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A singular feature of the code was the section relating to jurors. It was provided that
"No jury shall exceed the number of sea ven nor be under
unless in Special Causes upon Life and Death, the Justices shall thinke fitt to Appoint twelve.”
“A verdict shall be so esteemed, when the major part of the Jury is agreed, and the Minor shall be concluded by the Major without allowance of any protest by any of them to the Contrary; Except in case of Life and Death where the whole Jury is to be unanimos in their Virdict."1
The source of this enactment, although not disclosed, will probably be found in a modified form in the Connecticut code of 16502 which left it to the magistrates
"To impannell a jury of sixe or twelve, as they shall judge the nature of the case shall require—and if foure of sixe, or eight of twelve agree, the verdict shall be deemed to all intents and purposes, sufficient and full.”
In confirmation of this view the similar provision of 1665 in regard to the town courts may be recalled, where
“The constable and overseers are to give their judgment by the Major vote, where six with the constable, or sea ven in his absence, are competent and equivolent to a jury, and the constable upon equall Division, is to have a casting voyce."'3
In 1666, it was directed that in jury trials at the court of assizes the number of jurors should be twelve, but that at the courts of sessions the number set forth in the law should be sufficient. 4
This remarkable deviation from the English jury system was not destined to survive. In the records of
1 Charter and Laws of Pennsylvania, 33.
the court at Upland, to which reference will be made hereafter, there is a case concerning title to real estate which was tried in 1681 before a jury of seven,' but in other cases in the same court juries of twelve were drawn, as was the practice also of the court at New Castle.
Penn in his laws agreed upon in England provided that all trials should be by twelve men, and this was made a fundamental law of the province. At the first court held at Lewes for the county of Sussex by commission of William Penn the legality of a prior verdict by a jury of seven was questioned. The suit was by Hermanns Wiltbank against Cornelius Johnson and is stated to be "by way of scarifacous”. to show cause why the defendant should not give the plaintiff possession of certain land.
“According to An order of Court & verdict of a jurey of Seaven men obtaind in this Court the 8th day of the 1 Mo. 1681. The said Cornelis Johnson showeth cause by his plea delivered into the Court in writing that he had obtained in this court a verdict of a Jurey of twelve men for the said Land and premisses According to the Laws of England; and that the verdict of sea ven men was and is Contrary to the knownen Laws of England."5
It was further alleged that Wiltbank had appealed from the former verdict against him and had failed to prosecute his appeal. The court with the consent of both parties referred the matter to the proprietor. a subsequent court the plaintiff again brought up the
1 Records of the Court at Upland, 190; see pages 107 and 181.
2 Records of the Court of New Castle, 12, 49, 53, 81, 133, 168, 174, 212, 217, 358, 436, 455.
3 Charter and Laws of Pennsylvania, 100, 117, 154.
* Elsewhere in the record "searifacous” (scire facias, mistaken for habere facias possessionem).
Sussex Records (Turner), 86, 91.
matter, stating that the governor had confirmed his right to the land but had recommended that it should be left to the peacemakers to determine whether anything was due the defendant for his improvements. Failing to prove his declaration he was nonsuited but afterwards on the advice of the court the whole dispute was referred to arbitration. 1
The Duke of York's Laws were not put into execution in the territories on the Delaware immediately upon their adoption. As already stated, the Dutch and Swedish magistrates were retained in office, but it was wisely resolved to carry the necessary changes into effect gradually. In 1668 Governor Lovelace issued directions to Deputy Governor John Carre to associate the schout and certain magistrates with himself as a council, and that
“The Lawes of the Governmt Establisht by his Royall Highness be shewed & frequently Communicated to the said Councellors & all othrs. To the end that being therwth acquainted the practice of them may also in convenient tyme be established wch conduceth to the Public Welfare & Common Justice."2
Under this plan the government was steadily brought into harmony with English ideas, the temporary check received in 1673, when the Dutch for a few brief months repossessed themselves of the New Netherlands, scarcely interrupting this process. At a council held at New York, May 17, 1672, it was ordered:
"That for ye better Governmt of ye Towne of New Castle for the future, the said Towne shall be erected into a Corporacon by the name of a Balywick, That is to say, it shall be Governed by a Bailey & six Assistants, to bee at first nominated by the Governor and at ye expiracon of a yeare foure of the six to go
1 Sussex Records (Turner) 102. In the earlier records there are cases tried before juries of both seven and twelve men.
2 VII Pennsylvania Archives (2d Series), 722.
out & foure others to be chosen in their places, the Bailey to continue for a yeare, & then two to be named to succeed, out of whom ye Governor will elect one; Hee is to preside in all ye corts of the Towne & have a double vote. A constable is likewise annually to be chosen by ye Bench.
"The Towne Court shall have power to try all causes of debt or damage to the value of ten pounds without appeal.
“That ye English Lawes according to the desire of the inhabitants, bee establisht both in ye Towne & all plantations upon Delaware River.
“That the office of Schout be converted into a Sheriffalty & ye High Sheriffs power extend both in the corporacon & river & that he be annually chosen by two being presented to the Governs, of whom he will nominate & confirm one.”ı
Finally, on September 26, 1676, an ordinance was passed by Governor Andros and the council formally ntroducing the Duke of York's Laws and establishing courts on the Delaware, the material portion of which is as follows:
"Whereas upon a peticon of the Magistrates and officers of New Castle and Delaware River, Govenor Lovelace did resolve & in part settle the Establish Lawes of this Government and appoint some magistrates under an English Denominacon accordingly, In the which their having been an obstruction for reason of the late warres & Change of Government; And findeing now an absolute necessity for ye well being of the Inhabitants, to make a speedy settlement, to be a generall knowne rule unto them for the future, Vpon mature deliberation and advise of my Councell, I have resolved, and by vertue of the Authority derived unto mee, doe hereby in his Maties Name Order as followeth.
"1. That the booke of Lawes Establisht by his Royal Highnesse & practiced in New Yorke, Long Island, and Dependencies bee likewise in force, and practiced in this River and Precincts, Except the Constables Courts, Country Rates & some-other
1 VII Pennsylvania Archives (2d Series) 748. The commission of Peter Alricks as “Bayliff” of the corporation of New Castle dated August 24, 1672, will be found in V Pennsylvania Archives (2d Series), 619.
things peculiar to Long Island, and the Militia as now ordered to remaine in ye King, but that a constable in each place bee yearely chosen for the Preservacon of his Maties Peace with all other Power as directed by ye law.
“2. That there bee three Courts held in ye several (parts of the river) & bay as formerly. To witt one in the Townes (New Castle one above at) Uplands another below at the Whorekil.
“3. That the said Courts consist of Justices of the Peace whereof three to make a Coram, & to have the Power of a Court of Sessions & decide all matters under twenty pounds without Appeale, in which Court the oldest Justice to preside, unless otherwise agreed amongst themselves above twenty pounds & for crime Extending to life Limbo or Banishment, to admit appeal to the Court of Assizes.
“4. That all small matters under the value of five pounds may be determined by the Court without a jury unless desired by the Partyes as also matters of Equity.
“5. That the Court for New Castle bee held once a month, to begin the first Tuesday in each Month And the Court for Uplands & the Whorekill, Quarterly & to begin the Second Tuesday of the Month.
“6. That all necessary By lawes or orders (not repugnant to the Lawes of the Government) made by the said Courts, bee of force & binding, for the space of one whole yeare, in the severall places where made They giveing an Account thereof to the Governor by the first convenience, And that noe fines be made or imposed but by order of Court.
“7. That the severall Courts have power to regulate the Court and Officrs Fees, not to exceed the Rates in the book of Lawes, nor to bee under halfe the Value therein exprest.
“8. That there bee a high Sheriffe for the Towne of New Castle, the River and Bay: And that the said high Sheriffe have power to make an Under Sheriffe or Marshall being a fitt person, and for whom hee will bee responsable, to be approved by the Court, But the Sheriffe, to act as in England & according to the now practice on Long Island, to act as a principall officer in the Execution of the Lawe, but not as a Justice of the Peace or Magistrate.
“9. That there bee fitting books provided for the Records in which all Judiciall Proceedings to be duely and fairely Entered, as also all Publick Orders from the Governor And the names of the Magistrates & Officers Authorized, with the time of their Admission: the said Records to bee kept in English, To which