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CHAPTER XII

THE JUDICIARY IN THE LATER PROPRIETARY PROVINCES

In connection with this subject the first question which calls for an answer is this: What were the courts in the later proprietary provinces?

In the earlier stages of their history the court of highest rank was that of governor and council. This was literally true in New Netherland. In New York the governor and council retained a certain jurisdiction, while they formed the most important part of the court of assizes, the highest judicial tribunal in the province.

Throughout the early proprietary period in Maryland the governor and council constituted the provincial court. In South Carolina until the beginning of 1683 all judicial business was done by the governor and council.¹ Subsequent to that date they sat as a court of appeal and as a chancery court. In North Carolina, until shortly after 1700, the general court consisted of the deputy governor and the deputies of the proprietors, with occasionally one or two associates.²

But in the Jerseys and Pennsylvania the governor and council played a less prominent part in judicial affairs. Owing to the imperfect organization of government in New Jersey prior to the Dutch reoccupation, very slight evidence of the judicial activity of the council appears. Occasionally in the later years of that decade it acted as a court of appeals. In West Jersey, during a few years subsequent to 1693, certain councillors appear as members of the provincial

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court of appeals; but their ex officio judicial activity does not seem to have extended beyond this.¹ In Pennsylvania the provincial court became differentiated from the council almost immediately. This course of development in both West Jersey and Pennsylvania was perhaps facilitated, if not made necessary, by the existence of elective councils.

Inasmuch as the councillors were chiefly concerned with executive business, and thus could hardly avoid being in a sense parties to some of the cases which they were called upon to try, their judicial functions were anomalous. The accumulation of duties in their hands was a feature of early colonial government which time and the growth of the colonies tended surely to remove. The same is still more true of the judicial functions of the assemblies, which, for example in Maryland, were exercised for a time, and then disappeared. Before the first century of colonial development had passed, the councils had ceased to regularly perform judicial functions, and supreme or superior courts had been organized. Under the Dutch in New Netherland, however, this stage was never reached. In the English provinces the exercise of the original common law jurisdiction was that which was first separated from the control of the council.

In New York the court of assizes was discontinued at the close of 1683, and by statute provision was made for the exercise of a part of its jurisdiction by a general court of oyer and terminer, which should sit twice a year in each county.² By the same act the governor and council, under the title of the supreme court of the province, was given the chancery jurisdiction. The governor was authorized to depute a chancellor to act in his stead, and to appoint other necessary officers. Governor Dongan also, in order better to settle controversies relating to lands and revenues, in February, 1686, erected a court of exchequer.³ This was known at the time as the court of judicature, and its judges were the governor and council. In New York, then, at the period of transition to royal government, the governor and council

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heard appeals, and also had jurisdiction over revenue cases and cases in equity. In 1678 Andros had been authorized to erect an admiralty court, but no regular tribunal had been established. In a few instances special commissions had been issued for such trials, but as a rule admiralty eases had been left to the mayor’s court of New York City.¹

In Maryland, until 1661, the governor had acted as chancellor.² From that date until 1689 Philip Calvert, an uncle of the governor and a member of the council, held that office. In 1684 the admiralty jurisdiction was also taken from the governor and his associates in the provincial court. One of the judges of the provincial court was appointed judge of admiralty. With the establishment of royal government in 1692, the provincial court was organized apart from the council, though for years thereafter it was common for members of the council to hold seats within it. The one of their original functions which the governor and council now retained was that of high court of appeal. These changes were effected mainly by instruction and ordinance.

In South Carolina the original common law jurisdiction of the governor and council was taken away when, in 1683, the court of Berkeley county was established.³ As courts were not established in the other counties, this tribunal continued throughout nearly the entire colonial period to try civil and criminal cases for the whole colony. It was really a provincial court, and after 1698 had a chief justice, an appointee of the proprietors, at its head. Before that time a board of assistant justices presided over its sessions, but after the appointment of chief justices began, the assistants disapproved. The organization of this court, with its distinct civil and criminal sessions, left the governor and council with the power of hearing appeals in civil cases involving more than £100. The governor and council also acted as a court of chancery.

At least as early as 1702 the general court of North Carolina

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began to act under a commission distinct from that of the council or of the proprietors’ deputies. A commission was published in 1702, and the oath of office was taken by three judges. In March, 1703, two other judges took the oath. We have no further records of the court until March, 1713, and then the bench consisted of a chief justice and two or more associate justices. The chief justice was appointed by the proprietors, and at least during and after Eden’s administration the governor appointed the associate judges.¹

During the first two decades of New Jersey history we find a few references to a court—once called the “general court,” and also referred to as the court of assize—whose jurisdiction extended at least nominally throughout the province.² It was distinct from the council, the latter bearing toward it and to the other courts of the province the customary relation of court of appeal. But when, under the twenty-four proprietors, counties were established in East Jersey, a provincial court, known as the court of common right, was permanently organized. This body was distinct from the council, consisted of twelve judges, “six at the least,” and met four times a year at Elizabethtown. Its members were commissioned by the governor and council, and, following Scotch usage, the court had, for a time, both common law and equity jurisdiction.³ The supreme court of appeal, which was constituted in West Jersey in 1693,—the first of its rank in that colony,—consisted in part of members of the governor’s council and in part of county justices.⁴ The act does not specify how these were to be designated. In 1697 provision was made that the provincial judges should be selected annually by the house of representatives and presented to the governor for his approval. The county justices were all elected. Therefore West Jersey came as near having an elective judiciary as did the corporate colonies.

Pennsylvania, in this matter, adhered more closely to the

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provincial ideal. In 1684 an act was passed which provided that five judges should be appointed by the governor under the great seal, any three of whom should constitute the provincial court. Twice yearly they should sit in Philadelphia, and in both spring and fall at least two of them should go on circuit through the counties of the province and territories.¹

While the central courts of the provinces were in this way undergoing development, local tribunals were also being organized. By means of these and of the circuits and appeals through which they were connected with the central courts, the judicial system of each province was perfected.

In the seventeenth century the town and the county were the local judicial centres in the provinces. Though the name hundred was sometimes applied, between about 1619 and 1634, to certain of the plantations in Virginia, as an institution it can scarcely be said to have existed there. So far as we are aware, no hundred court ever met in that province. In Maryland, on the other hand, the hundred occupied a permanent place. It was a unit for purposes of election, and also a fiscal and military unit. In some cases at the beginning the hundred had justices of peace, and in all cases it had constables. In a few cases where a justice of the peace was appointed, he was empowered to try and punish offenders. In early times a few hundred courts probably existed in Maryland, but as the counties were formed their judicial powers were taken over by the larger unions. The manorial courts of Maryland were equally unimportant from the standpoint of judicial history.² They were curiosities and survivals rather than vital parts of the provincial organism.

In the case of New Netherland and New York the county system did not fully develop until late. When the English took possession of New Netherland they found a system of village courts in existence. Though the court of the patroon of Rensselaerswyck and that of the vice-director on South river were slightly suggestive of county courts, in general it was true that the Dutch had not developed a local subdivision

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of their province or a tribunal which stood midway between the village court and that of the director and council. The courts of the towns at the eastern end of Long Island were wholly independent of Dutch control and were imitations of the New England model. When the English province was established these towns were brought into due subordination to the central tribunals at New York. This process was accompanied by the first step toward the establishment of counties, for the ridings of Yorkshire virtually were counties. Provision was made in the Duke’s Laws for a court of sessions in each riding. This met three times a year and consisted of justices of the peace, though the governor, or any councillor, if present, might preside. Cases went on appeal from these courts before the court of assizes.

Not until after the close of the Dutch reoccupation were the courts of Albany and Esopus fully changed to courts of sessions of the English type.¹ Very gradually did the titles of sheriff and justices of the peace take the place of those of schout and commissaries. As the great majority of the inhabitants in both localities were Dutch, and as no effort was made, so long as they proved obedient subjects, to force either the English language or English institutions upon them, changes were necessarily slow. The commander of the garrison at Albany exercised a general supervision over the administration of justice there, as he did over all other matters. Long intervals passed without any reports at all from the outpost reaching the officials at New York. In January, 1675, we find Andros writing to Lieutenant Knapton, the commander, that early the next summer he intended to visit Albany and regulate its affairs in such manner as seemed to be necessary. Knapton was warned in the meantime to keep on good terms with the magistrates.

The visit was made, though the governor^’s time was chiefly occupied with Indian affairs. One interesting result of it, however, was the provision that he made, by an instruction of August 30, for a tribunal which was to be known as the “general court.” It was to hold one session

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a year at Albany, and was to act as a subordinate court of appeal for Albany and Schenectady. Its judges were to be five or more commissioners from Albany and two or more from Schenectady.

No further important change was made until 1683. In that year the act was passed which divided New York, apart from its dependencies, into ten counties. This was followed by the act which provided for the establishment of a court of sessions, with justices of the peace, in each of the counties. These acts went into force, and with their execution the transition from Dutch to English tribunals in Albany and Ulster counties may be said to have been completed.

A leading characteristic of the English provinces as a whole, and one which serves to distinguish them not only from New Netherland as actually organized, but from early New England as well, is the importance of the county as an institution of local government. Not only was it the unit among them for the levy of taxes and the organization of the militia, but also for the administration of justice. In Maryland counties began at once to develop and the process steadily continued. At the beginning Saint Mary’s county and Kent county comprised respectively the settled parts of the Western and Eastern shores. Their bounds were gradually defined by the formation of outlying counties. Of the order of 1650 fixing the bounds of Charles county, and of that of 1654 repealing the above ordinance and erecting and bounding Calvert county, the record has been¹ preserved. The orders for the erection of Somerset county and for the attempted erection of Worcester county on Delaware bay are exceptionally detailed.² The records of the origin of the other Maryland counties which were created by the executive in the seventeenth century do not appear.

In the Carolinas at the beginning the term “county” was interpreted to refer to subdivisions of the vast territory which the proprietors had received, each of which should have its governor and assembly. In the Concessions of 1665

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the proprietors spoke of the “County of Clarendon, the County of Albemarle and the County—which latter is to be to the southward or westward of Cape Romania, all within the Province aforesaid.” This language suggests subdivisions of a vast domain such as the New England council planned in 1623 and 1635. Going farther back, it suggests such political structures as floated before the imagination of Sir Humphrey Gilbert. Each was intended to be a county palatine, rather than a county in the modern sense of the term.¹ In 1663 these proposed subdivisions were referred to by the proprietors as colonies. In the “proposals” of that year they spoke of the settlement near Cape Fear as “the first colony.” We have in this a reminiscence of the language which in 1606 was applied to Virginia. But I have not found the settlement on the Chowan river or that south of Cape Romania referred to as the second colony.

With the issue of the Fundamental Constitutions something more closely resembling a modern county was suggested. The number of these for which provision was made was to be the same as the number of landgraves, and they were to be increased as the settlement progressed. In every county there should be a court consisting of the sheriff and four justices, one for each precinct, and all should be commissioned by the palatine’s court.

But, as we are already aware, even these provisions were not carried into execution in either the northern or the southern part of the province. In the Ashley river colony, owing partly to natural causes and partly to political management, the counties did not attain more than a limited and imperfect development until near the close of the colonial period. In the Albemarle colony, though instructions drawn in the spirit of the Fundamental Constitutions were repeatedly issued, nothing resembling counties developed until near the close of the seventeenth century. Then they bore the name of precincts. The extant records of the court of Perquimans precinct, the earliest records of a county court which apparently have been preserved in North Carolina, begin in 1693.²

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Reference has already been made to the development of counties in New Jersey. Chester county in Pennsylvania was the outgrowth of the court of Upland on the Delaware. The formation of the three Lower Counties on Delaware bay was completed within four months after Penn received from the Duke of York the deeds which it was supposed transferred to him the Delaware region.¹ Before the close of 1682 the counties of Philadelphia and Bucks were established in Pennsylvania. By that date a system of county courts had been organized in both parts of Penn’s dominion.

In the provinces south of New York the town attained very slight prominence, the parish, as the English Church won favor, supplying in many regions the smallest circumscription which was needed for the purposes of local government.

The second inquiry which is suggested by this investigation is, by whom were the provincial and local courts established? Was it done exclusively under the ordinance power of the executive, or was provision made for them by the legislature?

By the royal charters the king conveyed to the proprietors the right to establish courts. The Dutch West India company was expressly authorized to appoint and remove officers of justice, as well as other public officers, “for the preservation of the places, keeping good order, police and justice.”² As a rule, in the provinces the earliest courts were established by the executive, without the cooperation of the assembly. The proprietor exercised his authority in this matter through the officials and by ordinance, rather than through the legislature and by statute. As we have seen, in New Netherland, and in the English provinces as well, the first court to be established was that of the governor and council. It was for a considerable time not only the chief tribunal of the province, but its only tribunal. It, of course, was created as an incident of the appointing of the governor and council.

In New Netherland, until the beginning of Stuyvesant’s

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administration, the director presided over trials in person, and constituted, of course, the most important member of the court. When Stuyvesant assumed office he made Van Dincklage, the vice-director, president of the council when it sat as a court of justice. But the director even then insisted that his opinion should be asked in all important cases, while he reserved the right to preside when he chose so to do.¹ Three of the Nine Men were also associated with the tribunal, and civil cases were sometimes referred to them for arbitration.

New Jersey and Pennsylvania, however, afford some exceptions to the rule that the judiciary owed its beginnings wholly to executive action. By the Concessions and Agreement of New Jersey the legislature was given at the outset the authority to establish courts by statute. But the legislature failed for some years to exercise this power in an effective manner, and that left the way open both for local initiative and for the occasional action of the governor and council. West Jersey, because of its peculiar organization, departed even more widely from the proprietary ideal.

William Penn, by his first and second Frames of Government, vested in the governor and the council the right to establish courts.² But in this case, as we have seen, the council was elective. It was given the right to present lists of candidates for judges and masters of the rolls, while the assembly was authorized in the same way to nominate sheriffs, justices of the peace, and coroners. From these lists the governor made appointments. But in Pennsylvania, as in the Jerseys, the assembly soon began to legislate concerning the establishment of courts and the appointment of judges. In 1684, as we have seen, it passed an act for the establishment of the provincial court. By that act it provided that the judges of the provincial court should be commissioned by the governor under the great seal. But an act was passed the following year which gave their appointment to the governor and the council without stating whether or not the procedure mentioned in the Frames of Government should be followed. It was this shifty legislation

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that in part occasioned the controversy with Thomas Lloyd during the administration of Governor Blackwell. By a law of 1690 the right of the governor to appoint provincial judges under the great seal was restored.¹ This provision was continued by the important act of 1701.²

It was almost inevitable that in both Pennsylvania and the Jerseys the legislature should begin at an early date both to establish and regulate courts. But in this respect they simply anticipated a course of development which was common to all the provinces. As time passed, the judicial systems in all of them were greatly extended by statutes, the jurisdiction of the courts and the relations between them coming in the end to be regulated by statute more than by ordinance. It is equally true that the counties within the proprietary provinces, together with the smaller local subdivisions, were established by the executive. This applies as well to the villages in New Netherland, to hundreds and towns, where they developed, as it does to counties. For the establishment of the county—which because of its universality and importance may be taken as representative of the whole—two acts were essential and decisive. These were the fixing of its bounds and the creation of the county court. In the early history of the province the fixing of the bounds of counties was the work of the proprietor, and it was done through his governor, the council, and the officers who were connected with the territorial administration. With that side of proprietary activity it was closely allied.

But the more important act was the creation of the local courts. In New Netherland the patroon and the city of New Amsterdam received their judicial authority direct from the States General and the West India company. That of the magistrates came ultimately from the same source. The commissaries on the South river, together with the schouts and schepens of the villages, received their power immediately from the director and council. The changes which were early introduced in the courts by the English, were effected through administrative action. By this means the

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courts of sessions in the southern parts of the province and the mayor’s court in the city of New York were created; by it also the changes were made which slowly transformed the courts of the northern parts of the province into English tribunals. But county courts attained their full development in New York under the authority of an act of the legislature. Its share in their creation was much more complete than was the corresponding activity either of the Maryland or the Carolina legislatures. This involved, however, somewhat radical departure from the early development of New York in other lines.

The history of the establishment of county courts it Maryland is in outline as follows. In January, 1638, John Lewger was appointed conservator or justice of the peace within Saint Mary’s county.¹ James Baldridge was about the same time appointed sheriff and coroner. Thus the officials whose presence was necessary to the existence of a county court were in being, but for some years at the outset the governor and council seem to have acted as the court of Saint Mary’s county. On December 30, 1637, Captain George Evelyn was appointed by the governor as commander of Kent island with the criminal and police jurisdiction of a justice of the peace, and civil jurisdiction in cases involving £10 or less.² Probably on account of the remoteness of Kent island and the difficulties with Claiborne, the commander was authorized to appoint all officers necessary for the preservation of peace and the administration of justice there, and especially a council of six or more with whom to consult respecting all important matters. Notwithstanding this, and though there is no proof of Evelyn’s removal, the following February³ three other justices of peace were appointed by the governor for Kent island and given the authority to hold there a “court leete.” A sheriff and coroner were appointed at the same time. Other appointments and orders follow, till in 1642 Giles Brent⁴ was made commander and two county commissioners were appointed.

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It was at that time that Kent island appeared definitely as a county.¹ When Charles and Calvert counties were erected we have record of the appointment only of a commander in one case and of a sheriff in the other. But in June, 1661, after the disturbed period of the Commonwealth had passed, an elaborate commission of the peace was issued, appointing a board of justices² for each of the counties then existing in the province. Such commissions were renewed at intervals thereafter.³ But of these counties only one had been erected by act of assembly. That was Ann Arundel, and it was created by a law of 1650.⁴ No other act for a similar purpose was passed till 1695.⁵ Hence, with one exception, the original counties of Maryland were created—that is, their bounds were fixed, courts were established, magistrates were appointed, and to an extent the jurisdiction of the courts was determined—by prerogative. The institutions thus founded were developed and perfected by the proprietor in his legislature. Statutes providing for this appear in the eighteenth century, but they simply elaborate the details of a system already established by ordinance and custom.

Among the powers of the assembly, as provided in the Concessions and Agreement which were issued by the Carolina proprietors in 1665, was that of constituting “all Courts for their respective Countyes, togeather with y^e Lymitts, powers and jurisdiction of y^e said Courts;” also the officers, their number, titles, fees, and perquisites.⁵ These Concessions were repeated in instructions to the governor of Albemarle in 1667.⁷ But from the records, as preserved, it cannot be proved that the first courts were established in Albemarle under acts of assembly. When the Fundamental Constitutions were issued, the liberal intentions which

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were indicated in the Concessions of 1665 were abandoned by the proprietors. In the Constitutions, as we know, provision was made for an elaborate judicial system to be established by ordinance after the plan had been accepted. Instructions from that time were drawn in the spirit of the Constitutions and not of the Concessions. The acts of the first assembly of Albemarle, that of January, 1669, so far as they were ratified by the proprietors, have been preserved, and none of them provide for the establishment of courts. In one of them the court of the governor and council is referred to as being in existence. This was to be expected, and probably it was the only one in the little settlement. The instructions of 1670 to the¹ governor and council of Albemarle, empowered them to establish such and so many courts as they should think fit, till “Our Grand Modell of Government” could be put into execution. In the instructions to the governor and council of Albemarle in 1676, they were commanded not only to administer justice themselves, according to the laws established, but to propose in the assembly the passage of laws for jury trial in criminal cases, as provided for in Article 69 of the Fundamental Constitutions, and for bail pending trial. In the instructions which were issued to Governor Henry Wilkinson in 1681,² he was empowered, with the advice of the council, to establish such courts as he should think fit, till the Fundamental Constitutions could be put into operation. In 1685 the proprietors instructed the governor to appoint justices and hold courts as provided in the Constitutions.³ Ludwell, in 1691, was instructed, with the consent of three of the proprietors’ deputies, to appoint a judge and four justices to try cases in any of the counties which had fifty freeholders qualified to serve on juries.⁴ In 1733 Governor Barrington had a controversy with two members of the council, about the right to erect precincts, and was able to show that, save in the case of one precinct formed in 1722, all had been erected without the cooperation of the legislature. By an act of 1715 the legislature recognized

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as legal units of representation the precincts which down to c that time had been established by ordinance.¹

In South Carolina the court of Berkeley county, which, as we have seen, exercised until late in the eighteenth century the common-law jurisdiction for the entire province, was established in 1683 by the governor and deputies under the authority of an instruction from the proprietors.² In 1692 the assembly of South Carolina admitted that the power to erect courts belonged to the proprietors, though the claim was made that it should be regulated by law.³ Almost no statutes, however, were passed relating to courts or their jurisdiction, until the wholesale adoption of English law in 1712. This, however, in no essential respect affected the basis upon which the judicial system of South Carolina rested. Until the period when royal government began, the establishment and regulation of courts remained an executive function.

The references which have already been made to the Jerseys indicate that with them the course of procedure was different. In New Jersey provision was made by statute in 1675 for four county courts, their times and places of meeting were stated, provision was made for the election of their judges, and the conditions under which appeals from these courts should be granted were specified. At the same session it was also enacted that a court of assize should be held, if there was occasion for it, and that it should meet at Woodbridge or at such place as the governor and council should appoint. Under the twenty-four proprietors the court of common right was created by statute, while in the same way enlarged provision was made for county courts. Relying on the Concessions and Agreement of 1665, the legislature in 1682 declared certain recent attempts to establish courts by ordinance to be an infringement of the liberties of the province, and pronounced both the said courts and their proceedings to be illegal. Town courts were not actually created by the legislature, but their jurisdiction over small causes was early recognized by that body. In 1698 the

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assembly declared that it had the authority to constitute all courts except that of chancery.¹ In West Jersey this principle was recognized from the first, and no court existed in that province save by virtue of an act of assembly.² The courts of sessions, as well as the central courts, were created by statute.

The origin of the county courts of Pennsylvania and the Lower Counties is to be found rather in executive action and a process of growth. The administration of justice on the Delaware, which was begun by the Dutch, was continued by officials who held under appointment from the early governors of New York. Resident justices, sheriffs, coroners, and constables were appointed for keeping the peace and administering justice in that region.³ Courts existed at Upland, Newcastle, and Whorekills, and sessions were held with considerable regularity. In the case of Upland the continuity of the tribunal is unbroken till it became the court of Chester county in Pennsylvania. The region within the jurisdiction of the other courts was annexed to Pennsylvania in 1682 as the three Lower Counties. Upland and Newcastle had been known as counties at least since 1678. The counties of Philadelphia and Bucks in Pennsylvania were established by the proprietor before the first assembly of that province met at Chester. In this way the earliest county courts in Pennsylvania were brought into existence by the exercise of the ordinance power, and in harmony with English custom. But legislation for the purpose of regulating the jurisdiction of these and of the other courts of the province began in 1683 and continued steadily thereafter. The other counties of the province were erected under statutory authority; Lancaster in 1729 and others at later dates.

Though the governments in all the colonies were subordinate, the jurisdiction exercised by their courts was as broad as it would have been in a sovereign state. The authority to establish courts, as given in the royal charters, carried with

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it no limitation as to the kind of court which might be created. Jurisdictions in all the forms known to English law were exercised in the colonies. The common-law jurisdiction in its three forms, also the chancery, the admiralty, and even the ecclesiastical jurisdiction, were exercised there. Martial law was also enforced as an incident of the power to wage defensive war. The ecclesiastical jurisdiction, however, was developed far more generally and distinctly in the royal provinces than it was in the chartered colonies. These forms of jurisdiction grew up by a process of natural adaptation and imitation of the English judicial system. In the development of procedure the process and result were much the same. It is through jurisdiction and procedure more truly than from the names and official personnel of the courts, that the relationship between the judicial systems of the colonies and that of the mother country may be perceived. What is true in these respects of the courts in the English colonies is true also of those in New Netherland.

As a system of appeals from the colonial to the English tribunals did not exist till near the close of the seventeenth century, the judicial institutions in the colonies developed independently of pressure from the English courts. Very great influence, however, was exerted by proprietors and their higher officials, through instructions and by means of their activity in the establishment of courts. Except in the Quaker provinces, it was they, rather than the colonists, who took the initiative. Through their mediation the transfer of English judicial institutions into the provinces was effected. If one desires to see how the colonists spontaneously acted in this, as in other matters, he should look at New England and at West Jersey.

In New Netherland the jurisdiction of the director and council was all-embracing. It was the tribunal before which, either originally or on appeal, came all cases, civil and criminal, which originated within the province. No better example than this can be found among the colonies of the concentration of authority in a single board or tribunal, almost in the hands of one man. In the English colonies a tendency soon appears to restrict the jurisdiction of the

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governor and council and to distribute their judicial powers among other tribunals. But as long as the Dutch province existed, the original simplicity of form, as well as the concentration of authority, remained. These were modified only by the establishment of local courts.

All local courts in New Netherland, whether they were those of the villages, of the patroon of Rensselaerswyck, or of the commissary or vice-director on the South river, were empowered to try both civil and criminal cases. The jurisdiction of the patroon and of the court of New Amstel was the broadest, but they, like all the other local courts, were legally subject to appeals before the director and council. This obligation in the case of the patroon was limited to cases involving life and limb and to civil suits which involved more than fifty guilders.¹ By its privileges as finally extended the court of New Amstel was freed from appeals in criminal cases, though the director and council could grant reprieves. In civil suits appeals were allowed in cases involving more than one hundred guilders.² Appeals from the village courts were allowed for sums in excess of fifty guilders, and in all except petty criminal cases. In the case of the patroon, however, the obligation of appeals was, as far as possible, disregarded. In his court not only was final judgment given in suits of all kinds which arose within his borders, but he even inflicted the death penalty. On the South river an independent policy like this was not followed. Though appeals from that quarter were rare, no opposition against them appears on record.

In Maryland and the Carolinas, where county courts developed somewhat slowly, the central court for a time transacted all the judicial business of the province, save the few cases which in Maryland came before the assembly. The provincial³ court of Maryland not only tried civil and criminal cases of all kinds, but did probate business and even held a coroner’s inquest. Cases of murder and even of treason⁴

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came before it. Mutinous speeches were frequently investigated by it. In 1638 William Lewis, a Catholic, was tried and found guilty of offensive speech “in calling the protestant ministers the ministers of the divell.” He was also found to have exceeded his rights in forbidding his servants to read Protestant¹ books. The admiralty jurisdiction was sometimes exercised in the trial of maritime cases and cases of piracy. But the court was chiefly occupied with civil suits and probate business. As soon as royal government was established in 1692 the governor and council, instead of the upper house, became the court of appeals. The governor never again served as chief justice of the provincial court. These steps implied the separation of the provincial court from the council. This, however, so far as the personnel of the judges was concerned, was never fully effected; though as the eighteenth century advanced the tendency was decidedly in that direction.²

In Maryland the governor, as we have seen, acted as chancellor until 1661. Then Philip Calvert, an uncle³ of the governor and a member of the council, was appointed to that office. With that event the chancery secured an organization distinct from the council. Until 1673 probate business continued to be done in the provincial court, and was specially connected with the office of secretary. At that date it was transferred to the chancery, with right of appeal to the proprietor, the governor, or designated commissioners. Later, the officer who was in general charge of probate business was known as the commissary-general.⁴ He was authorized to appoint a deputy in each county, though it is not probable that such appointments were often made. In 1684 the governor ceased to exercise the vice-admiralty power in person, and one of the justices of the provincial court was appointed judge of the admiralty court. By this process of differentiation a group of central courts developed about the

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When, in 1684, the provincial court was established, its justices were required to go twice annually on circuit through the counties. When they were on circuit, as well as at their “fixed” sessions in Philadelphia, they should hear and determine all appeals from county courts, try all controversies over title to land and all causes, civil and criminal, both in law and equity, which were not determinable in the county courts. This is an early and a notable instance in the history of the colonies of the establishment of judicial circuits, an imitation of the time-honored practice in England of carrying the traditions and procedure of the central courts into the localities. In several of the provinces—especially in Maryland and South Carolina, and to an extent also in New York—the people complained of the cost and inconvenience of travelling to the chief centre of government for the transaction of their judicial business. In the Quaker provinces of West Jersey and Pennsylvania an effort was made to remove this difficulty by carrying justice to the people.

But in Pennsylvania the new plan was not in every way a success. The provincial judges found their added task laborious and costly. The county courts were still believed to be best fitted for trying the cases which had originated in their respective localities. For these reasons, in 1685,¹ the system was slightly modified by an act which emphasized the original jurisdiction of the county courts, and provided that heinous crimes and appeals should be tried in the counties by three judges specially commissioned by the governor and council. But dissatisfaction continued, because of inadequate compensation among the judges and among the people because of failure of justice. The proprietor sent over a chiding message. Owing, however, to the controversies of Blackwell’s administration, there was no further legislation on the subject until 1690. Then an act was passed restoring the plan which had been tried in 1684, and providing that appeals from the county courts to the provincial courts should be granted in cases involving more than £10, the appellant giving sufficient security to prosecute the appeal and pay the costs.² A similar

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act was passed in 1693, while by the law of 1700 circuit courts became a permanent feature of the judicial system of Pennsylvania.¹

The county courts, except in Pennsylvania, possessed only a common law jurisdiction. Their development tended still further to decentralize the administration of justice in the provinces. In Maryland they attained their full growth soon after 1660. At that time the terms “justice of peace” or “commissioner” came exclusively into use. Four or more of these officers—due provisions being made for the quorum—were appointed to serve in each county. Their jurisdiction extended to criminal cases which did not involve life or limb, and to civil suits in which the value involved did not exceed three thousand pounds of tobacco. Their duties as orphans’ courts is especially emphasized in the act. In reference to criminal cases the limits of their jurisdiction remained unchanged. But in the matter of civil suits a prolonged effort was made by the lower house to extend their authority. This was one feature of the popular reaction against the extreme centralizing system of government which existed in Maryland between 1660 and 1690. It also originated in the very natural desire on the part of the people to avoid, so far as was practicable, the expense of carrying their suits to Saint Mary^’s for trial.² This tendency the proprietary officials opposed. Its triumph would lessen their fees, reduce their power, throw more influence into the hands of the county justices, many of whom were members of the lower house and were identified with the opposition.³ Previous to the Revolution of 1690 the proprietor and his officials were able to prevent all but one or two slight changes. After royal government was established the jurisdiction of the county courts was considerably extended. But it has required additional and prolonged efforts to secure corresponding restriction of the authority of the provincial court.

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In South Carolina a series of acts, beginning at least as early as 1683, empowered one or more justices to try petty cases which involved not more than forty shillings.¹ No attempt was made to define the localities within which they should act, but the jurisdiction conferred was essentially that of town courts. The justices could issue warrants, arrest, take recognizances, prove writings, and perform other similar functions. As the courts for the trial of petty cases were the only approach to local courts which existed in the province until near the close of the colonial period, it follows that the administration of justice was extremely centralized. The so-called court of Berkeley county, which very soon separated to form a court of pleas² and a court of general sessions, was really a central tribunal. Yet, strangely enough, it had no appellate jurisdiction, unless it were from the courts for the trial of small causes. After 1698 its presiding judge held the title of chief justice. By or before that time the assistant judges, who with the chief judge or sheriff had originally constituted the bench, had disappeared. The chief justice was thus left as the only common law judge, in the full sense of the term, in the province. This was the situation in the days of Nicholas Trott. Besides being chief justice, he was councillor, and after 1716 was judge of the vice-admiralty court. He was also decidedly the ablest among the few trained lawyers in the province. Nearly all the judicial business in South Carolina passed through his hands. It was this concentration of power which contributed strongly toward the revolt of 1719 by which proprietary government was overthrown.

The council and assembly, in a petition to the king in 1720, stated the case as follows: “Neither have they settled any county jurisdiction for the preservation of the peace and regular government according to the laws of England; neither have they erected one manor for holding court baron

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or views of frank pledge and courts leet for the conservation of the peace and better government of this colony, but have abandoned all to an unaccountable disorder and confusion under the adm’n and underhand management of a single person whom they have commissionated and call Chief Justice, who solely and by himself holds all courts of King’s Bench, Common Pleas and Exchequer, as also all assize, county courts and sessions, only in Charles Towne, the only place of judicature in the whole province; who makes what lawyers and takes what fees he pleases, summoning all persons from the remotest parts of the colony to attend his courts. No appeals from himself but to himself, nor no method of appeals settled for the ease of Your Majesty’s subjects to Your Majesty and Council, as is done in the rest of Your Majesty’s colonies. Nor any process suffered to be issued in Your Majesty’s name. He judges of his own errors. The marshal and other officers taking what fees they will, and he upon frivolous pretences adjourning courts and putting off trials, delaying justice in order to multiply his perquisites, which are according to his own arbitrary pleasure; daily exacting and extorting new fees, to the intolerable burden of the colony; undertaking himself to draw writings according to his own pleasure; sending for lawyers and giving secret advice, both to them and the clients, how to proceed in their cases; and insists that no Gen’l Assembly or authority here can either call him to an account or remove him. . . . The LPs, notwithstanding repeated complaints by the public, and by private persons injured by him, cannot be induced to remove him, he persuading them that he is the only person who can serve their interests in Carolina.”

In North Carolina, and in the Quaker provinces, the county court underwent a normal development. In North Carolina the jurisdiction of the precinct courts, as finally¹ regulated, extended over criminal offences which were punishable by fines and forfeitures, and not by the loss of life or limb. They could try civil causes which did not involve more than £100. The court of the single justice

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disposed of all claims for less than forty shillings. In the precinct court claims to head rights were proved. The same court also took probate of wills and, when there was no dispute,¹ it granted letters of administration. Acting as an orphans’ court, it appointed guardians and bound children out as apprentices. Letters testamentary and letters of administration, however, must be signed by the governor and secretary and sealed with the province seal.

In the Jerseys the monthly court of small causes appears, with its customary jurisdiction² and presided over by a single justice of the peace. In East Jersey the jurisdiction of the courts of sessions was in no way restricted. They might try any civil suit. With the exception of the court of Cape May county during the years between 1693 and 1697 the same seems to have been the case in West Jersey.³ The laws of West Jersey make no reference whatever to the exercise of criminal jurisdiction by county courts.

In Pennsylvania the county courts were from the first given original jurisdiction over cases of debt, slander, and trespass. They also could try all except capital crimes,⁴ the latter being tried exclusively by the provincial judges while on circuit in the counties. In 1688 treason, murder, manslaughter, and “other heinous and enormous crimes” were specified as wholly under the jurisdiction⁵ of the provincial justices. At the same time Pennsylvania departed from usage elsewhere by making the county tribunals courts of equity for cases which involved less than £10. This. power was continued to them by a law of 1693. Twice a year the county justices sat as an orphans’ court⁶ In this capacity they administered wholly or in part on the estates of many decedents, though the proving of wills and granting letters of administration in Pennsylvania were the functions of the register-general and his deputies.⁷

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The final subject to be considered in the discussion of the judiciary is that of procedure, though at the present stage of investigation only a few general statements in reference to it can be made.

In all the provinces except New York, where for a time Dutch practice survived, English procedure was spontaneously followed. But in the provinces, as in New England, justice was administered in the seventeenth century chiefly by laymen. Owing to this reason, as well as to the fact of the greater simplicity of colonial life, many of the complexities and technicalities of English procedure were dropped. They exceeded the capacity of the untrained or poorly trained minds of the colonists to understand or apply. Respecting any except the most common English precedents, little knowledge existed. One would infer that those who managed the affairs of North Carolina, New Jersey, and Rhode Island were less concerned about the forms and technicalities of English practice than were the officials of other colonies. Among the officials of Maryland, New York, and South Carolina the legal spirit of England was more strongly felt. It was, of course, in the local courts that the easy-going methods of popular justice most obtained.

Though Dutch¹ procedure in civil suits might be formal and trials be conducted largely in writing, yet in most instances they were not so, and practical conciliation through something approaching arbitration was the object sought. It therefore agreed well with the main tendencies of colonial life. To these tendencies in the administration of justice the Quakers gave peculiarly frank expression. The jury of inquest and trial was universally employed in the common law courts, save in those for the trial of small causes.² But wherever Quakers held authority the requirement for its use was expressed in the most sweeping terms. The early declarations of Penn and his associates that judicial proceedings

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should be simple, plain, and free, stated in more precise form principles which had already been enunciated in the Concessions of East and West Jersey.

Attorneys were freely employed in all the provinces. The evidence of this activity is much more abundant than it is during the same period in the New England colonies. By the Duke’s Laws justices of the peace, while in office, were forbidden to act as attorneys. Sheriffs, constables, clerks of courts, were also forbidden to plead as attorneys in their own courts, except at the special request of some poor person, who was unable to plead his own cause.¹ The manuscript records of the court of assizes in New York reveals their activity in connection with all important cases. John Sharpe and John Ryder appear in so many cases that it is clear that they were regular practitioners. The records of the provincial court of Maryland almost from the beginning make frequent reference to attorneys.² We hear much of them in connection with the discussion of fees. In 1674 an act³ was passed to regulate the admission of attorneys to the right to practise in the courts of the province. They were to be admitted and sworn by the governor, and could practice in the county courts only with the permission of the justices of those courts.

In both the Carolinas attorneys were employed in the trial of causes. In the tables of fees which were prescribed by a South Carolina statute of 1694 those of attorneys occupy a prominent place.⁴ The general court of North Carolina, in order to prevent men from acting as attorneys who had not been bred in the law, insisted that none should practise before them who had not been licensed by the chief justice and judges of the court.⁵ Attorneys who were guilty of unbecoming conduct were debarred by the court from practising before it. No sheriff, under-sheriff, or clerk could act as attorney in the court of which he was an officer unless in

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his own cause or as attorney of some person who resided outside the province. In New Jersey, in 1676, justices of the peace were by law forbidden to practise as attorneys or advocates,¹ or to act in any case as such except in their own causes, or those of the king or proprietor. In 1698 Governor Basse was instructed to consent to the passage of an act requiring all attorneys who should plead for hire before any court of the province to be licensed by the governor. West Jersey, in its legislation, emphasized the option, which was doubtless recognized in all the provinces, that no man was compelled to employ an attorney, but, if he chose, he might plead his own cause.² An early law of Pennsylvania ran to much the same effect.³

The existence of attorneys, however, and their employment largely in civil suits, by no means implies that the accused in criminal cases were allowed counsel, or that colonial usage differed in this respect essentially from that of the English courts. Reports of criminal⁴ trials, so far as they have been preserved and are accessible, show that in general the procedure in the English courts was followed. The English form of indictment and of pleading was used. The jury was selected subject to the right of challenge on the part of the accused. In the trial of Josias Fendall Catholics were excluded from the jury as the result of challenges by the prisoner. Fendall complained that he had had no notice of his trial, or opportunity to procure witnesses or knowledge of the charge against him. This was denied by the chancellor and other judges, and the statement was made that the depositions of the witnesses for the government had, for the most part, been read to the

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accused when he was before the council. The attorney-general also told him that every accused man was presumed to know what he had done.

The witnesses for the government were called and examined under oath by the attorney-general, the bench from time to time interposing questions. Fendall’s witnesses were not sworn, the court ruling that an oath could not be administered for the purpose of strengthening testimony against the lord proprietor. Fendall called a few witnesses on his own behalf. The witnesses on both sides were allowed to tell their stories, and practically no effort was made to test the quality of their evidence. The testimony of two witnesses to the same overt act of treason or sedition was not required, but, in accordance with English rulings at the time, it was deemed sufficient if more than one witness testified to a succession of acts in the same series. The chancellor, during the trial and in his summing up, made no concealment of his prejudice in favor of the government and against the prisoner. The jury was told to pass only on matters of fact. The evidence is clear that, in comparison with modern trials, procedure in the seventeenth century was crude and summary. In cases which had a political coloring, or in which the government was interested, there were no adequate guaranties against gross partiality on the bench.

In proprietary New York, justice was administered in the name of the king. His title was introduced into the style of the courts.¹ Its judges were denominated the king’s justices. In Maryland, on the other hand, except when the province was administered under the authority of parliament, the courts were the proprietors’ courts; processes were issued and justice was administered in his name.² “Att a Provinciall Court,” the entry ran, “Held at the Citty of St. Maryes In the Province of Maryland . . . in the Sixth yeare of the Dominion of the Right honorable Charles

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Lord Baltimore, Absolute Lord and Proprietary, . . . Before his Lordshipps Justices there unto assigned, . . .” In North Carolina, at least after the closing years of the seventeenth century, the judges of the general court were officially designated as the king’s or queen’s justices. Grand jurors are referred to as acting on behalf of the crown. Writs of precinct courts were issued in the king’s name. A similar practice was probably followed in South Carolina.¹ In East Jersey, after 1682, process and writs were issued in the name of the proprietors to arrest parties in the king’s name.² The laws of West Jersey contain no requirement for the recognition of the crown at any stage of judicial process. In Pennsylvania, at the beginning, judicial commissions, as well as others, were issued in the name of the proprietor. Sometime after the final return of the proprietor to England, the practice was changed, and judicial commissions were issued in the king’s name.³ Governor Keith, in 1718, insisted strongly upon following this latter course. For a few years subsequent to the death of William Penn, Keith’s opinion prevailed, but on the accession of Penn’s sons to authority, the original practice was resumed. The ordinances which, in the early eighteenth century, were issued by the governors for the continuance of courts, provided that the writs of the supreme court should be issued in the queen’s name, but be sealed with the province seal; the duty of the quarter sessions was stated to be that of keeping the queen’s peace.⁴ But no references of this nature appear in the acts of assembly for the establishment of courts, all of which, prior to that of 1722, were disallowed by the crown.

In all the proprietary provinces, except West Jersey, the office of attorney-general was created for the protection of the rights of the proprietor and of the king. In 1685 James Graham was appointed to that office in New York. At least as early as 1660 the office was created in Maryland.

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In South Carolina, Nicholas Trott, the first attorney-general, received his appointment in 1698. At a somewhat earlier date the office was filled in North Carolina. In East Jersey the twenty-four proprietors appointed an attorney-general. In Pennsylvania the office was in existence in 1693.¹