USA > Pennsylvania > The history of Pennsylvania : from its discovery by Europeans, to the Declaration of Independence in 1776 > Part 49
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by acts of assembly in 1705 and 1710, rather, it would seem, with a view to revenue, than to inhibit the trade. But an act passed the seventh of June, 1712, was unequivocal in its character; declaring in the preamble the danger of insurrec- tion and murder from a negro population, and the " umbrage of suspicion and dissatisfaction" given to the neighbouring Indians by the importation of Indian slaves, it imposed a duty of twenty pounds per head on every Indian or negro slave imported. But this humane and politic law was soon after repealed by the king in council. None of the aborigines of Pennsylvania were reduced to slavery. It would seem, however, that slaves of the Indian race were imported from Carolina and other places, to prevent which, an act was passed in 1705. The assembly of Pennsylvania earnestly struggled, and not without effect, to rid themselves of this curse, though their efforts were opposed by the spirit of trade, which pre- sided over the English councils, and uniformly rejected the acts passed for that purpose. Yet, as these acts were in force until disallowed, and were renewed as often as they were re- pealed, the slave trade was always clogged with heavy duties. In 1761 a duty of ten pounds per head on imported slaves was laid, and increased to twenty pounds, by an act passed in 1768, and confirmed and made perpetual by an act of 1773. But the act of 1761 did not pass unopposed. Some of the principal merchants remonstrated against it, declaring their interest in the trade, and pleading its advantages.
Still slavery existed in the province, and was not abolished until after the revolution. Slaves had no political rights, but the laws secured to them humane treatment, and such protection as can be granted to this degraded state. A par- ticular tribunal was established for slaves guilty of crimes, composed of two justices of the peace, and a jury of six free- holders; and the value of slaves comdemned to death was payable from the proceeds of duties on the importation of negroes.
We may with propriety notice here another class of the people who were not freemen. Many valuable individuals were imported into the province as servants, who, in consi-
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deration of the payment of their passages, and other stipula- tions, contracted to serve for a definite period. This class was a favourite of the law. Provision was made by the laws- agreed on in England for recording the names, times, and wages of servants ; masters were allowed to take up lands for their use, and the servants themselves, after the expiration of their service, were permitted to become land-holders on easy terms; they were provided with sufficient clothing, and im- plements of labour; they could not be sold out of the province without their consent, and, in case of marriage, husband and wife could not be parted. On the other hand, due care was taken to preserve the rights of the master. Many of the German and Irish settlers were of this class, from whom have sprung some of the most reputable and wealthy inhabitants of the province.
The freemen of the province originally enjoyed every per- sonal right as fully as consists with civil society. By the payment of a tax common to all, they were capable of electing, and being elected to the assembly and council. This right was qualified by the charter of 1696, and by that of 1701, was left to the regulation of law. The act of 1705 unwisely required a proprietary qualification, but it was not oppres- sive, since the amount of the estate required was attainable by almost every industrious and prudent man in the province. It provided that no one should elect or be elected unless he were a natural born or naturalized subject, above the age of twenty-one years, a freeholder, having at least fifty acres of land, well seated, and twelve acres thereof improved, or were otherwise worth fifty pounds clear estate, and were a resident of the province for two years. This act continued in force until the revolution.
The rights of conscience were sedulously preserved. Every species of religious faith was not only tolerated, but was pro- tected. Some apprehensions of the Roman catholics were occasionally excited, and, at one time, it was proposed in council to enforce the British statutes against them; but that body humanely and wisely refused their assent. The rights of personal liberty, personal security, and enjoyment of pro-
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perty, were firmly established, and efficiently protected; the laws of England relative to these subjects having undergone no alteration.
Relative rights, or such as regard the relations of husband and wife, parent and child, and master and servant, were also duly protected. By the law, marriage was a civil contract, the chief ingredients of which were the capacity and assent of the parties. Physical ability, in ordinary cases, created the moral power to enter into this contract; but if justices of the peace or clergymen assisted at the marriage of minors with- out the assent of parents or guardians, they were punishable by fine, at the suit of the aggrieved party. The law made no general provision for the dissolution of the marriage; and divorce from bed and board was allowed in case of bigamy only, on the request of the first wife or husband, made within one year after conviction. The " laws agreed upon in Eng- land" required, that a certificate of the marriage, under the hands of the parties and witnesses, should be registered in the office of the register of the proper county ; and there is great reason to regret, that this wise requisition has not been con- tinued and enforced. The same respectable code so often quoted, directed that " all children within the province, of the age of twelve years, should 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." And when the orphans' courts were established, they were charged with the superintendence of the interests of minors, and the supervision of their apprenticeships.
The laws of the province regulating real estate, differed widely from those of the mother country. The English law of descents, the creature of the feudal system, was never, in its extent, in force in Pennsylvania ; but it governed all cases not provided for by the provincial law. The " great law" of 1682 abolished the unjust right of primogeniture, distri- buted the real estate of an intestate among all his children, and established the right of disposing of it by will, attested by two witnesses. This principle was fully recognised by the laws of 1683; but was modified in 1684, by giving to the
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eldest son a double portion. The latter act abolished another unjust canon of the feudal system, by introducing the lineal ascent of estates; directing a moiety to pass to the parents, and a moiety to the governor, where the intestate left no wife, child, brothers or sisters. In 1693, the whole estate, in such case, was given to the parents, and where there were no parents, it was divided equally between the governor and the county treasurer.
But this modification was abandoned by the act of 1705, by which the real estate of an intestate was divided equally among the widow and children, or the survivers of them, as tenants in common: If the land produced rents or annual profits, the widow might claim her dower at common law: If there was a widow, and no children, she took one-half of the estate, and the heir at common law the other; if there were neither widow nor children, or the children died in their minority, the heir at common law inherited. By a supplementary act of 1764, the widow's interest in the dece- dent's lands was declared to be for life only. By an act passed in 1683, the manner of delivering possession of lands was simplified by directing the possession to follow the de- livery of the deed, instead of the old mode of livery of seizen.
Real estate thus unfettered became readily and frequently transmissable, and was rendered more mutable by the sim- plicity of conveyancing. An effective form of deed, applica- ble to the ordinary species of estates, contained in few words, was prescribed by a law of 1683. And though this form has been unwisely abandoned, the good sense which dictated it has still preserved much simplicity in our muniments of title.
The enjoyment and security of personal property were ab- solute. It was transferrable by the modes of bargain, sale, and delivery, usual in England, with the additional facility caused by an act of assembly, making choses in action, founded on written evidence, such as bonds, notes, and spe- cialties, assignable, and permitting the assignees to sue in
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their own names. An act probably growing out of the ne- cessities of William Penn, which found relief in transferring to creditors the debts due to him from individuals in the province .* About the time of the passage of this act, he proposed that bonds should be made a legal tender in pay- ment of debts. It is difficult to conceive how this proposition could have been reduced to practice; and we believe the sug- gestion was never acted upon.
Before we enter upon consideration of actions, it will be proper to notice the preventive remedies, which the pru- dence of our forefathers provided. In these they far out- stripped the policy of England, and early attained the goal towards which the English are still slowly struggling. Not content with opening wide the gates, and rendering facile the entrance to the temples of justice, the sage lawgivers of Penn- sylvania endeavoured to prevent the ignorance and uncer- tainty in relation to the titles and incumbrances of property, which cause vexatious disputes and tedious litigation. For this wise purpose, the "laws agreed upon in England," di- rected the enrolment, within two months after the making, of all conveyances of land, (save leases for a year and under,) and of all bills, bonds, and specialties, above five pounds in value; and the registry of marriages, births, burials, wills, and letters of administration, and the indentures of servants. Had these provisions, in their full extent, been continued, much difficulty now experienced in the proof of mar- riages, births, and deaths, would have been avoided. Sta- tutes of limitation, emphatically the " statutes of peace," were enacted to quiet antiquated rights; and one other, pre- ventive of litigation, short-lived, though probably useful, di- rected that the respective county courts should appoint "three peace makers," in the nature of common arbitrators, to hear and end differences between man and man.
The law declared, that " all courts should be open; that justice should neither be sold, denied, nor delayed."-" That persons of all persuasions might freely appear in their own
* Logan MSS.
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way, and according to their own manner, and there personally plead their own cause themselves, or, if unable, by their friend." But "that before the complaint of any person should be received, he should solemnly declare in court, that he believed, in his conscience, his cause to be just." " That all pleadings, processes, and records, should be short, and in English, and in an ordinary and plain character, that they might be understood, and justice speedily administered." That fees should be moderate, and established by law ;* and that justice might be brought to the doors of all, the juris- diction of justices of the peace, in England confined to the administration of criminal law, should be extended to civil cases, at first not exceeding forty shillings, and, subsequently, to causes of not more than five pounds in value. The first act on this subject, appears to have been made in 1705.
In the law relating to civil actions, there was a singular contrast between the respect for the liberty of the subject, before and after judgment. By the " laws agreed upon in England," the first process was " the exhibition of the com- plaint in court, fourteen days before the trial; and, that the party complained against, might be fitted for the same, it was required that he should be summoned no less than ten days before, and a copy of the complaint be delivered to him at his dwelling-house." The arrest of the person does not seem to have been contemplated by the lawgiver. But this immunity did not long continue; and arrests were permitted under particular circumstances. By an act of 1705, any per- son arresting another, was required to be ready on the next day after, with his declaration and evidence, and to give se- curity to pay the charges and damages of the party arrested, should there be no cause of action: persons of known estates, arrested and imprisoned, were detained at their own expense, until security for payment was given, or satisfaction made; and persons without estates could not be confined longer than the second day of the next term after their confinement : they were compellable, however, to make satisfaction by
* Laws agreed on in England.
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servitude, according to the judgment of the court-if unmar- ried, and not above fifty-three years of age, for seven years; if married, and under forty-six years of age, for five years. From this servitude, commercial policy exempted masters of vessels trading to the province from other ports. This bar- barous provision, inconsistent with the general humanity of the Pennsylvania law, polluted the statute book, not only during the whole of the colonial government, but until so late a period as 1808. Freeholders were exempted from ar- rest, but under so many exceptions, that it was always in the power of the creditor to arrest the debtor at his pleasure, where bail for his appearance was refused, or where his estate was encumbered, or his pecuniary ability doubtful-making and filing, however, before arrest, a solemn declaration of a subsisting debt.
The forms of action were such as the laws of England provided; but they were not closely pursued. The judges, generally, not professionally educated, were frequently dis- posed to free themselves from trammels which strict prac- tice imposed; and their consciences sometimes forbade them to administer justice through legal fictions. Thus the fiction of lease entry and ouster, incident to the ancient action of ejectment, was deemed inadmissible. In a case tried in Bucks county, in 1762, a distinguished attorney* refused to plead to the declaration, because he would thereby confess a falsehood, and his refusal was sustained by the court. But this fiction was never abolished by the legislature, although its removal was frequently attempted.
Trial by jury was established by the " laws agreed upon in England," and was at all times sacredly preserved. It might have been expected, that the love of simplicity and economy which suggested the tribunal of "peace makers," would have attempted a modification of this cumbrous instrument for testing truth. - It is, perhaps, indispensable to a pure and safe administration of justice, that the questions of fact and of law should be determined by different tribunals; that the
* David Lloyd.
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tryers of the fact should be occasional, that bribery might not be employed upon them; but it is not obviously neces- sary, that twelve men should agree upon the statement of t an intricate account, determine the deviation of a vessel upon a voyage insured, or the fact of a trespass on land. It may be discovered at no distant day, that a jury of three or five men, whose deliberations shall be directed by a judge, and enlightened by counsel, will prove the most safe, cheap, and- expeditious of judicatures. In the administration of the cri- minal law, the interposition of a jury, as now constituted, cannot be safely dispensed with. Before punishment, the guilt of the accused should be fully established; and it is not exacting too much to require, that it should be made appa- rent to at least twelve of his fellow citizens.
In the sanction of evidence, the Pennsylvania lawgivers departed widely from the practice of their fathers. All civi- lized nations, in formal and solemn inquiries, have demanded that the witness should confirm his testimony, by invoking the presence of superior beings, before whom dissimulation was vain, and from whose justice none can escape. Under the Jewish dispensation, the source and origin of our faith, this invocation attended almost every important action of life; but the Finisher of that dispensation having commanded, "Swear not at all," many believers have deemed oaths of every kind unlawful. The Quakers, with that moral courage, and inflexible resolution, which have ever distinguished them, refused under all circumstances to take or administer an oath. This determination deprived them of almost all the benefits of the law. In civil suits, they could neither testify for others, nor obtain witnesses for themselves. In criminal cases, they were injured with impunity. The statutes 7 and 8 Wil. III., attempted, partially, to redress this crying grievance, by permitting them to make a solemn affirmation in the "pre- sence of God, the witness of the truth." But this merely changed the form of the oath; and it was not until the S Geo. I., that the present form of affirmation, " I do solemnly, sincerely, and truly, declare and affirm," was established.
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The acquisition of Pennsylvania, gave to the Quakers the means of religious liberty, which they hastened to use. By the "laws agreed on in England," it was provided that witnesses should testify, "by solemnly promising to speak the truth, the whole truth, and nothing but the truth; and persons convicted of falsehood were liable "to suffer such damage or penalty, as the person against whom he bore false witness did or should undergo, and to make satisfaction to the party wronged, and be publicly exposed as a false wit- ness, never to be credited in any court, or before any magis- trate in the province:" oaths were thus abolished in all cases. This law was re-enacted in 1693, but was modified by an act passed in 1712, allowing an affirmation to the scrupulous, and permitting others to make oath. This and other acts of like tenor were repealed by the privy council; but, at length, the form of affirmation having been settled in England, by the 1 Geo. I., upon the model adopted in Pennsylvania, the pro- vincial act of 1718 enacted " That all manner of crimes and offences, matters and causes, may be inquired of, heard, tried, and determined, by judges, justices, inquests, and witnesses, qualifying themselves according to their conscientious per- suasions, respectively, either by taking a corporal oath, or by the solemn affirmation allowed by act of parliament;" thus extending that act to criminal cases, which were expressly excluded from its scope. This subject was wholly and finally settled in 1772, by an act of assembly, legalizing the oath with uplifted hands, after the ritual of the covenanters. These laws have extended to all, without distinction of re- ligious sects, the right to substitute an affirmation for an oath, where scruples of conscience prevail. The temporal punish- ment for falsehood uttered under either sanction is the same; and it is not to be presumed, that there will be a difference in the future.
The genius of the feudal system forbade the alienation of lands, and sternly prohibited the change of tenants at the will of creditors. It was long before commercial justice could subject lands, under any circumstances, to the payment of
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debts. In England, even at this day, the recourse to them for that purpose is slow and complex during the life of the debtor; and after his death, the specialty creditor only, to whom the heir is also bound, can resort to the lands. The Pennsylvania lawgivers, in their first attempts to legislate on this subject, proceeding with timid hesitation, adopted half- way measures.
By the "laws agreed on in England," "all lands and goods were liable to pay debts, except where there was legal issue, and then all the goods, and one-third of the lands only." . By the fifty-first chapter of the great law, the liability was ex- tended to one-half the lands: but the act of 168S provided, that " all lands whatsoever, and houses, shall be liable to sale upon judgment and execution obtained against the defendant, his heirs, executors, or administrators;" with the humane con- dition, that "the messuage and plantation upon which the defendant was chiefly seated, should not be exposed to sale, till the expiration of one year after judgment obtained, to the intent, that the owner, or any in his behalf, might en- deavour its redemption : that before sale, appraisement should be made by a jury, and that the chief plantation should be the last sold." By the act of 1700, the above provisions were substantially re-enacted; and by the act of 1705, the sale of lands taken in execution was forbidden, if the yearly profits, beyond reprizes, would within seven years pay the debt, with costs of suit; in that case, the lands were to be delivered, without further writ, to the plaintiff, until the debt should be levied by reasonable extent, in the manner lands are delivered on writs of elegit in England.
Great facility for the recovery of debts was obtained, by the action given against the heir or personal representatives of the decedent. But a more comprehensive and speedy, equitable and economical, mode of applying the estate of a decedent to the payment of his debts, was devised, which, leaving to each creditor the right to proceed for himself in- dividually, enabled the representative of the decedent to act for all, and to make distribution of the whole estate; and when
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it was insufficient to pay all, to divide it amongst the creditors, in a certain order of priority established by law. This order, with some slight change, still continues, although every pre- ference in payment, not founded on special contract and pledge between the parties, is unjust.
Failing the estate of the debtor, recourse was given to his person, in relation to which, as we have already stated, a cruel severity existed in the law, which the humanity of our ancestors did not suffer them to enforce.
So early as 1729, a permanent insolvent law was enacted, which endured, with slight alteration, as long as the colonial government. ADebtors charged in execution for sums not exceeding one hundred and fifty pounds, and not indebted to one individual in a greater sum, might be exonerated from imprisonment, on account of any debt due at the time of his discharge, by the court whence the process issued, upon sur- render of his effects to trustees, for the benefit of his credi- tors, and declaring on oath a schedule of his estate, and that he had not disposed of any part thereof, whereby to have profit to himself, or defraud his creditors; provided, that no creditor insisted on his detention in prison, and engaged to pay a stipulated sum for his maintainance. Property acquired by the debtor after his discharge, was liable to be taken in execution for his debts. Prisoners for debt under forty shil- lings might obtain the benefit of this act, by application to two justices of the peace. By an act of 1774, provision was made for the appointment of commissioners to carry into effect the assignment of insolvents. Cases of insolvency, not embraced by the general law, were provided for, from time to time, by special acts of assembly.
We can trace, perhaps, with sufficient accuracy, the source whence Penn and his associates drew their political princi- ples. Bright gleams of political light illumined the revolution which prostrated the first Charles. The Oceana of Harring- ton gave the plan of the first frame of government of the province; and the same work, the civil law, or even the ancient English common law, might have directed them to
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the equal distribution of estates among the children or re- latives of the owner, which Harrington wisely deemed the only security for the stability of a republic. The necessity for a speedy administration of justice, among the founders of colonies in the wilderness, where every hour was needed, to fell the forest, or cultivate the field, taught our forefathers the worse than uselessness of the logic then prevalent in the courts-that creature of ingenuity and selfishness, which, like a spider's net, spread its meshes to feed its framers. But whence did the Pennsylvania lawgivers derive their system of criminal jurisprudence? It was not found in England, nor in conti- nental Europe. The puritans of the revolution gave to the criminal code of the former a darker hue. The theocracy of the Jews, towards which religious reformers are too apt to look, was dyed in blood. Whence then did Penn and his followers learn, that, in moderate governments, the love of country, and the sense of shame, are the greatest pre- ventives of crime? that, in republics, the greatest punishment of a bad action is conviction; and that the wisdom of the le- gislator is better employed in preventing crimes, than in de- vising punishment ? Is it, that the knowledge and love of civil liberty teaches mercy and forbearance; or does a proper understanding of the principles of the great Founder of Christianity lead us to treat with charity our fellow beings, who have fallen by temptations, which, in like circumstances, might have proven irresistible to ourselves?
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