USA > Pennsylvania > Delaware County > Upland > The record of the court at Upland, in Pennsylvania, 1676 to 1681, And a military journal, kept by Major E. Denny, 1781 to 1795 > Part 2
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1 Guerre d'Angleterre, 22; Amsterdam, 1668.
2 The conduct of Carr did not, in one respect, meet the approbation of his colleague Nicolls, who says : "Within the Fort a considerable cargo is found and some part plundered, but I feare the rest is in hucksters hands, for though S! Robert Carr stayed aboard the Guinney, whilst his souldyrs tooke the fort, he came early enough to the pillage and sayes tis his owne, being wonn by the sword; but by his favour I knew such accompt must not be given to His Majestie, and I shall this week make a journey hither to dispose thereof to His Matyes service and not to private uses." Nicolls to Sec. of State, Oct. 1664 (Doc. Rel. Col. Hist. N. Y., iii., 69).
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The first blood shed in any European contest upon the shores of the Delaware flowed at the capture of New Amstel. "Whatever may have been its ultimate conse- quences, this treacherous and violent seizure of the terri- tory and possessions of an unsuspecting ally was no less a breach of private justice than of public faith." 1
The acquisition of the City's colony at Horekill followed, and thus was extinguished "the Dutch dominion in America." 2
Although the country was violently seized, the con- querors knew that the habits of the people were not to be easily changed : the Commissioners therefore instructed their colleague, Carr, to continue all magistrates in office for six months, upon their taking the oath of allegiance, and to retain the existing laws as to the "administration of right and justice." 3
The inhabitants were also promised, that they should enjoy liberty of conscience, and their tenures unmolested : which stipulations were inserted in the articles of capi- tulation, on the surrender of New Amstel, thenceforth New Castle. 4
In May, 1667, Governor Nicholls was succeeded by Francis Lovelace. 5
For the assistance of Deputy-Governor Carr there was established at New Castle, in 1668, a temporary Council, composed of himself, the Schout, and five others, who took the oath of allegiance to the Duke of York, and over which
1 Brodhead's Hist., 745. 2 Id., 744. 3 Hazard's Reg., i. 37.
4 It was after this sometimes called the "Fort and town of Delaware."
5 Hazard's Ann., 370.
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the authorities at New York maintained a supervisory power. To what extent Dutch usages and laws were to this period respected, cannot now perhaps be ascertained; but the old Dutch magistrates were probably retained in power : for so mild had been the spirit of change, that the office of Schout was still in existence. Indeed, so late as 1670, Herman Fredericksen was commissioned Schout at the Horekills, and, with two Commissaries, constituted a Court to try differences under £10;1 and even so late as 1672, that peculiar office was recognized.
It would appear, that it was not until 1668 that any allusion was made, so far as related to the Delaware, to "the Lawes" established by the Duke of York; and in confirmation of what has been said, as to the disposition manifested by Lovelace and his Council, not to offend or alienate by any sudden change, it is remarkable that they recommend that "the lawes" be merely "showed and fre- quently communicated to said Counsellors and all others, to the end that, being therewith acquainted, the practice of them may also in convenient time be established." 2
These laws were compiled from those in force in other English colonies and plantations, and embraced about ninety different heads. Although additions were made from time to time, it would have been impossible to meet every case which might arise, and it was accordingly pro- vided that in matters of appeal the Court of Assizes should " decide according to the direction of the Bench, and not contrary to the known laws of England."
The title states the manner of and authority for the
1 Hazard's Ann., 380. 2 Id., 372.
3
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enactment of the code, as follows: "Lawes established by the authority of his Majesties letters patents, granted to his Royal Highnesse, James, Duke of York and Albany ; bearing date the 12th day of March, in the 16th year of the Raigne of our soveraigne, Lord King Charles the Second. Digested into one volume for the publick use of the territories in America, under the government of his Royal Highnesse. Collected out of the several laws now in force in his Majesties American Colonyes and Planta- tions. Published March 11th, A. D., 1664, at a general meeting at Hemsted upon Longe Island, by virtue of a commission from his Royall Highnesse, James, Duke of York and Albany, given to Colonel Richard Nicolls, Deputy Governeur, bearing date the 2d day of Aprill, 1664."1
In May, 1672,2 the town of New Castle was incorporated by the Governor and Council at New York, and the in- habitants were allowed to choose a bailiff and six assist- ants. A constable's Court was also erected to try causes amounting to £10, without appeal.
This period is marked by the establishment of the Duke of York's laws, and the introduction of the common and statute laws of England so far as they were applicable, ac- cording to the terms of the following order in Council : " English laws to be established in the town 3 and river, the office of Schout to be converted into Sheriff for the corpo- ration 4 and river, and to be chosen annually."
Edward Cantwell was chosen the first High Sheriff under the English Government.5
1 Collections of the New York Hist. Soc., for the year 1809, vol. i. 307.
.2 Id., 396. 3 Of New Castle. + Id., 396. 5 Id., 398.
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The earliest mention of Upland as a location in America, occurs in 1648 ; the name might seem rather English than Swedish, were it not known that many of the emigrants came from Upland, a province in Middle Sweden on the Baltic, to which the natural features of the new region bore some resemblance. Upland, although not named, was probably one of the settlements referred to in 1643, as existing between the Island of Tinnicum and Fort Christina. 1
It was at Tinnicum, as has been remarked, that Printz fixed his government, and where the principal people among the Swedish emigrants established themselves ; it may, therefore, be regarded as the centre from which for the first time justice was regularly administered within the present limits of Pennsylvania, as previously to the arrival of Printz, Christina had been the place to which the scattered settlers within those limits resorted when they felt themselves aggrieved.
The Swedes, after their conquest by the Dutch, appear still to have been governed by their own officers, and were directed to concentrate themselves in villages. Among the places named for this end was Upland.2 This concilia- tory policy of continuing the Swedish magistrates in office, from which the English wisely took example, did not har- monize with the views of the Dutch West India Company, and they censured Stuyvesant, in that spirit of prejudice and suspicion, the effects of which, had, hitherto, so often retarded the prosperity of the Colony.3 Stuyvesant, in 1658, visited the Delaware, and met the Swedish sheriff
1 Id., 70. 2 Id., 236.
3 Id., 249, 251.
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and magistrates at Tinnicum, from which it may be in- ferred that a Court was still held there.
The executive power over the Colony on the river, was exercised by a Vice-Director, who derived his appointment and instruction from the Director and Council at Man- hattan. The legislative and judicial powers were exercised by the Vice-Director and his Council, subject, as to appeals from their decision, and the power of originating fresh in- structions, to the supervision and control of the authori- ties at New Amsterdam; both, however, being governed by the ordinances of the West India Company, the civil law, the enactments of the States-General, and the cus- toms and usages of Holland or Brabant;1 and in criminal matters, Dambonder's Praxis Rerum Criminalium.
The great destruction some years since in Holland, of the Documentary History of New Netherlands, must ever be a source of deep regret, especially to us, for periods in our annals, prior to the grant to Penn, which are almost blank, will now, probably, receive no illustration.
As to the mode of administering justice by the Dutch, upon the Delaware, little is known of its details, and as both the Dutch and Swedish colonies were military, it is not improbable that the pandects of the civil law and the usages of the mother country sometimes yielded to more arbitrary notions of right and wrong, as they found their exponents in the breast of the Vice-Director.
The system of municipal governments and free commu- nities, one of the most striking features in the constitution of Holland, and more in keeping with the genius of the
1 O'Callaghan's Hist. vol. i., 220. Brodhead's Hist., 163.
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institutions of that country and the feelings of the people, than the rule of a Director and Council, was not exem- plified on the Delaware until the organization, at New Amstel, of the Colony of the City of Amsterdam, the government of which was modelled after that of the latter place ; the most important office being the Schout, a func- tionary whose duties comprehended those of sheriff and prosecuting attorney.1
If so little is known of the Dutch Courts, less is known of the Swedish. Almost the only intimation on the sub- ject is that already quoted from the instructions to Printz, that he should " decide all controversies according to the laws, customs and usages of Sweden."? This, although but a glimpse, is sufficient to show that no special code was
1 Hazard's Annals, 221. Brodhead's Hist. of N. Neth., 163. O'Cal- laghan's Hist. of N. Neth. i., 102. Davies' Hist. of Holland, i. 77.
2 The Governor of the Swedish Colony, Printz, found that his military education disqualified him as a judge in civil cases. Irrespective of the difficulties he encountered from the want of precedents as applicable to the colony, and the complication of questions presented for decision, he felt as protector of the interests of the West India Company, the em- barrassmient of acting in the capacity both of judge and plaintiff. In a report dated February 20, 1647, to the West India Company, he stated his troubles upon these points :
"16. . . . Again, I have several times solicited to obtain a learned and able man. 1st. To administer justice and attend to the law busi- ness, sometimes very intricate cases occurring, in which it is difficult, and never ought to be for one and the same person to appear in Court as plaintiff as well as judge. 2d. To act as secretary, especially in the Latin language, for it many times has happened, as is proved by the an- nexed paper, that I have received Latin letters from all parts. These it would be well to answer in Latin, as I really have attempted to do in the best way possible for me; but I do wish, and submissively entreat for the future, to be released from such a work, through the assistance as above stated of a proper and learned man." (Swedish MSS., Archives Hist. Soc. Penna).
3 *
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prepared for the government of the colony. The laws of the mother country were, in ancient times, various and con- flicting, each province being governed by its own peculiar customs and statutes. About the year 1614, a compilation of these laws was made for the direction of the whole kingdom; deficiencies and obscurities in doubtful cases being supplied or explained by the aid of the civil law.
By this code, Printz was doubtless directed in the deci- sions which, as Governor and Chief Magistrate, he was bound to make; for although Swedish writers assert that trial by jury is of Swedish origin, no instance is known of its application in the colony.1
It is uncertain whether the Swedes or the Dutch ever held a Court at Upland prior to the conquest by the En- glish; and the period at which, under the latter, it became a seat of justice, cannot from our present knowledge be determined. As however they were indisposed to make unnecessary innovations, and were willing to continue the Dutch magistrates in authority, with titles and powers un- known to English law, it is not perhaps an unwarrantable conjecture that they found a Court existing there, which having been originally established by the Swedes, and con-
1 " An account of Sweden, London, 1694, ch. III." "Suecia sive de Suecorum Regio Dominiis et opibus. Commentarius Politicus." Lugd. Batav., 1631, ch. III.
There were some matters of domestic regulation in the subject of or- dinances, which were established either by the home government, or by the Swedish Governor himself, under the powers conferred upon him; an example of the latter may be found in an ordinance drawn up by Risingh, entitled : " An Ordinance concerning the People, Country, Agriculture, and Cattle," given in New Sweden, the year 1654. Swedish MSS., Ar- chives Hist. Soc. of Penna.
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UPLAND COURT.
tinued by the Dutch, was now in turn recognized by the English.
On the 18th of August, 1672, the "Court at Upland,"1 was directed by the Court at New York, to investigate a question of title to land; a proof that at this period, at all events, a Court was in existence at that place, and that the earliest tribunal under English sanction, within the limits of what is now the State of Pennsylvania, held its sittings at Upland, since called Chester.
In 1673, the Dutch regained by conquest their former possessions. Anthony Colve was appointed Governor at New York, the name of which was changed to Fort Wil- liam Henderick; and the inhabitants on the Delaware, declared their submission.2
The conditions agreed upon by the Deputies from the Delaware, and the Dutch Governor and Council, provided for " freedom of conscience," and the organization of three judicial districts on the river, or perhaps more correctly, the recognition of those already existing, namely :
One Court of Justice for the inhabitants of the Hore- kill dwelling, between "Cape Hinloopen and Boomties [Bombay] Hook."
One for New Amstel, for inhabitants between "Boom- ties Hook and Kristina-Kill."
One for Upland, for inhabitants between "Kristina-Kill and upwards, unto the head of the river." 3
1 Hazard's Annals, 398. 2 Id., 407.
3 Documents relating to Col. Hist. of N. Y., II., 605.
" The falls" of the Delaware at Trenton, or head of the river, were by the Swedes, and afterwards by the English, regarded as the point which bounded the judicial limits on the north. The Indian name for this place was Sankhikans.
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The nomination of the Judges was left with the people, who were required to vote for eight persons, from whom a selection was made by the Governor, of four for each district.
The authority of the Dutch was of short duration; the country having been restored to the English, in 1674,1 under the treaty of Westminster, Sir Edmund Andross re- appointed those magistrates who were in office at the time of the reconquest by the Dutch.
From this period, to the date of the first entry in the following book of Minutes, little of interest is mentioned in our annals. It is to be feared that the prior Records of the Court are lost-for an entry will be seen, proving that they once existed.
The document now published, registers the last official act, under the Duke of York's administration, in a notice to the magistrates of the cession of the territory to William Penn, and a direction that they should yield obedience to the new Proprietor.
The powers exercised by the five magistrates at Upland were comprehensive : for they were, in fact, not only judi- cial, but legislative.
The extent to which Penn was indebted to the Swedes, as active and worthy pioneers in the partial cultiva- tion and settlement of his possessions, was not unappre- ciated by him. There is yet another reason, why our Founder was, and doubtless felt himself, indebted to the Swedes, and more particularly to the Dutch : it was for their inflexible opposition to all intruders, or those whom
1 Hazard's Annals, 410.
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they chose to consider such, especially the people of New England, who at different periods attempted to gain a foothold upon the soil. In this exclusive policy, the Swede and the Hollander were alike steadfast. In vain did the strangers turn their gaze to a milder climate and more genial soil, and in the earnest words of their peti- tion, declare, that the " Delaware, in the judgment of those that have often and seriously viewed the land and con- sidered the climate, is a place fit for the enlargement of the English colonies at present, and hopeful for posterity."1. .. The enterprising spirit of our Eastern neighbors either had not been developed at that day, or was tired out by the pertinacious resistance which it encountered; for, after many fruitless endeavors, their attempts to effect a settle- ment upon the western side of the river were abandoned. Had success attended those efforts, it is more than pro- bable that the territory would not have afforded to the future founder of Pennsylvania, "room there for such an holy experiment." 2
1 Hazard's Annals, 129.
2 Penn to Harrison.
3
Return of Clu land Court.
ATT a Court held at Uppland in Delowar Riuer By the authority of o. Soueraigne Lord Charles the Secund by the Grace of God of England, Scotland, France, & Yreland King, defendor of the faith, the 14th of November and in the 28th jeare of his sa mayties Raigne, Annoq Domini 1676 ;
Capt". John Colier & Capt". Edmond Cantwell being Impowered by his hono", the Governo", for to administer the oath unto the Justices hereunder named according to the new Commission the same was accordingly done and were sworne, viz:
MR PETER COCK - MR PETER RAMBO MR ISRAEL HELM MR LACE ANDRIES
Justices
MR OELE SWEN MR OTTO ERNEST1 7
Itt was ordered that the severall new Commissions etc : should bee Recorded
1 All of these were Swedes, and their names frequently occur in the his- tory of the Colony. Helm was for many years Indian interpreter. Rambo and Cock were two of the four magistrates, who, in 1658, met Governor Stuyvesant at Tinnicum " with a petition for various privileges " (Hazard's
(35)
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RECORD OF
Copia
BY THE GOVERNOR.
These, are to authorize Capt". John Colier & Capt". Edmond Cantwell or Either of them to give the oaths to the new Magestrates, att New Castle and upp the river att Delowar, as also att the whorekill for the doing whereof, this shall bee yo" Warrant. Given under my hand in New Yorke this 27th day of Septembr. 1676
(Signed) E. ANDROS.
[Loco SIGILI.]
EDMOND ANDROS1 Esq" Seigneur of Sausmarez Lieu:+ and Governo": Gener:"1 under his Roy! Highnesse James Duke of Yorke & Albany etc. of all his Territories in America.
Ann., 243). Rambo was afterwards appointed commissary, an office which he resigned in 1661 (Id., 324). Cock, in 1663, was appointed collector of Tolls on Imports and Exports (Id., 349); and, in 1668, they were, with Helm, chosen members of Governor Carr's Council (Id., 371).
Rambo, who came with the original settlers, and Helm, were born in Sweden, and they were both living, in 1693. Rudman, M. S., quoted in Clay's Annals of the Swedes, 50, 139. Acrelius' History of New Sweden, 220. Stockholm, 1759.
Swen or Swensen was, in 1664, one of the patentees for the Wicaco tract, which formed a large part of subsequent Philadelphia.
1 " Sir Edmund Andros, Knight, was of English ancestry, originally from Northamptonshire. John Andros [or Andrews,] the first of them connected with Guernsey, was Lieutenant to Sir Peter Mewtis, the Go- vernor, and married in 1543, Judith De Sausmarez, the heiress, who brought the fief of Sausmarez into the family. Sir Edmund was born in London, 6th December, 1637. His father, Arnias Andros, being then Marshal of the ceremonies to King Charles I., Sir Edmond was brought up from a boy in the royal family, and on its exile commenced his career of arms in Holland under Prince Henry of Nassau. Upon the restoration of Charles II. in 1660, he was made gentleman in ordinary to Elizabeth
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BY VIRTUE of the authority deryved unto mee; I: doe hereby in his Mayties name, constitute appoint & autho- rize you M' Peter Cock Mr Peter Rambo M' Israell Helm M' Lace Andriesen M' Oele Swen & M- Otto
Stuart, Queen of Bohemia, the King's aunt. In the war waged by Charles against the Dutch, and which ended in 1667, he bore a distinguished part. Major Andros, in 1672, was commander of the forces in Barbadoes. In the same year, the palatine and proprietors of the province of Carolina, by a patent, in which they made allusion to his services and merits, con- ferred on him and his heirs, the title and dignity of Landgrave, with four baronies, containing 48,000 acres of land. The distinction does not appear to have been otherwise beneficial, and neither he, nor his heirs, it is be- lieved, at any time derived advantage from the large quantity of land an- nexed to the dignity. In 1674, on the death of his father, he succeeded to the office of bailiff of Guernsey. The same year the war, which had recommenced with the Dutch, having terminated, he was commissioned by patent, dated 24th July, to receive from them New York and its dependen- cies pursuant to the Treaty of Peace, and was constituted its Governor- General. It was on his return from thence in 1681, that he was knighted by Charles II. In 1686, James II. appointed him Governor, Captain General, and Vice-Admiral of Massachusetts, &c. After the revolution, William III., in 1692, preferred him to the Governorship of Virginia, and at the same time to that of Maryland. In 1704, under Queen Anne, he was made Lieutenant-Governor of Guernsey, became a widower at Boston, in New England, and married twice afterwards, closing his eventful life in the parish of St. Anne, in Westminster, without issue, in February, 1713, in his 76th year.
" Throughout the long course of his career, he resolutely encountered the duties and responsibilities of his high office, and was successful in re- sisting in his military as well as civil capacity, the intrigues and hostilities of the neighboring French and Indians to which he was continually ex- posed. By some of the chroniclers of the period who wrote doubtless not uninfluenced by its partizanship, he has been represented in his earlier government as an abettor of tyranny; but by others of them, appearing to have possessed the best means of judging of the circumstances under which he acted, his conduct has been liberally estimated (Chalmers' Poli- tical Annals). His later administration under William III., is allowed to have been irreproachable."
The above favorable sketch of the life of Andros, is taken from Dun-
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Ernest Cock to bee Justices of the Peace in the Jurisdic- tion of delowar River and dependences, and any three or more of you to bee a Court of Judicature, Giving you and Every of you full power to act in the sª Employment, according to Law & the trust Reposed in you, of weh all p"sons concerned are to take notice, & give you ye due respect and obedience belonging to yo:" places in discharge- ing yo:" Dutys ; This Commission to bee of force for the space of one yeare after the date hereof, or till further order. Given under my hand and seale in New Yorke the 23th day of September, in the 28th Jeare of his Mayties Raigne, Annoq Domini, 1676
(Signed) E. ANDROSS
[Loco SIGILI.] EDMOND ANDROS Esq. Seigneur of Sausmarez, Lieut: and Governor Gener." under his Roy" Highness James Duke of Yorke and Albany etc: of all his Territories in America.
BY VIRTUE of the authority deryved unto mee under his Royall highness I: do hereby constitute and appoint
can's History of the Island of Guernsey, 588-590 (London, 1841); the text, however, having been somewhat abridged in unessential particulars.
It may be added that while the authority of Chalmers relied upon by the above writer in more liberally estimating the conduct of Andros, cannot be regarded as altogether impartial and trustworthy, yet it must, notwith- standing, be admitted that the justice of the comment upon the Gover- nor's administration in Virginia, is not to be disputed.
Since the note was written, vol ii. of "The Documents Relating to the Colonial History of New York," has been published, where in a note at p. 740, may be found an elaborate biography of Andros by the editor, E. B. O'Callaghan, M. D., in which some additional particulars are given.
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UPLAND COURT.
you, EPHRAIM Herman to bee Clarke of the Court of New Castle in delowar and alsoe of the Court att uppland in the River, You are therefore Carefully to discharge yo" duty of a Clarke according to Law and Practice; Given under my hand and seale in Nieu Yorke this 23th day of Septemb" 1676
(Signed) E. ANDROSS A Coppy of his Hono", the Governor's Instructions ; EDMOND ANDROSS Esqr : & Seigneur of Sausmarez, Lieut & Governo" Gen11 under his Royall Highnesse James Duke of Yorke and albany etc: of all the Ter- ritories of America
WHEREAS The Last Jeare att my beeing att delowar uppon application of the Inhabitants Representing that my p"decesso" Governo" Lovelace had begun to make a Regu- lacon for the due administracon of Justice according to the Lawes of this Government, pursuant to wich I: did appoint some majestrates and make some Rules for their proceed- ing the Jeare e'suing or till further order; In wich haveing uppon mature deliberation, by the advyce of my Councill made some alteracon, They are to Remaine and bee in force in forme following ;
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