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The establishment of English jurisprudence in the colonies on the Delaware was not the work of a day, but a gradual process, involving compromises with the established customs and practices of the inhabitants, the gradual transformation of the Dutch schouts and schepens into their English equivalents, the education of the magistracy in the rudiments of English court practice and the actual modification of many of the rules of the common law, both as to property and practice, to meet the necessities of the primitive social conditions in the New World.

The legal conceptions of the new rulers found expression in a brief code promulgated at Hempstead, Long Island, in 1664, which, quaint and unsystematic as it may seem to us now, contained several notable departures from the common law well worth careful study by those interested in legal history.

The principle seems to have been generally accepted in the American colonies that the elements of public and private law should be stated in a concise and permanent form. Whether originating with the people, as in the case of the "Body of Liberties” in Massachusetts, or with the proprietors, as in the case of the “Fundamental Constitutions" of the Carolinas, the tendency of early colonial law was toward codification. And what could be more natural than that both adventurers and proprietors should dream of creating little Utopias by force of the statute book? New conditions, too, required new measures, the laymen who administered justice required brief and simple handbooks for their guidance, and the mixed population a homogeneous system in the place of their various ancestral customs. Such a code was the Duke of York's Laws which is stated to have been “Collected out of the Severall Laws

1 Reinch's Colonial Common Law, reprinted in Select Essays in Anglo-American Legal History, Vol. 1, 367.

now in force in his Majesties American Colonyes and Plantations." Prior to the conquest of the New Netherlands, Colonel Nicolls, the newly appointed governor, and Sir Robert Carr had been appointed members of a commission for the visitation of the New England colonies, a part of whose duties it was with diligence and care “to peruse the collection of the lawes published in those colonies during the late usurping Government, or at any tyme before or since; to the end that upon examination thereof you may discerne both the indecent expressions and material and important points and determinations in them, which are contrary to our dignity and to the lawes and customes of this realme and to the justice thereof; all which they have obliged themselves to cancele and repeale; and if the same bee not already done, you are in the first place to cause it to be done."'1

The commissioners were also empowered to hear all complaints and appeals in matters military, criminal and civil, but it was left to their discretion whether they would first visit New England or reduce the Dutch to submission. Having carried out the latter project it became necessary at once to organize the captured territory. The greater part of Long Island was already occupied by settlers from New England and, having obtained copies of the laws of Massachusetts and New Haven, Nicolls with the assistance of the secretary

1 V Pennsylvania Archives (2d Series), 501, 507.

2 Broadhead's History of New York, Vol. II, 66. Governor Nicolls writes to Clarendon April 7, 1666: "My Lord, I have remitted for confirmation to his Royal Highness the present Lawes of this Colony collected out of the Lawes of the other Colonyes, onely with such alterations as may revive the memory of old England amongst us, ffor Democracy hath taken so deepe a roote in these parts, that ye very name of a Justice of the Peace is an abomination." New York Historical Society Collections, 1869, p. 75.

and some of the magistrates prepared a code which, as a comparison will show, drew much of its material from these sources with, in the governor's words, “a relaxation of their severity in matters of conscience and religion.” The cruel laws against heretics and against “a pernicious sect commonly called Quakers”1 were omitted, as well as many other provisions relating to the Puritan discipline. The "capital lawes" were transcribed from the Massachusetts code, which was avowedly based on the Old Testament, but the offense of witchcraft was omitted and while the clause making it a capital offense for children above sixteen years old to curse or smite their parents was retained, the succeeding clause, enabling a man having a stubborn or rebellious son to bring him to the magistrates to be put to death in accordance with Deuteronomy, xxi, 18, was rejected.

As in its prototypes, the code is divided into titles arranged in alphabetical order but the classification is neither logical nor consistent, a failing noticeable in more modern and more pretentious legal productions. Much, however, that was adopted was both valuable and practical and, with additions from English and Dutch sources, was moulded into a form that perhaps met best the needs of civil administration in a newly organized proprietary province. Indeed we may recog

1 Laws of Massachusetts Colony (1672), 61. The Act of 1661 provided that "Vagabond Quakers" should "be stripped naked from the middle upwards, and tyed to a Carts tail, and whipped through the Town, and from thence immediately conveyed to the constable of the next Town towards the borders of our jurisdiction, as their warrant shall direct, and so from constable to constable till they be conveyed through any the outwardmost Towns of our jurisdiction.” If the Quaker returned he was to be branded and whipped as before and if he returned again suffer death. The Act of 1662 reduced the whippings to three towns.

nize in this as well as other provincial codes a kindred spirit, which without attempting to exploit many theoretical views on jurisprudence, drew upon a common source for so much of English law and custom as could reasonably be applied to the social and economic conditions of frontier life.

It is most difficult to determine how far the common law was viewed as a subsidiary system when not replaced by colonial statutes. The accepted theory that the colonists brought with them and adopted so much of the common law as was applicable to their condition is not wholly borne out by the facts. As the colonies increased in wealth and population, as their commercial relations with the mother country became more complex, the doctrines of the common law were necessarily drawn upon to fill up the gaps in the early legislation, and, as friction with the home government increased, the popular party appealed more and more to the common law, particularly to Magna Charta, as the muniment of political liberty and birthright of Englishmen, an appeal which writers such as Blackstone sought to evade by applying to America the status of conquered territory.?

Even more obscure is the question of the applicability of English statutes, but the principle was generally accepted that acts of parliament passed after the settlement of a colony were not in force there unless the words of the act expressly included the territory so

1 Story, J., in Van Ness v. Packard, 2 Peter's Reports (U. S.), 144 (1829); Commonwealth v. Knowlton, 2 Massachusetts Reports, 530 (1807); Bogardus v. Trinity Church, 4 Paige's Reports (N. Y.), 197 (1833).

2 Blackstone's Commentaries Introduction, page 107, and Notes of American Editors, particularly Hammond; Johnson v. McIntosh, 8 Wheaton's Reports (U. S.), 582 (1827).

occupied, although in some instances local usage would seem to have given the force of law to a statute not so extended. The subject is difficult and intricate. But at the early period now under discussion the tendency was to regard the elementary codes as approximately complete statements of the law. For matters not covered New England referred to the "Word of God” as contained in the Scriptures, while in the south the inclination was to claim a share in the laws of England, but in either case the application of these vague principles left in the local magistrates a very wide discretion which in the absence of professional criticism was checked and restrained only by legislative action or the influence of the governor and council. In the Duke of York's Laws the difficulty is met by the following clause:

"In regard it is almost impossible to provide sufficient Lawes in all Cases, or proper Punishments for all Crimes. The Court of Sessions shall not take further Cognizance of any Case or Crimes, whereof there is not provition made in some Lawes but to remit the Case or Crime, with the due Examination and proof to the Next Court of Assizes where matters of Equity shall be decided, or Punishment awarded according to the discretion of the Bench and not contrary to the known Laws of England.”.

An analysis of the substantive provisions of this code, however interesting, is outside of the scope of this dis

1 Anonymous, 2 Peere Williams's Reports, 74 (1722); Blankard v. Galdy, 2 Salkeld's Reports, 411 (1694); Anonymous, 1 Dallas's Reports, 1 (1754).

2 Chalmer's Opinions, 208; Report of the Judges, 3 Binney's Reports, 595 (1808); Pepper & Lewis's Digest of Pennsylvania Decisions, Vol. XX, col. 35347; Commonwealth v. Burrell, 7 Pennsylvania Reports, 34 (1847).

3 Sioussat's English Statutes, reprinted in Select Essays in Anglo-American History, Vol. I, 416.

4 Charter and Laws of Pennsylvania, 35. Upon such complaints of inconveniences and omissions the laws were several times amended. Charter and Laws of Pennsylvania, 58, 60, 68.


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