by George A. Boeck
Using records of the Fifth Circuit Court of Appeals and Common
Pleas during Judge Alexander Addison's tenure, 1791-1799,
aspects of the law relating to folk beliefs are discussed. In
particular it is shown that responsibility in the community
rested directly upon the individual, although there was an
inclination toward shared familial responsibility. Communication
is shown to be the basis for agreement. If an agreement was
based upon a complete understanding by both parties, it was
binding despite subsequent occurrences. Profit, unlike our
contemporary notions, was allowed only in situations
necessitating the recovery of possibly lost principal. Finally,
the jury system is shown to have been no longer capable of
determining the law, implying then, the disenfranchisement of
the folk community. The latter concerns, profit and jury
concepts, are discussed with regard to legal theory as well as
for their indication of processes involving the folk.
This paper is toward a
presentation of the concepts of common law in 18th Century
Pennsylvania. In particular, folk concepts of responsibility,
communication, profit, and the jury are presented.
Karl-Sigismund Kramer emphasizes that the folklorist's
categories for examination cross-cut those of the legal
historian. While the "rechtsgeschichtlichen Kategorien. .
.nach Strafrecht, ÷ffentlichem Becht, Zivilrecht, usw." are of
interest to the historian, the folklorist's interests will
follow "dem 'Kanon'. . .Sachgut, Sprachgut, Brauchgut and
Glaubensgut im Recht." 1 Due to
the nature of the records available, little information
regarding speaking or needs of the folk community is
presented. The emphasis of this paper will, then, be dealing
primarily with the beliefs and, to an extent, possessions.
expectations for member behavior which range from laudable
through sanctioned behavior and disapproved through proscribed
behavior. The examination of instances of proscribed behavior
yields an enumeration of these behaviors, a code of action
which is considered by the members of the community to be
disruptive to the extent that self-correcting institutions
must be engaged. Paul J. Bohannan defines these activities
designed to correct breaches in the range of acceptable
deviations as counteractions.2
In colonial Pennsylvania these counteractions evolved from
town meetings presided over by a judge to formal adversary
proceedings3 as the code of
proscribed behavior became increasingly elaborate.4 Similar elaboration occurred
within the common law as well. This was, further, an outcome
of the process whereby the in-dwelling law of the Quaker
settlers was increasingly codified, a process the formal
beginnings of which may be set shortly before 1756, when the
Quaker majority in the Pennsylvania Assembly was overturned.5 While it is not within the scope
of this paper to examine the changes in the common law during
and after formal Quaker control of the commonwealth, certain
philosophical shifts evidenced throughout the colonies during
the late 1700's and early 1800's may be addressed. A
convenient end to this process of codification could be set at
the 1807 report by the State Supreme Court to the Legislature
of those aspects of the common law which they felt ought to be
included in statutory law.66
Needless to say, the social processes upon which this
codification bore continued throughout the century.
The implications of the
codification of the law are far-reaching for both the
folklorist and the legal historian in that once the law had
become codified it became malleable toward social ends by both
the legislature and the courts.7
While the legal historian, at this juncture in the history of
law, would begin to examine the formation and effects of
various pressure groups upon the law, the folklorist looks to
the disenfranchisement of the folk from the law as locally
determined. Once the responsibility for this determination of
both the facts before the jury and the law applying to these
facts leaves the local forums, the court system must be seen
as predominantly elite rather than folk, in foundation.
Efforts toward safeguarding against this process were
initiated as early as 1686 when a bill meant to disallow the
charging of lawyer's fees, and thereby to hinder the rise of
professionalism in the law, was defeated in the Assembly.8
In the most recent direct
involvement of the folk in their legal affairs was
relinquished to the Supreme Court and the Legislature by the
early 1800's, then the earliest folk involvement in their law
would necessarily rest with the colonial immigrant. While the
English common law and the Christian religion were established
as the bases of colonial common law9
and indicate the folk origin of our law, application of the
law in Britain at the time was likely to have been thoroughly
beyond the capacity of the common man. In Pennsylvania,
however, the earliest courts necessarily operated on a
vernacular level. For instance, the selection of the jury was
by the drawing of lots made up of all of the freemen in the
county; the judges were men drawn from the community; either
the principals or their friends pled the cases.10 In each instance the realities
of the environment in which the folk community was situated
and the philosophical orientation of the founders of the
colony may be seen to organize the law as a folk-determined
institution. A particular aspect of the legal system dating to
this same 1683 session of the Assembly warranting study in
depth are the Peacemakers. Three common Peacemakers were
chosen for each county. Their duties were to intercede in
disputes prior to their coming to trial. Their decisions were
binding upon the participants and were, apparently, based in
common sense and fairness. While no official records of their
tenure exist, and the office was disbanded after a mere ten
years when the legislature determined that the law was not in
practice,11 journals by these
men ought to yield some solid information on the functioning
of this noteworthy institution.
The folk origins of some
of the concepts of common law in Pennsylvania are discoverable
by the examination of contemporary court records. Expectably,
the availability of comprehensive courtroom texts determines,
to a large extent, the period and area which is to be
discussed. Of somewhat greater interest, necessarily, is the
consideration of the processes in which the law is engaged.
The period of the late 1700's places the court within the
movement toward formal court room proceedings but still allows
the jury and judge some latitude in dividing the available
roles. For the greatest folk emphasis to be maintained, a
court well beyond the sphere of immediate Philadelphia
influence would be preferred. Fortunately, then, one of the
few easily accessible, fairly comprehensive reports of court
cases at the county level comes from the Fifth Circuit - well
into Northwestern Pennsylvania. Alexander Addison was the
President of the Courts of Common Pleas. His reports cover the
period from 1791 to 1799 and include appeals as well as county
courts. As mentioned above this places us in a very fortunate
time period and location. As to the thoroughness of his
reporting, he states that his cases "are taken from hasty
notes made by me at the time"; he considers it "incumbent on
me to mention. . .the imperfection, and, in some cases, the
omission of the statements of the arguments of council.12 This, fortunately, does not
deter us from discovering something of the common law upon
which the decisions in these cases were based. Further, in
Lloyd's words, some of the "true value [placed] upon the
flights of forensic oratory" among people who have "expressed
such profound admiration for the common law while deviating so
widely from it in practice 13
may be examined in those cases where particularly complete
notes have been kept.
Entering directly into
the cases, established that a forthright understanding on the
parts of the principals took precedence over subsequent
discoveries. In Merchant v. Milliron, Mr. Milliron had bought
that piece of land which the two of them agreed upon rather
than that which the surveyor eventually laid out.14 Again in Baird v. McInnes, the
boundary agreed upon was that which took precedence over
eventual court decisions.15 For
an application of this principle when applied to situations
involving risks, if both parties were aware of some risk
involved, their agreement was sound even if the outcome
realized the risk. Thus, in Dixon v. McClutchey, since Mr.
Dixon was told that the horse he was buying may have been
unsound, the deal was binding when the horse thereafter proved
to be, in fact, unsound.16
Again, in Cavode v. McKelvey, since the purchase of a house
with an unclear title proceeded with that in both men's minds,
the deal was final regardless of the eventual subsequent claim
on the house.17
These cases imply that a
profit may not be made based upon the ignorance of one of the
parties. In another horse-trading the concealment of the
illness of the horse was judged sufficient cause to void the
circumstances unknown to both parties cannot subsequently be
used to the benefit of one over the other. Although this is
somewhat more difficult to illustrate than the preceding
cases, St. Clair v. Galbraith may apply in that a ban
partially repaid by Galbraith during a period of depreciated
money was not considered fairly repaid.19
The entire concept of the proper manner for businessmen to make money was not fully changed until well into the 19th Century. Both Nelson and Horwitz consider this one of the seminal changes to be effected on the common law in the mid-1800's by the application of legislation upon law.20 In essence the proper manner of handling wealth required that a fair price be paid. At auction a buyer was required to pay the seller the full worth of the items bought;21 proceeds from the sale of goods to cover bills in excess of that actually owed were returned to the original owner.22 In short, the only legal method of making money was in situations in which it was doubtful whether there may not be a loss.23 These concepts of fair exchange, in Nelson's thinking, were instrumental in the "preservation of the community's economic and social stability" by encouraging people to "not to increase their wealth through either speculation or competition"24 but to accept the niche corresponding markedly to Redfield's description of the peasant comunity.25 One is led, then, to a consideration that the decline of this folk ethic may apply toward an explanation of how capital was made available for the increase in the rate of net investment posited by M. M. Flinn as a requirement for the onset of the Industrial Revolution.26
If we might return to our discussion
of the folk ethic as discoverable in the common law, a note
on the concept of responsibility may be of interest. Only
one instance of jointly held responsibility was found, this
being in a murder trial in which all of the individuals
present and either acting or aiding and abetting the action
were considered guilty as principals of the crime.27 There was, however, some
inclination toward considering family members as responsible
for one another. The court took particular care to point out
that while a wife may in certain circumstances act as her
husband's agent and that her husband was expected to act as
her agent, each was ultimately responsible for their own
actions28 and the acquittal
of one would not be considered the acquittal of both.29 Further, a son acting as his
father's executor was responsible for his father's debts in
his role as executor rather than that as his son, just as
someone acting as another's agent was responsible for the
other's debts as an agent rather than personally.30 If one, however, voluntarily
accepted the responsibility for another, as in the case of
vouching for someone's ability to repay a loan,31 or buying a house with an
acknowledged lien,32 then the
responsibility was fully transferred. In the former
instance, by the way, this acceptance of the responsibility
for someone's capacity to repay a loan did not allow the
borrower to freely default. Since the cosigner could buy the
loan from the original lender, in fact was occasionally
forced to buy the loan, he could, then, collect from the
person for whom he vouched.33
While nearly all of the
folk concepts examined thus far had counterparts in English
common law, Pennsylvania common law being based upon the
British system,34 there were
discoverable variations. As is the case with all immigrant
groups modifications, new forms and innovations established
that the new environment and social needs would take
precedent. In some cases the law was accepted but the
punishment changed. A pleasant example of this was the disuse
on humanitarian grounds of the ducking stool for conviction of
being a common cold.35 In other
instances the specifics of the laws themselves were modified.
One such modification involves the concept that concealing a
death was tantamount to confession of homicide. The particular
tragedy referred to is that of Pennsylvania vs. Susanna McKee
whose bastard infant was found dead. She maintained that it
had been born dead. English law would have convicted her on
the negative evidence of concealment. Pennsylvania law,
however, required positive evidence that the child had been
born living and that the child had subsequently received
injuries. As an aside, although Miss McKee was fairly
obviously guilty and the jury was instructed by the judge that
this guilt was proven, the verdict was not guilty.36
An example of common law notions being applied to a totally new environment and resulting unprecedented forms may be seen in Pennsylvania vs. Robison. In Western Pennsylvania the amount of available land significant while procedures for registering title were conflicting; quite the opposite was the case in Europe.37 In the absence of registered title, settlement established claim; settlement, in fact, took precedence over registry.38 To settle on property one must peaceably live there for three years. In the event that one's claim to the land was by force, the peaceable occupancy requirement was increased to twenty years. Such an arrangement seems very peculiar in that the use of such force is plainly actionable, leaving the modern reader to assume that moving was easier than initiating action to eject the interloper.
The scope of this paper cannot pretend toward a comprehensive discussion of the relationship between folk belief and the common law. At best a brief mention of some of the more prevalent concerns facing the community may be offered. Of the 178 matters considered by Judge Addison ' s court, a mere twenty-five were generated by criminal charges. Homicide (five cases), forcible entry (four), forgery (four), larceny (three), and riot (three) comprise the bulk of these cases. The overwhelming majority of issues handled revolve around property and business (ninety-four) and courtroom concepts (fifty-nine). Since it is in these areas that the greatest changes were taking place, the work in acculturation would lead us to expect such an expression of the tension caused by as well as causing these changes.39 A tallying of the matters before the court is provided:
Evidence 24 court
Contract 11 business
Survey 8 business
Indictment 6 court
Assignments 6 business
Homicide 5 criminal
Trespass 5 criminal
Settlement 5 business
Baron and Feme 4
Ejectment 4 business
Execution 4 business
Forceable Entry 4 criminal
Forgery 4 criminal
Justice of Peace 4 court
Malice 4 court
Warrant for Land 4 business
Bond 3 business
Indebtitatus Assumpsit 3 business
Jury 3 court
Land 3 business
Larceny 3 criminal
Riot 3 criminal
number of 2's 13; number of 1's 33
The predominant topics for discussion in rulings on evidence, by far the largest category listed, are matters concerning spoken versus written aspects of contracts. Specifically, the court was asked when it would accept spoken agreements over written ones. Many of the other topics upon which the court commented have already been dealt with to some extent. That e concepts of contractual obligation and fairness of exchange were in some flux is borne out by the frequency of the cases surrounding these concepts. It is worth noting that in some of these cases, the court provides a forum for the formulation of the coming code of behavior in the sense that the expression of this code will necessarily predate its enactment. For instance, in a rental agreement to be paid in grain, the landlord argued that the amount of grain was fixed while the tenant argued that the amount of money that the grain represented was fixed.40 Needless to say, the worth of a bushel of wheat had increased during the interim.
That the jury : judge : legislature relationship was changing, which Nelson conceives of as the second major difference between 18th and 19th Century law,41 is somewhat more difficult to sustain. The instructions and clarifications for the jury by the president of the court indicate that the process whereby the jury and, thereby, the folk community lost its power to make the law was nearly completed. Instead, legislative stature or precedent were presented to the jury for consideration. In Pennsylvania v. McKee,42. a forgery case interesting in its own right, the presiding judge instructed the jury (1) as to the state law: if the acts "amount to counterfeiting the hand and seal of another, why should it not be a good indictment on the Act of Assembly?"; (2) on the precedent in common law: "the forgery of any writing which may be prejudicial to another is forgery at common law"; and (3) of the facts of evidence themselves: "we think the proof strong against the defendant, and sufficient, if you believe it, to justify you in convicting him of forging the receipt, and uttering it, knowing it to be forged"43 The parenthetical question s in the instructions on statute is noteworthy in light of a verdict of not guilty on that offense, there being no positive proof just as in the concealment case earlier, but guilty on the common law offenses of prejudicing another with forged writing and giving utterance to that which was written and known to be forged. As it was mentioned, however, this was a somewhat peculiar case. As a general rule, where the offense was fairly straightforward, Judge Addison summarized the arguments, precedents, and statutes under consideration. In both this forgery case and in the concealment of death trial, the jury declined to use statute to find the individual guilty. Further instances of a disinclination by the local community to accept legislative over folk notions of the law indicates the relatively recent introduction of statutory law.
Very infrequently some response on the part of the jury would give indication of their deliberations. In the murder case Pennsylvania v. Lewis the jury responded "if there was no degree lower than the second, they found them guilty of murder in the second degree.44 In that the jury accepted the delineations of homicide presented them by the court, this indicates that the jury no longer made the law but operated solely on the grounds of determining what happened. The question arises, again, as to whether we are dealing with a folk, popular, or elite event. In the sense that the elite provide the structure within which community members interact, we have a popular culture event. If one's point of departure follows Hermann Baltl's influence, however, studying the participants and what may be determined about them, within whatever structure they happen to be found, we have a folk process.44 Were one able to establish the extent of folk beliefs in the actual statute, a significantly larger corpus of material would be available. This could be accomplished by examining records more directly controlled by the local community. The newspapers, Justice of the Peace records, and personal journals available in the area would certainly provide information in this regard.
The further into the past
one endeavors to research, the greater the difficulties of
recovery of information relating to such ephemeral materials
as folk belief which are largely carried in conversation. Even
with this as our premise, a great deal may be read through
what is essentially an elite record.45
This is likely to be due to the inclination to choose locally
prominent people to preside over the court.46 We have found, then, that the
counteractions in Western Pennsylvania in the 1790's were
concerned primarily with business, contractual, and court
matters. The common law code was in a period of change which
was part of continuing adaptations made by the immigrants in
regard to their new situations. While the role of the jury
seems to have been reduced earlier here than in Massachusetts,
the concepts of property, profit, responsibility, and
communication were being heavily discussed while remaining, as
yet, substantially unchanged.
1. Kramer, Karl-S., Grundriss einer Rechtlichen Volkskunde (G÷ttingen: Otto Schwartz, 1974), p. 1.
2. Bohannan, Paul J., "Anthropology and the Law. ," in Sol Tax, ed., Horizons in Anthropology (Chicago: Aldine, 1964), p. 193. While Bohannan's concept is applicable to our analysis, one should keep in mind that his work was primarily based upon violations of what Western Pennsylvanians would have considered criminal cases of a fairly serious nature, rather than the civil cases which were much more frequently before the court.
3. Lewis, Lawrence, Jr., "The Courts of Pennsylvania in the Seventeenth Century," in Report of the First Annual Meeting of the Pennsylvania Bar Association (Philadelphia: Pennsylvania Bar Association, 1895), pp. 354-355.
4. Philadelphia City Archives, "The Tangible Manifestation of the Law," in Newsletter, Nos. 31 and 32 (June and October, 1977).
5. Boorstin, Daniel J., "The Perils of Indwelling Law," in Robert Paul Wolff, ed., The Rule of Law (New York: Simon and Schuster, 1971), pp. 80-82.
6. Binney, Horace, Reports of Cases Adjudged in the Supreme Court of Pennsylvania, 3 vols. (Philadelphia: Kay and Brother, 1891), pp. 599-626.
7. Horwitz, Morton J., The Transformation of American Law, 1780-1860 (Cambridge, Mass.: Harvard University Press, 1977), p 1.
8. Lloyd, William, The Early Courts of Pennsylvania (Boston: Boston Book Co., 1910), p. 112.
9. Dallas. Alexander J., Reports of Cases Ruled and Adjudged in the Several Courts of the United States and of Pennsylvania Held at the Seat of the Federal Government, 4 vols. (Philadelphia: Ormrod, 1799), p. 67, Morris v. Vanderen.
10. Pennsylvania. Colonial Laws. Charter of William Penn and Laws of the Province of Pennsylvania Passed Between the Years of 1682 and 1700 Preceded by the Duke of York's Laws (Harrisburg, Pennsylvania, 1879), pp. 128, 129. Henceforth: D. of Y.
11. D. of Y., p. 129.
12. Addison, Alexander, Reports of Cases in the County Courts of the Fifth Circuit and the High Court of Errors and Appeals of the State of Pennsylvania (Philadelphia: George T. Bisel, 1883), p. vii. Pagination follows first edition.
13. Lloyd, p. v.
14. Addison, p. 352.
15. Addison, p. 292.
16. Addison, p. 322.
17. Addison, p. 56.
18. Addison, p. 146, Irwin v. Rankin.
19. Addison, p. 50.
20. Nelson, William E., The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 (Cambridge, Mass.: Harvard University Press, 1975), p. 7 passim.
21. Addison, p. 19, Fulton v. Irwin.
22. Addison, p. 46, Franks v. Stivers.
23. Addison, p. 124, Philip v. Stivers.
24. Nelson, pp. 5, 6.
25. Redfield, Robert, Peasant Society and Culture (Chicago: University of Chicago Press, 1956), p. 123.
26. Flinn, M. W. Origins of the Industrial Revolution (London: Longman's, 1966), p. 40.
27. Addison, p. 279, Pennsylvania v. Lewis el at.
28. Addison, p. 316, Spencer v. Tisue.
29. Addison, p. 18, Pennsylvania v. Lovel.
30. Addison, p. 138, Parr v. Jones.
31. Addison, p. 123, Barker v. Sutherland.
32. Addison, p. 37, Porter v, Brown.
33. Addison, p. 44, Pennsylvania v. Misner.
34. Dallas, p. 67, Morris v. Vanderen.
35. Sharswood, George, "The Common Law of Pennsylvania," in Report of the First Annual Meeting of the Pennsylvania Bar Association (Philadelphia: Pennsylvania Bar Assoc., 1895), p. 349.
36. Addison, p. 1-3, Pennsylvania v. McKee. The subtle distinction between positive and negative evidence raises a note of caution for the student in folklore. An ethnocentric attitude that the folk are simple, backward fellows somehow less adept at complex logic may be quickly dispelled by consideration of the complexity of the arguments followed in many of these court eases. In Philip v. Kirkpatrick (Addison, p. 124) the delineation between profit made on an investment and interest made on a loan rested upon the concept of chance. Thus, while the possibility that a ship may not come into port makes it ethical for the investor to make a profit on those that do, to cover possible future losses, the likelihood that an individual may become insolvent is not considered grounds for the charging of interest above the statutory limit unless the principle of the loan is endangered. In this ease, the father of all indentured son was forced to pay high interest on a bond of indenture because both the principle of the bond and the welfare of the indentured son upon which the bond rested were the responsibility of the lender.
37. Addison, p. 12, Pennsylvania v. Robison.
38. Addison, p. 52, Merchant v. Milliron; Addison, p. 252, Gilliland v Hanna.
39. Wallace, Anthony F. C., "Revitalization Movements," in American Anthropologist, vol. 58, no. 2 (April, 1956), pp. 269-270.
40. Addison, p. 346, Meason v. Philips.
41. Nelson, p. 13.
42. Addison, p. 33.
43. Addison, p. 283.
44. Bala, Hermann, "Folklore Research and Legal History in the German Language Area," Journal of the Folklore Institute, V: 2-3 (August-December 1968), 146.
45. Dorson, Richard, "The Use of Printed Sources," In Folklore and Folklife: An Introduction (Chicago, University of Chicago Press., 1972). Unfortunately, Dorson does not deal specifically with this problem facing the researcher in folklife studies. Instead, his emphasis is on printed sources augmenting field research in oral behavior.
Lewis, p. 354.