George A. Boeck
Using records of the Fifth Circuit Court of Appeals and Common
during Judge Alexander Addison's tenure, 1791-1799, aspects of the law
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.
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,
Becht, Zivilrecht, usw." are of interest to the historian, the
folklorist's interests will follow "dem 'Kanon'. . .Sachgut, Sprachgut,
Brauchgut and Glaubensgut im Recht."
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.
have 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
In colonial Pennsylvania
these counteractions evolved
from town meetings presided over by a judge to formal adversary
as the code of proscribed
behavior became increasingly
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.
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
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
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
journals by these men ought
to yield some solid information
on the functioning of this noteworthy institution.
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
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
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
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
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
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
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
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
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
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
nearly all of the folk concepts examined thus far had counterparts in
English common law, Pennsylvania common law being based upon the
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.
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
likely to be due to the
inclination to choose locally prominent people to preside over the
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 (Göttingen: 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.