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table in every respective court; and whosoever shall be convicted of taking more, shall pay two-fold, and be dismissed his employment, one moiety of which shall go to the party wronged.”ı
These provisions were enacted into law at assemblies held December 10, 1682,2 and March 1, 1683.3 Indeed the first and third paragraphs were at the latter session, included among the “fundamental laws” not to be altered without the consent of the governor and sixsevenths of the freemen of the province. This early attempt to discriminate between the general body of law and certain laws which were regarded as “more essentially requisite” to the well being of the state is of interest to the student of constitutional law. It shows that at this early period the feeling was present that some laws, not necessarily political, ought to be marked out for a special sort of permanence; a feeling that has led to the development of the modern state constitution, absurdly complex and overloaded with nonpolitical details.
Notable, also, are the provisions for the commencement of actions by an informal complaint and for brevity and simplicity in the pleadings and court records, which although in keeping with the primitive local custom were as code provisions a radical departure from the common law, too radical, in fact, to withstand the growth of professional feeling in the eighteenth century. Penn's more liberal contemporaries would not have thought of imposing upon a raw community the artificial system of England in its entirety, but few would have committed themselves to so radical a stand
1 Charter and Laws of Pennsylvania, 100.
4 Charter and Laws of Pennsylvania, 154; Reinch's Colonial Common Law, Essays in Anglo-American Legal History, Vol. I,
for permanent reform. As it happened lawyers soon emigrated to the province, bringing with them their cherished technicalities, and the old forms slowly but surely crept into use. Penn, indeed, was too much of a utilitarian to fully realize how deeply even the more cumbersome and fantastic features of the common law were rooted in the habits and customs of the people. We are reminded of his famous colloquy with Mr. Recorder Howell at his trial:
Penn. “I desire you would let me know by what law it is you prosecute me and upon what you ground your indictment."
Recorder. “Upon the common law.”
Recorder. “You must not think that I am able to run up so many years and over so many adjudged cases which we call common law to answer your curiosity.”
Penn. “This answer I am sure is very short of my question for if it be common, it should not be so hard to produce.”
Penn, like Bentham, would seem to have the best of the argument, but a century and a half passed before New York broke the chains of tradition in the code of 1848.
After a "prosperous passage of about two months," Penn arrived before New Castle on the twenty-seventh of October, 1682, and demanded livery of seisin from the commissioners appointed by the Duke of York. The ceremony took place on October twenty-eighth and is thus reported by John Moll:
“Whereupon by virtue of the power given unto us by the abovementioned letters of attorney, we did give and surrender in the name of his royal highness, unto him the said William Penn, Esq., actual and peaceable possession of the fort of New Castle, by giving him the key thereof, to lock upon himself alone the door, which being opened by him again, we did deliver also unto him one turf, with a twig upon it, a porringer with river water and soil, in part of all what was specified in the
said indenture or deed of enfeoffment from his royal highness, and according to the true intent and meaning thereof."'1
One of his first acts, after taking possession, was to commission six justices of the peace for New Castle and to send out notices for the holding of a court.2 At this court, which was attended by several of the council, as well as the justices, Penn delivered an address stating his purpose to call an assembly and recommending the magistrates, in the interim, to follow the laws of the Duke of York. Before the end of the year the province of Pennsylvania was divided into three counties, Philadelphia, Bucks, and Chester (which replaced Upland), and the lower territories into three also, New Castle, as before, while of the two counties into which the Whorekills had been divided, Deal became Sussex, and St. Jones, Kent. The county courts continued as already constituted, and for some time the boards of justices, therein assembled, exercised most of the functions of local government, such as the assessment of taxes, the erection of jails, the allotment of land to settlers and the abatement of public nuisances. The number of justices in any county varied from time to time with the pressure of business, the willingness or ability of those chosen to perform their duties or the favor of the council. Sometimes a man of importance was commissioned as justice for the whole province.
Under the Duke of York's laws the attendance of the justices was enforced by a fine of ten pounds for every day's absence, and there are entries of such fines in the records of the courts. 4 Under the Act of May 10, 1685,
1 Hazard's Annals of Pennsylvania, 606, quoting Records of Court of New Castle, Recorder's Office, B. 9, 407.
2 Hazard's Annals of Pennsylvania, 596.
3 Charter and Laws of Pennsylvania, 233, 237; Pennypacker's Colonial Cases, 78, 92; Sussex Records (Turner), 55, 83.
4 Charter and Laws of Pennsylvania, 3, 176; Upland Court Records, 189.
(ch. 176) the same policy was continued, but the fine reduced to thirty shillings. When possible the justices were assisted by the presence of the governor, members of the council or judges of the provincial court, after its establishment, all of whom were ex officio of the commission of the peace. In the minutes of the court of Bucks County it is noted that on the 4th and 11th day, 1 mo., 1683, the governor, William Penn, was present and held an orphans' court. The county courts with their vague and indefinite jurisdiction in civil and criminal causes and county affairs would seem to have been regarded with favor by Penn, who was averse to complicated procedure; hence at the first assembly held at Chester, December 7, 1682, there is little said of the courts, although in the "Great Body of Laws" then adopted will be found most important modifications of the common law both as to persons and property."
At the session, in March, 1683, it was enacted that in every precinct three persons should yearly be chosen as common peacemakers, to whom differences might be submitted for arbitration and whose findings should be as conclusive as those of the county court. In the minutes of the provincial council, 7th, 9 mo., 1683, will be found a case "referred to the peacemakers and in case of refusal to the County Court."? Voluntary arbitration was then an accepted method of settling disputes in England, particularly in cases involving merchants' accounts, enforced by bond conditioned to submit to the award, and arbitration, by rule of court,
1 Lands were made liable for debts "except where there was issue and then one half of the land,” the principle of set-off was accepted, the recording of deeds regulated and a mild criminal code adopted. Charter and Laws of Pennsylvania 109, 118.
2 I Colonial Records, 34, 7, 9 mo., 1683; see, also, Sussex Records (Turner) 97, 116, for the election of peacemakers.
was adopted by Statute 9 and 10 William III, ch. 15. We have also seen that from the earliest period the practice prevailed in New York and its dependencies. The office of peacemaker, however, seems to have survived only until 1692 when the assembly decided that the law was not in practice. Arbitration was long a popular method of trying cases and beginning with the Act of January 12, 1705, a law for reference by rule of court in the spirit of the statute of William III, there is a long series of acts perfecting this method of disposing of litigation. The early dockets of the supreme and common pleas courts are full of rules for references and voluntary submissions.
At the session of 1683 it was enacted that the first process in every suit should be the exhibition of a complaint fourteen days before trial, that the defendant should be summoned ten days before trial and furnished with a copy of the complaint, which was required to be delivered to him at his dwelling house. The jurisdiction of the county courts was also more clearly defined.
“That all actions of debt, Accompt, or Slander, and all actions of Trespass, shall be henceforth first tryed by there respective County Court, where the Cause of action did arise.
1 II Statutes at Large, 242. The Society of Friends had regulations of their own for submitting all differences between members to their monthly meetings. See the publications of the Genealogical Society of Pennsylvania, Vol. IV, 141. In 1707 James Logan writes to William Penn: “William Rakestraw has had me before the meeting for not granting him the lot near the bridge, after Francis Plumstead had applied to thee for it, and, as he pretends here, got a grant for it; but the six Friends to whom it was referred, declared it as their sentiments, upon a full hearing, that William has no manner of claim to it, either in law or equity, but that he has had full satisfaction, and shall condemn and retract his abuse against thee especially, of which shall send copies when past in the meeting.” Memoirs of Historical Society of Pennsylvania, Vol. X, 258. The Statute of William III would seem to have been first suggested by John Locke. Board of Trade Journal, December 18, 1696 (Mss. Historical Society of Pennsylvania, Vol. IX, 288).