First Records of Courts in State Preserved January 11, 1682

Nearly a month after the signing of the charter, March 4, 1681, King Charles II, April 2, issued a declaration informing the inhabitants and planters of the Province that William Penn, their absolute Proprietary, was clothed with all the powers and pre-eminences necessary for the Government. A few days later, April 8, the Proprietary addressed a proclamation to the inhabitants of Pennsylvania.

Captain William Markham, a cousin of William Penn, was appointed Deputy Governor and his commission contained five items of instructions, the fourth being “to erect courts, appoint sheriffs, justices of the peace, etc.” These courts were established and the new Government was soon functioning.

The records of these early courts are interesting to both the lawyer and those who care for the history of our State.

Most of our citizens are but little attracted by the tedious accounts of routine practice, or the fine distinction between one jurisdiction and another, yet they find gratification in contemplating the manners, customs and modes of thought once prevalent in our courts of justice.

A review of the practice of the courts of Pennsylvania in the seventeenth century and as late as the eighteenth present many interesting subjects.

The power to erect courts of justice and to appoint all judicial officers in and for the Province of Pennsylvania was by the express terms of the charter conferred upon the Proprietary. But, in deference to the wishes of the people, Penn was willing to forego to some degree the exercise of this extraordinary right and the concurrence of the Assembly was invariably required to the bill for the erection of a court. The judges during the early years of the Province were also selected by the Provincial Council, the members of which were elected annually by the people in accordance with provisions of the Frame of Government.

The County Courts of the Province had their origin in 1673, under the Government of James, Duke of York, and were established in every 29county, “to decide all matters under twenty pounds without appeal,” and to have exclusive jurisdiction in the administration of criminal justice, with an appeal, however, in cases extending to “Life, Limbo and Banishment,” to the Court of Assizes in New York. These courts usually consisted of five or six justices, which met quarterly. No one learned in the law presided on the bench, no attorney was allowed to practice for pay. Juries were only allowed to consist of six or seven men, except in cases of life and death, and in all save those instances, the conclusions of the majority were allowed to prevail.

The first court held in the Province, the records of which are preserved, was held in Philadelphia January 11, 1682. There were six bills presented to the Grand Jury, all but one having to do with the highway. That one exception was a petition for a court house.

These tribunals lacked almost every element of distinctly English procedure, but were continued by Penn. Justices of the Peace were from time to time commissioned, some for the whole Province and some for a particular county. Their attendance at court was secured by the penalty of a fine.

Twelve jurymen were subsequently provided whose unanimous opinion was required to bring in a verdict. The panel of jurymen was drawn in a highly primitive manner. “The names of the freemen were writ on small pieces of paper and put into a hat and shaken, forty-eight of whom were drawn by a child, and those so drawn stood for the Sheriff’s return.”

The civil jurisdiction of the County Courts was first distinctly defined in 1683, when all actions of debt, account or slander and all actions of trespass were by Act of Assembly declared to be originally cognizable solely by them. Other jurisdiction was given them by subsequent action of the Legislature.

The justices interfered to promote and defend the popular interests in all matters that were of public concern. In very early times they granted letters of administration. They superintended the laying out of roads, apportioned the town lots to responsible applicants, took acknowledgments of deeds and registered the private brands and marks of considerable owners of cattle.

They exercised, too, a supervision over all bond servants, regulated the sale of their time, afforded summary relief if they were abused by their masters, punished them with stripes or the pillory if they attempted to escape, and took care that they were at liberty to purchase their freedom on reasonable terms.

July 8, 1683, “Philip England made complaint against Sea Captain James Kilner, who denieth all alleged against him, only the kicking of the maid, and that was for spilling a chamber vessel upon the deck; otherwise he was very kind to them.”

They were also intrusted with other duties. The minutes of the 30Provincial Council for February 12, 1687–8, show that the County Court of Philadelphia was ordered to cause “stocks and a cage to be provided,” and was required “to suppress the noise and drunkenness of Indians, especially in the night, and to cause the crier to go to the extent of each street when he has anything to cry, and to put a check to horse racing.”

In 1702 the Grand Jury found true bills for the following offenses:

“John Simes, ordinary, and others, for keeping a disorderly house to debauch the youth. John was disguised in women’s clothes walking the streets openly, and going from house to house against the laws of God and this Province, to the staining of the holy profession, and against the law of nature. Edward James, a like offender, at an unreasonable hour of night.

“Dorothy, wife of Richard Conterill, is indicted also for being masked in men’s clothes, walking and dancing in the house of said John Simes at 10 o’clock at night. Sarah Stiver, wife of John Stiver, was also at the same house, dressed in men’s clothes, and walked the streets.”

It is quite probable that these indictments stopped any further attempts to hold “masquerade balls” in Philadelphia for some years.

In 1703 three barbers were indicted for “trimming on the First day”; three persons were brought before the Court for playing cards; a butcher was in court for “killing meat in the street and leaving their blood and offals there,” another for “setting up a great reed stack on Mulberry Street, and making a close fence about the same.” Many runaways were publicly whipped.

In the year 1708 “Solomon Cresson, a constable of the City of Philadelphia, going his rounds at 1 o’clock at night and discovering a very riotous assembly in a tavern, immediately ordered them to disperse, when John Evans, Esq., Governor of the Province, happened to be one of them, and called Solomon in the house and flogged him very severely, and had him imprisoned for two days.”

In 1731, at New Castle, “Catherine Bevan is ordered to be burned alive, for the murder of her husband; and Peter Murphy, the servant who assisted her, to be hanged.”

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