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cussion. It is sufficient to note that New York, in passing from the status of a proprietary to that of a royal province, came more directly under home influences and, as in the case of Virginia, the more radical and experimental features of the early laws disappeared in the face of the constantly increasing influence of the common law, or what the colonial administrator understood as common law.
As to remedial law it was, in the first place, provided that all actions of debt or trespass under the value of five pounds between neighbors should be put to the arbitration of two indifferent persons of the neighborhood to be nominated by the constable, or if either of the parties refused their arbitration, the justices of the peace should choose three other persons who were to meet at the cost of him who dissented from the first method, and their award should be conclusive. The practice of referring complicated cases to arbitration prevailed in the New Netherlands and this provision has been regarded as a survival of the Dutch custom.2 Voluntary submissions were well known at the common law, but the principle of compulsory reference was then and still is to a certain extent, looked upon askance as an attempt to take away the palladium of liberty-the right to a jury trial. Arbitration, as we shall see,
, occupied a prominent place in Penn's system of justice, was by far the most popular method of determining minor civil cases during the early period in Pennsyl
1 Charter and Laws of Pennsylvania, 3; see also page 51.
2 Records of Court of New Amsterdam, Vol. I, 226, 230, 237, 268, 299.
3 Steven's Essay on Arbitration, 105. The principle of compulsory arbitration in partnership disputes' was recognized in France by an edict of Francis II (1560) and an ordinance of Louis XIV (1673), incorporated in the Code Napoleon, L. 1, tit.
vania, and, though less used now, is still a part of the law. In 1677, the court at New Castle referred a dispute concerning the estate of a decedent to two arbitrators who were to examine the accounts and if possible decide the difference, otherwise to choose an umpire and report at the next court day. In 1678 Hendrick Vanden Burgh petitioned the court complaining that he had bought a house and lot from one Vidette who had purchased from William Tom, deceased; that the lot was six feet less in breadth than the deed called for and praying that this be added from Tom's adjoining lot which was about to be sold:
“The court answer that whereas this business in the Lyfetyme of Jan Vidette & Mr Tom was in question, and then decyded by Mr Moll, Mr Hans Blocq & Captn Cregier as umpier and the Peticonf now haueing in possession soe mutch ground as then the arbitrators allowed, must therefore Rest himself Contented wth ye same.
The courts were organized on a basis not dissimilar from that which already prevailed under the Dutch rule, with modifications suggested by the practice in the older English colonies. The principal court was the general court of assizes, held once a year in the autumn, presided over by the governor, and attended by the council, the mayor and aldermen of New York, and the justices of the various courts of sessions. No express provision for its creation is to be found in the laws although it is there incidentally mentioned, and, while the subject is obscure, the court was in fact the successor of that held by the director and council of the New
1 Records of the Court of New Castle, 94.
3 Charter and Laws of Pennsylvania, 11. The Court of Assizes was abolished in 1684 by Act of Assembly. Scott's History of Courts of New York, 104.
Netherlands. The limits of its jurisdiction were undefined, and it seems to have combined both legislative and judicial functions; indeed it was the closest approximation to a legislature that New York was destined to enjoy for some time. The court heard appeals from the sessions and complaints against local officials, tried the more important civil cases and all capital cases, except where a special commission of oyer and terminer was issued to the justices of a distant community in order to obtain a more speedy trial.
The procedure on appeal was taken almost literally from the laws of Massachusetts relating to appeals to the court of assistants. The appellant was required to give security for prosecuting an appeal and payment of damages. The grounds and reasons for appeal were to be filed with the clerk of the court. No justice that had sat or voted in the inferior court was permitted to vote in the court appealed to. Where the law and facts were found to agree with the former judgment it was not to be revoked, but the damages could be abated or increased as should be judged right.
Courts of sessions were established in districts roughly corresponding to counties in the neighborhood of New York called Ridings in imitation of the division of the English County of Yorkshire). These courts were held three times in the year, and were attended by the justices of the peace. The governor, if present, presided, or in his absence a member of the council or the senior justice. All actions involving from five to twenty pounds were triable at this court, from which there was no appeal “unless the debt appear to be above that summe of twenty pounds or where there is a dubiousness in the expression of the law.” In addition the court
1 Laws of Massachusetts Colony (1672), 3; compare Charter and Laws of Pennsylvania, 7.
2 Charter and Laws of Pennsylvania, 4.
was charged with the granting of letters of administration, the preservation of the peace, the trial of petty offenders, and the usual duties associated with the quarter sessions including the granting of liquor licenses, a duty still imposed on our quarter sessions to the discomfort of the judges. In this connection the law provided
"Every person Licenced to keep an Ordinary shall always be provided of strong and wholesome Beer, of four bushels of malt, at the least to a Hoggshead which he shall not Sell at above two pence the quart under the penalty of twenty shillings, for the first Offence, forty shillings for the Second, and loss of his Licence. It is pe nitted to any to sell Beer out of the Doores at a peny the Ale quart or under.
“No Licenced Person shall suffer any to Drink excessively or at unseasonable hours after Nine of the Clock at night in or about any their houses upon penalty of two shillings six pence for every Offence if Complaint and proofe be made thereof.
“No Licenced Person shall unreasonably exact upon his Guest for any sort of entertainment, and no man shall be compelled to pay above eight pence a Meale, with small beer only, unless the Guest shall make other agreement with the person so lycenced.
“No Licence shall be granted by any two Justices in Sessions for above the terme of one year, but every person so Licenced before the expiration of the said Terme shall and are hereby enjoyned to repair to the Sessions of that Jurisdiction for renewing their several Licences for which they shall pay to the Clark of the Sessions two Shillings Six pence, or else they shall forfeit five pounds as unlicenced persons.
Pure food agitation and rate regulation are thus foreshadowed, but not prohibition.
In all actions the plaintiff was required to file his declaration eight days before hearing. The defendant
1 The law was soon amended “that Inn keepers or Ordinary keepers shall not bee obliged to put any perticuler quantity of Mault into their Beere.” Charter and Laws of Pennsylvania, 64. For a petition for a license to keep an ordinary see Records of Court of New Castle, 312.
2 Charter and Laws of Pennsylvania, 4.
was permitted to take a copy thereof and file an answer. If judgment was entered for plaintiff it was endorsed on the declaration, if for the defendant on the answer. As in Massachusetts, no proceedings are to be reversed because of errors or mistakes “if the person and cause be rightly understood and intended by the court."1 Imprisonment in civil cases was restricted.
No man was to be kept in prison for a debt or fine longer than the second day of the sessions after the arrest unless it was made to appear that he had some estate which he would not produce; if the debtor had no estate he could be required to satisfy the debt by service.
In deference to the wishes of the New Englanders settled on Long Island provision was made for a town court consisting of the constable and overseers. The number of the latter was first fixed at eight but was subsequently reduced to four. Their duties were chiefly administrative, but, in cases where the parties refused arbitration, the town court was to decide the case if less than five pounds was involved. The town system, however, was not destined to thrive in the middle colonies, and penetrated to the Delaware only in an attenuated form.
Last in the official scale was the constable, then, as now, the local peace officer. His badge of office was a staff six feet long with the king's arms thereon, which was to be provided at the cost of the town, 4 but on the Delaware came out of the slender purse of the local Dogberry.5 Among his other onerous duties he was required to whip or punish any one so ordered by authority, “unless they can get another person to do it.”
1 Charter and Laws of Pennsylvania, 11.
“The wch they will bee at ye charge of themselves.” VII Pennsylvania Archives (2d Series), 737.