It is enough here to say that finally the act of 1715 was passed, which, es- caping the fate of repeal, remains in full force to-day. It provided, in effect, for a record office in every county, and that all deeds of lands properly acknowledged and recorded were to have the force and effect of deeds of feoffment with livery and seisin, or deeds enrolled in any of the king's courts at Westminster. Except as to mortgages, however, the statute was not compulsory, and it was not until 1775 that it was re-

PENN'S COLONY FOUNDED ON THE DELAWARE.

quired that all deeds and conveyances should be re- corded within six months after their execution, or else to be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable con- sideration. It is natural to pass from the devolution of estates to their administration.

" Penn's charter gave him power to establish among other things officers for the probate of wills, and for the granting of administration.

" A little thought as to what was the law in Eng- land with respect to this will show how inapplicable was its machinery to the wants of the new colony, for England was then, as now, divided, ecclesiasti- cally, into the provinces of York and Canterbury ; each of these was divided into dioceses, and the bishop of each diocese where a decedent had his domicile possessed, by the name and style of the Ordinary, the jurisdiction of the probate of wills, the granting of letters testamentary, the appointment of administrators, and the control over them and their accounts, and the courts in which these and cognate matters came up for judicial action were ecclesiastical courts, of which the principal ones were the Preroga- tive Courts of Canterbury and York, the Peculiar, the Royal Peculiar, and certain manorial courts.

" But while this was so as to the estates of decedents, the care of the persons and estates of infants had been from an early day vested in the sovereign as parens patrice, and was later exercised, as it is to this day, by the Court of Chancery.

" But our colonists needed neither ecclesiastical courts for their decedents nor a parens patric for their infants. Before the charter, provision had been al- ready made for the probate of wills and granting of administration by the Court of Sessions, as also for the distribution and sale of the estates of decedents, and for the filing of an inventory by 'all persons who have any estate in their possession belonging to any that are under age.' Provisions were made in the 'Laws agreed upon in England,' as also in the 'Great Law,' for a register for births, marriages, burials, wills, and letters of administration, and the register- general was, after the charter, appointed by the Pro- prietary and granted letters.

" The act of 1705 was precise as to the appointment by the Governor of the register-general, who should keep his office at Philadelphia, and from time to time constitute deputies in each of the other counties.

"From the preamble to the act of 1712 it would seem that no register-general, either for the other counties or even for Philadelphia, had been appointed, and the provisions of the act of 1705 were thereby re- enacted, with others, providing for the appointment of a register-general by 'the commissioners, agents, or stewards of the Proprietary,' if he should neglect, and in case of their neglect by the judges of the Court of Common Pleas of Philadelphia Connty.

" The law as to registers remained unaltered till the Revolution, when, owing to the change of govern-

ment, the office of register-general was by the act of 1777 abolished, and an office called the 'Register's Office' established in each county and such is sub- stantially the law to the present day.

" To the register and the Register's Court was com- mitted that class of cases relating to decedents' estates which were cognizable by the Ecclesiastical Courts in England; and this continued until, by our recent Constitution of 1874, the jurisdiction of the Register's Court was transferred to the Orphans' Court.

" The Orphans' Court had a different origin, and was taken from one of the customs of London. If the sovereign had, as we have seen, as parens patric, the care of the persons and estates of infants, the 'cus- tom of orphanage, one of the most considerable cus- toms of London, as it respects the children of free- inen who died possessed of great personal estates,' was of at least equal antiquity. The Court of Or- phans was held before the Lord Mayor and Aldermen of the city of London, and the custom was that 'if any freeman or freewoman die, leaving orphans within age, unmarried, the said court have the cus- tody of their body and goods.' To this end execn- tors and administrators were bound to exhibit true inventories before it, and to become bound to the chamberlain to the use of the orphans to make a true account upon oath, on pain of commitment. As in the case of a ward in chancery it was a contempt to marry one without the leave of the court, it was equally a contempt of the Court of Orphans, who promptly acted by fine and imprisonment, and, as was and is the case with the Court of Chancery, only released its severity upon submission by the offender and making a proper settlement.

" Many of the colonists came from the city of Lon- don, and it was natural that some of the laws upon our early statnte books, and some of our customs not found in written laws, were the same as those accord- ing to the custom of London. We have already no- ticed the early and vague laws of 1676, of 1683, and of 1693, but in 1701 was passed a law of greater precision. It was an elaborate act for establishing courts of judicature, and gave to the Orphans' Conrt jurisdiction over all persons intrusted with the prop- erty, real and personal, of orphans or persons under age, either as guardians, tntors, trustees, executors, or administrators. You will observe that this was still an Orphans' Court; it had no jurisdiction over execu- tors or administrators, except as to the property of minors in their hands, and as to such property, its jurisdiction extended to both lands and chattels. This was in 1701. Then in 1705 was passed the intestate law we have already referred to, by which adminis- trators (not executors) were to account to the Orphans' Court (meaning the Orphans' Court under the act of 1701), which also had jurisdiction of the distribution of the surplus, the partition of the real estate of in- testates, and its sale for the payment of debts and maintenance of children. But in the same year the

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History of Montgomery County, Pennsylvania, Part 27

Author: Bean, Theodore Weber, 1833-1891, [from old catalog] ed; Buck, William J. (William Joseph), 1825-1901 Publication date: 1884 Publisher: Philadelphia, Everts & Peck Number of Pages: 1534

Author: Bean, Theodore Weber, 1833-1891, [from old catalog] ed; Buck, William J. (William Joseph), 1825-1901
Publication date: 1884
Publisher: Philadelphia, Everts & Peck
Number of Pages: 1534